UCMJ Article 98: Misconduct as a Prisoner

Article 98 applies to service members held by the enemy in time of war. It punishes a prisoner who, to win better treatment from the captors, acts without authority to the detriment of other prisoners, and a prisoner in a position of authority who maltreats fellow prisoners without justifiable cause. The maximum is any punishment other than death. Escaping, even if the guards then punish the others, is not an offense under this article.

Betraying or mistreating fellow prisoners

Under 10 U.S.C. § 898, a person subject to the UCMJ who, “while in the hands of the enemy in time of war”:

1. “for the purpose of securing favorable treatment by his captors acts without proper authority in a manner contrary to law, custom, or regulation, to the detriment of others of whatever nationality held by the enemy as civilian or military prisoners”; or
2. “while in a position of authority over such persons maltreats them without justifiable cause”;

shall be punished as a court-martial may direct.

Before January 1, 2019, this was Article 105. The Military Justice Act of 2016 renumbered it (Pub. L. 114-328, § 5401(6)); Article 105 is now forgery.

Acting to the detriment of others

The Manual for Courts-Martial (2024 ed.), Part IV, ¶ 26.c(3)(a), requires conduct “intended to result in improvement by the enemy of the accused’s condition” that operates to the detriment of other prisoners, “either by way of closer confinement, reduced rations, physical punishment, or other harm.” Its examples are “reporting plans of escape being prepared by others or reporting secret food caches, equipment, or arms.”

Escape is protected. “Escape from the enemy is authorized by custom. An escape or escape attempt which results in closer confinement or other measures against fellow prisoners still in the hands of the enemy is not an offense under this article” (¶ 26.c(3)(b)).

The other prisoners harmed can be of any nationality, civilian or military.

Maltreatment from a position of authority

The source of the authority does not matter. It may come from military rank, from designation by the captors “despite Service regulations or customs to the contrary,” or from election or selection by the other prisoners for their self-government (¶ 26.c(4)(a)). The maltreatment “must be real, although not necessarily physical,” and without justifiable cause. “Abuse of an inferior by inflammatory and derogatory words may, through mental anguish, constitute this offense” (¶ 26.c(4)(b)).

Up to life, but not death

Under ¶ 26.d, the maximum is any punishment other than death that a court-martial may direct, which includes confinement for life.

Contact with the enemy while captive

Unauthorized communication with the enemy while a prisoner of war can also be an offense under Article 103b, aiding the enemy; the Manual notes that a prisoner of war may violate that article by engaging in unauthorized communications with the enemy. Abuse of authority over subordinates outside captivity is cruelty and maltreatment under Article 93.

Sources

• 10 U.S.C. § 898, Article 98, Misconduct as prisoner (Cornell LII)
• Manual for Courts-Martial, United States (2024 ed.), Part IV, ¶ 26 and ¶ 33.c(6)

General information about military law, not legal advice for any individual case.