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?

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