Written by Elizabeth Staffeldt

 

INTRODUCTION

The war in Ukraine has been a large part of the daily news cycle since the invasion in February 2022.[i] From the beginning, states have been providing aid to Ukraine by way of money and military goods.[ii] States have not been the only contributors to Ukraine’s fight against Russia. Elon Musk stepped up to provide Ukraine access to Starlink, giving the country satellite internet capabilities, free of charge, shortly after the invasion began.[iii]  This support was vital when, hours before the invasion, Russia interrupted Ukraine’s access to the internet with a cyber operation that disrupted Viasat’s internet connections.[iv] Providing Starlink to Ukraine offset these connectivity issues Russia initially caused. However, the aid provided by SpaceX, a private company, brings up interesting considerations for applying the Law of Armed Conflict (LOAC) to the situation at hand, as well as future situations that may be similar. As we continue to utilize more technology in warfare, difficulty arises in applying LOAC and seeing how technology fits within its framework.  Questions occur like: How can we apply LOAC to this use of technology? Does Starlink become a military target because of its usage? If it is a military target, is its infrastructure at risk from attack? As technology becomes a larger part of our lives, both within and outside of conflict, we see gaps in existing law that technology does not easily fit into. This discussion seeks to examine Ukraine’s usage of Starlink and what it could mean.

BACKGROUND

War in Ukraine

The war as we know it began with the invasion in February of 2022; however, the conflict began much earlier with the Russian annexation of Crimea in 2014.[v] Subsequently, tensions have been building up in the region. Beginning in October 2021, the world saw an accumulation of Russian troops at the border of Ukraine and warned of the upcoming invasion.[vi] In the hours leading up to the invasion, communications provided by an American-owned high-speed satellite communications company, Viasat, were interrupted and allegedly caused by the G.R.U.  The malware of Russia’s military intelligence agency was launched against the Viasat modems and routers, permanently disabling them.[viii] This operation interrupted both civilian internet connection  and “Ukraine’s command and control of its troops.”[ix]

Starlink

As a subsidiary of SpaceX, Starlink is “the world’s first and largest” satellite constellation, using low earth orbit to deliver internet.[x] Starlink aims to bring internet to remote communities that lack access to traditional fiber optic internet connections.[xi]

When someone orders Starlink, they receive a “Starlink Kit” which comes with the terminal (confusingly called Starlink, however, will be referred to here as terminals), WiFi router and power supply, cables, and base.[xii] Their goal is to eventually have cross-linked satellites connect directly with customer’s terminals, but currently, Starlink’s function relies on ground stations, which must be within 500 miles of the customer.[xiii] The closest ground stations to Ukraine are in Poland and Turkey, which provides coverage to some but not all of Ukraine.[xiv] Starlink has allowed the Ukrainian military to remain connected and allowed Ukrainian forces to gather information on Russian tanks and target them at night, often with low collateral damage.[xv]

LOAC

Targeting is a crucial aspect of warfare that relies on the core principles of LOAC: military necessity, distinction, humanity, and proportionality. Targeting involves identifying a potential target and determining whether it is a military objective that could be legally attacked.[xvi] A three-part test determines if something is a targetable, military object.[xvii] First, it must be determined if the object is, in fact, a military object. Using the four components influencing the status of a military object (nature, use, purpose, location), if an object meets the necessary standard. The second part of the test examines if the object “effectively contributes” to military action.[xviii] Finally, it must be determined if attacking the object will offer the attacking state a clear military advantage.[xix]

ANALYSIS

For Starlink to be targetable, the principle of distinction must be applied to determine if Starlink’s infrastructure is protected. The category of protected objects or places can be easily eliminated.[xx] With a layman’s knowledge of Starlink, the instinct may be to classify it as a civilian object, but further analysis suggests the opposite. To determine its status, we examine Starlink under the criteria of Additional Protocol I, and examine its “nature, location, purpose or use.”[xxi]

By examining Starlink’s infrastructure through its location, we can determine its targetability. There were about 25,000 terminals delivered to Ukraine.[xxii] They are portable, so it is likely that if a military unit is relying on Starlink for communication, they are moving the terminals around the conflict zone as they move. Since the military is utilizing the terminals, they are similar in status to any other military equipment.[xxiii] Additional Protocol I acknowledges that objects may have no military function, but  may contribute to military action based on location.[xxiv] A military tank that is located in the middle of the desert, away from hostilities, is still something that belongs to the military, but it is not, based on its location, something that is effectively contributing to military action.  Therefore, it is not a targetable military object. Just as this tank loses its protection when it is moved and utilized by forces in active conflict, terminals that are typically used by civilians and located at their homes lose their protection when they are provided to the military and are near military bases or zones of conflict.

The second part of the targeting analysis involves looking at the military object to determine if it makes an effective contribution to military action. Even if Starlink did meet the criteria of military objective but did not provide any effective contribution to Ukraine’s military action, the principle of military necessity would limit Russia’s ability to target and attack any part of its infrastructure.[xxv] Given the way the media has painted Starlink as key to Ukraine’s longevity in the holdout against Russia, it seems that Starlink has made an effective contribution to Ukraine’s military. The Viasat hack was an attempt to weaken Ukraine ahead of the invasion, so internet usage that allows the military to communicate would likely be on Russia’s radar.[xxvi] Communication is vital to the success of the military, especially when faced with varied threats in many directions.

Finally, Russia must gain a military advantage over Ukraine if it were to target Starlink infrastructure. If Russia’s goal were to remove some of the ability to communicate within the Ukrainian military and render them incapable of effectively planning and coordinating counteracts against Russian troops, it is likely that targeting and attacking Starlink would accomplish that.[xxvii] While not all of the Ukrainian military are using Starlink, (based on the location of the ground stations), cutting off the internet source to many troops would be devastating. The attack on Viasat just  before the invasion reflects the importance of communication to military operations. Russia tried to disable a core part of  Ukraine’s functionality by cutting off its communication mode. The fact that Starlink was sent so quickly to Ukraine to ensure that its military was not cut off shows that communications are core to military function and coordination. If Russia wanted to target Starlink in some way, it may point to the fact that without it, Ukraine would not have been able to withstand the Russian invasion as it has. The point it would make is that the fact that communications were provided soon after the start of the invasion supports the stance that without Starlink, Ukraine would not have been able to coordinate military operations as effectively.

Russia would also have to conduct a proportionality analysis to consider potential collateral consequences. SpaceX may have made statements about Ukraine being able to use Starlink only for humanitarian, and non-offensive purposes in an attempt to protect Starlink’s status in the conflict.[xxviii] This claim ignores the actual use of Starlink in the war and the analysis that military commanders must go through to determine if something is targetable. Regardless of what SpaceX wants from Ukraine with its use of Starlink, the mere presence of its equipment with the military puts it at risk.

CONCLUSION

When applying LOAC rules and principles of targeting to Ukraine’s use of Starlink in the fight against Russia, we can conclude that based on its location, Starlink infrastructure qualifies as military objects that could be subject to attack by Russian forces. Additionally, Starlink has proven to be greatly effective for the Ukrainian military since its initial delivery. If Russia wanted to gain an advantage by cutting off one of the military’s essential modes of communication, attacking Starlink would accomplish this objective. The use of Starlink in Ukraine has shown how technology has impacted how states deal with warfare, and there is plenty of room for the law to develop to account for these changes.

 

Works Cited:

[i] See Austin Ramzy, The Invasion of Ukraine: How Russia Attacked and What Happens Next, N.Y. Times, Feb. 24, 2022,https://www.nytimes.com/2022/02/24/world/europe/why-russia-attacked-ukraine.html (stating that invasion began Thursday, Feb. 24, 2022); See also

Russia-Ukraine war, https://www.nytimes.com/news-event/ukraine-russia https://www.nytimes.com/news-event/ukraine-russia (last visited Apr. 26, 2022) (regularly updating the state of the conflict).

[ii] See Ukraine Support Tracker, Kiel Institute for the World Economy, (Apr. 4, 2023) https://www.ifw-kiel.de/topics/war-against-ukraine/ukraine-support-tracker/, (showcasing data of the aid provided to Ukraine from January 2022 to February 2023); C. Todd Lopez, Ukrainians to Get U.S. Tanks by Fall, U.S. Department of Defense, (Mar. 21, 2023) https://www.defense.gov/News/News-Stories/Article/Article/3336826/ukrainians-to-get-us-tanks-by-fall/#:~:text=The%20Defense%20Department%20announced%20in,year%20to%20make%20that%20happen,

[iii] Elon Musk’s Starlink Arrives in Ukraine but What Next?, BBC, (Mar. 1, 2022) https://www.bbc.com/news/technology-60561162 (noting the arrival of Starlink dishes in Ukraine).

[iv] Matt Burgess, A Mysterious Satellite Hack Has Victims Far Beyond Ukraine, Wired, (Mar. 23, 2022) https://www.wired.com/story/viasat-internet-hack-ukraine-russia/ (discussing the effects of the Viasat attack).

[v] Center for Preventative Action, War in Ukraine, Council on Foreign Relations, (Mar. 16, 2023) https://www.cfr.org/global-conflict-tracker/conflict/conflict-ukraine, (discussing the background of conflict between Russia and Ukraine and Crimea).

[vi] Maps: Tracking the Russian Invasion, N.Y. Times, https://www.nytimes.com/interactive/2022/world/europe/ukraine-maps.html (last accessed Apr. 26, 2023) (at the movement of troops throughout Ukraine, noting the Russian military advance included landing in Odessa in the south, crossing the eastern and northeastern boarder reaching both Kyiv and Khrarkiv).

[viii] David E. Sanger & Kate Conger, Russia was Behind Cyberattack in Run-Up to Ukraine War, Investigation Finds, N.Y. Times, (May 10, 2022) https://www.nytimes.com/2022/05/10/us/politics/russia-cyberattack-ukraine-war.html (A cyberattack that took down satellite communications in Ukraine in the hours before the Feb. 24 invasion was the work of the Russian government, the United States and European nations declared on Tuesday”)

[ix] Id.

[x] World’s Most Advanced Broadband Satellite Internet, https://www.starlink.com/technology (last visited Apr. 26, 2023).

[xi] Kinza Yasar, Starlink, TechTarget, https://www.techtarget.com/whatis/definition/Starlink (last visited Apr. 26, 2023).

[xii] Starlink Set up, Starlink, https://www.starlink.com/technology (last visited Apr. 26, 2023).

[xiii] Jason Rainbow, All Future Starlink Satellites Will Have Laser Crosslinks, SpaceNews, (Aug. 26, 2021) https://spacenews.com/all-future-starlink-satellites-will-have-laser-crosslinks/. (discussing the future of Starlink satellites).

[xiv] Starlink Ground Station Locations: An Overview, Starlinkinsider, https://starlinkinsider.com/starlink-gateway-locations/#:~:text=Starlink%2C%20to%20deliver%20internet%20connectivity,satellites%20roaming%20earth’s%20low%20orbit. (last visited Apr. 26, 2023).

[xv] Alexander Freund, Ukraine using Starlink for drone strikes, Deutsche Welle, (Mar. 27, 2022) https://www.dw.com/en/ukraine-is-using-elon-musks-starlink-for-drone-strikes/a-61270528.

[xvi] Geoffrey S. Corn et. al., The Law of Armed Conflict: An Operational Approach, 79, (Rachel E. Barkow et. al eds., 2d ed. 2019) (stating that in reference to the US’s lack of clearly identifying which provisions are CIL) [hereinafter law of Armed Conflict].

[xvii] law of Armed Conflict, 249.

[xviii]  Id.

[xix]Protocol Additional to the Geneva Conventions of August 12, 1949 and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 52, June 8, 1977, 1125 U.N.T.S 3 [hereinafter AP I].

[xx] AP I, art. 53, 54.

[xxi] AP I, art. 52(2).

[xxii] Mike Wall, 1,300 SpaceX Starlink terminals with Ukraine’s military went offline due to funding shortfall: report, Space, (Nov. 8, 2022) https://www.space.com/ukraine-spacex-starlink-terminals-offline-funding-shortfall.

[xxiii] AP I Commentary, ¶ 2020.

[xxiv] AP I Commentary ¶ 2021

[xxv] AP I art. 52(2).

[xxvi] Patrick Howell O’Neill, Russia hacked an American satellite company one hour before the Ukraine invasion, MIT Technology Review, (May 10, 2022) https://www.technologyreview.com/2022/05/10/1051973/russia-hack-viasat-satellite-ukraine-invasion/ (senior Ukraine official said the Viasat hack resulted in a ‘huge loss in communications in the very beginning of war’”).

[xxvii] law of Armed Conflict, at 249 (targeting involves identifying a target or effect desired and determining how best to accomplish taking out a target or causing something).

[xxviii] Joey Roulette, SpaceX curbed Ukraine’s use of Starlink internet for drones – company president, Reuters, (Feb. 9, 2023) https://www.reuters.com/business/aerospace-defense/spacex-curbed-ukraines-use-starlink-internet-drones-company-president-2023-02-09/