Afghanistan: Canadians in Action

[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.

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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]

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]

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.

[JMA]

The latest, from this Canadian Forces news release:

Deliberations begin in Semrau court martial

What is the man's defence? A mercy killing of someone who was "98%" dead already?

[milnews.ca]

Deliberations begin in Semrau court martial

What is the man's defence? A mercy killing of someone who was "98%" dead already?

A little bit of catching up: he was found not guilty of murder, but guilty of dishonourable conduct - this from the Canadian Forces:

In summary, the military panel reached the following verdict:

Not guilty: Charge of Second-degree murder, contrary to Section 130 of the National Defence Act, pursuant to Section 235(1) of the Criminal Code;

Not guilty: Charge of Attempting to commit murder with a firearm (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;

Guilty: Charge of Behaving in a disgraceful manner – contrary to Section 93 of the National Defence Act; and

Not guilty: Charge of Negligent performance of a military duty - contrary to Section 124 of the National Defence Act.

The sentence will be determined at a later date.

Reader's Digest of defence, from the Toronto Star:

Shaky recall, sloppy investigators and conflicting accounts of what happened on an Afghan battlefield almost two years ago mean an army captain should not be convicted of killing a wounded, unarmed Taliban fighter, the officer’s defence team argued Wednesday ....

So far in the sentencing hearing, the then-TF Commander (saying his view represents that of the chain of command) is calling for Semrau to be kicked out, while a subordinate says he was a good officer. On the plus side, from one of the media accounts:

.... His commanding officer, Lt.-Col. Kevin Cameron of the 3rd Battalion of the Royal Canadian Regiment, based in Petawawa, Ont., said he would have no reservations about accepting Semrau back into his unit ....

Max punishment under S.93 NDA: "imprisonment for a term not exceeding five years or to less punishment".

[JMA]

A little bit of catching up: he was found not guilty of murder, but guilty of dishonourable conduct - this from the Canadian Forces:


Reader's Digest of defence, from the Toronto Star:


So far in the sentencing hearing, the then-TF Commander (saying his view represents that of the chain of command) is calling for Semrau to be kicked out, while a subordinate says he was a good officer. On the plus side, from one of the media accounts:


Max punishment under S.93 NDA: "imprisonment for a term not exceeding five years or to less punishment".

Sentencing delayed until 21 September. Link

[JMA]

Capt. Robert Semrau dismissed from the Forces

A Canadian soldier has been kicked out of the army—but spared a stint in prison—for shooting a severely wounded insurgent on the battlefields of Afghanistan two years ago. Capt. Robert Semrau, whose controversial case sparked a nationwide debate about the ethics of mercy killing in a war zone, stood at the front of a packed courtroom Tuesday morning as a military judge announced his punishment: a demotion in rank, and dismissal from the Forces.

Been there, faced that situation (on a number of occasions), the bottom line is you can't play God yourself nor allow your soldiers to do so. He should count himself lucky.