A Doubtful Contribution. Review of Anthony Carty: “The Iraq Invasion as a Recent United Kingdom ‘Contribution’ to International Law”
Literature Review 2014 8 Pages
table of contents
- Content outline
- Background synopsis
- The doubtful contribution to International Law
- Invasion of sovereign state: precedent for pre-emptive attack
- UN Charter prohibition of the use of force: UN authority?
- Regime change stated as objective of war
- Influence of advisors on political decision-making
- Example: Robert Cooper
- Non-application of UN language to failed states
- IL obsolete altogether?
- Author’s comments
A doubtful contribution
In „The Iraq Invasion as a Recent United Kingdom ‘Contribution to International Law’”, published in the European Journal of International Law Vol. 16 no. 1 in 2005, Anthony Carty argues that the United Kingdom (hereafter UK), through its participation in the Iraq invasion and war of 2003 has set a precedent for pre-emptive attacks in international law (hereafter referred to as IL). The legal scholar and professor at Hong Kong University and Aberdeen University questions the legality of the use of force by the UK and United States of America (hereafter US) and legitimacy of the regime change that followed. Carty also discusses the influence of advisors on high-level political decision-making, as in the case of Robert Cooper affecting Tony Blair.
This abstract gives an overview of the article’s main ideas and historical and political context such as how Britain (together with its allies) framed Saddam Hussein as a threat to international peace in order to build up support for its intervention. It focusses thereafter on linking the events of 2003 to a new notion of and dramatic changes within IL and the question of what actions of foreign policy are internationally (generally) acceptable as a result of the Iraq invasion.
In the mornings of March 20, 2003, the US led the so-called ‘coalition of the willing’ (US, UK, Australia, Poland and Peshmerga [armed Kurdish fighters]) into Iraq in a military operation entitled ‘Operation Iraqi Liberation’ (later changed to ‘Operation Iraqi Freedom’). There had neither been an official declaration of war nor (unanimous) consent about the way the US and UK justified and sought to legitimize their going to war. 
The doubtful ‘contribution’ to IL
In three propositions, Carty brings forward the UK’s questionable contribution to the development of IL.
Firstly, by invading a sovereign state, which had not directly threatened the invading force, the UK set a precedent for pre-emptive attacks in IL. What legally justified the invasion, in the eyes of the UK, was that the Iraqi regime under Saddam Hussein posed a serious threat as it might use or pass on weapons of mass destruction (hereafter referred to as WMD) to terrorist groups in Iraq and neighboring states. To be exact, Iraq’s “non-compliance” with paragraph 3 and 4 of the United Nations Security Council (hereafter: UN-SC) resolution 1441 was cited. The responsibility to protect the people of Iraq from the Saddam regime was also mentioned, although to a far lesser extent.
Secondly, Carty argues (rightly so) that, by ignoring the UN Charter’s prohibition of the use of force in article 2(4), the UK rejected the authority of the UN-SC and IL altogether.
Thirdly, the Iraq invasion of 2003 was the first time that invading forces had openly and publicly stated regime change as a legally permissible objective. It was US Army General Tommy Franks who stated that the objective was “[…] to end the regime of Saddam Hussein”.
Influence of advisors on political decision-making
Carty develops the argument that the influence of political counselors, who have direct access to senior policy officials, is not to be underestimated in analyzing the reasons for and effects of political decision-making. He presents the example of British strategist Robert Cooper, one of then-UK Prime Minister Tony Blair’s closest advisors on the Iraq war. In his well-known text “The Breaking of Nations” (2003), Cooper formulates a general principle which is incompatible with IL as laid out in the UN Charter. In his three categories into which he divides the international society (pre-modern, modern and post-modern states), Cooper places the UN in the modern sphere. He classifies, in his work “The Post-Modern State and the World Order” (2000) the so-called failed states as pre-modern. He agrees with Max Weber in referring to f ailed states as nations in which the state no longer has the legitimate monopoly on the use of force. Cooper continues by addressing the incompatibility between his three state categories. The language of the UN, he argues, does not apply to failed states in the pre-modern category. For the UK government, this served as the basis of their interpretation of the non-application of the ‘UN sphere’ and its regulations, constituting another facet of the justification for going to war.
Carty goes on to discuss how Cooper believes that IL is obsolete in a world in which force is the ultimate guarantor of security, most notably in a world of nuclear anarchy, in which self-defense will be too late, thus taking a stance for pre-emptive strikes. Furthermore, Cooper argues that it would be irresponsible to let even one further country acquire nuclear (or other WMD) capabilities. Arguably, both of these notions played into the UK’s decision to join the US in invading Iraq.
After this outline of Carty’s main opinions on the Iraq invasion in terms of IL, I shall now expand his thinking by elaborating on some of my own thoughts.
 Eriksroed, Alexander, “A doubtful contribution”. Review of Anthony Carty’s “The Iraq Invasion as a recent United Kingdom Contribution to International Law”. The European Journal of International Law 16 no. 1 (2005): 143-151.
 El-Shibiny, Mohamed, “Iraq: A Lost War” (2010).
 Sharma, S.R., “US-Iraq War: an Erosion of UN Authority“ (2003), 152-174.
 Dixon, Martin, „Textbook on International Law“ (2013), 142-171.
 Sharma, 47-56.
 “Council on Foreign Relations: IRAQ: Justifying the War”: http://www.cfr.org/iraq/iraq-justifying-war/p7689#p0 (Accessed on October 6, 2014)
 “New York Times Learning Network: Missions Accomplished?”: http://learning.blogs.nytimes.com/2003/04/11/missions-accomplished/?_php=true&_type=blogs&_r=0 (Accessed on October 5, 2014)
 Cooper, Robert, “The Post-Modern State and the World Order” (2000), 15.