Misidentification of Victims in International Criminal Law: An Attempted Offense?

Identity of the victim often constitutes an element of the crime in international offences. For instance, victims of genocide are members of one of certain listed protected groups; civilians are protected individuals under crimes against humanity and war crimes; peacekeeping personnel and prisoners of war are protected persons for certain war crimes. A question then arises what should be the legal outcome in cases where the perpetrator commits one of the underlying crimes with a clear intent to harm the protected group or its members yet misidentifies his victim and harms a person who is not actually a member of this group. The article suggests that in such cases, perpetrators may be convicted of an attempted offence (e.g. attempted genocide) against the protected group (the intended victim) and also of a completed offence against the actual victim, when this is possible. Such a legal outcome would assist in expressing accurately the culpability and the wrongfulness of the perpetrator’s acts. Therefore, this article analyses the international legal sources in order to understand whether this outcome is possible and justifiable.