Table of contents:
M.2. The crime did not occur because of circumstances independent of theperpetrators intentions.
M.P.3. Evidence of objective circumstances or obstacles to the execution of the crime.
M.P.3.1. Evidence of the victim avoiding being hit.
M.P.3.2. Evidence that the perpetrator was prevented from attacking.
M.P.4. Evidence of inaptitude of means to execute the crime.
M.P.4.1. Evidence of use of inefficient tools.
M.P.4.2. Evidence of unsuitability of the object.
M.P.4.3. Evidence that the perpetrator attempted to commit a crime which could not succeed.
M.P.5. Evidence of inability of the suspect to execute the crime.
M.P.5.1. Evidence of perpetrators wrongful belief that he or she is a commander.
Element:
M.2. The crime did not occur because of circumstances independent of theperpetrators intentions.
M.P.3. Evidence of objective circumstances or obstacles to the execution of the crime.
ICC, The Prosecutor v. Charles Ble Goude , ICC-02/11-02/11, Decision on the confirmation of charges (PTC), 11 December 2014, para. 121:
"121. Turning to the alternative charge, with respect to the same injuries, of attempted murder under articles 7(1)(a) and 25(3)(f) of the Statute, the Chamber likewise takes into account the modalities of the criminal acts under consideration, including the kinds of weaponry used, and the information in relation to the nature of the injuries experienced by the victims. On the basis of the available evidence, the Chamber is of the view that there are substantial grounds to believe that the conduct of the pro-Gbagbo forces which led to the injuries referred to above was designed to bring about the death of the victims. Further, the Chamber considers that there are substantial grounds to believe that these acts constituted a substantial step for the attainment of said consequence, and that the fact that the death of the victims eventually did not occur was independent of the perpetrators intentions. Accordingly, the Chamber concludes that the specific elements of the crime of attempted murder under articles 7(1)(a) and 25(3)(f) of the Statute are met. Therefore, since the evidentiary threshold is met in relation to the constitutive elements of both other inhumane acts, under article 7(1)(k), and attempted murder, under articles 7(1)(a) and 25(3)(f) of the Statute, the Chamber considers it appropriate to confirm the charge with the alternative qualification as proposed by the Prosecutor."
M.P.3.1. Evidence of the victim avoiding being hit.
A. Evidentiary comment:
Although the Statute does not explicitly deal with the issue, it is widely accepted that attempt liability under the ICC Statute includes liability for "impossible attempts". An impossible attempt is an attempt to commit a crime which cannot succeed, for instance because of the unsuitability of the object or the tools used. (Kai Ambos "Article 25" in Otto Triffterer, ed, Commentary on the Rome Statute of the International Criminal Court (1999), p. 488; 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. 813). Such an attempt for instance exists when a perpetrator intents to kill another person, but mistakes an animal for that person and shoots at it.
M.P.3.2. Evidence that the perpetrator was prevented from attacking.
A. Legal source/authority and evidence:
" in the case of subparagraph (vii) of Article 8(2)(b) of the ICC Statute in which improper use of a flag of truce, of other military insignia or of the uniform of the United Nations personnel is prohibited. As in this case the provision aims at protecting the enemy and/or the public at large against improper deception, the crime may be completed only if the improper use of the said objects has caused an error of the counterparty or among the population."
B. [Evidentiary comment:]
M.P.4. Evidence of inaptitude of means to execute the crime.
M.P.4.1. Evidence of use of inefficient tools.
A. Legal source/authority and evidence:
"[T]he non-accomplishment of a crime by reason of objective failure can be given due to the inaptitude of the means (e.g. use of inefficient tools)."
B. [Evidentiary comment:]
M.P.4.2. Evidence of unsuitability of the object.
A. Legal source/authority and evidence:
"[T]he non-accomplishment of a crime by reason of objective failure can be given due to unsuitability of the object (e.g. if in the case of a war crime military objects were mistaken for civilian ones)."
B. [Evidentiary comment:]
M.P.4.3. Evidence that the perpetrator attempted to commit a crime which could not succeed.
A. Legal source/authority and evidence:
"[T]he question arises as to whether [Article 25(3)(f)] also comprises so-called impossible attempts,205 which by no means can succeed, as in the case that the victim to be killed is already dead or the gun to be used is not working a happy medium could again be found by referring to the shattering of public confidence in the stability of the legal order resulting from seemingly possible through objectively impossible attempts, except for superstitious actions which are clearly harmless.207"
"205. Certainly, the term impossible is misleading insofar as any attempt is impossible in terms of finally not succeeding. Therefore, rather than the normal non-accomplishment of the attempt it is the fact that the attempt can under the given circumstances by no means procure the expected result, that makes the attempt impossible.
207. On more details of the position on which the present German law is essentially based, see Eser, in Schonke and Schroder (eds.), supra note 61, § 22 margin No. 60 ff., § 23 margin No. 12 ff.".
B. [Evidentiary comment:]
M.P.5. Evidence of inability of the suspect to execute the crime.
M.P.5.1. Evidence of perpetrators wrongful belief that he or she is a commander.
A. Legal source/authority and evidence:
"[T]he non-accomplishment of a crime by reason of objective failure can be given due to the inability of the perpetrator (if, for instance, an ordinary soldier wrongly considering himself a commander, attempts to order a genocidal action)."
B. [Evidentiary comment:]
A. Legal source/authority and evidence:
"[T]he non-accomplishment of a crime by reason of objective failure can be given due to in rather exceptional cases, on grounds of justification (or some other circumstance negating the fulfilment of the definitional elements of the crime) the perpetrator did not know of (as for instance, if the victim to be deported in fact wished to leave this region without letting the perpetrator know)."
B. [Evidentiary comment:]
