According to the Marine Corps, intentionally mistreating the dead could be a violation of the law of war. The question comes up as Navy SEAL Edward Gallagher is facing a trial in San Diego for several alleged violations of military rules, including posing for a picture with a dead enemy combatant. In defense of Gallagher, Congressman and former Marine Duncan Hunter said he too has posed for a photo with a dead enemy.
U.S. service members have been charged and punished for mistreating the dead under the Uniform Code of Military Justice and generally the statute of limitations for charging someone is five years.
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Bob Muth, a law professor at the University of San Diego and a former Marine, said posing with a dead body for a photo is not automatically a crime, but it could be. KPBS spoke to Muth about the complexities involved and how someone could be held accountable if a crime is determined.
Q: If a military member poses for a photo with a dead body, are they committing a crime? A: The actual posing with the dead body does not necessarily make it a crime. It could, but it’s a contextual question. It’s not just as simple as answering the question: Did they take a picture? You would need to have the context upon which the photo was actually taken and you have to see what it actually depicts. Depending upon what the picture shows and the context that surrounds the nature of when this picture was taken, where it was distributed, that would would be pretty critical to understanding whether or not it would be a war crime.
Q: Can you give an example of a situation where posing with a dead body may not be considered a crime? A: You can imagine a situation where a Marine, who’s in a combat zone could have a photo of them on the battlefield and there could be an enemy combatant who appears in the picture either by happenstance or just as part of the picture. The concern really with respects to the laws of war is that we are not humiliating or desecrating a body or in some way trying to embarrass either a prisoner or an enemy that was killed in combat.
Q: How does the military become aware of a potential crime like this? A: They can learn about in a variety of ways. The photo(s) could be posted and shared on social media, leaked to a website that then publishes the photo. The service member could text it to other servicemember, family members or friends, who then send it to the military.
Q: Once the military becomes aware of a photo like this, what happens next? A: It would be handled through the military chain of command. It would start with the individual’s commanding officer. The commanding officer would make the decision of how it moves forward. This could be done through an informal review or with a judge advocate. When deciding how it will move forward they take into consideration the personal situation of the individual, what they are going through, etc. The decision they have to make is whether or not this should be handled criminally or administratively.
Q: What happens if it is handled administratively? A: If it goes the administrative route it could mean a reduction in rank, taking of pay or less pay, restricting the servicemember to certain locations, etc.
Q: What happens if it is handled criminally? A: If it is handled criminally, then it goes to a court martial where it would proceed similarly as crimes would in other civilian trials.
