Were the US, UK and France complicit in genocide?

Officially 8,372 men and boys were massacred between 11–22 July 1995.

Florence Hartmann and Ed Vulliamy’s article in The Observer revealed details of the knowledge and involvement of the US, UK and France in the Srebrenica genocide of July 1995. There has been considerable misunderstanding of the legal definitions in play with regards to the revelations drawn from Hartmann’s book The Srebrenica Affair: The Blood of Realpolitik.

‘Complicity’ has been used to describe the actions of the three allies, and in particular the US due to the use of spy planes that allowed the CIA to see the massacre in real time. However, to be found complicit in genocide they would have had to have taken positive actions to furnish aid or assistance to the Army of the Serb Republic [VRS] in order to be found in breach of Article 3(e) of the Genocide Convention 1948.

Such a finding, based on the revelations, is highly unlikely because no aid or assistance was furnished for the commission of genocide, in accordance with the ILC Articles on State Responsibility. The United Nations did, however, provide 30,000 litres of petrol to Serb forces; this proved instrumental in allowing them to use bulldozers to dump over 8,000 bodies into mass graves.

Instead, their guilt lies in a failure to prevent, which ‘results from mere failure to adopt and implement suitable measures to prevent genocide from being committed’ as established in the International Court of Justice’s decision in the Genocide Convention Case (Bosnia v. Serbia).

The Article 1 obligation for States parties to the Genocide Convention was viewed by the ICJ as one of conduct and not outcome. Therefore, the obligation is ‘to employ all means reasonably available to them, so as to prevent genocide so far as possible’. Concurrently, ‘responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide’.

Indeed, the ICJ took the view that due to the possibility that multiple States could combine their efforts, in compliance with their obligation to prevent, the commission of genocide could be averted; as such, States parties to the Convention would not be able to claim that had they taken all reasonable steps available to them it would not have sufficed to prevent the commission.

The ICJ’s finding that Serbia breached its obligation to prevent was based on the fact that Belgrade ‘could hardly have been unaware of the serious risk of it once the VRS forces had decided to occupy the Srebrenica enclave’. This appears to mirror the awareness of the US, UK and France as Srebrenica was overrun.

Moreover, the Court’s approach means that the burden to prevent arises ‘at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed’.

[Milošević’s] Serbia is clearly at the top of the list in this regard, setting aside its direct involvement and complicity; but it would be absurd to conclude that the United States, with its intelligence apparatus, was unaware of the genocide by 13th July. Indeed, Vulliamy’s article indicates the US was aware of the likely outcome as being extremely high long before Mladić’s men entered the town.

The Genocide Convention Case, therefore, represents the framework with which Bosnia would be able to bring a case before the ICJ against the US and UK for violating their obligation to prevent, taking into account their apparent awareness and blatant failure to take all reasonable steps.

Unfortunately, the prospect of such an outcome borders on the fanciful in view of the United States’ influence and control over Bosnia, Bosnia-Hercegovina’s seemingly never ending stasis and the Bosnian Serbs’ intransigence in anything to do with the acknowledgement of the genocide.

Srebrenica-Potocari Genocide Memorial

Nevertheless, there is hope for further legal redress after a Dutch court’s 2014 judgment found The Netherlands responsible for the deaths of 300 Bosnian Muslim men that had sought refuge at the Srebrenica base of the Dutch battalion [Dutchbat] that formed the UN Protection Force [UNPROFOR].

The peacekeeping force, in Srebrenica to maintain its safe zone status, handed over the 300 victims to Bosnian Serb forces, even though they ‘should have been aware of a serious risk of genocide of the men’.

While the ICJ’s 2007 judgment is largely timid, at times deploying considerably flawed logic and reasoning, it has nevertheless imposed a far reaching obligation to prevent on States parties to the Convention based on their influence and awareness of the likelihood of genocide being carried out, without territorial limits.

As The Observer article indicates, there was sufficient knowledge of the likelihood of genocide being carried out in light of the various statements of Serb politicians up to July 1995, as confirmed by the ICTY in Krstić.

Arguably, the ‘due diligence’ the ICJ requires would have been fulfilled by 11th July, which means the US and UK may have been in breach of their duty to prevent before the killings began, bearing in mind their ‘capacity to influence effectively’ the perpetrators. However, the ICJ is more likely to take 13th July as the point at which the duty to prevent was breached if the 2007 judgment is any indicator.

The obligation is based on influence, which is inexorably linked to the idea of control. However, the distinction between complicity and failure to prevent is minute, allowing for a State to furnish aid or assistance, without being complicit, at a time when it is aware of a serious danger of genocide but not when it is aware of the actual commission being carried out. Such an approach represents a convenient escape clause for States.

In Rwanda the simple act of blocking radio frequencies would have made a positive contribution in preventing the commission of genocide, while in Srebrenica the use of political pressure and the threat of airstrikes [as requested by Dutchbat] would have saved thousands of lives.

If the US and others were to be found in violation of their duty to prevent the floodgates would undoubtedly be opened in other war zones, in line with the ad hoc use of the ‘Responsibility to Protect’ principle, forcing States to intervene but without the need for massive and costly interventions.

This article initially appeared in The New Jurist. A fully referenced version can be found at Academia.edu.