I have been a practicing lawyer for almost 50 years, and I know of no law, at least no Federal law or law of any of the jurisdictions in the U.S. I am authorized to practice in, in which motive alone will constitute a crime. Indeed, I can not think offhand of any crime for which "motive" is an essential element for conviction. For example, I may have a substantial motive to murder a rich uncle who has named me his sole heir in his will, but that alone does not make me guilty of murder. And if a jury should find beyond a reasonable doubt that I shot my uncle with intent to kill him, I would be guilty of murder whatever my motive - or even if no motive whatsoever could be proven (although the latter might be relevant to the issue of my sanity at the time of the event.)Panzermahn wrote:I'm troubled by the fact that in today's law, having a motive to commit crimes is enough to have you convicted but what David says that posting a proclamation about reprisals without acting on it in 1945 was not a war crimeDavid Thompson wrote:The point is that in 1945 posting a proclamation about reprisals, without acting on it, was not a war crime.
Prior to adoption of the Fourth Geneva Convention, Relative to the Protection of Civilian Persons in Time of War, adopted on August 12, 1949 and entered into force on October 21, 1950, even the taking of civilian hostages was not a war crime, much less the bare threat of their execution. And although Article 3, Section 1 (b) of that Convention now prohibits the taking of non-combatant hostages, the Convention is silent as to the legality of merely threatening their taking and execution, which as far as I know is still an open question.
As our moderator has pointed out above, under the Common Law (and as far as I am aware in Civil Law jurisdictions as well) a mere threat, even to commit a clearly illegal act, is in and of itself not criminal. It must be coupled with something else: for example, in the case of simple criminal assault (in those jurisdictions, which seem to be few, where an actual physical injury is not an essential element of the crime) to constitute a crime the threat must be accompanied by an immediate ability to carry out the threat and a reasonable fear on the part of the specified intended victim that the threat would be immediately carried out. The classic case taught in law school (at least in my day, but the citation to which I've long ago forgotten) arose in Britain centuries ago, where the defendant was accused of assault in that he laid his hand on his sword and shouted angrily at the accuser "Were it not Assize time [i.e. the period when courts were open and judges sitting in session] I would run you through!" The threat was certainly there as well as the means to carry it out, but the immediacy of the threatened action was lacking and the Court held that the victim could not reasonably have believed he was in danger of immediate bodily harm, because it was, in fact, Assize time.
As an isolated example, here is the provision of the Minnesota Criminal Code regarding the essential components of the lowest degree of criminal assault:
And here for another example is how a Web site describes the Ontario Canada definition of Criminal Assault without an accompanying battery:609.224 Assault in the fifth degree.
Subdivision 1. Misdemeanor. Whoever does any of the following commits an assault and is guilty of a misdemeanor:
(1) commits an act with intent to cause fear in another of immediate bodily harm or death;
It is, at least in my mind, highly questionable that even the prohibition of the 1949 Fourth Geneva Convention criminalize simply the threat , in and of itself and with nothing more, to take reprisals against hostages.Threat to apply force
An assault may also take the form of an attempt or threat, by an act or gesture, to apply force to another person. In this case, however, the Crown must prove you had the present ability to carry out the assault or that the victim believed you did. The degree of alarm felt by the person threatened is irrelevant to a finding of guilt as is your intent to carry out the threat.
The threat must cause apprehension of immediate personal violence; a threat to inflict harm at an unspecified time in the future is not an assault. Words alone, while they may be a threat, cannot constitute an assault.
The December 18, 1979 International Convention Against the Taking of Hostages is also of interest, in that it provides :
This was directed primarily at terrorists and kidnappers, and extends the scope of the Fourth Geneva Convention cited above, which was directed to governments, to cover individuals as well, but the essential elements of the crime are (a) the taking of a hostage, (b) a threat to kill, injure or detain the hostage, and (c) in order to compel someone to take or refrain from taking any act. Here again, a mere threat, in and of itself, does not constitute a crime.ARTICLE 1
1. Any person who seizes or detains and threatens to kill, to injure or to continue to detain another person (hereinafter referred to as the "hostage") in order to compel a third party, namely, a State, an international intergovernmental organization, a natural or juridical person, or a group of persons, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages ("hostage-taking") within the meaning of this Convention.
2. Any person who:
1. attempts to commit an act of hostage-taking, or
2. participates as an accomplice of anyone who commits or attempts to commit an act of hostage-taking likewise commits an offence for the purposes of this Convention.
I would strongly urge Panzerman, unless he wishes to see his projected book about war crimes derided into oblivion, to acquire before final publication at least a faint understanding of legal principles and at least a passing notion of what has previously, and is presently today, deemed a war crime under international law. It is clearly a fatal error to believe that something that one thinks is "bad", "evil" or "outrageous" is thereby ipso facto criminal.
Regards, Kaschner