Capt. Robert Semrau Charged With Murder in Afghanistan

[TimBit]

Agreed; however, firing two rounds into an unarmed enemy still contravenes the Laws of Armed Conflict.  This is black and white legally.

And, as a corollary, our code of conduct, which is the reason why, again, he was dismissed.

 

[Good2Golf]

As Michael O'Leary noted earlier, there are both legal aspects and there are ethical aspects to the events. 

Retired AF Guy, the legal issue here is that the Canadian Code of Service Discipline clearly states that members of the CF are bound also by the Criminal Code of Canada, anywhere they may operate - worldwide.  So while there are arguments for differentiating between civilian and military ethics, there cannot be for applicability (or not) of civilian and/or military law...it is necessarily by today's CSD an "and".

Timbits raised some interesting points, and as I continue to mull this issue over in my mind as to whether justice was done or not, or was too harsh or not, I too though of some situations that could pose, in light of the 'letter of the law' (of Armed Conflict):

a) A sniper's first shot disables a combatant at range to a degree that the combatant appears not to IMMEDIATELY pose a threat.  Does the sniper take a second shot to despatch the target, or does he/she check fire as now the target appears to be, at least in the short-term, 'hors de combat'?

b) Similar situation to that of 2Lt Semrau, but the Canadian soldier with the ANA considers giving the combatant a shot (or more) of morphine from his (or say a nearby TCCC-trained/kitted Cdn soldier).  What if enough morphine was given (without highly-trained med knowledge) knowing there might be high possibility of overdosing the injured combatant?  Could heavy dosage, knowing its potential fatality, be considered any better than shooting, given use of morphine as either a painkiller, or potential or deliberate fatal action? Should only a single dose be given to the injured fighter?  Might such an action at least be able to be portrayed as "assisting/rendering medical aid" even if some might consider doing it to essentially euthanize the mortally-wounded fighter? 

This isn't meant to propose "what could he have done" for this case in particular, but note, as have others, some situations that pose a challenge to the ethical and legal conduct of our soldiers operating abroad.

Regards
G2G

 

[Michael OLeary]

May be it is an over-generalization and no I would not excuse rape or looting.

So you agree there are limits on your statement that "all those nice laws" should be thrown out on the battlefield. That's good, I wouldn't want to see some journalist twisting it to say "member Retired AF Guy on a popular military message board stated that he thinks soldiers should not be bound by law in operations."

You say that the examples I gave would be excused because they are essential to mission execution and security. Thats not the impression I'm getting from some of the postings here in this thread.

I didn't say they would be excused, but that was the reasoning given when you took that training.

Its diffidently not the feeling I get from comments by LCol Jesson, Drapeau, Taylor, et al. According to them there are no exceptions, the rules are written in stone and you shall not deviate from them no matter what and there are no exceptions. Mission security be damned.

Again, its just my impression.

Attention seeking pundits aside, there may well be exceptions, but we need to be prepared to show exactly what those are an under what conditions they may occur, and be prepared to defend those cases within the structure of the judicial systems (military and civil) on a case by case basis as needed. Sweeping generalizations contribute nothing, either here or in media sound-bites by the self-professed "experts."

 

[Retired AF Guy]

My mistake in using all.  My bad.

 

[TimBit]

As Michael O'Leary noted earlier, there are both legal aspects and there are ethical aspects to the events. 

Retired AF Guy, the legal issue here is that the Canadian Code of Service Discipline clearly states that members of the CF are bound also by the Criminal Code of Canada, anywhere they may operate - worldwide.  So while there are arguments for differentiating between civilian and military ethics, there cannot be for applicability (or not) of civilian and/or military law...it is necessarily by today's CSD an "and".

Timbits raised some interesting points, and as I continue to mull this issue over in my mind as to whether justice was done or not, or was too harsh or not, I too though of some situations that could pose, in light of the 'letter of the law' (of Armed Conflict):

a) A sniper's first shot disables a combatant at range to a degree that the combatant appears not to IMMEDIATELY pose a threat.  Does the sniper take a second shot to despatch the target, or does he/she check fire as now the target appears to be, at least in the short-term, 'hors de combat'?

b) Similar situation to that of 2Lt Semrau, but the Canadian soldier with the ANA considers giving the combatant a shot (or more) of morphine from his (or say a nearby TCCC-trained/kitted Cdn soldier).  What if enough morphine was given (without highly-trained med knowledge) knowing there might be high possibility of overdosing the injured combatant?  Could heavy dosage, knowing its potential fatality, be considered any better than shooting, given use of morphine as either a painkiller, or potential or deliberate fatal action? Should only a single dose be given to the injured fighter?  Might such an action at least be able to be portrayed as "assisting/rendering medical aid" even if some might consider doing it to essentially euthanize the mortally-wounded fighter? 

This isn't meant to propose "what could he have done" for this case in particular, but note, as have others, some situations that pose a challenge to the ethical and legal conduct of our soldiers operating abroad.

Regards
G2G

Good post. I have thought about that morphine scenario and wondered, what would have happened if the shot Taleb had been taken back to field hospital, and assessed by medical staff as a lost cause, and proceeded subsequently to give him a higher than required dose of morphine to alleviate his suffering. I think in that case, the outcome would have been extremely different because of 1. the professional medical opinion and 2. the detachment from combat, i.e. no doubt that this could possibly be perceived  as vengeance or needless violence.

 

[jollyjacktar]

G2G, is there a problem with question a..?  The enemy combattant is at a distance when engaged and has the audacity not to expire outright.  Hit him again or not..... why not?  He has not come under the tender care of following forces and changed his status to POW.  At what distance does one become subject to the requirement of muckling onto the enemy and forcing his submisson and surrender.  Is it when you can lay hands on him?  Have him obey and understand verbal commands to cease and desist?  I have seen plenty of video where targets have been re-engaged when they did not fall down as desired.

As much as some would like and the law trumpets, reality is not black and white.  That is what the courts are for should it come to that.  To quote Dickens partially "the law is an ass, an idiot"  There is plenty of grey out there for all, and plenty more who would sit in judgement of any and all decisions made of the moment.

 

[vonGarvin]

I disagree on the very liberal use of the word "grey" when it comes to the law.  Laws are very clear, and I get it that one's own perception can cloud that clarity.  But that is irrelevant.  The law is the law.  One's own perception or opinion about laws are irrelevant.

Without going down roads of "what if..." this and "what if..." that, in this case, one person subject to the Criminal Code of Canada and the National Defence Act, shot an unarmed person, contrary to section blah blah of whatever.  This was proven in a court of law.  As such, former Capt Semrau was sentenced. 

Case Closed.  And clear as a bell.



Now, the moral issue is one left best debated in the Philosopher's lounge, complete with smoking jacket, brandy and pipes (opium is not mandatory).  And this moral issue of what happened that day in Afghanistan will be subject to debate for years to come, I assume.

 

[McG]

The problem, as I see it, is that you are trying impose civilian laws and civilian views of morality unto the battlefield.

In this case, application of civilian laws was a mechanism for enforcing the standards of the Laws of Armed Conflict.

Let me give another actual example from the failed American raid in Mogadishu, Somalia (aka Blackhawk Down). One of the American soldiers described a situation where he was under fire from a Somalia gunman who was hiding behind a woman. The woman was jumping around and the gunmen would jump out and fire a burst and then jump back behind the women. Finally, the only choice of the American had was to shoot the woman, and then shoot the gunman. According to the rules the American is guilty of murder, ...

Actually, LoAC does allow consideration of military neccesity.  The soldier in your example would not be guilty of anything (baring the existence other information not presented within your description).

 

[Bruce Monkhouse]

Actually, LoAC does allow consideration of military neccesity. 

So if Mr. Semrau had been able to show that, had the wounded combatant been left behind and, if found still alive, could possibly pass info that then could possibly cause potential causalities to the coalition, could that then pass a justification test?

 

[Good2Golf]

JJT, I'm not saying that if I was a sniper, I can say definatively whether I would take the second shot, or not, but rather the considerations we must think of.  Just to be clear, a combatant who is injured badly enough so as to no longer be capable of fighting (in Geneva Convention-speak 'hors de combat') does not have to be waving a white flag or to have actively given visual indication of his desire to surrender.  It was meant as an example of a 'partially-completed' action that then puts one in an uncertain position. It doesn't matter at what distance you are from the enemy, if you can see well enough his condition/intentions, that's what you must act upon.  If he clearly is unable to fight and is rolling around aimlessly with no other weapon systems in sight, then he's hors de combat.  If he is wounded, but is slowly crawling to grab another weapon or more rounds, he's still in the fight.  Yes, I would say there are a few examples where someone was pretty visibly hors de combat and was still engaged further (an AH gunship HUD tapes from a few years ago comes to mind)....per the LOAC, a situation such as this shouldn't have happened I would say.

MCG, yes, 'military necessity', and as well, 'proportionality' -- but in that example, I would think of the soldier attacking the enemy's center of mass when he was hopping outwards, with the potential of hitting the woman collaterally, albeit trying one's best to avoid hitting her at all.  I have a hard time with deliberately 'dropping' the woman so one would then have a clear shot at the enemy.

Regards
G2G

 

[McG]

So if Mr. Semrau had been able to show that, had the wounded combatant been left behind and, if found still alive, could possibly pass info that then could possibly cause potential causalities to the coalition, could that then pass a justification test?

All the "if" and "could possibly" and "potential" are getting in the way of your hypothetical defence having a hypothetical chance at legitimacy.

 

[Bruce Monkhouse]

Isn't that what consideration is?

 

[Brutus]

So if Mr. Semrau had been able to show that, had the wounded combatant been left behind and, if found still alive, could possibly pass info that then could possibly cause potential causalities to the coalition, could that then pass a justification test?

I think the threat would have to be more imminent and certain than what you proposed (ie - the wounded man still being armed and attempting to carry on the fight) in order to really justify, legally, his killing.

 

[jollyjacktar]

Techno, no matter how you cut it life and reality is grey.  Unless you are perhaps trying to beat the laws of physics or you are a Vulcan or loans officer. 

Laws as written are B&W, yes.  For the times the adults feel that a breach has been made, as I said the courts are there to deal with the offender.  As was explained to be in college where I studied law enforcement, there are several million different laws  on the books under the varied layers of Canadian society.  Federal, Provincial,  Municipal etc etc.  You can expect to break some of them on a daily basis.  Some by choice of omission and some by ignorance.  And if you do so, and get caught, you can expect to be called to answer to it.  They also said the law is a fool's bible and a wise man's guide.  Meaning sometimes black and white blend into grey in the application of such.  The choice is up to the individual on how far they want to obey at the end of the day.  The consequences of these choices can be far reaching, and why we are discussing this topic to begin with.

 

[vonGarvin]

I maintain that laws are black and white.  It is up to the courts to determine the situation of the alleged incident in question to determine if a crime has been committed.  They "unmuddy" the waters, as it were, to try to determine if the very clear specifics of the element of a crime have been met.  That is my point.


In this case, it was proven that former Capt Semrau fired two rounds at an unarmed, wounded enemy.  Nothing further is relevant.  That is my point.  "What ifs?" do nothing but throw deliberate mud back onto a clear situation.


Morals are different, and I shall only discuss those in the philosophers lounge.

 

[jollyjacktar]

Not discussing morals.  Only giving my POV from having been previously involved the the LE business, and grey my friend does indeed live in that world like it or not.  We agree more than we disagree on the end result however.  Won't comment on this particular case result, period.

 

[zipperhead_cop]

There are laws in books which are what we are talking about.  But after those laws in books go to court and get challenged, they generate case law, which doesn't really apply here, but none the less, case law is more powerful than the actual laws in the books.  Even more so, there is common law, which isn't written anywhere and is just mentioned sometimes in case law.  Good times!

2Lt Semrau got binned because for most people out of and some people in the military that is what "looked" like the right thing to do.  Does anyone think that optics isn't a powerful master?

In the long run, we lost a solid leader because it was the easy thing to do and the next time someone decides they need to mercy kill someone on the battle field they will do a better job of not getting caught.  Nothing was really accomplished here. 

 

[vonGarvin]

2Lt Semrau got binned because for most people out of and some people in the military that is what "looked" like the right thing to do.  Does anyone think that optics isn't a powerful master?

I disagree vehemently.

In the long run, we lost a solid leader because it was the easy thing to do and the next time someone decides they need to mercy kill someone on the battle field they will do a better job of not getting caught.  Nothing was really accomplished here.

Again, I disagree vehemently.  We did not lose a solid leader.  "Solid Leaders" do not shoot at unarmed, wounded people, enemy or not.  And I say this calling Rob Semrau a friend.

 

[ArmyRick]

Technoviking, I agree with you. I have been in the uncomfortable place myself of having to turn in or reccomend charges be laid agaisnt people who were friends. It sucks but we must up hold integrity.

I personally beleive that 2Lt Semrau acted morally but still broke the law as it stands. We must take the right actions or we lose our credibility.

Here is a situation. (I know here we go with the "What ifs") If we are in a fire base, your manning a key weapon to the operation and without, the company attack WILL fail. During the attack, off to the flank, you see one of friends injured very badly. You know that you might save him by going to him but the company attack would fail, right? Tough decision and I hope to never be in that situation.

You need to stand your ground and uphold the orders given to you. There are situations where acting morally may contravene orders but we must support he mission.

2Lt Semrau failed to hold his legal ground in this case (Do NOT shoot an enemy wounded soldier).

Now if the orders are clearly unlawfull, thats a different story...

 

[zipperhead_cop]

Again, I disagree vehemently.  We did not lose a solid leader.  "Solid Leaders" do not shoot at unarmed, wounded people, enemy or not.  And I say this calling Rob Semrau a friend.

We'll agree to disagree.  And I imagine we have different definitions as to what constitutes "leadership".