“The Eye in Space”: ICEYE’s SAR Satellites and the Law of War
Private companies play a significant role in shaping and sustaining the military’s warfighting capabilities. The space industry is no exception and their over-sized ability to dictate battlefield conditions has been notable in the Russia-Ukrainian war. The most celebrated is Space X’s Starlink satellite constellation providing internet connectivity, which has been proven to be resilient against Russia’s jamming efforts. The provision of satellite communication services by private companies for Ukrainian forces has raised various legal issues, as previously discussed in the Ukraine Symposium of this forum by LTC Timothy Goines, Jeff Biller and MAJ Jeremy Grunert, and more recent publication by Tara Brown.
A different type of space-based support was announced on August 18, according to which ICEYE, Finland-based company specializing in persistent monitoring with radar satellite imaging, has agreed to provide the Government of Ukraine with its Synthetic Aperture Radar (SAR) satellite imaging capabilities. ICEYE operates the world’s largest fleet of commercial SAR satellites with twenty-one spacecraft it has launched so far. Its small radar imaging satellites are capable of gathering high-resolution images from any part of the Earth in daylight, at night and even through cloud cover. This capability is considered critical in providing necessary and reliable data for military decision-making.
These earth observation satellites could become a prime target in military space operations because of relative easiness of targeting a specific satellite rather than the whole constellation of communication or positioning, navigation and timing (PNT) satellites. Military advantages that are anticipated to gain could also be significant if these satellites indeed play a critical role in military decision-making as has been suggested. However, targeting an earth observation satellite involves not only technical complications in executing an attack with mechanical precision but also the need to navigate through multiple layers of applicable legal regimes – international space law, the law of State responsibility, and the law of armed conflict. Drawing on the author’s recent publication, this post unravels the interplay of different legal regimes that apply to military operations conducted against SAR satellites.
The Legal Status of SAR Satellites
Unlike ships under the law of the sea, there is no nationality attached to a satellite based on registration. Its legal status is rather attributed to different States under space law, depending on the purposes for which the legal status must be established. For example, the operation of a satellite by a private company falls within the international responsibility of a State in or from which its space activities are carried out (Article VI of Outer Space Treaty). If the satellite causes any damage, its liability is attributed to the launching States, which include those involved in launching or procuring the launch of the satellite, as well as the State from whose territory or facility it is launched (Article 1(c) of Liability Convention). One of these launching States may exercise jurisdiction and control over the satellite as the State of registry (Article VIII of Outer Space Treaty; Article 2 of Registration Convention).
In the case of ICEYE’s SAR satellites, Finland is the State of registry (see, for example, registration data for ICEYE-X16) and is also considered responsible for ICEYE’s space activities due to the fact that the company is based in Espoo, Finland. Other States, such as Russia and the United States, join Finland as the launching States, depending on how the satellite was launched. Ukraine, as the user of ICEYE’s satellite imaging services, is not granted any rights or obligations attributed to it for any of these space law purposes.
Irrespective of its legal status under space law, the SAR satellite will be a legitimate military objective when it is put to Ukraine’s use as an aid to their military operations. It qualifies as such under Article 52(2) of Additional Protocol I, to which both Russia and Ukraine are party, because of its military use making an effective contribution to Ukraine’s military action while its total or partial destruction, capture or neutralization offers Russia a definite military advantage in the circumstances ruling at the time of attack.
The fact that Finland is the State of registry or the operation of ICEYE’s satellites forms part of Finland’s national activities in outer space within the meaning of Article VI of Outer Space Treaty does not necessarily implicate its State responsibility for any internationally wrongful act that may be committed through the use of the satellite services. Nor does it become a co-belligerent in the Russia-Ukrainian war simply because a private company operating under its national space activities lends support to a belligerent party. This is because space law governs the exploration and use of outer space and, as such, the rights and obligations that arise under this legal regime are not applicable to the terrestrial use of data and radio signals transmitted through or from a satellite. What the Article VI responsibility means under international law remains controversial. However, no matter how it is legally characterized, its legal significance is confined to the realm of space activities and does not extend to the legal regime governing the conduct of hostilities.
This does not mean that Finland is not entitled to any claim under international law in the event that ICEYE’s satellites become an object of attack. The destruction of a space object, or causing damage to it, could constitute a use of force prohibited under Article 2(4) of the UN Charter, which has been established as customary international law (Paramilitary Activities, paras 188-192). This obligation applies universally and as such, any use or threat of force in breach of this prohibition affects the legal interests of the whole group of States. That being said, Finland must qualify as an “injured State” in order to invoke the responsibility of the offending State.
According to the International Law Commission, a State is considered “injured” (see Article 42) in cases where the obligation breached is owed to the international community as a whole if the breach of the obligation:
(i) specially affects that State; or
(ii) is of such a character as radically to change the position of all the other States to which the obligation is owed with respect to the further performance of the obligation.
Although it does not set out necessary conditions for a State to be considered “specially affected,” the Commission notes that, “for a State to be considered injured, it must be affected by the breach in a way which distinguishes it from the generality of other States to which the obligation is owed” (at 119, para. 12).
This broad understanding of an “injured State” suggests that Finland could consider itself as an injured State if the use of force was directed against one of ICEYE’s satellites, even though there is no nationality or sovereign status attached to them. In my view, it would be plausible to find that Finland is entitled to claim a special impact based on the fact that it would be deprived of the right to exercise jurisdiction and control over the satellite. Although this is not the only relevant consideration, it would be stretched too far if a special impact was recognized when the State was merely involved in the launch of the satellite or the authorization and supervision of the space activities carried on by its nationals.
Similarly, whether Finland would be entitled to adopt a forcible response in the exercise of the right of self-defense depends on the factual assessment of the damage it suffers. There are a variety of factors that may influence the State’s assessment regarding the use of force, as originally formulated by Professor Michael N. Schmitt and subsequently adopted and refined in Tallinn Manual 2.0 (Rule 69, commentary paras 9-10). In a similar way, the State may consider different factors such as the function that the target satellite performs, the degree of damage that the operation has caused to the satellite, the severity of its consequences for Finland, in determining whether the “scale and effect” of the damage it suffers reach the gravity threshold required for an armed attack (Oil Platforms, para. 72; Paramilitary Activities, para. 191).
The Legality of Targeting SAR Satellites
Even if ICEYE’s SAR satellites are legitimate military objectives, there are various ways of conducting military operations against them. Russia may employ kinetic impact weapons, such as direct-ascent anti-satellite (ASAT) missiles, which they tested in November 2021 to demonstrate their capability of causing kinetic damage to a satellite. Alternatively, a space-based orbital ASAT could be launched from its own satellite. Russia was suspected of having conducted a non-destructive test of such capability by releasing a projectile into orbit from Cosmos 2543 in July 2020. Either way, Russia is required to comply with targeting requirements, such as distinction, proportionality, and the duty to exercise feasible precautions. In particular, Russia will have to take feasible precautions to minimize or reduce incidental civilian harm, including foreseeable impacts of debris caused as a result of destruction or damage, and to refrain from attacking the satellite if the incidental civilian harm is reasonably expected to be excessive compared to the concrete and direct military advantage anticipated to be gained from such course of action.
In addition, non-kinetic options are available and, in many cases, are equally capable of causing disabling effects against SAR satellites. The Krashukha-4 mobile electronic warfare system, for example, is reported to be effective against SAR satellites (p. 02-26). Russia is also suspected of building ground-based directed energy weapons that are designed to dazzle imaging satellites. Under certain circumstances, such non-physical means of interference with a satellite could also qualify as an “attack” to which the law of targeting applies (pp. 117-8). As the International Court of Justice observed in the Nuclear Weapons advisory opinion, this body of law applies to “all forms of warfare and to all kinds of weapons” (para. 86).
Under the law of armed conflict, the notion of “attack” is not constrained to the physical means of violence but is rather determined by the violent consequences of an operation (Tallinn Manual 2.0, Rule 92; Oslo Manual, Rule 8 para. 6). As such, disruption of active sensors on board ICEYE’s satellites, even for a temporary duration without causing irreversible damage, could well be characterized as an attack when, for example, it is intended or reasonably expected to interfere with the adversary’s efforts to identify survivors and organize rescue missions through battlefield damage assessment. It is also possible that other actors have access to the same satellite whose imaging services are being used to monitor life-threatening events, such as flash flooding or wildfires, at the time of attack. These terrestrial impacts must be considered, to the extent reasonably expected, to determine whether the attack is capable of being executed in a discriminate manner as required by the law of targeting.
The attack on ICEYE’s satellites in the conduct of hostilities against Ukraine could at the same time constitute a coercive event that would be characterized as a use of force against other States that are “injured” as discussed above. An increasing number of States have indeed subscribed to the view that the hostile activities by non-traditional means, such as cyber operations, may constitute a use of force when the scale and effect of such activities are comparable to those of a conventional act of violence prohibited under the principle of non-use of force.
As the author emphasized in the article, the value of a satellite is primarily derived from the function it performs to enable or assist terrestrial activities. As such, the terrestrial consequences arising from the disruption of the satellite is more likely to control the State’s assessment. Even non-kinetic interference with active sensors could well be characterized as a use of force when the same satellite is being used to track troops movement around the country’s borders or as an aid for real-time analysis of the time-critical, life-threatening event such as flash flooding or building collapse.
The Rights and Interests of Third Parties
ICEYE’s satellite constellation provides SAR data for multiple entities around the world, including Canada’s MDA Ltd. and the Brazilian Air Force. This means that the targeting of a satellite must not only be lawful under the law of armed conflict as applicable to the conduct of hostilities with the target State but must also be justified with respect to third States whose rights may be infringed as a result of the attack.
To start with, the mere ownership of the satellite or a payload thereof does not give rise to any right that third States can assert under the law of armed conflict. It is established in the traditional law of war that the mere destruction of neutral property incidental to military operations during an armed conflict does not demand reparations (see references cited in fn 109 of the author’s article). This does not mean, however, that third States do not enjoy any legal protection. Space objects owned or used by a third State are accorded the same legal protection as any civilian objects, much like neutral inhabitants and properties located in enemy territory, under the law of armed conflict.
As discussed above, a third State may qualify as an “injured State” entitled to invoke the responsibility of the offending State for violation of the principle of non-use of force. Other States may assert their right to the peaceful exploration and use of outer space in accordance with Articles I and IX of Outer Space Treaty, as this treaty relationship would remain intact between the belligerent party to an armed conflict and other States that are not involved in the armed conflict. It is plausible to argue on these grounds that an attack against ICEYE’s satellites infringes the right of third States protected under space law.
In the absence of Security Council authorization, the right of self-defense could be invoked as a justification for the use of force as well as a circumstance precluding wrongfulness (Article 21) in relation to an associated violation of space law obligations. It is possible to envisage a situation where Russia considers itself under an armed attack from third States because of their substantial involvement in the conduct of hostilities in support of Ukraine. However, the mere provision of satellite data services in support of the conduct of hostilities would be far from sufficient to equate it to an armed attack launched or directed by third States (this is similar to but must be distinguished from the discussion regarding co-belligerency under the law of armed conflict, which Professor Schmitt elaborated in an earlier post).
One may also consider that third States could assert neutral rights attached to the satellites that are carried on their registry. In the context of an international armed conflict, third States may remain neutral in their relationship with belligerent parties. The law of neutrality governs this relationship by granting them neutral rights and obligations while prohibiting belligerent parties from interfering with the sovereignty of neutral States. The question is whether such neutral rights and obligations can be extended to satellites on the ground that a neutral State is exercising jurisdiction and control over them.
It is notable that Denmark claims a neutral status over a satellite carried on its registry and considers an attack against it to be prohibited (p. 60). However, as discussed above, a satellite is a legitimate military objective, no matter who owns it, on whose registry it is carried, or who is a recipient of its services as long as it is used to make an effective contribution to the adversary’s military action. The same object cannot logically be targetable under the law of armed conflict and enjoy legal protection under the law of neutrality at the same time.
Moreover, the legal protection derived from a neutral status comes with an obligation to prevent a belligerent use of the satellite even if it was launched or owned by a private company. In the case of ICEYE’s satellites, this could mean that Finland is required to prevent the private company from granting Ukraine access to the satellites. States will have to decide whether such practice serves their national interests as the law of neutrality further develops under the modern condition of warfare. However, as it currently stands, it is legally problematic and even undesirable to extend a neutral status to satellites.
In the absence of a neutral status attached to satellites, the law of armed conflict governs the conduct of hostilities directed against satellites even if that might affect the rights and interests of a third State. This means that there is no need to afford special protection to satellites even in cases where they are registered or operated by a third State.
That being said, the attacking force is required to consider its impact on the right of the State of registry (which could regard it as a use of force directed against them) and other States that are entitled to enjoy freedom in the exploration and use of outer space, as well as associated harm to civilians and civilian objects in the terrestrial environment as required by the law of war. There is a duty to take constant care to avoid or minimize incidental harm to civilians and civilian objects, including those of third States, with due regard for their interest in the exploration and use of outer space.
ICEYE’s decision to grant Ukrainian forces access to its satellite imagery services means that these satellites will qualify as legitimate military targets under the law of armed conflict as it applies to the Russia-Ukraine war. However, in the event Russia launches an attack against these satellites, Finland as the State of registry and other States as recipients of satellite imagery services could consider it as an infringement of their rights. Depending on how the operation is conducted, some countries may even consider themselves entitled to take military action in the exercise of the right of self-defense. Russia is well advised to give very careful considerations to these complex legal implications before it decides to launch any operation against a satellite if it wishes to avoid the conflict inadvertently spreading beyond Ukrainian borders.
Hitoshi Nasu is a Professor of Law in the Department of Law at the United States Military Academy.
Photo credit: Oldteched, Wikimedia Commons