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The British Resort to Force in the Falklands/Malvinas Conflict 1982: International Law andJust War TheoryAuthor(s): Christoph BluthSource: Journal of Peace Research, Vol. 24, No. 1 (Mar., 1987), pp. 5-20Published by: Sage Publications, Ltd.Stable URL: http://www.jstor.org/stable/424142
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8/11/2019 The British Resort to Force in the Falklands-Malvinas Conflict 1982
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ISSN
0022-3433 ournalof
Peace
Research,
vol.
24,
no.
1,
1987
The
British
Resort to Force in
the
Falklands/
Malvinas Conflict
1982:
InternationalLaw
and
Just
War Theory
CHRISTOPHBLUTH
Department
of War
Studies,
King's
College,
London
During
the
Falklands/Malvinas
onflictof
1982,
both Britainand
Argentina
defendedtheir
resort to
military
action on the basis
of some
sortof Just
War
principles.
This
article
analyses
he
justifications
given
for the Britishresortto force.
A
summary
f the
history
of
the
dispute
and the
legal arguments
with
regard
o
sovereignty
over
the Falkland slands
provides
he
context
for this
analysis.
t is found
that both
Britainand
Argentina
have
a
strong,
but not
conclusive ase.
The
rigorous pplication
f Just
War
criteria
howsthat the Britishresort
o
force fails
to
satisfy
each
one.
In
particular,
t is
shown hat
British
objectives
went
beyond possible ust
causesdue to
Argentineaggression.
t is also
argued
hat
the
British
claim
to
have acted
in
the
enforcementof internationalaw is not tenable. An
analysis
of
how the decision
to
send
the Task
Force
to the South Atlantic
was
made,
involving
he
Government,
the
Royal Navy
and
Parliament,
eveals
variousextraneous actorsand
pressures.
t
is
argued
hat the
threat to the Government's
urvivalas a resultof the
Argentine
nvasionwas the main
determining
factor
n the conductof
the conflict.
The crucial
urning-point
asthe week-end
of
the 1-2
May
when
the chances
for
a
negotiated
solution diminished
fter the
sinking
of
the
General
Belgrano.
Britain's
military
action also fails to
satisfy
the
principle
of
proportionality.
he main conclusions f this
study
are that Britain'sresortto force did not
satisfy
Just War
criteria,
hat a
negotiated
olutionmore
just
than
the resort
o force
may
have
been
possible,
and
that
the Falklands
onflicthas not
been
successfully
resolveddespite
Britain's
military
achievements.
1. Introduction
Why
do nations
go
to war? In the
age
of
nuclear
weapons
and
high-technology
warfare,
he moral
questions
underlying
he
relationships
between nations
and in
par-
ticular he use
of force aremore
urgent
han
ever.
In
Argentina
and
Britain,
abstract
moral
arguments
bout
deterrence
were sud-
denly
transformed nto the
stark
reality
of
two nations
engaging
in
military conflict,
even
though
it took
place
some distance
away
from the civilian
populations
of both
countries.
There are
essentially
two different
per-
spectives
on the
morality
of
warfare
nowadays:1
Pacifismand Just
War
Theory.
Both
in
Argentina
and in Britain
govern-
mentsdefended
their actionson the
basis of
Just
War
principles
of some kind2
and their
resort
to
force as
morally right
and even
imperative.Here,
I would like
to
examine
the issue
of the
Falklands/Malvinas
onflict
from
he
standpoint
of
international
aw,
and
the
British
ustifications
or
engaging
n
mili-
taryconflict rom theperspectiveof JustWar
criteria.
2.
The
FalklandsI/Maluinas
Dispute
in
International Law
A
legal
title to exercise
sovereignty
over a
given
territory
an
be
acquired
n a number
of
ways:
(1)
The
occupation
of
terra nullius
(pre-
viously
unsettled
land)
(2)
Accretion,
whereby
he
geography
of
an
area is altered
by
the forces
of
nature
(3)
Cession,
whereby
title
is
transferred
fromone state to
another
by treaty
(4)
Prescription,
whereby
erritoryormerly
under he controlof anotherstate ispos-
sessed and
controlled
by
a
state with
the
acquiescence
of the other state that
previously
had title to it
(Myhre
1983,
p.
25;
Glover
1982,
p. 191).
Informer
imes,3
discovery
was also
recog-
nizedas one
of the roots of a territorial
itle.
There
are
two reasons
why
the
question
of
who discovered the
Falkland Islands does
not
affect
the issue
of
sovereignty.
The first
is that it
is not
actually
known
with certainty who first discovered the
islands4and hence we cannot resolve the
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6
Christoph
Bluth
issue
on
the basis
of
discovery.
The second
is
that even
Vattel,
who in his
18th
century
treatise
Droit des Gens
was the first to con-
sider discovery as a source of title, stated
clearly:
.
. .
navigators going
on
voyages
of discoveries fur-
nished with a commission
from their
sovereign
and
meeting
with islands or other
lands in a desert state
have taken
possession
of them in the name of the
nation;
and this title
has been
usually respected,
provided
it was soon after followed
by
a real
posses-
sion
(Vattel
1758,
quoted
from
Goebel
1982,
p. 263).
Certainly
the
position
in
international
law
today
is that
...
an abstract title without effective
possession
cannot
prevail
over a constant and effective mani-
festation
of
authority (Blum
1965,
p.
200).
The
International Commission
of
Jurists
applies
this
principle
to the case of the Fal-
klands
in the
following way:
Considering
that MacBride's settlement
was sep-
arated
by
200 years from Davis' sighting and by
100
years
from Strong's landing on the islands, it
cannot
be
said that real possession was effected by the
British
'soon' after discovery (ICJ 1982, p. 28).
So
even
if the
British claims regarding
disco-
very
were
accepted,
this does not
contribute
to
their
claims
regarding sovereignty.
The
same
applies
to the Spanish claims of
discovery.5
The
implication
of this argument
is that
the
first
state
to actually exercise
sovereignty
over
the
Falklands
in fact thereby
acquired
a
legal
title,
because until then the islands
were
terra
nullius. There is no dispute
about
the fact that the first to settle on the islands
were
French,
who arrived on the islands
on
31
January
1764
and carried out a
formal
ceremony
of
possession
on 5 April 1764.
This
was
Bougainville's
settlement at Port Louis.
Thus
the
French
were the first to exercise
sovereignty
over
the islands and hence in
a
position
to
claim
to legally hold the
title.
However,
the
Spanish protested against
the
colonization
of
what they considered to
be
their
territory
by
right.6 The ensuing
nego-
tiations
led
to
France
ceding the title to Spain
for a compensation of a sum nowadays about
equivalent
to
?25,000,
and Spain took
over
the French
settlement.
Thus at that
moment
Spain began
to
be the
legitimate holder of
the title.7
The issue is complicated, however, by the
fact that on
12
January
1765,
one
year
after
the
French settlers
arrived,
Captain
John
Byron
claimed the
islands in the
name of
George
III and established a
settlement on
Saunders
Island named
Port
Egmont.
Since
the islands were
terra nullius
before the
French settled at Port
Louis and
claimed
sovereignty
over
them,
the British
settlement
must
be considered
to
have
been
illegal.
It is
true that
the French
case is
slightly
weakened
by
their
inability
to
exercise
effec-
tive control over all the islands, but even so
their case
is
a
great
deal
stronger
than
any
British
claim could
possibly
be,
and
the
French
claim
was ceded to
the
Spanish.
In 1770
the
Spanish
finally
enforced their
claim to sovereignty
over the islands by evict-
ing the British from Port Egmont. This
action brought the two nations to the brink
of war and Spain eventually
relented.
On 22 January 1771 two declarations
were
signed
by
representatives
of the kings of
Spain and Great
Britain. The main points
of the Spanish declaration were: 1) Spain
disavowed the attack on the Port
Egmont
settlement; 2) Spain agreed to restore
the
settlement to Britain, and 3) Spain did
not
accept
that its rights with respect to sov-
ereignty over
the Malvinas Islands were
affected in any way by the declaration.
It is important to note that the declaration
restricted restoration to Port Egmont
only.
Jeffrey D. Myhre interprets the legal
impli-
cations in
the
following way:
The contents of those agreements are quite
legally
binding. By those declarations,
Spain did return Port
Egmont to Britain,
but its reservation regarding
sovereignty meant that with Port Egmont it
was
returning British sovereignty
presuming that it was
ever under British sovereignty. The port
would
be a British base
in Spanish territory. The British
declaration
did not dispute the Spanish reservation
and must be interpreted as recognition of
Spanish
sovereignty over the islands (Myhre 1983, p.
32).
According to a secret agreement, it
is
alleged, this was
just a face-saving exercise
for the British, who would soon abandon the
settlement, claiming economic reasons.
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BritishResort
o Force n
the FalklandsConflict
7
Whether
or
not
such
a
secret
agreement
ever
existed,
in 1774 the Port
Egmont
settle-
ment
was abandoned
for economic
reasons,
and a plaque was left behind claiming British
sovereignty.
However,
for
the next
fifty-five years,
Brit-
ain did
nothing
to claim or enforce this sov-
ereignty,
whereas
Spain actually
exercised
sovereignty
over the
territory
until
1810.
Whatever
happened
before,
it is therefore
beyond
doubt that
any
rights
Britain
might
have had
lapsed
and the
Spanish
had the title
in
1810,
when
they
left the
islands. In
1816,
the United
Provinces Government
in
Buenos
Aires declared
sovereignty
over the
islands,
in 1820 it formally took possession, and Ver-
net
established
his
colony
in
1828.
In
1833
the
Argentine
governor
was
forced
to leave
the
islands and
the British established their
sovereignty
which
they
have exercised from
then
on without
interruption
until
2
April
1982.
Argentina
claims that
it
succeeded
to
Spanish
rights
according to
the principle
of
utipossidetis.
The principle
means that Latin
American states
succeed to Spanish
ter-
ritorial boundaries after Spanish departure
from
their colonies.
There
are generally
great
difficulties
with the application
of this
principle
because the internal
boundaries
of
the Spanish
empire
were often
ill-defined,
but
in this case
there
is no doubt.
The Mal-
vinas were administered
by
a governor
who
reported
to Buenos Aires.
It has been stated by
critics of the Argen-
tine claims that uti
possidetis
was only a
regional
principle to
allow conflicting
claims
among
Latin American
states to
be settled.
This is not true.
It
is a
fundamental principle
of decolonization
that the territorial
integrity
of the former colonies should
remain
intact,
which
was
extensively practised
in Africa
and
agreed
to
by
some
fifty states
of the
Organisation
of African
Unity (Myhre
1983,
p. 33).
When
the
Spanish governor
left
in
1810,
this
could be
interpreted
as a manifestation
of intent
to
leave
the islands.
If this is
the
case,
then the
islands became terra
nullius,
and Buenos Aires acquired the title by occu-
pation;8
Spain
undertook
no action to stop
it,
and did
not even
protest
-
this
might
be
interpreted
as
acquiescence.
Britain
protested against
the
Argentine
occupation in 1829, but at this stage Britain
had
definitely
no
valid claim over the Falk-
land
Islands,
Britain had maintained
a settle-
ment on the islands
for a total of
only
seven
to
eight
years,
and had exercised
effective
control even then
only
over a
small
part
of
the West.
Furthermore,
any rights
Britain
may
have had
lapsed
after 1774. It follows
that Britain's seizure
of the
Falklands in
1833
was
clearly
an
act of
aggression.9
Although
these
arguments
are
not of-
ficially
accepted
in
Britain,
the
official
case
for British sovereignty is now generally made
on the basis of
post-1833
criteria.
Two
prin-
ciples
are invoked to
support
British
sov-
ereignty
over the Falklands:
(a)
Prescription,
(b)
the
right
to
self-determination.10
According
to the
principle
of
prescription,
Britain's
occupation
of the
Falklands
for
nearly 150
years would suffice
in itself for
Britain
to hold the
title, even if its occupation
was illegal
in the first
place.
The
argument from
prescription
may have
some legal
basis,
but it is legally tenuous,
because
it is
not universally
accepted
as a
principle
of law
(Brownlie
1963,
p. 422).
Furthermore,
it
is
subject to
certain con-
ditions, as
lan Brownlie
points
out:
Assuming that
title can result
from adverse
posses-
sion,
the general recognition
that the
use of force as
an instrument
of national policy
is illegal must
cause
such derivation
of title
to occur only
in rare cases as
a result
of very long
possession or
general acqui-
escence by
the international
community.
If pre-
scription
is permissible
in such circumstances
explicit
statements
as to non-recognition
would play the role
of protest in preventing or delaying the prescriptive
process.
Prescription
may
still exist as a
mode of
acquiring title
in so
far as its application
had not
been
denied by states
which at the same
time accept
obligations
of non-resort
to force.
Nevertheless
it is
arguable that
as a matter
of principle the
initial
illegality can
never be the
source of legal
right
(Brownlie
1963, p. 422).
Similarly
D. H. N. Johnson
has stated
that
acquisition
of a title by
prescription
is not
possible
unless a state
can demonstrate
that
it has
. . .
exercised
its authority
in a
continuous,
unin-
terrupted,
and peaceful
manner
. . . provided
that
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8
Christoph
Bluth
all other
interested and affected
states .
.
.
have
acquiesced
n
this exercise
of
authority
(Johnson
1950,
p. 353).
It can
be
argued
hattheconditions or
acqui-
sition of a
title
by
prescription
were not
satisfied
because of
Argentina's
continued
protests
at
the
British
occupation
rom
1833
to the
present
day.
Furthermore,
n
1884
Argentina
offered to take the
case to ar-
bitration. Britain
refused.
This
further
strengthens
he case
against
a British
itle
by
prescription.11
The one
point
in
favour
of
the
Britishcase
is the
gap
between
1849 and 1884.
During
those 35 years no protest occurred, but
Argentina
tressed hat silence should
not
be
taken to mean
abandonment
of
the claim.
It
is
possible
that
thirty-fiveyears
is
long
enough
to allowthe
conclusion hat
Argen-
tina had
acquiesced
n
British
possession
and
therefore
Britain
had
acquired
the title
by
prescription.
The
length
of time
required
or
acquiescence
has never been determined
by
a tribunal,but most writers
on international
law suggest that fifty yearsor more
without
interruptionare required or the
acquisition
of title by prescription o occur.
In
summary,
the British claim
to sov-
ereignty over the Falklandson the basis
of
prescription s rather tenuous.
It assumes
first of all that prescription s
recognized
as a principle n international
aw,
an
issue
which is far
from
settled. Even if it
was
recognized,
it is unlikely Britain
would be
able to show that Argentinahad
acquiesced
in its occupationof the Falklands
andhence
unlikely hat Britain
couldhave acquired
he
title by prescription.12
The second
principle which has
been
invoked
as a legal basis for Britain's itle
is
that of self-determination.While the
self-
determination f peoples
is
without
doubta
fundamentalprinciplein international
aw
(Asmal 1981),it is not alwayseasy to
deter-
mine how the 'people' to whom
it applies s
defined (Dunnett 1983). In the
case of Hong
Kong, the British government
has recog-
nized that the people in a large part
of
this
territorydo not have the right to
self-deter-
mination such that the territory could
become
British; t is clearlyChinese.
The
frequent
references
during
he
Falk-
lands conflict
not
only
to
the
Falkland
Islanders'
desire to be
British,
but
also to
their Britishness',howtheconflict hatmay
arise betweenthe
right
o
self-determination
and
the
principle
of
decolonization.
The
fact
that
they
are
of British kith
andkin'
goes
to
show
that
they
are not
indigenous,
hat
they
were sent
to the Falklands
after
the forceful
removalof the
previous
nhabitants n
order
to colonize
them for
Britain,
and
that
hence
the
principle
of
self-determination oes
not
apply;
hisat
least
is
the
Argentine
response
to theBritish
clain
(Bologna
1983,
p.
39
f.).'13
The
principle
of decolonization
was
estab-
lished by the General Assembly of the
United
Nationsin its
resolution1514
(XV)
of 1960. KaderAsmal has
commented
on
the
legal significance
f
Resolution
1514:
Subsequent
o
1960,
a
stream of
important
reso-
lutions
elaboratedand
further
developed
his
right.
Whether
heresolution tselfwas
aw-making
s
now
quite unimportant.Brownlie considers
the
Reso-
lution to be an example of an authoritative
nter-
pretationof the Charter,
n that, 'the
Declaration
regards he principle f self-determination
s
a
part
of the obligations temming rom the
Charter,
and
is not a 'recommendation', ut is in the formof an
authoritative nterpretation f the
Charter.'
Some
others may consider it to be part of
customary
international
aw because of state
practice,
acqui-
escence,
recognition
nd consensus Asmal
1981,
p.
9f.).
The principle of self-determination
s
thus
one aspectof the principleof
freedom
colon-
ization. Thus,
both Argentina and
Britain
invoke the principle
of
self-determination,
albeit leadingto opposite
conclusions.
Britainhas argued hattheprinciple f de-
colonizationdoes
not apply to the
Falkland
Islands,
that the situationwith
regard
o
the
Falklands s not a colonial
situation
and
that
the Falkland Islandersare a
'people'
with
the rightto self-determination.
urprisingly,
the 'Official Position' published
by
the
Foreignand Commonwealth
Office
bases
its
case also on the United
Nations
and
in
par-
ticular on the United
Nations
Committee
of 24, arguing that the way in
which
the
principle of de-colonization
has
been
implementedby the UN andthe Committee
in particular implies that
de-colonization
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British Resort to Force in the
Falklands
Conflict
9
does
not
apply
to
the Falklands
(FCO April
1982
& FCO
1983).
This
argument
does not
make
sense,
since
on the basis of the work
of the UN Committee of 24 the UN General
Assembly
passed
Resolutions 2065
(XX)
and
3160
(XXVIII)
which
explicitly
declared the
Falklands
to
be a 'colonial
situation',
thus
implying
the
need for
de-colonization. Fur-
thermore,
these resolutions affirmed that the
negotiations
should bear in mind the
inter-
ests
of the
population
of the
Falklands,
thereby implicitly
rejecting
the
applicability
of the
right
to
self-determination,
which
would
have
required
bearing
in mind their
'wishes'.
The application of the principle of de-
colonization to the Falklands case
would
involve
two
important
issues.
Section
(6)
of
UN
Resolution 1514 states:
Any attempt
aimed at
the total
or
partial
disruption
of the national
unity
and
the territorial integrity
of
a country
is
incompatible
with the
purposes
and
the
principles of the
Charter of the United Nations.
Argentina
claims
on
this basis the restoration
of
its
territorial integrity.
Furthermore, according to a study on the
right to self-determination for the UN Com-
mission on human rights (U.N. doc.
E/
CN.4/Sub2/204 paras
267-279),
Aureliu
Cri-
stescu describes the
following
as 'elements
of a definition'
of a
'people'
that can
exercise
this right:
The relevant
elements are that the term 'people'
denotes a social entity possessing a clear
identity
and
its own
characteristics,
and
that
it
implies a
relationship with a territory, even if the
people in
question has been wrongfully expelled from it and
artificially replaced by
another
population
(Quoted
from
ICJ
1982, p. 32).
This interpretation
would
clearly
favour
Argentina's
case.
The strongest
elements
in
the British case
seem
to be its
long
occupation
of the islands
and
the clear desire of the
population
to
remain
under British
sovereignty.14Legally,
however,
it
appears
that
Argentina
has a
very strong case.
Unfortunately
there are
sufficientuncertainties in the legal arguments
for Argentina's case
(just
as
there are
in the
British
case)
that it is not
possible
to
arrive
at a
definite conclusion.
3. The
Resort to Force
in 1982
In
this
section
I
would like
to
analyze
the
justifications
given
for the
British resort to
force
in
1982
after
Argentina
occupied
the
islands
on
2
April
from the
perspective
of
international law and Just
War
Theory.15
The
procedure
I
will
adopt
is to
simply
go
through
the different
recognized
criteria
of
Just
War
Theory
one
by
one.
3.1
Legitimate Authority
War can
only
be
justified
as an act of
political
justice
undertaken
by
those who
have been
given
the
responsibility
to
care for
the
com-
mon
good
of the
community.16 Clearly
the
British
Government constituted a
legitimate
authority internationally recognized
as such.
3.2
Just Cause
War
may generally
be
fought only
in
re-
sponse
to an
aggression demanding defence,
or severe
injustice demanding
redress.
Britain's justification for engaging in mili-
tary
conflict
was
based
on
the
right to self-
defence
against aggression (Article
51
of
the
UN
Charter):
(i)
British
territory
had been
seized
(ii)
The
right
to
self-determination
of
the
inhabitants
of
this
territory had been
usurped
(iii)
The
principles
of
international law
must
be
upheld,
in
particular
the
principle
that
force
must
not be
used
for
the
resolution of disputes (except in self-
defence) (law enforcement).
Although Argentina
acted
clearly
in
breach
of
international law and
Article
51
of
the
UN
Charter and
Security
Resolution 502
provided
a
basis for
British
counter-
measures,
the existence of
a
dispute between
Argentina
and
the
United
Kingdom
and its
substance must also
be
taken into
account
when
considering
the
question
of
just
causes.
The
existence
of a
dispute
had
been
clearly
recognized by UN General Assembly Reso-
lutions
2065
(XX),
3160
(XXVIII)
and
31/
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10
Christoph
Bluth
49
(XXXI).
It
had also
been
recognized by
the British
Government when
it entered into
negotiations
with
Argentina
about sov-
ereignty over the Falklands no later than
March
1967. At various
times,
Argentina
had been
given
to understand that there
might
be
an eventual transfer of
sovereignty
to
Argentina
under certain
conditions.
Since
December
1980, however,
Britain
had
adopted
the
position
of
pretending
to
nego-
tiate
seriously
with
Argentina
while in
fact
not
being
willing
to
make
any
further
concessions.17
There
are two
consequences
which follow.
The
first
is that
Britain was
certainly guilty
of a certain degree of provocation. Although
Argentina
committed
a much more serious
breach
of the
peace,
the
Argentine
Govern-
ment
correctly
concluded
that the
British
Government
was
only
interested
in main-
taining
the
pretence
of
achieving
a peaceful
and negotiated
settlement
with
Argentina.
This
must
be
seen
in
light
of the fact
that
from
the
point
of view
of
international
law,
and
according
to the
view
of the international
community
as expressed
by
the
UN General
Assembly,
Argentina
did have
a case.
The
second
is that
although
Argentina
was
completely
wrong
to
invade
the
Malvinas,
the
British
right
to defence
was perhaps
cir-
cumscribed
to
some
degree
by the
ambi-
guities
of
Britain's
moral
and
legal
position.
It is by no
means
clear,
as we
have
seen,
whether
international
arbitration
would
uphold
the British
claim
to the
Falklands.
In
the
past,
British
officials
have
expressed
a
lack of
certainty
with respect
to
British
rights
to sovereignty
(Beck
1983).
There
is
no
doubt, however, that an international tri-
bunal would
not confirm
the
islanders'
right
to self-determination,
if
this
means that
they
can
decide
who
has
sovereignty.18
None-
theless,
it
is
quite
clear that
international
arbitration
would
have
to support
the
'inter-
ests'
of the islanders
which
means
that
their
British way
of life
would be
safeguarded.19
The
existence
of a
dispute,
in
which
Argentina's
case
was strong
and
supported
by
the international
community,
meant
that
the
maximum
objective
which
Britain
could
justly pursue would be the return to con-
ditions
that
allowed
a
just
and proper
settle-
ment of the
dispute.
In its
public
stance,
the British Govern-
ment decided to
downplay
the
issue
of
the
illegal seizure of British territory, even
though
this
question
was
of
central
import-
ance
to the
Conservative backbenchers dur-
ing
the
Parliamentary
debate
on
April
3,
1982,
presumably
because
the
territory
itself
was
hardly
worth
going
to war
over,
and the
British Government wanted to avoid
any
association with
colonialism
or even
with
defending
its own
interests,
particularly
given
the doubts about the
legal
position
with
regard
to
sovereignty.
It therefore chose
to
emphasize
the more
abstract
principle
that
'aggression must not succeed'.
This
principle
was first formulated as
a
reason
why
Britain
should
send
the
Task
Force
not
by
the
Government,
but rather
by
the Leader of the
Opposition,
Michael Foot:
-
there is the longer term interest to ensure
that
foul and
brutal aggression does not succeed in
the
world. If it does, there will be a danger not merely
to the Falkland Islands, but to the people all over
this
dangerous planet (Hansard, House of Commons,
3
April 1982).
The Government very quickly adopted this
argument, and in the public debate it
was
used as one of the two main justifications
for
military action in the
Falklands.
It is important to realize that the issue
here
is not redress for an injury received as
a
result
of aggression committed by another
state (e.g. loss of territory).
(If this were the
issue, then the principle of self-defence
could
be invoked.) It is rather the abstractprinciple
that aggression must not succeed
-
a
crucial
distinction. The Government's attitude
was
explained
by Cecil Parkinson:
Allow Argentina to make a colony of the Falklands
and you make a potential prey of every little
nation
on earth (The Guardian, 14 June 1982).20
The argument here is that Britain has a
duty
to demonstrate to the world that aggression
does not succeed and thereby deter
potential
would-be aggressors.
The general moral analysis underlying
this
argument
sees the world as an international
society with a number of individual mem-
bers
-
the nation states.
Their co-existence
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British
Resort
to Force
in the Falklands
Conflict
11
is
regulated
and
safe-guarded
by
interna-
tional
aw,
in
analogy
o domestic
awswhich
regulate
and
safe-guard
helives and
rights
of
citizenswithin the nationstate. Aggression,
then,
is
not
only
a crime
against
the
state
against
which it
takes
place,
but
against
he
international
ociety
of nationsas a whole.
Aggression
therefore
justifies
a war
of law
enforcement
by
the victim
and
any
other
member
of international
ociety
that comes
to its
aid. Another version of the
principle
that
aggression
must not
pay
was also used
in defence
of British
military
action
in
the
Falklands,
namely
that international law
must
be
upheld,
in
particular
he
principle
thatforcemustnotbe used forthe resolution
of
territorial
disputes.
However,
Britain
compromised
ts
posi-
tion
with
regard
to
law
enforcement
by
re-
fusing
negotiations
afterwards.
Margaret
Thatcher
ustified
hisrefusal
by saying
that
she could
not
agree
that British
forces
. . .
risked
their
lives
in any
way to have a United
Nations
rusteeship.
They
risked
heir ivesto defend
British
sovereign
territory,
he British way of life
and
the
right
of
Britishpeople to determine heir
own future
Hansard,
House
of Commons,15
June
1982,col. 734).
This statement
would
seem
to exclude the
possibility
hat
'these
men riskedtheir lives'
in order
to
uphold
the
law,
even
if the law
turned
out
to
be in
favourof the Argentine
claim
and
against
the
right of the islanders
to self-determination.
nstead he goal of the
operation
is stated
clearly to be the vin-
dication
of
Britain's
claims. It could there-
fore be
argued
that
Britain
was
basically
saying that 'mightis right' and the British
use
of force
turned
out to
be designed
not
to
ensure
that
the
resolution
of the
disputewas
carried
out
by
peaceful
means, but force
was
used
to actually
achieve
this resolution,
thereby denying
the
very
principle
that
the
British
use offorce
was
supposed
to uphold.
Although
Third
World
countries
disap-
proved
of the
Argentine
action
for
the most
part
(hence
the
widespread
support
for
Security
Council
Resolution
502), they also
endorsed
Argentina's
claims
of sovereignty
over the Malvinas.They clearly nterpreted
the
Malvinas ssue
as
a colonial
issue,
and
therefore did not see
the British
cause as a
just
cause,
except
that
they disapproved
of
Argentina's
ecourse o
force.
Consequently
in their eyes justicewas not served by the
restoration of
the status
quo
ante
bellum,
withthe
subsequent
efusal o
negotiate,
and
the
principle
that
aggression
must
not
suc-
ceed
was
not
effectively
demonstratedas a
moral
principle;
for
them,
after
all,
col-
onialism is
the most
serious
form
of
ag-
gression.
Furthermore,
he text
of
Security
Council
Resolution 502
also
undermines
Britain's
authority
or
military
ctionwiththe
purpose
of
law-enforcement.The
Resolution recalls
a previousstatementby the Presidentof the
Security
Council
calling
on
Argentina
and
Britain 'to
refrain rom the use or threat of
force in the
region
of the
Falkland
Islands
(Islas
Malvinas)',
then
goes
on to demand
'an immediate cessation of
hostilities',
and
without a conditional ink
between the two
demands,goes on to demand an
immediate
withdrawal f
all
Argentine
forces from the
Falkland Islands (Islas Malvinas)'. In the
light of the Argentine ailure o complywith
the latter part of the resolution,the British
Governmentclaimed that it was entitled to
self-defenceuntil such time when
Argentina
compliedwith the resolution. Whatever he
merits of this
argument,
it seems rather
difficult or Britain o claim hat t was acting
in the enforcement of international
law,
given the other provisionsof SecurityCoun-
cil Resolution502. The UN SecurityCouncil
is, after all, the supreme law enforcement
agency n the international phere, and Brit-
ain implicitly ecognized ts role by basing ts
stanceon Resolution 502.
To sum up, (i) and (ii) qualify as just
causes
if
reformulated
s (i) self-defence to
restore proper conditions for a settlement
of the dispute
and (ii) preservationof the
islanders' nterests as opposedto self-deter-
mination); iii) would be a just cause in prin-
ciple, but there is some doubt as to
whether
Britain'smilitaryaction n the Falklands an
be justified n termsof law
enforcement.
The
importantpoint is that these causes justify
the re-establishmentof a basis for a just
solution, and not for a vindication of the
Britishclaim.
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12
Christoph
Bluth
3.3
Right
Intention
Armed
conflict
may only
be
pursued
with
the intention
of
achieving
he
objects
of the
justcauses,
to
rectify
he
effectsof
aggression
or
injustice,
and
during
the conflict
mplies
the
pursuit
of
peace
and
reconciliation,
and
to end
hostilities
as
soon as
possible.
The
British
Government
clearly
tried to
convey
the
impression
hat t was
conducting
ts
cam-
paign
on this kind of basis.
This
requires
an
analysis
of
why
the British
Task
Force was sent.
The Government's
decision
on 2
April
to send a naval Task
Force to the South Atlantic was
prompted
by
two factors.
Firstof all, the whole TaskForce opera-
tion had
already
acquired
a
great
deal of
momentumof its own. This has to be seen
in the context
of the
position
of
the
Royal
Navy,
whose
strength
hadbeen
considerably
reduced
by
the defence
policy pursued by
successive
British
administrations,
eading
o
deep
resentment
n the
Navy.
The
First
Sea
Lord,
Sir
Henry Leach, perceived
in
the
Falklands
Conflict
a
unique opportunity
o
demonstrate
o
all
of
Britain
he
importance
of
naval
capabilities.
When the
Government
considered its response to the imminent
Argentine invasion, Leach,
as the result of
an
attempt
to
present
his
views to the
Sec-
retary
of
Defence,
was admitted
o the
meet-
ing
and made
a
strong
case for
sending
the
Task
Force,
clearly influencing
the whole
tenor
of the
meeting.
The task
of
assembling
the Task
Force
was
begun
even before the
Argentine
invasion took
place,
and
before
either
the
Government
or
Parliament
had
decided
that
it
should
be
sent
or
assembled.
The sheer momentum of military prep-
arations
was
one
of the
major
factors
nflu-
encing
the Government
in
its
decision
to
send
the
Task
Force. Without Sir
Henry
Leach's
confidence
n naval
capabilities the
other Chiefs
of
Staff had reservationsabout
the entire
operation)
and
his
drive to obtain
Government
approval
or the
operation,
he
hesitations
of Cabinet members and
Chiefs
of
Staff
mightconceivably
have
prevailed.
If
Margaret
Thatcherwas
already
inclined to
respond orcefully,
Leach
gave
her what was
needed to overcome hereservations f John
Nott
and others.
If
not,
she
was
certainly
impressed by
Leach's
performance
and
inclined o listen. Leach
gave
the TaskForce
the
momentum
t
needed.
It
can
be
argued
that in this
way the objectivesof the Royal
Navy,
which
were
totally
extraneous
o
the
Falklands
Conflict
as
such,
became
one of
the
major
factors in
the
decision to
send
the Task Force
(Freedman
1982;
Hastings
&
Jenkins
1983,
Ch.
4;
Ponting
1985,
p.
71
f.;
Bluth
1984a,
Chapter
4 &
8).
The
decisive
factor, however,
was
spelt
out
by
William
Whitelaw:
Without
he Task
Force,
'the
government
would have to
resign'(Hastings
&
Jenkins
1983,
p. 77).
It
simply
could not face
Parliament
he next
daywithoutthe Task Force and a firmplan
of action. The
stormyParliamentary
ession
the
next
day
bore
out Whitelaw's assess-
ment.
Any
moraldiscussionof the British
military
effort in the
Falklands must thus
face the stark fact that the main
principle
of the
conduct
and course of the conflict
consisted
in
the Prime
Minister's urgent
desire to avoid the
consequences of her
incompetence
and
remain
n
power.
The failure
of
the British
Falklands
policy
and the
Argentine nvasion
was
the result
of
extraordinaryncompetencewhichran com-
pletely
counter
to the
image
that
the
'Iron
Lady'
was
trying o project.Furthermore, s
the
FranksReport revealed later, the fault
for this failure
residednot
with
the
Foreign
Office,
which
had
long
foreseen
the
possi-
bility
of serious
conflict
with
Argentina
and
had
desperately
tried
to do
something
to
forestall
t,
but
with
the Prime
Ministerher-
self. Task Force or no
Task
Force,
she
ran a
very high
risk
that her Governmentwould
fall as a result. In the event, it very nearly
did fall and
wasonlysavedbytheresignation
of
Lord
Carrington the Foreign
Secretary),
the
Lord
Privy
Seal
Humphrey
Atkins and
Minister
of State
in the FCO RichardLuce.
If the Government
had
had
to
resign
as a
whole,
this would not
only
have
been the
end of Thatcher'sown
career,
but
also the
end of her
ambitiouseconomic
project,
and
everything
he had
tried to
achieve
wouldbe
lost. But
in
order
o
save
her
administration,
she had
now
got
to
grasp
he
nettle
firmly
and
provethat her Governmentwasincontrolof
the
situation.
To be able
to
do
this,
she
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British Resort
to
Force
in
the
Falklands
Conftict
13
needed the
Task
Force.
As
witnessed
by
speeches
by
Conservativebackbencherson
3
April,
which were littered
with
demands
to restore Britain's honour and unsubtle
threats
as to
what
might happen
to the
Government
if it did not
respond
ade-
quately,
Whitelaw's
analysis
was correct:It
was
the
only
way.21
The
overriding mportance
of the Govern-
ment's
survival
in
office was not
only
the
crucial
factor in
deciding
to send the
Task
Force,
it was also the
principaldetermining
factor
of the British conduct of the
entire
conflict.
Alexander
Haig,
whose
memoirs
indicate
a certain
degree
of
confusion
about
the issues, neverthelessseems to be correct
in his observationsabout the
threat o That-
cher's
position
andthe
way
in which she felt
the
pressure
of Parliament
(Haig
1984,
p.
273;
Bluth
1984b).
LordLewin has
made
a
number
of
very
direct statementsabout the
relationship
between
the
conductof
the
war
and
the survivalof
the BritishGovernment
(The Guardian,
2 October
1984and
28 Jan-
uary1985).
The other
important
decision-making
agency was, of course,
Parliament,
which
debated the Argentine invasionon 3 April
1982in a
specially
convened
session.
Mar-
garet
Thatcherset
the tone by
condemning otally this
unprovoked
aggression
by
the Government
f Argentina
againstBritish erri-
tory. (Forthis and
subsequent
quotations
rom this
debate see
Hansard,House
of
Commons,
3
April
1982, col.
633-668.)
In contrast
o later
Government
tatements,
she
put great
emphasis on the issue of
ter-
ritorial
sovereignty.
When
she
referred
to
the Argentine
occupationof
Southern
Thule
in 1976,22
dward
Rowlandspointedout
that
Southern
Thulewas
merely
a
piece
of
rock
with
no
inhabitants,and
surely this was
dif-
ferent
from
the 'imprisonment
of
1,800
people by
Argentina'.
Quite
to the
contrary,
Thatcherretorted:
We are
talking about
the
sovereignty
of British
territory
whichwas
infringed
n 1976.
It is
difficult to
know to
what
extent
the
PrimeMinisterwas playingto a galleryor
voicingher
own
beliefs.There s
no
evidence
that
theissue of
the
territory
had
anyimport-
ance in the
Government's
deliberations
before
the Commons
debate;
the Govern-
ment (and other administrations efore it)
had
never made
any
serious
attempt
to
develop
the
economic
potential
of the
Falklands.
To
a
number of
Conservative
back-
benchers, however,
as their
speeches
now
and at
earlier
occasions
revealed,23
t
was
veryimportant.
ThusEdwarddu
Cann,
then
chairmanof
the 1922
committee
of
Con-
servative
backbenchers,
emphasized
n
his
speech
on 3
April
1982
'the
duty
...
to
repossess
our
possessions'
and
British nter-
ests to a greaterextent thanthe interestsof
the islanders.
He also
said:
We
have
nothing
o lose now
except
our
honour.
The
need to
defendBritain's
sovereign
ter-
ritory
was also central to
the
speech
of
Unionist
M.P.
Enoch Powell.
Explicit
ref-
erences
to
colonialism
also
occurred.Thus
Sir
Nigel Fisher
(Conservative)
amented:
We have
ailed and ailed amentably-
to
defend
the
integrity of
one of
Britain's
few
remaining
colonies.
It is
importanto remember hat the
greatest
threat
o the
survivalof Margaret
Thatcher's
Government
ultimately
came from her
own
backbenchers.
They had
the
power
to
cause
the
Government's
all,
and
(as
several of
them
threatened
during
the
debate)
they
were
willing
to use it in this
situationunless
the
Government
ook
proper
action.
While the LabourPartywaskeen enough
to bring
downthe
Government,
he scales
of
power could
only
be
tipped
by
the Con-
servative
backbenchers.
It is their
reasons
for sending the
Task
Force
which are thus
the
most significant.
There
can be
no
doubt
fromthe speeches
on 3
April
and from
pre-
vious
Parliamentary essions
on this and
other issues that
there
is a
deep
current
of
feeling
harking
back
o
the
days
of the British
Empireand British
colonialism
among
Con-
servative
Party
backbenchers,
and that
this
was a powerfulforce motivating hem on 3
April.
This must be
seen
in
the
context of
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Christoph
Bluth
international
law where it has
been estab-
lished that colonialism
is a
crime,
thereby
implicating many
actions which led to the
establishment of the British Empire in the
first
place
as
criminal,
including
the
estab-
lishment of the Falklands as a British
colony
(Asmal
1981;
Barnett
1982;
Dabat
&
Loren-
zano
1984,
Ch.
2 &
5).
The Labour
Party
found itself in a
dilemma. On the one hand it was determined
to
pounce
on the Government
and make
as
much
political
capital
out of its em-
barrassment
as
possible.
John
Silkin,
the
Defence
spokesman
who
apparently played
an
important
role in
determining
the stance
of the Labour Party in the absence of Denis
Healey,
who
just
happened
to be in the
United
States when the crisis
broke,
called
for the
resignation
of
the Government. Yet
Michael Foot
spoke
at
length
about the
longer
term
interest that 'foul
and brutal
aggression
does not succeed
in
the world' and
about the
betrayal
of
the
Falkland
Islanders
who
rightly
and
naturally
look to
us
for
protection.
So
far
they
have
been
betrayed.
The Government
must now
prove by
deeds
-
they
will never be able
to
do it
by
words
-
that
they
are not
responsible
for the
betrayal
and cannot be faced with
that
charge.
Michael
Foot,
of
course,
would have
dearly
loved
to
face them
with
that
charge. This,
however,
was a
situation of
national
crisis.
The
Labour
Party,
for
all its
desire
to
exploit
the
Government's
misfortune,
must show
itself
to
be
responsible.
It had to
allow
the
Government
a
way
out. The
only
such
way
was the
Task Force.
Although
motivation
is
always
a
complex
thing and often difficult to ascertain, enough
evidence
has been
adduced to make a
strong
case that
the British Government
was
in the
main
pursuing objectives
which cannot
be
described
as
just
causes
and
hence was
not
pursuing
the conflict
with
right
intention.
3.4
Last
Resort
Military
action
should
only
be
engaged
in as
a
final
resort,
if
all other means
have failed.
The Government's
response
to the
Argen-
tine
fait accompli,
in
stark
contrast
to
its remarkable incompetence before the
invasion,
was a
rather
sophisticated
and
at
first
well-coordinated combination of
military,
political
and economic
pressures.
Due to
the time that it would
take
for
the
Task Force to arrive at the islands (about
three
weeks),
there was a
great
deal
of
time
to make
the
threat of
military
response
work
by
means of
negotiation.
In
this the British
were assisted
by
the American
Secretary
of
State,
Alexander
Haig,
who
embarked on
his well-known mediation.
In
retrospect
it
must
be
said that the time was
not
used
well,
because both
sides stuck to
positions
which
were
clearly
irreconcilable. While the
Argen-
tines
insisted on
recognition
of
Argentine
sovereignty
as a
pre-condition
of
withdrawal,
the British insisted on the principle of self-
determination
for the islands. That
insistence
was
unacceptable
to
Argentina
because it
implied
continuation of British rule. It is no
exaggeration
to
say
that the issue of self-
determination
had been
the central issue of
the
dispute
since 1964. Decolonization
implied
for
Argentina
that the islanders had
no
right
to
self-determination, although their
interests had to
be taken
into account.
The
British
insistence
on
this
principle implied a
demand
for
Argentina
to
concede the
central
issue.
On
3
April
1982,
Mrs
Thatcher
managed
to stave off
Parliamentary
wrath
by prom-
ising
to
redress the situation
created
by
the
Argentine invasion. Specifically
she
prom-
ised that British
territory
would
be
recovered
and
that the
wishes
of
the islanders
would
be
paramount
in
any settlement.
Another
point
frequently
made
was that
aggression
must
not
pay
and
Argentina must not be
seen
to
gain anything by aggression.
Given those
three restraining principles, which would
form
the basis of Parliament's
judgement
as
to
her
success,
there
was
little
room for
manoeuvre
in
negotiations.
Given the
dom-
estic
situation
in
Argentina,
which
had
been
a
major
factor in the
Argentine's
decision
to
invade
the
Falklands in the
first
place,
with
the
political
survival of
Galtieri's
Junta on
the
line,
it is
quite
obvious that
negotiations
were
bound to
fail.
The
Task Force was
initially interpreted
as
a
military
threat
designed
to
pressurize
the Argentines into negotiations. Most of
the British
leadership apparently
was
firmly
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British Resort to Force in
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15
convinced that the Task Force would
never
actually
be
used
(Hastings
&
Jenkins
1983,
p.
77;
Dalyell
1982,
pp.
66-73).
With hind-
sight it is clear that this was a serious mis-
judgement
of
the situation. It
didn't work
because
on the
one hand the
Argentines
felt
themselves
politically
unable to
make the
concessions demanded
by
the
British,
and
on the
other
because
they
did not
really
believe that the
British
military
threat was
serious,
not
even after the
re-capture
of
South
Georgia.
By
the end of
April
Thatcher had
con-
cluded that
her
objectives
were not
obtain-
able
by negotiation
and thus
the shift from
military threat to military action took place
with the
arrival
of
the Task Force in
the
South Atlantic.
On 1
May
a determined effort to en-
force
the total exclusion zone that had been
declared
began.
Vulcan
bombers
raided
Port
Stanley
airfield,
and
HMS
Glamorgan
together with two other
frigates began bom-
barding known
Argentine
positions around
Port Stanley.
The Argentine air
force and
navy engaged
in
determined attempts to
counter the British
attack, but
without
success. In the mind of the British naval
command, the military phase of the
conflict
had
begun in earnest.
This
was not the
official British
position,
however. On
the evening of
1
May
Francis
Pym arrived in
Washington to
continue his
efforts to find
a diplomatic
solution. On his
arrival
he explained
to the press
that the
raids on the
islands that day
had the purpose
'to concentrate
Argentine
minds on the need
for a
peaceful
settlement' (Ponting
1985, p.
84). He declared:
No
further military
action is
envisaged at the
moment, except to keep
the exclusion
zone secure
(Ponting 1985,
p. 84).
Pym's
statement is rather
puzzling, because
at this
time he knew
that the War
Cabinet
had
already
authorized an attack
on the
Argentine
aircraftcarrier25
de Mayo outside
the
exclusion zone,
and that his statement
was
therefore not an
expression
of the
policy
pursued
by the War
Cabinet.
It is interesting to note the implications of
Pym's
statement. In
effect he was
saying
that
the
purpose
of
military
action had
been,
like
the
sending
of
the Task
Force
in
the
first
place,
to
put pressure
on
Argentina
in
order
to achieve a diplomatic settlement. His
remarks
amount
to an
explicit
denial that
an
all-out
attempt
to recover
the
islands
by
military
means was
under
way.
The
threshold
of
all-out
military
conflict had
not
yet
been crossed.
It
might
still be
possible
to
step
away
from
the brink
at the
last
moment.
According
to the
account
given
by
Arthur
Gavshon and
Desmond
Rice in
their book
on
The
Sinking of
the
Belgrano,
if
this
really
had been
the
purpose
of
the
military
action
on
1
May,
it had the
desired
effect. The
Argentine military were stunned by the fer-
ocity
of
British
attacks,
and in
the wake of
the United
States 'tilt'
towards Britain and
the
American
sanctions
against Argentina
announced on
30
April, they
were
finally
persuaded
that
the British
were
serious. At a
high-level
meeting
of the
Argentine
military,
attended
by
at
least two
members of the
Junta
(Galtieri
and
Lami
Dozo),
General
Vaquero
summarized
the
recommendation
of two
earlier
meetings:
'We do
not
want
open war'. Galtieri, stunned by the impact
of the
military action,
did not
object.
The
British
did
not,
of
course,
know
what
was
happening
in
Argentina,
and
the
veracity
of
the
Argentine accounts
remains
under
dispute.
However,
the
fact remains
that,
for
whatever
reasons,
the
Argentine
naval
units,
the General
Belgrano
and
the
25
de
Mayo,
together
with
their
accompanying
ships,
were ordered back to
port.25
It will remain
a matter
of
controversy
as
to
whether there
ever was a
chance of a
peaceful
settlement
during
this
week-end
while
the
so-called Peruvian
peace pro-
posals26
were
being negotiated.
It is
beyond
doubt,
however,
that whatever
possibilities
there
may
have
been
were
destroyed by
the
sinking
of the
Belgrano
on
2
May.
It is
very
clear that
the
Belgrano
at
that
time was not the
kind of
immediate threat to
the Task Force it was
portrayed
as
by
the
Government.
Indeed,
it
seems that
the
whole
saga
of
the so-called
Belgrano
affair
and cover-up is only explicable if the naval
command and
indeed
the
war
cabinet were
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Christoph
Bluth
aware
of this fact
(Ponting
1985,
Chapters
3-
5;
Bluth
1985).
It is
probably
the
correct
interpretation
of the
navy's strategy
in
plan-
ning the attack that it was a kind of pre-
emptive
attack
not on
the
Belgrano
in
par-
ticular,
but
on the
Argentine
navy
as
a
whole.
Since
HMS
Splendid
had lost
sight
of
the
aircraft
carrier,
the
Belgrano
was
the
only
available
target.
The
idea was to
intimi-
date
the
Argentine
navy,
and
apparently
it
worked,
since,
as a
result,
Argentine
naval
vessels
stayed
close to
port
for the
remainder
of the
conflict
(Freedman
1984).
The crucial
point
here
is,
that after
the
Task Force
arrived,
the
threat of force could
have been emphasized one more time in
conjunction
with the measures taken
by
the
United
States,
before
shifting
to the
military
phase.
Indeed,
this
is
precisely
what
Pym
implied
was the
position
of the British
Government.
Unfortunately,
the real
policy
of the War Cabinet
was
entirely
different.
Whether the Peruvian
peace
proposals were
known to the Government
before
the
Belgrano
was
attacked
or not is
probably
irrelevant
since
they
most likely
would
have
been unacceptable to Thatcher at this point.
If the
construction
we have
put on events
is
correct,
then
one could argue
that the
sinking
of
the
Belgrano
and subsequent
military
efforts violate the criterion
of last
resort. The
interesting
aspect
of this
discussion
lies in
the fact that the
Government
apparently
realized
this,
because
it
put
out
a cover
story
on the
events
surrounding
the
sinking
of
the
Belgrano
which
was
completely
at variance
with
the actual
events and
which
was
desig-
ned
to show that the attack
on the Belgrano
was
indeed an action taken
at last
resort.27
In the wake
of the sinking
of the
Belgrano,
the
Argentine
Junta
rejected
the Peruvian
Peace
Proposals
and the Argentine
Air
Force
began
to
attack
the
British
Task Force
with
great
determination.
On
4 May
HMS
Sheffield
was
sunk by
an Exocet
missile
launched from an Argentine
Super
Eten-
dard.
The loss of
this ship
had
a
profound
effect on
the British
military
and
political
leadership.
For the first
time
they
were
con-
fronted with the reality of what it meant to
be at war.
The
shock
induced
by
the
sinking
of
the
Sheffield
shifted the
rigid negotiation
stance
of
the
Government,
and
indeed the
principle
of 'self-determination' was re-defined in such
a
way
as to
leave
the issue of
sovereignty
open.28
The ultimate
failure of
the
nego-
tiations
may
be
interpreted
as
indicating
the
impossibility
of
achieving
a
diplomatic
solu-
tion
due to the
intransigence
of
the
Argen-
tines,
and
thus
the action to
re-take
the
islands as
being
the
last resort. If
one con-
siders the
situation in
the
light
of a
long-term
solution,
however,
a
different
conclusion
might
be
reached.
A lease-back
type
of
arrangement,
which
would
preserve
the
'interests of the islanders', their British way
of life and
a
degree
of local
autonomy,
could
be
considered to
be a
just
solution
to
the
dispute.
Indeed,
at
one time
it had
been
pursued
by
the Conservative
Government
itself.29 Thus
Britain could
have
agreed
to
some
language
involving
a
recognition
of
the
need for
the
decolonization
of the
islands
in
accordance
with UN General
Assembly
Resolutions, subject
to
negotiations.
A
close
study of the negotiations
during the
conflict
suggests
that this might have been
enough
to secure Argentine
withdrawal from
the
islands,
and military conflict would
have
been avoided. However,
neither the
War
Cabinet nor Parliament
would have
agreed
to such a
deal. Nonetheless, it could
still
be
argued
that military conflict
was not
nec-
essary to achieve
a settlement in
accordance
with the
just
causes
outlined
above.
3.5 Likelihood of
Success
Unless it is likely
that the war effort
will
succeed, it should not be embarked on,
because the evil caused
by the war will
be
compounded
by the fact that the evil
it
sought
to redress remains and
is
probably
made worse through
defeat.
It
is
generally
agreed by military
experts
that the whole
operation was a great
military
gamble
and could easily have failed
cata-
strophically.30Furthermore,
in the long
term
Britain's position
is unsustainable and
the
Malvinas
will probably revert to
Argentina
some
time
in the future. Likelihood of
suc-
cess was therefore not given as required by
Just War Theory, although
in the short
term
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the
military
effort succeeded
very
brilliantly,
contrary
to what could have been
initially
expected.
3.6
Proportionality
The
principle
of
proportionality
states
that
the evil caused
by
war
must be less than
the
evil
it
prevents
or
redresses.
The
evil
prevented
by
the
Falklands
War consisted
in the loss of
economically
and otherwise
completely
unimportant
territories,
and
the
choice
for the islanders between
Argen-
tine
rule
or resettlement elsewhere. The
evil
caused
consists in
907 men
killed
(255 British, 652 Argentine), many more
wounded
and three
islanders killed. In
addition,
the
war and its aftermath
required
enormous
economic
resources,
to the
tune
of
?1
million
for
every
man,
woman and child
over
three
years,
a
use of resources which is
grotesquely
disproportionate
to the
meagre
life-style
that
it allows them
to
maintain.
Whether the
principle
of
proportionality
was satisfied or
not will
also depend
on the
extent
to which
one sees
the Falklands
War
as a successful war of
law
enforcement. Con-
siderable doubts as to whether Britain's mili-
tary
action in
the Falklands can
be
justified
in terms of
law-enforcement have
already
been raised.
Furthermore, as
has been
pointed out in the
previous
section,
the
requirements of
law-enforcement
(as
opposed to
the
requirements of the
British
Government's
domestic political
objectives)
might
have been
satisfied
without
military
conflict.
On
balance it
would seem
to
be clear that
the principle of
proportionality was not
satisfied.
3.7 Just
Means
Even when
all the
conditions required
for a
Just War
have been
met,
the
conduct
of
the
war must
remain subject to continuous
scrutiny on
the basis of
two
principles:
(i)
Discrimination:
This implies
the
immun-
ity of
non-combatants. Indiscriminate
killing of the
population of
the
'enemy'
is wrong. No gratuitous or unnecessary
harm may
be caused.
The status
and
rights
of
prisoners
of
war must
be
respected.
(ii)
Proportionality:
Each
individual
act of
war must be submitted to an evaluation
of
proportionality.
The British
Government
was at
pains
to
observe the Geneva
Convention.
Non-com-
batants
were not
attacked,
and
the status and
rights
of
prisoners
of war
were
scrupulously
observed.
Only
two
British
actions can
be
described
as
clearly
contradicting
the
principle
of
proportionality
in the
course of the
conflict.
One
is
the
use of
anti-personnel
weapons
(cluster bombs) when bombing Port Stanley
runway.31
The other is the
sinking
of
the General
Belgrano,
where,
as we
have
argued,
the attack
was
disproportionate
to
any
threat the
cruiser
might
have
posed
at
the
time.
4.
Conclusion
The
British conduct of
the Falklands
Conflict,
it can be
argued, fails
to satisfy each
of
the
criteria of Just
War
Theory.
For
a
proper
evaluation it is
necessary
to
assess the
seriousness of the
failure in
each
case and
the
relative
significance of the various criteria
for
a Just War in
this
particular
situation.
The
most obvious
failure to
satisfy
Just War
principles is in the
area
of
proportionality,
and
it
would seem that
on those
grounds
alone one would
have
to conclude that the
British
military effort in
the Falklands was
not a
Just War.
The same is
true
for
the
criterion of
likelihood of success.
Although
there
may be
situations
when the