The Law of Arms: A Brief History of War Crimes

An unlawful law

Adam M Wakeling

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The court at Nuremberg (Wikimedia Commons)

OnOn an Autumn morning in 2008, a Canadian Army Operational Mentor and Liaison Team (OMLT) was accompanying an Afghan Army detachment on a patrol in Helmand province when it suddenly came under attack from a superior Taliban force. The Canadian commander, Captain Robert Semaru, called in fire support from an American Apache helicopter gunship, which strafed the Taliban position with its thirty millimeters 30mm cannon. Advancing, Semaru came upon a badly-wounded Taliban fighter, practically cut in half by a 30mm shell.

Semaru and the senior Afghan officer concluded he was beyond medical help. “If Allah wants him, he will die. If not, he will live” the officer remarked to Semaru, before moving on with his men. Unwilling to leave the stricken insurgent to die, Semaru walked up to the man, shot him twice in the chest in what he called a “mercy killing”, then continued on and re-joined the others. The man’s body was never found.

Two months later, military investigators found out about the incident, and Semaru was arrested and charged with four offences — murder, attempted murder, behaving in a disgraceful manner, and negligently performing a military duty. In July 2010, a court-martial acquitted him of murder and attempted murder, as without the body they could not be satisfied beyond a reasonable doubt that his bullets killed the wounded man. It also acquitted him of negligence. But he was convicted of disgraceful conduct, demoted to second lieutenant, and dismissed from the Army.

In sentencing him, Lieutenant-Colonel Jean-Guy Perron acknowledged that Semaru was a courageous soldier and had faced a difficult moral dilemma, but killing a wounded enemy was unforgivable. “You failed in your role as a leader,” Perron told him. “How can we expect our soldiers to follow the rules of war if their officers do not?”

Unsurprisingly, Semaru had thousands of defenders in Canada, who argued that the mercy killing of a man who was certain to die was not a war crime. Equally validly, defenders of the military justice system could point out that allowing individual soldiers to make the decision as to whether wounded enemy combatants were better off dead would lead to lawlessness. It was a miserable situation, and it’s unlikely anyone would…

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Adam M Wakeling

Adam Wakeling is an Australian writer, lawyer and historian. He is online at https://www.amwakeling.com/ and on Twitter @AdamMWakeling.