[Federal Register Volume 68, Number 126 (Tuesday, July 1, 2003)]
[Rules and Regulations]
[Pages 39381-39387]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16379]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 11


Crimes and Elements of Trials by Military Commission

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: This rule provides guidance with respect to crimes that may be 
tried by military commissions established pursuant to regulations on, 
Procedures for Trials by Military Commission of Certain Non-United 
States Citizens in the War Against Terrorism, and Military Order of 
November 13, 2001, ``Detention, Treatment, and Trial of Certain Non-
Citizens in the War Against Terrorism,'' and enumerates the elements of 
those crimes.

EFFECTIVE DATE: April 30, 2003.

FOR FURTHER INFORMATION CONTACT: Office of Military Commission 
Spokesperson, 703-693-1115.

SUPPLEMENTARY INFORMATION: Although exempt from administrative 
procedures for rulemaking, publication of the final rule in the Federal 
Register is deemed appropriate under 5 U.S.C. 552(a)(1)(C). 
Certifications follow:

Administrative Procedures Act (Sec. 1, Pub. L. 89-544)

    It has been certified that 32 CFR part 11 is as a military function 
of the United States and exempt from administrative procedures for rule 
making.

Executive Order 12866, ``Regulatory Planning and Review''

    It has been certified that 32 CFR part 11 pertains to military 
functions other than procurement and import-export licenses and is 
exempt from Office of Management and Budget review under section 3, 
para (d)(2).

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

    It has been certified that 32 CFR part 11 does not contain a 
Federal Mandate that may result in the expenditure by State, local and 
tribal governments, in aggregate, or by the private sector, of $100 
million or more in any one year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been determined that this rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been certified that 32 CFR part 11 does not impose any 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995 (44 U.S.C. chapter 44).

Federalism (Executive Order 13132)

    It has been certified that 32 CFR part 11 does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    (1) The States;
    (2) The relationship between the national government and the 
States; or
    (3) The distribution of power and responsibilities among the 
various levels of government.

List of Subjects in 32 CFR Part 11

    Military law.


0
Accordingly, 32 CFR part 11 is added to subtitle A, chapter I, 
subchapter B to read as follows:

PART 11--CRIMES AND ELEMENTS FOR TRIALS BY MILITARY COMMISSION

Sec.
11.1 Purpose.
11.2 Authority.
11.3 General.
11.4 Applicable principles of law.
11.5 Definitions.
11.6 Crimes and elements.

    Authority: 10 U.S.C. 821.


Sec.  11.1  Purpose.

    This part provides guidance with respect to crimes that may be 
tried by military commissions established pursuant to 32 CFR part 9, 
and Military Order of November 13, 2001, ``Detention, Treatment, and 
Trial of Certain Non-Citizens in the War Against Terrorism,'' (3 CFR, 
2001 comp., p. 918, 66 FR 57833) and enumerates the elements of those 
crimes.


Sec.  11.2  Authority.

    This part is issued pursuant to 32 CFR 9.7(a) and in accordance 
with Military Order of November 13, 2001, ``Detention, Treatment, and 
Trial of Certain Non-Citizens in the War Against Terrorism,'' (66 FR 
57833) and 10 U.S.C. 113(d), 140(b), and 821. The provisions of 32 CFR 
part 10 are applicable to this part.


Sec.  11.3  General.

    (a) Background. The following crimes and elements thereof are 
intended for use by military commissions established pursuant to 32 CFR 
part 9, and Military Order of November 13, 2001, ``Detention, 
Treatment, and Trial of Certain Non-Citizens in the War Against 
Terrorism,'' the jurisdiction of which extends to offenses or offenders 
that by statute or the law of armed conflict may be tried by military 
commission as limited by Military Order of November 13, 2001, 
``Detention, Treatment, and Trial of Certain Non-Citizens in the War 
Against Terrorism.'' No offense is cognizable in a trial by military 
commission if that offense did not exist prior to the conduct in 
question. These crimes and elements derive from the law of armed 
conflict, a body of law that is sometimes referred to as the law of 
war. They constitute violations of the law of armed conflict or 
offenses that, consistent with that body of law, are triable by 
military commission. Because this document is declarative of existing 
law, it does not preclude trial for crimes that occurred prior to its 
effective date.
    (b) Effect of other laws. No conclusion regarding the applicability 
or persuasive authority of other bodies of law should be drawn solely 
from the presence, absence, or similarity of particular language in 
this part as compared to other articulations of law.
    (c) Non-exclusivity. This part does not contain a comprehensive 
list of crimes triable by military commission. It is intended to be 
illustrative of applicable principles of the common law of war but not 
to provide an exclusive enumeration of the punishable acts recognized 
as such by that law. The absence of a particular offense from the 
corpus of those enumerated herein does not preclude trial for that 
offense.


Sec.  11.4.  Applicable principles of law.

    (a) General intent. All actions taken by the Accused that are 
necessary for completion of a crime must be performed with general 
intent. This intent is not listed as a separate element. When the mens 
rea required for culpability to attach involves an intent that a 
particular consequence occur, or some other specific intent, an intent 
element is included. The necessary relationship between such intent 
element and the conduct constituting the actus reus is not articulated 
for each

[[Page 39382]]

set of elements, but is presumed; a nexus between the two is necessary.
    (b) The element of wrongfulness and defenses. Conduct must be 
wrongful to constitute one of the offenses enumerated herein or any 
other offense triable by military commission. Conduct is wrongful if it 
is done without justification or excuse cognizable under applicable 
law. The element of wrongfulness (or the absence of lawful 
justification or excuse), which may be required under the customary law 
of armed conflict, is not repeated in the elements of crimes in Sec.  
11.6. Conduct satisfying the elements found herein shall be inferred to 
be wrongful in the absence of evidence to the contrary. Similarly, this 
part does not enunciate defenses that may apply for specific offenses, 
though an Accused is entitled to raise any defense available under the 
law of armed conflict. Defenses potentially available to an Accused 
under the law of armed conflict, such as self-defense, mistake of fact, 
and duress, may be applicable to certain offenses subject to trial by 
military commission. In the absence of evidence to the contrary, 
defenses in individual cases shall be presumed not to apply. The burden 
of going forward with evidence of lawful justification or excuse or any 
applicable defense shall be upon the Accused. With respect to the issue 
of combatant immunity raised by the specific enumeration of an element 
requiring the absence thereof, the prosecution must affirmatively prove 
that element regardless of whether the issue is raised by the defense. 
Once an applicable defense or an issue of lawful justification or 
lawful excuse is fairly raised by the evidence presented, except for 
the defense of lack of mental responsibility, the burden is on the 
prosecution to establish beyond a reasonable doubt that the conduct was 
wrongful or that the defense does not apply. With respect to the 
defense of lack of mental responsibility, the Accused has the burden of 
proving by clear and convincing evidence that, as a result of a severe 
mental disease or defect, the Accused was unable to appreciate the 
nature and quality of the wrongfulness of the Accused's acts. As 
provided in 32 CFR 9.5(c), the prosecution bears the burden of 
establishing the Accused's guilt beyond a reasonable doubt in all cases 
tried by a military commission. Each element of an offense enumerated 
herein must be proven beyond a reasonable doubt.
    (c) Statute of limitations. Violations of the laws of war listed 
herein are not subject to any statute of limitations.


Sec.  11.5.  Definitions.

    (a) Combatant immunity. Under the law of armed conflict, only a 
lawful combatant enjoys ``combatant immunity'' or ``belligerent 
privilege'' for the lawful conduct of hostilities during armed 
conflict.
    (b) Enemy. ``Enemy'' includes any entity with which the United 
States or allied forces may be engaged in armed conflict, or which is 
preparing to attack the United States. It is not limited to foreign 
nations, or foreign military organizations or members thereof. 
``Enemy'' specifically includes any organization of terrorists with 
international reach.
    (c) In the context of and was associated with armed conflict. 
Elements containing this language require a nexus between the conduct 
and armed hostilities. Such nexus could involve, but is not limited to, 
time, location, or purpose of the conduct in relation to the armed 
hostilities. The existence of such factors, however, may not satisfy 
the necessary nexus (e.g., murder committed between members of the same 
armed force for reasons of personal gain unrelated to the conflict, 
even if temporally and geographically associated with armed conflict, 
is not ``in the context of'' the armed conflict). The focus of this 
element is not the nature or characterization of the conflict, but the 
nexus to it. This element does not require a declaration of war, 
ongoing mutual hostilities, or confrontation involving a regular 
national armed force. A single hostile act or attempted act may provide 
sufficient basis for the nexus so long as its magnitude or severity 
rises to the level of an ``armed attack'' or an ``act of war,'' or the 
number, power, stated intent or organization of the force with which 
the actor is associated is such that the act or attempted act is 
tantamount to an attack by an armed force. Similarly, conduct 
undertaken or organized with knowledge or intent that it initiate or 
contribute to such hostile act or hostilities would satisfy the nexus 
requirement.
    (d) Military Objective. ``Military objectives'' are those potential 
targets during an armed conflict which, by their nature, location, 
purpose, or use, effectively contribute to the opposing force's war-
fighting or war-sustaining capability and whose total or partial 
destruction, capture, or neutralization would constitute a military 
advantage to the attacker under the circumstances at the time of the 
attack.
    (e) Object of the attack. ``Object of the attack'' refers to the 
person, place, or thing intentionally targeted. In this regard, the 
term includes neither collateral damage nor incidental injury or death.
    (f) Protected property. ``Protected property'' refers to property 
specifically protected by the law of armed conflict such as buildings 
dedicated to religion, education, art, science or charitable purposes, 
historic monuments, hospitals, or places where the sick and wounded are 
collected, provided they are not being used for military purposes or 
are not otherwise military objectives. Such property would include 
objects properly identified by one of the distinctive emblems of the 
Geneva Conventions but does not include all civilian property.
    (g) Protected under the law of war. The person or object in 
question is expressly ``protected'' under one or more of the Geneva 
Conventions of 1949 or, to the extent applicable, customary 
international law. The term does not refer to all who enjoy some form 
of protection as a consequence of compliance with international law, 
but those who are expressly designated as such by the applicable law of 
armed conflict. For example, persons who either are hors de combat or 
medical or religious personnel taking no active part in hostilities are 
expressly protected, but other civilians may not be.
    (h) Should have known. The facts and circumstances were such that a 
reasonable person in the Accused's position would have had the relevant 
knowledge or awareness.


Sec.  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.
    (1) Willful killing of protected persons--(i) Elements. (A) The 
accused killed one or more persons;
    (B) The accused intended to kill such person or persons;
    (C) Such person or persons were protected under the law of war;
    (D) The accused knew or should have known of the factual 
circumstances that established that protected status; and
    (E) The killing took place in the context of and was associated 
with armed conflict.
    (ii) Comments. The intent required for this offense precludes its 
applicability with regard to collateral damage or injury incident to a 
lawful attack.
    (2) Attacking civilians.--(i) Elements. (A) The accused engaged in 
an attack;
    (B) The object of the attack was a civilian population as such or

[[Page 39383]]

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
    (D) The attack took place in the context of and was associated with 
armed conflict.
    (ii) Comments. The intent required for this offense precludes its 
applicability with regard to collateral damage or injury incident to a 
lawful attack.
    (3) Attacking civilian objects.--(i) Elements. (A) The accused 
engaged in an attack;
    (B) The object of the attack was civilian property, that is, 
property that was not a military objective;
    (C) The accused intended such property to be an object of the 
attack;
    (D) The accused knew or should have known that such property was 
not a military objective; and
    (E) The attack took place in the context of and was associated with 
armed conflict.
    (ii) Comments. The intent required for this offense precludes its 
applicability with regard to collateral damage or injury incident to a 
lawful attack.
    (4) Attacking Protected Property--(i) Elements. (A) The accused 
engaged in an attack;
    (B) The object of the attack was protected property;
    (C) The accused intended such property to be an object of the 
attack;
    (D) The accused knew or should have known of the factual 
circumstances that established that protected status; and
    (E) The attack took place in the context of and was associated with 
armed conflict.
    (ii) Comments. The intent required for this offense precludes its 
applicability with regard to collateral damage or injury incident to a 
lawful attack.
    (5) Pillaging--(i) Elements. (A) The accused appropriated or seized 
certain property;
    (B) The accused intended to appropriate or seize such property for 
private or personal use;
    (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. (A) 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
    (E) The conduct took place in the context of and was associated 
with armed conflict.
    (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. (A) The accused seized, 
detained, or otherwise held hostage one or more persons;
    (B) The accused threatened to kill, injure, or continue to detain 
such person or 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
    (D) The conduct took place in the context of and was associated 
with armed conflict.
    (ii) Comments. Consistent with Sec.  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. (A) 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;
    (D) The accused knew or should have known of the nature of the 
substance or weapon; and
    (E) The conduct took place in the context of and was associated 
with armed conflict.
    (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. (A) 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
    (C) The conduct took place in the context of and was associated 
with armed conflict.
    (ii) [Reserved]
    (10) Using protected property as shields--(i) Elements. (A) 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
    (C) The conduct took place in the context of and was associated 
with armed conflict.
    (ii) [Reserved]
    (11) Torture--(i) Elements. (A) The accused inflicted severe 
physical or mental pain or suffering upon one or more persons;
    (B) The accused intended to inflict such severe physical or mental 
pain or suffering;
    (C) Such person or persons were in the custody or under the control 
of the accused; and
    (D) The conduct took place in the context of and was associated 
with armed conflict.
    (ii) Comments. (A) Consistent with Sec.  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

[[Page 39384]]

infliction of pain or suffering associated with the legitimate conduct 
of hostilities.
    (B) Severe ``mental pain or suffering'' is the prolonged mental 
harm caused by or resulting from:
    (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. (A) The accused caused 
serious injury to the body or health of one or more persons;
    (B) The accused intended to inflict such serious injury;
    (C) Such person or persons were in the custody or under the control 
of the accused; and
    (D) The conduct took place in the context of and was associated 
with armed conflict.
    (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. (A) 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;
    (B) The accused intended to subject such person or persons to such 
mutilation;
    (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;
    (E) Such person or persons were in the custody or control of the 
accused; and
    (F) The conduct took place in the context of and was associated 
with armed conflict.
    (ii) [Reserved]
    (14) Use of treachery or perfidy--(i) Elements. (A) 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;
    (B) The accused intended to betray that confidence or belief;
    (C) The accused killed, injured, or captured one or more persons;
    (D) The accused made use of that confidence or belief in killing, 
injuring, or capturing such person or persons; and
    (E) The conduct took place in the context of and was associated 
with armed conflict.
    (ii) [Reserved]
    (15) Improper use of flag of truce--(i) Elements. (A) The accused 
used a flag of truce;
    (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
    (C) The conduct took place in the context of and was associated 
with armed conflict.
    (ii) [Reserved]
    (16) Improper use of protective emblems--(i) Elements. (A) 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;
    (C) The accused knew or should have known of the prohibited nature 
of such use; and
    (D) The conduct took place in the context of and was associated 
with 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. (A) The 
accused degraded or otherwise violated the dignity of the body of a 
dead person;
    (B) The accused intended to degrade or otherwise violate the 
dignity of such body;
    (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
    (D) The conduct took place in the context of and was associated 
with armed conflict.
    (ii) Comments. Paragraph (a)(17)(i)(B) of this section precludes 
prosecution for actions justified by military necessity.
    (18) Rape--(i) Elements. (A) 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
    (C) The conduct took place in the context of and was associated 
with armed conflict.
    (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.
    (D) The concept of ``invasion'' is gender neutral.
    (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. (A) 
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
    (C) The conduct took place in the context of and was associated 
with armed conflict.
    (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. (A) The accused killed or inflicted 
bodily harm on one or more persons or destroyed property;
    (B) The accused:
    (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

[[Page 39385]]

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.
    (3) Murder by an unprivileged belligerent--(i) Elements. (A) The 
accused killed one or more persons;
    (B) The accused:
    (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;
    (C) The accused did not enjoy combatant immunity; and
    (D) The killing took place in the context of and was associated 
with armed conflict.
    (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. (A) The accused destroyed property;
    (B) The property belonged to another person, and the destruction 
was without that person's consent;
    (C) The accused intended to destroy such property;
    (D) The accused did not enjoy combatant immunity; and
    (E) The destruction took place in the context of and was associated 
with armed conflict.
    (ii) [Reserved]
    (5) Aiding the enemy--(i) Elements. (A) The accused aided the 
enemy;
    (B) The accused intended to aid the enemy; and
    (C) The conduct took place in the context of and was associated 
with armed conflict.
    (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.
    (6) Spying--(i) Elements. (A) The accused collected or attempted to 
collect certain information;
    (B) The accused intended to convey such information to the enemy;
    (C) The accused, in collecting or attempting to collect the 
information, was lurking or acting clandestinely, while acting under 
false pretenses; and
    (D) The conduct took place in the context of and was associated 
with armed conflict.
    (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.
    (A) 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) Such testimony or information was material;
    (C) Such testimony or information was false; and
    (D) The accused knew such testimony or information to be false.
    (ii) [Reserved]
    (8) Obstruction of justice related to military commissions--(i) 
Elements. (A) The accused did an act;
    (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.
    (ii) [Reserved]
    (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. (A) The accused committed an 
act that aided or abetted another person or entity in the commission of 
a substantive offense triable by military commission;
    (B) Such other person or entity committed or attempted to commit 
the substantive offense; and
    (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,

[[Page 39386]]

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. (A) The accused solicited, ordered, 
induced, or advised a certain person or persons to commit one or more 
substantive offenses triable by military commission; and
    (B) The accused intended that the offense actually be committed.
    (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. 
(A) 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. (A) 
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. (A) The accused 
received, comforted, or assisted a certain person;
    (B) Such person had committed an offense triable by military 
commission;
    (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. (A) 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.

[[Page 39387]]

    (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 severed all 
connection with the conspiracy. A conspirator who effectively withdraws 
from or abandons the conspiracy after the performance of an overt act 
by one of the conspirators remains guilty of conspiracy and of any 
offenses committed pursuant to the conspiracy up to the time of the 
withdrawal or abandonment. The withdrawal of a conspirator from the 
conspiracy does not affect the status of the remaining members.
    (G) That the object of the conspiracy was impossible to effect is 
not a defense to this offense.
    (H) Conspiracy to commit an offense is a separate and distinct 
offense from any offense committed pursuant to or in furtherance of the 
conspiracy, and both the conspiracy and any related offense may be 
charged, tried, and punished separately. Conspiracy should be charged 
separately from the related substantive offense. It is not a lesser-
included offense of the substantive offense.
    (7) Attempt--(i) Elements. (A) The accused committed an act;
    (B) The accused intended to commit one or more substantive offenses 
triable by military commission;
    (C) The act amounted to more than mere preparation; and
    (D) The act apparently tended to effect the commission of the 
intended offense.
    (ii) Comments. (A) To constitute an attempt there must be a 
specific intent to commit the offense accompanied by an act that tends 
to accomplish the unlawful purpose. This intent need not involve 
knowledge that the offense is in fact ``triable by military 
commission.''
    (B) Preparation consists of devising or arranging means or measures 
apparently necessary for the commission of the offense. The act need 
not be the last act essential to the consummation of the offense. The 
combination of specific intent to commit an offense, plus the 
commission of an act apparently tending to further its accomplishment, 
constitutes the offense of attempt. Failure to complete the offense, 
whatever the cause, is not a defense.
    (C) A person who purposely engages in conduct that would constitute 
the offense if the attendant circumstances were as that person believed 
them to be is guilty of an attempt.
    (D) It is a defense to an attempt offense that the person 
voluntarily and completely abandoned the intended offense, solely 
because of the person's own sense that it was wrong, prior to the 
completion of the substantive offense. The voluntary abandonment 
defense is not allowed if the abandonment results, in whole or in part, 
from other reasons, for example, the person feared detection or 
apprehension, decided to await a better opportunity for success, was 
unable to complete the crime, or encountered unanticipated difficulties 
or unexpected resistance.
    (E) Attempt is a lesser-included offense of any substantive offense 
triable by military commission and need not be charged separately. An 
accused may be charged with attempt without being charged with the 
substantive offense.

    Dated: June 24, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-16379 Filed 6-26-03; 12:40 pm]
BILLING CODE 5001-08-P