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Guilty of Fighting a War

New York Times, August 2006

International Herald Tribune, August 2006

Posted: 19 Nov 2006  

Timothy William Waters

Indiana University - Maurer School of Law; Max Planck Institute (International Law)


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, Z00

Suggested Citation

Waters, Timothy William, Guilty of Fighting a War. New York Times, August 2006; International Herald Tribune, August 2006. Available at SSRN:

Timothy William Waters (Contact Author)

Indiana University - Maurer School of Law ( email )

211 S. Indiana Ave.
Bloomington, IN 47405
United States

Max Planck Institute (International Law) ( email )

Im Neuenheimer Feld 535
69120 Heidelberg, 69120

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