Off-duty New Zealand soldier Dominic Abelen was killed in Ukraine fighting with foreign troops and has been remembered as a tough professional "warrior" who "died doing what he loved". Video / NZ Herald
Opinion
OPINION
Kiwi Corporal Dominic Abelen died fighting Russian forces in Ukraine while on leave without pay. His body is believed to be in Russian hands.
It is one of the defining ideas of Antiquity, the one that divides the civilised from the barbarians.
Barbarians defile the dead.
They abuse theircorpses and refuse to return the bodies to their families. The story is graphically told in the Iliad when Achilles during the fight for Troy kills, defiles and then refuses to return the Trojan hero, Hector.
Such odious acts of revenge and infliction of shame upon the dead were disapproved by the Gods.
The Ancient Greeks understood that as we are all equal in death and the fallen are no longer enemies. No matter what the justifications for why they fought, fallen warriors should be respected and returned to the families where they belong.
To exercise restraint and show humanity to the dead brings honour upon those who win the battlefield. It also allows a type of closure for the families that the fallen belongs to. Most Kiwis who have ever visited one of the beautiful Commonwealth cemeteries will understand this.
Out of all of the carnage and hatred, a correct honour and remembrance can then be attributed to the fallen.
This idea of respect and return of the enemy dead is not only noble, it also has practical benefits.
Restraint and humanity create pathways for peaceful settlements to arise. It also has a strong degree of self-interest. If one side abuses or manipulates the enemy dead, the other will do the same.
The Laws of War recognise these principles. They are understood in two rules.
First, the dead must not be pillaged or mutilated. Second, parties to the conflict must endeavour to facilitate the return of the remains of the deceased upon request of the party to which they belong. They should also return their personal effects to them.
The good news is that Russia and Ukraine have already shown they both have the capacity to respect such rules and have so far managed to exchange some of the bodies of the dead.
The challenge is threefold.
First, although New Zealand is not neutral in the current war, we are not a party to the actual conflict.
As we are not actually at war with Russia, the rules around such matters as dealing with the dead are not clear. They fall between the Geneva Conventions in times of war and basic diplomatic norms that operate in times of peace.
Second, the status of foreign fighters in Ukraine is also the subject of debate.
Russia takes the view that such people are not lawful combatants, meaning that they will not be given basic rights such as prisoner of war status or associated rights, of which the return of the dead may be assumed.
Third, there is often a large gap between the theory that the fallen should be returned and the practice of where they are collected and stored.
Alexander Gillespie. Photo / Supplied, File
A horrid practice developed in some conflicts in which the bones of the enemy have been collected and used for bartering purposes.
From Vietnam to the Middle East, this repugnant practice has sometimes seen the fallen continue to be hostages for wider political games that drag out into the future.
What these demands may or may not be and how a country like New Zealand may or may not respond as they struggle between upholding foreign policy while also helping repatriate a body of a fallen New Zealander and respecting the necessity for the privacy of the family he came from, can only be the subject of idle speculation.
It will be of benefit to everyone if Russia upholds its own honour and facilitates the prompt and respectful return of the remains of anyone who fought against them, no matter where they came from or why they fought. Ukraine should do the same.
• Alexander Gillespie is a professor of law at Waikato University.
