The first Canadian soldier to have been charged with murder on the battlefield has dodged that bullet, but been found guilty of disgraceful conduct. Why? What did he do?

Is there such a concept as a warrior code which excuses the shooting of a severely injured combatant – enemy or friendly – to put him/her out of misery on the battlefield?

The question has been front and centre in the first ever trial of a Canadian soldier charged with murder on the battlefield for allegedly shooting an injured Taliban fighter in Helmand province two years ago.

Army Captain Robert Semaru was found not guilty of murder, but the military court martial found him guilty of disgraceful conduct. Hmmm.

Various witnesses described the alleged shooting as a “mercy killing” because the Talib was so badly injured he was going to die anyway.

Whoop whoop, pull up. Shoot him because he was going to die anyway?

So much for the pesky old Geneva Convention and international laws on armed conflict relating to injured enemy combatants who legally become prisoners of war, with,whether you like it or not, medical attention and every lifesaving chance possible. They are officially out of the fight. Off the field. It is quaintly called ‘civilization’.

Otherwise how do you tell the good guys from the baddies?

If it is O.K. to just pop a few ‘mercy’ bullets into a prisoner of war, why stop at one prisoner?

But this case gives rise to many more complications than just that.

Apparently it goes to the heart of what has been termed the “warrior code”, which for non warriors is reference to an unspoken, and obviously unwritten acceptance that sometimes these things happen during war. Sometimes it really is mercy killing.

Captain Semaru aside – because he has been acquitted of the murder charge he faced – mercy killing is not part of any sanctioned soldier’s code of conduct.

The case prompted a letter to the Editor of Canada’s ‘National Post’ this week from a World War II veteran who relayed a harrowing tale of having to listen to the agonizing cries of a badly wounded German soldier left in the no-man’s-land between the position of Canadian forces and trenches the Germans had retreated to.

The screaming went on all night but the Canadians could not risk going and getting the guy for fear it was a trap. The letter writer described the night as “soul-destroying”.

He then told of how a Canadian medic crawled out the next morning only to return without a patient, declaring he couldn’t save him but put him out of his misery.

The ‘moral’ of the story: mercy killings are a fact of war.

That was sixty five years ago – not a long time in the history of humanity or inhumanity for that matter - but there certainly were no helicopter medi-vacs out of the immediate theatre of war.

Troops in contemporary combat are surely better prepared to save the lives of those injured around them, and they are surely better schooled in the rules of war, of which a very key one is that soldiers are not to play God, and there is no defence of mercy killing..

This case was complicated by a number of issues – conflicting stories from witnesses over the alleged shooting and plans for a cover-up, cell phone pictures of a dead or dying Taliban soldier but no actual body because the story that resulted in the charges didn’t come to light till two months or so after the alleged incident. There was no testimony from the accused, but two expended cartridge cases from his rifle were presented, along with evidence from an Afghani interpreter who had seen the alleged shooting. It was also however unclear if the Taliban soldier was even still alive at the time.

While this case may give soldiers a bit of a reality check in the consequences basket, arguably it has also rather perversely sent a message that perhaps mercy killing is a reality of war, and as such it is not really murder, or not something you’d lose your freedom over.

You see the problem is that Captain Semaru has been found guilty of disgraceful conduct, which begs the question of what exactly did he do that was so disgraceful?

He was not found guilty of murder. There was no evidence presented of any other sort of misdemeanor on the battlefield that day, although some witnesses as previously mentioned talked of a cover-up plan. The military jury obviously did not find that compelling.

This has left some commentators – with good reason – to deduce that the jury had to come up with something, having decided that to send an otherwise exemplary young Canadian soldier to prison for ten years or more if found guilty of murder would be too much. The penalty was out of whack with the alleged crime, but they couldn’t leave it there.

And so disgraceful conduct was a default position.

And the court martial itself? Well it was perhaps an issue of transparency given cover-ups that went on after a Somali teenage prisoner was tortured to death by Canadian forces in 1993. There is no way top brass wanted a repeat of that – it led to a full-scale government inquiry.

This court martial also hit the headlines just after two of Canada’s top military have been recalled from their respective posts in Afghanistan and Haiti for allegedly breaking the rules concerning intimate relationships while serving abroad.

If that was what Semaru had been up to, perhaps that would be more fitting for a charge of disgraceful conduct?

Comments (6)

by Graeme Edgeler on July 22, 2010
Graeme Edgeler

You see the problem is that Captain Semaru has been found guilty of disgraceful conduct, which begs the question of what exactly did he do that was so disgraceful?

He was not found guilty of murder. There was no evidence presented of any other sort of misdemeanor on the battlefield that day...

You provide your own answer:

it was also however unclear if the Taliban soldier was even still alive at the time.

This is enough to get reasonable doubt in respect of a murder or mansluaghter charge. If it is not clear you caused the death, then you cannot be held criminally responsible for it. But that doesn't mean you didn't shoot someone. The jury may have been convinced that one of the two following things happened:

1. Captain Semaru shot a prisoner of war;

2. Captain Semaru shot the body of a dead enemy combatant.

They weren't certain it was the former (because of the reasonable possibility that the man was dead), so they couldn't find murder, but being certain of the one or the other could easily found a disgraceful conduct charge.

by Reginald Barjesus on July 24, 2010
Reginald Barjesus

According to Captain Semrau, the Taliban soldier had both legs missing and his intestines were showing.  Semrau said that he could not live with himself if he didn’t put the Taliban fighter out of his misery.  He also apparently told his team that he would take responsibility for what happened.  I don’t see a lot of “whoop, whoop.”  Do you really think it’s as simple as “pop[ping] a few ‘mercy’ bullets into a prisoner of war,” that this leads down that slippery slope towards: “why stop at one prisoner?”  The Geneva Convention does not cover every possible scenario that a person might encounter on a battlefield.  No law covers every moral dilemma we might face.  In fact, people often use laws to excuse their own immoral choices and their failure to act.  Semrau may not have been “playing God.”  He may very well have been motivated by compassion.  How would we know, unless we’re willing to play God ourselves?

by Paul Corrigan on July 26, 2010
Paul Corrigan

"of which a very key one is that soldiers are not to play God,"

I beg to differ. Soldiers ARE expected to play God. They're expected to kill other soldiers, a Godlike act.

That's what war entails.

And who is to say that Captain Semrau didn't do a compassionate thing, if he did indeed kill a terrorist combatant wounded on the battlefield? (Would the Taleb be even a prisoner of war, given that there's no formal declaration of war between the combatant groups?)

Going by the facts as published, a jury of four officers headed by a commodore was not going to find him guilty of murder. But to appease public opinion he was found guilty of something, and that was the least of the charges.

He might lose seniority for a year or two. Canada's conscience can feel mollified. Canadians can go to sleep at night knowing they're still a civilised and compassionate people.

It's all to easy, I think, for those of us who weren't there to make our black-and-white judgments about such incidents.

 

by Andrew Geddis on July 26, 2010
Andrew Geddis

Paul: "He might lose seniority for a year or two. Canada's conscience can feel mollified. Canadians can go to sleep at night knowing they're still a civilised and compassionate people."

You may be right - but I see from this Globe and Mail story that the consequences may be more severe ...

The range of sentencing options does not include criminal court punishments like house arrest or community service.

Instead, he could serve up to five years in jail, part of which would be served in a military prison and part in a civilian facility.

The court could also sentence him to a lesser punishment, including dismissing him from the military with disgrace.


by Graeme Edgeler on July 26, 2010
Graeme Edgeler

I see from this Globe and Mail story that the consequences may be more severe...

Indeed.

The charge of which Capt. Samaru stands convicted is in the following terms:

"Cruel or disgraceful conduct

93. Every person who behaves in a cruel or disgraceful manner is guilty of an offence and on conviction is liable to imprisonment for a term not exceeding five years or to less punishment."

And section 139 of the National Defence Act 1985 creates the following heirachy of sentences

The following punishments may be imposed in respect of service offences and each of those punishments is a punishment less than every punishment preceding it:

(a) imprisonment for life;

(b) imprisonment for two years or more;

(c) dismissal with disgrace from Her Majesty’s service;

(d) imprisonment for less than two years;

(e) dismissal from Her Majesty’s service;

(f) detention;

(g) reduction in rank;

(h) forfeiture of seniority;

(i) severe reprimand;

(j) reprimand;

(k) fine; and

(l) minor punishments.

Up to five years prison is a possibility. The question of how likely that is I'll leave to others.

by Paul Corrigan on July 26, 2010
Paul Corrigan

Hi, Andrew, and Graeme:

So, with all those 'liable to', 'may', 'could' words, the court martial has a good deal of latitude, yes?

And we will have to wait and see.

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