Alexander Gillespie: Lessons as old as war itself

The opinion piece by Dr Ron Smith in the Herald raises some very pertinent questions. The foremost is why should "we" respect the laws of war when the opposing side does not?

This is important for two reasons. In many of the conflicts - from terrorist bombings in Indonesia to insurgency in Iraq - the combatants on the "other side" pay minimal regard for such conventions.

They openly target non-combatants and make little attempt to distinguish - nor even justify - targeting the old, the young, women, or male non-combatants. They use torture, thrive on hostage-taking, and seem to take great pleasure in desecrating their dead enemies.

Second, as Dr Smith contends, "our" side may be "seriously undermined by the overzealous imposition of rules and restraints". In short, they are not playing by the rules, and if we play by them we may lose.

There are three answers.

The first is that the laws of war are not inventions drawn up in recent years to satisfy those who feel guilty about the true nature of war. They have taken thousands of years to evolve and reflect the hard-learned lesson that even in war, there must be limits.

The example used by Dr Smith was the "cremation of two al Qaeda dead in Afghanistan". It is too early to say whether this was a lawful cremation or an unlawful desecration. If it is unlawful desecration then it is wrong because once a person has been killed the living no longer have a quarrel with that individual.

Moreover, those who remain alive and have a connection with that person need to have their considerations taken into account.

Each generation has to learn to reconcile and respect the dead who have fallen in its name. The debate about the road construction at Anzac Cove and the resultant disinternment of the dead is a distant echo of some of these concerns.

All combatants and belligerents must learn how to talk to one another, as such people have done over thousands of years.

Desecrating the dead, like raping the living, destroys core human values and can quickly poison any hopes for reconciliation.

The second reason we must practise constraints is purely self-interest. We chose not to pursue certain options in war, because if we do the opposition may reciprocate

When we lose, it is useful to know that our captured soldiers will not be executed. In such instances, it is smart to show restraint not because we care about our enemies but because we care about ourselves.

The treatment of those detained at Guantanamo Bay, and the captured hostages in Iraq, has an overlap at this point. This approach is not watertight and history is full of examples where either mistakes or hatred breached self-interested constraints and reprisals became the order of the day.

The final reason we must practise constraints in war is because conflicts are not just about killing those who are trying to kill us. Many contemporary wars cannot be won by military muscle alone.

These conflicts are about the values of civilisation. They are about what we stand for and what we believe: democracy, the rule of law, human rights, tolerance for diversity - and in this context, restraint.

Aside from our own moral certainty, to dispose of any of these values will not win the hearts and minds of those sitting on the sidelines outside our own countries, let alone those sitting in the villages while the wars rage around them.

The justifications and the methods by which we fight our wars have in them the seeds for success or failure. It is, in part, for such reasons that if Iraq was not a hothouse for terrorist insurgents before the invasion, it certainly is now.

If "our" soldiers must die, along with enemy combatants and civilians, let it be because we are trying to make the world better, not worse by invoking the barbaric practices that they seek to invoke on us.

* Alexander Gillespie is a Professor of Law at Waikato University.

See link below for Ron Smith's original opinion piece.