Afghanistan: Canadians in Action

**Ken White** · 01-14-2009

Originally Posted by milnews.ca

I await more information from the trial process, I'm FAR from a legal expert, and I presume innocence until guilt is proven, but there is a case to be made that the Geneva Convention (1949), esp. Article 3, may come into play here:

Does it have any force in Canadian law?

Does violation of the GC lead to an allegation of homicide in this case?

Seems to be a non-issue (with respect to Captain Semrau's case) to me...

**milnews.ca** · 01-16-2009

...I'm looking forward to hearing more from the proceedings to find out more details about things like this:

Originally Posted by Ken White

Does it have any force in Canadian law?

Does violation of the GC lead to an allegation of homicide in this case?

Seems to be a non-issue (with respect to Captain Semrau's case) to me...

- all I have is what's been written in the MSM, which is also why I used "may".

As for this, 120mm:

What if the officer involved would've just left the man there, to die? Wouldn't similar charges apply? What is the standard, exactly, for when a grievously wounded enemy soldier makes mission accomplishment impossible?

I'd LOVE to hear from any legalists on this one, too, since MSM is only covering what's coming out of the process for the moment, and not speaking to experts about such issues. Mind you, depending on how such issues are covered, beware what you wish for re: effects on pubic perception of the proceedings and the individual.

**120mm** · 01-17-2009

Once upon a time, I taught patrolling, and believe you me, there is no good LOLW-compliant answer for the grievously wounded combatant, or the EPW who cries out.

**jmm99** · 01-17-2009

In another thread, I've been flopping about like a large-mouth bass in the bottom of the boat on much the same issue. Perhaps, some progress was made in my presentation at posts ## 54-56 - you judge.

Any how ways, my theory is that operational law must correspond to what is a reality in the field (law serves the soldier; the soldier does not serve the law); which requires placing more discretion in the field commander to set the rules, based on the "totality of circumstances" as viewed by him and subject only to some very general guidelines.

So, it is more important to me to hear from field folks on what they think the rules should be in this and related situations (basically a point A to point B problem with an intermediate hitch which requires a go or no go decision).

Don't have to be a lawyer - this is a "what the rules should be" problem with no "correct answer". Also, we could have a general rule (fitting situations A, B, C and D), together with exceptions for E, F and G.

There are some articles out there (feel free to find them), but are not particularly helpful cuz they tend to be top down solutions - law imposed on soldiers, not law developed by and for soldiers. Betcha we can do better.

I'd appreciate comments on this proposition.

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These kind of problems caused Grotius to develop his work on the laws of war. The problem with Grotius' (the European or Code Systems) method of legal development is a tendency to impose law from above (theorists). That is contrary to the UK-US method of legal development (in its pure form) which derives the law from actual practice (Bracton and those who have followed him for 800 years). Guess which school of thought I belong to.

**reed11b** · 01-17-2009

Originally Posted by jmm99

In another thread, I've been flopping about like a large-mouth bass in the bottom of the boat on much the same issue. Perhaps, some progress was made in my presentation at posts ## 54-56 - you judge.

Any how ways, my theory is that operational law must correspond to what is a reality in the field (law serves the soldier; the soldier does not serve the law); which requires placing more discretion in the field commander to set the rules, based on the "totality of circumstances" as viewed by him and subject only to some very general guidelines.

So, it is more important to me to hear from field folks on what they think the rules should be in this and related situations (basically a point A to point B problem with an intermediate hitch which requires a go or no go decision).

Don't have to be a lawyer - this is a "what the rules should be" problem with no "correct answer". Also, we could have a general rule (fitting situations A, B, C and D), together with exceptions for E, F and G.

There are some articles out there (feel free to find them), but are not particularly helpful cuz they tend to be top down solutions - law imposed on soldiers, not law developed by and for soldiers. Betcha we can do better.

I'd appreciate comments on this proposition.

------------------------
These kind of problems caused Grotius to develop his work on the laws of war. The problem with Grotius' (the European or Code Systems) method of legal development is a tendency to impose law from above (theorists). That is contrary to the UK-US method of legal development (in its pure form) which derives the law from actual practice (Bracton and those who have followed him for 800 years). Guess which school of thought I belong to.

I don't think this one even falls under a "should be". While the good Captain probably should receive some sort of "corrective action" for not following the correct ROE, it is not "murder". The insurgent, from what little we have, was already triaged out, and was being left to die. If this is not murder then neither is speeding up the process. Was it inappropriate? It probably was, but it was not murder. Of course I am far from a lawyer and a strong believer in the precedence of "intent" of the law outweighing the "letter" of the law. I certainly hope that the CA legal system sees it the same way or I will lose a great deal of respect for our Northern Neighbor.
Reed

**milnews.ca** · 09-18-2009

The latest, from this Canadian Forces news release:

Captain Robert Semrau will face a General Court Martial in relation to the shooting death of a wounded insurgent that occurred in Afghanistan in October 2008.

Capt. Semrau was arrested on December 31, 2008, by the National Investigation Service and charged with Second Degree Murder while deployed in Afghanistan as Commander of an Operational Mentor Liaison Team. Capt. Semrau was released under conditions on January 7, 2009, by the Military Judge presiding over the custody review hearing at CFB Petawawa.

Following referral to the Canadian Forces Director of Military Prosecutions (DMP), Captain (Navy) Holly MacDougall, the original charge of Second Degree Murder, and three additional charges were brought forward or “preferred” to Court Martial.

The charges facing Capt. Semrau are:

* Second Degree Murder - contrary to Section 130 of the National Defence Act, pursuant to Section 235(1) of the Criminal Code;

* Attempt to Commit Murder (alternative to the Charge of Second Degree Murder) - contrary to Section 130 of the National Defence Act, pursuant to Section 239(1)(a.1) of the Criminal Code;

* Behaving in a Disgraceful Manner – contrary to Section 93 of the National Defence Act; and

* Negligently Performing a Military Duty - contrary to Section 124 of the National Defence Act.

The charges have been forwarded to the Court Martial Administrator who will convene a General Court Martial at the first available date and at a location to be determined.

A General Court Martial is composed of a military judge and a panel of five members. The accused is represented by a defence counsel designated by the Director of Defence Counsel Service.

The DMP considers two main issues when deciding whether to prosecute a charge at court martial:

* Is the evidence sufficient to justify the continuation of charges as laid or the preferral of other charges?

* If the evidence is sufficient, does the public interest require a prosecution to be pursued?

DMP continually reassesses these issues as new information about the case becomes available and has the discretion to bring forward, or “prefer,” the charge or any other charge based on facts disclosed by evidence in addition to, or in substitution for, the charge.