Human shields as war criminals

There’s a story making the rounds of Left Blogville that the Bush Administration is threatening war-crimes charges against the people going to Baghdad to offer themselves as “human shields.” (Bill Howell at Shoutdem has a very funny post imagining the Pope’s acting as a human shield, per Deepak Chopra’s suggestion, and then being tried by a U.S. military tribunal.)

Nice story, but false.

My own view is that anyone willing to have himself blown up in order to keep Saddam Hussein in power is a potential Darwin Award winner, and any American who does so probably falls under the Constitutional definition of treason: “making war on the United States, or adhering to their enemies, giving them aid and comfort.” But “war crimes”? What sort of nonsense is that? And how could Don Rumsfeld say anything so absolutely stupid?

Well, he didn’t. Here’s the full text of the story that seems to have started the flap:

US will treat those who offer themselves as human shields as war criminals

The United States has said that those who offer themselves as human shields during a possible war in Iraq will be tried for war crimes.

US Defence Secretary Donald Rumsfeld said using human shields violates international law and Geneva Conventions.

The warning followed reports that some people are on their way to Baghdad to offer themselves as human shields in efforts to stop military action against Iraq.

Mr Rumsfeld noted Saddam Hussein’s history of using civilians as involuntary shields against attacks and added a warning to those under the Iraqi leader’s command who would do the same in a new war.

“These are not tactics of war. They are crimes of war. Deploying human shields is not a military strategy. It’s murder, a violation of laws of armed conflict, and a crime against humanity, and it will be treated as such. Those who follow his orders to use human shields will pay a severe price for their actions,” Mr Rumsfeld said.

Note that the text doesn’t support the headline. In the text, Rumsfeld says that those who “use human shields” are committing war crimes, which is of course correct, black-letter international law. He doesn’t say that being a human shield is a war crime, which of course it isn’t.

The world already has plenty of real reasons to despise the current administration. No need to invent any.


Max Sawicky wants to know whether I’m in favor of executing “human shields.” Under the circumstances, it hardly seems necessary, does it? But he does catch me in what on reflection I think is an error of Constitutional interpetation.

Max wories that the “aid and comfort” clause sweeps too broadly. But “aid and comfort” doesn’t define treason; that it does is a piece of McCarthyite propaganda that I’m surprised Max has fallen for. Here’s how the Constitution defines treason:

Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort

The last phrase is a limitation on the previous phrase; it’s not enough to “adhere to” Iraq in some abstract sense (e.g., by flying an Iraqi flag). You have to actually do something that helps Iraq (e.g., acting as a “human shield” to defend Iraqi military installations against US bombs). But not everything that helps the enemy is treason; only if it’s done in connection with “adhering to their enemies.”

So the conclusion stated above that Americans who served as human shields were probably committing treason is at least too strongly stated, if not flatly wrong. It would be necessary to establish “adherence” to the Iraqi cause.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: