Russia’s Attack and Occupation of the Chornobyl Nuclear Power Plant: Applying International Law to Testimonial Evidence of Russian Forces’ Violations
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B. International Humanitarian Law Relating to Conduct in Nuclear Power Plants and Nearby Military Objectives During International Armed Conflicts
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iii. Analysis
Testimonial evidence of the events that transpired at the Chornobyl NPP from February 24, 2022 to April 1, 2022 strongly suggests that the Russian forces who attacked and occupied the NPP violated IHL [international humanitarian law] concerning conduct in NPPs and nearby military objectives during international armed conflicts. Specifically, the evidence suggests that the Russian forces violated paragraphs 1, 2, 3, and 5 of Article 56 of Additional Protocol (I) to the Geneva Conventions. However, as will be explained below, the testimonies lack specific details and adequate information to corroborate some of the factual assertions; further testimonial or technical evidence will be needed to strengthen the conclusion that the Russian forces violated Article 56.
Paragraph 1 of Article 56 of Additional Protocol (I) to the Geneva Conventions
Pursuant to paragraph 1 of Article 56 of Additional Protocol (I) to the Geneva Conventions, nuclear power plants and nearby military objectives are protected against attacks that would foreseeably cause the release of dangerous forces (radiation) leading to severe losses among the civilian population. The testimonies strongly suggest that it was objectively foreseeable that a Russian attack on the NPP could have caused such a release of radiation that, in turn, would likely have resulted in severe civilian losses. Because Paragraph 1 of Article 56 prohibited an attack on the NPP, the Russian attack and occupation of Chernobyl violated this provision of IHL.
The NPP houses more than 2.4 million kilograms of radioactive spent nuclear fuel.1Timothy A. Mousseau, “Military Action in Chernobyl Could Be Dangerous for People and the Environment,” Scientific American (Mar. 8, 2022), www.scientificamerican.com/article/military-action-in-chernobyl-could-be-dangerous-for-people-and-the-environment/. “A direct hit on the [NPP’s] spent fuel pools or dry cask storage facilities could release substantially more radioactive material into the environment than the original meltdown and explosions in 1986.”2Ibid. Such a release of dangerous forces, or a release of similar magnitude not stemming from a direct hit, would affect millions of people. Even though the NPP is surrounded by an uninhabited exclusion zone, it is located only 90 km north of Kyiv, with a population of close to 3 million. And the impacts of such a release would not be limited to Ukraine, but would extend, at minimum, to neighboring Belarus and other Eastern European countries.3Cara Anna & Inna Varenytsia, “Russia’s Chernobyl Seizure Seen as Nuclear Risk ‘Nightmare,’” AP News (Apr. 20, 2022), apnews.com/article/russia-ukraine-business-health-europe-accidents-edcd5bc0e6bde3cbf6d7300bebc9343f.
Testimonial evidence does not suggest that the Russian forces planned a direct hit on fuel pools and dry cask storage facilities. However, Article 56 does not require a finding of an intention to attack an NPP directly to find the attacking party liable. Even an attack short of a direct hit can establish liability if the attack could have foreseeably led to the release of dangerous forces and consequent losses among the civilian population. Testimonies demonstrate that this standard was likely met.
First, the Russian forces who attacked the Chernobyl NPP exhibited extreme negligence in operating the NPP during its occupation. Testimony indicating that the Russian forces compromised the cooling of spent-fuel assemblies strongly suggests that there was an objectively foreseeable risk that a Russian attack could lead to unresolved power outages and consequent radiation leakage. However, this testimonial evidence, by itself, does not establish that any foreseeable radiation leakage would have been of sufficient magnitude to cause “severe” civilian losses. For example, although the evidence indicates that the Russians were informed that a “big boom” would result if power was not restored to the plant, further technical evidence is likely needed to corroborate that an unresolved power outage would cause a significant explosion or, at minimum, radiation leakage leading to severe civilian losses. Separately, testimony indicating that the Russian forces failed to take safety precautions around the NPP does not establish how this failure might have led to the release of radiation and consequent severe civilian losses. Again, further corroborating evidence is needed to establish a violation.
Second, the Russian forces brought dangerous weapons, equipment, and vehicles to the NPP. Misuse or mishandling of such military equipment risked causing the release of dangerous levels of radiation from the NPP, particularly given the military equipment’s close proximity to the NPP. However, the mere fact that the Russian forces stashed and operated military equipment in the NPP does not, by itself, prove that there was a foreseeable risk of a release of radiation that would cause severe civilian losses. Further evidence is likely needed to explain in adequate detail precisely how a misuse or mishandling of military equipment could have foreseeably resulted in a risk of release of dangerous levels of radiation leading to severe civilian losses.
Third, the Russian forces conducted military activities in and near the NPP. However, this fact alone does not prove there was an objective risk of release of dangerous levels of radiation leading to severe civilian losses. Demonstrating that the relevant military activities created an objective risk of such release and civilian losses requires further evidence describing how the specific conduct created this risk. For example, although testimony indicates that the digging of trenches near the NPP elevated radiation levels around the facility, it does not discuss in detail whether this resulting increase in radiation levels could have caused severe civilian losses. To provide another example, although testimony describes instances of shooting at the NPP, it does not clarify how such instances of shooting might have led to the release of dangerous levels of radiation and severe civilian losses. Further corroborating evidence would strengthen the conclusion that the military activities that the Russian forces conducted in and around the NPP could have foreseeably led to the release of radiation and consequent severe civilian losses.
Paragraph 2 of Article 56 of Additional Protocol (I) to the Geneva Conventions
Paragraph 2 of Article 56 of Additional Protocol (I) provides an exception to the protection against attack that Article 56 confers upon a NPP. Paragraph 2 allows such an attack if the NPP “provides electric power in regular, significant and direct support of military operations” and if an attack on the NPP “is the only feasible way to terminate such support.”4Art. 56 of Additional Protocol (I). However, the NPP ceased generating electricity in 2000. Russia cannot claim the NPP provided regular, significant, and direct support of Ukrainian military operations. Thus, the Russian forces have no legitimate basis to claim that the attack on the Chernobyl NPP was permissible under the limited exception in paragraph 2.
Paragraph 3 of Article 56 of Additional Protocol (I) to the Geneva Conventions
Even if Russian forces had had a legitimate basis under IHL to attack the NPP, its attack and occupation of the NPP would have had to comply with the requirement of a high level of care and precaution—as required by IHL, including paragraph 3 of Article 56 and Article 57 of Additional Protocol (I)—to protect NPP workers and the civilian population against the release of dangerous forces. Other sources of international law—including instruments relating to nuclear safety and protection against radiation exposure—provide relevant standards to assess whether the Russian forces observed a sufficient level of care and precaution. The Russian forces’ compliance with these instruments and with paragraph 3 will be discussed in Section IV.C, below.
Paragraph 5 of Article 56 of Additional Protocol (I) to the Geneva Conventions
Paragraph 5 of Article 56 of Additional Protocol (I) instructs Parties to “endeavor to avoid locating any military objectives in the vicinity of [an NPP],” except to the extent that such military objectives and installations are “erected for the sole purpose of defending [a NPP]” and consist of defensive weapons only.5Art. 56 of Additional Protocol (I). Testimony indicating that the Russians used the NPP as a place to stash dangerous military equipment strongly suggests that the Russian forces intentionally sought to locate military objectives in the NPP and that the military objectives were not purely defensive, thus violating paragraph 5 of Article 56.
