Categories: Canada

Capt. Robert Semrau, ethics, and the ‘soldier’s pact’

Acquitted of murder in an alleged mercy killing, the captain’s life will never be the same

by Michael Friscolanti and John Geddes on Monday, July 26, 2010 3:18pm - 0 Comments

Photograph by Blair Gable

In the end, it was left to four fellow officers to decide the fate of Capt. Robert Semrau: a naval commodore, two air force majors, and an army captain. As military juries go, each member appeared to grasp the importance of their mission.

They took detailed notes, listened closely during weeks of conflicting testimony, and not once rolled an eye when the historic court martial became bogged down in yet another procedural delay. At one point, the panel foreman even asked the judge, Lt.-Col. Jean-Guy Perron, if they could take their notepads home for the night. (The answer was no.)

Exactly what those four men said to each other behind closed doors will never be known.

But their verdict, announced to a packed courtroom in Gatineau, Que., spoke volumes: they believe that Semrau shot an unarmed, severely wounded Taliban fighter on an Afghanistan battlefield. They just don’t believe he committed murder.

In other words, a jury of his uniformed peers knows that he broke the rules of war, but not quite enough to deserve a sentence of life behind bars.

“It sounds as if the panel half-accepted mercy killing—but only half,” says Jack Granatstein, one of Canada’s foremost military historians. “I don’t think there is any doubt that Semrau shot that man, and I doubt the panel had any doubt. But they couldn’t bring themselves to find him guilty of the most serious offences.”

Semrau, a 36-year-old father of two young daughters, was famously on patrol in Helmand province on the morning of Oct. 19, 2008, when his unit—a small band of Canadian troops mentoring a company of Afghan National Army soldiers—encountered an unidentified man lying on a dirt path. He had been shot out of a tree by a U.S. Apache helicopter, and, in the words of one eyewitness, was “98 per cent” dead. According to military investigators, Semrau aimed his C-8 rifle at the man’s chest and pumped two bullets into his heart, later telling subordinates that it was “the humane thing to do.”

Both the Geneva Conventions and the Canadian Forces Code of Conduct compel our troops to provide first aid to all casualties, friend or foe. As in the civilian world, there is no legal defence for mercy killing, regardless of the circumstances. “It is playing God,” says Gary D. Solis, a former U.S. Marine prosecutor and author of The Law of Armed Conflict: International Humanitarian Law in War.

Arrested and flown back to Canada, Semrau was slapped with four charges: second-degree murder, attempted murder, negligent performance of duty, and disgraceful conduct. On the first count, the minimum sentence is life behind bars with no chance of parole for 10 years.
It wasn’t long before Semrau’s case—and his potential punishment—became a Facebook sensation, with thousands of Canadians expressing their outrage. Hundreds of his online supporters decried the “government frame job” and described mercy killing as the “highest tradition” of military service. Many of his fellow soldiers also privately admitted that if put in the same situation, they would pull the trigger, too.

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Tags: Afghan National Army soldiers, Canadian Forces Code of Conduct, Crime, International Humanitarian Law, justice, military, Robert Semrau

http://intensedebate.com/profiles/mowat R. Mowat

“It is playing God."

Soldiers on the battlefield routinely star in this role.

Law, on the other hand, is an entirely human endeavor, knowingly falling short of divine perfection.

Unfortunately for Capt Semrau, he's learned first hand that moral action and legality are not entirely overlapping categories.
E Jessup

Under the circumstances how can anyone place themselves inside Capt Semrau's head and come up with anything other than a mild reprimand in the form of a fine or a one step demotion for his actions. In such a situation, despite written rules or legislation, an instant action of this nature surely does not make a criminal of the man and he was not playing God but rather putting someone out of their misery when hope did not even appear to be an option.
Gaunilon

I completely agree with their acquittal on the second degree murder charge. To meet the condition of "beyond a reasonable doubt" you need to establish that the victim died due to the execution-shots, which is tough given that he was already mortally wounded, the shots were delivered to the chest rather than the head, and the body was never found to establish actual cause of death.

However, I think they erred in not finding him guilty of attempted murder. If he did anything disgraceful (as per the disgraceful conduct conviction) it was precisely his attempt to murder a wounded man who was hors de combat.

http://intensedebate.com/people/Raging_Ranter Raging_Ranter

Was attempted murder one of the options the jury was presented with? I'm not aware that that option was on the table.

Old_Salt

There were 4 charges: 1) Second degree murder; 2) attempted murder with a firearm 3) disgraceful conduct in shooting an unarmed, wounded unnamed person; 4) negligent performance of a military duty, i.e. provide medical treatment to a wounded person.

The first charge required the jury to be certain of the intent to kill, that the shots were fired, and that death was the likely result. The second required the jury to be certain of the intent to kill and that the shots were fired. Conviction on these charges would have resulted in a mandatory jail sentence of a minimum of 4 years.

The third charge required the jury to be certain only that the shots were fired – no requirement for knowledge of intent or consequence of the act.

The fourth charge required the jury to be certain that Semrau made no attempt to deliver first aid/medical treatment, assuming the threat scenario was not so great as to prevent this, that resources were available, and that there was anything that could be done.

althorpe

If I was the head of the Taliban I would instruct all my little terrorists to make sure that if they are in close quarters with the Canadians, make sure you wound yourself ‘cause now they’ll be scared shitless to touch you. Then, when the scared little Canadian soldiers turn their backs to walk away – kill 'em and earn yourself a virgin.
Sam

What he did is morally, ethically and legally wrong. Nothing will ever change that. Having no body creates the problem of a lack of forensic proof but there is the hard evidence of shell casings and rounds at the sight, and the testimonies given. No one argues that shots were fired or who fired them. They question if the man who was shot was alive, dying, or near death or dead at the time. There is no room for mercy killing in the Canadian Forces, and as an officer, Semrau is even more responsible than the men of his squad. He leads by example. He failed by example, and he should be dishonourably discharged as an example to the rest of the CF, that no matter how good a field officer you are, there is a code of conduct, based on the articles of war, the Geneva conventions, and the Canadian Criminal Code, and the National Defence Act, that barrs this kind of behaviour in the field. As much as I admire those who lead and sacrifice for their men, I find Capt. Semrau unfit to serve in the CF. He will be most fortunate if he just escapes with a dishonourable discharge. He deserves a much more severe sentence.

crankshaft

Well Sam, I disagree with you as well, but I DO know the difference between YOUR and YOU'RE, and I don't think YOU'RE the idiot.
Guest

Sam, you CLEARLY do not know what your talking about… Since when does a Captain command a squad? I suggest you try and learn at least a little about a topic before you go spewing out a lengthy paragraph entailing your opinion.
Put yourself in the shoes of the wounded taliban… whether you can admit it or not, you would want the same thing done for you.

Lee

Well luckily for us Sam your the kind of guy that hides BEHIND the soldiers and second guess's them and your NOT on the ground conducting patrols……cause if you were I suspect ALOT more Canadian's would come home in a casket. This is my polite way of saying your an idiot of the highest order!! Your another legal beaglel internet jockey who has NEVER served in Combat yet can recite all kinds of legal this and that from a book. Congrats, your exactly where you should be……behind a computer and not a C-7!
Mike B.

If you yourself were lying there in vicious pain with no medical attention available, would you prefer the agony over mercy-killing?
Myself, I would take the mercy-killing. But then I am logical, and most Canadians are not; most Canadians are ideological, and terrified of death.
I would also pass a law that prevents lawyers and socialists and religionists from ever requesting euthanasia, no matter how much they scream for it.

http://ragingranter.blogspot.com Raging_Ranter

But then I am logical, and most Canadians are not…

Are you sure? That isn't entirely apparent.

http://intensedebate.com/people/RobinBC RobinBC

War is about killing the enemy. Any nonsense about the "rules" or "the law" comes from those who don't fight. Those people hide safely back in the countries the soldier protects and pontificate about when killing people who have actively tried to kill you is justified. The fact is, if you kill more of their fighters than they kill of yours, you win. That is all that matters.

Anon

The jury that found Capt. Semrau guilt was made up of people that do fight. That is why military crimes are judged in a military court instead of a civilian one. Those that do fight are in a better position of judging what is lawful and not in those situations. That is probably why he was only found guilty of disgraceful conduct. Though war is about killing the enemy, those that participate in war have found it appropriate to follow the Geneva conventions, and by your logic who are we as people "who don't fight" to disagree with them.
I think that Capt. Semrau was in a difficult position (as is often the case in war), if it were me on either side of that situation I don't know if I would have acted differently or would have wanted him to act differently. I believe the members of this jury were in the best postion to judge and I trust their verdict. It takes the decision out of the soldiers hands, they don't have to decided whether someone is too far gone for medical help, which I think is a good thing. I would never want to have to make that call, it is one that could be very haunting.
http://intensedebate.com/people/Raging_Ranter Raging_Ranter

I have a lot of sympathy for Captain Semrau, and I'm quite relieved for his and his family's sake they did not find him guilty of murder. But what he did was wrong. And there must be consequences for that. If anything, this case proves that the process of military justice works.

Jonathan

Capt Semrau is a ntional hero. He fought for his country and now libtards with their apologetic political
correctness drag him to court – what a shame!!
Those ppl.hate military, they hate Canada and Canadians.
No muslim terrorist hates Canada more then liberals.

Carol

Yeah to your comments Jonathan. You just gave words to a truth, often thought, but seldom seen. You and RobinBC
Have it right. Has any one noticed that you never see one of THEM at the Road of Heroes giving their thanks to the men
who are coming home in boxes, who gave their lives so that they could come here and be safe. No, they come here to manufacture bombs so they can have the same kind of life here as they had in their own country. Just the kind of immigrant we need, who will always vote liberal.
Carol

It was a military proceeding. Are you suggesting that everyone involved in the jury and the prosecution are liberals hiding in a military uniform eagerly awaiting the chance to convict a fellow soldier?

http://intensedebate.com/people/NotStephen Not Stephen Colbert

They're also secret Muslims who hate Canada and freedom and sunshine and teddy bears, and love puppies, but only because of the cute sound they make when kicked.

http://ragingranter.blogspot.com Raging_Ranter

Actually, the court wasn't made up of libtards, but of his military peers. It was a military tribunal, and the due process of the military justice system was followed to the letter. Unless you believe that the military justice system – and by extension our military – is overrun with libtards, you might wish to reconsider your choice of words. I have tremendous respect and sympathy for Captain Semrau, and I sincerely hope he does not receive a jail sentence, and that he can go on to live a happy and productive life. I am also grateful for the service he has done for his country. But I also respect the military justice system, and their need to follow up on this incident and bring him to trial. And I respect the verdict.

Samurai

Interesting point, Raging Ranter… but I'm curious how you reconcile two things you said. You respect and sympathize with Capt. Semrau and are grateful for his past service; but you also respect the verdict.

But the verdict and the likely sentence — dismissal with disgrace — would seem to negate all that past exemplary service; furthermore, it puts an end to any future great service he might give. That, to me, seems terribly imbalanced: one act — committed out of compassion, not malice — outweighing a lifetime of honourable service? I don't respect that at all.

http://intensedebate.com/people/NotStephen Not Stephen Colbert

First point: the people whom we trust to carry arms and sometimes kill on our behalf must be expected to carry out their duties to obey our laws. This is not, it should be but apparently isn't trivial to note, showing them a lack of respect; rather, their knowledge and ability to do so is a large part of why they've earned so much of our respect.

Second point: a lot of people here seem to think that courts should apply the laws as they'd like them to be, rather than as they are. Soldier or no, that's a scary thought.

Third point: if you don't like the law as it stands, it should be possible to argue for a change without suggesting that everyone who disagrees with you is Hitler's role model. And if you are going to insult people, you could at least be original and funny about it.

http://intensedebate.com/people/Raging_Ranter Raging_Ranter

Well, if that isn't just what Hitler's role model would say!

Seriously though, it is odd how so many think with their emotions. I can sympathize with Capt. Semrau and respect the actions of the military justice system at the same time. I don't see it as a conflict of interest. I can also feel quite comfortable in seeing that the military justice system followed legal principles in bringing this case to trial. It must have been tempting to just cover it up.

Brothers in Arms

Captain Semrau set a precedent. The rules he was charged for breaking are wrong. I would have done the same.

http://intensedebate.com/people/Raging_Ranter Raging_Ranter

I may have done the same thing under the circumstances. I do not sit in judgement of Capt. Semrau. But someone had to, and I'm glad we have an effective military justice system to handle that rather distasteful task.

Doug

How hard it must be for a soldier to have several very bad options and know he must make a decision. People discuss this in the comfort of their homes…think of what it must be like for a combat soldier on the battlefield. Taking a human life is never a good thing, but it may be the best of several bad options.

babs

Amen.
http://ragingranter.blogspot.com Raging_Ranter

None of us has the right to judge Capt. Semrau. But someone has to. And that is why we have a military justice system separate from the regular court system. As unenviable as the task was, they did what was necessary to uphold the law.
Serving

As a serving member of the forces and soon to be deployed to Afghanistan, I agree with you that a soldier on the battlefield does have very difficult decisions to make. In this case however, the only option Capt. Semrau had was to provide an unarmed person with medical aid regardless of his condition. There is nothing written in our rules of engagement stating when you are authorized to perform a "mercy killing"

Ariadne

I would not know what I would have done if faced with the same situation as Samrau had. Could I kill a man in severe agony after having been hit so many times and appeared to be dying? In my idealistic days, I would have said difinitely not, let nature takes its course, but after seeing someone's pet moaning 24/7 in severe agony from terminal cancer, I could not blame anyone doing it.
babs

Article says: "left to four fellow officers to decide the fate of Capt. Robert Semrau: a naval commodore, two air force majors, and an army captain". On the radio I hear they are NOT his peers, as in other branches of the services he would have 'fellow officers' from his own service, who would more likely understand his perspective. Airplane interaction is not the same as boots on the ground, face to face, life-on-the-line instantaneous decisions that are much more personal. And I think make him more moral, not less than his judges. This article does NOT say this, and this distorts meaning. Poor write-up. Poor Semrau. Some of us are looking for ways to support him.
Archie

I think that it is most unfortunate that Capt Semrau was even tried, let alone convicted of "disgraceful" conduct.

As I understand it, he was on a patrol and was under enemy fire. One of the Taliban was found to be severely wounded — moribund, but not yet dead. So, what were the options? He could have continued his mission and left the talib to die slowly and possibly in pain; he could have called in a helicopter (assuming that one was available to collect a moribund talib) and, since there were enemy in the area, run the great risk that it might be shot down during the landing and takeoff; he could have abandoned his mission and sat with the Talib until he died; or he could have hastened the inevitable and put the Talib out of his pain and suffering (assuming he was conscious). On the battlefield, in a place of danger, during a mission he allegedly did the last option.

In my opinion as a physician, I think that what he allegedly did was honourable in ethics and militarily appropriate. As Babs wrote, he should have been judged, if at all, by his peers who have had experience in similar situations.
Archie

I meant to add to my comment above that if Capt. Semrau is discharged from the Canadian armed forces, it will be a great loss. By all reports he is an excellent soldier and an inspiration to his colleagues — regardless of what the military court found.
gruber

It appears that most of those jurors have not been in combat or even "near-combat" — likely disqualifying them to serve in the minds of many observers. Legality and morality frequently do not mix (although laws are supposed to be based on moral guidance). In this case, it is not a wounded Taliban fighter conveniently eliminated to avoid calling in additional logistic or medical help. There was apparently none available and the wounded Taliban was suffering horribly. Semrau could have done the "legally correct" thing and allowed him to continue to suffer until he expired, thereby keeping his reputation intact. He did not and many Cdns continue to wonder about the sense of it all. This incident and its fall-out should initiate a review of the relevant laws, particularly in light of applicability to the type of combat situations faced by mentoring Cdn troops, who do not have the whole panoply of support (medical, etc) behind them.
Most of us do understand the necessity for the fairly rigid rules in this regard — they are designed to prevent abuse. In this case, the legal machinery, by its strictures, could be viewed as abusive of both the terribly wounded Taliban and Capt Semrau. Something has gone awry with our system if this is the case, particularly in light of recent (and other not-so-recent) admissions of our valued WWII vets relating many similar situations they experienced and/or witnessed. That Semrau did the most compassionate thing is obvious, that it was the "right" thing is also obvious to most. That it was not the legal thing should give us great pause and the focus therefore should not just be on Semrau — but the suitability of laws designed to restrict compassion even when such, in certain situations (like this one) is in demand.

Samurai

Quite. It seems that the world — and now the military — is run by lawyers, who care not that what is "legal" is completely out of synch with what is "right." Punishing Captain Semrau is simply NOT FAIR. And to argue that "LIFE is not fair, so get used to it" is disingenuous, because while that may be true, it does NOT absolve human beings and their organizations (like the military) of the obligation to at least TRY to be "fair."

Former CF

How does one act spawn four separate charges? From what I read, the prosecutors took four bites of the apple: second degree murder, attempted murder, negligent performance of a military and disgraceful conduct. Not sure how one act can constitute attempted and second degree. The additional charges are the best ones since they are the "catchalls" that if the military can't actually prove a crime, one can still be nailed on one of those. Perhaps, it would have been a "career-limiting move" to have acquitted on all charges. What with being judged by his "peers" who all happen to be senior in rank to the accused, doesn't sound like a just process at all.
Old_Salt

It would seem that some of the people posting to this site and the majority posting to other blogs are unaware of the Laws of Armed Conflict, or the Geneva Convention. The latter convention was established to provide protection for the care of wounded soldiers and came about from the horrible suffering of combatants in European wars during the mid-1800s. Nations sign on to the Geneva Convention to ensure that their own soldiers will be treated humanely in future conflicts. That is why the "military brass" are so adamant about Semrau's "disgraceful conduct." They are concerned that unless the message is clear to Cdn Forces members that the Laws of Armed Conflict and Geneva Convention must be upheld, there is danger that Canadians wounded in conflicts will not be protected because Canada would be seen as not respecting these agreements.
http://www.redcross.org/museum/history/geneva.asp
ProudCdn

It seems odd that people are discussing the Laws of Armed Conflict or the Geneva Convention, both of which the enemy doesn't even recognize. As I understand it, an Apache helicopter mortally engaged an enemy unit. The intention of the attack or counter attack was to kill the enemy, not capture or surround them. The fact that Captain Semrau finished the job, probably as a mercy killing, doesn't change the fact that the intent was to kill the enemy. Perhaps it would have been better to have the Apache re-attack and ensure all the enemy were killed. But 20/20 hindsight is wonderful when you have the luxury of not being shot at and in a tough combat situation. The decision to even charge Captain Semrau reeks of military rear echelon politics and excludes the fact that this hasn't been the first or last time a soldier has been in this situation and done the same thing. This just proves that real military justice doesn't exist, but the military legal system is as robust as ever. As a strong supporter of our military, I wonder why good men and women even volunteer to serve when this is the kind of support they can expect from their superiors. The sad statement of all of this is that the enemy wouldn't even be discussing this had the situation been reversed. War is ugly, get used to it. A sad day for Canada's military.

Angry and ashamed

I couldn't agree more. It appears from everything I have read about this case that first aid help would not have been available in a battlefield situation. For Semrau to have stayed and tried to administer what limited help he could have given would have endangered himself and other members of his unit. He made a courageous and humane decision in a dangerous situation. For Brig. Gen. Thompson to suggest he could have obtained medical help is ludicrous. Yes, we know all about the laws of armed conflict, but situations such as Afghanistan have different realities than when those laws were drafted. If the military expect people to put their lives on the line, they need to readdress the rules of engagement. The prosecution keeps going on about Somalia when Canadian troops tortured and killed a Somalian teenager, and the need to send a "strong message" to other troops. There are absolutely no parallels between the two situations. It seems to me that Rob Semrau is being scapegoated for the failure of the military machine to properly address the Somalian situation: he is being made to pay for their past mistakes. Soldiers have done what he allegedly did since the dawn of time and anyone who thinks otherwise is wilfully deluding themselves. The difference here is that someone couldn't keep their mouth shut. This has been dragging on since January 2008 – what is taking so long? This is "cruel and unusual punishment" indeed. It is the military establishment who are guilty of disgraceful conduct by allowing this situation to carry on for so long. I hope Capt. Semrau decides to leave the service – they don't deserve him.

Samurai

Anyone who argues in favour of Capt. Semrau being punished in any form, be it so minor as a mild reprimand, is de facto saying that he should have allowed the fallen enemy to suffer, and is therefore a cruel and inhuman piece of trash.

Sadly, Capt. Semrau's "punishment" will take the form of dismissal with disgrace, or at least demotion – a punishment designed to deliberately, and with malice aforethought, *humiliate* the good Captain. He will be the "show and gaze o' th' time" as Shakespeare wrote. Cruel and inhuman punishment to a warrior such as he with a sense of honour the court martial obviously can't even begin to comprehend. If there is any justice in this world, those who partake in Captain Semrau's sentencing will one day face disgrace and unbearable humiliation themselves.
Peter

Any severe punishment to this soldier will have a huge impact on the morale of the army. If we are not prepared to kill enemies then lets not go to war.
Taliban is not a regular army. They do not adhere to standard rules of combat. When did you ever hear of a Taliban soldier being reprimanded for blowing up civilians, beheading prisoners, etc.? I understand why the Geneva convention exist, but when one side totally does not care about any conventions, why are our soldiers being punished for doing their job?
What was he supposed to do? They say: call in a medical helicopter to evacuate the wounded. Are they for real? Risk the heli being shot down to save a guy who's going to die anyway? Anyway, I'm pretty steamed about the political correctness being enforced in places where people risk their lives.
One of the rules of war is that during a battle you don't take prisoners.
And if you still insist that we play by the rules, then just remember how the allies bombed the German and Japanese cities, to inflict maximum casualties on civilians – so, rules are rules and war is war.
Soldier

I note that not a single member of the Court Martial was a member of the Combat Arms.

So much for being tried by your 'peers'!
Lee

Having spent 24+ years in the Army, I never heard the term "soldier's pact". Another conjured term by the media to stir the pot. As for his punishment, he will be booted from the CF as an example for others in the CF and too quell the public. Sad day when the jury convicted a man without any evidence and only the word of some foreign national that was on patrol with him. I wonder how he would have fared in a civvie court?

Old_Salt

Lee, you are way off on this one. The transcript will show that there was plenty of evidence, both physical, and admissions by Capt Semrau to his fire team partner, his WO's fire team partner, the interpreter, and the Afghan Company Commander. These admissions took place on 4 separate occasions.

Mike Bush

If the Taliban had been an animal, Semrau would have been convicted of cruelty to animals if he did NOT shoot him.
Biologically, humans are animals.