Guest Post: David Koplow on “The Illegality of U.S. National Space Policy”
I am very pleased to welcome today’s guest essayist as he’s introducing to Lawfire® readers his extraordinarily provocative and important new law review article about U.S. space policy. In it he highlights an aspect of the law of armed conflict (LOAC) that actually relates not just to the space systems he addresses, but also to technology writ large. Specifically, he focuses on the LOAC principle of distinction, and its concomitant requirement for belligerents to separate civilian objects from military ones.
This is an issue that is becoming increasingly relevant to many of the high-tech systems modern militaries depend upon–even as it is too-often overlooked by scholars and policymakers.
The author is my friend Professor David Koplow of Georgetown Law, and his must-read article is “Reverse Distinction: A U.S. Violation of the Law of Armed Conflict in Space“ published in the Harvard National Security Journal.
As you will read below in his introduction to that longer article, he forthrightly challenges the legitimacy of the U.S. policy of increasingly relying upon “dual use” commercial satellites for military purposes. These are space systems that have both civilian and military uses, and employing them for military purposes can make them lawful targets in the event of armed conflict.
As David says, “the mandate for separation is traditionally referred to as a requirement for undertaking ‘passive precautions,’ but [he] prefer the term ‘reverse distinction,’ to evoke an active, affirmative obligation.” As you might imagine, there are qualifications/exceptions to the ‘distinction/separation’ rule, but he contends they are inapplicable in this context.
Candidly, while I don’t necessarily agree with him on some important points (see e.g., “Resilient Architecture vs. Civilian Risk” in the March issue of Air Force Magazine found here), I think he is doing a real service by highlighting how commercial satellites can become lawful targets. That’s a proposition with which I wholly agree (see here), and one that needs to be better understood by the private sector, government policymakers, and the public.
Beyond the space context, the issue he addresses, i.e., the obligation to separate civilians and civilian objects from combatants and military objects, is very timely. Although David doesn’t discuss the Ukraine, these same LOAC principles are raised in the current conflict as Ukrainian forces wage urban warfare in cities crammed with civilians (see Eric Jensen, “Ukraine and the Defender’s Obligations“).
In short, there are multiple reasons to read Professor Koplow’s work. Even if you disagree with his ultimate conclusion, I think you will find his careful and thoughtful scholarship extremely helpful in building your own intellectual database on this vitally important – and painfully current – topic.
The Illegality of U.S. National Space Policy
By David A. Koplow
The longstanding U.S. national security space policy is, at its core, blatantly illegal.
Many readers might be surprised by that blunt assessment, but I have recently published a full-length law review article [here], asserting that the traditional U.S. approach to space policy, sustained through several successive presidential administrations, violates core principles of the international law of armed conflict (LoAC). Here, I’ll summarize the key elements of the claim, and invite responses.
Let’s start with the briefest recap of the principle of distinction (or discrimination), probably the cardinal LoAC tenet. The concept of distinction requires that in combat, a belligerent is legally authorized to direct its attacks only against the enemy’s military objectives; civilians and their objects are immune. Of course, that short sentence obscures reams of complexity, but the central postulate is clear: the law treats belligerents (and their property) categorically differently from non-belligerents (and their property).
In support of that principle, a corollary requires a military force to separate itself from nearby civilians (or vice-versa), so the non-combatants can be spared some of the worst ravages of war, and so the enemy can fulfill its own obligation to aim only at our military, not at civilians. If the two categories are too intertwined, adequate distinction in attacks is impossible.
This mandate for separation is traditionally referred to as a requirement for undertaking “passive precautions,” but I prefer the term “reverse distinction,” to evoke an active, affirmative obligation.
Reverse distinction is hard law, inscribed in 1977 Additional Protocol I (AP1), arts. 57–58, and also reflective of widely-accepted customary international law, binding even upon states, such as the United States, that have not joined the treaty. But the principle is circumscribed by an important limitation: it applies only to the extent that it is “feasible” to achieve such separation.
“Feasible” is one of those marvelously vague words that can be stretched in all sorts of ways and that defies objective definition. The U.S. Department of Defense’s Law of War Manual explains it simply by listing some synonyms (practical, practicable, reasonable) and noting that the feasibility assessment can incorporate a wide variety of factors, such as cost, military effectiveness, and timing.
In many circumstances, of course, it would surely not be regarded as feasible to indelibly segregate military from civilian operations. The U.S. interstate highway system, for example, serves both types of users simultaneously; it would be absurd to require the construction of parallel but distinct roadways, bridges and tunnels to sustain an artificial division. Likewise, the national electricity grid and the local networks of water and sewerage infrastructure are inherently dual-use.
Conversely, in some settings, suitable reverse distinction is achievable and legally mandatory. It would obviously be impermissible, for example, to co-locate a military command post and a pre-school, or to juxtapose an anti-aircraft battery and a hospital.
Some readers will recall one particularly vivid outrage: in February 1991, during the first Gulf War, Saddam Hussein ostentatiously parked two of his best Soviet-made MIG-21 fighters right next to the world-renown ziggurat of Ur-Nammu, southeast of Baghdad. The obvious strategy was to protect those valuable military assets from coalition bombers (or to bait the United States and its allies into attacking them, and then to exploit for propaganda purposes any resulting damage accidentally inflicted upon the 4000 year old treasure).
The United States rightly condemned Saddam’s cynical ploy, along with many other treacherous and tragic violations of reverse distinction, such as the taking or recruiting of human shields, a practice that illegally injects civilians into the midst of combat, rather than isolating them apart.
U.S. Space Policy
When it comes to space operations, however, it is now the United States that has emerged as a leading practitioner of the dark art of non-separation. In fact, for at least the past twenty years, it has been the official policy of the U.S. government to rely, to the maximum practical extent, on commercial satellite operators for the performance of key governmental functions, including those of the military and the intelligence community, such as remote sensing, telecommunications, and launch services. [See here and here]
To some extent, this contracting-out of erstwhile sovereign functions has been justified in economic terms. Sometimes, it is cheaper to employ private sector actors; likewise, sometimes commercial interests can impel a more rapid uptake of new technology than can be accomplished via the government’s standard operating procedures.
But sometimes, in unguarded moments, another motivation for the co-mingling of governmental and private space actors is revealed. That is, the embrace of private sector spacecraft supporting U.S. government warfighting can complicate an adversary’s potential anti-satellite weapons capabilities. The new proliferation of satellites can intimidate and deter; it can overwhelm and dissuade an adversary simply by presenting so many redundant targets that it would be futile to attack. The new national satellite architecture pursues resilience via the incorporation of additional civilian aim-points.
However, even if that conclusion could carry some tactical wisdom, it is illegal; it deliberately insinuates civilians and their objects into the military campaign, rather than isolating and protecting them, as the LoAC principle of reverse distinction requires.
This kind of intentional intermingling of the space capabilities of the military and intelligence community with civilians (and, for that matter, with foreign spacecraft, too) can be accomplished in multiple ways. For example, the military can purchase the imagery from a commercial operator (or can agree in advance to procure that data, as necessary during a time of conflict). Likewise, it can hire the services of communications satellites, either fully or in specified “surge” contingencies.
The national security community can also rely on private sector “ride-share” launch capabilities. It can exploit “hosted payloads,” where a putatively commercial rocket carries into orbit both civilian and military payloads, or where a civilian satellite “bus” houses and services both categories of components such as sensors and transponders.
Most recently, the U.S. Space Command has developed a “commercial integration cell,” further fusing the capabilities of SpaceX’s Starlink megaconstellation and nine other private entities into a “proliferated architecture” designed to ensure redundancy and survivability of essential military services even in the face of enemy attack. [See here].
It doesn’t have to be this way. In other domains, the U.S. military relies on its own, internal capabilities, not routinely contracting with the private sector for the integrated performance of essentially sovereign combat functions. The Navy, for example, sustains its own armada of ships, not counting on commercial vessels to complicate the task of an enemy targeteer. The Air Force pays for its own organic assets, not planning to augment those in a major way by counting on private aircraft in a crisis.
Would it be “feasible” to exercise that same self-sufficiency in space? Yes. We know it is possible for the U.S. government to pay for its own space functions, because it is already mostly doing that. The military and the intelligence community do purchase and deploy their own satellites – big and small, in large constellations and individually – and plan to do more in the future. They are not so dependent on the private sector for the economic advantages of responsive and diversified satellite operations.
Consequences of Illegality
When a nominally civilian satellite performs military or intelligence community functions in armed conflict, it forfeits its usual protections, and becomes a legitimate target for enemy attack. Some satellite operators might be willing to run that risk, in pursuit of the financial opportunities of government contracting. But their financial backers and insurance carriers may not be so sanguine.
The other consequence of this short-sighted arrangement is that the U.S. government is undertaking illegal behavior, in hypocritical violation of the LoAC requirement for reverse distinction. It increases the jeopardy for civilian space operators, rather than endeavoring to protect them from the ravages of combat. In so doing, it surrenders the legal and moral high ground that comes with faithful adherence to the rule of international law.
We can, and must, do better than that.
About the Author
David A. Koplow is the Scott K. Ginsberg Professor of Law at the Georgetown University Law Center. He previously served as the Deputy General Counsel for International Affairs at the U.S. Department of Defense.
The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.
Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!