War crimes in space

On 9 July 1962, the United States sent a 1.4 megatonne nuclear warhead into space, perched on the nose of a Thor rocket.

Known as Starfish Prime, it exploded 400km above the Pacific Ocean. Pictures taken at the time show a spectacular skyshow, and there were reports the high-altitude nuclear test set off an electromagnetic pulse that triggered burglar alarms, damaged Hawaii’s electricity grid, and took out at least six satellites.

The fallout from that blast continues today.

Five years later (the Cold War playing its part, as always), the Outer Space Treaty was developed. While the OST bans nuclear weapons in space, it leaves a large grey area for other attacks – attacks like jamming, hacking, and dazzling satellites to cripple communications, including Australia’s.

The Defence Department describes space as “increasingly congested and contested” and says it is now a “warfighting domain”. It has outlined plans to ensure Australia can “counter emerging space threats to Australia’s free use of the space domain and… assure our continued access to space-based intelligence, surveillance, and reconnaissance”.

While the OST bans nuclear weapons in space, it leaves a large grey area for other attacks.

Malcolm Davis is a senior analyst in defence and strategic capability at the Australian Strategic Policy Institute, and their resident space expert.

Davis says governments, particularly the Chinese and Russian governments, intend to keep developing and deploying non-nuclear space weapons because there are no specific legal prohibitions against them.

The main concerns are anti-satellite capabilities that could threaten the global positioning system (GPS). Australia would be left “deaf, dumb and blind” if our position, navigation and timing (PNT) systems were hit, he says. “If we lose our access to critical space systems our ability to fight war collapses very quickly.”

Even the more belligerent states don’t want to blow satellites up, though, because that would create space debris that would spread through orbits and affect everyone’s capabilities. So nations are testing “soft kill” technology – “things that go zap rather than boom, that don’t destroy satellites, just disable them”, Davis says.

Enemy actors could hack into satellites, and just shut them down – or even take control of them. Or weaponise them. Last year, the US Space Force and other departments put on “Hack-a-Sat” – a competition for wannabe hackers to try to get into an actual orbiting satellite. Competitors looked at codes, potential vulnerabilities, and bugs. They did it. The friendly (if competitive) hackers took control of a satellite and made it take a picture of the Moon.

The European Space Agency – among others – is working on anti-jam technology, to stop ill-intentioned actors blocking satellite signals.

Others are tackling “spoofing”, where cyberattackers can disrupt situational awareness technology to feed wrong information to surveillance teams.

And lasers can be used to “dazzle” or “blind” satellites, with Russia reportedly already using the technology.

As well as the OST, there exists a raft of international laws that (should) govern space. And yet, up there, it’s still not clear what constitutes an act of war or a breach of those laws.

Governments intend to keep developing and deploying non-nuclear space weapons because there are no specific legal prohibitions against them.

An international group of researchers based at the University of Adelaide is trying to clarify the way the existing laws should be interpreted. The Woomera Manual on the International Law of Military Space Operations promises to “become the definitive document on military and security law as it applies to space”. Professor Dale Stephens is a leader on the project and the director of the Law School’s Adelaide Research Unit on Military Law and Ethics.

He says it’s not the “wild west” on the space frontier. Other international laws around use of force, armed attack and self-defence apply. But it’s complicated. In space, aggressive actions can be “out of sight, out of mind”, or classified. Countries like China and Russia are testing technology on their own satellites and no one has challenged them.

Some states are now targeting their own satellites to prove capability and, despite that, “no country has ever said you’ve violated Article IX”.

“You can take down your own ship at sea, that’s not new or controversial,” Stephens says.

(Article IX of the OST states: “A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, may request consultation concerning the activity or experiment.” There’s a good explanation of space law here.)

There exists a raft of international laws that (should) govern space. And yet, up there, it’s still not clear what constitutes an act of war or a breach of those laws.

“No one, ever, has said ‘you’ve violated the law’. Until states decide that this is actually unlawful, it’s not. If a state wants to signal a line in the sand, they can, but they’ve chosen not to so far, and that has legal significance,” Stephens says.

“If I intentionally ram my satellite into yours – and that’s easy at 27,000 km/h, then yes, plainly that’s a use of force and probably an armed attack. But in the middle, you’ve got things like cyberattacks, like dazzling…”

The 2020 Defence Strategic Update outlined how about $7 billion for space capabilities over the next decade would be spent on an independent network of satellites, and improved situational awareness.

Australia is working on sophisticated ways to track objects in space – particularly the Space Surveillance Telescope in Western Australia. The SST will track space debris, and will also play an important role in keeping an eye on any space-based threats.

“Until states decide that this is actually unlawful, it’s not.”

The 2020 Force Structure Plan reinforces that, adding that Australia will need “capabilities that directly contribute to war fighting outcomes in the space domain using terrestrial and/or space-based systems”.

Davis says there’ll probably be a push for the United Nations General Assembly to develop a binding resolution on responsible behaviour in space; there are also questions about colonisation, mining for resources, and a general power grab far from home.

There are also questions about colonisation, mining for resources, and a general power grab far from home.

He says Australia’s focus for now is on resilience: “Capabilities that can resist or be quickly replaced,” he says.

“That’s where commercial operations come in. Small satellites and launch vehicles that that can launch those satellites at short notice.

“The next step is defensive space control, understanding what’s happening. Space situational awareness, seeing threats as they emerge and respond, taking action or evading them.”

Stephens points out the easy escalation from self-defence to offence.

“If you start frying my circuits, then I can start frying your circuits,” he says. “Somewhere along the line it’s an armed attack and you have the right to self-defence.”