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Article 102—Forcing a safeguard
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Text. “Any person subject to this chapter who forces a safeguard shall suffer death or such other punishment as a court-martial may direct.”

Elements.

(1) that a safeguard had been issued or posted for the protection of a certain person or persons, place, or property;

(2) That the accused knew or should have known of the safeguard; and

(3) That the accused forced the safeguard.

Explanation.

(1) Safeguard. A safeguard is a detachment, guard, or detail posted by a commander for the protection of persons, places, or property of the enemy, or of a neutral affected by the relationship of belligerent forces in their prosecution of war or during circumstances amounting to a state of belligerency. The term also includes a written order left by a commander with an enemy subject or posted upon enemy property for the protection of that person or property. A safeguard is not a device adopted by a belligerent to protect its own property or nationals or to ensure order within its own forces, even if those forces are in a theater of combat operations, and the posting of guards or of off-limits signs does not establish a safeguard unless a commander takes those actions to protect enemy or neutral persons or property. The effect of a safeguard is to pledge the honor of the nation that the person or property shall be respected by the national armed forces.

(2) Forcing a safeguard. “Forcing a safeguard” means to perform an act or acts in violation of the protection of the safeguard.

(3) Nature of offense. Any trespass on the protection of the safeguard will constitute an offense under this article, whether the safeguard was imposed in time of war or in circumstances amounting to a state of belligerency short of a formal state of war.

(4) Knowledge. Actual knowledge of the safeguard is not required. It is sufficient if an accused should have known of the existence of the safeguard.

Lesser included offense. Article 80—attempts

Maximum punishment. Death or such other punishment as a court-martial may direct.

Next Article > Article 103—Captured or abandoned property >

Above Information from Manual for Court Martial, 2002, Chapter 4, Paragraph 26

 

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