The Articles of War and the UCMJ
Turner, Lisa L., Aerospace Power Journal
No soldier can fight properly unless he is properly ftd on beef and beer
-Duke of Marlborough, 1650
LT WILLIAM R. SINCOCK and Lt Theodore Q. Balides were not the first US servicemen to mistakenly drop bombs on a neutral country during World War 11. They were, however, the first and apparently only airmen to be court-martialed for dereliction of duty as a result of such an incident. Their court-martial is not surprising, given that approximately one court-martial was convened for every eight service members who served in the US armed forces during World War 11.3 It was unusual that they were afforded defense counsel and subsequently acquitted because at that time, there was no right to a defense lawyer and there were more than 60 general court-martial convictions for each day of hostilities.4 Those staggering numbers exposed millions to the military criminal system under the Articles of War. When those citizen-soldiers returned from World War II, a hue and cry went up in the nation to dramatically reform the system of military criminal law.5 As a result, the Uniform Code of Military Justice (UCMJ) was enacted and signed into law by President Harry Truman on 5 May 1950.6 This year, we celebrate the 50th anniversary of the UCMJ, a system that balances the need of the commander to ensure good order and discipline in the armed forces and the American traditions of due process and fairness.
In addition to concerning themselves with the UCMJ, service members who leave the boundaries of the United States must not only understand the UCMJ but also familiarize themselves with the laws of foreign countries and of the international community. Under some circumstances, a foreign country will retain the right to prosecute members of the US armed forces for violations of the host nation's criminal laws. This concept is known as foreign criminal jurisdiction. Switzerland did not attempt to prosecute Lieutenants Sincock and Balides; however, other nations have prosecuted US service members. International law also impacts the legality of a service member's actions. The Law of Neutrality prohibited intentional bombing of Switzerland during World War II and of the Chinese Embassy in Belgrade, Yugoslavia, during Operation Allied Force. In some instances, the international community has the right to prosecute alleged war crimes.
The Uniform Code of Military Justice
It would be pure speculation to ask whether Lieutenants Sincock and Balides would be court-martialed under the UCMJ for the bombing of Zurich and the resultant deaths of innocent civilians. What is certain is that today they would find a substantially different system with significantly increased rights and protections. The UCMJ was a significant break with tradition. It replaced almost unfettered command authority in the criminal justice arena with a system of justice that recognized the need to balance individual rights under the American tradition of fairness and due process with the command need to ensure good order and discipline.
Prior to the UCMJ, the Army and Navy had their own governing criminal statutes. The court-martial of Lieutenants Sincock and Balides occurred under the Army Articles of War, which were founded upon a tradition of commander-centered discipline reaching back through history. Personnel in the Navy and Marine Corps were tried under the Articles for the Government of the Navy. The Articles of War and the Articles for the Government of the Navy as originally adopted by the Continental Congress in 1775 were developed out of ancient military codes that centered upon the right and necessity of a military commander to exercise strong disciplinary measures when he saw fit.7 Courts were viewed as tools of the commander, and little thought was given to protecting the rights of an accused.8
Many of the over 16 million men and women who served in the United States armed forces during World War II, including civilian lawyers, left the services with a poor view of the Articles of War. …