Attempt

An attempt to commit a crime is an unsuccessful effort to engage in conduct that is proscribed by criminal law. Attempts to commit both genocide and crimes against humanity are criminal under international criminal law. The criminality of attempts to commit genocide was made clear in 1948, in Article III(d) of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). With respect to war crimes, crimes against humanity, and genocide, the criminality of attempt can be gleaned from Article 25(3)(f) of the Rome Statute of the International Criminal Court. It states that liability exists for "[a]ttempts to commit [one of these crimes] by taking action that commences its execution by means of a substantial step, but [wherein] the crime does not occur because of circumstances independent of the person's intentions." It goes on: "However a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment . . . for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose."

The justifications for criminalizing attempt are multiple. First, by attempting to bring about a crime, which does not occur only, In the words of Article 25, "because of circumstances independent of the person's intentions" the person is, in a moral sense, virtually identical to a person who succeeds in completing a crime. Both have tried to arrive at a result prohibited by law, but one is "lucky" enough to bring the crime to fruition. Second, the person attempting a crime has brought into being the risk of harm to others, which is itself wrongful. Finally, by criminalizing attempt, international criminal law allows those enforcing it to act at an earlier stage, not having to wait for a crime to occur. This should allow for more effective crime prevention.

An attempt to commit genocide is an attempt to engage in conduct prohibited by Article II of the Genocide Convention (e.g., an attempt to commit murder or serious bodily harm, with genocidal intent). It should not be confused with successful completion of conduct prohibited in Article II which, however, does not lead to the destruction, in whole or in part, of the protected group. That is an offence of genocide. A completed offence of genocide does not require that in fact the group is destroyed in whole or in part, merely that the perpetrator completed the conduct with genocidal intent.

The definition of attempt in the Rome Statute is not easy to apply to particular cases. The International Criminal Court will have to determine exactly when a person has "commence[d] . . . execution [of an international crime] by means of a substantial step." This formulation of the test for attempt is not clear. Attempt must be intentional; however, there is no liability for reckless or negligent attempt. A person may avoid liability if he or she abandons the attempt and "completely and voluntarily gives up the criminal purpose" he or she harbored. This is intended to provide an incentive to people to abandon attempts to commit crimes before the crimes are complete, but it is unlikely that in practice people are encouraged to return to lawfulness by such provisions.

SEE ALSO Convention on the Prevention and Punishment of Genocide; War Crimes

BIBLIOGRAPHY

Ambos, Kai (1999). "Article 25." In Commentary on the Rome Statute of the International Criminal Court, ed. O. Triffterer. Baden-Baden, Germany: Nomos.

Eser, Albin (2002). "Individual Criminal Responsibility." In The Rome Statute of the International Criminal Court: A Commentary, ed. A. Cassese, P. Gaeta, and J. R. W. D. Jones. Oxford, U.K.: Oxford University Press.

Fletcher, George P. (1998). Basic Concepts of Criminal Law. Oxford, U.K.: Oxford University Press.

Schabas, William A. (2000). Genocide in International Law: The Crime of Crimes. Cambridge: Cambridge University Press.

United Nations Convention on the Prevention and Punishment of the Crime of Genocide (1948). Available from http://www.fletcher.tufts.edu/multi/texts/BH225.txt.

Robert Cryer