The Bystander Dilemma

Debates about conflict, crime and accountability often center on the victims and the perpetrators — protection of victims; search for, prosecution and punishment of perpetrators; compensation, restitution and acknowledgement for victims. These are, of course, essential questions and issues. But any situation of violence, from random street crime to the largest atrocities, involves a more complex cast of characters than the two main protagonists. Examining the roles, potential and obligations of that vast space between victim and perpetrator offers an opportunity to explore challenging questions about human security, responsibility, and the intersection between law, morality and the social contract.

I had the great privilege of participating in just such a conversation last Friday at the University of Utah Law Review symposium on The Bystander Dilemma: The Holocaust, War Crimes, and Sexual Assaults. The symposium was inspired by Utah Law Professor Amos Guiora’s remarkable new book, The Crime of Complicity: The Bystander in the Holocaust.  Professor Guiora’s book is an intellectually challenging and deeply personal exploration of the legal and moral obligations of bystanders, based on the experiences of his parents, Holocaust survivors from Hungary.

Over the course of three panels — on the Holocaust, situations of conflict and mass atrocities, and sexual assault — and a keynote, the symposium wove together old and new conversations about several critical thematic questions. Who is a bystander? Where is the line between bystander and perpetrator or between bystander and potential victim? How do these lines affect how we view a bystander’s obligations — or perhaps how the bystander him- or herself views any such obligations? Why does the bystander matter and, most directly linked to Professor Guiora’s book, why is there a disconnect between the bystander’s moral and legal obligations?

Particularly interesting was the breadth of ways in which one might consider the bystander and for what reasons, all of which matter to any consideration of moral or legal obligations and consequences. First, and perhaps most instinctive, we think of the bystander in the context of protecting the victim of a crime — someone who can alert the authorities or even stop the violence in some way.  This links directly to the second — preventing violence and crimes. If a bystander speaks up in some way, the attack or crime is less likely to happen.

But the discussions and exploration of the bystander dilemma ranged far beyond this direct relationship. A third component focuses on assigning responsibility to act, whether moral or legal responsibility. The central call of Professor Guiora’s new book is for a legal obligation for bystanders to alert authorities or otherwise intervene to protect the victim of a crime. Fourth, the bystander conversation is also about identifying capability — who has the capability to act to help a victim, to stop a crime, to prevent violence, and how does the nature of that capability affect the content of any such obligation?

Fifth, we are also discussing how to delineate or assign responsibility for not acting. That is, unlike the prospective question of who is obligated to act, this question is about who bears responsibility for not acting and how we should identify both the individuals and the situations to which that responsibility applies. Finally, discussions of bystanders are also about the future — about creating condemnation not only for the actions of the perpetrators, but for the failure of those watching to do anything to help the vulnerable. In this way, discussions of the bystander are very much about preventing future bystanders.

Across the distinct topics of the three panels, another set of cross-cutting themes emerged, focused on how we think about the bystander and whether that changes in different types of situations. For example, the historiographical and religious-ethical exploration of the bystander in the Holocaust panel highlighted that in the Holocaust and in the stories of the Old and New Testament, bystanders are not only individuals, but also institutions and communities.

The sexual assault panel raised these same questions in contemporary conversations about the role of the military, the Church, universities, and other communities and institutions in responding to, preventing, punishing the perpetrators of and supporting the victims of sexual assault. In essence, confining the discussion to any one category misses the complexity of the bystander conversation and the opportunity to engage more of society in contributing directly to human security and protecting the most vulnerable.

The panel on war crimes and mass atrocities added yet more actors to the mix of bystander possibilities, namely countries and the international community overall. ON some level, the Responsibility to Protect doctrine is about pushing back against the world as a bystander to mass atrocities. In the aftermath of atrocities, identifying the role of bystanders during both the conflict and post-conflict phases poses fascinating and important challenges for accountability, reconciliation and other transitional justice efforts. If the interplay between morality and law is challenging at the individual level, the injection of international crimes, geopolitics and global security creates a truly combustible mix in the mass atrocities context.

Across these engaging and difficult historical and contemporary discussions, one overarching theme shone through: human dignity. Human dignity lies at the heart of international human rights law, international humanitarian law, domestic and international criminal law, and, of course, morality and ethics. The bystander conversation — or dilemma — is ultimately about human dignity in the most fundamental sense.

Watching impassively while another human being is victimized, attacks, or humiliated, or mass atrocities are perpetrated against another people, is fundamentally a failure to recognize and honor that person’s human dignity. In contrast, when an onlooker steps in to help the vulnerable, even if only by alerting the authorities to an assault or providing a sip of water to a Jewish victim on a death march during the Holocaust, or when the international community takes steps to put an end to atrocities, such acts inherently validate the human dignity of the victim. A bystander is a term for someone who does nothing — and yet with the smallest of acts, that someone can accomplish so much.

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