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

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

M.1.1. ICC

As noted by ICC Pre-Trial Chamber in The Prosecutor v. Abdallah Banda Abakaer Nourain and Saleh Mohammed Jerbo Jamus:

"96. The first sentence of article 25(3)(f) of the Statute provides that a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person "attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions". It is therefore of critical importance, in considering whether a crime can be characterised as attempted (or "inchoate") to determine whether the perpetrator’s conduct was adequate to bring about as a consequence the crime in question. Such adequacy requires that, in the ordinary course of events, the perpetrator’s conduct will have resulted in the crime being completed, had circumstances outside the perpetrator’s control not intervened.

97. The attempted commission of a crime requires that the perpetrator’s conduct reaches a more definite and concrete stage going beyond mere preparatory acts. This is apparent from the drafters’ choice of the term "substantial step" as a fundamental requirement for an attempt to occur as provided for in article 25(3)(f) of the Statute." [1]

In the Katanga et al. Case the ICC held that:

"[…] the intent to perpetrate a specific act necessarily precedes the decision to further the act. In other words, the subjective elements, or the mens rea, is to be inferred from the moment in which the perpetrator takes the action that commences its execution by means of a substantial step, according to the language of article 25(3)(f) of the Statute. The majority of the Chamber endorses the doctrine that establishes that the attempt to commit a crime is a crime in which the objective elements are incomplete, while the subjective elements are complete. […] As a consequence, in order for an attempt to commit a crime to be punished, it is necessary to infer the intent to further an action that would cause the result intended by the perpetrator, and the commencement of the execution of the act."[2]

In the Banda and Jerbo case the ICC has ruled that:

"The attempted commission of a crime requires that the perpetrator’s conduct reaches a more definite and concrete stage going beyond mere preparatory acts. This is apparent from the drafters’ choice of the term ‘substantial step’ as a fundamental requirement for an attempt to occur as provided for in article 25(3)(f) of the Statute."[3]

M.1.2. ICTY

M.1.3. ICTR

Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-T, Public Redacted Version of Judgement Issued on 24 March 2016 – Volume I of IV (TC), 24 March 2016, para. 571:

"571. To be found criminally responsible for planning under the Statute, the accused––either acting alone or with another––must have designed criminal conduct that is later carried out and which constitutes one or more crimes enumerated in the Statute. The planning must have been a factor substantially contributing to the criminal conduct, but the Prosecution need not establish that the crime would not have been committed but for the accused’s plan. The accused must intend to plan the commission of a crime or, at a minimum, must be aware of the substantial likelihood that a crime will be committed in the execution of the acts or omissions planned."