UCMJ Article 98: Misconduct as a Prisoner

Capture by an enemy force is not a crime, and the Uniform Code of Military Justice does not punish a service member for being taken prisoner. What the Code does reach is the way a captured member behaves toward fellow captives once in enemy hands. Article 98 of the UCMJ, codified at 10 U.S.C. 898, addresses two narrow but serious forms of misconduct that occur during captivity in time of war: securing favorable treatment from captors at the expense of other prisoners, and abusing other prisoners while in a position of authority over them.

The provision recognizes that prisoners of war operate under extraordinary duress, yet it preserves a baseline of loyalty and decency among captives. It is not aimed at ordinary survival behavior or at compliance compelled by force. It targets a member who turns against fellow prisoners, either to win privileges from the enemy or by mistreating those placed in the member’s charge.

What Article 98 prohibits

The statute identifies two distinct offenses, both limited to conduct occurring while in the hands of the enemy in time of war:

  1. Acting, without proper authority, in a manner contrary to law, custom, or regulation, for the purpose of securing favorable treatment by captors, to the detriment of other prisoners.
  2. While in a position of authority over other prisoners, maltreating them without justifiable cause.

By its terms, Article 98 applies to any person subject to the Code, and the prisoners it protects may be of any nationality held by the enemy as civilian or military prisoners. The unifying concern is the well-being and solidarity of those held in captivity.

What the government must prove

The elements differ according to which form of misconduct is charged.

For securing favorable treatment, the prosecution must establish that the accused was a prisoner in the hands of the enemy in time of war; that the accused acted without proper authority in a manner contrary to law, custom, or regulation; that the act was done to secure favorable treatment from the captors; and that the act was to the detriment of other prisoners.

For maltreatment of prisoners, the prosecution must establish that the accused was a prisoner in the hands of the enemy in time of war; that the accused was in a position of authority over other prisoners; that the accused maltreated those prisoners; and that the maltreatment was without justifiable cause.

In each form, the wrongful purpose or the absence of justification is central. Conduct undertaken simply to survive, or compliance with captor demands enforced by threat, does not by itself satisfy these elements.

Maximum punishment

The text of Article 98 states that a person found guilty shall be punished as a court-martial may direct, and it does not fix a numerical ceiling in the statute itself. Unlike several neighboring wartime articles, Article 98 does not authorize the death penalty. The maximum sentence is therefore drawn from the Manual for Courts-Martial, which sets a punishment short of death within the broad discretion of the court.

Sentencing for offenses committed on or after 27 December 2023 is conducted by the military judge under the sentencing reforms enacted in the National Defense Authorization Act for Fiscal Year 2022, rather than by panel members, for cases tried by general or special court-martial. The precise authorized maximum is fixed by the current edition of the Manual for Courts-Martial.

Possible defenses

Several defenses commonly arise under Article 98. Duress or coercion may apply where the accused acted under an immediate and well-grounded fear of death or serious bodily harm and had no reasonable opportunity to avoid the act. Absence of wrongful purpose is relevant to the favorable-treatment offense, because conduct undertaken only to survive, without the aim of gaining captor favor at others’ expense, falls outside the statute. Justifiable cause may answer a maltreatment charge where a member in authority took reasonable action to maintain order or safety among captives. Mistake of fact, lawful authority, and the absence of detriment to other prisoners can also defeat one or more elements depending on the specification.

Distinctions from related articles

Article 98 is frequently confused with offenses that look outward toward the enemy rather than inward toward fellow captives. Aiding the enemy under Article 103b reaches a member who gives arms, supplies, intelligence, or comfort to an adversary, and it carries the death penalty. Misbehavior before the enemy under Article 99 concerns cowardice, running away, or abandoning a position in the presence of the enemy. Article 98, by contrast, is confined to the prison setting and to harm directed at other prisoners. Maltreatment of subordinates outside captivity is generally addressed by Article 93, cruelty and maltreatment. Recognizing these boundaries matters, because the same captivity may give rise to charges under more than one article based on different conduct.

Frequently asked questions

Is being captured by the enemy a crime under Article 98? No. Capture is not an offense. Article 98 punishes specific wrongful conduct toward other prisoners during captivity, not the fact of being held.

Does Article 98 punish aiding the enemy? No. Acts that aid an adversary are charged under Article 103b. Article 98 addresses misconduct directed at fellow prisoners.

Whom does Article 98 protect? The statute protects prisoners of any nationality held by the enemy as civilian or military prisoners, not only United States personnel.

Can the death penalty be imposed under Article 98? No. The statute provides for punishment as a court-martial may direct and does not authorize death.

Does Article 98 apply outside a declared war? The statute is expressly limited to conduct while in the hands of the enemy in time of war. Whether a given armed conflict satisfies that condition is determined under governing law.

Is duress a defense? It may be, where the accused faced an immediate threat of death or serious harm with no reasonable means of escape. Courts examine the genuineness of the threat and the available alternatives closely.

This article is for general informational purposes only and is not legal advice. It describes military law and procedure of public record, does not address any individual case, and does not create an attorney-client relationship.

Sources

10 U.S.C. 898, Article 98 (Misconduct as prisoner): https://www.law.cornell.edu/uscode/text/10/898
Manual for Courts-Martial, United States (2024 edition), Part IV: https://jsc.defense.gov/Military-Law/Current-Publications-and-Updates/
National Defense Authorization Act for Fiscal Year 2022, military justice sentencing reforms: https://www.congress.gov/bill/117th-congress/senate-bill/1605
Military Attorney Joseph L. Jordan, Articles of the UCMJ

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