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Abstract

The 2022 Russian attacks on the Chernobyl and Zaporizhzhia nuclear facilities in Ukraine shocked the international community. Claims that the attacks constituted war crimes immediately entered the public consciousness, and a flurry of opinions were set forth on the international humanitarian law (“IHL”) protections afforded to nuclear plants, focusing on Article 56 of Additional Protocol I of the Geneva Conventions, which provides special protection to nuclear electrical generating stations. These opinions primarily focused on the immediate applicability and shortcomings of Article 56 on the attacks at hand, often operating on the presumption that a massively consequential environmental and humanitarian disaster would occur should hostilities continue. Now almost four years on, with no end to Russian-Ukrainian hostilities in sight, there still exists a glaring shortcoming of IHL with respect to Article 56: the consequences of the most significant radiological disasters in history have difficulty in meeting the criteria Article 56 has in place to hold a warring state accountable for causing a radiological incident. Undertaking an in-depth examination of the consequences of nuclear accidents, the IHL provisions in place that may be relevant to a nuclear incident, and how those provisions may actually apply to real-life consequences, this article finds the current IHL frameworks protecting nuclear installations to be inadequate, suggesting that affording nuclear facilities protection in times of war is best done via a technology-neutral classification scheme, rather than existing technology-specific doctrines.

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