This article is part of a comprehensive series covering the punitive articles of the UCMJ (Uniform Code of Military Justice). It is intended for informational purposes only and does not constitute legal advice. Service members facing any UCMJ charge should consult a qualified military defense attorney.
Most punitive articles regulate what service members do in garrison, on base, or in the field under their own command’s authority. Article 98 regulates what they do when that command authority no longer exists, when they are prisoners in enemy hands during wartime. The premise is stark: even in captivity, military obligations persist. The uniform doesn’t come off because the enemy took your weapon.
Article 98 (10 U.S.C. § 898) was formerly Article 105 before the Military Justice Act of 2016 renumbered the punitive articles. The substance is unchanged. It addresses two offenses, both requiring the same threshold condition: the accused must be in the hands of the enemy in time of war.
Securing Favorable Treatment and Maltreating Fellow Prisoners
The first offense punishes a prisoner who secures favorable treatment from captors at the expense of fellow prisoners. The statutory language is precise: acting “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.” Every phrase carries weight.
“Without proper authority” means the conduct wasn’t sanctioned by the senior prisoner, the chain of command, or military custom. “Contrary to law, custom, or regulation” establishes that the prisoner acted outside recognized rules of conduct for POWs, including the Code of Conduct and Geneva Convention standards. “To the detriment of others” requires actual harm to fellow prisoners: closer confinement, reduced rations, physical punishment, loss of privileges, or other concrete consequences.
The second offense punishes a prisoner in a position of authority who maltreats fellow prisoners without justifiable cause. Authority here isn’t limited to military rank. A prisoner who holds authority because the captors designated them as a barracks leader, or because fellow prisoners elected them as spokesperson, holds a “position of authority” under Article 98. Maltreatment includes physical abuse, verbal degradation, withholding necessities, essentially the same conduct Article 93 prohibits in garrison, but in the captivity context.
The Escape Exception
One provision stands out. The MCM explicitly states that escape from the enemy is authorized by custom. An escape attempt that results in closer confinement, reduced rations, or collective punishment against fellow prisoners still in enemy hands is not an offense under Article 98, even though it clearly operates “to the detriment of others.”
This exception reflects a fundamental military value: the duty to attempt escape when possible. The Code of Conduct, Executive Order 10631 (as amended), directs service members to make every effort to escape and aid others in escaping. Article 98 cannot criminalize what the Code of Conduct commands. The exception resolves the tension by carving escape, and its foreseeable consequences for fellow prisoners, entirely out of the article’s reach.
The distinction between escape and collaboration is the line Article 98 draws. A prisoner who endures collective punishment because another prisoner attempted escape bears a cost imposed by the enemy. A prisoner who suffers because another prisoner informed on escape plans to curry favor with captors bears a cost imposed by a fellow service member’s betrayal.
Elements and Wartime Requirement
For the favorable treatment offense, elements per MCM 2024 (Part IV, Paragraph 50) include: the accused acted in a specific manner, contrary to law/custom/regulation, without proper authority; this occurred while in enemy hands during wartime; the purpose was securing favorable treatment from captors; and the conduct operated to the detriment of other prisoners. Circumstantial evidence of intent is typically permitted, the prosecution doesn’t need a confession of motive, just evidence that the natural consequence of the accused’s actions was favorable treatment and fellow-prisoner detriment.
For the maltreatment offense: the accused maltreated a specific prisoner in a specific manner; this occurred while in enemy hands during wartime; the accused held a position of authority over the maltreated person; and the maltreatment lacked justifiable cause. The “justifiable cause” qualifier matters, maintaining discipline among prisoners, enforcing sanitation rules, or implementing reasonable work assignments may involve coercion that doesn’t constitute maltreatment.
The scale of harm is irrelevant. Even if only one prisoner suffered detriment while dozens remained unaffected, the article is violated.
The Wartime Limitation and Modern Relevance
Both offenses require “time of war.” This limits Article 98 to congressionally declared wars or conflicts the President designates as war for UCMJ purposes. Whether the Authorization for Use of Military Force (AUMF) constitutes “time of war” under Article 98 remains a question without definitive resolution, though the President has broad authority under Article 2 of the UCMJ to make that determination.
The article has been rarely prosecuted since the Korean War, when collaboration cases involving POWs held by Chinese and North Korean forces produced the most significant Article 105 (now 98) precedents. Those cases, involving prisoners who informed on fellow POWs, made propaganda broadcasts, or accepted special privileges from captors, established much of the interpretive framework that still governs the article.
Maximum punishment is severe: any punishment other than death that a court-martial may direct. This includes dishonorable discharge, forfeiture of all pay and allowances, and confinement for life. The severity reflects the unique vulnerability of the prisoner population, service members in captivity have no alternative chain of command to appeal to, no inspector general, no legal assistance office. When a fellow prisoner exploits authority or collaborates with the enemy, the victims have no recourse except what military justice provides after repatriation.
The premise underneath Article 98 is one that not every service member finds intuitive: military obligations do not end when the enemy takes your weapon. A prisoner who abuses fellow prisoners in captivity, or who collaborates with captors for personal advantage, has violated a duty that persists regardless of who controls the environment. The uniform is not a costume that comes off when circumstances change. The obligations attached to it follow the wearer into captivity, and Article 98 ensures those obligations have teeth when the wearer returns.
Joseph L. Jordan, Attorney at Law: Article 98 governs misconduct by service members held as prisoners of war during wartime. It criminalizes securing favorable treatment from captors at the expense of fellow prisoners and maltreating fellow prisoners while in a position of authority over them.
This article is for informational purposes only and does not constitute legal advice. No attorney-client relationship is created by reading this content. If you are facing charges under the UCMJ or need legal guidance regarding military justice matters, consult a qualified military defense attorney.