Miller, Judith

English

Cornell Law Library

Cornell International Law Journal
Volume 35
Issue 3 Winter 2002 Article 10
Comments on the Use of Force in Afghanistan
Judith Miller
Follow this and additional works at: http://scholarship.law.cornell.edu/cilj
Part of the Law Commons
This Article is brought to you for free and open access by Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell
International Law Journal by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact
jmp8@cornell.edu.
Recommended Citation
Miller, Judith (2002) "Comments on the Use of Force in Afghanistan," Cornell International Law Journal: Vol. 35: Iss. 3, Article 10.
Available at: http://scholarship.law.cornell.edu/cilj/vol35/iss3/10
Comments on the Use of Force
in Afghanistan
Judith Millert
Until I listened to Jordan J. Paust's excellent presentation identifying obsta-
cles that international law assertedly presents in the United States' pursuit
of the Taliban (as opposed to al Qae'da), I thought the rationale for the use
of force in Afghanistan was fairly straightforward-especially when com-
pared to the United States and NATO's experience in Kosovo. For instance,
in Kosovo, the United States and NATO did not have the luxury of a United
Nations Security Council ("UNSC") resolution authorizing action or a coa-
lition agreement justifying action as collective self-defense. Instead, NATO
decided to take action as a regional organization-the first military action
it had ever really taken on its own. Moreover, NATO member countries
arrived at their decision to take action in Kosovo in a variety of disparate
ways. 1
Ordinarily, a UNSC resolution, declared under Chapter 7,2 authorizes
countries to take military action. The lack of a specific UNSC resolution
authorizing NATO's use of force in Kosovo-or even a precisely unified
view among NATO members regarding their legal rationale to use force-
made day-to-day decision-making much more complex. Countries had
varying notions on what actions were proper and different rationales
regarding how and when it was appropriate to act.
By contrast, in the post-September 11 th world, there has been a clarity
of purpose with respect to United States action against terrorism, and a
clarity of backing from the international community that is quite different
from the experience the United States had in Kosovo. The UNSC, in addi-
tion to adopting Resolution 1373, 3 which invokes Chapter 7, issued several
other resolutions quite quickly after the events of September 11 th that rec-
ognize the right of individual and collective self-defense. Action in self-
defense is consistent with the UN Charter. 4 Therefore, the United States
did not need additional authorization from the UNSC. Even so, the UNSC
has been quite supportive of the need for action against al Qae'da and
related terrorist organizations. In fact, the overall unity in the international
t Partner, Williams & Connolly, LLP. General Counsel, U.S. Department of
Defense, 1994-1999.
1. See generally David Wippman, NATO's Bombing of Kosovo Under International
Law: Kosovo and the Limits of International Law, 25 FORDHAM INT'L L.J. 129 (2001).
2. Referring to the right of nations to use force to resolve a threat to international
peace. See U.N. CHARTER arts. 39, 42.
3. S.C. Res. 1373, V.N. Scor, 4385th mtg. at 1, U.N. Doc. S/RES/1373 (2001).
4. U.N. CHARTER art. 51; see also S.C. Res 1368, U.N. SCOR,4370th Mtg., U.N. Doc.
S/RES/1368 (2001).
35 CORNELL INT' L.J. 605 (2002)
Cornell International Law Journal
community regarding the legal basis for United States action has been quite
remarkable. However, a variety of criticisms have been made regarding
whether the United States has used force properly, whether the United
States has given adequate consideration to collateral damage, and whether
the United States will correctly handle the enemy-combatant/prisoner-of-
war issue. Nonetheless, the overall international agreement is that the
United States had a proper legal basis for taking self-defensive actions, con-
sistent with the UN Charter, in response to the deliberate attack on
thousands of people in New York and Washington, DC.
NATO also did something for the first time in the aftermath of Septem-
ber 11th. It invoked Article V of the North Atlantic Treaty. 5 Simply put,
Article V states that an attack on one member is an attack on all, NATO
members. Many had assumed that the former Soviet Union would commit
the first of any such attack on NATO in Europe. To the contrary, in the
aftermath of September 11th, NATO invoked Article V for the first. time on
behalf of the United States, essentially saying: "You have been attacked-that
means we have all been attacked." NATO invoked Article V on the pre-
sumption that evidence would prove September 11th was an international
attack.6 Thereafter, the United States presented classified briefings with
respect to al Qae'da and Taliban activities. These briefings led Lord Rob-
ertson7 to announce NATO was satisfied and that the United States had
established a satisfactory underlying factual basis to justify the initial invo-
cation of Article V. Since then, the Organization of American States, Aus-
tralia and New Zealand have all invoked mutual defense agreements
designed for the same purpose as the North.Atlantic Treaty. From a paro-
chial perspective, the United States has been very fortunate in receiving
broad support from the international community. The international law
underpinnings for action in Afghanistan, post September 1 lth are not only
clear, but have been reinforced by our allies' actions.
However, what is becoming increasingly clear is that the usual mecha-
nism for formulating international legal determinations regarding the
proper use of force does not neatly fit today's challenges of failed states
and roving international terrorist organizations. It is well-known that the
United States government employs a fairly robust definition of self-defense.
It is obviously in the United States' interest to take this view. For example,
the United States acted in self-defense against Libya after the Berlin disco
5. North Atlantic Treaty, Apr. 4, 1949, art. 5, 63 Stat. 2241, 2244, 34 U.N.T.S. 243,
246.
6. See generally Jack M. Beard, America's New War on Terror: The Case for Self-
Defense Under International Law, 25 HARV. J.L. & PUB. POL'Y 559, 568-69 (2002).
7. See Statement by NATO Secretary General, Lord Robertson (Oct. 2, 2001). The
Right honorable Lord Robertson of Port Ellen has been the tenth Secretary General of
NATO and Chairman of the North Atlantic Council since October 1999. He was
Defense Secretary of the United Kingdom from 1997 to 1999 and Member of Parliament
for Hamilton and Hamilton South from 1978 to 1999.
Vol. 35
2002 Comments on the Use of Force in Afghanistan
bombing in 1986.8 The United States took action against Libya, not
against Libyan agents in Germany. 9 There have been a number of other
instances where the United States has justified actions under its own view
of proper collective self-defense. That said, even in the horrible aftermath
of September 11th and the accompanying horror shared around the world,
it is not necessarily the case that other nations now embrace the United
States' broad definition of self-defense.
The real problem today is that the whole notion of international law
governs the use of force rests on the assumption that there are state actors
in control of a defined territory. All of the UN Charter rules stem from this
principle. A state's territorial integrity is respected, and unless that state
does something really improper, other states cannot threaten that integrity.
None of the assumptions regarding statehood embedded in the UN Char-
ter, the Geneva Convention on Prisoner of War Status, 10 and in the various
war-related conventions since the early 1900's was present in Taliban-con-
trolled Afghanistan. Even if United States action in Afghanistan is charac-
terized as self-defense, it nonetheless presents very different problems than
those experienced under the East versus West paradigm, when we at least
had nations resembling traditional states and controlling defined territory.
Does that mean that we need to reinvent international law? Reinventing
international law could occur incrementally, perhaps similar to domestic
interpretations of the U.S. Constitution, or more dramatically through
major negotiating efforts aimed at dealing with this new reality.
On the domestic side, it is obvious Congress has not made a Declara-
tion of War, which is a meaningful formality under the U.S. Constitution'1
sometimes lost in the commentary. A lot of the analysis with respect to
military tribunals and actions in Afghanistan assumed Congress did make
such a declaration. Nonetheless, for whatever reason, there is no such dec-
laration. What does exist is a Joint Resolution of Congress 12 authorizing
President Bush to take action in order to deal with the people who were
involved in the attacks of September 11th. It is interesting that Congress
was institutionally careful in its choice of relatively constrained language.
For instance, the Joint Resolution does not authorize pursuit of every ter-
rorist in the world. From the outset, however, President Bush's statements
have suggested a broad attack on terrorism. Congress instead focused on
the use of force and a variety of other activities against people involved in
8. Information on the Berlin disco bombing, see Four Jailed for Berlin Disco Bomb-
ing, BBC News, available at http://news.bbc.co.uk/2/hi/europe/1653575.stm (Nov. 13,
2001).
9. Id.
10. Geneva Convention on the Treatment of Prisoners of War, Aug. 12, 1949, 75
U.N.T.S. 135.
11. U.S. CONST. art. 1, § 8, cl. 11 (stating: "The Congress shall have Power ... To
declare War .... ").
12. Full text of Resolution reprinted online. See Congress Authorizes President to Use
All Necessary Force, U.S. Department of State, available at http://usinfo.state.gov/topi-
cal/pol/terror/01091706.htm (Sep. 15, 2001) (authorizing "the use of United States
armed force against those responsible for the recent attacks launched against the United
States.").
Cornell International Law Journal
the September 11th attack. Congress has not specifically authorized addi-
tional use of force in places like Iran, or North Korea.13
One of the other amazing developments-post September 11th and
reflected in Resolution 1373-is that the UNSC has been much more for-
ward-leaning than ever before in creating additional obligations for mem-
ber states to take action against terrorism. Resolution 1373 makes clear
that the world cannot deal with terrorism simply through the use of force
in Afghanistan. The UNSC has put in place a whole variety of additional
concerns and obligations on signatory states. Topics include: sharing
intelligence about terrorism, closing borders, considering refugee status of
terrorists, requiring stricter compliance with extradition requests, as well
as a multitude of issues and duties concerning the financing of terrorism.
This is a dramatic shift. It is a strong affirmation that there are many other
means by which nations may take action, instead of simply relying on the
United States or others to use military force.
Specifics relating to the use of force in this new environment are still
relevant. In the operational law arena, the Department of Defense must ask
whether a specific proposal for the use of military force is consistent with
requirements of international law governing armed conflict. If not, the
United States risks at a minimum a lot of conflict in and consternation
from the international community. This will translate into a loss of politi-
cal capital and good will. Putting the political price aside, the U.S. Depart-
ment of Defense has an armed conflict directive that military services will
follow even in instances where the law of armed conflict technically does
not apply. 14 The Department of Defense directive requires everyone wear-
ing a uniform receive training in the Law of Armed. Conflict, appropriate to
their level of responsibility. This training requires that military personnel
report violations of the law of armed conflict. 15 Moreover, it requires legal
advice to be given at every level at which force is used and authorized. 16
This legal advice focuses on whether the military force is lawful and
whether it is militarily necessary. Will the military force cause unneces-
sary suffering? Is there a proper military objective? After reviewing these
considerations, a proportionality analysis is required that balances poten-
tial suffering against the potential military advantage to be realized.
When considering the use of force, it is important to recognize that
there are numerous limits on how that force should be deployed, or at least
how the United States deploys force. For example, consider reports about a
CIA unmanned aerial vehicle ("UAV") that has allegedly been used for sur-
veillance and combat, armed with a Hellfire anti-tank missile. There have
been recent reports that one missile attack from a UAV hit people who were
13. Since the preparation of this commentary in early 2002, the Congress has of
course adopted a Joint Resolution authorizing the use of military force against Iraq.
Authorization for Usf of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-
243, 116 Stat. 1498 (HJ. Res 1141, 107th Cong.) (2002).
14. See Directive, Department of Defense, No. 5100.77 (Dec. 9, 1998).
15. Id. at § 4.3.
16. Id. at § 5.3.3.
Vol. 35
2002 Comments on the Use of Force in Afghanistan
not an intended target. 17 This raises a series of questions. Did the CIA
control this UAV, or as the law of armed conflict requires, did the Air Force
control it?' 8 The whole notion of having an UAV take hostile action
requires human eyes and judgment assessing the target. There must be
some human being, even if he is geographically removed from the target,
who obtains information in real-time and decides whether or not the target
is legitimate.
The fairly rapid shift to reliance on Afghan Northern Alliance and Spe-
cial Ops forces to serve as the human eyes responsible for assessing targets
is a striking development in this war in Afghanistan. In Kosovo and Bos-
nia, many of the targets were fixed. Fixed targets offer a great advantage.
They do not move. Operatives still can make mistakes in characterizing
targets, as the United States sadly did when it mistakenly hit the Chinese
Embassy in Belgrade. However, the United States and it's coalition part-
ners can ordinarily get extensive information about fixed targets. The.
Department of Defense can use modern techniques to figure out how and
where to hit a legitimate fixed target (i.e., what bombs to use, how many to
use, what aim points, etc.). The Department of Defense can evaluate
whether to go after the target with hard or soft means. The Department of
Defense can also predict the likely outcome of the attack, allowing for
assessments of collateral damage. Thus, once the decision is made to use
force, and it is legally justified under international and domestic law, there
are many day-to-day, very practical but sophisticated decisions made
regarding the appropriateness of a given target, and assessments made
regarding what information is still required to attack a particular target.
Interestingly, in Afghanistan, this fixed target expertise, and the knowledge
developed in the last fifteen years about how to deal with and analyze fixed
targets, was not really a factor because there were hardly any identifiable
Afghan fixed targets worth anything in regards to accomplishing military
objectives. Therefore, the United States had to face the much harder task of
being able to identify and hit moving targets. Moving targets are a harder
assignment unless you have people on the ground whose judgment you
trust.
To date, United States reliance on the Northern Alliance and Special
Ops has produced some good results. However, judgments about using
force directly in the hands of people on the ground, instead of in the hands
of headquarters staffs. It is essential that those individuals receive training
so they can make the proper assessments, as the Department of Defense's
directive requires.
Finally, simply because the use of military force may be technically
legal does not necessarily mean it is the right thing to do. There is always
an interplay between the law and policy. How will other countries, who
are supporting United States efforts to use force proportionately and prop-
17. See CIA Tried to Kill Afghan Warlord, BBC News, available at http://
news.bbc.co.uk/2/hi/world/south asia/1978619.stm (May 10, 2002).
18. See id. (implying that the CIA was responsible for the attack):
610 Cornell International Law Journal Vol. 35
erly, perceive a given decision to use force? So far the United States has
been very fortunate in having a coalition-even if it is a loose coalition-
that believes the U.S. has been using force mostly appropriately, and con-
tinues to give the United States basing rights, overflight rights and intelli-
gence. These are all types of assistance, no matter how powerful needs in
order to effectively use force in the world today.


Comments on the Use of Force in Afghanistan

bepress Legal Repository

NELLCO Consortium Legal Scholarship Repository

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Cornell International Law JournalVolume 35Issue 3 Winter 2002 Article 10Comments on the Use of Force in AfghanistanJudith MillerFollow this and additional works at: http://scholarship.law.cornell.edu/ciljPart of the Law CommonsThis Article is brought to you for free and open access by Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in CornellInternational Law Journal by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contactjmp8@cornell.edu.Recommended CitationMiller, Judith (2002) "Comments on the Use of Force in Afghanistan," Cornell International Law Journal: Vol. 35: Iss. 3, Article 10.Available at: http://scholarship.law.cornell.edu/cilj/vol35/iss3/10Comments on the Use of Forcein AfghanistanJudith MillertUntil I listened to Jordan J. Paust's excellent presentation identifying obsta-cles that international law assertedly presents in the United States' pursuitof the Taliban (as opposed to al Qae'da), I thought the rationale for the useof force in Afghanistan was fairly straightforward-especially when com-pared to the United States and NATO's experience in Kosovo. For instance,in Kosovo, the United States and NATO did not have the luxury of a UnitedNations Security Council ("UNSC") resolution authorizing action or a coa-lition agreement justifying action as collective self-defense. Instead, NATOdecided to take action as a regional organization-the first military actionit had ever really taken on its own. Moreover, NATO member countriesarrived at their decision to take action in Kosovo in a variety of disparateways. 1Ordinarily, a UNSC resolution, declared under Chapter 7,2 authorizescountries to take military action. The lack of a specific UNSC resolutionauthorizing NATO's use of force in Kosovo-or even a precisely unifiedview among NATO members regarding their legal rationale to use force-made day-to-day decision-making much more complex. Countries hadvarying notions on what actions were proper and different rationalesregarding how and when it was appropriate to act.By contrast, in the post-September 11 th world, there has been a clarityof purpose with respect to United States action against terrorism, and aclarity of backing from the international community that is quite differentfrom the experience the United States had in Kosovo. The UNSC, in addi-tion to adopting Resolution 1373, 3 which invokes Chapter 7, issued severalother resolutions quite quickly after the events of September 11 th that rec-ognize the right of individual and collective self-defense. Action in self-defense is consistent with the UN Charter. 4 Therefore, the United Statesdid not need additional authorization from the UNSC. Even so, the UNSChas been quite supportive of the need for action against al Qae'da andrelated terrorist organizations. In fact, the overall unity in the internationalt Partner, Williams & Connolly, LLP. General Counsel, U.S. Department ofDefense, 1994-1999.1. See generally David Wippman, NATO's Bombing of Kosovo Under InternationalLaw: Kosovo and the Limits of International Law, 25 FORDHAM INT'L L.J. 129 (2001).2. Referring to the right of nations to use force to resolve a threat to internationalpeace. See U.N. CHARTER arts. 39, 42.3. S.C. Res. 1373, V.N. Scor, 4385th mtg. at 1, U.N. Doc. S/RES/1373 (2001).4. U.N. CHARTER art. 51; see also S.C. Res 1368, U.N. SCOR,4370th Mtg., U.N. Doc.S/RES/1368 (2001).35 CORNELL INT' L.J. 605 (2002)Cornell International Law Journalcommunity regarding the legal basis for United States action has been quiteremarkable. However, a variety of criticisms have been made regardingwhether the United States has used force properly, whether the UnitedStates has given adequate consideration to collateral damage, and whetherthe United States will correctly handle the enemy-combatant/prisoner-of-war issue. Nonetheless, the overall international agreement is that theUnited States had a proper legal basis for taking self-defensive actions, con-sistent with the UN Charter, in response to the deliberate attack onthousands of people in New York and Washington, DC.NATO also did something for the first time in the aftermath of Septem-ber 11th. It invoked Article V of the North Atlantic Treaty. 5 Simply put,Article V states that an attack on one member is an attack on all, NATOmembers. Many had assumed that the former Soviet Union would committhe first of any such attack on NATO in Europe. To the contrary, in theaftermath of September 11th, NATO invoked Article V for the first. time onbehalf of the United States, essentially saying: "You have been attacked-thatmeans we have all been attacked." NATO invoked Article V on the pre-sumption that evidence would prove September 11th was an internationalattack.6 Thereafter, the United States presented classified briefings withrespect to al Qae'da and Taliban activities. These briefings led Lord Rob-ertson7 to announce NATO was satisfied and that the United States hadestablished a satisfactory underlying factual basis to justify the initial invo-cation of Article V. Since then, the Organization of American States, Aus-tralia and New Zealand have all invoked mutual defense agreementsdesigned for the same purpose as the North.Atlantic Treaty. From a paro-chial perspective, the United States has been very fortunate in receivingbroad support from the international community. The international lawunderpinnings for action in Afghanistan, post September 1 lth are not onlyclear, but have been reinforced by our allies' actions.However, what is becoming increasingly clear is that the usual mecha-nism for formulating international legal determinations regarding theproper use of force does not neatly fit today's challenges of failed statesand roving international terrorist organizations. It is well-known that theUnited States government employs a fairly robust definition of self-defense.It is obviously in the United States' interest to take this view. For example,the United States acted in self-defense against Libya after the Berlin disco5. North Atlantic Treaty, Apr. 4, 1949, art. 5, 63 Stat. 2241, 2244, 34 U.N.T.S. 243,246.6. See generally Jack M. Beard, America's New War on Terror: The Case for Self-Defense Under International Law, 25 HARV. J.L. & PUB. POL'Y 559, 568-69 (2002).7. See Statement by NATO Secretary General, Lord Robertson (Oct. 2, 2001). TheRight honorable Lord Robertson of Port Ellen has been the tenth Secretary General ofNATO and Chairman of the North Atlantic Council since October 1999. He wasDefense Secretary of the United Kingdom from 1997 to 1999 and Member of Parliamentfor Hamilton and Hamilton South from 1978 to 1999.Vol. 352002 Comments on the Use of Force in Afghanistanbombing in 1986.8 The United States took action against Libya, notagainst Libyan agents in Germany. 9 There have been a number of otherinstances where the United States has justified actions under its own viewof proper collective self-defense. That said, even in the horrible aftermathof September 11th and the accompanying horror shared around the world,it is not necessarily the case that other nations now embrace the UnitedStates' broad definition of self-defense.The real problem today is that the whole notion of international lawgoverns the use of force rests on the assumption that there are state actorsin control of a defined territory. All of the UN Charter rules stem from thisprinciple. A state's territorial integrity is respected, and unless that statedoes something really improper, other states cannot threaten that integrity.None of the assumptions regarding statehood embedded in the UN Char-ter, the Geneva Convention on Prisoner of War Status, 10 and in the variouswar-related conventions since the early 1900's was present in Taliban-con-trolled Afghanistan. Even if United States action in Afghanistan is charac-terized as self-defense, it nonetheless presents very different problems thanthose experienced under the East versus West paradigm, when we at leasthad nations resembling traditional states and controlling defined territory.Does that mean that we need to reinvent international law? Reinventinginternational law could occur incrementally, perhaps similar to domesticinterpretations of the U.S. Constitution, or more dramatically throughmajor negotiating efforts aimed at dealing with this new reality.On the domestic side, it is obvious Congress has not made a Declara-tion of War, which is a meaningful formality under the U.S. Constitution'1sometimes lost in the commentary. A lot of the analysis with respect tomilitary tribunals and actions in Afghanistan assumed Congress did makesuch a declaration. Nonetheless, for whatever reason, there is no such dec-laration. What does exist is a Joint Resolution of Congress 12 authorizingPresident Bush to take action in order to deal with the people who wereinvolved in the attacks of September 11th. It is interesting that Congresswas institutionally careful in its choice of relatively constrained language.For instance, the Joint Resolution does not authorize pursuit of every ter-rorist in the world. From the outset, however, President Bush's statementshave suggested a broad attack on terrorism. Congress instead focused onthe use of force and a variety of other activities against people involved in8. Information on the Berlin disco bombing, see Four Jailed for Berlin Disco Bomb-ing, BBC News, available at http://news.bbc.co.uk/2/hi/europe/1653575.stm (Nov. 13,2001).9. Id.10. Geneva Convention on the Treatment of Prisoners of War, Aug. 12, 1949, 75U.N.T.S. 135.11. U.S. CONST. art. 1, § 8, cl. 11 (stating: "The Congress shall have Power ... Todeclare War .... ").12. Full text of Resolution reprinted online. See Congress Authorizes President to UseAll Necessary Force, U.S. Department of State, available at http://usinfo.state.gov/topi-cal/pol/terror/01091706.htm (Sep. 15, 2001) (authorizing "the use of United Statesarmed force against those responsible for the recent attacks launched against the UnitedStates.").Cornell International Law Journalthe September 11th attack. Congress has not specifically authorized addi-tional use of force in places like Iran, or North Korea.13One of the other amazing developments-post September 11th andreflected in Resolution 1373-is that the UNSC has been much more for-ward-leaning than ever before in creating additional obligations for mem-ber states to take action against terrorism. Resolution 1373 makes clearthat the world cannot deal with terrorism simply through the use of forcein Afghanistan. The UNSC has put in place a whole variety of additionalconcerns and obligations on signatory states. Topics include: sharingintelligence about terrorism, closing borders, considering refugee status ofterrorists, requiring stricter compliance with extradition requests, as wellas a multitude of issues and duties concerning the financing of terrorism.This is a dramatic shift. It is a strong affirmation that there are many othermeans by which nations may take action, instead of simply relying on theUnited States or others to use military force.Specifics relating to the use of force in this new environment are stillrelevant. In the operational law arena, the Department of Defense must askwhether a specific proposal for the use of military force is consistent withrequirements of international law governing armed conflict. If not, theUnited States risks at a minimum a lot of conflict in and consternationfrom the international community. This will translate into a loss of politi-cal capital and good will. Putting the political price aside, the U.S. Depart-ment of Defense has an armed conflict directive that military services willfollow even in instances where the law of armed conflict technically doesnot apply. 14 The Department of Defense directive requires everyone wear-ing a uniform receive training in the Law of Armed. Conflict, appropriate totheir level of responsibility. This training requires that military personnelreport violations of the law of armed conflict. 15 Moreover, it requires legaladvice to be given at every level at which force is used and authorized. 16This legal advice focuses on whether the military force is lawful andwhether it is militarily necessary. Will the military force cause unneces-sary suffering? Is there a proper military objective? After reviewing theseconsiderations, a proportionality analysis is required that balances poten-tial suffering against the potential military advantage to be realized.When considering the use of force, it is important to recognize thatthere are numerous limits on how that force should be deployed, or at leasthow the United States deploys force. For example, consider reports about aCIA unmanned aerial vehicle ("UAV") that has allegedly been used for sur-veillance and combat, armed with a Hellfire anti-tank missile. There havebeen recent reports that one missile attack from a UAV hit people who were13. Since the preparation of this commentary in early 2002, the Congress has ofcourse adopted a Joint Resolution authorizing the use of military force against Iraq.Authorization for Usf of Military Force Against Iraq Resolution of 2002, Pub. L. No. 107-243, 116 Stat. 1498 (HJ. Res 1141, 107th Cong.) (2002).14. See Directive, Department of Defense, No. 5100.77 (Dec. 9, 1998).15. Id. at § 4.3.16. Id. at § 5.3.3.Vol. 352002 Comments on the Use of Force in Afghanistannot an intended target. 17 This raises a series of questions. Did the CIAcontrol this UAV, or as the law of armed conflict requires, did the Air Forcecontrol it?' 8 The whole notion of having an UAV take hostile actionrequires human eyes and judgment assessing the target. There must besome human being, even if he is geographically removed from the target,who obtains information in real-time and decides whether or not the targetis legitimate.The fairly rapid shift to reliance on Afghan Northern Alliance and Spe-cial Ops forces to serve as the human eyes responsible for assessing targetsis a striking development in this war in Afghanistan. In Kosovo and Bos-nia, many of the targets were fixed. Fixed targets offer a great advantage.They do not move. Operatives still can make mistakes in characterizingtargets, as the United States sadly did when it mistakenly hit the ChineseEmbassy in Belgrade. However, the United States and it's coalition part-ners can ordinarily get extensive information about fixed targets. The.Department of Defense can use modern techniques to figure out how andwhere to hit a legitimate fixed target (i.e., what bombs to use, how many touse, what aim points, etc.). The Department of Defense can evaluatewhether to go after the target with hard or soft means. The Department ofDefense can also predict the likely outcome of the attack, allowing forassessments of collateral damage. Thus, once the decision is made to useforce, and it is legally justified under international and domestic law, thereare many day-to-day, very practical but sophisticated decisions maderegarding the appropriateness of a given target, and assessments maderegarding what information is still required to attack a particular target.Interestingly, in Afghanistan, this fixed target expertise, and the knowledgedeveloped in the last fifteen years about how to deal with and analyze fixedtargets, was not really a factor because there were hardly any identifiableAfghan fixed targets worth anything in regards to accomplishing militaryobjectives. Therefore, the United States had to face the much harder task ofbeing able to identify and hit moving targets. Moving targets are a harderassignment unless you have people on the ground whose judgment youtrust.To date, United States reliance on the Northern Alliance and SpecialOps has produced some good results. However, judgments about usingforce directly in the hands of people on the ground, instead of in the handsof headquarters staffs. It is essential that those individuals receive trainingso they can make the proper assessments, as the Department of Defense'sdirective requires.Finally, simply because the use of military force may be technicallylegal does not necessarily mean it is the right thing to do. There is alwaysan interplay between the law and policy. How will other countries, whoare supporting United States efforts to use force proportionately and prop-17. See CIA Tried to Kill Afghan Warlord, BBC News, available at http://news.bbc.co.uk/2/hi/world/south asia/1978619.stm (May 10, 2002).18. See id. (implying that the CIA was responsible for the attack):610 Cornell International Law Journal Vol. 35erly, perceive a given decision to use force? So far the United States hasbeen very fortunate in having a coalition-even if it is a loose coalition-that believes the U.S. has been using force mostly appropriately, and con-tinues to give the United States basing rights, overflight rights and intelli-gence. These are all types of assistance, no matter how powerful needs inorder to effectively use force in the world today.

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