Global Policy Forum

By Timothy William Waters*

Sgt. Terry Lisk of Fox Lake, Ill., died fighting in Ramadi, Iraq, on June 26, killed by a 120-millimeter mortar. The combat has been intense, and whoever killed Sergeant Lisk may already be dead. But if not, what should happen to him? The Bush administration knows: It wants him prosecuted.

But killing American soldiers in Iraq is an act of war, not a crime, and the United States is wrong to oppose amnesty for the insurgents there. Iraq's prime minister, Nuri Kamal al-Maliki, visited Washington recently to discuss his reconciliation plan, which includes an amnesty, but the United States insists that it must exclude insurgents fighting American forces. This may sound like patriotic support for our troops, but it harms Iraq's hopes for peace.

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. Without amnesty, undefeated insurgents have no incentive to stop fighting, knowing that peace means prison. And amnesties work best when they are comprehensive. They can exclude dangerous hard-liners like Al Qaeda, but every exception creates a constituency against reconciliation, and if sizable forces are excluded, fighting will continue. Amnesty may not stop violence, but it won't increase it. Insurgents are already killing as many Americans as they can. Suicide bombers don't care about immunity from prosecution.

Nor does amnesty mean impunity; when combatants commit war crimes, they can be punished, just like the former American soldier Stephen D. Green will be if he is found guilty of raping and murdering a 14-year-old Iraqi and killing her family. Insurgents who torture Americans should not receive amnesty, but that's no reason to lump all Iraqis together. We wouldn't want all our warriors measured by Abu Ghraib.

Indeed, what is most misguided about the United States' demand is that rather than singling out real terrorists, it criminalizes the one group that resembles a normal fighting force: insurgents fighting Americans. There is an organized insurgency in Iraq. 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.

By criminalizing its opponents, the Bush administration maintains the fiction that we're fighting an inchoate horde of death-worshiping dead-enders. This reinforces a kind of doublethink: we're fighting a war — except when we aren't. Criminal defendants' rights are curtailed because we're at war, but overseas we're not fighting warriors but criminals. We're at war and we take prisoners, but we don't have any prisoners of war; the Geneva Conventions protect us, but not them. Either we're at war or we aren't. If we are, then it is exceptional hubris to imagine we can fight without the enemy fighting back. It is doubly arrogant to act as if this is our war alone. It's Iraq's war and Iraqis' suffering. How can we insist on an all-but-American amnesty?

It is right for us to remember our fallen warriors. But remembrance does not require vengeance, and sacrifice is measured not only in lives, but also in forbearance. No American wants to see American troops killed. But every American, including our political leaders, should have the courage to say that if amnesty for their killers helps bring peace to Iraq, it is a sacrifice worth making. In the righteousness of our fear and the arrogance of our power, we have gotten so many things so tragically wrong in this war. Let's not get the first, slim chance at peace wrong, too.

Sergeant Lisk and thousands of others have died fighting for a cause our country undertook, even though we could not agree among ourselves on what it was. We honor them when we bring peace to the country where they died. That is the cause now.

About the Author: Timothy William Waters, who teaches human rights in Bard College's Globalization and International Affairs Program, was a researcher for the International Criminal Tribunal for the Former Yugoslavia.