But military panel finds him guilty of disgraceful conduct in shooting of wounded, unarmed Taliban fighter
Richard J. Brennan
July 19, 2010
GATINEAU—Capt. Robert Semrau is the first soldier in Canadian history to be found guilty of shooting a wounded, unarmed combatant on a battlefield.
While a four-person military judicial panel found the 36-year army captain guilty Monday under the National Defence Act of disgraceful conduct resulting from the Afghan shooting, he was found not guilty of second-degree murder, attempted murder and negligent performance of duty.
He faces up to fives years in prison for the lesser charge, and most likely a discharge from the armed forces. Sentencing is schedule for Monday.
“For an officer to be convicted of . . . disgraceful conduct is for all intents and purposes a career-ender,” said Stuart Hendin, a University of Ottawa expert on armed conflict and human rights lawyer who participated in the Somalia inquiry.
Even so, Semrau’s brother Bill Semrau said the family was “disappointed” at the one finding of guilty. He thanked the public for its overwhelming support during the lengthy trial and lead-up.
“As a family. . . we always believed that my brother did nothing wrong and we put our faith in the military justice system and hoped they would find the same thing,” he told reporters following the verdict.
Semrau said “thousands” of people from Canada and around the world have added their voices of support for Robert by phone or on a special Facebook site calling for his freedom. “The support we have received from the public is fantastic,” he said.
As has become a matter of course, Semrau arrived with his wife Amelie Lapierre-Semrau to hear the verdict in a hearing room in a nondescript government complex. The two left without saying a word.
The verdict was delivered in a monotone voice by lead panelist Commodore Laurence Hickey.
Semrau betrayed no emotion as the decision was read.
“The charge of disgraceful conduct was for shooting and wounding an unarmed person . . . that’s why he was found guilty of that offence,” Lt.-Col. Mario Leveillée, a member of the prosecution team, told reporters.
“I think it’s the first time it’s ever happened.”
Leveillée explained the burden of proof with a second-degree murder charge is that a person dies as a result “and they (the panel) may have had a reasonable doubt about this,” especially since the body was not recovered.
The members of the military jury faced a daunting task to peer through the fog of war and pass judgment on a battlefield shooting.
The verdict caps a drama that began on a dusty battlefield in southern Afghanistan on Oct. 19, 2008. Semrau was part of a team of Canadian Forces mentors to the Afghanistan National Army in Helmand province in the southern region of the country.
An Apache helicopter had attacked nearby Taliban insurgents, firing a devastating volley of shots that blasted off an insurgent’s leg, almost severed his other one and severely wounded him in the abdomen.
An Afghan interpreter assigned to the Canadian team — identified only as “Max” by court order — testified that the severely wounded insurgent was moving before Semrau fired a single round from his assault rifle into the man’s head.
Another soldier with the patrol testified that he saw Semrau standing over the insurgent with his rifle pointed at his chest seconds after two quick shots were fired. The trial heard also evidence that Semrau told fellow officers after the shooting that he simply wanted to put a wounded and dying enemy fighter out of his misery.
While Semrau was cleared of murder, his conviction on charge of disgraceful conduct will send a powerful signal to soldiers about their actions on the battlefield, said Michel Drapeau, an Ottawa lawyer and a retired colonel.
“Some people may feel he’s getting away with it. Well, he’s not,” he said in an interview.
“He may not have been found guilty of murder but it’s a question of nuances here. His conduct has been found to be reprehensible and judged by his peers, found to be disgraceful,” Drapeau said.
“I think it’s going to send a sobering message to this generation of soldiers that the Canadian Forces carries with them the entire body of laws that applies to Canadians . . . and you’ll be held to account for what you do.
“This will provide added stress to the soldiers in the battlefield because it’s a precedent, somebody being charged for actions on the battlefield against an enemy combatant.’’
He said the notion of a “mercy killing” cheapens the role and training of a professional soldier and flies in the face of human rights conventions governing treatment of injured soldiers.
Drapeau echoed other experts who viewed Semrau’s conviction on a murder charge as a long shot, given that the body of the insurgent was never recovered.
“I never believed from the get-go that you could prove that beyond a reasonable doubt so for that reason the verdict is not surprising,” Drapeau said.
International law expert Michael Byers called the jury’s finding “appropriate.”
“There is no reason to believe that Capt. Semrau was acting maliciously, or that the insurgent would have survived if medical assistance had been called,” said Byers, who holds the Canada Research Chair in Global Politics and International Law at the University of British Columbia.
“What matters here is that Captain Semrau disregarded the rules of international humanitarian law, in which all our soldiers are schooled, and chose instead to follow his own moral code,” he said in an email.
“Professional militaries cannot tolerate this kind of freelancing, since it undermines discipline, consistency, and the effectiveness of the team.”
Alain Pellerin, of the Ottawa-based Conference of Defence Associations, said the verdict should be well-received in the ranks of the armed forces.
“In the army, there are those that are familiar with the context of the war in Afghanistan. They will feel it was the right decision. Not an easy one,” Pellerin said.
The panel began their deliberations Saturday afternoon after hearing from military Judge Lt.-Col. Jean-Guy Perron that Semrau was to be presumed innocent, and that the prosecution bore the burden of proving his guilt beyond a reasonable doubt.
Semrau never testified in the three months of hearings and his lawyers never called any witnesses, believing that the case against the Moose Jaw, Sask., native was fraught with flimsy evidence.
Perron is to hear a Charter challenge Tuesday from defence counsel questioning the “constitutionality of the sentencing regime,” Leveillée said.