International Law and Domestic Law as frameworks for addressing the Malvinas Question

       The sinking of the ARA General Belgrano, which occurred on May 2, 1982, by the British submarine HMS Conqueror, must be analyzed from a dual perspective: public international law, which regulates the legality of the use of force, and international humanitarian law, which regulates the conduct of hostilities once the armed conflict has been established.

       The hypothesis that its classification as a war crime cannot be sustained through mere moral or political condemnation, but rather requires a precise evidentiary framework: the ship's location, course, distance from the British task force, applicable rules of engagement, modifications to those rules, weaponry employed, the existence or absence of an imminent threat, proportionality of the damage caused, ongoing peace negotiations, and subsequent conduct toward the shipwrecked sailors . In this sense, the correct starting point is to reject the formula "act of war" as an exculpatory category. It can be admitted that the sinking was an act of war in a material sense, because it occurred during an international armed conflict; but this description does not resolve the decisive legal question: whether the attack was lawful or unlawful according to jus ad bellum and jus in bello .

War does not create a lawless zone . On the contrary, it activates a specific legal regime. This is why it is relevant that Pablo E. Baccaro's work, published by the National University of Lanús, bears the subtitle "The Sinking of the Belgrano: The Fact and the Law of War," and that its thematic entry expressly categorizes the case under the headings "South Atlantic War. Malvinas/Malvinas. War Crime. General Belgrano Cruiser" (Baccaro, 2013). This formulation encapsulates the core of the problem: it is not a matter of denying the existence of the armed conflict, but rather of affirming that, even in war, military acts are subject to necessity, proportionality, distinction, and humanity . The book's introduction itself emphasizes that the event was "called into question in legal and political terms," and that the sinking of the ship and the deaths of 323 Argentinians outside the exclusion zone was a "crossroads" that marked the subsequent course of the conflict (Baccaro, 2013).

Under international public law, the United Kingdom could invoke self-defense in response to the Argentine recapture of the Belgrano on April 2, 1982. However, this invocation did not authorize unlimited warfare against any Argentine target, anywhere, and under any circumstances. Self-defense, according to Article 51 of the Charter of the United Nations, must be necessary and proportionate. The legal debate, therefore, does not center on whether the Belgrano was a warship—it was—but rather on whether, in the specific circumstances of May 2, it constituted an actual, present, or imminent military threat to the British forces. The abstract status of a military target is insufficient to justify the legality of a specific attack. In international humanitarian law, the military nature of the target is one thing, and the legality of the attack directed against it is another .

The British exclusion zone is a relevant, though not absolute, factor . It is true that the Belgrano's location outside the Total Exclusion Zone did not automatically grant it immunity. Some authors, such as Levie, have argued that a belligerent warship could be attacked outside a declared zone and that the zone functioned as an operational warning rather than an absolute legal boundary. Levie also includes the British justification that the cruiser posed a threat to units of the British fleet. This argument must be treated seriously, because it prevents reducing the analysis to a simplistic geographical formula. However, it must also be clarified that the exclusion zone could not operate as recognition of British sovereignty over the islands or their maritime spaces. It was a unilateral measure of war, not a source of sovereign rights. It did not transform a disputed territory into undisputed British territory, nor did it convert its waters into sovereign maritime spaces of the United Kingdom.

Precisely for this reason, the location outside the exclusion zone does not in itself resolve the case, but it does impose a reinforced burden of proof . If the United Kingdom had delimited an area within which it would consider Argentine units hostile, the attack outside that area required demonstrating a concrete, present, and not merely hypothetical threat . This strengthens the critical hypothesis: the Belgrano was not carrying out an attack, it was not within the exclusion zone, it was not advancing toward the British task force according to the critical reconstruction, and it was being tracked by a British nuclear submarine that could choose the moment to attack . Gavshon and Rice maintain that the cruiser was outside the British exclusion zone and on a course to move away from the islands and the task force. Furthermore, they state that up to that point, a negotiated peace still seemed possible and that a plan acceptable to both parties was only hours away from being finalized (Gavshon & Rice, 1984).

The modification of the rules of engagement is one of the most relevant pieces of evidence . If, at the time the Conqueror detected the Belgrano, the rules only permitted the use of force in self-defense or against ships within the exclusion zone, the subsequent authorization to attack it outside of that zone demonstrates that it was not an instantaneous defensive reaction, but rather a deliberate political and military decision . Baccaro has argued, along these lines, that the initial rules of engagement coincided with the British position of using only the force strictly necessary to retake the islands, confining hostilities to the area where the campaign objectives were located. The subsequent modification of these rules shifts the case from immediate defensive necessity to a logic of strategic escalation.

Proportionality is particularly compromised by technological asymmetry and the weaponry employed . HMS Conqueror was not a naval unit equivalent to the old Argentine cruiser, but a nuclear-powered attack submarine capable of remaining submerged, detecting and tracking its target undetected, and choosing the moment to fire. Baccaro characterizes it as a powerful war machine that left the Argentine systems with few defensive options . This tactical superiority matters legally: the greater the attacker's control over the timing, distance, and manner of the attack, the less plausible an urgent defense becomes, and the greater the obligation to justify that total destruction was indispensable. International humanitarian law does not only require a military advantage; it requires that the damage not be excessive in relation to a concrete and direct military advantage .

The technical details of the weaponry are crucial . According to the documentation compiled by Gavshon and Rice, HMS Conqueror fired three Mark 8 torpedoes at the Belgrano group: two struck the cruiser, and the third hit the destroyer ARA Hipólito Bouchard, although it failed to detonate. Each torpedo contained 810 pounds of Torpex, a high-explosive . The report cited in the book also records that this was the first attack carried out by a nuclear submarine and the first British submarine attack since World War II (Gavshon & Rice, 1984). This fact allows us to characterize the order not as a simple harassment or neutralization order, but as a sinking order with the foreseeable result of total destruction. The aim was not to disable propulsion, force retreat, or render the ship inoperable with limited damage: a lethal means intended to destroy it was employed.

This distinction is central to arguing a lack of proportionality . In international humanitarian law, military necessity does not authorize any useful damage, but only that which is indispensable to obtaining a concrete military advantage. If the objective was to prevent the cruiser from participating in future operations, the United Kingdom had to justify why the complete destruction of the ship and the death of 323 Argentinians constituted the only reasonable means available . The very logic of the subsequent British justification seems to shift from the immediate threat to the strategic effect: the deterrence of the Argentine surface fleet. But deterring an entire fleet is not simply equivalent to repelling a current threat from a specific vessel. Legally, this shift is serious because it transforms a concrete neutralization action into an exemplary measure of escalation.

César Trejo raises this objection from a political-legal perspective . In an interview published by Radio UNAJ, he described the sinking as a war crime and maintained that it was not a strictly military decision, but rather a political operation aimed at undermining the possibility of peace . In another recent restatement of his position, Trejo asserted that “there was no imminent threat,” that the ship was more than 300 kilometers from the British force, and that its firepower was negligible compared to the enemy's capabilities. This interpretation reinforces the legal argument: if the primary objective was political—to disrupt negotiations, deliver a strategic blow, or influence the course of the conflict—the attack loses its justification as a strictly necessary act of self-defense .

British critical doctrine also supports this conclusion . Christoph Bluth concludes that the British use of force in the Malvinas conflict did not satisfy the criteria of just war and that the weekend of May 1st and 2nd was the turning point that diminished the chances of a negotiated solution after the sinking of the Belgrano . His analysis is particularly valuable because it does not stem from an Argentine perspective, but rather from British academic criticism that identifies problems of proportionality and political purpose in the British decision (Bluth, 1987).

From the perspective of international humanitarian law , the classification as a war crime requires identifying a serious violation of the laws and customs of war , which, at the time of the events in 1982, were already defined by the Geneva Conventions of 1949 and the customary principles derived from Nuremberg, without needing to resort to anything other than interpretive developments such as the Rome Statute; Within this framework, the applicable normative core includes the prohibition of attacks not justified by military necessity, the principle of proportionality, the obligation to distinguish, and the duty to provide humane treatment to those who are hors de combat. These principles were subsequently systematized in the naval sphere by the San Remo Manual on International Law Applicable to Armed Conflicts at Sea (1994), which incorporates pre-existing customary norms and establishes that attacks are only lawful when directed against military objectives and do not cause excessive damage in relation to the concrete and direct military advantage anticipated. It also clarifies that exclusion zones do not in themselves generate presumptions of lawfulness nor alter these principles. Consequently, once a ship has sunk, the survivors acquire the status of protected shipwrecked persons, and the Geneva Convention II becomes fully applicable. Article 18 of this Convention imposes the obligation to adopt without delay all possible measures for their search and rescue, and any failure to comply constitutes a significant violation of international humanitarian law.

The category of “act of war” is thus dismantled . Yes, the sinking was an act committed during wartime; that expression does not make it lawful nor does it preclude examining it as a possible war crime . The expression comes from a political tradition of classical interstate warfare, where acts of hostility were described as sovereign acts of war. But after the Charter of the United Nations, Nuremberg, Geneva, and San Remo, that category became legally subordinate . Every act of war must pass two filters: first, whether the use of force remained within the bounds of legitimate, necessary, and proportionate self-defense; second, whether the specific method of attack respected the rules governing the conduct of hostilities . If either of these filters fails, it is not enough to say “it was war.”

The Madrid Accords add a problematic legal dimension . Madrid I included the cessation of hostilities and a reciprocal commitment not to make claims for losses or damages caused by hostilities and actions surrounding the Malvina Islands, South Georgia, and the South Sandwich Islands. Madrid II, for its part, advanced confidence-building measures, direct communication, and search and rescue operations, including SAR procedures coordinated between Argentine centers and British authorities on the islands. This non-claim clause may have inter-state effectiveness with respect to available property or diplomatic claims, but it should not be interpreted as a valid waiver of the right to investigate war crimes. Grave international crimes are not simply transactional agreements between states . It is one thing to normalize asymmetric and unconstitutional diplomatic relations under the umbrella of sovereignty; it is quite another to absolve oneself of responsibility for serious violations of international humanitarian law.

Consequently, the war crime hypothesis is best supported by six elements : first, the Belgrano was a military target in the abstract, but not necessarily a target lawfully attacked under those circumstances ; second, it was outside the exclusion zone and, according to the critical reconstruction, moving away from the main theater of operations ; third, the authorization to attack it depended on a modification of the rules of engagement ; fourth, HMS Conqueror operated with technological and tactical superiority ; fifth, the means employed —three Mark 8 torpedoes with 810 pounds of Torpex each —reveals an order to sink, not to neutralize at least some degree ; sixth, peace negotiations were underway . On this basis, the deaths of 323 crew members and the total destruction of the ship appear to be legally disproportionate harm in the face of a threat not demonstrated to be immediate.

The conclusion must be formulated rigorously: the sinking of the ARA General Belgrano cannot be covered by the rhetorical formula of “act of war . ” It was a military operation in a wartime context, but precisely for that reason, it should be subject to the laws of war . Based on the work of Baccaro, Gavshon and Rice, Bluth and Trejo, there are serious grounds to support its classification as a war crime , provided that the evidentiary framework confirms the absence of an imminent threat, the strict military necessity, the political purpose of escalation, the disproportionate use of force, and the incompatibility of any subsequent impunity clause with international obligations regarding serious violations of humanitarian law.

Juan Facundo Besson is a lawyer (Faculty of Law, National University of Rosario). He specializes in Labor Law (Faculty of Law, National University of Rosario). He is a doctoral candidate in Law (Faculty of Law and Civics, Catholic University of Argentina). He is an Adjunct Professor of Integration Law (Chair C) and a Teaching Assistant of Political Law (Chair C) at the Faculty of Law of the National University of Rosario; Professor of Public International Law (Chair A). He is the Director of the Malvinas, South Atlantic and Antarctic Observatory (National University of Rosario) and President of the Institute of Studies on the Malvinas, South Atlantic and Antarctica of COLABRO. He coordinates the Arturo E. Sampay Study and Research Group (Renato Treves Center, Faculty of Law, National University of Rosario).

Literature

Baccaro, PE (2013). Fire 6,1,2: The sinking of the Belgrano: the fact and the law of war (2nd ed.). National University of Lanús.

Bluth, C. (1987). The British resort to force in the Malvinas/Malvinas conflict 1982: International law and just war theory. Journal of Peace Research, 24(1), 5–20.

Gavshon, A., & Rice, D. (1984). The sinking of the Belgrano. Secker & Warburg.

Trejo, C. (2019, May 2). It was a war crime: 37 years after the sinking of the ARA Gral. Belgrano [Interview]. Radio UNAJ.

Trejo, C. (2026, April 10). Education as a trench: César Trejo and the comprehensive battle for the meaning of Malvinas . Pal' Sur .

Keywords: ARA Gral. Belgrano, international law, jus ad bellum, war crime