Harming vs. Trying

Abstract

This chapter assesses whether the codification of criminal attempts in a statutory regime that emphasizes completed crimes with consequences to personal or property interests is appropriate. A quick look at the four crimes within the jurisdiction of the International Criminal Court (ICC), as described by the Rome Statute, reveals that they are about concrete harming: killing, torture, rape, and invasion. Some of the sub-crimes within these categories address completed actions even though the harm is less tangible. However, attempts are one form of inchoate offense, that is, offenses that fall short of causing the harm or engendering the victimhood that would come with the completed offense. The problem is always how much the actor must do on the spectrum—from thought through the various stages of action to the final result of causing harm or instantiating the required “consequence” of the completed offenses.