11.6—Crimes and elements.
(a) Substantive offenses—war crimes.
The following enumerated offenses, if applicable, should be charged in separate counts. Elements are drafted to reflect conduct of the perpetrator. Each element need not be specifically charged.
(D)
The accused knew or should have known of the factual circumstances that established that protected status; and
(ii) Comments.
The intent required for this offense precludes its applicability with regard to collateral damage or injury incident to a lawful attack.
(B)
The object of the attack was a civilian population as such or individual civilians not taking direct or active part in hostilities;
(C)
The accused intended the civilian population as such or individual civilians not taking direct or active part in hostilities to be an object of the attack; and
(ii) Comments.
The intent required for this offense precludes its applicability with regard to collateral damage or injury incident to a lawful attack.
(B)
The object of the attack was civilian property, that is, property that was not a military objective;
(ii) Comments.
The intent required for this offense precludes its applicability with regard to collateral damage or injury incident to a lawful attack.
(D)
The accused knew or should have known of the factual circumstances that established that protected status; and
(ii) Comments.
The intent required for this offense precludes its applicability with regard to collateral damage or injury incident to a lawful attack.
(C)
The appropriation or seizure was without the consent of the owner of the property or other person with authority to permit such appropriation or seizure; and
(D)
The appropriation or seizure took place in the context of and was associated with armed conflict.
(ii) Comments.
As indicated by the use of the term “private or personal use,” legitimate captures or appropriations, or seizures justified by military necessity, cannot constitute the crime of pillaging.
(6) Denying quarter—
(i) Elements.
The accused declared, ordered, or otherwise indicated that there shall be no survivors or surrender accepted;
(B)
The accused thereby intended to threaten an adversary or to conduct hostilities such that there would be no survivors or surrender accepted;
(C)
It was foreseeable that circumstances would be such that a practicable and reasonable ability to accept surrender would exist;
(D)
The accused was in a position of effective command or control over the subordinate forces to which the declaration or order was directed; and
(ii) Comments.
Paragraph (a)(6)(i)(C) of this section precludes this offense from being interpreted as limiting the application of lawful means or methods of warfare against enemy combatants. For example, a remotely delivered attack cannot give rise to this offense.
(7) Taking Hostages—
(i) Elements.
The accused seized, detained, or otherwise held hostage one or more persons;
(C)
The accused intended to compel a State, an international organization, a natural or legal person, or a group of persons to act or refrain from acting as an explicit or implicit condition for the safety or release of such person or persons; and
(ii) Comments.
Consistent with § 11.4(b), this offense cannot be committed by lawfully detaining enemy combatants or other individuals as authorized by the law of armed conflict.
(8) Employing poison or analogous weapons—
(i) Elements.
The accused employed a substance or a weapon that releases a substance as a result of its employment;
(B)
The substance was such that exposure thereto causes death or serious damage to health in the ordinary course of events, through its asphyxiating, poisonous, or bacteriological properties;
(C)
The accused employed the substance or weapon with the intent of utilizing such asphyxiating, poisonous, or bacteriological properties as a method of warfare;
(ii) Comments.
(A)
The “death or serious damage to health” required by paragraph (a)(8)(i)(B) of this section must be a direct result of the substance's effect or effects on the human body (e.g., asphyxiation caused by the depletion of atmospheric oxygen secondary to a chemical or other reaction would not give rise to this offense).
(B)
The clause “serious damage to health” does not include temporary incapacitation or sensory irritation.
(C)
The use of the “substance or weapon” at issue must be proscribed under the law of armed conflict. It may include chemical or biological agents.
(D)
The specific intent element for this offense precludes liability for mere knowledge of potential collateral consequences (e.g., mere knowledge of a secondary asphyxiating or toxic effect would be insufficient to complete the offense).
(9) Using protected persons as shields—
(i) Elements.
The accused positioned, or took advantage of the location of, one or more civilians or persons protected under the law of war;
(B)
The accused intended to use the civilian or protected nature of the person or persons to shield a military objective from attack or to shield, favor, or impede military operations; and
(10) Using protected property as shields—
(i) Elements.
The accused positioned, or took advantage of the location of, civilian property or property protected under the law of war;
(B)
The accused intended to shield a military objective from attack or to shield, favor, or impede military operations; and
(11) Torture—
(i) Elements.
The accused inflicted severe physical or mental pain or suffering upon one or more persons;
(ii) Comments.
(A)
Consistent with § 11.4(b), this offense does not include pain or suffering arising only from, inherent in, or incidental to, lawfully imposed punishments. This offense does not include the incidental infliction of pain or suffering associated with the legitimate conduct of hostilities.
(1) The intentional infliction or threatened infliction of severe physical pain or suffering;
(2) The administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(3) The threat of imminent death; or
(4) The threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.
(C)
“Prolonged mental harm” is a harm of some sustained duration, though not necessarily permanent in nature, such as a clinically identifiable mental disorder.
(D)
Paragraph (a)(11)(i)(C) of this section does not require a particular formal relationship between the accused and the victim. Rather, it precludes prosecution for pain or suffering consequent to a lawful military attack.
(12) Causing serious injury—
(i) Elements.
The accused caused serious injury to the body or health of one or more persons;
(ii) Comments.
“Serious injury” includes fractured or dislocated bones, deep cuts, torn members of the body, and serious damage to internal organs.
(13) Mutilation or maiming—
(i) Elements.
The accused subjected one or more persons to mutilation, in particular by permanently disfiguring the person or persons, or by permanently disabling or removing an organ or appendage;
(C)
The conduct caused death or seriously damaged or endangered the physical or mental health or appearance of such person or persons.
(D)
The conduct was neither justified by the medical treatment of the person or persons concerned nor carried out in the interest of such person or persons;
(14) Use of treachery or perfidy—
(i) Elements.
The accused invited the confidence or belief of one or more persons that they were entitled to, or were obliged to accord, protection under the law of war;
(D)
The accused made use of that confidence or belief in killing, injuring, or capturing such person or persons; and
(B)
The accused made such use in order to feign an intention to negotiate, surrender, or otherwise to suspend hostilities when there was no such intention on the part of the accused; and
(16) Improper use of protective emblems—
(i) Elements.
The accused used a protective emblem recognized by the law of armed conflict;
(B)
The accused undertook such use for combatant purposes in a manner prohibited by the law of armed conflict;
(ii) Comments.
“Combatant purposes,” as used in paragraph (a)(16)(i)(B) of this section, means purposes directly related to hostilities and does not include medical, religious, or similar activities.
(17) Degrading treatment of a dead body—
(i) Elements.
The accused degraded or otherwise violated the dignity of the body of a dead person;
(C)
The severity of the degradation or other violation was of such degree as to be generally recognized as an outrage upon personal dignity; and
(ii) Comments.
Paragraph (a)(17)(i)(B) of this section precludes prosecution for actions justified by military necessity.
(18) Rape—
(i) Elements.
The accused invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the accused with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body;
(B)
The invasion was committed by force, threat of force or coercion, or was committed against a person incapable of giving consent; and
(ii) Comments.
(A)
Paragraph (a)(18)(i)(B) of this section recognizes that consensual conduct does not give rise to this offense.
(B)
It is understood that a person may be incapable of giving consent if affected by natural, induced, or age-related incapacity.
(C)
The concept of “invasion” is linked to the inherent wrongfulness requirement for all offenses. In this case, for example, a legitimate body cavity search could not give rise to this offense.
(b) Substantive offenses—other offenses triable by military commission.
The following enumerated offenses, if applicable, should be charged in separate counts. Elements are drafted to reflect conduct of the perpetrator. Each element need not be specifically charged.
(1) Hijacking or hazarding a vessel or aircraft—
(i) Elements.
The accused seized, exercised control over, or endangered the safe navigation of a vessel or aircraft;
(B)
The accused intended to so seize, exercise control over, or endanger such vessel or aircraft; and
(ii) Comments.
A seizure, exercise of control, or endangerment required by military necessity, or against a lawful military objective undertaken by military forces of a State in the exercise of their official duties, would not satisfy the wrongfulness requirement for this crime.
(2) Terrorism—
(i) Elements.
The accused killed or inflicted bodily harm on one or more persons or destroyed property;
(1) Intended to kill or inflict bodily harm on one or more persons; or
(2) Intentionally engaged in an act that is inherently dangerous to another and evinces a wanton disregard of human life;
(C)
The killing, harm or destruction was intended to intimidate or coerce a civilian population, or to influence the policy of a government by intimidation or coercion; and
(D)
The killing, harm or destruction took place in the context of and was associated with armed conflict.
(ii) Comments.
(A)
Paragraph (b)(2)(i)(A) of this section includes the concept of causing death or bodily harm, even if indirectly.
(B)
The requirement that the conduct be wrongful for this crime necessitates that the conduct establishing this offense not constitute an attack against a lawful military objective undertaken by military forces of a State in the exercise of their official duties.
(1) Intended to kill or inflict great bodily harm on such person or persons; or
(2) Intentionally engaged in an act that is inherently dangerous to another and evinces a wanton disregard of human life;
(ii) Comments.
(A)
The term “kill” includes intentionally causing death, whether directly or indirectly.
(B)
Unlike the crimes of willful killing or attacking civilians, in which the victim's status is a prerequisite to criminality, for this offense the victim's status is immaterial. Even an attack on a soldier would be a crime if the attacker did not enjoy “belligerent privilege” or “combatant immunity.”
(4) Destruction of property by an unprivileged belligerent—
(i) Elements.
The accused destroyed property;
(ii) Comments.
(A)
Means of accomplishing paragraph (b)(5)(i)(A) of this section include, but are not limited to: providing arms, ammunition, supplies, money, other items or services to the enemy; harboring or protecting the enemy; or giving intelligence or other information to the enemy.
(B)
The requirement that conduct be wrongful for this crime necessitates that the accused act without proper authority. For example, furnishing enemy combatants detained during hostilities with subsistence or quarters in accordance with applicable orders or policy is not aiding the enemy.
(C)
The requirement that conduct be wrongful for this crime may necessitate that, in the case of a lawful belligerent, the accused owe allegiance or some duty to the United States of America or to an ally or coalition partner. For example, citizenship, resident alien status, or a contractual relationship in or with the United States or an ally or coalition partner is sufficient to satisfy this requirement so long as the relationship existed at a time relevant to the offense alleged.
(C)
The accused, in collecting or attempting to collect the information, was lurking or acting clandestinely, while acting under false pretenses; and
(ii) Comments.
(A)
Members of a military organization not wearing a disguise and others who carry out their missions openly are not spies, if, though they may have resorted to concealment, they have not acted under false pretenses.
(B)
Related to the requirement that conduct be wrongful or without justification or excuse in this case is the fact that, consistent with the law of war, a lawful combatant who, after rejoining the armed force to which that combatant belongs, is subsequently captured, can not be punished for previous acts of espionage. His successful rejoining of his armed force constitutes a defense.
(7) Perjury or false testimony—
(i) Elements.
The accused testified at a military commission, in proceedings ancillary to a military commission, or provided information in a writing executed under an oath to tell the truth or a declaration acknowledging the applicability of penalties of perjury in connection with such proceedings;
(B)
The accused intended to influence, impede, or otherwise obstruct the due administration of justice; and
(C)
The accused did such act in the case of a certain person against whom the accused had reason to believe:
(1) There were or would be proceedings before a military commission; or
(2) There was an ongoing investigation of offenses triable by military commission.
(c) Other forms of liability and related offenses.
A person is criminally liable as a principal for a completed substantive offense if that person commits the offense (perpetrator), aids or abets the commission of the offense, solicits commission of the offense, or is otherwise responsible due to command responsibility. Such a person would be charged as a principal even if another individual more directly perpetrated the offense. In proving culpability, however, the below listed definitions and elements are applicable. Additionally, if a substantive offense was completed, a person may be criminally liable for the separate offense of accessory after the fact. If the substantive offense was not completed, a person may be criminally liable of the lesser-included offense of attempt or the separate offense of solicitation. Finally, regardless of whether the substantive offense was completed, a person may be criminally liable of the separate offense of conspiracy in addition to the substantive offense. Each element need not be specifically charged.
(1) Aiding or abetting—
(i) Elements.
The accused committed an act that aided or abetted another person or entity in the commission of a substantive offense triable by military commission;
(C)
The accused intended to or knew that the act would aid or abet such other person or entity in the commission of the substantive offense or an associated criminal purpose or enterprise.
(ii) Comments.
(A)
The term “aided or abetted” in paragraph (c)(1)(i)(A) of this section includes: assisting, encouraging, advising, instigating, counseling, ordering, or procuring another to commit a substantive offense; assisting, encouraging, advising, counseling, or ordering another in the commission of a substantive offense; and in any other way facilitating the commission of a substantive offense.
(B)
In some circumstances, inaction may render one liable as an aider or abettor. If a person has a legal duty to prevent or thwart the commission of a substantive offense, but does not do so, that person may be considered to have aided or abetted the commission of the offense if such noninterference is intended to and does operate as an aid or encouragement to the actual perpetrator.
(C)
An accused charged with aiding or abetting should be charged with the related substantive offense as a principal.
(2) Solicitation—
(i) Elements.
The accused solicited, ordered, induced, or advised a certain person or persons to commit one or more substantive offenses triable by military commission; and
(ii) Comments.
(A)
The offense is complete when a solicitation is made or advice is given with the specific wrongful intent to induce a person or persons to commit any offense triable by military commission. It is not necessary that the person or persons solicited, ordered, induced, advised, or assisted agree to or act upon the solicitation or advice. If the offense solicited is actually committed, however, the accused is liable under the law of armed conflict for the substantive offense. An accused should not be convicted of both solicitation and the substantive offense solicited if criminal liability for the substantive offense is based upon the solicitation.
(B)
Solicitation may be by means other than speech or writing. Any act or conduct that reasonably may be construed as a serious request, order, inducement, advice, or offer of assistance to commit any offense triable by military commission may constitute solicitation. It is not necessary that the accused act alone in the solicitation, order, inducement, advising, or assistance. The accused may act through other persons in committing this offense.
(C)
An accused charged with solicitation of a completed substantive offense should be charged for the substantive offense as a principal. An accused charged with solicitation of an uncompleted offense should be charged for the separate offense of solicitation. Solicitation is not a lesser-included offense of the related substantive offense.
(3) Command/superior responsibility—perpetrating—
(i) Elements.
The accused had command and control, or effective authority and control, over one or more subordinates;
(B)
One or more of the accused's subordinates committed, attempted to commit, conspired to commit, solicited to commit, or aided or abetted the commission of one or more substantive offenses triable by military commission;
(C)
The accused either knew or should have known that the subordinate or subordinates were committing, attempting to commit, conspiring to commit, soliciting, or aiding or abetting such offense or offenses; and
(D)
The accused failed to take all necessary and reasonable measures within his power to prevent or repress the commission of the offense or offenses.
(ii) Comments.
(A)
The phrase “effective authority and control” in paragraph (c)(3)(i)(A) of this section includes the concept of relative authority over the subject matter or activities associated with the perpetrator's conduct. This may be relevant to a civilian superior who should not be held responsible for the behavior of subordinates involved in activities that have no relationship to such superior's sphere of authority. Subject matter authority need not be demonstrated for command responsibility as it applies to a military commander.
(B)
A commander or other military or civilian superior, not in command, charged with failing adequately to prevent or repress a substantive offense triable by military commission should be charged for the related substantive offense as a principal.
(4) Command/superior responsibility—misprision—
(i) Elements.
The accused had command and control, or effective authority and control, over one or more subordinates;
(B)
One or more of the accused's subordinates had committed, attempted to commit, conspired to commit, solicited to commit, or aided or abetted the commission of one or more substantive offenses triable by military commission;
(C)
The accused knew or should have known that the subordinate or subordinates had committed, attempted to commit, conspired to commit, solicited, or aided or abetted such offense or offenses; and
(D)
The accused failed to submit the matter to competent authorities for investigation or prosecution as appropriate.
(ii) Comments.
(A)
The phrase, “effective authority and control” in paragraph (c)(4)(i)(A) of this section includes the concept of relative authority over the subject matter or activities associated with the perpetrator's conduct. This may be relevant to a civilian superior who cannot be held responsible under this offense for the behavior of subordinates involved in activities that have nothing to do with such superior's sphere of authority.
(B)
A commander or superior charged with failing to take appropriate punitive or investigative action subsequent to the perpetration of a substantive offense triable by military commission should not be charged for the substantive offense as a principal. Such commander or superior should be charged for the separate offense of failing to submit the matter for investigation and/or prosecution as detailed in these elements. This offense is not a lesser-included offense of the related substantive offense.
(5) Accessory after the fact—
(i) Elements.
The accused received, comforted, or assisted a certain person;
(C)
The accused knew that such person had committed such offense or believed such person had committed a similar or closely related offense; and
(D)
The accused intended to hinder or prevent the apprehension, trial, or punishment of such person.
(ii) Comments.
Accessory after the fact should be charged separately from the related substantive offense. It is not a lesser-included offense of the related substantive offense.
(6) Conspiracy—
(i) Elements.
The accused entered into an agreement with one or more persons to commit one or more substantive offenses triable by military commission or otherwise joined an enterprise of persons who shared a common criminal purpose that involved, at least in part, the commission or intended commission of one or more substantive offenses triable by military commission;
(B)
The accused knew the unlawful purpose of the agreement or the common criminal purpose of the enterprise and joined in it willfully, that is, with the intent to further the unlawful purpose; and
(C)
One of the conspirators or enterprise members, during the existence of the agreement or enterprise, knowingly committed an overt act in order to accomplish some objective or purpose of the agreement or enterprise.
(ii) Comments.
(A)
Two or more persons are required in order to have a conspiracy. Knowledge of the identity of co-conspirators and their particular connection with the agreement or enterprise need not be established. A person may be guilty of conspiracy although incapable of committing the intended offense. The joining of another conspirator after the conspiracy has been established does not create a new conspiracy or affect the status of the other conspirators. The agreement or common criminal purpose in a conspiracy need not be in any particular form or manifested in any formal words.
(B)
The agreement or enterprise must, at least in part, involve the commission or intended commission of one or more substantive offenses triable by military commission. A single conspiracy may embrace multiple criminal objectives. The agreement need not include knowledge that any relevant offense is in fact “triable by military commission.”
(C)
The overt act must be done by one or more of the conspirators, but not necessarily the accused, and it must be done to effectuate the object of the conspiracy or in furtherance of the common criminal purpose. The accused need not have entered the agreement or criminal enterprise at the time of the overt act.
(D)
The overt act need not be in itself criminal, but it must advance the purpose of the conspiracy. It is not essential that any substantive offense be committed.
(E)
Each conspirator is liable for all offenses committed pursuant to or in furtherance of the conspiracy by any of the co-conspirators, after such conspirator has joined the conspiracy and while the conspiracy continues and such conspirator remains a party to it.
(F)
A party to the conspiracy who withdraws from or abandons the agreement or enterprise before the commission of an overt act by any conspirator is not guilty of conspiracy. An effective withdrawal or abandonment must consist of affirmative conduct that is wholly inconsistent with adherence to the unlawful agreement or common criminal purpose and that shows that the party has