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Bystander Obligations at the Domestic and International Level Compared Goettingen JournalBystander of International Obligations Law at 6 the (2014) Domestic 1, 47-79 and International Level 47 Bystander Obligations at the Domestic and International Level Compared Otto Spijkers* Table of Contents A. Introduction ...........................................................................................49 B. Comparing International and Domestic Bystanders ...............................51 I. Framing the Question ........................................................................51 II. Comparing the Domestic and International Legal Order ................................................................................................ 54 C. When Bystander Intervention is Legally Required ..................................59 I. Bystander Obligations at the National Level .......................................59 II. Bystander Intervention at the International Level ...............................59 D. Raisons d’être of Making Bystander Intervention a Legal Obligation ....................................................................................62 I. Raisons d’être of Bystander Obligations at Domestic Level ..................62 II. Raisons d’être of Bystander Obligations at Inter-State Level ............... 64 E. Why Bystanders Generally Prefer not to Intervene .................................65 I. Reasons for Bystanders not to Intervene at Domestic Level ................65 II. Reasons for Bystanders not to Intervene at the International Level ............................................................................ 66 F. Bystander Awareness of the Need to Intervene........................................67 I. Bystander Awareness at the Domestic Level ........................................67 II. Bystander Awareness at the International Level ................................. 68 G. Bystander Responsibility to Intervene .................................................... 68 * Assistant Professor of Public International Law at Utrecht University School of Law. This article is an expanded version of ‘Can States Stand Idly by?: Bystander Obligations at the Domestic and International Level Compared’, a blog post published at Opinio Juris (2 September 2013), available at http://opiniojuris.org/2013/09/02/29474/ (last visited 31 July 2014). doi: 10.3249/1868-1581-6-1-spijkers 48 GoJIL 6 (2014) 1, 47-79 I. Bystander Responsibility to Intervene at Domestic Level ................... 68 II. Bystander Responsibility to Intervene at the International Level ..................................................................................................71 H. Choosing the Appropriate Type of Bystander Assistance .........................73 I. Choosing the Appropriate Type of Bystander Assistance at Domestic Level ...............................................................................73 II. Choosing the Appropriate Type of Bystander Assistance at International Level .........................................................................74 I. Conclusion ............................................................................................ 77 Bystander Obligations at the Domestic and International Level 49 Abstract This article examines whether States have a legal obligation to assist victims of serious breaches of fundamental obligations owed to the international community as a whole. This so-called ‘bystander State responsibility’ is compared with a similar legal obligation to assist victims at the domestic level. First, the method of comparing the legal obligations of international bystander States with the legal obligations of domestic bystanders is examined. Is it appropriate to compare the two legal frameworks, and why (not)? What can we learn from such a comparison? After these preliminary remarks, the types of situation in which bystander intervention is – or ought to be – legally required are identified in general terms. This is followed by an exposé of the raisons d’être of bystander obligations. After having looked at reasons why bystanders ought to intervene in theory, the article analyzes justifications for not intervening in practice, both at the domestic and international level. Finally, the different stages of bystander intervention are compared. First, the bystander must be aware of the need to intervene, then the bystander must accept personal responsibility to do so, and then the bystander has to choose the appropriate type of assistance. A. Introduction In her opening statement to the Human Rights Council in September 2013, United Nations High Commissioner for Human Rights Navi Pillay said the following about the situation in Syria: “The International Community is late, very late, to take serious joint action to halt the downward spiral that has gripped Syria, slaughtering its people and destroying its cities. This is no time for powerful States to continue to disagree on the way forward, or for geopolitical interests to override the legal and moral obligation to save lives by bringing this conflict to an end. This appalling situation cries out for international action, yet a military response or the continued supply of arms risk igniting a regional conflagration, possibly resulting in many more deaths and even more widespread misery. There are no easy exits, no obvious pathway out of this nightmare, except the immediate negotiation of concrete steps to end the conflict. States, together with the United Nations, must 50 GoJIL 6 (2014) 1, 47-79 find a way to bring the warring parties to the negotiating table and halt the bloodshed.”1 Of course, the State of Syria is obligated to protect its own people from slaughter and destruction, and a fortiori prohibited from committing such offenses itself. But Pillay was not addressing the State of Syria here. She was instead referring to the responsibilities of other States to ‘do something’. These States can be referred to as bystander States, since they are not directly involved in the conflict. So what must such bystander States do? Pillay referred to “the legal and moral obligation to save lives”;2 an obligation, presumably, that rests on the shoulders of all States, but especially on those of the most powerful. What exactly does this legal obligation to save lives entail, if it exists at all in the present international legal order? This is the question this article seeks to discuss. In order to explore this question in general terms, the international legal framework on bystander State responsibility will be compared with the obligations of bystanders in domestic legal systems, especially that of the Netherlands. First, the method of comparing international bystander States to domestic bystanders is examined (section B.). Is it appropriate to compare the two legal systems, and why (not)? What can we learn from such a comparison, and is there a tradition of making such comparison of two categorically different types of bystanders? After this preliminary section, the types of situations where bystander intervention is – or ought to be – legally required are identified in general terms (section C.). This is followed by anexposé of the raisons d’être of bystander obligations (section D.). After having looked at theoretical reasons why bystanders ought to intervene, the article analyzes justifications for not intervening in practice, both at domestic and international levels (section E.). Finally, the different stages of bystander intervention are compared. The bystander must be aware of the need to intervene (section F.), then the bystander must accept personal responsibility to do so (section G.), and then the bystander has to choose the appropriate type of assistance (section H.). The article ends with a conclusion (section I.). 1 United Nations High Commissioner for Human Rights, ‘Opening Statement at the Human Rights Council 24th Session’ (9 September 2013), available at http://ohchr.org/E N/NewsEvents/Pages/DisplayNews.aspx?NewsID=13687&LangID=E (last visited 31 July 2014). 2 Ibid. Bystander Obligations at the Domestic and International Level 51 B. Comparing International and Domestic Bystanders I. Framing the Question In this section, the appropriateness of comparing the international legal framework on bystander intervention with the domestic legal framework is assessed in a general sense. Can the situation of the international community of States, witnessing a terrible event in a specific part of the world and contemplating what to do about it, be compared with the situation of a group of human beings witnessing a fellow human being in mortal danger, and wondering whether to rescue that person? This article claims that such a comparison is indeed meaningful. It explores how the lessons learned relating to the obligations of so- called bystanders at the domestic level can be applied at the international level. At the domestic level, the behavior and legal responsibilities of bystanders have been studied for many years. Admittedly, this has not led to a single approach to bystander responsibility adopted by all States in the world. Quite the opposite: the legal systems vary fundamentally. Many States do not have a provision at all in their criminal code making standing idly by when a crime is being committed a criminal offense. These States, essentially the Anglo- American legal systems, believe that the law should not enforce such acts of altruism on people. You cannot legally oblige people to be a hero, so it is said, and put them in prison if they refuse to be one. And among the States that do make standing idly
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