M.1. The perpetrator took action that commenced the execution of the crime by means of a substantial step.

M.P.1. Evidence that the perpetrator was about to commence an attack.

M.P.2. Evidence that the perpetrator was a superior and decided not to exercise control properly over his or her forces to prevent them from committing an international crime.

M.1. The perpetrator took action that commenced the execution of the crime by means of a substantial step.

A. Evidentiary comment:

It is not clear whether one legal element of the e must be accomplished for attempt, or whether an act immediately preceding the execution of the crime suffices.

Kai Ambos "Article 25" in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999), p. 488:

"It is clear that preparatory acts are not included since they do not represent a "commencement of execution". In fact, this was the only issue which was not controversial within the ILC when discussing attempt. ⁸¹"

"⁸¹ (1986) 2 Y.B.I.L.C., p.49 (para. 129)."

Gerhard Werle, Principles of International Criminal Law (2005), p.168:

"[T]he line between preparatory actions, which are not criminal under the ICC Statute, and criminal attempts is crossed if the perpetrator has begun to execute the crime and a material element of the definition of the crime is already in place.⁴⁴⁵"

"⁴⁴⁵ See A. Eser, in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 767 at p. 812; K. Ambos, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (1999), Art. 25, marginal no. 32."

A. Legal source/authority and evidence:

Gerhard Werle, Principles of International Criminal Law (2005), p. 168:

[C]onduct taking place before the actual execution may also be criminal.⁴⁴⁶ A "substantial step" is present if the perpetrator’s purpose has been reinforced or corroborated. ⁴⁴⁷"

"⁴⁴⁶ See A. Eser, in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court, Vol. 1 (2002), p. 767 at p. 812.

⁴⁴⁷ See Sec. 5.01(2) of the Model Penal Code: "when it is strongly corroborative of the actor’s criminal purpose.".

Albin Eser, "Individual criminal responsibility" in Antonia Cassese et al., eds, The Rome Statute of the International Criminal Court: a Commentary, Vol. 1 (2002), p. 812-813:

"[T]he door is open for teleological interpretation [of Article 25(3)(f)] which would orientate itself by the degree of endangerment to the protected interest or object. This means that, on the one hand, attempt does not necessarily require a partial fulfilment of the definitional elements of the crime but that, on the other hand, the perpetrator according to his opposition and intention is already directly endangering the protected interest or object, as would be the case when the murderer is about to pull the trigger or the rapist is ready to assault or seize the victim the next moment. This delineation is perhaps best expressed by the German concept which requires that the perpetrator ‘in accordance with his conception of the crime, moves directly towards its accomplishment.’²⁰¹ This approach also appears in fact to be practised in French²⁰² and Spanish law,²⁰³ and last but not least, seems also to have guided the ILC when letting suffice for the ‘commencement of execution’ that ‘the individual has performed an act which constitutes a significant step towards the completion of the crime’.²⁰⁴"

"²⁰¹. § 22 German Strafgesetzbuch reads as follows: ‘Eine Straftat versucht, wer nach seiner Vorstellung von der Tat zur Verwirklichung des Tatbestandes unmittelbar ansetzt.’ For more details to the – partially controversial – interpretations of this definition, See Eser, in Schonke and Schroder (eds.), supra note 61, § 22 margin Nos. 25-55. Thus, it is not the subjective proposition of the attempter alone as perhaps misunderstood by Serini (in Lattanzi, supra note 141, 144 f.), but in connection with the objective move towards the execution of the crime which delineates mere preparation from attempt.

²⁰². Although somehow diverging from the wording of Art. 121-5 of the French Code Pénal, the French doctrine seems to have understood ‘un commencement d’éxecution’ always in a broad sense of ‘tout acte qui tend directement au délit.’ Cf H. Pelletier and J. Perfetti, Code Pénal (10^th edn., 1997) 20.

²⁰³. In avoiding the term of ‘commencement of execution’, according to Art. 16 of the Spanish Codigo Pénal the attempt occurs ‘quando el sujeto da principio a la ejecucion del delito directamente por hechos exteriores’, a definition which, according to Mir Puig, supra note 63, 340, comes closest to the German conception.

²⁰⁴. Report of the ILC, 48^th Sess., supra note 5, 27. The same conclusion after evaluating the various comparative materials is drawn by Ambos, in Triffterer, supra note 7, margin No. 32.".

Kai Ambos "Article 25" in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999), p.489:

"The ILC Commentary explained that "commencement of execution" indicates that "the individual has performed an act which constitutes a significant step towards the completion of the crime."⁸³ Consequently, there is no requirement that the crime in question be partly executed, i.e. the person need not have realized one or more elements of the crime. The French version of the Statute also speaks of "un commencement d’exécution", employing the wording of article 121-5 of the Code Pénal. French legal scholarship has always understood the concept in a broad sense, covering "tout acte qui tend directement au délit"⁸⁴."

⁸⁴Cf. H. Pelletier/J. Perfetti, Code Pénal 1997-1998 20 (10^th ed. 1997).".

M.P.1. Evidence that the perpetrator was about to commence an attack.

A. Legal source/authority and evidence:

Albin Eser, "Individual criminal responsibility" in Antonia Cassese et al., eds, The Rome Statute of the International Criminal Court: a Commentary, Vol. 1 (2002), p. 812:

"[T]he perpetrator according to his opposition and intention is already directly endangering the protected interest or object, as would be the case when the murderer is about to pull the trigger or the rapist is ready to assault or seize the victim the next moment."

M.P.2. Evidence that the perpetrator was a superior and decided not to exercise control properly over his or her forces to prevent them from committing an international crime.

A. Legal source/authority and evidence:

Albin Eser, "Individual criminal responsibility" in Antonia Cassese et al., eds, The Rome Statute of the International Criminal Court: a Commentary, Vol. 1 (2002), p. 814:

"If with regard to [Article 28(a) of the ICC Statute] a commander decided not to take control of his forces and, thus, had the intention of committing a crime by omission according to Article 28 of the ICC Statute, the question is whether in case the expected crime of the subordinate is not accomplished in the end, the commander’s attempt of omission is commenced as early as his letting the first occasion pass in which he would be able to prevent the subordinate’s action, or whether the omission is not commenced until the last possibility for intervention. Instead of these opposite extremes, both probably represented in national laws, considering the silence of the ICC Statute it again appears preferable to refer to the criterion of endangerment according to which the attempt commences as soon as the protected object is put in immediate danger due to the commander’s not preventing his subordinate, or as soon as an existing danger is substantially increased by the commander’s failure to intervene.²¹⁰"

"²¹⁰ On more details of the delineation of the attempt by omission see Eser, in Schonke and Schroder (eds.), supra note 61, § 22 margin No. 46 ff."