Reverse Distinction: A U.S. Violation of the Law of Armed Conflict in Space

Abstract

Reverse Distinction:
A U.S. Violation of the Law of Armed Conflict in Space
By David A. Koplow
ABSTRACT

The “democratization of space” – referring to the vastly increased private sector engagement in satellite functions – has been one of the most conspicuous and successful recent developments in the field, exploiting the dramatically reduced costs of developing, launching and operating spacecraft for applications such as reconnaissance and telecommunications. The U.S. government has vigorously endorsed this opportunity and is determined to rely upon commercial sources to provide essential support even for crucial national security space operations. Sequential declarations of official governmental space policy – adopted through Republican and Democratic administrations – have embraced this “outsourcing,” intertwining military and intelligence community programs and functions into private sector spacecraft. This integration of governmental and commercial space assets promises significant cost savings as well as offering more rapid uptake of new space technologies.

However, this intermingling runs afoul of one of the most central requirements of the traditional law of armed conflict: the principle of distinction (or discrimination), which mandates that in combat, states may lawfully direct their attacks only against military objectives, not against civilians or their property. An important corollary of this principle – referred to in this Article as “reverse distinction” – requires a state to separate its military assets from civilian objects. This precaution is necessary in order to spare civilians and their property from the worst ravages of warfare and also to enable the adversary to carry out its primary obligations under the distinction principle – to aim its attacks only against military targets.

This Article examines the growing, persistent U.S. violation of the principle of reverse distinction. As the U.S. national security space assets and functions become increasingly insinuated into private commercial spacecraft, the separation required by the law of armed conflict is ignored. This U.S. practice is both illegal and unwise, as it threatens to make future conflict in space even more devastating than it would inherently have to be.

Keywords: outer space, law of armed conflict, distinction, discrimination, anti-satellite weapon,