M.3. The perpetrator did not abandon the effort to commit the crime or did not otherwise prevent the completion of the crime by completely and voluntarily giving up the criminal purpose

M.3.1. The perpetrator did not abandon the effort to commit the crime or did not otherwise prevent the completion of the crime

M.P.6. Evidence that the perpetrator did not discontinue acts that would lead to completion of the crime.

M.P.7. Evidence of the perpetrator looking for another victim.

M.P.8. Evidence of not abstaining from further incitement to genocide.

M.P.9. Evidence that the perpetrator believes he or she has done everything to complete the crime, which in fact has failed without the perpetrator being aware of it, together with evidence that the perpetrator did not subsequently try to prevent the completion of the crime.

M.P.10. Evidence of not abstaining from further incitement to genocide.

M.P.11. Evidence of not abstaining from further incitement to genocide.

M.3.2. The perpetrator did not completely or voluntarily give up the criminal purpose

M.3. The perpetrator did not abandon the effort to commit the crime or did not otherwise prevent the completion of the crime by completely and voluntarily giving up the criminal purpose

M.3.1. The perpetrator did not abandon the effort to commit the crime or did not otherwise prevent the completion of the crime

M.P.6. Evidence that the perpetrator did not discontinue acts that would lead to completion of the 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. 815:

"[T]his presupposes that the actions taken thus far do not yet suffice to procure the prohibited result as, for instance, in the case of attempted murder in which the perpetrator has injured the victim with one (or even more) stabs while aware that more stabs would be necessary to kill the victim. In such a so-called ‘unfinished attempt’ the attemptor can abandon the commission of the crime by simply discontinuing his stabbing, of course, provided that he is doing so with the requisite subjective intent.²¹⁷"

"²¹⁷. Cf. infra, VI.C.3."

M.P.7. Evidence of the perpetrator looking for another victim.

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. 817:

"[T]he Rome Statute expects the perpetrator…to give up his criminal purpose completely. This means that a rapist who abandoned his attempt as he was moved by the urgent plea of a mother would be discharged from this attempt only if he refrained from looking for another victim."

"²¹⁸. The same end was reached by a landmark decision of the German Federal Supreme Court on the basis of an abandonment regulation which at that time was substantially the same as the one in the present Art. 25(3)(f) sentence (2) of the ICC Statute; cf. 11 BGHSt (supra note 109) (1958) 324 ff."

M.P.8. Evidence of not abstaining from further incitement to genocide.

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. 818:

"[I]ncitement to genocide according to Article 25(3)(e) of the ICC Statute […] is punishable regardless of whether the incitement was successful or not.²²⁸ Thus, as by its substantial nature a mere attempt, it should be abandonable as any other attempt. This however, seems barred by the formal structure of incitement to genocide in terms of a completed crime,²²⁹ as in that stage a withdrawal, as mentioned above,²³⁰ is in principle not possible. As this consequence may have been missed by the drafters of subparagraph (e), the ICC may resort by means of analogy to subparagraph (f) sentence (2) alternative (1) or (2), respectively, for discharging an inciter who, after first agitations, voluntarily gives up any further efforts, if not even calms any arousments.²³¹"

²³¹. This way of employing rules of abandonment to formally competed crimes by analogy can, for instance, be found in Germany: cf. Eser, in Schonke and Schroder (eds.), supra note 61, § 24 margin No. 110."

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. 815-816:

"[This] refers to the case where in the normal course of events the perpetrator’s action would procure the prohibited result, as in the case where he has stabbed his victim so heavily that without intervening help he would die. In such a so-called ‘finished attempt’ the perpetrator must not be content with discontinuing his stabbing but must actively take steps to prevent his victim from bleeding to death, for example, by bandaging him with his own hands or by taking him to a doctor. Certainly, in this case the risk of preventing the prohibited result is his; this means that in the case of a ‘finished attempt’ the perpetrator can obtain a discharge by abandonment only if he succeeds in preventing the completion of the crime."

M.P.9. Evidence that the perpetrator believes he or she has done everything to complete the crime, which in fact has failed without the perpetrator being aware of it, together with evidence that the perpetrator did not subsequently try to prevent the completion of the 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. 816:

"Not explicitly provided for in the ICC Statute is the case where the perpetrator believes he has done everything to complete the crime which in fact, however, has failed without him being aware of it, thus, making him believe that for abandoning the attempt he would have to prevent the completion, as for instance, in the case that a drug overdose supposedly sufficient to cause the victim’s death within an hour was in fact never strong enough to procure this result. If in such a case the perpetrator wanted to rescue his victim by taking him to a hospital to have his stomach pumped, it would not be the perpetrator’s active effort which prevented the crime from completion but rather the primary failure the perpetrator was unaware of…his efforts to prevent the completion, though objectively futile as well as unnecessary, should be treated as having prevented the accomplishment of the crime.²¹⁸"

"²¹⁸. The same end was reached by a landmark decision of the German Federal Supreme Court on the basis of an abandonment regulation which at that time was substantially the same as the one in the present Art. 25(3)(f) sentence (2) of the ICC Statute; cf. 11 BGHSt (supra note 109) (1958) 324 ff."

M.P.10. Evidence of not abstaining from further incitement to genocide.

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. 818:

"[I]ncitement to genocide according to Article 25(3)(e) of the ICC Statute […] is punishable regardless of whether the incitement was successful or not.²²⁸ Thus, as by its substantial nature a mere attempt, it should be abandonable as any other attempt. This however, seems barred by the formal structure of incitement to genocide in terms of a completed crime,²²⁹ as in that stage a withdrawal, as mentioned above,²³⁰ is in principle not possible. As this consequence may have been missed by the drafters of subparagraph (e), the ICC may resort by means of analogy to subparagraph (f) sentence (2) alternative (1) or (2), respectively, for discharging an inciter who, after first agitations, voluntarily gives up any further efforts, if not even calms any arousments.²³¹"

²³¹. This way of employing rules of abandonment to formally competed crimes by analogy can, for instance, be found in Germany: cf. Eser, in Schonke and Schroder (eds.), supra note 61, § 24 margin No. 110."

M.P.11. Evidence of not abstaining from further incitement to genocide.

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. 818:

"[I]ncitement to genocide according to Article 25(3)(e) of the ICC Statute […] is punishable regardless of whether the incitement was successful or not.²²⁸ Thus, as by its substantial nature a mere attempt, it should be abandonable as any other attempt. This however, seems barred by the formal structure of incitement to genocide in terms of a completed crime,²²⁹ as in that stage a withdrawal, as mentioned above,²³⁰ is in principle not possible. As this consequence may have been missed by the drafters of subparagraph (e), the ICC may resort by means of analogy to subparagraph (f) sentence (2) alternative (1) or (2), respectively, for discharging an inciter who, after first agitations, voluntarily gives up any further efforts, if not even calms any arousments.²³¹"

²³¹ This way of employing rules of abandonment to formally competed crimes by analogy can, for instance, be found in Germany: cf. Eser, in Schonke and Schroder (eds.), supra note 61, § 24 margin No. 110.".

M.3.2. The perpetrator did not completely or voluntarily give up the criminal purpose