Legal Disclaimer: This article provides general legal information about the Uniform Code of Military Justice. It is not legal advice and does not create an attorney-client relationship. Every case involves unique facts and circumstances. If you are facing charges under the UCMJ, consult with a qualified military defense attorney immediately.
Both Article 105 and Article 99 address failures in relation to the enemy, but they apply to different phases of conflict. Article 99 Misbehavior Before the Enemy addresses failures during combat: running away, cowardice, and shameful conduct while fighting. Article 105 Misconduct as Prisoner addresses failures after capture: collaboration with the enemy, mistreating fellow prisoners, and failing to uphold duties while in enemy hands. One governs the fight; the other governs captivity.
The Phase Distinction
Article 99 Misbehavior Before the Enemy applies during combat:
When facing the enemy
During active military operations
While still under friendly command
Before capture occurs
Article 105 Misconduct as Prisoner applies during captivity:
After capture by hostile forces
While in enemy custody
When no longer under friendly command control
Until release, escape, or end of conflict
The transition from combat to captivity shifts which article applies.
Different Duties
Article 99 duties involve:
Fighting the enemy
Maintaining position
Following orders to engage
Not running or surrendering shamefully
Article 105 duties involve:
Resisting enemy exploitation
Not aiding the enemy
Treating fellow prisoners properly
Attempting escape when possible
Maintaining military bearing in captivity
Both require courage and duty, but the circumstances differ dramatically.
Article 99: Combat Conduct
Article 99 covers misbehavior including:
Running away. Fleeing from combat without authority.
Shameful surrender. Giving up when resistance was possible.
Cowardly conduct. Shameful behavior driven by fear.
Failing to engage. Not doing utmost to fight the enemy.
Casting away arms. Abandoning weapons to avoid fighting.
These all occur before or during combat, while the service member is still a combatant.
Article 105: Captivity Conduct
Article 105 covers misconduct including:
Aiding the enemy. Providing unauthorized assistance to captors.
Maltreating fellow prisoners. Abusing other prisoners of war.
Favoring the enemy. Acting as an informant or collaborator.
Failing to escape. Not attempting escape when possible (historically included).
Making disloyal statements. Propaganda or statements beneficial to the enemy.
These occur after capture, during the period of enemy control.
The Transition Moment
When does Article 99 stop and Article 105 begin?
Article 99 applies up to the moment of actual capture.
Article 105 applies from the moment of capture onward.
Overlapping conduct might be analyzed under either article:
Fighting to resist capture: Article 99 (combat context)
Resisting enemy interrogation after capture: Article 105 (captivity context)
Conduct at the moment of capture may be evaluated under either depending on the specific act.
Typical Fact Patterns
Clear Article 99 (misbehavior in combat):
During an ambush, a soldier abandons his team and runs toward enemy lines with hands raised, surrendering without firing a shot. Shameful surrender before the enemy.
Under fire, a soldier throws down his weapon and hides until the battle ends rather than engaging. Cowardly conduct and casting away arms.
Clear Article 105 (misconduct as prisoner):
After capture, a service member provides tactical information to interrogators beyond what’s required (name, rank, service number, date of birth). Aiding the enemy.
While in a POW camp, a service member beats fellow prisoners on behalf of guards. Maltreating fellow prisoners.
A captured service member makes propaganda broadcasts for the enemy. Disloyal conduct as prisoner.
Transition scenario:
A soldier surrenders without fighting (Article 99 issue). Once captured, they voluntarily provide extensive intelligence to the enemy (Article 105 issue). Two separate failures at different phases.
Punishment Comparison
Article 99 (Misbehavior Before the Enemy):
Death or such other punishment as a court-martial may direct
Among the most severe punishments in the UCMJ
Article 105 (Misconduct as Prisoner):
Death or such other punishment as a court-martial may direct
Equally severe potential punishment
Both articles can carry the death penalty in extreme cases, reflecting the gravity of these betrayals.
The Code of Conduct
Article 105 connects to the Code of Conduct for prisoners of war:
Article I: Never surrender of own free will
Article II: Never surrender while still able to resist
Article III: Resist and try to escape if captured
Article IV: Keep faith with fellow prisoners
Article V: Give only name, rank, service number, date of birth
Article VI: Never forget loyalty to country
These principles inform Article 105 expectations, though the Code itself isn’t directly punitive.
Coercion and Duress
Both articles must account for enemy pressure:
Combat coercion. Being overwhelmed doesn’t excuse shameful surrender, but impossible military situations may justify it.
Captivity coercion. Torture, threats, and extreme pressure are considered when evaluating prisoner conduct.
The law recognizes that enemy action affects what can fairly be expected. However:
Some resistance is always expected
Complete collaboration isn’t excused by any coercion
Conduct beyond what coercion required may be punished
Defenses
For Article 99:
Not in the presence of the enemy
Conduct was militarily justified
Physical or mental incapacity
Following lawful orders
Circumstances made resistance impossible
For Article 105:
Conduct was required to prevent immediate death or serious injury
Information provided was false or useless
Conduct was coerced beyond what any person could resist
The enemy already possessed the information
Conduct benefited fellow prisoners
Historical Context
Both articles have been tested in major conflicts:
World War II saw prosecutions for collaboration in POW camps
Korean War raised significant issues about prisoner conduct under Communist captivity
Vietnam War tested what could be expected of prisoners under torture
These experiences shaped current understanding of both articles.
The Information Question
What information can prisoners provide?
Required disclosure: Name, rank, service number, date of birth
Prohibited disclosure: Tactical information, classified material, anything of value to the enemy
Gray area: Information already known, false information, information provided under extreme torture
Article 105 punishes providing unauthorized information that aids the enemy.
Fellow Prisoner Duties
Article 105 specifically addresses treatment of fellow prisoners:
Required: Solidarity, mutual support, maintaining military structure
Prohibited: Informing on fellow prisoners, physical abuse, collaboration with guards against prisoners
Senior prisoners are expected to maintain order and command. Abusing fellow prisoners is among the most condemned conduct.
Frequently Asked Questions
If I’m tortured as a prisoner and eventually provide information, am I guilty under Article 105?
Coercion is relevant to Article 105 analysis. The law recognizes that prolonged torture may break even the strongest resistance. Key factors include: What information was provided? How long did you resist? Was the information of actual value? Did you provide more than necessary to stop the torture? Someone who resists for days before breaking under extreme torture is treated differently than someone who volunteers information immediately. The expectation is maximum resistance within human capabilities, not superhuman endurance. However, collaboration beyond what torture required, voluntary assistance, or eager cooperation remain punishable regardless of initial coercion.
What’s the difference between a lawful surrender and shameful surrender under Article 99?
A lawful surrender occurs when continued resistance is impossible or would waste lives without military purpose: surrounded with no ammunition, wounded beyond fighting capacity, ordered to surrender by proper authority. A shameful surrender occurs when resistance was possible but the individual gave up due to fear or unwillingness to fight: surrendering while armed and able to resist, abandoning position while others continue fighting, giving up when enemy forces were beatable. The distinction isn’t about outcome (many honorable soldiers have surrendered) but about whether the individual fought to their capacity before accepting capture.
Can I be charged under both Article 99 and Article 105 for the same capture incident?
Yes, if different conduct supports each charge. Your behavior during combat (before capture) is evaluated under Article 99. Your behavior after capture is evaluated under Article 105. If you surrendered shamefully (Article 99) and then collaborated enthusiastically with the enemy (Article 105), both charges can apply to different phases of your misconduct. The transition from combat to captivity creates the dividing line, but the same overall incident can include failures at both stages.