ARTICLE 100 COMPELLING SURRENDER

Article 100 of the UCMJ deals with surrender to the enemy and various situations where this may take place. The offenses that are covered by this article are similar to mutiny and related offenses. This article is deemed to be violated when the accused assumes authority to offer surrender despite lacking proper authorization to do so.

One aspect that must be noted here is that when continuing the attack against the enemy has become fruitless and it is impossible to communicate with superiors to get authorization for surrender, it may be proven that the accused acted lawfully and did not violate article 100.

Here, the word 'enemy' is used to refer to any civilian or military opposition force in times of war or peace. There are three different situations covered under this article: compelling surrender; attempts to compel surrender; and striking the flag or colors (hauling down the flag or colors with a view to surrendering). To learn more about this punitive article refer to the Manual for Courts Martial.

The critical components of these sections are as follows:

a) Compelling Surrender

Elements:

• That a specified person was in command of a unit, ship, aircraft, place, vessel.
• That the accused committed an act with the objective of compelling the commander to abandon/ to surrender to the enemy his unit, ship, aircraft, place, vessel.
• That the unit, ship, aircraft, place, vessel was given up to the enemy or abandoned.

Note: 'Abandon' means that the commander has relinquished his responsibility of the unit, ship, aircraft, place or vessel.

b) Compelling Surrender- Attempt

Elements:

• That a specific person was in command of a unit, vessel, place, military property or aircraft.
• That the accused committed a specific act.
• That the purpose of the act was to compel the commander to surrender or abandon the unit, place, military property, vessel or aircraft under his command.
• That the act of the accused was not just preparation but that it was a deliberate and direct movement toward completing this act of compulsion.
• That, as a result of this act, the commander would have been compelled to relinquish command or to abandon his command if unexpected circumstances had not intervened.

Note: The prosecution need not show that actual abandonment or relinquishing of command took place. However, it is necessary to prove that the accused deliberately committed an act designed to bring about this objective.

c) Striking the flag or colors

Meaning of 'striking the colors/ flag': To pull down the flag or colors before the enemy or make any other movement that can be construed as surrender.

Elements:

• That an offer to surrender existed.
• That this offer was in the form of striking the flag/ colors to the opposition forces.
• That this act was done by the accused.
• That the accused lacked proper authority to carry out this act.

Note: It is not necessary that the unit/ troop/ ship/ vessel is engaged in warfare when the accused commits the offense of 'striking the flags and colors'. However, it is necessary to prove that the accused had sufficient contact with the opposing forces to make his offer of surrender. The accused shall be found guilty even if the enemy refused the offer of surrender as long as it is proven that the accused transmitted the surrender offer in such a way that the enemy could receive it.

Typically, circumstantial evidence is permitted during the trial under any of these three sections to prove that the accused had an intent to bring about surrender to the enemy.

MAXIMUM PUNISHMENT

The accused faces maximum punishment of death or other lawful punishment if found guilty of violating this article.