A soldier’s choice - Macleans.ca

A soldier’s choice

A Canadian soldier’s fateful choice in Afghanistan lands him on trial for murder

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Sean Kilpatrick / The Canadian Press

A military courtroom is not much different than the civilian version, except for a few distinct touches. When the judge shows up, everyone salutes. When a jury is chosen, the panel has five members, not 12. And when a witness is summoned to testify, he doesn’t walk to his seat. He marches.

In the courtroom where Capt. Robert Semrau is standing trial for murder, the witness box itself is also unique. Unlike on TV, where people answer questions in a chair directly beside the judge, the witness stand here is located just a few steps in front of the defence table. Intentional or not, the effect is dramatic: as each witness talks about Capt. Semrau, nobody is closer than Capt. Semrau.

Despite the intimate set-up, Cpl. Steven Fournier never locked eyes with his former commanding officer. Not once. Hour after hour, question after question, the prosecution’s star witness kept his gaze focused on the jury—the same jury that will decide whether his words are believable enough to send Semrau to prison. “I was just shocked,” Fournier said, recalling what he saw that day in Afghanistan. “None of it made sense.”

The captain and the corporal were part of a small, specialized unit of Canadian “mentors” working side-by-side with the Afghan National Army (ANA), and as the sun rose over Helmand Province on Oct. 19, 2008, they set out on foot for a sweep and clear. Their mission—Operation Atal 28—was to troll for Taliban, pick a fight, and shoot to kill. If the intelligence reports were accurate, up to 70 insurgents were waiting.

One of them was perched high in a tree, the eyes and ears of his comrades below.

Two hours in, the patrol was taking enough enemy fire to radio for backup. A pair of U.S. Apache helicopters swooped in, spraying the cornfields with the rat-tat-tat of 30-mm cannons. Later that morning, as Semrau and his Afghan colleagues continued marching south along the Helmand River, they stumbled on two of the choppers’ targets. One was dead, his stomach cut open by the rapid-fire bullets. The other—the man who’d hid in the tree—was still breathing.

According to one eyewitness, the Taliban fighter was lying in a pool of blood on a dirt path, and had a hole in his back “the size of a dinner plate.” His left leg was riddled with shrapnel, and his foot, barely attached, was twisted completely around. From what Fournier could see, there was also “a fist-sized laceration to his stomach.”

A grainy cellphone video recorded that morning by an ANA soldier shows the bearded man sprawled on his back, his eyes closed and his torso covered by a light blue blanket. He is young, no older than 35. Not once does he appear to move.

The senior Afghan officer on scene was a company commander named Shafiqullah. According to Fournier, he ordered his men to leave the wounded fighter and resume the patrol. “No treatment needed,” Fournier said, quoting Capt. Shafiqullah. “If Allah wants him, he will die. If not, he will live.” At Fournier’s urging, Semrau did ask his Afghan counterpart for permission to snap a picture of both casualties, in case they turned out to be high-value targets.

Photograph by Steve Hebert / GETTY

Shafiqullah reluctantly agreed, but only on the condition that their faces, and not their injuries, be photographed.

Using his own digital camera, Fournier took two shots of the corpse, and then headed toward the man on the dirt path. Semrau followed, as did an Afghan interpreter nicknamed Max. “As I crouched down, I can hear a moan and a groan,” said Cpl. Fournier, a Thunder Bay native who was still a private at the time. “He wasn’t dead yet.” The 24-year-old snapped two more photos, and with Max at his side, turned to walk away.

Seconds later, two shots rang out. “I thought somebody was firing at us,” Fournier said. He swung around, reached for his weapon, and saw Semrau standing over the insurgent, his C-8 rifle aimed at the man’s chest. “He told me: ‘It’s okay. It was me.’ ”

Capt. Tom Fitzgerald, a military prosecutor, asked Fournier what happened next. “He said he felt it was necessary,” the corporal answered, speaking quickly. “He felt it was the humane thing to do. He couldn’t live with himself if he left a wounded insurgent, a wounded human, to suffer like that. He said it was a mercy kill, sir.”

From the safety of this air-conditioned courtroom in Gatineau, Que.—where everyone’s shoes are polished to a shine, and flak jackets aren’t required—the Crown’s case seems simple enough. Mercy killing is illegal, no matter the circumstances, and Canadian soldiers are bound by both international laws and internal rules to provide first aid to every casualty, friend or foe. As Fitzgerald said in his opening address: “Shooting an unarmed, wounded individual who poses no threat to him or to any of the troops under his command is shockingly unacceptable conduct.”

Yet what makes this case so black and white is precisely what makes it so murky. Semrau, 36, is the first Canadian soldier in the history of combat to be charged with homicide on the battlefield, and his ordeal has triggered a fierce debate—in the ranks and out—about what happens to the law of war when it comes face to face with the reality of war.

According to the Crown, Semrau should have knelt beside that man, done his best to stop the bleeding, and called for a Medevac chopper. But was that truly an option? The captain was not on patrol with a battalion of fellow Canadians trained in Western rules of engagement. He was a mentor attached to a ragtag company of Afghan soldiers. He had no authority to bark orders. And the man who was in command, Capt. Shafiqullah, had just told his troops to keep moving. Stay behind with a dying insurgent—in the heart of enemy territory—and Semrau may have signed his own death sentence.

His only choice, it seems, was an impossible one: leave a wounded man to suffer his fate, or end his agony with a pair of bullets.

Semrau’s fate now rests with a jury of his uniformed peers. The central charge is second-degree murder, and if convicted, the Criminal Code lists only one possible sentence: life behind bars with no chance of parole for 10 years. Life behind bars. A Canadian soldier who was willing to die for his country—and, if the allegations are true, chose mercy over misery—may have to watch his two young daughters grow up from the inside of a federal penitentiary.

Jacquelyn Martin / AP

“The consequences, if it went the wrong way, are very difficult to contemplate,” says Bill Semrau, the captain’s brother. “I don’t know what happened that day. There are a lot of allegations and a lot of speculation, and I can’t really speak to the facts. But I do know Rob and I know the kind of man he is. I have only ever known him to do the right thing, and I’m confident he did nothing wrong.”

Eighteen months have passed since Robert Semrau was arrested in Afghanistan and flown back to Canada under the watchful eye of military police officers. During that time, he has said only two words in public: “Not guilty.” He has never actually confessed to killing that man (not to investigators, at least) and his lawyers have yet to present his side of the story to the jury. “I’m not prepared to discuss in any way, shape or form what our defence is going to be,” says Maj. Steve Turner, Semrau’s lead lawyer. “But the prosecution’s version of events may turn out to be wishful thinking at the end of the day.”

Semrau’s family has also avoided the media spotlight, careful not to jeopardize the ongoing court martial. But they agreed to speak, for the first time, to Maclean’s.

“The charge of second-degree murder runs so counter to the guy we know Rob is,” Bill says. “He is caring and compassionate and has a very strong moral compass, and he has always been that way. He wants to help, and that was part of the attraction of going into the army: helping people when they can’t be helped by anybody else.”

The youngest of the two brothers (Bill is three years older), Robert was born and raised in Moose Jaw, where his mom ran a government daycare out of the family home and his dad worked for the Saskatchewan Institute of Applied Science and Technology, Saskatchewan’s largest trades college. Devout Christians, they thanked God for their suppers and went to church Sunday mornings. On long weekends, the Semraus would pack the car and drive to Alberta, where all the grandparents lived. “Rob would always take his grandma through the West Edmonton Mall in her wheelchair,” says his mother, Jean, smiling at the memory. “I think sometimes they went a bit too fast, but that was just Rob.”

At Central Collegiate high school, Semrau was an athletic teen with light blue eyes and a hundred friends. He was the star defensive back on a football squad that captured a provincial championship, and everyone, except maybe opposing quarterbacks, loved him. “He is a natural leader,” says his father, Don. “He never forced his leadership on anybody; he just cared for everyone and they looked up to him.”

After graduation, Semrau pursued a psychology degree at the University of Saskatchewan. Strapped for cash in his first year, he gave his parents a homemade Christmas gift they have never forgotten. “He wrote us each a beautiful letter telling us how much we meant to him, how much he appreciated the home he had grown up in, and the values we had taught him—and our patience,” Jean says. “Of course, we still have those letters.”

Before completing his degree, Rob told his mom and dad he was considering a career that had always been in the back of his mind: the army. But Semrau did not visit a Canadian Forces recruiting office. Instead, he and three close buddies boarded a plane for England to enlist with the Brits (citizens of Commonwealth countries are allowed to join each other’s armed forces). “Growing up, Rob respected the British Armed Forces the same as the Canadian Forces, but more than anything he saw it as an opportunity to travel outside of Canada,” his brother says. Jean admits that she and her husband suggested some other options, but Rob’s heart was set. “He felt so strongly that the military was where he wanted, and needed, to be,” she says. “He had such a desire to make a difference.”

Semrau didn’t leave everything behind in the Prairies. His high school sweetheart, Amélie Lapierre, joined him overseas, and on Christmas Eve 1999 the couple exchanged wedding vows in front of two witnesses at a small, romantic ceremony in Scotland.

His stint in the British army lasted three years and three months, with deployments to Macedonia, Northern Ireland and, in January 2002, Afghanistan. He was among the first wave of British troops sent into Kabul after the attacks of 9/11, and until a battalion of Edmonton soldiers arrived in theatre later that winter, he was one of the only Canadians on the ground in the early weeks of the war. “He told us how the Afghan villagers would come up to him and his fellow soldiers and just give them big hugs,” Don says. “They would thank them over and over and over again—and then hug them some more. Rob told us: no paycheque could give him the same level of satisfaction as all those hugs.”

After Kabul, Semrau was granted an exemplary discharge and returned to Canada, where he and Amélie settled near her family in the Ottawa area. He worked as a personal trainer for Good Life Fitness, volunteered at a local food bank, and completed the final few credits of his psychology degree. But by the summer of 2005, the infantry itch had returned. This time, though, Semrau did two things differently: he joined his home country’s army, and he chose the officer corps.

He was posted to CFB Petawawa, home of the 3rd Battalion of the Royal Canadian Regiment, and by early 2008 was among hundreds of troops knee-deep in training for a deployment to Kandahar. That May, Amélie gave birth to the couple’s first child, a girl. They named her Caméa. Three months later, her dad was on a plane back to Afghanistan.

“There is no defence, in law, for mercy killing. Why? Because you just can’t make the judgment call that a person is going to die,” says Gary D. Solis, a former U.S. Marine prosecutor and author of The Law of Armed Conflict: International Humanitarian Law in War. “For any individual to take it upon himself to decide that a guy is too far gone so we’re going put him out of his misery is unacceptable. It is playing God.”

Canadian soldiers deployed to a war zone are bound by Common Article 3 of the Geneva Conventions, which states that all “wounded and sick shall be collected and cared for.” The Canadian Forces’ own code of conduct also compels troops to provide casualties with “the treatment required by their condition, whether friend or foe.” Pumping a bullet into someone’s heart is not an approved treatment.

“The public would certainly denounce it if it happened in the reverse: if a Taliban killed a wounded Canadian,” says Chris Madsen, a military law expert at the Royal Military College. “That’s the big test. Would it be shocking enough if it happened to our side?”

According to military investigators, Semrau spoke of a so-called “soldier’s pact”—an unwritten code that says if one warrior is grievously wounded, it’s up to another to speed up the inevitable. But if that’s true, the captain is certainly not alone—regardless of what the law says. Mercy killing in combat is as old as combat itself, and generations of troops bound for the front lines have asked a comrade to pull the trigger in a worst-case scenario. “It is a murky situation that has existed, literally, since the dawn of warfare,” says Jack Granatstein, one of Canada’s foremost military historians. “It would have been done out of sight. It would have been tolerated and accepted—hardly encouraged—but tolerated and accepted. It would certainly not have been prosecuted.”

Officially, the Department of National Defence does not condone any talk of a soldier’s pact. “If someone were to take another soldier’s life, regardless of how seriously injured that soldier might be, they would be the subject of a military investigation,” says Lt.-Col. Jay Janzen, the army’s director of public affairs. “We have some of the best medics in the world, and these guys have literally brought people back from the dead on the battlefield. So it’s foolishness that anyone’s talking about that kind of pact.”

Paul Franklin agrees. A former combat medic, he was stationed in Kandahar in January 2006 when a suicide bomber driving a taxi smashed into his convoy, tearing apart both his legs and killing Canadian diplomat Glyn Berry. Someone may have looked down at his ravaged body and wondered how many more minutes he had left. “Soldiers that speak of a ‘code’ have no clue what they are talking about,” says Franklin, now retired from the service. “God and the decisions made are above our pay grade. We owe it to the next batch of wounded soldiers to recover, rehabilitate and show that life does carry on.”

Almost a year to the day after Franklin was airlifted out of Afghanistan, Master Cpl. Jody Mitic stepped on a landmine and suffered similar injuries. A sniper by trade, he lost both legs just below the knee. Today, Mitic is still serving in the army, and has learned to walk—and run—with the help of prosthetic limbs. Yet unlike his friend, Paul Franklin, Mitic does believe in an unwritten soldier’s pact. And he says he is not alone.

“Bottom line, if you’re a professional warrior and you’re a lifetime soldier, you do believe a certain amount in that kind of stuff,” he says. “If it was reversed, and there was no hope for me—and a bunch of the enemy is standing around—I would hope one of them would have the courage and the same spirit of the warrior code to put me out of my misery.” In fact, when Mitic first heard about Semrau’s arrest, he had one thought: “Who is the a–hole that turned him in?”

As the commanding officer of a four-man Operational Mentor and Liaison Team (OMLT), Semrau was half soldier, half adviser. His job with the “omelette” (as the units are commonly called) was to provide detailed guidance and support—but not direction—to an Afghan rifle company, all part of an unprecedented NATO push to prepare homegrown troops to tackle the Taliban alone. It was a daunting and delicate task.
“They didn’t look at us like equals because this was their war and we are the foreigners,” said Warrant Officer Merlin Longaphie, Semrau’s second-in-command. “They did not take orders from us, and if we tried to issue an order, chances are they would never talk to us again.”

The Oct. 19 mission was typically chaotic. Semrau’s unit was given just 12 hours advance notice, and when they did arrive at the point of departure some of the ANA troops were, as usual, high on opium. Adding to the confusion—and the potential for friendly fire—were members of the Afghan National Police dressed in traditional Afghan garb. “It was somewhat bewildering at times what they were doing,” Longaphie testified. Detailed planning (not to mention basic map reading) was also non-existent. As the warrant officer put it: “When the Afghans prepare a mission, they have some tea and go for it.”

Semrau’s OMLT split into two groups that morning. Longaphie and his Canadian fire-team partner, Cpl. Tony Haraszta, departed first, accompanied by a few dozen Afghans. Semrau and Fournier hovered near the middle of the pack, close to Capt. Shafiqullah.

What happened next is now the subject of conflicting testimony that the jury must sort out. Since the court martial began in late-March, seven witnesses have sworn an oath on the witness stand, including the other three members of Semrau’s OMLT. Two said the captain confessed to a mercy kill, one said he didn’t, and none actually saw the wounded man die—assuming he did die.

When it was his turn in the witness box, Longaphie recalled how the enemy fire was heavy and accurate. At one point, a burst of bullets smacked into a mud wall right behind him, just inches from his face. After the Apaches did their damage, he said he and Haraszta sprinted through a cornfield and flopped onto their stomachs. To his right, about 25 metres away, was the man from the tree. “I assumed the person was dead,” Longaphie said. “I didn’t see any evidence to indicate that he wasn’t, but I didn’t go and check.”
Longaphie, a 25-year veteran of the Forces, said he kept moving with the rest of the Afghan soldiers, and was never close enough to have a conversation with Capt. Semrau.

Fournier offered a drastically different version of events. He said the entire team—Longaphie included—huddled for a brief meeting after Shafiqullah declared that the wounded man was beyond saving. “Capt. Semrau said we would not treat him based on what the ANA commander said,” Fournier testified.
After Fournier snapped his photos—first of the corpse, then of the wounded man—Semrau told him to “turn around.” “He told myself and our interpreter that we can head back because we don’t have to see this.”

“Did he explain what he meant by that statement?” the prosecutor asked.

“I understood it to mean I don’t have to stand here and watch a man die, sir.”

At first, Fournier assumed Semrau meant that he shouldn’t have to stand there and watch while the Taliban fighter took his final few breaths. Only after the rifle shots did he understand what the captain really meant. (Max, the Afghan interpreter, has yet to testify, but prosecutors say he whipped back around just in time to see the second tracer round strike the man’s chest.)

Shafiqullah was furious when he heard the gunshots, Fournier said. He wouldn’t even speak to Semrau. But according to Fournier, the captain did have another huddle with his OMLT. “He said he fired the shots and felt it was necessary. He said he hoped that anyone else would do the same thing, even to himself. No one said anything. There were just slight head movements.”

Haraszta, who is no longer a soldier, was the last of the OMLT members to take the witness stand. He doesn’t remember anything about a battlefield meeting with Semrau, and said the first time he heard about the alleged mercy killing was when an Afghan soldier, known to the Canadians as “Rolling John,” told him about it later that afternoon.

But that night, with the team camped out in an abandoned compound, Haraszta said Semrau did call everyone together to discuss what happened. “He told us that he shot the Taliban, he put him out of his misery and if anything came of it, he would wear it,” Haraszta testified. “Those were his exact words.”
One thing is absolutely clear: if Semrau did confess to his comrades, none of them uttered a word for more than two months. It wasn’t until late December, during another Afghan patrol, that “Rolling John” approached Semrau’s commander, Maj. Steve Nolan, with a cryptic message. “Captain Rob no good,” he said in broken English. “Captain Rob boom boom Taliban.”

Within 24 hours, the Canadian Forces National Investigation Service was grilling Fournier about what he saw. He answered every question, relieved that somebody else told the truth first. “It didn’t force me to be the snitch,” he testified. “People would not see me as the guy who came forward to ‘rat out’ a captain.”
In the weeks to come, Fournier would lead investigators back to that dirt path near the Helmand River. Using a metal detector, military police found two shell casings—but no body. To this day, the identity of Semrau’s alleged “victim” remains a mystery.

Johnny Horne Jr. knows the name of the person he killed. As long as he lives, he will never forget it: Qassim Hassan.

It was Aug. 17, 2004, and Horne’s unit of U.S. soldiers had just annihilated a large dump truck that, from a distance, appeared to be dropping roadside bombs. As Horne approached the blazing vehicle, M-16 in hand, he realized the horrifying truth. The truck wasn’t loaded with Iraqi insurgents; it was full of teenagers picking up trash for a few dollars an hour.

Horne managed to pull one of the wounded passengers to safety, and then climbed back into the fire in search of others. “I hear somebody moaning, and I see a guy lying there completely naked,” he says. “He took a direct hit from one of the high-explosive rounds and it blew his clothes right off. I reached under his armpits, and as he rolled over, his guts spilled out into my lap. I literally had to reach down and take his intestines out of my lap with my bare hands.” Surrounded by flames, there was little Horne could do but save himself.

Later, with the fire under control, some of Horne’s comrades found the same wounded teenager lying near the side of the dump truck. Somehow, he had fallen out. “I could tell he was still breathing, but there was no way we could help this guy,” Horne says. “I’m a combat soldier and I’ve seen people die, and I can say 100 per cent he was not going to survive. You’re not going to survive without your guts and your intestines.”

Horne had a brief but frantic conversation with some of his fellow soldiers, and then made a decision that would end his career: he pointed his M-16 at Hassan’s head and pulled the trigger. “You can have rules and make laws, but there are some things that supersede law,” he tells Maclean’s. “A person’s own morality, in my opinion, supersedes the law. I couldn’t leave him lying there like that, and honestly, I would want somebody to do that for me.”

Semrau may be the first Canadian charged with a mercy kill in the heat of battle, but he is not the first soldier. Two cases from the Iraq war, including the murder of Qassim Hassan, have reached a court martial.

Unlike Semrau, Horne pleaded guilty to second-degree murder and begged the jury to put themselves in his boots. They were sympathetic, to an extent. He was sentenced to three years in prison, released after 10 months, and slapped with a dishonourable discharge. The 36-year-old now lives in Kansas, where he and his wife operate a tanning salon. “I understand it was illegal,” he says. “But in the situation I was faced with I made a call—and I would do it again tomorrow.”

Horne has a message for anyone who thinks they know what Capt. Semrau should have done. “It is real easy for people to sit back and make those determinations after the fact,” he says. “But I can tell you this: nothing you will ever read about his case will put you inside his head. Nothing can put you in his position, nothing can put you in his shoes, and nothing can tell you how he felt.”

Capt. Roger Maynulet is the other U.S. soldier who knows what it feels like to be court-martialed for a mercy kill. In May 2004, the decorated tank commander was part of a team of troops that opened fire on a car believed to be carrying the radical Iraqi cleric Muqtada al-Sadr. The tip turned out to be wrong, and the attack left the driver with skull wounds so severe that even the medic on scene declared him untreatable.

“He was in a state I didn’t think was dignified,” Maynulet testified at his trial. “I had to put him out of his misery. I think it was the right thing to do. It was the honorable thing to do.” The jury agreed. He was convicted of a lesser offence (assault with intent to commit voluntary manslaughter) and sentenced to no jail time. Dismissal from the service was his only punishment.

Today, Maynulet flies a news helicopter for a television station in Las Vegas. When contacted by Maclean’s, he declined to be interviewed. “It’s been five years and I’m trying to move on with my life,” he wrote in an email. “If you do speak with CPT Semrau please tell him my thoughts are with him and I hope he beats this.”

At least 7,695 Canadians are hoping for the same outcome. That’s how many people have signed up as members of a Facebook page created in Semrau’s honour. “He should be awarded a medal for undergoing the needless pain and suffering he and his family have endured by the very system that he has so nobly served,” wrote one poster. “This whole affair is nothing more than a travesty.” Says another: “This is a government frame job of the worst kind!”

Semrau’s parents, who now live in Camrose, Alta., have received an endless stream of similar phone calls and emails, each one offering prayers and support. “It has been absolutely overwhelming,” Jean says. “We are just so grateful.”

But as thankful as they are, the Semraus must choose their words carefully. A stranger on Facebook can say that mercy killing is in “the highest tradition” of the military, or that Semrau acted with “courage” when he pulled the trigger. The captain’s family cannot. They understand that Rob’s case will be decided in court—not on the Internet—and there are many more weeks of testimony to come.

“I’m not an ethicist and I’m not a politician,” says Semrau’s brother, when asked about his personal views on mercy killing. “All I can tell you is that we’re behind Rob 100 per cent as a family, and we’re confident he did nothing wrong.”

Last month, just days before Cpl. Fournier took the witness stand, Amélie Semrau gave birth to the couple’s second daughter. They named her Chloé. If her dad is convicted of second-degree murder, she will be 10 years old by the time he is eligible for parole.

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