The accessory after the fact offense in the military justice system lives in Article 78 of the Uniform Code of Military Justice. Whether a service member can be charged under Article 78 in connection with a war crime depends on how the underlying conduct is classified and which forum has jurisdiction. The short answer is that Article 78 reaches conduct in which a member helps an offender escape justice for an offense punishable under the Code, and a war crime committed by a service member can frequently be charged as such an offense. This article walks through the elements, the jurisdictional questions, and the limits.
What Article 78 punishes
Article 78 does not punish the original crime. It punishes someone who helps the offender after the crime is complete. To convict under Article 78, the prosecution must prove four elements. First, that an offense punishable by the Code was committed by a certain person. Second, that the accused knew that this person had committed the offense. Third, that the accused thereafter received, comforted, or assisted the offender. Fourth, that the accused did so for the purpose of hindering or preventing the apprehension, trial, or punishment of the offender.
Several features of these elements matter for the war crime context. The principal offender does not need to have been convicted, or even charged, for an accessory to be prosecuted. The accused must have had actual knowledge that a specific offense was committed; mere suspicion, rumor, or a vague sense that something happened is not enough. And the accused must act with the purpose of shielding the offender from justice. Simply failing to report an offense does not, by itself, make a person an accessory after the fact under Article 78.
How a war crime fits the “offense punishable by the Code” element
Article 78 requires that the underlying offense be one punishable by the Uniform Code of Military Justice. Conduct that the public would describe as a war crime, such as the killing of a detainee, the abuse of prisoners, or the deliberate targeting of protected persons, ordinarily violates one or more punitive articles of the Code when committed by a service member. The same conduct can constitute murder under Article 118, various forms of assault, maltreatment of a subordinate, or other enumerated offenses. Because service members remain subject to the Code at all times and in all places, including during armed conflict abroad, these underlying offenses are punishable by the Code.
That is the doctrinal bridge. If the underlying wartime misconduct is chargeable against the principal as a violation of the Code, then a member who afterward conceals the offender, destroys evidence to protect the offender, or otherwise assists the offender to avoid apprehension or punishment can be charged as an accessory after the fact to that offense under Article 78. The label “war crime” describes the nature of the conduct; the charging instrument identifies the specific Code offense to which the accused is alleged to be an accessory.
The jurisdictional landscape
A separate question is which tribunal hears the case. Two forums are relevant. Courts-martial enforce discipline within the armed forces and try service members for violations of the Uniform Code of Military Justice. Military commissions are outward-facing tribunals that try certain non-citizen enemy belligerents for violations of the law of war. The two should not be confused.
A United States service member who commits or assists in wartime misconduct is tried by court-martial under the Code, not by a military commission. Commissions are designed for individuals who are not members of the U.S. armed forces. Congress recognized the jurisdiction of military commissions in Article 21 of the Code and authorized procedures for them, but that recognition does not pull service members into the commission system. For the U.S. member who acts as an accessory after the fact, the relevant forum is the court-martial, and the relevant charge is Article 78.
It is also worth noting that war crimes can carry federal criminal exposure outside the military system. The federal War Crimes Act provides federal district court jurisdiction over certain war crimes. The existence of that statute does not displace the long-recognized authority of courts-martial to try service members for offenses under the Code. For the accessory analysis, the practical path for a service member remains Article 78 at a court-martial.
Knowledge and purpose: the hard elements to prove
In a war crime accessory case, the government’s most difficult burdens are the knowledge and purpose elements. Article 78 demands actual knowledge that a specific offense was committed. A member who was nearby during chaotic combat operations, who heard secondhand accounts, or who suspected wrongdoing without confirming it may not satisfy the knowledge requirement. The accused must have known that the principal committed the offense.
The purpose element is equally important. The assistance must be given to hinder or prevent apprehension, trial, or punishment. A member who helped move a body for sanitary or operational reasons, or who followed an order without intent to shield an offender, is not necessarily acting with the required purpose. Because failing to report is not itself an Article 78 offense, the prosecution cannot convert silence into accessory liability without proving an affirmative act of assistance coupled with the protective purpose.
Punishment exposure
Article 78 ties the accessory’s maximum punishment to the underlying offense. A person convicted as an accessory after the fact can face the maximum authorized punishment for the principal crime, even though the accessory did not commit it, subject to the limits set out in the Manual for Courts-Martial. When the underlying offense is a grave one, such as murder under Article 118, the potential exposure for the accessory is correspondingly serious.
Conclusion
A military member can be charged as an accessory after the fact under Article 78 in connection with a war crime, provided the wartime misconduct is chargeable as an offense punishable by the Code, the member knew a specific offense was committed, the member affirmatively received, comforted, or assisted the offender, and the member did so to hinder apprehension, trial, or punishment. The proper forum for such a charge against a U.S. service member is a court-martial rather than a military commission, which is reserved for non-citizen enemy belligerents. The most contested issues in practice are whether the accused had actual knowledge of the offense and whether the assistance was given with the purpose of shielding the offender, because mere suspicion or a failure to report does not establish accessory liability.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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