The US Space Force at 3: Growing Dangers for a Growing Branch
On 20 December 2022, the US Space Force (USSF) will celebrate the third anniversary of its creation—an anniversary that comes at the end of a year rife with space-related challenges. The after-effects of Russia’s November 2021 kinetic anti-satellite (ASAT) missile test increased awareness of the risks of space debris and triggered new diplomatic efforts to restrict ASAT weapons testing. Wide-ranging applications of space capabilities in the ongoing conflict in Ukraine, as well as other space-related consequences and side-effects of Russia’s invasion, have shown the geopolitical significance of space technologies and partnerships. They have also led to growing concerns about the “dual use” nature of civilian space infrastructure. Meanwhile, the relentless growth of Chinese space capabilities and technology development, including the completion of the Tiangong space station, continues to concern American military leaders and policy-makers. In other words, 2022 has persistently demonstrated that outer space is both critical to terrestrial affairs and increasingly dangerous.
In my recently-published book, The United States Space Force and the Future of American Space Policy: Legal and Policy Implications (September 2022, Brill Nijhoff), I examine the creation of the Space Force in the context of the United States’ historic efforts to develop national space law and policy and to influence the development of international space law. I also assess how the United States seeks to balance its persistent position that outer space ought to be used for “peaceful purposes” with its equally long-standing pursuit of space-based national security capabilities. Finally, I explore the question of whether the USSF’s creation ultimately contributes to the risk of a “security dilemma”-style conflict in outer space. I ultimately conclude that the Space Force is a natural evolution of the United States’ ever-increasing reliance on outer space and its persistent development of national security space capabilities; however, the events of the past year demonstrate the importance of the Space Force and the unparalleled importance of outer space in a much more publicly accessible way.
Emerging Security Concerns
Among the most significant outer space security concerns pertaining to the laws of war that occurred over the course of 2022 were (1) the widespread use of civilian space systems in the ongoing war in Ukraine, and (2) the Russian Federation’s response to these applications of civilian space infrastructure. Most readers are likely to be familiar with numerous examples of civilian space system use in the Ukraine war. The most prominent examples include Maxar’s widespread publication of satellite imagery depicting Russian troop build-up and movements both before and after the invasion; the Canadian Government’s grant of explicit permission to MDA Corp. to provide satellite imagery directly to Ukraine; Elon Musk’s delivery of Starlink terminals to Ukraine in the early weeks of the conflict; and ICEYE’s contracting with the Ukrainian Government for Synthetic Aperture Radar (SAR) satellite imaging capabilities. These examples, however, are only a fraction of the space-based support Ukraine has received from both civilian companies and national governments. Civilian / commercial space support to Ukraine has been so extensive, Russia’s ongoing invasion of Ukraine has been deemed the “first commercial space war.”
As my colleagues Lieutenant Colonel Timothy Goines, Professor Jeff Biller, Squadron Leader Tara Brown (here and here), and I have previously argued, this widespread use of commercial space systems poses serious jus in bello and law of war-related questions. Do commercial space systems that continue to provide services to a belligerent in an armed conflict become lawfully targetable because of their “dual use” nature? Can the “participation” of commercial space actors in an armed conflict negate the neutrality of the State that licenses and supervises them (pursuant to Article VI of the Outer Space Treaty)? If so, how would such a State respond if a belligerent to an armed conflict intentionally targeted satellites belonging to a commercial company licensed in that State?
Emerging State Practice
If there was any doubt these are more than academic or theoretical questions, Konstantin Vorontsov, Russia’s Deputy Head of Delegation to the United Nations, laid it to rest this fall with two almost-identical statements delivered to two separate UN bodies a little over a month apart. Vorontsov’s first statement, presented to the Open-Ended Working Group on Reducing Space Threats on 12 September, received very little attention in the media. His second, presented to the UN First Committee on 26 October, resulted in an explosion of articles and condemnation. In these statements, Vorontsov criticized the United States and its allies for using “civilian, including commercial, infrastructure elements in outer space for military purposes.” Expanding on this criticism—and articulating the theoretical discussion of Lt Col Goines, Professor Biller, Squadron Leader Brown, and myself as the official position of the Russian Federation—Vorontsov continues:
Apparently, these States do not realise that such actions in fact constitute indirect participation in military conflicts. Quasi-civilian infrastructure may become a legitimate target for retaliation. . . At the very least, this provocative use of civilian satellites is questionable under the Outer Space Treaty, which only provides for the peaceful use of outer space, and must be strongly condemned by the international community.
As I discuss in The United States Space Force and the Future of American Space Policy and elsewhere, Vorontsov’s allegations regarding the Outer Space Treaty and the nature of its “peaceful purposes” provisions are themselves “questionable” at best. His characterization of civilian / commercial satellites as potentially lawful military targets, however, actualizes the concerns expressed by academics and military legal theorists about the use of these systems to support combat activities.
Although a number of articles written in response to Vorontsov’s First Committee statement breathlessly claimed Russia was threatening to “shoot down” American satellites, the reality behind his declarations is somewhat less sensational. First, regardless of the relative legality of targeting commercial space systems under international law, the companies involved in providing commercial space services to Ukraine are well aware of the risks. Mr. Musk, for example, publicly acknowledged a “high” probability of Starlink being attacked in one way or another as early as the beginning of March (just after his first shipment of Starlink terminals reached Ukraine). Second, for all its many faults, Russia appears to be restricting its targeting of satellite systems to non-kinetic attacks. It has attempted—and continues to attempt—to jam Global Positioning System (GPS) satellite signals, both over Ukraine and throughout Europe, with varying degrees of success. Russia has also targeted Starlink with both jamming and hacking attacks, which may be indicative of its approach to other commercial companies providing space-based services to the Ukrainian Government and military. All of this is to say that Vorontsov’s statements are not so much the bombshell they were portrayed to be in the media, but, rather, a public articulation of what Russia is largely already doing in the Ukraine conflict.
In contrast to reported instances of war crimes in its terrestrial actions in Ukraine, Russia’s activities in outer space are more ambiguous from a jus in bello perspective. Even if commercial space systems are lawfully targetable under the laws of war, the requirements of military necessity and proportionality remain in effect. Russia’s use of non-kinetic rather than kinetic attacks against GPS, Starlink, and potentially other satellite systems may be more likely to lawfully meet these requirements. Temporary jamming or reversible hacking, for example, arguably better satisfy the ICRC’s guidance that direct attacks on civilians participating in hostilities—and, by extension, perhaps civilian space systems like Starlink and others participating in hostilities—“must not exceed what is actually necessary to accomplish a legitimate military purpose in the prevailing circumstances.”
Proportionality analyses related to space systems, however, remain vague. Jamming or hacking space systems is certainly less likely to cause extensive civilian damage than kinetic attacks, which, as numerous ASAT tests over the past sixteen years have demonstrated, can create expansive debris fields that threaten all space users in the orbits where such debris comes to rest. Even temporary methods of targeting space systems, though, can have “reverberating effects”—secondary, tertiary, or more attenuated consequences that are not direct, immediate effects of an attack, but of which the attack is, ultimately, the cause.
If Russian jamming of GPS signals over Ukraine, for example, interferes with the GPS navigation of civilian aircraft in Ukraine and results in plane crashes or other aviation accidents causing death and injury to civilians, does this violate proportionality? What if the GPS jamming interferes with civilian aircraft in a nearby, neutral country? While international law experts and humanitarian organizations have largely agreed that “reasonably foreseeable” reverberating effects must be considered, no fixed rules ultimately control how these effects play into a State’s proportionality analysis. I would note that it is also unclear whether Russian targeting decisions are the result of careful international law of war analyses, the impracticality of kinetic attacks on widely proliferated systems such as Starlink, concern over escalation with the United States, or some other reason.
Questions concerning satellite targeting and its lawfulness are important in analyses of the ongoing war in Ukraine, but even more important in the wider context of expanding space system use by both State and private actors. To bring the discussion back to the Space Force, Russian activities targeting satellite systems above the battlefields of Ukraine are providing a real-world application of policies and doctrine that have, to date, largely only been applied in war games and theoretical discussions. For at least the past twenty years, United States joint doctrine for space operations has recognized a range of “space control” negation operations for targeting adversary space systems.
These “5 D’s”—deceive, disrupt, deny, degrade, and destroy—represent an escalating scale of offensive action in which reversible effects (disruption, denial) eventually give way to more permanent, irreversible effects (degradation, destruction). Similarly, Space Force doctrine, supplementing the existing joint doctrine, describes “combat power projection”—which includes offensive operations seeking to “neutralize” adversary space activities. The events of 2022 have brought outer space-focused conflict escalation into more distinct focus, providing ongoing, real-world examples of how a modern military’s force projection into space and targeting of space objects will affect belligerents, civilians, and neutral parties in an armed conflict. How other States and the United Nations ultimately respond to Russia’s statements concerning the targeting of space objects, and its (to date) largely reversible jamming and hacking attacks on space objects, will affect not only Ukraine and Russia as the belligerents to the current ongoing conflict. It will provide a clearer international law analysis of these issues that will be applicable to a wider array of outer space actors.
As the United States Space Force celebrates its third birthday, global events have both validated the underlying reasons for its creation (significant outer space-related threats from American competitors and an increasingly congested, contested, and competitive space environment) and provided important real-world applications of heretofore theoretical concepts of space targeting and its relationship to the laws of war. These events will likely have far-reaching implications for how space power and force projection develop, and are analyzed under international law, as the Space Force continues to grow.
Major Jeremy Grunert is an Assistant Professor of Law at the United States Air Force Academy. He is the author of The United States Space Force & the Future of American Space Policy: Legal and Policy Implications (Brill Nijhoff, 2022), available at the Brill Nijhoff website in both digital and print versions.
Photo credit: U.S. Air Force, Tech. Sgt. David Salanitri