the british resort to force in the falklands-malvinas conflict 1982

8/11/2019 The British Resort to Force in the Falklands-Malvinas Conflict 1982

1/17

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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2/17

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


3/17

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.


4/17

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


5/17

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


6/17

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/


7/17

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


8/17

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.


9/17

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


10/17

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


11/17

14

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


12/17

British Resort to Force in

the Falklands

Conflict

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


13/17

16

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


14/17

British

Resort

o

Force n

theFalklands

Conflict

17

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

the british resort to force in the falklands-malvinas conflict 1982

Documents