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<p>Since the Nuremberg Military Trials (NMTs), international criminal law (ICL) has evolved beyond traditional notions of individualised responsibility to encompass overarching liability. Within this evolution, deontological frameworks were introduced to hold individuals accountable for crimes committed vicariously, jointly, or under orders from others, thus collectively forming <i>sui generis</i> modes of liability in ICL. Among these frameworks, the concept of ‘taking a consenting part’ (TCP) emerged from Nuremberg, establishing a basis for holding a bystander criminally liable for international crimes committed by others through inaction or tolerance. Although inferred from the NMT enabling laws – and applied interstitially only once – TCP has since fallen into abeyance. This paper critically examines TCP as a mode of liability, exploring its theoretical underpinnings, rationale, and contemporary relevance. Specifically, it expounds on TCP’s conceptual framework, its relationship to other modes of liability, and the reasons for its initial adoption and subsequent disappearance. The paper further highlights TCP’s potential role in addressing the accountability gaps in ICL’s modes of liability doctrines, which merit further scholarly attention. In conclusion, it proposes that TCP extends beyond the traditional naturalistically approached commission theories (principals and accessories), assigning culpability akin to an accessory while autonomously establishing a <i>sui generis</i> mode of liability within ICL’s <i>sui generis</i> modes of liability. Moreover, revisiting TCP offers a fresh perspective on resolving doctrinal challenges to strengthen accountability mechanisms in The Hague and beyond.</p>

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From Nuremberg to The Hague and Beyond: Reincorporating ‘Taking a Consenting Part’ into International Modes of Liability

  • 期刊论文

  • 发表日期：

    2025年9月1日

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  • Humoud Al-Fadhli

摘要

Since the Nuremberg Military Trials (NMTs), international criminal law (ICL) has evolved beyond traditional notions of individualised responsibility to encompass overarching liability. Within this evolution, deontological frameworks were introduced to hold individuals accountable for crimes committed vicariously, jointly, or under orders from others, thus collectively forming sui generis modes of liability in ICL. Among these frameworks, the concept of ‘taking a consenting part’ (TCP) emerged from Nuremberg, establishing a basis for holding a bystander criminally liable for international crimes committed by others through inaction or tolerance. Although inferred from the NMT enabling laws – and applied interstitially only once – TCP has since fallen into abeyance. This paper critically examines TCP as a mode of liability, exploring its theoretical underpinnings, rationale, and contemporary relevance. Specifically, it expounds on TCP’s conceptual framework, its relationship to other modes of liability, and the reasons for its initial adoption and subsequent disappearance. The paper further highlights TCP’s potential role in addressing the accountability gaps in ICL’s modes of liability doctrines, which merit further scholarly attention. In conclusion, it proposes that TCP extends beyond the traditional naturalistically approached commission theories (principals and accessories), assigning culpability akin to an accessory while autonomously establishing a sui generis mode of liability within ICL’s sui generis modes of liability. Moreover, revisiting TCP offers a fresh perspective on resolving doctrinal challenges to strengthen accountability mechanisms in The Hague and beyond.