Are commercial satellites used for intelligence-gathering in attack planning targetable?

If a commercial satellite company supplies photo intelligence used by a customer-nation to launch attacks on the forces of another country, what might the targeted forces do, consistent with international law, to stop such space-based intelligence-gathering?  Does international law provide rules in such circumstances?

These are not mere academic questions.  Prior to its January 8, 2020 missile attack on Iraq’s Al Assad Air Base (where hundreds of U.S. troops and dozens of aircraft were hosted), the “Iranians monitored [the base] by purchasing photos…taken by commercial satellites” – according to a “60 Minutes” report aired last Sunday.

Evidently, the commercial satellite imagery was key to the planning of the attack that, it seems, Iranians hoped would kill scores of Americans and destroy dozens of aircraft.

Accordingly, could the U.S. have, for example, lawfully attacked that intelligence source in order to deny it to Iranian strike planners?  Like so many other issues we see on Lawfire ®, the answer is more complicated than it may seem, so let’s unpack the question a bit by starting with some context.

The military value of commercial satellite imagery

There is a huge market for satellite imagery, as there are many civilian purposes for which it can be used.  In fact, worldwide, the “commercial satellite imaging market was valued at USD 3.09 billion in 2019 and is expected to reach USD 5.75 billion by 2025.”  For its part, Iran has sought commercial satellite imagery for some time.  For example, in 2016 the Wall Street Journal reported that Iran was taking steps to lease or buy satellite services.

Beyond civilian uses, commercial satellites can provide much militarily-useful imagery.  In a 2019 report CBS News said the current resolution and quality of satellite photos is such that “U.S. military officers could use commercial satellites for 90 percent of the intelligence they need.”

It is not surprising then that many nations-including the U.S.-are using commercial satellite imagery in their defense enterprise.  In fact, last June, press reports indicated that commercial satellite imagery purchases by the U.S.’ National Reconnaissance Office “could reach $400 million by 2023.”

How the U.S. has addressed the problem in the past

The U.S. has dealt with the challenge of adversaries getting access to commercial satellite imagery.  A scholar writes:

During the fighting in Afghanistan in 2001, the United States was able to persuade the French government to prevent the relevant imagery from its SPOT consortium satellites from reaching the open market, where it could be accessed by the enemy. To negate the prospect that other suppliers might fill the gap, the Pentagon also preemptively bought up, for $1.9 million per month, all the other possibly useful, high-resolution imagery of Afghanistan that the alternative private sources, such as Space Imaging Company’s Ikonos satellite, could generate.

However, simply because the U.S. used a nonviolent lawfare methodology in the past (in the 2001 situation that method was a contract) certainly doesn’t mean it can do so in every situation.

Does the law of armed conflict apply to space?

This week Space Force Commander Gen. John Raymond declared that “There are really no norms of behavior in space. It’s the Wild, Wild West.”  He did acknowledge that there were five space-specific treaties, but said insisted “[o]ther than that, there’s no rules.

It’s hard to know exactly how broadly his remarks should be read, but there is, in fact, relevant law beyond the five treaties.  In a rather definitive 2020 essay two scholars point out that the law of armed conflict does apply to space:

The position of the United States expressed in the Department of Defense Law of War Manual is in accord with the [international Court of Justice] in this regard:

[L]aw of war treaties and the customary law of war are understood to regulate the conduct of hostilities, regardless of where they are conducted, which would include the conduct of hostilities in outer space.  In this way, the application of the law of war to activities in outer space is the same as its application to activities in other environments, such as the land, sea, air, or cyber domains.

They go on to point out that the International Committee of the Red Cross (ICRC) also concludes that the law of armed conflict “applies to any military operations conducted as part of an armed conflict, including those occurring in outer space.”

In short, in addition to the space-specific treaties, the corpus of the law of armed conflict—both treaty law and customary international law—applies.

International law, satellites, and the use of force

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Though some may disagree, no international agreement or axiom of customary international law prohibits attacks on commercial satellites in connection with an otherwise justified use of force, so long as the targeting rules applicable to terrestrial operations are observed.

The U.S. has recognized this possibility with respect to its own dependence on commercial satellite imagery.  In an aptly titled 2019 article (“Commercial Satellites: Will They Be Military Targets?”) the Breaking Defense author insists that the “Law of Armed Conflict (LOAC) clearly states that when commercial assets are used for military purposes, they become legitimate targets in warfare.”

Furthermore, just this week, one of the world’s top space law scholars, Dr. Dale Stephens of the University of Adelaide Law School, discussed this topic in an email with me to share with Lawfire readers. His views are especially important because Dale is editing the development of the Woomera Manual, which is an international research project that aims to “develop a Manual that objectively articulates and clarifies existing international law applicable to military space operations.

Dr. Stephens concludes that “[a]s is the case on land, sea or air ops, there is no doubt that a commercial entity that supplies information of a military nature – especially that related to targeting – renders them (in this case a satellite) a lawful target under normal rules of targeting.”

We’ll examine some of those “normal rules of targeting” Dr. Stephens references, but first let’s ask ourselves: are any special aspects occasioned by the involvement of a commercial enterprise?

Are nations responsible for the actions of their commercial space enterprises?

Dr. Stephens

In analyzing how a country may be responsible for the actions of a private company, Dr. Stephens references the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, more commonly known as the “Outer Space Treaty.”  He offered these interesting observations as to how it might apply:

Art VI of the Outer Space Treaty creates a unique attribution relationship between a private entity and a State – one that looks very much like strict liability.  It is expected under this provision that States will exercise greater oversight of their commercial entities in space – especially where those entities supply targeting information to adversaries or at least to belligerents where the company’s State is a neutral!  There is no ‘effective control’ needed as is the case under normal attribution requirements – the connection is much more direct and turns on the extremely broad scope of ‘national activities’ which is given a wide interpretation to encompass basically anything that a company/national of your State wants to do in space.

He goes on to discuss the possible implications for countries with respect to jus ad bellum (which ICRC says “refers to the conditions under which States may resort to war or to the use of armed force in general,”) and jus in bello (whichregulates the conduct of parties engaged in an armed conflict”).  He explains:

While in the Woomera Manual process we note this has the great potential to implicate States in ad bellum or in bello issues in situations that would not otherwise be the case under general international law rules on attribution, we do also note the potential for companies being able to plunge States into Armed conflict (vis-a-vis common Art 2 of the Geneva Conventions) or to otherwise be responsible for uses of force/armed attacks vis-a-vis the UN Charter.  We note that there is no State practice to date that has confirmed this, and we think there are good policy arguments against this position – nonetheless an Art VI purist would say that is the simple consequence of the regime established.  (Emphasis added)

Targeting Rules: Satellites as military objectives

Recall that Dr. Stephens insists (as I do) that the “normal rules of targeting” would apply in the case of attacks against satellites.  In that respect, everyone agrees that military force can be lawfully directed only at military objectives.

Can a commercial satellite designed – and principally (but not exclusively) – used for benign civilian purposes become a military objective?  Sure. The ICRC defines “military objective” as follows:

In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose partial or total destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

As Dr. Stephens has already suggested, by that definition it is hard to see how a commercial satellite providing near-real time targeting intelligence to a belligerent planning a specific attack could be anything other than a “military objective.”

In fact, the ICRC concedes that civilians who are “gathering intelligence” with a “view to the execution of a specific hostile act” are “directly participating in hostilities” in a way that makes them directly – and lawfully – targetable.  Certainly, an object doing much the same thing has been sufficiently militarized to lose the protective “civilian” status it might have otherwise enjoyed.  Its civilian and military applications make it into what is characterized in the military as a “dual-use” object that may be targetable.

Targeting Rules: The proportionality analysis

Simply because something qualifies as a military objective does not necessarily mean it can be lawfully attacked.  For example, if the satellite also serves a civilian purpose, that must be taken into account in the proportionality analysis conducted prior to any destructive action against it.

This means that any “incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination” reasonably expected as a result of an attack on the satellite must not “be excessive in relation to the concrete and direct military advantage anticipated.”

No doubt the neutralization or even destruction of the specific satellite would, at a minimum, cause inconvenience and/or monetary loss to civilians—and understanding how and for what purposes civilians may rely upon the particular space asset is crucial in the legal analysis.

Still, the military advantage anticipated could nevertheless be found to be quite significant: the protection of many American lives and significant military equipment.  For example, if not for the quick evacuation immediately before the missiles hit, the Iranian strike of January 2020 facilitated by commercial satellite imagery could have, according to the U.S. Central Command commander, caused the loss of “20 or 30 airplanes and…100 to 150 U.S. personnel.”

Targeting Rules: is neutralizing a satellite always and “attack”?

Interestingly, absent physical harm, measures taken to stop satellite imagery from getting into an opponent’s hands may not even be, legally speaking, an “attack.”

For example, if cyber means were used against the satellite, consider how the authoritative Tallinn Manual 2.0 on the International Law of Cyber Operations defines an “attack”.  It appears that the majority view is that a cyber-operation against data is an “attack” only where it “foreseeabl[y] results in the injury or death of individuals or damage or destruction of physical objects” or “a loss of functionality of physical objects.”

Thus, it would seem that if an operation against a satellite to deny an adversary militarily-useful imagery can somehow be fashioned so that the results described above are not reasonably foreseeably, it avoids much of what international law might otherwise require for operations expected to cause physical damage or harm to civilians.

Put another way, depending upon how a cyber or other operation against the satellite is conducted, it may not even legally constitute an “attack.”  If not an “attack,” the need to apply the proportionality analysis and other targeting rules might be obviated.   

Targeting Rules: the importance of “constant care’

Still, international law mandates that in operations belligerents must take “constant care…to spare the civilian population, civilians and civilian objects.”  Thus, in this situation military forces should seek nondestructive ways to selectively interfere with an adversary’s access to the commercial satellite’s imagery used for intelligence-gathering purposes or to manipulate or distort it to erode or even extinguish its military utility in such a way as to cause minimal impact on bonafide civilians.  

Other factors

Just because there may be actions that could be lawfully taken to prevent commercial satellite imagery from falling into the hands of an adversary, that doesn’t necessarily mean they should.

Beyond the political challenges associated with actions against commercial satellites owned or operated by businesses of uninvolved or even friendly states, there can be practical, military reasons to not interfere with the transaction in a specific instance, particularly if the U.S. is monitoring what the adversary is receiving.  Here’s how The Drive summarized this part of the “60 Minutes” story:

“U.S. Marine Corps General Frank McKenzie, head of CENTCOM, said he waited until intelligence told him the Iranians had downloaded their last commercial image of the base for the day before beginning evacuations and the movement of equipment.  In doing so, they severely disrupted the effectiveness of the Iranian attack and likely saved many lives and lots of equipment in the process.”

Diplomatic action? Sanctions? Tort liability? 

In addition, where it is evident that commercial satellite photos are being used to target American or allied forces, the U.S. may wish to incentivize the satellite owners (and the launching state) to take steps to halt such belligerent use of their asset.  The nonviolent means the U.S. might use could range from various diplomatic steps such démarches to financial tools like sanctions and more.

Beyond military and/or diplomatic action against an intelligence-providing commercial satellite, some scholarship suggests that tort liability may also exist if a commercial satellite causes harm on earth during armed conflict.  In discussing the Convention on International Liability for Damage Caused by Space Objects, Pavle Kilibarda argues that:

As a matter of treaty interpretation, it seems absurd to suggest that a treaty which clearly covers cases of accident would not also apply to damage caused deliberately, or is limited to deliberate damage caused outside of an armed conflict.

In a provocative article (“Closing the Liability Loophole: The Liability Convention and the Future of Conflict in Space”) Trevor Kehrer contends that if a space object causes harm on earth, even if the object is controlled by a private actor, the state from which it was launched—even if otherwise not involved in the conflict—may have liability.  He explains:

[U]nder the current regime of international law regarding space, the state that launched the space object would assume an obligation to pay for any harm on Earth caused by that object. The consequence of this order is a paradox; one in which a state’s responsibility to pay for damage is not linked to proximate causation or its own actions, but instead to mere ownership or assistance in launching the object. Thus, wholly innocent launching states will currently foot the bill for any damage caused by unknown culprits or third parties.

Concluding thoughts

The reality is that states—and not just hostile countries like Iran—will increasingly employ commercial satellites for intelligence-gathering purposes, something that may likely render them targetable under international law.  Given that many of these space assets also have distinct civilian uses, the U.S. needs to carefully assess its own vulnerabilities in deciding whether to try to further advance international norms, and what those norms might be.

Notably, former Secretary of Defense Mark Esper said “We anticipate that adversary nations are unlikely to discriminate between U.S. military satellites and commercial satellites providing services to the U.S. Government, in the event of a conflict.”  The U.S. needs to be careful about advocating norms that may bind itself and its allies, but not necessarily potential opponents.

After all, Breaking Defense reported in 2019 that a DoD official said “that it would actually be surprising if China made any distinction in its war planning, given the fact that China does not differentiate between military, civil and commercial space activities or entities.”

General Raymond says that the Space Force is working to develop norms, and adds this observation:

“I’m not naive to think if there was a set of norms of behavior that everybody’s going to follow them,” he said. “But I do think if you have those rules, it will help identify those that are running the red lights, if you will. And I think that would be important.”

It also should be said that there are proposed protective treaties (see e.g., here), but I am skeptical of their prospects.  Better, it seems to me, to devise technical means and warfighting strategies to deny adversaries the military benefits of commercial satellites without unnecessary impact on civilians who, even if they are unaware of it, are increasingly dependent upon satellites for a wide variety of services.

In any event, efforts like the Woomera Project will help lawyers, commanders, and other decision-makers better understand the nuances of space law as it exist today, and help them to think through what, if any, further restraints the international community ought to adopt.

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

 

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