On February 27, 1902, Harry 'Breaker' Morant was marched before a firing squad and executed by the British military during the Boer War.

More than a century later, Australians are still arguing about whether he was a murderer, a scapegoat or something far more complicated.

To some, he was a murderer who executed prisoners during the Boer War and deserved his fate.

To others, he became a symbol of something far more unsettling: a soldier punished for the brutal realities of warfare while politicians and military authorities escaped scrutiny themselves.

That debate never truly disappeared; it merely lay dormant.

Now, through the pending criminal prosecution of former SAS soldier and Victoria Cross recipient Ben Roberts-Smith, many of the same questions have resurfaced.

The parallels between the two men are striking.

Both became controversial and highly symbolic Australian soldiers whose stories extended far beyond the battlefield itself. 

Both fought in brutal overseas conflicts against elusive enemies.

Both later faced allegations involving the unlawful killing of prisoners.

And in both cases, the prosecutions quickly evolved into something much larger than the individual allegations themselves.

The Boer War was one of the first conflicts in which Australian soldiers began forging an international military identity. It was also a deeply controversial guerrilla war fought across harsh terrain against an enemy who often blended into the civilian population.

Morant operated within that environment, where formal rules often gave way to operational survival. But when he and fellow soldier Peter Handcock sought to rely on this in their defence against the accusations they faced, the British military tribunal rejected the argument. Both men were executed in 1902.

The controversy surrounding the case has endured for generations.

Many Australians came to believe Morant was being held responsible not only for his own conduct, but for the moral compromises of the war itself.

Others believed he was doing Britain's dirty work during an increasingly unpopular conflict and was ultimately sacrificed for political expediency.

More than a century later, Australia again finds itself confronting uncomfortable questions arising from another distant war.

The Roberts-Smith matter has become about far more than one decorated soldier; it has also become a broader reckoning with Australia's role in Afghanistan, special forces culture and the moral ambiguity that often follows modern counterinsurgency warfare.

That is partly why these cases provoke such emotional and polarised reactions.

They force societies to confront a deeply uneasy possibility: that warfare does not fit neatly within the moral clarity expected by ordinary criminal law.

In civilian life, criminal investigations generally unfold in stable environments. Police secure crime scenes. CCTV footage is obtained. Phone records are analysed. Witnesses are interviewed in relatively controlled circumstances.

War preserves almost nothing so neatly.

Battlefields are chaotic by nature. Decisions are made in seconds under exhaustion, fear and extreme operational pressure. Evidence may disappear immediately. Witness recollections become fragmented. Events later reconstructed in courtrooms may originally have unfolded amid confusion, danger and rapidly changing threats.

Combat can also affect memory itself. Soldiers operating under prolonged stress, fear and trauma may later recall events differently, particularly after many years have passed.

Years later, courts are left attempting to reconstruct chaos with the precision demanded by criminal law. The passage of time only deepens the difficulty.

By the time many wartime allegations reach courtrooms, years, sometimes decades, may have passed. Memories fade, witnesses disappear, records become incomplete and societies begin reassessing wars through different political and moral lenses.

That does not mean soldiers should be beyond accountability. Serious allegations must always be investigated properly and the law must apply equally to everyone.

But wartime prosecutions carry difficulties rarely encountered in ordinary criminal proceedings because courts are often attempting to impose legal certainty upon environments that were inherently uncertain from the outset.

The challenge becomes even greater in counterinsurgency conflicts where distinctions between combatants, civilians and prisoners may become blurred amid constantly shifting operational realities.

These tensions are not unique to Australia.

From the Boer War to Vietnam and Afghanistan, modern warfare has repeatedly produced controversies involving battlefield conduct, command culture and the legal responsibility of soldiers operating within highly pressurised military environments.

Yet perhaps what makes the Morant case endure so powerfully within Australia is that it touches something deeper than legal doctrine alone.

It sits at the intersection of heroism and criminality.

Australians are often deeply uncomfortable confronting the possibility that a decorated soldier may simultaneously embody courage, loyalty, violence and moral compromise.

That discomfort becomes even more acute after war ends and societies begin reassessing conflicts through the calmer lens of peacetime morality.

Long after the gunfire stops, courts, historians and the public are still left trying to answer the same unresolved question: How should legal systems judge conduct occurring in circumstances most civilians will never truly understand?

Tony Taouk was admitted as a lawyer in 2005 and has practised for two decades across a broad range of areas including commercial litigation, criminal law, business law and property law. He established his own firm in 2010 and has appeared in matters across all New South Wales courts as well as in other Australian jurisdictions.

• A version of this story was first published in Lawyers Weekly