Editor’s Note: this policy memo is authored by an external contributor as part of the International Nuclear Security Forum’s Nuclear Security Policy Menu series. The series solicits proposals that might appear politically risky or unrealistic today but could gain traction in the aftermath of a nuclear or radiological incident or accident. By compiling a wide range of international, regional, or local policy proposals, this menu provides policymakers with forward-leaning nuclear security regulation options to work towards today. Learn more or become a contributor.
Introduction
Responsibility for nuclear security rests entirely with a state, while the international nuclear security regime both helps states to reinforce national regimes and provides guarantees to other states. However, nuclear security during an armed conflict needs further international attention as the consequences would extend beyond the parties involved in the conflict.
The current international rules that govern the security of nuclear facilities, i.e., the International Atomic Energy Agency’s GC(53)/DEC/13 and Article 56 of Additional Protocol I to the Geneva Convention, have implementation challenges. Thus, the current crisis in Ukraine, as well as the increasing number of prospective nuclear power states, including in regions prone to instability, point to the need for a strengthened international framework to address nuclear security challenges during armed conflict.
Nuclear Security and Armed Conflict
Nuclear Security
Nuclear security focuses on protecting nuclear and radioactive materials along with related facilities to prevent negligent and/or malicious human actions. Over time, the nuclear security community’s thinking has evolved from focus on acts of state-sponsored diversion, sabotage, or espionage1 Note: Karl Dewey et al., Nuclear Security Culture in Practice: A Handbook of UK Case Studies (London: Centre for Science and Security Studies, 2021). https://www.readkong.com/page/nuclear-security-culture-in-practice-a-handbook-of-uk-2932483 to include the threat of non-state actors capable of unauthorized and malicious actions. Global politics, especially after 9/11, resulted in intensified nuclear security efforts under the international nuclear security regime with various rules and laws, resolutions, treaties, conventions, initiatives, summits, non-governmental organizations (NGOs) and civil society efforts.2 Note: Muhammed Ali Alkış, “Threat of Nuclear Terrorism: The Developing Nuclear Security Regime” International Journal of Nuclear Security 7, no. 1 (2022): 1–16. https://trace.tennessee.edu/cgi/viewcontent.cgi?article=1179&context=ijns While traditional approaches to security of nuclear materials have focused on improving physical protection, in short, the ‘guns, guards and gates’ approach,3 Note: Dewey et al. the changing nature of the threats against nuclear materials has resulted in a growing recognition that the traditional approach to nuclear security is unlikely to be effective against the full spectrum of today’s risks and threats.4 Note: Dewey et al.
Nuclear Security During Armed Conflict
Several international documents have regulated wartime actions by a state actor against nuclear facilities. One is the Additional Protocol I to the Geneva Conventions, which prohibits armed attacks on nuclear facilities. Article 56, Paragraph 1 prohibits targeting nuclear electrical generating stations, even where these objects are military objectives.5 Note: Additional Protocol I to the Geneva Conventions of 12 August 1949, New York, United Nations Treaty Series, https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.34_AP-I-EN.pdf. Additionally, customary international humanitarian law requires states to take particular care if nuclear electrical generating stations, among other infrastructure containing “dangerous forces,” are attacked to avoid “the release of dangerous forces and consequent severe losses among the civilian population.”6 Note: Jean-Marie Henckaerts and Louise Doswald-Beck, “Works and Installations Containing Dangerous Forces,” in Customary International Humanitarian Law, vol. I: Rules (Cambridge: Cambridge University Press, 2005), 139–42, https://www.icrc.org/en/doc/resources/documents/publication/pcustom.htm
On the IAEA side, there are several General Conference Resolutions and Decisions, i.e., GC(XXVII)/RES/407 (1983), GC(XXIX)/RES/444 (1985), GC(XXX3)/RES/475 (1987), GC(XXXIV)/RES/533 (1990), and GC(53)/DEC/13 (2009) in order of date. These texts directly focus on the protection of nuclear installations devoted to peaceful purposes against armed attacks and the prohibition of armed attack or threat of attack against nuclear installations during operation or under construction.7 Note: International Atomic Energy Agency General Conference Resolution GC(XXXIV)/RES/533, Measures to Strengthen International Cooperation in Matters Relating to Nuclear Safety and Radiological Protection (October, 1990) https://www.iaea.org/sites/default/files/gc/gc34res-533_en.pdf.
Notably, GC(53)/DEC/13 (2009), confirms that an armed attack or threat of an attack against nuclear installations during operation or under construction “constitutes a violation of the principles of the United Nations Charter, international law and the Statute of the Agency.”8 Note: International Atomic Energy Agency General Conference Decision GC(53)/DEC/13, Prohibition of armed attack or threat of attack against nuclear installations, during operation or under construction, (18 December 2009) https://www.iaea.org/sites/default/files/gc/gc53dec-13_en.pdf
More recently, , IAEA Director General Grossi and the IAEA Board of Governors has argued that threats to the safety and security of nuclear facilities and materials, such as armed conflicts, violate the global nuclear safety and security framework laid out in the Seven Pillars of Nuclear Safety and Security.9 Note: International Atomic Energy Agency Director General’s Introductory Statement to the Board of Governors (2 March 2022) https://www.iaea.org/newscenter/statements/iaea-director-generals-introductory-statement-to-the-board-of-governors-02-03-2022. and Board of Governors Resolution 2022/58 The safety, security, and safeguards implications of the situation in Ukraine. (15 September 2022). https://www.iaea.org/sites/default/files/22/09/gov2022-58.pdf
Shortcomings in the Existing Framework
The above-mentioned international instruments represent a critical framework aimed at protecting the status of nuclear facilities during an armed conflict, but they have some shortcomings. The scope of Article 56 is limited to nuclear electrical generating stations, leaving research reactors, transportation of nuclear materials, conversion and enrichment facilities, and spent fuel pools outside the Protocol. In addition, Paragraph 2 provides an exception to the protection of nuclear facilities by ceasing the special protection against attack on nuclear facilities if it provides electric power in regular, significant, and direct support of military operations.10 Note: Additional Protocol I to the Geneva Conventions of 12 August 1949, New York, United Nations Treaty Series, https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.34_AP-I-EN.pdf.
Furthermore, customary international humanitarian law does not prohibit attacks on nuclear electrical generating stations, calling rather on states to take “particular care” if attacking them as a legitimate military target.11 Note: Henckaerts, 139–42.
It should also be noted that the IAEA has limited authority concerning nuclear security, unlike nuclear safeguards, as responsibility for nuclear security rests entirely with each member state. The IAEA General Conference has no legal authority to adopt legally binding resolutions as that authority rests only with the UN Security Council acting under Chapter VII of the Charter. Similarly, the Seven Pillars of Nuclear Safety and Security is a complementary framework derived from existing IAEA nuclear safety standards and nuclear security guidance, and brings no legally binding responsibilities to the member states.
The clear lesson from the current Russian-Ukrainian war, especially for a rapid potential expansion of the peaceful use of nuclear technologies, including novel modular reactors, to new nuclear states located in regions prone to armed conflict, hostilities, civil war, or insurrection is that the international community needs a mechanism of international assurance to prevent and protect against the loss of international safeguards oversight and the pre-emptive mitigation of the impact of armed hostilities occurring at or about nuclear sites.
The Way Forward
There are several possible solutions to address existing political gaps, which require the political will of all member states. One step would be concluding an international agreement, the scope of which would include the prohibition of armed attacks against nuclear facilities, including research reactors, Advanced Modular Reactors (AMR), Small Modular Reactors (SMR), conversion and enrichment facilities, and associated activities, including transportation and waste management. Such an agreement represents a direct and formal method of creation of international law to regulate the protection of nuclear facilities and associated activities during an armed conflict.
Another step would be giving ‘demilitarized-zone’ status to nuclear power plants during an armed conflict. Although the Design Basis Threat (DBT) approach to nuclear power plant security requires higher-level defense strategies compared to many other civilian structures, nuclear power plants remain fundamentally civilian structures. The establishment of a demilitarized zone becomes an essential international tool in protecting civilians inside and outside the conflict zone against hostile state activity and the consequences of a nuclear disaster. Such a zone would mitigate the risks associated with the armed conflict while reiterating the inalienable right to use nuclear energy for peaceful purposes.
Similarly, a limited UN Peacekeeping Mission around nuclear facilities would also help to mitigate the risks associated with the armed conflict. At the request of a state of which nuclear facilities would be in imminent danger of armed conflict, it is possible to deploy UN forces within the scope of its sovereignty as an intervention by invitation.12 Note: Laura Visser, “Intervention by Invitation and Collective Self-Defence: Two Sides of the Same Coin?,” Journal on the Use of Force and International Law 7, no. 2 (July 2, 2020): 292–316, https://doi.org/10.1080/20531702.2020.1834767. These forces should be impartial and not use force except in accordance with their defensive mandate. However, it would also require the consent of all parties to the conflict for a limited UN Peacekeeping Mission around nuclear facilities if there is an ongoing conflict. In any case, it should be noted that UN Peacekeeping Missions are deployed on the basis of mandates from the UN Security Council in which permanent five (P5) member states have a veto right. This would admittedly limit the utility of the mechanism in cases where a member of the P5 is a party to the conflict.
There could also be a guideline for a bilateral agreement among parties to the conflict under the UN and IAEA auspices to accelerate the bureaucratic process. The guideline would detail how to quickly proceed to protect nuclear facilities and associated activities during an armed conflict. A bilateral agreement involving a neutral party to monitor compliance would also facilitate further steps for nuclear security, as happened for food security in the case of the grain deal between Russia and Ukraine during the current conflict.13 Note: “UN Welcomes New Centre to Put Ukraine Grain Exports Deal into Motion,” UN News, July 28, 2022, https://news.un.org/en/story/2022/07/1123532.
To provide technical support for nuclear security and nuclear safety during armed conflict, the IAEA would be empowered to send a mission to nuclear power plants under a new Nuclear Security and Safety During Armed Conflict Protocol to be concluded between the IAEA and all member states. This would help the IAEA overcome the challenges of gaining the consent of warring states, or states undergoing civil strife, to send a technical mission at the very start of hostilities. Under this new Protocol, the IAEA would need only to inform, not seek permission from, parties to the conflict before visiting nuclear facilities under UN military protection. Such a Protocol would allow the IAEA to fulfill its role in the promotion of peaceful use of nuclear technology without prejudice to the sovereign rights of member states. The proposed Nuclear Security and Safety during Armed Conflict Protocol should include the Seven Pillars of Nuclear Safety and Security to maintain the safe and secure operation of nuclear facilities and associated activities while empowering an international and impartial organization.
Conclusion
Nuclear energy will play a key role in achieving net-zero goals by 2050 as a cost-effective, low-carbon, and reliable energy source. With the expansion of nuclear energy generating capabilities, including SMRs and AMRs, to new states in regions prone to armed conflict, hostilities, civil war, or insurrection, there will be increased need for a more robust international nuclear security framework, including preventing where possible and otherwise managing war-time nuclear security threats.Ali Alkis is the World Institute for Nuclear Security (WINS) Ambassador to Turkiye, a Nuclear Scholar in the UK’s Nuclear Security Culture Programme (NSCP), and a Ph.D. student at the Department of International Relations at Hacettepe University. His research interests are nuclear security, non-proliferation and arms control as well as Turkish nuclear and foreign policies.
Notes
- 1Note: Karl Dewey et al., Nuclear Security Culture in Practice: A Handbook of UK Case Studies (London: Centre for Science and Security Studies, 2021). https://www.readkong.com/page/nuclear-security-culture-in-practice-a-handbook-of-uk-2932483
- 2Note: Muhammed Ali Alkış, “Threat of Nuclear Terrorism: The Developing Nuclear Security Regime” International Journal of Nuclear Security 7, no. 1 (2022): 1–16. https://trace.tennessee.edu/cgi/viewcontent.cgi?article=1179&context=ijns
- 3Note: Dewey et al.
- 4Note: Dewey et al.
- 5Note: Additional Protocol I to the Geneva Conventions of 12 August 1949, New York, United Nations Treaty Series, https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.34_AP-I-EN.pdf.
- 6Note: Jean-Marie Henckaerts and Louise Doswald-Beck, “Works and Installations Containing Dangerous Forces,” in Customary International Humanitarian Law, vol. I: Rules (Cambridge: Cambridge University Press, 2005), 139–42, https://www.icrc.org/en/doc/resources/documents/publication/pcustom.htm
- 7Note: International Atomic Energy Agency General Conference Resolution GC(XXXIV)/RES/533, Measures to Strengthen International Cooperation in Matters Relating to Nuclear Safety and Radiological Protection (October, 1990) https://www.iaea.org/sites/default/files/gc/gc34res-533_en.pdf.
- 8Note: International Atomic Energy Agency General Conference Decision GC(53)/DEC/13, Prohibition of armed attack or threat of attack against nuclear installations, during operation or under construction, (18 December 2009) https://www.iaea.org/sites/default/files/gc/gc53dec-13_en.pdf
- 9Note: International Atomic Energy Agency Director General’s Introductory Statement to the Board of Governors (2 March 2022) https://www.iaea.org/newscenter/statements/iaea-director-generals-introductory-statement-to-the-board-of-governors-02-03-2022. and Board of Governors Resolution 2022/58 The safety, security, and safeguards implications of the situation in Ukraine. (15 September 2022). https://www.iaea.org/sites/default/files/22/09/gov2022-58.pdf
- 10Note: Additional Protocol I to the Geneva Conventions of 12 August 1949, New York, United Nations Treaty Series, https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.34_AP-I-EN.pdf.
- 11Note: Henckaerts, 139–42.
- 12Note: Laura Visser, “Intervention by Invitation and Collective Self-Defence: Two Sides of the Same Coin?,” Journal on the Use of Force and International Law 7, no. 2 (July 2, 2020): 292–316, https://doi.org/10.1080/20531702.2020.1834767.
- 13Note: “UN Welcomes New Centre to Put Ukraine Grain Exports Deal into Motion,” UN News, July 28, 2022, https://news.un.org/en/story/2022/07/1123532.
