Syria Insta-Symposium: Otto Spijkers–Can States Stand Idly By?: Bystander Obligations at the Domestic and International Level Compared

[Otto Spijkers is an Assistant Professor of Public International Law at Utrecht University]

It is interesting to compare the obligations of States at the international level with the obligations of individuals at the national level. Such a comparison is also interesting when it comes to the obligations of other States to intervene in Syria. In this post I will suggest some lessons we can learn from domestic experience.

Article 450 of the Dutch Penal Code states that any person who sees someone in immediate mortal danger, must provide support, if he can do so without endangering himself or others. If he refuses to do so, and if the death of the victim follows, the bystander will be punished with imprisonment not exceeding three months. In many other States, standing idly by when someone is in immediate mortal danger is equally a criminal offense. Does such a rule exist also at the international level? It seems safe to say that at the moment there is no general obligation of bystander States to intervene in certain predefined types of events, except perhaps in some extreme cases such as genocide. But should it exist?

Article 450 was included in our Penal Code in 1880. Inclusion of this article was defended at the time with the argument that the “popular consciousness” was annoyed by the impunity of people standing by when fellow citizens were dying.  Feldbrugge, who analyzed the theoretical foundations of similar provisions in domestic criminal legislation all over the world (see Feldbrugge, ‘Good and Bad Samaritans,’ in the American Journal of Comparative Law, Vol. 14 (1966)), concluded that “many legislators have come to realize that certain behavior with regard to persons in danger is so offensive to the moral feelings of a community that the interference of criminal law is called for.” Clearly, a similar argument can be made to recognize a legal responsibility to intervene at the international level: doing nothing in extreme cases is offensive to the moral feelings of an international community, and thus intervention should be a legal obligation. As “extreme cases” requiring bystander State intervention, we could think of the commission of serious breaches of obligations owed to the international community as a whole (erga omnes), but this is not the place to explore this issue in great detail.

States that do not have a similar provision in their criminal code – essentially the Anglo-American legal systems – believe that the law should not enforce altruism on people. Similarly, when the Dutch legislator discussed the article in 1880, a minority believed that it was better to leave it to the indignation of the public than to punish the perpetrator as lawbreaker. You cannot legally oblige people to be a hero, so it was said, and put them in prison if they refuse. Another argument against including an article like 450 Dutch Penal Code is that in extreme cases, doing nothing can always be qualified as the commission of a crime by omission, or as providing aid or assistance in the commission of the crime (complicity). Applying this to the international situation, it seems inappropriate to regard all States that “do nothing” as faciliators of the wrongful act in such strong sense. There is thus a need to oblige bystander States to intervene.

Although intervening might be the “right thing to do,” there are good reasons not to intervene.  Rescue operations might end badly, with both the victim and the rescuer seriously harmed. And even if a rescue is successful, nobody is really any better off than before the victim got into trouble. The victim will probably have suffered some harm already, and the rescuer might be traumatized or physically hurt because of the rescue. A rescue attempt can also be very costly. And thus, the bystander is in an unenviable position and it is remarkable that anyone should ever intervene at all. The same reasoning can be applied at the inter-State level: the intervening State is seldom rewarded for its intervention, even if the intervention is entirely successful, which is rarely the case at the international level.

In order to commit the offense of Article 450 Dutch Penal Code, the bystander must have had a certain awareness of the danger the victim was in. Since intervening is not an attractive option, most bystanders will do their best to interpret what appears to be a victim in trouble as, in fact, a normal course of events. The indecisiveness of other bystanders – and bystanders can remain indecisive for a very long time – is often interpreted as a decision not to intervene. If others appear to have decided not to intervene, it is easier to do the same. This phenomenon is referred to as “pluralistic ignorance.”  Clearly, this phenomenon occurs also at the international level. If all other States are hesitant to intervene, then a particular indecisive State will follow what it regards as the majority opinion: do not intervene.

If the event is interpreted as the kind of event which obliges the bystander to intervene, the bystander has to accept that it is his personal responsibility to intervene. Once again, one must keep in mind the unattractiveness of intervention. And thus the bystander will still try to find justifications for not-intervening. One justification for not intervening is to convince oneself that the victim somehow deserved it, or was asking for it.  In general, this justification for not intervening is not accepted. As Feldbrugge concluded, “where the victim himself is to be blamed, entirely or in part, for having placed himself in a dangerous situation, there is no fundamental change in the duty of potential rescuers.”  The argument that the population in Syria does not deserve to be rescued because it brought itself in the position it is now in is thus not a good argument.

Feldbrugge noted that the ability – and thus responsibility – to help depends on the bystander’s nearness to the danger and his ability to effectively intervene. This would make neighboring States (Turkey, Members of the League of Arab States), or particularly powerful States (USA), more responsible than others (e.g. the Netherlands).  An interesting question is whether the perpetrator (Syria), after having wounded the victim (its own population), has a duty to provide assistance to that victim. Although such an obligation seems awkward, it also seems unfair to suggest that the perpetrator can leave his victim to die when innocent bystanders have a legal obligation to assist the victim. Feldbrugge had an interesting solution to this dilemma: “where the danger to the victim has been caused intentionally [as in the case of Syria, presumably], the lesser offense of failure to rescue is “absorbed” by the greater offense of attempted homicide.”

Finally, if the bystander has decided to intervene, he must consider the appropriate type of assistance. Feldbrugge noted, on the consequences of “negligent execution of the duty to rescue,” that “the decisive factor in this respect is the rescuer’s motivation.” In other words, a bystander cannot be blamed for a very clumsy and thus failed rescue attempt, as long as he seriously meant to rescue the victim. Of course, Dutch people immediately think of the role of Dutchbat in Srebrenica in 1995. Indeed, it seems unfair that a failed rescue attempt can traumatize a nation for decades, whilst States that did not even try to rescue the victim (the Bosnian Muslims in Srebrenica) have no such trauma.

True enough, Article 450 of the Dutch Penal Code only asks of the bystander that he makes a serious attempt to rescue the victim. But nobody likes to make a fool of himself in public. In the words of Latané and Darley: “the bystander to an emergency is offered the chance to step up on stage, a chance that should be every actor’s dream. But in this case, it is every actor’s nightmare. He hasn’t rehearsed the part very well and he must play it when the curtain is already up. The greater the number of other people present, the more possibility there is of losing face.” (Source: Latané & Darley, The unresponsive bystander: why doesn’t he help? (1970), p. 40.) When the whole world is watching, the possibility of “losing face” does play a role. I am sure it also plays a role in Obama’s thinking about whether to intervene or not.