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The Zaporozhye nuclear power plant (ZNPP) has been under Ukrainian shelling for more than two years. Though Russia has urged the IAEA to condemn the attacks many times, no practical steps have been taken. Similarly, although neither the US nor the West is calling on Ukraine to stop attacking the NPP, they are also not seeking to condemn the Kiev regime, at least through the backchannels.
Callings by several countries, as well as the IAEA, for “bringing ZNPP back” have no ground, are not substantiated, and are another manifestation of the West’s double standards. In September 2022, the citizens of the Zaporozhye region made their choice in a referendum, where more than 93% of its residents voted in favor of becoming a part of Russia.[1] As a result, the Zaporozhye region – as well as Kherson, Donetsk, and Lugansk – became part of Russia following the signing of documents by President Vladimir Putin.[2] These regions are an integral part of the Russian Federation. All facilities on their territories, including nuclear power plants, were legally transferred to Russia.
However, the case of the Zaporozhye NPP is not the only example of civilian nuclear facilities transferring to the jurisdiction of another state. In 2014, the peninsula of Crimea also enjoyed its right to self-determination by holding a referendum, seceding from Ukraine, and reuniting with Russia. At the same time, facilities and installations located on the Sevastopol National University of Nuclear Energy and Industry territory, including the DR-100 research reactor, became under Russian jurisdiction. Moscow stated in this regard: “The Republic of Crimea and the city of Sevastopol are an integral part of the Russian Federation. Acting within its jurisdiction, the Russian Federation has assumed full responsibility for the nuclear facilities located in its new entities.”[3]
The lack of international legal instruments to prosecute acts of nuclear terrorism and/or attacks on civilian nuclear facilities allows Ukraine to act with impunity.
Protocols Additional I and II to the Geneva Conventions of August 12, 1949, concerning protecting victims of international armed conflicts of June 8, 1977, although prohibiting attacks on NPPs, contain too wide formulations. They do not cover all civilian nuclear facilities (CNF), but only NPPs – thus, nuclear and spent fuel and radioactive waste storage facilities and critical infrastructure systems of NPPs are out of the spotlight.[4]
Second, the Protocols Additional do not provide mechanisms for verification, identification, and responsibility of the parties in case of violation of the treaty provisions. Third, the protocols can be interpreted differently by stating that “installations erected for the sole purpose of defending the protected works or installations from attack are permissible and shall not themselves be made the object of attack.” What is to be considered defensive and what is to be considered offensive – everyone perceives in their own way.[5]
Theoretically, accountability for attacks on СNF is provided for in the Rome Statute of the International Criminal Court, which clearly states: “intentionally directing attacks against civilian objects, that is, objects which are not military objectives” is a war crime.[6] The ICC also has all the mechanisms for accountability. However, its jurisdiction extends only to crimes committed on the territory of countries that are parties to the Rome Statute and by citizens of those countries in any other state; however, there is an ad hoc possibility that states that are not parties to the treaty may, in a special declaration, accept the court’s jurisdiction over a particular crime. Nevertheless, neither Ukraine, the US, nor Russia are parties to the Rome Statute.
The International Convention for the Suppression of Acts of Nuclear Terrorism of 2005 is the most explicit formulation of the presumption. Article 2 of the Convention defines offenses as acts that any person commits unlawfully and intentionally. Crimes include actions in which a person “Uses in any way radioactive material or a device, or uses or damages a nuclear facility in a manner which releases or risks the release of radioactive material,” including when done “With the intent to compel a natural or legal person, an international organization or a State to do or refrain from doing an act.”[7] Thus, Ukraine’s attacks on the Zaporozhye NPP, according to international law, are acts of nuclear terrorism.
Nevertheless, the problem with the International Convention for the Suppression of Acts of Nuclear Terrorism is its limited scope. Liability for crimes is left to the parties’ discretion in accordance with their national laws, while interstate cooperation is mostly informational or legal. Thus, it is difficult to hold the perpetrator accountable.
In such conditions, an international convention to prohibit such attacks and their characterization as international crimes is urgently needed, and this process should begin with initiating a resolution in the First Committee of the UN GA.
The Russian Federation shall preserve the nuclear security agenda, focusing on the situation around ZNPP. Moscow had previously resorted to such a practice within the UN when it disseminated information about possible Ukrainian sabotages at ZNPP. It is necessary to intensify information and awareness-raising work, first and foremost pursuing the task of forming universal norms and rules to ensure the safety of CNFs during armed conflicts. As a responsible state and the sponsor of dozens of resolutions, Russia should submit a draft resolution to the UN GA on the unacceptability of attacks on civilian nuclear facilities, which should be based on the five specific, non-politicized, and quite feasible principles of nuclear safety set forth by the IAEA head Rafael Grossi in May 2023.
Such actions by Russia would contribute to the establishment of an international nuclear security regime. At the same time, if the West attempts to oppose the physical nuclear security project, it will once again prove the double bottom of its policy and its reluctance to strengthen international security.
Despite robust physical protection systems, civilian nuclear facilities’ security largely depends on human actions. The idea of attacking them is absolutely reckless. Nuclear facilities, their infrastructure, and personnel should never be subjected to armed attack.[8]
[1] Over 90% of Donbass, Zaporozhye and Kherson voters favor joining Russia – first results // TASS. September 27. 2022. URL: https://tass.com/politics/1514213.
[2] Putin signs laws admitting four new regions to Russia// TASS. October 5. 2022. URL: https://tass.com/politics/1517929.
[3] Комментарий Департамента информации и печати МИД России в связи с высказываниями МИД Украины по вопросу правового статуса ядерных объектов в новых субъектах Российской Федерации – Республике Крым и г. Севастополь // Министерство иностранных дел Российской Федерации: официальный сайт. 16 августа 2014. URL: https://mid.ru/ru/foreign_policy/news/1634688/?lang=ru.
[4] Protocols additional to the Geneva Conventions of 12 August 1949 // International Committee of the Red Cross. URL: https://www.icrc.org/en/doc/assets/files/other/icrc_002_0321.pdf.
[5] Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) // United Nations. URL: https://www.ohchr.org/en/instruments-mechanisms/instruments/protocol-additional-geneva-conventions-12-august-1949-and-0.
[6] Statute of the International Criminal Court // United Nations. URL: https://www.ohchr.org/en/instruments-mechanisms/instruments/rome-statute-international-criminal-court.
[7] International Convention for the Suppression of Acts of Nuclear Terrorism of 2005 // United Nations. URL: https://treaties.un.org/doc/db/terrorism/english-18-15.pdf.
[8] Акт ядерного нигилизма // Газета «Коммерсантъ». 15 апреля 2024. URL: https://www.kommersant.ru/doc/6649131.
Key words: Zaporozhye NPP; Nuclear Nonproliferation
NPT
F4/SOR – 24/06/06
