4

A friend of mine works for the US military, and their family was living on a base in an allied nation. While they were there, a person known to them did some terrible things to their family, the kind of things that would be considered horrific crimes in every civilized nation, and get him summarily put down like the rabid dog he is in the uncivilized ones.

Unfortunately, no one is doing anything about it. There's no question about what was done or who did it, but there appears to be a jurisdictional mess: the host country won't prosecute because everyone involved, on both the victim and perpetrator sides, is a US citizen and it took place on a US military base, and the military can't prosecute because the perpetrator is a civilian who is not subject to the UCMJ.

My friend and their family have been transferred, but they hear that this monster is openly boasting about what he did and is planning to hunt them down, and they are looking very seriously at possibly going into hiding because no one will do anything to stop him.

I'm having a difficult time accepting the concept of "no valid jurisdiction." It seems to me that if nothing else, a US citizen on US territory would be subject to Federal law, but apparently things aren't quite that simple. Even so, I don't believe in "no jurisdiction." Whose jurisdiction would this fall under?

  • 4
    What other country? This may depend on the specific Status of Forces Agreement. Also, was the person known to them there accompanying the US military? – cpast Nov 28 '15 at 1:11
  • 1
    A US citizen on US territory is subject to US law, as are nearly all people on US territory. The problem here is that foreign military bases are not US territory. They're foreign. That's why Bush built that prison in Guantanamo. – phoog Nov 28 '15 at 5:18
  • 1
    We need to know where this is. – Calchas Nov 28 '15 at 6:11
  • I'm a bit reluctant to share too many details because of the sensitive nature of what happened and because it's not resolved yet, but... South Korea. And yes, he was a family member of one of the military people on the base. (Don't ask about the familly. It's... complicated.) :( – user3575 Nov 28 '15 at 9:26
  • This sounds like it needs a bit of street justice. Not so much, lawful justice. If the crimes were that terrible, treat him like the rabid dog you claim he is and put him down in a ditch. – Digital fire Jul 6 '17 at 21:40
3

There's no question about what was done or who did it, but there appears to be a jurisdictional mess: the host country won't prosecute because everyone involved, on both the victim and perpetrator sides, is a US citizen and it took place on a US military base, and the military can't prosecute because the perpetrator is a civilian who is not subject to the UCMJ.

The host country probably has jurisdiction because a military base, unlike an embassy, is not generally immune from domestic criminal law jurisdiction, although the host country is within its rights to decline to exercise that authority and the status of forces treaty with that country would control.

The belief that the military cannot prosecute the perpetrator under the Uniform Code of Military Justice because the perpetrator is a civilian who is not subject to the UCMJ is mistaken, and the easiest way to address the issue may be to point this out to the responsible JAG officers and commanding officers with jurisdiction over the case. Generally speaking, as set forth more fully below, the UCMJ does apply to civilians on military bases. See 10 USC 802(a)(11) and 10 USC 802(a)(12).

There is also probably U.S. civilian criminal law that is applicable to civilians on a military base much like other federal territories. Historically, these offenses could be presided over in ambassadorial courts of the U.S. ambassador to the country in question, but the current practice is for such prosecutions to be made by the Justice Department before a U.S. District Court judge (I believe from the U.S. District Court for the District of Columbia, although I may be mistaken on that point).

Who Is Subject To The UCMJ?

Section 802 of Title 10, set forth in the block quote below expressly states who is subject to the Uniform Code of Military Justice.

Mostly, the UCMJ applies to members of the U.S. military, broadly defined, with some of the potentially close cases described with specificity. A lot of the detail in this definition goes to the issue of when non-active duty military personnel (1) are subject to the UCMJ, (2) are subject to state versions of the UMCJ in lieu of the UCMJ, or (3) are not subject to the UCMJ at all.

The UCMJ also applies to some civilians and people who belong to other military forces, most of which involve (1) people who are civilian employees of the military or civilian military contractors, (2) civilians and members of foreign militaries who are traveling with the military or present on military bases, and (3) prisoners of war broadly defined. These exception cases are emphasized in bold in the blockquote setting forth 10 USC § 802 below.

(a) The following persons are subject to this chapter:

(1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers from the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in, the armed forces, from the dates when they are required by the terms of the call or order to obey it.

(2) Cadets, aviation cadets, and midshipmen.

(3) Members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.

(4) Retired members of a regular component of the armed forces who are entitled to pay.

(5) Retired members of a reserve component who are receiving hospitalization from an armed force.

(6) Members of the Fleet Reserve and Fleet Marine Corps Reserve.

(7) Persons in custody of the armed forces serving a sentence imposed by a court-martial.

(8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces.

(9) Prisoners of war in custody of the armed forces.

(10) In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.

(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

(12) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

(13) Individuals belonging to one of the eight categories enumerated in Article 4 of the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316), who violate the law of war.

(b) The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jurisdiction under subsection (a) and a change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment.

(c) Notwithstanding any other provision of law, a person serving with an armed force who—

(1) submitted voluntarily to military authority;

(2) met the mental competency and minimum age qualifications of sections 504 and 505 of this title at the time of voluntary submission to military authority;

(3) received military pay or allowances; and

(4) performed military duties;

is subject to this chapter until such person’s active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned.

(d)(1) A member of a reserve component who is not on active duty and who is made the subject of proceedings under section 815 (article 15) or section 830 (article 30) with respect to an offense against this chapter may be ordered to active duty involuntarily for the purpose of—

(A) a preliminary hearing under section 832 of this title (article 32);

(B) trial by court-martial; or

(C) nonjudicial punishment under section 815 of this title (article 15).

(2) A member of a reserve component may not be ordered to active duty under paragraph (1) except with respect to an offense committed while the member was—

(A) on active duty; or

(B) on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.

(3) Authority to order a member to active duty under paragraph (1) shall be exercised under regulations prescribed by the President.

(4) A member may be ordered to active duty under paragraph (1) only by a person empowered to convene general courts-martial in a regular component of the armed forces.

(5) A member ordered to active duty under paragraph (1), unless the order to active duty was approved by the Secretary concerned, may not—

(A) be sentenced to confinement; or

(B) be required to serve a punishment consisting of any restriction on liberty during a period other than a period of inactive-duty training or active duty (other than active duty ordered under paragraph (1)).

(e) The provisions of this section are subject to section 876b(d)(2) of this title (article 76b(d)(2))

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.