As the tempo and intensity of United States military operations increases, the likelihood of operational mishaps increases as well. These mishaps – an anodyne term that cannot capture the reality experienced by those on the receiving end – can have devastating effects on innocent civilians and are highly likely to erode existing support and, indeed, to inflame passions both locally and around the globe. Attention typically focuses on whether these tragic events constitute war crimes, implicating the Law of Armed Conflict when questions such as targeting military objects, proportionality in loss of civilian life, and the avoidance of unnecessary suffering take center stage. This is understandable but slights the more mundane question of whether they constitute domestic military offenses under the Uniform Code of Military Justice (UCMJ). As Geoffrey Corn and Rachel VanLandingham have pointed out, the UCMJ sets a higher standard of conduct than the Law of Armed Conflict. A primer may therefore be helpful for those who are unfamiliar with the somewhat arcane field of military justice or whose understanding of it may be rusty, incomplete or both.
First, some basics about offenses under the UCMJ. These are prescribed by so-called “punitive articles.” Many of them set forth familiar crimes, such as murder, manslaughter, assault, arson, and sexual offenses of various types. Others are peculiar to the armed forces, such as disobedience, disrespect, AWOL, desertion, and mutiny. One that we will return to in a moment is dereliction of duty. There are also two wild-card offenses that sweep in a host of offenses. These are Article 133, which criminalizes conduct unbecoming an officer and a gentleman, and Article 134, which criminalizes conduct that is prejudicial to good order and discipline or service-discrediting as well as other noncapital federal crimes.
War crimes as such do not figure in any of the UCMJ’s punitive articles. Indeed, the only reference to war crimes in the UCMJ is found in the jurisdictional provision of Article 18(a), which confers on general courts-martial (the most severe form of court-martial) authority to try offenses under the law of war by persons who are subject to military trial under the law of war. In point of fact, American practice is not to exercise that authority against either our own personnel or enemy combatants. For our own personnel, we simply rely on the substantive punitive articles. For enemy combatants we have relied on military commissions such as those now authorized by the Military Commissions Act of 2009, which is not part of the UCMJ. Thus, the 1942 German saboteurs were charged with war crimes as well as violations of the Articles of War (predecessor of the UCMJ). War crimes are also among the charges against the 9/11 and USS Cole accuseds who are currently on trial at Guantanamo.
That said, let’s define the issue.
We are not talking about what might be called battlefield outrages by U.S. military personnel. These are incidents involving intentional misconduct, some of which may well qualify as war crimes. Examples include rampages against civilians (think My Lai), desecration of the bodies of dead enemy combatants (think urinating Marine snipers, allegations involving the use of tomahawks by members of SEAL Team 6), shooting the wounded (think U.S. Army Capt. Rogelio Maynulet, or in foreign jurisdictions, think British Marine Sgt. Alexander Blackman or Israeli Sgt. Elor Azaria), or the use of civilians as human shields (a current controversy in India). In American military justice practice, these kinds of offenses are charged under the applicable punitive article (or articles, as military prosecutors – called trial counsel – typically charge the same conduct under as many punitive articles as plausibly apply, to ratchet up the stakes and anticipate the contingencies of proof).
In contrast, the current inquiry concerns what might be called operational offenses: acts or omissions that are committed in the course of an approved and by hypothesis approvable military mission. These are missions that, in some sense, have gone awry. They too may spark disciplinary action under the UCMJ, but they, like the ones just discussed, must also come within the ambit of one or more of the punitive articles. Depending on the circumstances, operational offenses and their maximum punishments include the following:
- disobeying a general order (Art. 92(1)), two years’ confinement, dishonorable discharge, total forfeiture of pay and allowances
- willful or negligent dereliction of duty resulting in death or grievous bodily harm (Art. 92(3)), 18 months’ confinement, bad-conduct discharge, total forfeitures if through neglect; two years’ confinement, dishonorable discharge, total forfeitures if willful
- recklessly destroying property other than military property of the U.S. (Art. 109), five years’ confinement, dishonorable discharge, total forfeitures if value exceeds $500
- reckless or wanton operation of a vehicle, vessel or aircraft (Art. 111), 18 months’ confinement, dishonorable discharge, total forfeitures if personal injury results
- murder by killing another while “engaged in an act that is inherently dangerous to another and evinces a wanton disregard of human life” (Art. 118(3)), confinement for life, dishonorable discharge, total forfeitures
- manslaughter by culpable negligence (Art. 119(b)(1)), 10 years’ confinement, dishonorable discharge, total forfeitures
(For commissioned officers, any offense that would subject an enlisted member to a dishonorable or bad-conduct discharge subjects the offender to be dismissed from the service.)
Of these potential charges, probably those relating to dereliction of duty and orders violations are the most likely to come into play in operation mishaps. Dereliction covers a broad swath of negligent performance of duty. Violation of a general order – one issued by a senior commander that personnel are presumed to be aware of – is also likely to be in the picture. Military operations are subject to a host of regulations, instructions and manuals, many of which are “punitive,” i.e., violations subject the member to disciplinary action. Rules of Engagement (ROE) are enforceable as orders; operational offenses may include ROE violations. More likely, however, ROEs may come into the picture as evidence of a duty in the context of a dereliction charge. Imagine a situation in which officers’ willful ROE violations result in the death of several civilians, but do not necessarily involve Law of Armed Conflict violations. Their behavior may be punishable under these punitive articles of the UCMJ, for example, as dereliction of duty or violation of a general order.
Obviously, some of the maximum punishments noted above are severe; others less so considering the range of fact patterns to which they could be applied. The maximum punishment for negligent dereliction of duty, for example, seems lenient. Moreover, these are maximum punishments (set – and amendable – by the President in the Manual for Courts-Martial, which is an Executive Order). Under current U.S. military law, there are no guidelines like those that have been developed for the civilian federal courts. Indeed, a military judge or jury can impose a sentence of “no punishment.” Congress last year amended the UCMJ to establish a process leading to greater certainty in sentencing, but that will not go into effect for years.
But it tells very little about actual outcomes in potential prosecutions for operational offenses simply to know the maximum punishment. The reason for this has to do with other aspects of the military justice system. First, of course, if an operational mishap occurs that is potentially punishable under the UCMJ, it must come to the attention of the authorities. Military personnel are under a duty to report war crimes, and commissioned officers and senior noncommissioned officers may have a duty to report offenses that come to their attention. Unfortunately, the data show that substantial numbers of soldiers and Marines will not report offenses by their comrades, often as a result of unit cohesion.
Operational mishaps involving the loss of life, severe injuries, or substantial property damage are investigated both to prevent their recurrence and to assign responsibility. Often, a single officer may conduct an investigation, although that officers may be quite senior for incidents with major impacts on civilians. These investigations, known in the Army as AR 15-6s, after the governing regulation, are subject to legal review, but that review may or may not be made available to the public. Withholding the legal review has an adverse effect on public confidence in the results.
One measure that can be taken for serious operational mishaps is to conduct a Court of Inquiry. These are provided for in the UCMJ, and are not really courts at all, but simply very formal multi-member boards of investigation. They can be conducted in public (except when classified evidence is being examined), and can go far to fostering public confidence. The Navy conducted a Court of Inquiry when the submarine USS Greenville did a showy emergency maneuver in the course of a 2001 VIP cruise off Honolulu, surfacing directly under the Japanese fishery training vessel Ehime Maru, killing nine crew members and high school students.
If operational offenses do come to the attention of military authorities (each branch has a criminal investigative body), the decision as to how charges should be disposed of lies with commanders who have a range of options. Applying very broad guidance that is only advisory, they may decide to do nothing in response to a report of an operational offense, or they may impose non-judicial (i.e., noncriminal) punishment under Article 15 of the UCMJ. They may also refer the charges to a summary, special or general court-martial, each of which has its own maximum punishment power. A commander may also take administrative action such as revoking an aviator’s wings, issuing an adverse performance report, or recommending administrative separation or retirement at a reduced rank, none of which involve the military justice system – or are ordinarily made public. These kinds of administrative sanction are likely to be invoked in operational mishap cases where there is a basis for personal accountability. They may also be employed in addition to disciplinary action under the UCMJ.
Whether U.S. commanders should retain the disposition or charging power is an issue that has received a great deal of attention as a result of the ongoing controversy over sexual assault in the armed forces. Thus far, Congress has not enacted the reform Sen. Kirsten Gillibrand (D.-NY) has proposed under which the charging power would be shifted away from non-lawyer commanders to lawyer prosecutors who are independent of the chain of command, as numerous other countries have done. Such a change would go far to allay concern that commanders have (or appear to have) a conflict of interest when dealing with operational mishaps, since commanders are responsible for the readiness and efficiency of their commands. As long as the military continues to view the military justice system as “owned and operated” by commanders (the phrase used in an official Army publication for commanders), that concern will remain.
The United States has rarely formally prosecuted operational offenses. During World War II it conducted a trial when six bombers flew off course and bombed Zurich on March 4, 1945, angering the Swiss. The president of the ensuing general court-martial was Col. Jimmy Stewart (yes, that Jimmy Stewart). The pilot and navigator of the lead airplane were acquitted.
Contrary to the recommendations of a Court of Inquiry, the Secretary of the Navy decided not to pursue charges against the skipper of USS Pueblo for allowing the ship to fall into North Korean hands in 1968. While the incident did not involve injuries to foreign persons or damage to foreign property, the case can be viewed as an operational mishap (as can the many naval groundings and collisions as well as run-of-the-mill aviation mishaps) and raises some of the same procedural issues as combat-related operational mishaps.
In the aftermath of the October 3, 2015 Kunduz Hospital Airstrike, no courts-martial were held, but an officer was relieved of command and several individuals received reprimands.
Whether any particular operational mishap deserves to be prosecuted in a court-martial is inevitably highly case-specific. What is clear is that countries that take seriously their duty to maintain disciplined forces and comply with the Law of Armed Conflict must remain vigilant, ensure that information does flow to those with responsibility for good order and discipline, take disciplinary action when warranted by the circumstances, and err on the side of transparency in order to foster confidence in the process and outcome. The assignment of individual responsibility – for that is what courts-martial do – will be increasingly challenging as weapons and weapons systems being ever more sophisticated and ever more lethal. Erring in one direction may have a chilling effect on operational personnel who must make split-second decisions, while erring in the other may destroy years of hard work building bridges and developing critical relationships.
Finally, because of the high stakes of contemporary high-tech military operations, the hair-trigger political relationships with which the United States must increasingly deal around the world, the constraints imposed by both domestic and international law, and the current fraught domestic political climate, there is a further risk that decisions regarding the proper disposition of operational offenses will be second-guessed by elective as well as politically accountable appointed officials. This danger is inevitable in a democratic society, especially where constitutional authority over military operations is shared by Executive Branch and Legislative Branch officials and where incidents that once could easily be kept under wraps can now go viral literally in minutes. Congress has every right to be fully and currently informed about military developments, but it must exercise discipline of its own to resist the temptation to say and do things that can threaten the proper functioning of the military justice system, a central tenet of which is the presumption of innocence.
Image: U.S. Air Force/Airman 1st Class Daniel Blackwell