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Amos Guiora
Photo by Rhonda Prepes

Kristallnacht Commemoration: Should the State Enact Legislation To Require Bystanders To Intervene to Protect Victimization? Amos Guiora Says Yes.

by Rhonda Spivak, November 18, 2014





Amos Guiora, an Israeli born law professor and child of Holocaust survivors gave an interesting and thought provoking talk advocating for legal sanctions to be applied against bystanders who do nothing when confronted with the face of evil. The subject is one Guiora explores in depth in a book he is presently writing, "Inquiry into Complicity: The Bystander in the Holocaust”.





In his talk before a packed audience at the Berney Theatre for the Kristallnacht Commemoration on October 26 organized by the Jewish Federation of Winnipeg, Guiora, who is  Co-Director of the Centre for Global Justice, S.J. Quinney College of Law, University of Utah outlined how the events leading up to and including Kristallnacht in Nazi Germany serve as an example of why such a  legal standard ought to be placed on the shoulders of a bystander.





"The question is whether the state can create a positive duty on its citizens to act," Guiora, who is the author of many books and published articles dealing with the subjects of security, terrorism and the legal basis for counter terrorist actions, noted. "There are three parties involved-the perpetrator, the victim and the bystander. The culpable bystander is the one who has the ability to intervene to protect a victim but does not."





"My intention is to draw on the lessons of the Holocaust," he said, adding that legislation is needed to remedy the problem of a bystander who chooses not to intervene since "relying on human nature  is insufficient."





Guiora acknowledged that the sad truth is that although there were definitely thousands of cases where Gentiles in Nazi-occupied Europe helped hide their Jewish neighbours, millions of people were bystanders who did nothing.





There are, of course, many reasons why people do not intervene when they see another being victimized, such as a concern for their own personal safety or the safety of their family members or friends or colleagues, the fear of being subject of a revenge attack , indifference, or the hope that someone other than they will act to stop the victimization.





Turning to Kristallnacht, Guiora noted that in Nazi Germany, anti-Jewish legislation was a prelude to Kristallnacht. Shortly after coming to power in Germany, Hitler initiated a series of regulations banning Jews from all professions, schools and universities and from owning farmland, boycotting Jewish shops and barring Jews from being  editors of newspapers. In 1935 the Nuremberg laws were enacted  which persecuted Jews, stripped them of citizenship and forbade marriage between Jews and Germans.





Polish Jewish student Herschel Grynszpan was one of the many deeply affected and by these discriminatory laws, most specifically laws that forced his family to emigrate from Germany, where they had lived nearly their entire lives. Grynszpan acted out against the Nazis and assassinated a German diplomat, Ernst von Rath in Paris. This assassination was used as an excuse by Joseph Goebbels for further persecution of Jews, as Goebbels spontaneously planned and unleashed a national pogrom on Jews .





Guiora explained that that over two days, November 9 and 10th 1938, 91 Jews were murdered, over 1000 synagogues were burned to the ground, over 7000 Jewish businesses were destroyed or damaged and 30,000 Jews were arrested and sent to concentration camps. In addition, Jewish schools, hospitals and homes were attacked. Quoting from historian Martin Gilbert, Guiora noted that "there were eye witnesses in every corner of the Reich" to the  violent events that took place during Kristallnacht.





As Martin Gilbert  wrote, " No foreign propagandist bent on blackening Germany before the world could outdo the tale of  burnings and beatings, of blackguardly assaults on defenseless and innocent people, which disgraced that country" on Kristallnacht.





"Jews were made to pay for the damage to their own property, " Guiora noted. "Kristallnacht was the precurser to the absolute physical annihilation of Jews."





Quoting another historian, Saul Friedlander, Guiora said "No bishop or church dignitary made any open declaration against what was being done to the Jews of Germany." Guiora then added "Legal accountability of the bystander is required."





Guiora himself spoke of an occasion when he failed to intervene when he witnessed a university student bullying a homeless person. Under the legislation Guiora is proposing, he would have been charged for standing aside and doing nothing. (Editor's note: This type of situation can include many different fact scenario's that raise many complicated questions which no doubt could easily fill up many hours in a law school classroom discussion. For example, there are many different ways to act. Should the bystander in this case described have tried to notify campus security assuming this bullying of a homeless person was happening on campus?  If they did, would that be sufficient? If the person who is a bystander is a female who is much physically weaker than the male who is bullying, ought the female be required to intervene by the state? Ought she have to try to find a male to help her intervene?. What if she did try to intervene and herself was then subjected to violence? If the state had required any person, male or female, to intervene and they did and suffered physical violence would they be able to sue the state for damages? lost income?  What if prior to the bystander arriving the homeless person had been harassing the person bullying or had approached him asking him for money and the person had said no, and the situation had escalated? Would that change things?] . Interestingly, one audience member asked Guiora to distinguish this type of legislation from "spying on your neighbor."








In answer to a question about current German antisemitism, Giora did say he "has been to Germany many times' , and "there is no European country" (such as Austria or Hungary), "that has sought to address its crime in  perpetrating the Holocaust" as much as Germany has.





During the latter part of his talk, Guiora spoke of the fact that during the 1920s and 1930s there were lynchings of African-American males in the American South and Midwest and there were large numbers of spectators who came to watch these events.

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Rhonda Spivak, Editor

Publisher: Spivak's Jewish Review Ltd.

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