OTTAWA - A Canadian soldier will face a court martial Monday, accused of the 2008 murder of a wounded, unarmed Taliban fighter in southern Afghanistan - a case a military expert says is almost certainly the first of its kind.
Capt. Robert Semrau has been charged with second degree murder in the battlefield killing of an insurgent fighter following a prolonged clash in Lashkar Gah, the capital of Helmand province.
The series of running firefights took place as British and Afghan forces along with their Canadian mentors helped defend the city in Oct. 2008. But Semrau wasn't charged until the alleged killing came to the attention of Canadian commanders two months later.
Michel Drapeau, a retired colonel and lawyer, said he hasn't been able to find a case of this kind in Canadian military legal history, where a soldier was tried for the battlefield murder of a prisoner.
"It's unprecedented in many, many respects," said Drapeau.
"I can't remember any such incidents in the past 50 years and in the Second World War, I don't believe there was such a court martial. From my own memory and recollection, there hasn't been such a case."
A joint "synopsis" of the Afghan incident, filed in court last year, states Semrau was mentoring an Afghan National Army unit under British command when they were ambushed in the Nad Ali district.
A U.S. Apache helicopter was called in and sprayed the area with cannon fire. When the Afghans and Canadians swept the district afterwards they discovered one dead insurgent and another with wounds "too severe for any type of treatment" in the field.
The document says an assault rifle was taken from the wounded man before Semrau was allegedly seen firing his rifle at him. Two shots were heard.
The Canadian and Afghan army forces moved on and the body of the dead insurgent was never recovered.
Over the years, military historians have compiled a handful of anecdotes of Canadian soldiers involved in battlefield executions. There were several well-known cases in Korea and a number of stories of troops shooting German prisoners in retaliation for the murder of Canadians by the SS in the aftermath of D-Day.
But none has ever resulted in a murder charge.
Two Canadian soldiers were charged with second-degree murder in the 1993 death of Somali teenager Shidane Arone, who was not a prisoner taken in combat. During the aborted Somali inquiry, there were also separate allegations Canadian troops had executed another wounded prisoner during the ill-fated humanitarian mission.
Drapeau said the shadow of the Somalia scandal is weighing heavily on those making the decisions.
"I think the Forces is going to go to any extreme to make sure no blame is attached to them as to a coverup and they're going to be extremely clean in the application of Canadian and human rights law," he said.
"My sense is that they've laid the charges and will let the court sort it out."
Drapeau isn't the only one to see this through a political lens. A group dedicated to Semrau on the social networking site Facebook has 7,067 members.
Semrau is seen as a scapegoat.
"Capt. Robert Semrau, a comrade and a friend, is being wrongfully charged with the death of a presumed Afghani insurgent during a fire fight with Taliban forces," wrote the page creator Stuart McMahon.
"In a land of misery, fear and an unknown enemy our men and women fight for our freedom. We cannot begin to understand the stress our troops undergo everyday in Afghanistan. I have been honoured to have known Capt. Robert Semrau. During my time spent in the Canadian Armed Forces I have worked alongside Robert and was graced with his companionship, understanding and leadership that he sufficiently gave to every soldier under his command."
The fact that no body was recovered presents "some powerful evidentiary problems" for the prosecutors, Drapeau says, because they wouldn't be able to prove Semrau's shots were indeed the fatal blows.
An argument could be made that the wounded Taliban was suffering and Semrau was only putting him out of his misery.
Drapeau said Canadian and international humanitarian law does not recognize mercy killings and it's unlikely such a defence would stand.
Semrau was released from detention last January and has remained with his regiment at Canadian Forces Base Petawawa, Ont., under a series of court-imposed conditions, including that he not possess any firearms or explosives in the course of his duties.