'Taking a Consenting Part': The Lost Mode of Participation

11 Pages Posted: 14 Oct 2016

See all articles by Kevin Jon Heller

Kevin Jon Heller

University of Copenhagen (Centre for Military Studies); Australian National University

Date Written: October 13, 2016


This short article, my contribution to a special issue of the Loyola International and Comparative Law Review commemorating the 70th anniversary of the Nuremberg Trial, critically examines “taking a consenting part” in an international crime – a mode of participation that was applied by the Nuremberg Military Tribunals but then disappeared into the ether of international criminal law, never to be seen again. The article is divided into three sections. Section I briefly explains how the NMTs understood the basic principles of individual criminal responsibility. Section II discusses the essential elements of “taking a consenting part” as a sui generis omission-based mode of participation. Finally, using the ICTY’s judgments in Hadžihasanović as a case study, Section III asks whether international criminal law would be better off if it rediscovered “taking a consenting part” in an international crime.

Keywords: Nuremberg, Modes of Participation, Modes of Liability, IMT, International Criminal Law, International Criminal Tribunals, WW II

Suggested Citation

Heller, Kevin Jon, 'Taking a Consenting Part': The Lost Mode of Participation (October 13, 2016). Loyola of Los Angeles International and Comparative Law Review, Vol. 38, No. 3, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2852067

Kevin Jon Heller (Contact Author)

University of Copenhagen (Centre for Military Studies) ( email )


Australian National University ( email )

Canberra, Australian Capital Territory 2601

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