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

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

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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.

But Semrau himself said no such thing. The Moose Jaw, Sask., native uttered only two words during the court martial—“Not guilty”—and his lawyer, Maj. Steve Turner, stuck to a consistent strategy: attack every witness, and sow the seeds of reasonable doubt. For the most part, the tactic worked.

Prosecutors told the panel that Semrau subscribed to a so-called “soldier’s pact,” an unwritten code that says if one warrior is mortally wounded, it’s up to another to end his suffering. But even with the testimony of numerous witnesses who said they either heard him fire the shots or listened to him confess afterwards, the jury was not fully convinced that Semrau’s bullets actually caused that man to die. There was, after all, no corpse and no autopsy report. To this day, even the name of the “victim” remains unknown.

So the panel, it seems, settled on middle ground. As Semrau stood at attention, his face showing no emotion, the jury foreman declared him not guilty on the first three counts, but guilty on the fourth: disgraceful conduct. A life term is now out of the equation, but jail remains a very real possibility, as the charge carries a maximum punishment of five years in prison.

“Either way, he doesn’t have any career in the army left,” Granatstein says. “It is ruined. He will be a civilian, but the only question is whether he’ll do jail time first.”

Neither side claimed victory after the verdict. The military brass wanted a murder conviction, anxious to send a stern message that any talk of a “soldier’s pact” is strictly forbidden. Still, for the first time, a Canadian soldier has been found guilty of shooting a wounded enemy fighter—a precedent that should deter others from ever doing the same. “We proved the fact that he shot a wounded and unarmed man beyond a reasonable doubt,” Lt.-Col. Mario Léveillée, the lead prosecutor, said after the decision. “[But] one of the elements to prove murder in the second degree is that the individual died as a result, and they may have had a reasonable doubt about this.”

Bill Semrau, Robert’s older brother, spoke on behalf of the family. He urged Canadians to join the Facebook site (Support the Freedom of Capt. Robert Semrau) and thanked everyone who has sent cards, prayers and other words of support. “We are disappointed,” he said. “We’ve always believed that he did nothing wrong and we’ve hoped that the military panel would find the same thing.”

The captain and his wife, Amélie Lapierre-Semrau, left the courtroom hand in hand, walking past a throng of reporters and flashing cameras without saying a word. On July 26, Semrau’s scheduled date for sentencing, they will find out whether his next exit from the building will be in handcuffs.