When Are Bystanders Complicit?

The Crime of Complicity: The Bystander in the Holocaust by Amos N. Guiora, Ankerwycke, April, 2017

Amos Guiora, a law professor at the University of Utah,  was born in Israel, moved to America as a child with his family, and  later  moved back to Israel, where he had a long career in the Israeli Defense Forces, serving in the Judge Advocate General Corps.  In recent years he has been a faculty member at several American law schools. For the record, Amos is a friend, and we both attended Kenyon College.

Guiora’s grandparents on his father’s side were murdered at Auschwitz. Both his mother and father had near death experiences in Nazi occupied Hungary and Yugoslavia towards the end of World War 2. In his new book, Guiora examines the role of the bystander during the course of the years when Germany and its proxies slaughtered approximately six million Jews in Europe, nearly 2/3 of the prewar Jewish population on the continent.

Guiora’s key question surrounds whether this Nazi extermination program could have succeeded without the complicity of many people in the countries of Europe, who were not themselves perpetrators of the crimes against the Jews.  Were they innocent bystanders or guilty themselves for failure to assist those in immediate need, oftentimes their neighbors.  The author clearly believes that many more Jews could have been saved had bystanders intervened, and the bystanders were in many cases guilty of the crime of complicity.

Guiora extends his analysis to a more general approach to evaluate complicity of bystanders to crimes that they see  in the modern world, including suggested language for when standoffish behavior by bystanders  is in effect unacceptable, and subject to  penalty of some sort.

My major problem with Guiora’s  analysis relates to whether his suggested approaches to complicit behavior by bystanders today would have had any impact during the dark days of 1939-1945. The United States is a country with the rule of law and established procedures to deal with those who break the law -- either as perpetrators, or as bystanders when the laws were changed in many places to make bystander complicity (however it should be defined) illegal.  In Nazi occupied or controlled Europe, the idea that bystander behavior would have been  better -- more intervention to help the beleaguered Jews marching or being rounded up had there only been laws on the books to punish those who did not help the bystander if there were no physical risk to themselves -- seems highly unlikely. At the Israeli Holocaust Museum, Yad Vashem,  there are dedications to the righteous among those in Europe who took personal risks in order to shelter or assist in some other way  the Jews of Europe.  In essence, there were those whose values, ethics, or personal moral code required or enabled them to act. These people were a distinct minority among many others who were either indifferent or worse -- in some cases creating additional pain for  the Jews in distress.

Anti-Semitism in Europe during the pre war period and in World War 2 was widespread, more open than is acceptable today for most Europeans, (though  that seems to be changing), and had a long ugly history in many of the countries where the highest percentage of pre-war Jews perished during the Holocaust.  It is interesting that Guiora’s parents had little or no confidence in their neighbors or countrymen behaving any better than they actually did.  Guiora’s father was saved from death by an attack by Yugoslav partisans on  a march toward Hungary from a camp in Serbia.  Yugoslav history during World War 2 was one of the bloodiest in all of Europe (10% killed), and resembles to some extent modern Syria, with shifting alliances and targets among ethnic groups with long histories of  grudges toward others in their country carried over centuries.  That his father was saved was more happenstance than noble behavior by a group. Tito’s partisans wanted to defeat the Nazis, not look out for the Jews.

Guiora lays out examples of where appropriate bystander behavior today might involve nothing more than using a cellphone, if one is in the presence of a crime, to notify authorities that someone was at risk of physical harm.  No intervention is required which would impose the risk of physical harm to the bystander or his family.  There could be other extenuating circumstances as well. He suggests that bystander complicity might result in a $500 fine upon conviction.

The type of legal approach suggested by Guiora is certainly a mainstream suggestion,  already in existence in a few states, and would draw both proponents and opponents, depending on how one feels about personal autonomy and personal responsibility.  But Guiora is certainly correct  that doing nothing is often a contributing factor to creating harm for victims of attacks.  This week, there was a report of a gang rape in Chicago seen by 40 people on Facebook, none of whom thought to notify authorities.

Violent crime rates in the United States  are on the rise again after a long period of decline, and the clearance rate is way down from earlier periods.  People won’t “snitch” on their friends or neighbors or volunteer to correct a fake news record (e.g. Michael Brown was an innocent victim walking with his hands up when  shot by a policeman).  But it is likely that police could identify who watched and did nothing on a social media site whose primary beneficiary at this point appears to be the company receiving  ad revenue.

Guiora believes that laws that make bystander complicity legally liable will have a deterrent effect, making it more likely that fewer crimes are committed with wide public exposure.  However, whether this is likely depends on whether the sanction is sufficient to change bystander behavior and or perpetrator behavior. Will the possibility of a $500 fine cause someone to call 911 when they see a crime being committed on Facebook, something they get to view because one is linked to at least one of the perpetrators who was proud to send video around of his “accomplishment”?

When I was a young child of 12 or 13 in New York, I was robbed on a subway train by three adults with knives and clubs while coming back home from Madison Square Garden to the Bronx. So too were two friends who were with me.  The train car was an express during the robbery, with no stops, and no one else in the car lifted a finger to intervene. They buried their heads in their newspapers (this was back when people read newspapers). We all surrendered what we had, and that seemed enough for the robbers. But what if the perpetrators had been more malicious and had decided to pound us physically?  My guess is that would have created even a greater inhibition for action by the bystanders on the train, none of whom would have been identifiable in any case after the event.  The idea of bystander complicity being punishable will only work if there is no risk of physical harm to an intervener and the requirement for action is something as simple as a call to 911. But will a statute requiring such behavior result in  more intervention (this occurs at times today with no legal sanction for non-intervention), or more people disappearing while crimes are being committed to avoid ever being questioned or judged?

A  state of nature  existed in Europe during World War 2, given the constant fighting,  the German occupation, and their obsession with killing Jews, ratcheted up when victory in the war itself became impossible. Add to that the longstanding hatred for Jews, particularly in the nations of Eastern Europe where most of the Jews lived before the war and where the casualty count and percentage of Jews killed were the highest. It is hard to imagine the kind of popular uprising or resistance that would have changed the course of history for many of the victims, and certainly the threat of legal action for bystander inaction was not a serious consideration.  Nonetheless, widespread bystander misbehavior added to suffering.

Guiora is right to raise the issue and consider the legal argument. His investigation into what happened to the Jews in various places in Europe during the war is compelling. But the question of how to deal with bystander complicity today is one that the author concedes is hardly a laydown in terms  of making the case.  Do we need the threat of sanction to behave better? How serious does the sanction need to be? Will police really prosecute these cases of bystander complicity rather than those committed by the perpetrators, for which their closure rate is so poor? 

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