'Taking a Consenting Part': The Lost Mode of Participation
11 Pages Posted: 14 Oct 2016
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
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