Credit: Starlink
I. Introduction
There has been an observed shift in governments utilizing private-public partnerships for maintenance and protection of critical military infrastructure. As a result, governments are increasingly relying on private tech companies to protect critical services. Services to protect medical care, electric grids, and water treatment facilities from cyber-attacks have all been undertaken by private tech companies. Given the emergence of private-public cooperation, questions have been raised regarding the ability to target the providing companies in the event of an armed conflict.
Due to tech companies providing or protecting infrastructure vital to the operation of a state’s military, tech companies are exposed to heightened security risks. If states were to go to war, companies may come under threat of cyber or physical attacks by belligerent parties in pursuit of a claimed military objective. The risk of being subjected to attacks by opposing belligerents has raised questions regarding the legality of targeting companies during an armed conflict. The question most frequently asked is: in what circumstances, if any, might tech companies be legitimate military targets for states and/or non-state armed groups? Answering such a question requires a thorough analysis into whether tech companies constitute a lawful target under international humanitarian law (IHL). An analysis of Article 52 of Additional Protocol I would conclude that tech companies, such as Starlink, may lawfully be targeted and attacked only if the attacks adhere to the conditions within Article 52 of Additional Protocol I. For purposes of this analysis, Starlink will be the primary focus.
II. Context
One tech company in particular, Starlink, has been on the radar of multiple states due to the services they are capable of providing. Starlink, a subsidiary of SpaceX, an American company, has the ability to provide high-speed internet and communication via its satellites. Starlink currently has over 2,000 interconnected satellites in low Earth orbit, allowing the company to provide high-speed internet and communications. These satellites constitute a robust network, which, if one or a few satellites are damaged or destroyed, is still able to be operational. Starlink utilizes highly portable array antennas in order to connect devices to its satellites. As such, Starlink can be deployed and utilized seemingly anywhere in the world.
One state that has concerns regarding the capabilities of Starlink is China. The People’s Liberation Army (PLA) has accused the United States of “militarizing” the Starlink program and promoting the idea that China must be able to destroy Starlink if it threatens China’s national security. As such, a group affiliated with China’s defense industry has published a research paper in which it proposed ways China could substantially damage or destroy Starlink’s system. It is clear that China is aware of Starlink’s capabilities and sees it as a potential tool Taiwan could utilize if China decides to invade. China’s apprehension towards Starlink is largely the result of the effectiveness of the tech company’s ability to provide high-speed internet and communication capabilities to Ukraine during the Russia-Ukraine conflict.
In the Russia-Ukraine conflict, Starlink has provided Ukraine access to high-speed internet and communications via a Pentagon contract. Starlink’s infrastructure and services have provided the Ukrainians with the ability to intercept Russian communications on the battlefield, facilitate information operations against the Russian military, and assist Ukrainian drone units in destroying Russian tanks. Multiple Ukrainian officials have stated that without Starlink, they would not be able to communicate effectively across the front line. Furthermore, a Ukrainian soldier has stated that Starlink has “changed the war” with Russia. As currently constituted, Starlink serves as an integral part in the Ukrainian military’s operations, and its degradation in operation or destruction would be costly to the Ukrainians, serving as a ripe military target for Russia.
However, as mentioned above, destroying a satellite in and of itself is not detrimental to the network of satellites, as the satellites would still be able to function and communicate with each other if one goes down. Furthermore, because the satellites are operating in low Earth orbit, SpaceX is able to quickly replace a satellite if required. For purposes of this paper, it will be assumed that an attack against Starlink will be broad enough to cause a major or catastrophic disruption in the system.
In addition, it can be assumed that the satellites will not be targeted exclusively, but also sites in which Starlink operates. As such, not only will Starlink’s satellites be at risk of an attack, but Starlink’s infrastructure and employees will be at risk as well. According to general searches for job openings at major tech companies, such as Amazon, Google, SpaceX, Microsoft, and Huawei, these companies employ people in a wide range of roles. They include hardware and software development, marketing, security and support services, and retail, among many others. Furthermore, these tech companies own an abundance of property from which they manufacture, maintain, and sell their services. Such properties include office buildings, production factories and warehouses, network infrastructure, and tangible items that assist in their day-to-day activities. All of these may come under threat of an attack during an armed conflict, especially if there is a service being provided to the military of the state. If Russia or China decides to target Starlink’s satellites, or one of its properties where employees are located, they must do so in accordance with IHL.
III. The Legality of Targeting Starlink
In the event a state decides to target Starlink, targeting and execution of an attack must be done in adherence with IHL. Starlink is not a formal member of the armed forces of a state, rather a private company. As such, Starlink’s infrastructure and employees are considered civilians under IHL, thus they cannot be the object of direct attacks by the parties of a conflict. However, although IHL protects civilians from being targeted, they lose their protection if certain criteria are met.
For purposes of this analysis, the 1987 Commentary of Article 52 of Additional Protocol I provides that dual function sites are legitimate military targets. “Dual function sites” are defined as providing value for the civilian population and for the military. Here, Starlink is a dual function site in the sense that it provides high-speed internet and communication channels for both the civilian population and the military. As such, within the 1987 Commentary of Article 52, there are two main targeting criteria required for a belligerent to comply with when targeting a dual-purpose civilian site: (1) the target must be a legitimate military objective, and (2) the attack must be proportional.
A. The Target Must be a Legitimate Military Objective
Article 52 outlines the definition of a military objective. Article 52(2) states that a military objective is one in which:
“[B]y their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.” [emphasis added]
According to the Commentary of 1987, the word “nature” refers to any object that is being directly used by the armed forces of a state, including, but not limited to, weapons, equipment, communications centers, and depots. Additionally, the Commentary of 1987 establishes that the term “purpose” is concerned with the intended future use of an object, and “use” is concerned with the present function of the object. The Commentary makes clear that if a civilian site is being used for military purposes, they become military objectives. As such, Starlink must make an effective contribution to a state’s military action and its total or partial destruction, capture, or neutralization must offer the targeting state a military advantage.
Based on the definitions provided by the Commentary for Article 52, Starlink fits within the definition of “nature” on the basis that it is equipment and a communication center utilized by the Ukrainian military. As previously stated, Ukraine is using Starlink to intercept Russian communications on the battlefield, facilitate information operations against the Russian military, and assist Ukrainian drone units in destroying Russian tanks. The services provided by Starlink have played an integral role in Ukraine’s defense against the Russian invasion. Additionally, Starlink’s infrastructure’s “purpose” and “use” in Ukraine’s defense against Russia amounts to being used for military purposes. Although Starlink’s infrastructure is providing services for Ukrainian civilians, it is equally contributing to the war effort.
In the event of Starlink’s degradation of services or complete destruction, Ukraine would lose a significant contributor to its military operations. Multiple Ukrainian officials have stated that without Starlink, they would not be able to communicate effectively across the front line. Furthermore, a Ukrainian soldier has stated Starlink has “changed the war” with Russia. Knocking out Ukraine’s ability to access high-speed internet and communication channels would undoubtedly provide Russia with a definite military advantage. Starlink has been making an effective contribution to military action, thus is a legitimate military objective
B. The Attack Must be Proportional
The 1987 Commentary for Article 52 states that if a civilian site is providing a dual purpose which benefits civilians and the military of a state, then it becomes a legitimate military objective. However, the 1987 Commentary for Article 52 provides conditions that an attack on a dual purpose site must be “proportional” in the sense that a state must take into consideration the anticipated military advantage with the damage among the civilian population. Generally, for an attack on a dual function site to be deemed proportional within the confines of Article 52 of Additional Protocol I, the attack must minimize civilian casualties in the pursuit of a legitimate military objective.
Article 51 of Additional Protocol I states that an attack on civilians that may be “expected to cause incidental loss of civilian life, or damage to civilian objects” shall not be excessive. Furthermore, the 1987 Commentary for Article 51 provides that if a civilian site falls within Article 52’s military objective definition, a belligerent may attack the cite so long as it “does not result in excessive losses among the civilian population.” Within Article 51’s Commentary, a non-excessive-attack is loosely defined as one “directed against a military objective with means which are not disproportionate in relation to the objective, but are suited to destroying only that objective” [emphasis added]. The Commentary expands on this definition, and states “even if [civilian losses] are very high, civilian losses and damages may be justified if the military advantage at stake is of great importance.” Essentially, the attack must only be as intense as necessary to achieve the military objective, while keeping civilian casualties as low as possible.
It is worth noting that Starlink’s satellites are merely providing internet access and the ability to communicate, rather than directly being able to cause harm to Russian personnel and equipment. Whether or not an attack against Starlink’s infrastructure is legal under IHL largely depends on the attack the opposing belligerent state is planning. If Russia were to physically attack the satellites in earth’s orbit, the resulting debris from an attack on the satellites may have catastrophic consequences. The debris from an attack against a satellite cannot be controlled, which could cause damage to other satellites in the atmosphere. In addition, the cost of cleaning up debris in the atmosphere is extremely expensive. However, if Russia attacked Starlink’s system via electronic jamming, or attacking an obscure location in Ukraine where Starlink is operational, it would likely be seen as a proportional attack. All things considered, there are avenues in which Russia may target and attack Starlink’s network in a way that conforms to the norms of IHL. Thus, an attack against Starlink could be legal depending on the mechanism of the attack.
IV. Conclusion
Tech companies, such as Starlink, may lawfully be targeted so long as the targeting and attack adheres to Article 52 of Additional Protocol I. The 1987 Commentary of Article 52 outlines that there are two main targeting criteria required for a belligerent to comply with when targeting a dual-purpose civilian site: (1) the target must be a legitimate military objective and (2) the attack must be proportional. Starlink is a legitimate military target due to the provision of services to the armed forces of Ukraine. Furthermore, for the targeting and attacking of Starlink’s infrastructure to be legal under IHL, the attack must not result in excessive civilian losses, and must not be disproportionate to the military objective. As such, tech companies in similar situations to Starlink can be, and should expect to be, targeted during armed conflicts.
*The views expressed in this article do not represent the views of Santa Clara University.