War and Justice

It has been a pretty busy news week, what with the inauguration(s) of President Obama in the US, and the upcoming budget vote in Ottawa, but there is another story that has captured my interest as of late. I am referring to the upcoming court marshall of Captain Robert Semrau of the Canadian Army.

Semrau is accused of Murder in the second degree for having allegedly killed an unarmed Afghan enemy combatant. Interestingly enough, nobody actually saw him kill the combatant. All we know (from the media reports I have read) is that the enemy fighter was severely wounded by an American air strike and that he had been disarmed in front of witnesses and that he was alone with the accused at the time that witnesses claim to have heard two shots. We don't actually know that the enemy fighter was killed, and his body was left behind and never recovered. Apparently, the Crown also has one witness that saw Semrau fire toward the alleged victim.

As in any criminal proceeding, Captain Semrau is entitled to his day in court, which includes a presumption of innocence that requires the Crown to prove guilt beyond a reasonable doubt. First and foremost, they will have to prove what is known in law as the actus reus, in this case they have to prove that he killed the insurgent. This is difficult to do (though not impossible) without the body being recovered. Moreover, it doesn't sound like anyone actually saw the body of the insurgent, so there is little more than circumstantial evidence to say that Semrau killed him (though admittedly the circumstantial evidence is still strong). People have been convicted based on circumstantial evidence before, but the question in this case is whether or not the evidence leaves room for reasonable doubt.

Given that the alleged victim is said to have been too badly injured for treatment in the field, it is doubtful that he could have gotten up and walked away on his own, so the question then becomes whether or not he simply expired from the wounds he received from the air strike, or if he was killed by the shots Semrau is alleged to have fired. Since it is unlikely a shot could have missed from close range, I suspect the Defence may want to try casting doubt as to whether or not the shots were ever actually fired.

From a legal point of view, I am interested to see how this case turns out. Hopefully, we will hear more details about the case as it progresses. For all we know, the alleged shooting (if it happened at all) may not even have been done in anger. After all, who's to say that we are not talking about a mercy killing?