Guilty of Fighting a War
Timothy William Waters
Indiana University - Maurer School of Law; Max Planck Institute (International Law)
New York Times, August 2006
International Herald Tribune, August 2006
This editorial argues that the United States should not oppose Iraqi efforts to amnesty insurgents who fight against American forces. Killing American soldiers is an act of war, but it's not a crime. Republicans and Democrats alike argue that amnesty encourages attacks on Americans, leaves crimes unpunished and dishonors those who died liberating Iraq. But these objections mistake the nature of amnesty, the incentives it creates and the costs we impose by opposing it.
What is most misguided about the United States' policy is that rather than singling out real terrorists, it criminalizes the one group that resembles a normal fighting force: insurgents fighting Americans. We're at war, and so are they. When our soldiers kill in combat, they are not committing a crime. The same logic should apply to Iraqis. It is hubris to imagine we can fight without the enemy fighting back.
Thousands of American servicemen have died fighting for a cause our country undertook, even though we could not agree among ourselves on what it was. If amnesty for the insurgents who killed them helps bring peace to Iraq, that is a sacrifice worth making. We honor our dead when we bring peace to the country where they died.
Keywords: amnesty, war, international law, humanitarian law, law of war, international criminal law, Iraq, United States, insurgency, insurgent
JEL Classification: H56, K14, K33, K42, Z00Accepted Paper Series
Date posted: November 19, 2006
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