Q Why were Royal Navy ships forbidden to enter Argentinian waters?
Simply because the Royal Navy did not want to. Their own rules of engagement were laid out to limit the scope of this undeclared 'war' and avoid further escalation. Attacking an Argentine ship outside their flexibly defined zones of action was seen as leading to just that.
The explanation given in the video is misleading. If there is a war, then an enemy ship is fair game, no matter its position.
The quote from the video is just bogus. Part of a narrative seeking to explain something hard to explain by speculation. And using concepts for that that do not really apply.
The Splendid did not attack. Why? Just because they lost contact?
The question here is not "why". Instead it is the theoretical deliberation as to "would it have been allowed to attack?". And regardless whether this is answered yes or no: "which rules said so?"
First of all, an 'exclusion zone' is mainly for the benefit of other nations' vessels, mainly civilian vessels. If two parties are at war, then the warring party's vessels can be attacked by their counterpart even if outside that zone.
This is evidenced by the Belgrano attack, as the ship was outside that total exclusion zone and even Argentina admitted that to be "no breach of law" or simply: legitimate. Britain even made this intention public with a declaration that Argentine vessels were subject to attack if found outside that zone on 23 April, if posing a threat compliant, to art 51 UN charter…(Freedman: "The Official History of the Falklands Campaign. Vol. II", 2007, p 263.)
But the interesting thing is then another bit of legalese the video ignores. "The Falklands War" was not a war! No war – no rules of war. The United Kingdom carefully avoided to declare war, and Argentina did not either. Argentina took the islands, Britain took them back. Some shooting occurred.
Declaring war is so outdated!
The whole operation was conducted under United Nations Charter Article 51, "Right to Self-Defence". That and in general public opinion of other nations made it necessary to try to confine the conflict as much as possible. An invasion of Argentina or really almost any kind of other escalation was unwanted. Therefore both sides predefined their rules of engagement.
What the video snippet might really refer to is 'forbidden under the rules of law as set up by the lawyers in the Foreign Office and the Royal Navy in their own Rules of Engagement!' In other words, that it was not an 'international law' but an internal order for British ships not to engage any ships, not even Argentinian outside that zone.
- 12 April –British declare Maritime Exclusion Zone MEZ
- 23 April – British announce in detail via Swiss embassy the clarification that any Argentine ship or aircraft that was considered to pose a threat to British forces, no matter what the position, would be attacked. In war a hostile naval vessel could be attacked at any location.
- 26 April – HMS Splendid loses contact with the ARA 25 de Mayo, which had a position north of the MEZ
- 30 April – an attack on the prime target ARA 25 de Mayo is authorised and ordered by Thatcher, but Splendid fails to locate it
- 1 May – armed hostilities begin
- 2 May – ARA Belgrano is sunk, Argentine carrier is ordered back to port, had jets with a range of 1000 miles on board but those needed favorable winds to take off and the ship itself developed boiler problems. British still want her sunk, too much of a threat
- 5 May – ARA 25 de Mayo is in shallow waters and Splendid nearby
According to the twisted presentation of that documentary video, that is 'the point of return' for the HMS Splendid?
➔ Nothing from "the rules of war" prevented HMS Splendid from going after the carrier and attacking it! It's just that after the Belgrano was sunk it was deemed politically wise to not sink the carrier, even if deliberations went on that wanted her sunk in port!
For nothing more and nothing less than limit the conflict. And this close to thew coast it became just a bit difficult and dangerous to maneuver for the British boat.
If the video had stated that 'it was forbidden under current orders' or 'under then current British rules of engagement', then I wouldn't complain. But any 'exclusion zones, not even the just then made up 'total exclusion zone' has any relevance for exchange of shots under 'the rules of war'.
On May 7th, 1982, Argentina complained to the International Committee of the Red Cross in Geneva which ruled that the vessel, though outside the TEZ, was within the security zone of British ships in the area; was fully armed and engaged in operations and that therefore there was no breach of the Geneva Convention. The action was perfectly legal.
– Justin Kuntz: "“War Crime” allegations in the Falklands War
Part Two: the sinking of ARA General Belgrano"
These 'internal orders' or 'Rules of Engagement' (ROE) from the UK, for the UK forces, stand in marked contrast to those issued by Argentina for the Argentine forces. Both were not really compatible in any detail and illustrate perfectly that there was no 'outside rule' that unmistakably made any possible action HMS Splendid could have taken to be 'illegal'. Unwanted by the UK leadership, when taking into account international public opinion.
If all hinges on "poses a threat", then all you need is selling a sinking with the right spin. After all, the UK constantly emphasised that 'any additional measure' to its 'right to self-defense' was always still on the table…
Two sets of Rules of Engagement, set up ad hoc, may set a precedence for "the rules of war" in the future, but they do not retroactively make these rules pre-existing for these actions. Even establishing these kind of exclusion zones themselves, with their aggressive scopes and intentions, is a disputable practice.
Sinking a ship in the hot-zone of exclusion was seen as part of these twisted gentlemen agreements the ROEs were sold as. Attacking one slightly outside of it was feared as being seen as an escalation, more on a path to real war than whatever this was supposed to be.
Whether war in the North Atlantic during the Great War saw 'better' legal compliance from UK with blockading civilian shipping bound to Germany or German submarines attacking for example a military relevant Lusitania is still subject to interpretation. And since Argentina declared the entire South Atlantic as a war zone while the UK was similarly flexible in expanding the circles in which 'anything goes' was the goal, the lawyering about a fixed set of 'under the rules of war' seems quite misleading.
But these internal orders themselves are apparently still subject to different interpretations as to explain why the Splendid did not attack.
It is just this: if the Splendid would have been forbidden to do whatever "under the rules of war", then these posited 'rules of war' would have necessarily been applicable for both sides equally.
Sir John Nott has recently revealed the dilemmas facing the British government concerning the use of force in 1982:
The rules of engagement for our submarines posed rather different problems. As the submarines moved fast and submerged underwater, they only emerged infrequently to send and receive burst signals from satellite; so with two submarines fast approaching the Falklands, forethought was needed about what orders they should have when they encountered Argentine naval shipping or merchant vessels supplying the invasion force. It was this discussion which led to the recommendation for a maritime exclusion zone, which I announced in Parliament the following Wednesday.
One of the most vexing questions, extraordinary as it seems, was whether we could say that we were at war. Evidently not; we were strongly advised by the excellent Foreign Office lawyers not to declare war but to act entirely under Article 51 of the United Nations Charter, which gave the right to countries to act in their own self-defence.
The exclusion zones gave the nuclear-powered submarines carte blanche concerning the right to sink Argentine vessels around the Falklands.
The sheer complexity of operations facing the submarine commanders has been recently revealed in a first-hand account by another naval officer who records on 30 April that ‘Conqueror was trailing General Belgrano and Splendid had latched onto three frigates, hoping they would lead her to Veinticinco De Mayo. Spartan was still after the San Luis’. Other accounts about HMS Splendid’s patrol suggest that these ships were actually Argentine Type 42 destroyers (that in all likelihood would be escorts for Veinticinco De Mayo) and despite having them in his ‘sights’ the commanding officer of the SSN was not allowed under the existing rules of engagement to sink them. From this narrative, it seems that HMS Splendid trailed the warships for a period of time without sighting the aircraft carrier before being ordered elsewhere by Northwood.
— Alastair Finlan: "The Royal Navy in The Falklands Conflict ànd The Gulf War: Culture and Strategy", Frank Cass: London, Portland, 2004.
Redeployment of the SSNs did not immediately entail a revision of their ROE because reconnaissance did not require them to attack and their best form of defence, unlike the ships of the Carrier Group, was merely to avoid detection. But an ROE change was required if one of them was to be used against the 25 de Mayo outside the Exclusion Zone, from where the Argentine ship was capable of launching an air strike against the British Carrier Force operating within or on the periphery of the TEZ. According to Gavshon and Rice the Argentine aircraft carrier had been trailed by HMS Splendid until 23 April when, for reasons which remain obscure, this SSN had either been withdrawn from this task or simply lost contact' with the vessel. On 30 April Lewin persuaded the War Cabinet to authorise a further change in ROE and order HMS Splendid, which was patrolling north of the Exclusion Zone, to sink the 25 de Mayo if the carrier entered its patrol area. The Chief of Defence Staff insisted that this was a very precise and very limited ROE revision: 'I only requested approval for the carrier to be attacked.>32; 'it was not an order to the submarine "Go and sink the 25 de Mayo", it was an order to the submarine. If the 25 de Mayo finds you in the patrol area which you are in, you have approval to attack'.
As the Belgrano affair subsequently made clear, these extended Rules of Engagement were confined to HMS Splendid. HMS Conqueror was still operating under the original ROE which applied to the MEZ when she confirmed her detection of the Argentine cruiser group to the south of the TEZ on 1 May, and consequently her commander was not empowered to attack the Belgrano. Indeed he was specifically ordered not to do so unless the ship entered the TEZ.
— G. M. Dillon: "The Falklands, Politics and War", Palgrave Macmillan: London, 1989.
See the different legal interpretations uttered over the course of this 'war' and how or whether any of that is covered in any legally binding way as analysed later:
The 1982 Falklands conflict once again brought attention to the use and meaning of naval exclusion zones. During the crisis both Great Britain and Argentina instituted several maritime zones. After Argentinean troops had landed on the Falklands on 2 April 1982 the British Government announced the establishment of a ‘Maritime Exclusion Zone’ (MEZ) that extended for 200 nautical miles from the centre of the islands. As from 12 April 1982 any Argentine warships and naval auxiliaries found within this zone were to be treated as hostile and were liable to be attacked by British forces.Neutral shipping and Argentine merchantmen and aircraft were not affected by this declaration. On 23 April 1982 Great Britain established a ‘defensive bubble’ around its Task Force, which was sailing to the islands. No specific limits were set for this zone. The warning was addressed to all Argentine warships and aircraft, including civil aircraft.
On 28 April 1982 the British Government introduced the ‘Total Exclusion Zone’ (TEZ) adopting the geographical limits of the previously established MEZ. As from 30 April the exclusion zone applied not only to Argentine warships and auxiliaries but also to merchant vessels and aircraft. Any vessel whether naval or merchant, and any aircraft whether military or civilian, ‘operating in support of the illegal occupation of the Falkland Islands by Argentine forces’ was to be regarded as hostile and consequently subject to attack without warning. In order to claim the status of ‘not hostile’ vessels required the authorization of the Ministry of Defence in London. On 7 May 1982 Great Britain took ‘additional measures in self-defence’ and issued a ‘new policy statement’ which read:
Because of the proximity of Argentine bases and the distances that hostile forces can cover undetected, particularly at night and in bad weather, Her Majesty’s Government warns that any Argentine warship or military aircraft which are found more than 12 nautical miles from the Argentine coast will be regarded as hostile and are liable to be dealt with accordingly.
Some observers, such as Barston and Birnie, refer to this measure as an extension of the TEZ of 28 April. It is worth mentioning, however, that this announcement only affected Argentine warships and military aircraft. Thus, using the term ‘extension’ is inaccurate. In the course of the conflict Prime Minister Thatcher stressed again and again that British measures were taken in self-defence under article 51 of the United Nations Charter. The same legal justification can be found in each letter of the British Permanent Representative to the United Nations to the President of the Security Council.
The different maritime zones were established ‘without prejudice to the right of the United Kingdom to take whatever additional measures may be needed in exercise of its inherent right of self-defence under Article 51 of the United Nations Charter’. During the conflict Argentina also declared three maritime zones. On 8 April 1982 the Argentine Government announced the establishment of a 200-mile zone around the Falkland and South Georgia Islands and off the Argentine coast. In this ‘theatre of operations’ military action could be taken if necessary in self-defence. As no vessel or aircraft was attempted to be excluded, this area can hardly be considered as an exclusion zone. In response to British measures of 28 April 1982 Argentina claimed the waters of the ‘Total Exclusion Zone’ to be Argentine territorial waters and announced that all British vessels, naval or commercial, and all British aircraft entering the zone would be liable to attack. Following the British policy statement of 7 May 1982, Buenos Aires declared on 11 May 1982, without further detail, that the entire South Atlantic was to be a ‘war zone’. Any British vessel found therein could be attacked on sight.
International reaction with regard to the establishment of exclusion zones was considerably muted. In fact, complaints were only made by Argentina and the Soviet Union. Moscow protested against the establishment of the British ‘Total Exclusion Zone’ effective as of 30 April 1982. The Soviets argued that British measures hampered free passage on the high seas, and, thus, violated the 1958 Geneva Convention on the High Seas and the 1982 United Nations Convention on the Laws of the Sea (‘UNCLOS’) respectively. Various legal experts, however, have rejected this argument by referring to article 2 of the Geneva Convention or article 87 UNCLOS. According to these provisions, exclusion zones appear not to be prohibited per se as ‘freedom of the high seas is exercised under conditions laid down in this Convention (UNCLOS) and by other rules of international law’ (emphasis added).
As far as the Falklands crisis is concerned, the doctrine agrees that since the Argentine invasion of the Falklands breached the duty of non-aggression contained in article 2(4) of the UN Charter, Britain could legally resort to defence measures. Under the UN Charter provisions, however, exercises of self-defence must be reasonable, limited to the necessity of protection and proportionate to the attack. Scholars tend to agree that the ‘Maritime Exclusion Zone’ was reasonable. As far as the ‘Total Exclusion Zone’ is concerned, the doctrine is divided. Some authors, such as Fenrick and Leiner, regard this zone as legitimate. The very absence of complaints of third states is a ‘strong indication that most interested states acquiesced in them as being reasonable and thus, lawful’. Others, such as Politakis, acknowledge Great Britain’s right to resort to force but question the proportionality and necessity of extending the ‘Maritime Exclusion Zone’ to the ‘Total Exclusion Zone’. Generally, Shearer questions the legality of the use of maritime exclusion zones in the Falklands conflict as they were primarily established to reclaim lost territory.
Taking into account world war and Falklands operations Zemanek observes that an international custom has been developed through ‘constant practice by all parties involved’ and advances two limitations for what he sees as a ‘new belligerent right’: first, the principle of necessity, and second, ‘belligerent duties towards neutrals’. However, he does not further define those ‘belligerent duties’. In addition, Zemanek supports the view that ‘the lawfulness of a war zone depends not on the declaring state’s ability to enforce it by effectively blocking entry through surface warships but rather on the probability of danger through continuous combat action which may also be created by submarines or mine fields’.
In contrast, for the late Professor Goldie, maritime exclusion zones enforced ‘sporadically or randomly merely by raiding tactics’ should not be seen as legitimate under customary law. As a consequence, indiscriminate sinking of merchant ships by submarines ‘as the main means of pursuing a raiding logistical strategy can not claim to fit under justifications which may uphold the legality of the persisting logistical strategies reflected in the Long Distance Blockades, respectively, the Entente Powers (in World War I) and the United Nations (in World War II)’.
Legal experts such as Fenrick, Fleck, von Heinegg, and Lyons agreed with van Hegelsom’s suggestions. Even though supporting the proposals in general, Shearer argued that as far as the legality of exclusion zones is concerned, a distinction should be made between defensive and offensive zones. Used defensively as a ‘trip-wire’ an exclusion zone might be legitimate ‘as the only practical means of discerning a hostile act’. If, however, used offensively (as in the Falklands crisis in order to reclaim lost territory) such a zone ‘may indicate only an intention to limit hostilities to a defined area’ and its legitimacy would remain questionable. According to Greenwood special attention should be drawn to the legal effects of the proclamation of an exclusion zone. He argues that the proclamation does not ‘significantly alter the rights of the belligerents and the neutrals within that zone’. Other participants strongly disagreed with van Hegelsom’s ‘Introductory Report’. These scholars regard exclusion zones as legally unacceptable in any circumstances.
— Christopher Michaelsen: "Maritime Exclusion Zones in Times of Armed Conflict at Sea: Legal Controversies Still Unresolved", Journal of Conflict & Security Law (2003), Vol. 8 No. 2, 363–390.