IN

N A CURSORY REVIEW of the Uniform Code, you will recognize many familiar phrases taken in whole or in part directly from articles for the Government of the Navy. Many of these old acquaintances have been rephrased to make them applicable to all components of the armed forces, and these can be readily understood after a brief review. Those parts of the Code which will require more careful scrutiny and study by naval officers, however, include several articles that are completely new to naval law. This article is a brief introduction to one of these new segments, Article 102, which states: "Any person subject to this code who forces a safeguard shall suffer death or such other punishment as a courtmartial may direct."

In view of the close teamwork in the field which has characterized our evolutionary process toward unification, the content of Article 102 becomes very pertinent. Although Article 102 is taken. directly from the Articles of War, today's military operation is a joint operation and all forces, not only the Army as in the past, will be concerned with the legal aspects of a "safeguard."

Although this article is new to our naval service, it has long been an applicable rule of war with the armies of many nations. The following provision is found in the British Code of 1774: "Whoever shall presume to violate our Safe-guard, Safeconduct, or Protection (knowing the same), shall suffer death or such other punishment as shall be inflicted upon him by our General Court-Martial.” A similar provision was embodied in Section XIII, Article 17 of our American Articles of War of 1776. It read, "Whosoever, belonging to the forces of the United States, employed in foreign parts, shall force a safe-guard, shall suffer death." An early application of a safeguard is to be found in an order from the Duke of Wellington to his forces in 1811, in which he said, "The commander of the forces requests the general officers commanding divisions will place safeguards in the villages in the neighborhood of their encampments, to prevent the soldiers from carrying off the furniture,

poles of the vines, and other property of the inhabitants. The commander of the forces desires that, at the same time with this order, the articles of war, regarding forcing safeguards, may be read to the troops." (Simmons, Remarks on the Constitution and Practice of Courts Martial, 1843, p.

353.

Since "forcing a safeguard" is not a new idea, there should be a fairly common understanding of what the rule entails. The general meaning of safeguards as applied to our military law is set out in the U. S. Army Basic Field Manual, 27–10 para. 241, 242, as follows:

"A safeguard is a detachment of soldiers posted or detailed by a commander of troops for the purpose of protecting some person or persons, or a particular village, building, or other property. The term 'safeguard' is also used to designate a written order by a commander of belligerent forces for the protection of an enemy subject or enemy property. It is usually directed to the succeeding commander requesting the grant of protection for such individual or property. Written safeguards may be delivered to the parties whose persons or property are to be protected, or they may be posted on the property. The violation of a safeguard is a grave offense against the laws of war

"Soldiers on duty as safeguards are guaranteed against the application of the laws of war, and it is customary to send them back to their army when the locality is occupied by the enemy, together with their baggage and arms, as soon as military exigencies permit."

Oppenheim, in his treatise on International Law, (Vol. II, sec. 219), explains a safeguard thus: "One belligerent sometimes arranges to grant protection against his forces to certain subjects or property of another belligerent in the form of safeguards, of which there are two kinds. One consists of a written order, given to an enemy subject or left with enemy property, addressed to the commander of armed forces of the grantor, and charging him with the protection of the individual or the property. Thereby he or it becomes in

violable. The other kind of safeguard is given by detailing one or more soldiers to accompany enemy subjects, or to guard the spot where certain enemy property is, for the purpose of protection. Soldiers on this duty are inviolable on the part of the other belligerent; they must neither be attacked nor made prisoners, and they must on falling into the hands of the enemy, be fed, and well kept and eventually safely sent back to their corps."

As an illustration of the type of safeguard defined by Oppenheim, suppose that, in the course of a campaign, our troops came across a group of missionaries who were enemy subjects. Let us assume they had abandoned their mission and were attempting to return to their home church. For moral or humanitarian reasons our commander of troops might designate a party of men to accompany them and guarantee their safe arrival. In this case it would necessarily involve accompanying them into enemy-held territory. According to the rules of war, our protecting troops must be guaranteed safe conduct back to their own units.

Holland's Laws and Customs of War, p. 44, describes a safeguard as, "A notification by a belligerent commander that buildings or other property upon which the notification is posted up are exempt from interference on the part of his troops."

According to these definitions, the essence of a safeguard is a commitment by the commander of belligerent forces for the protection of persons or property of the opposing belligerent, or, possibly, of a neutral affected by the relationship between the belligerents. Its violation is an offense against the laws of war; that is, against the rules governing the relationship of belligerent forces in their prosecution of war. A safeguard is not a device adopted by a belligerent to protect its own property or nationals, or to insure order within its own forces, even though the forces be in a theater of combat operations. The posting of guards or out of bounds signs does not establish a safeguard unless the protection thereby afforded is in furtherance of an undertaking by a commander to protect enemy or neutral persons or property. Quoting Army Regulations in effect when his Treatise on Military Law and Precedents was written, Winthrop states that the "effect of a safeguard is to pledge the honor of the nation that the person or property shall be respected by the national troops" (Winthrop's reprint, p. 664).

No pledge of honor can be involved in measures taken by a nation or its army to protect its own property or operations. A posting of guards or out of bounds signs on property of our own nationals does not in any measure involve a commitment by a commander of belligerent forces for the protection of persons or property of the enemy, or of a neutral affected by belligerency.

The term "safeguard" should not be construed to mean the writing or order, or the sentry or guard. Although one or both of these is supplied before a safeguard can be said to be in effect over persons or property, strictly speaking they are not the safeguard, but mere evidence of the existence of the privilege. Indeed, instances might occur where the sentry himself might be prosecuted under this article, if he interfered in any way with the property or person he was detailed to protect. The question of who and what should be granted safeguards must be determined by each commander according to his special problems. He might deem it expedient to grant a safeguard to certain enemy civilians with whom he desired to negotiate, or he might place safeguards on such enemy property as churches, hospitals, museums, or other public institutions which seemed desirable to protect in the interests of military discipline or for any other reason.

A safeguard may be revoked either by the commander who placed it in effect or his successor or superior. Reason for such revocation may be for military necessity or for some action by the recipient which would show him to be no longer worthy of the special protection afforded.

The provision as found in our new code was derived from the present U. S. Army Articles of War, Article 78. The only change from the wording of this article is the deletion of the phrase "in time of war." This change was made to cover the situation where it is necessary to impose a safeguard, as in circumstances amounting to a state of belligerency, but where a formal state of war does not exist. The wisdom of such a change has already been proved. The situation in Korea provides a ready example of circumstances where it might be necessary or advisable to enforce safeguards even though a formal state of war does not exist.

Another question posed by Article 102 is, What constitutes the forcing of a safeguard? Winthrop, on page 666 of his reprint of Military Law

and Precedents (2nd edition), says it "will consist in a willful disregard and violation of the protection, to the injury of the person, property, etc., to whom, or for which, it has been accorded." Most of the cases that have arisen from the prohibition contained in the article have been offenses of plundering, larceny, or robbery, usually accompanied by violence.

Winthrop goes on to say that knowledge of the safeguard's being in effect and of its purpose are essential elements which must be present to convict an accused of violation of this law. Should

this knowledge not be present, the offense could probably be tried under one of the other punitive articles of the code, such as Article 103 (Captured or Abandoned Property), or Article 109 (Property other than Military Property of the United States-Waste, Spoil or Destruction).

The foregoing should provide a general idea of the meaning of the term "forcing a safeguard" and such a background is necessary to a proper understanding of the problem. But more important to us is the question, How will we be concerned with its practical application? And when I say we, I mean all naval personnel, not just the Marine Corps, or the Navy's Beach Battalions. Although the article is thought of as applying primarily to ground troops, those of you who had anything to do with some of the combined operations in the last war will remember that there were units and individuals from practically every type of force who, at one time or another, were ashore and who could very readily have come in contact with safeguards. We need only recall some of the amphibious operations where a surprising number of naval personnel found themselves on the beach and engaged in tasks far afield from their usual jobs aboard ship. And of course there are the units which we generally think of as operating from the shore such as the CB's, the Beach parties, liaison teams, and in some instances, the Navy landing teams. Article 102 is of primary importance to the Marine Corps, whose units ordinarily function on land either independently or in conjunction with the Army.

This poses another problem. Does the article apply to safeguards established by other forces of the same nation? Can we, as Marines, disregard safeguards established by the Army, and vice versa? In a theater where there is a combined commander of operations, and the safeguards are established in his name, there is no

doubt that these safeguards must be respected by all forces. This, of course, will normally be the case. But what if there has been no commander of the combined forces designated? Is it the platoon leader who first reaches the party or property in question? If so, does he establish it by his own authority, or by that of his force commander?

With the introduction of this Article to Naval and Marine personnel, our planners will have to be specific in the preparation of their operation. plans and orders in answering such questions as (1) Who shall have authority to establish safeguards; (2) Can this authority be delegated?; (3) If so, under what circumstances? (4) How and by whom can a safeguard be terminated? and many others.

We might even carry it a step further. Suppose we are operating with allied troops. Let's say a British "commander of troops" has established a safeguard on a church in the vicinity. Two days later, when our battalion has moved into the area, we find the enemy is using the church steeple for an observation post. Must we wait until this safeguard has been revoked by its originator, who, we shall say, happens to be the superior in command, or by our battalion CO, or can we clean out this observation post without fear of being "run up" for forcing a safeguard? This, too, will be something for joint planners to cover in the operation orders.

Another practical problem: Is a stockade established for POW's a safeguard to the persons kept within it? This I doubt. It seems that the purpose of confining prisoners of war does not meet the requirements of the purpose for which safeguards may be established. Normally the purpose of taking and keeping prisoners of war is for our own military necessity, and their confinement is for the purpose of insuring that they are no longer able to wage war against us.

What if we move neutrals to an area other than that in which they live? Are they under the protection of a safeguard? This too, I think, would depend on the purpose for which they were moved. In the last war, in the Pacific, the movement of women and children from their homes to another location for their protection undoubtedly constituted a safeguard being placed over them. But what if we moved the entire native populationthe women and children for their protection and the men for our own protection from possible sabotage by enemy sympathizers among them? This

could be a close question and one that could not be answered without a study of all the circumstances.

The definitions quoted earlier in this article are helpful, but most of them were written at a time when the manner of prosecution of war was vastly different than at present. Naturally, there are new problems presented with each change in our ideas of combat. These problems deal not only with such things as strategy, tactics and supply, but also with our interpretation of such things as the article of UCMJ here considered. Many of them cannot be answered by reference to the past, but must await a decision which will take into consideration conditions as they are at the time the decision is made.

The charge of forcing a safeguard has been used but rarely even though it has been present in the Army's Articles of War practically since the be

ginning of our country as a nation. A cursory examination of Army cases in World War II revealed only five instances in which a charge of Forcing a Safeguard was preferred. In only one of these cases was the accused's conviction sustained on review. Two of the cases resulted in acquittals, and in these it was not proved that the accused had knowledge that a safeguard had been placed in effect. In the remaining two cases, convictions were set aside for the reason that the property on which it was attempted to place safeguards was not enemy property, nor was the purpose of it to protect such property from our armed forces, but rather from local civilians.

No extensive use of this charge is envisioned, yet there is a genuine need for it. The seriousness attached to it by the framers of the Code is evidenced by the provision for the death penalty.

U. S. GOVERNMENT PRINTING OFFICE: 1950