No ‘bright-line rule’ shines on targeting commercial satellites

Cyber counterspace weapons can target both space satellites and ground-based systems by intercepting and monitoring data, corrupting data with malware, or even wresting control of the space system from the space operator. During the United Nations General Assembly’s First Committee session in October, Russian foreign ministry official Konstantin Vorontsov announced that “quasi-civil infrastructure may be a legitimate target for a retaliation strike.” 

In some ways, Vorontsov’s comments could be interpreted as a harbinger of increased disruption and denial methods against commercial space satellites in Ukraine, especially considering Russia’s cyberattack against Viasat Inc’s KA-SAT commercial satellites and interference with the approximately 25,000 Starlink internet terminals serving Ukraine.

On May 10, SpaceX Founder Elon Musk tweeted that the Starlink terminals deployed in Ukraine had successfully “resisted Russian cyberwar jamming & hacking attempts so far, but they’re ramping up their efforts.” Another example is Russia’s cyber operation against Viasat, which had indiscriminate spillover effects across other European countries and disabled “tens of thousands of terminals outside of Ukraine that, among other things, support wind turbines and provide internet services to private citizens,” according to a statement by the State Department.

Despite Vorontsov’s announcement, there is no “bright-line rule” for targeting dual-use commercial satellites.

In fact, targeting commercial space satellites that support both military and civilian populations implicates an array of legal regimes, including international telecommunications law, international space law — such as the Outer Space Treaty of 1967 — and even non-binding guidelines regarding space debris mitigation.

Because of Russia’s war in Ukraine, international humanitarian law applies here to govern the conduct of hostilities. While military force can be applied against “military objectives” in armed conflict, two elements must be met for an object to qualify as a lawful target. First, “military objectives are limited to those objects which, by their nature, location, purpose or use, make an effective contribution to military action” and second, the “partial or total destruction, capture or neutralization” of the object at that time provides a “definite military advantage.”

In the context of the war in Ukraine, even if a satellite provisioning communication services satisfied these criteria, there are additional rules under international humanitarian law that restrict targeting operations. For example, the principle of constant care under Article 57(1) of the 1977 Additional Protocol I to the Geneva Conventions requires that belligerents in military operations exercise constant care “to spare the civilian population, civilians and civilian objects.” This analysis becomes increasingly complicated with commercial space satellites, which may have a dual use.

The principle of proportionality also requires that if an object, such as a commercial space satellite, has a dual-use nature, states must conduct proportionality analysis prior to taking destructive force against it, to guard against “excessive” harm to civilians. According to the Federal Communications Commission, there are more U.S. commercial satellites in space than U.S. government satellites.

The Ukraine war demonstrates how malicious cyber actors can manipulate several points of entry to exploit ground-based space systems and network equipment. “Despite treaty attempts to prohibit harmful interference with satellite transmissions, jamming incidents continue,” writes international legal scholar Sarah Mountin. Another challenge Mountin outlines is that “governments and the satellite industry have reacted to the growing problem of interference by applying political pressure on states where interference activities originate, and have developed new technologies to combat jamming and strengthen international regulatory regimes. To date, however, such efforts are largely ineffective.”

More optimistically, the Woomera Manual on the International Law of Military Space Activities and Operations — which is poised to become the “definitive document” in 2023 on military and security law in space — could provide additional guidance on targeting commercial space systems in armed conflict. On the one hand, analyzing how to best minimize harm to civilians using dual-use technology during armed conflict is context-driven; however, as a guiding principle of jurisprudence, simply because an action may be lawful, does not necessarily mean it should be done.

Zhanna L. Malekos Smith, J.D., is an assistant professor in the Department of Systems Engineering at the U.S. Military Academy at West Point, where she also serves as a fellow with the Army Cyber Institute and affiliate faculty with the Modern War Institute. All views expressed here are solely those of the author and not those of the Department of Defense or the U.S. government.