A complete whitewash — An analysis
By Lloyd D’Aguilar – Tivoli Committee
The quality and usefulness of the Report recently issued by the West Kingston Commission of Enquiry (WKCOE) into the 2010 security forces massacre in Tivoli Gardens and West Kingston, has to be judged in terms of that famous legal maxim: “Justice delayed is Justice denied”. And so we ask the question: has this $500 million Report, paid for by taxpayers, advanced the cause of justice or, does the Report help to facilitate a further delay of justice?
Our reference to the cause of justice is of course the fact that six years after the massacre, the worst in Jamaica’s history since the 1865 Morant Bay Massacre, no one has been held accountable, nor has there been compensation and reparations to the victims. Clearly, justice has taken a long time to be delivered. The question is: how does the Report assist the realization of these goals — reparations and holding the perpetrators of the massacre accountable.
We will argue in this analysis that the Report is a grand failure because it helps to compound the dysfunctional nature of the Jamaican justice system — primarily it validates the practice of not holding Superior Commanders accountable for State extrajudicial killings. Police extrajudicial killings have been a decades-old State policy that is committed with impunity and the May 2010 massacre is merely an extreme manifestation of that practice.
Those who pull the trigger usually cannot be identified or convicted because of disturbed crime scenes or flawed ballistic and forensic investigations, among other things. This has become a practiced art and part of the impunity process.
The Commissioners failed to recognize this as a deliberate practice; that failure to protect the “crime scene”, and recording of bodies etc. wasn’t so much a dereliction of duty on the part of certain named police officers, but part of standard practice to ensure impunity and protection of Superior Commanders who planned the operation, and who are even more guilty than those who pulled the trigger.
The Commissioners failed to use the concept of Superior Command Responsibility as defined in International Humanitarian Law to probe how the Superior Commanders planned a massacre and used the old true and tried method of “disturbing the crime scene”, to insulate themselves from accountability. The Commissioners gave a wink and nod to the practice by making make a few gestures of reprimand to lower level commanders for failure to properly gather evidence, etc. while ignoring the responsibility of the Superior Commanders.
The Commissioners did little to hide the fact that they saw their objective as to protect the State and its Superior Commanders. They said as much, that one of the “objectives of these recommendations” is “restoring/promoting trust and confidence in the State.”! This was not part of the terms of reference but the Commissioners nonetheless felt that they had a duty to try and restore, and promote trust and confidence in the State..
The Commission was unquestioning of the narrative provided by the security forces about the alleged threat to the State and its account of the actual resistance encountered. This unchallenged security forces account, of fierce battles with gunmen, echoed the usual trope about the police ‘coming under fire, returning the fire, and later finding someone suffering from gunshot wounds’ that is part of the usual practice of the police illegally executing Jamaican citizens. The Commissioners decided to generously give the security forces the benefit of any doubt about the so-called threat to the State in order to justify the unexplained number of people killed and the brutality used to dominate the West Kingston area, especially Tivoli Gardens.
Apart from a recommendation that the government should apologize and pay the victims compensation, most of the Commission recommendations are of little value in terms of holding accountable those who are responsible for the massacre and which cannot stop another massacre from happening. Superior Commanders remain inviolable.
Implications of Apology and Compensation
The recommendation for Apology and Compensation is significant or even contradictory in that it would imply admission that a wrong has been committed by the State. We are waiting to see the wording of such apology. This recommendation, by the way, came from the residents and victims in association with the Tivoli Committee and was duly adopted by the Commission.
However, the other recommendation from the residents for the Superior Commanders — former prime minister Bruce Golding, former head of the Jamaica Defence Force Major General Stewart Saunders and former head of the Jamaica Constabulary Force Owen Ellington – to be charged with Crimes Against Humanity according to International Humanitarian Law or for terrorism under Jamaica’s Terrorism Prevention Act was rejected. We argue that rejection of this recommendation creates a problematic in terms of whether any apology can be sincere without charges being laid against the Superior Commanders.
Also significant is that the Commission did not accept the recommendation for the government to speedily ratify the Statutes of the International Criminal Court (ICC) so that in the future Superior Commanders can be held accountable for Crimes Against Humanity when the local State fails to act.
An apology cannot be sincere unless it (1) names the wrongs in question; (2) accepts responsibility; and (3) undertakes a fulsome reparation of the wrongs committed.
The wrongs committed: –
The Report seeks to address Term of Reference (h) “Whether and under what circumstances, civilians, police officers and soldiers of the Jamaica Defence Force were shot and killed or injured during May 2010 in connection with the security forces seeking to effect the arrest of Christopher “Dudus” Coke on a provisional warrant in extradition proceedings.”
The “circumstances” of extrajudicial killings (which is our concern) opens the door for broad examination of whether these killings were planned or approved in advance by the Superior Commanders. The need for such a probe was obvious but the Commissioners were not interested. They chose instead to apply a wilful lack of interest in probity and to disregard a clear pattern of deliberate executions and wanton, reckless use of firepower on the part of the Security Forces.
The following are the few, very terse summations of their findings as far as the killing of civilians by the security forces is concerned:
“10.58. We have given our reasons in Chapter 9 for concluding that a number of persons were probably killed by members of the security forces.” [Note use of the term “probably”.]
“10.111 Having regard to our review of the evidence and findings in relation to civilian fatalities in the preceding Chapter, we are content here merely to identify those persons, and the dates on which and the sectors within which, their right to life may have been intentionally violated.”
Fifteen persons were so identified. In each case the Commission called for further investigation which in itself is problematic because of the failures of all investigating arms of the State and the strong likelihood that they can take it no further.
“10.112. Five other males were very likely murdered in the sight of Soldiers #1 and #3 in sector 1 on 24 May [These were soldiers who testified but requested that their names not be used and their images not be public shown. We wonder what risks they faced and from whom in publicly giving evidence.] However, having regard to the evidence presented, we cannot identify these persons, nor can we be sure that they are not included in the list of 15 above. It is possible that the 5 persons referred to by Soldiers #1 and #3 may have been among the following 7 persons who were probable victim of extra-judicial killings, namely, Kirk Allison, Dashard Page, Radcliffe Freeman, O’Connor and Orlando Brown, and the Grant brothers.”
The Report summarizes the evidence for the fifteen that “were probably killed by members of the security forces” and adds the five that were probably killed by policemen according to Soldiers #1 and #3 bringing the likely number to 20.
On the basis of the evidence the Report makes the following very important observations about extrajudicial killings:
“9.5. We have eschewed making definitive findings of fact in relation to allegations of extra-judicial killings and other criminal offences for four reasons.
(i) The Commission was not a court of law and, even though we permitted cross-examination of witnesses, we were not in a position to apply all the exacting tests of proof and rules of evidence such as would apply in a court of law.”
RESPONSE: A disingenuous claim. The truth is that the Commission not only permitted but conveniently and extensively relied on cross-examination as if it were indeed a court of law for information and in order to limit probe of security forces conduct. This was particularly evident when Senior Commanders testified. The tactic adopted was that any question not within the “rules” of cross examination was shut down. The adversarial nature of cross examination also served to intimidate and limit relevant information that could have been forthcoming from civilian witnesses. Indeed many potential civilian witnesses were so appalled by the harassment meted out to those brave enough to testify they were not prepared to come forward and be subjected to the same type of humiliation.
This was a fact gathering exercise, not a court of law, as the Commissioners acknowledge, and they therefore had broad latitude in how to solicit information. The fact that they chose to conduct the Enquiry as if it were a court of law not only shows bias and incompetence but, for the future, should be a wakeup call to the people of Jamaica: Never Again.
We should also add that residents who testified did not receive the quality legal representation similar to that provided to the security forces. [$71 million was paid by the State to lawyers representing the JDF and $49 million for those representing the JCF]. The only organization that truly represented the people was the Tivoli Committee which had very limited resources.
NB: We would also submit that if the Enquiry was not being run like a Court of Law the Convenor of the Tivoli Committee would not have been asked to leave for daring to challenge the biased treatment of witnesses, as if they were in a court of law, and for challenging the Commission’s ruling that he could not ask questions because he was not a lawyer!
(ii) In nearly all of the cases, there was no positive proof of identification of alleged wrongdoers.
RESPONSE: The wearing of masks was the greatest evidence of intent to commit illegal acts and could not have happened without the approval or knowledge of the most Senior Commanders – Police Commissioner Owen Ellington and head of the JDF Major General Stewart Saunders. They should have been held accountable for allowing the wearing of masks both as an indication of murderous intent and as a method of evading detection. To say that no one can be held accountable for illegal killings because there was no “proof of identification of alleged wrongdoers” is precisely what the Superior Commanders would have intended. The Commissioners decided without any probing, or without utilizing common sense, that the Superior Commanders did not approve or knew about the wearing of masks. As normally happens they chose to put the blame on those “who were supervising officers” (not including of course the Superior Commanders) who “ought to have put a stop to the practice.” The approach of the Commission was to erect a Chinese wall between “supervising officers” and Superior Commanders, thereby letting the Superior Commanders off the hook, while seeking to sanction “supervising officers”. Very convenient.
Incidentally, two soldiers whose identities were withheld testified to witnessing policemen killing at least five men. They supposedly gave statements towards the end of May 2010 “to the legal officer of the JDF” and a “L/Cpl as required by the protocols of the chain of command.” Nothing came of these statements in terms of them being passed on to the JCF etc. [It was told to me privately by an ex-soldier that soldiers who fired their weapons had great latitude in terms of what kind of reports they submitted in order to protect them from scrutiny in case they killed someone. This soldier admitted to killing at least ten men.]
(iii) The security forces adduced no evidence of possible defences to allegations. To that extent, we would not have heard both sides of the issue. It would therefore be inappropriate to make definitive findings of fact on the evidence of one side only. However, in reaching our conclusions, we paid regard to evidence which was unchallenged.
RESPONSE: Whose fault was it for not challenging the security forces about the allegations of extrajudicial killings? This is indeed a strange legal concept: an allegation is made, the trier of fact asks no questions of the accused, the accused offers no defence, because none is required, and the trier of fact consequently refuses to draw any conclusions claiming that the accused offered no defence. This is not only legally bizarre but is nothing but a brazen attempt to exonerate the accused, who are the superior commanders. They should have been confronted with the pattern of killings, the method and their command responsibility, etc.
Unchallenged evidence – an example: Adina Derby, dressed only in her panties and running in the street because her son had just been killed by security forces (surprisingly the Commission accepts that he was), passes a policeman and then receives a shot in the back. Adina says it had to be the policeman who shot her. The Commissioners rule that it could be a gunman and not the policeman. Further investigation required!! This is an example of unchallenged evidence that was treated negatively when in effect the reasonable conclusion to draw was that it was the policeman who shot her. If it was a gunman why would he shoot her and not the policeman, whose back would have been turned to him as well? Does it therefore mean that Adina Derby is not entitled to State compensation because the Commissioners have ruled that they cannot make a reasonable conclusion based on the overall evidence presented that she was shot by a policeman? There are many such examples of arbitrariness, subjectivism, and outright bias in favour of the security forces throughout this Report.
We should also add that there are instances when during the evidence gathering process the Commissioners and in particular the Chairman, Sir David Simmons, shows bias towards the Jamaica Defence Force. For example, a witness testified that a JDF officer, Major Garth Anderson, was present when a young man was killed by soldiers. This was the first officer of any branch to be so specifically named during the entire Enquiry. However on cross examination an error, due to language, was exposed in the examination-in-chief. This error did not however change the fact that the witness maintained that Major Garth Anderson was present when the young man was shot, and that Maj. Anderson subsequently sought persons to identify his body the following day. The Chairman subsequently ruled that there was mischief on the part of the Tivoli Committee which took the statement and referred the matter to the DPP who eventually ruled that there was no mischief. Having regard to several recommendations for further “investigation” this was the most egregious example of having absolved a JDF officer for his involvement in protecting his soldiers from the charge of committing an extrajudicial killing. The Chairman and his fellow Commissioners should hang their heads in shame.
(iv) “The Commission was made aware that Independent Commission of Investigations (INDECOM) is currently investigating some, if not all, of the very matters on which we heard evidence. In those circumstances, it would also be imprudent for the Commission to appear to be foreclosing those investigations by making definitive findings of fact.”
RESPONSE: The Commission was informed by the police during the Enquiry that in 2011 they turned over their investigative files to INDECOM. The Commissioners did not enquire from INDECOM as they should have, as to what had become of their investigations during that five year period. INDECOM volunteered no information as to what became of the files they received from the JCF. It would hardly be speculative to suggest that INDECOM has done nothing during that period in terms of investigation because they would be just as stumped by lack of ability to identify anyone, and inadequate forensics, etc. In addition, INDECOM appears to be no more committed to the concept of Superior Command Responsibility than the Commissioners were, and clearly has no intention of investigating these individuals.
In all instances therefore where the Commission deferred judgement on issues (Adina Derby e.g.), calling for further investigation, this was nothing more than making mockery of the dysfunctional nature of Jamaica’s criminal justice system. There is no more possible further investigation. The Commission for its part had no investigator and did no independent investigation. It was totally reliant on the JCF, JDF, INDECOM and the Public Defender in order to select witnesses. Any referral back to any of these organizations to further “investigate” is pointless. The evidence against the Superior Commanders is mountainous. This call for further investigation is just another of the ploys used by the Commissioners to take attention away from the Superior Commanders who must be specifically investigated and held accountable.
MINIMIZING THE SCOPE OF THE MASSACRE
By adopting a legalistic, courtroom trial style enquiry the Commissioners proceeded to reduce the “number of probable extrajudicial killings” from 43 to 20. Needless to say that this act possibly undermines the legitimacy of many who are entitled to compensation for the killing of their loved ones.
Explanation: The Public Defender’s Interim Report (Earl Witter) originally claimed that a minimum of 73 people were killed during the operation. [The residents estimate that as many as 200 were killed because bodies were burnt.] The Public Defender went on to claim that based on information gathered he estimated that perhaps about 43 were extrajudicial killings. No opinion was expressed on the other 30 but this doesn’t mean that their killings weren’t also security forces extrajudicial killings. The Commissioners have now reduced the number from 43 to 20 even though they did far less extensive interviews and information gathering than was done by the Public Defender in his initial report. As we said above they had no independent investigator, which should have been a requirement.
There was no probing of the basis on which the Public Defender arrived at that estimate; no attempt to contact those who had provided information for the Public Defender’s estimate so that these families would be part of any justice resolution. We should also be reminded that the Public Defender’s report was an interim one, meaning that it required more investigation, and is open to receiving more information.
The full import of this method of reducing the number of suspected extrajudicial killings from 43 to 20 (not to mention lack of concern about how the other 30 odd people were killed) minimizes the scale of the criminal blood lust unleashed by the security forces during those fateful days in May 2010. This was just one of the many ways in which the Commissioners tried to whitewash the massacre.
Consider this interview by Zahra Burton on the investigative programme 18 Degrees North with a policeman who was on the operation. The programme was aired during the period when the Enquiry was functioning.
ZAHRA BURTON: There have been rampant reports that there more than 70 people killed. How many people do you think were killed in that incident.
POLICEMAN: I counted 150.
ZAHRA BURTON: You counted 150 more than double the official count. How do you know this?
POLICEMAN: I was part of the mop up team. We went in, helped the soldiers, helped the BSI people (Bureau of Special Investigations) to take up people to go to different locations to carry out post-mortems on decomposed bodies. The 150 was not exactly from Tivoli itself. It was amongst Denham Town, Rema and also Tivoli.
This makes a mockery of the Commission’s cavalier approach to counting the dead.
WHAT WAS THE REASON FOR THE MASSIVE NUMBER OF DEATHS: WAS IT PART OF THE PLAN OR THE WORK OF ROGUE POLICEMEN AND SOLDIERS?
The Commissioners attached no particular importance to the pattern of killings. All 20 killings that they highlight took place within an area that the Security Forces had taken control of. Why would there be so many killings in a pacified area? We would argue that despite the formal claim by the Superior Commanders (Major General Stewart Saunders and Police Commissioner Owen Ellington) that respect of human rights was factored into their plan, the evidence suggest otherwise, that there was a deliberate plan to kill.
Factors used to prepare Security Forces psychologically for brutality despite supposed intent to respect human rights.
The following are some of the not so subtle factors that were used to psych soldiers and policemen into abusing residents and to regard the entire area as the “enemy territory”.
On Sunday May 23rd two or three police stations were burnt during the day by alleged Coke sympathizers. The one on Darling Street is very near to Tivoli Gardens, Lizard Town and especially Rasta City.
Response: Some residents have stated that Security Forces told them that Rasta City was burned in revenge: “oonu burn down police station so we a burn oonu out too.” The Commissioners showed no interest in probing the burning of Rasta City, including the allegation that people were burned alive. Tivoli Committee offered to show a video with a woman who claimed to see security forces burning Rasta City where she lived. They were not interested.
On said Sunday evening, May 23rd there was a public announcement at around 6pm! asking people in Tivoli Gardens to leave on buses to be provided by the State. This was requested by the Chief of Defence Staff, Major General Stewart Saunders.
Response: Several residents stated that Security Forces taunted them for not leaving on the buses. Claiming that they stayed behind to defend Coke and therefore deserved the brutal treatment received.
Offering to provide buses for thousands of people to leave their homes is not only problematic in terms of whether it was doable, but raises questions as to what was the military strategy which necessitated mass evacuation. Does this suggest a scorched earth policy as is usually done by the Israelis before launching their all out attacks on Gaza. Was a page being taken out of the Israeli playbook? The Tivoli Committee lawyer tried to ask this question of Saunders but was shut down by the Chairman. Certainly the use of mortars, plastic explosives and their own Big Boar gun is indicative of the fire power the JDF was prepared to use and did use.
Later on during said Sunday night (May 23), 2 policemen were killed on Mountain View Avenue.
RESPONSE: Though there is no proof that this attack had anything to do with what was happening in West Kingston, the Commissioners positively assert that these acts were carried out by Coke’s gunmen operating in the area. Those who asserted the connection were never challenged. In the same vein that the Security Forces Commanders saw this as an opening attack, the evidence suggests that it was used to send a message to the troops that the gloves would be off in the pending counter attack.
300 IMPORTED GUNMEN
Soldiers and police who participated in the operation were told that 300 gunmen had been imported into the area to fight for Coke.
RESPONSE: This was a significant number of men yet there was no challenge to the truthfulness of this evidence. It was supposedly based on “intelligence” which often times proved to be dubious if not contrived. This one smelled to the high heavens. Why was there no attempt to interdict the importation of so many gunmen into the area? The Police Commissioner should have been condemned for dereliction of duty. There was no attempt made to probe or connect the effect this had on Security Forces’ attitude to young men found in the area. Young men were routinely asked whether they lived in the area and if there was doubt many of them were killed. The rest were carted off to be interned at Seprod, Mobile Reserves or the National Arena. The Commission Report confirms the abuse by stating that young men, in violation of their constitutional rights, were indiscriminately interned. The Commission should have clearly stated that all of these men, illegally detained, are also entitled to compensation. Will the government compensate them?
WOMEN DRESSED IN WHITE
On Thursday May 21 women dressed in white demonstrated in the West Kingston area and near Gordon House (the parliament) declaring their support for Christopher Coke. It is instructive that this protest march was cited by all Superior and some Senior Commanders in their statements to the Commission of Enquiry, and with particular reference to a declaration by some women that they were prepared to die for Coke, as a signal for the beginning of the “threat to the State.” This was a view shared by others in the wider political ruling class, especially the former PNP minister of national security, Peter Phillips, who described the protest as a threat to the “democratic process in Jamaica and the rule of law.”!
Was there a plan to provoke? While the Enquiry was in session, Zahra Burton producer of the television investigative programme 180 North, aired her own investigation into the May 2010 massacre. The revelation below from a police officer who refused to have his identity revealed is very informative:
POLICEMAN: They developed a strategy called provocation, meaning that they would just drive around just for the Tivoli members to see members of the police, to provoke them to fire at us. Because we didn’t want to fire at them at first. Because the media had the police in a bad light already. So we entering into Tivoli would give the citizen more ammo to say that we are targeting them. So what we did was we developed a strategy called provocation. We get the media to see that they doing the sandbags, creating fortress against the police force for us not to enter. So all we did was drive around. Provoke them to fire at us. But they didn’t fire at us until later down into the incursion around the 20th into the 24th.
The question therefore is whether the burning of the police stations was a result of this provocation strategy and which therefore served as a convenient pretext for attack.
A former JDF officer confirmed to me that a “Flag March” was conducted on Sunday May 23rd. [(1) “That activity was a normal military exercise called “flag march” designed to test travelling in convoy by a large body of troops.” (2) “The Flag Marches were series of exercises that began as far back as in March 2010.” (3) “The green light for the operations was given only after the series of documented attacks on police stations in the vicinity of Tivoli Gardens which occurred on the morning of Monday 24 May 2010 [Incorrect – the burning took place on Sunday morning May 23d].”]
According to this JDF officer the burning of the police stations was the pretext and soldiers who were on the Sunday Flag march did not know that there would be an operation until the Monday morning when they were told of the burning of the stations. The shooting on Mountain View Ave would also have been part of the pretext. No evidence is forthcoming as to what precisely was told to the troops on the morning of the 24th before heading out to West Kingston and Tivoli Gardens. Police Commissioner Owen Ellilngton is one of those senior commanders who addressed the troops at Mobile Reserve. One can only speculate as to who used the term “kill kill kill” to motivate the troops. (See below
A great deal was made about barricades which were set up throughout West Kingston and especially in Tivoli Gardens. But if it is correct that the Security Forces engaged in provocative acts in order to precipitate responses that would justify their planned all out attack, it should not have been lost on the Commission that the barricades were set up for defensive purposes. Many ordinary residents were quoted in the media prior to the May 24 defending the setting up of barricades because of past bad experiences with security forces violently invading their communities. “It is just that our history has taught us that the state don’t rate people in Tivoli and Denham Town, so anything can happen, and we have to protect wi self”[Gleaner report of a resident explaining roadblocks].
The Commissioners were forced to acknowledge this in their report, stating that for “decades there have been allegations of extra-judicial killings levelled against the security forces and, in particular, the JCF. There also seems to be a pervasive distrust of the JCF among many citizens.” Rather than acknowledge these facts Security Forces witnesses portrayed the barricades as a declaration of war. They went as far as to make claims about “booby trapped” barricades. The fact is that the Commissioners did not ask for proof and none was provided that there were in fact booby trapped barricades. It was laughable when it became apparent that claims about barricades which supposedly had gas cylinders connected to the electricity would have been inoperable because electricity to the area was cut.
Kill Kill Kill and Kill
It is instructive to hear some more about planned killings from the unnamed policeman who spoke with Zahra Burton on her TV programme 18 Degrees North.
ZAHRA BURTON: 2010, Tivoli Gardens, Christopher “Dudus” Coke was wanted by the United States and he was holed up in the community. The residents of that community were defending him. Your force, your elite squad what was your role?
POLIICEMAN: The instruction that we got for Tivoli was to just kill, kill, kill and kill. Senior officers told us that they don’t have any space for any prisoners, so we must go there and get rid of everything that move down there. We even got the instruction that Dudus was nowhere there. But we had information that guns were there, we can’t find the guns, so kill anything that we catch moving down there.
180 North said it was able to confirm that the policeman was on the operation. He gave a statement to the Commission but he was never called to testify. This programme was aired while the Enquiry was in session and presumably seen by the Commissioners and others. Interestingly, rank and file policemen were not called to testify.
Orders to kill
The Commissioners heard from victims who testified that they were told by soldiers and police that they had orders to kill. One woman said she was told by a policeman that they had orders to kill “even the suckling pon de breast”. This 18 Degrees North interviewee’s claim was therefore not farfetched. Given that the Commissioners believe that of the seventy odd people who were killed, there is evidence to suggest that 20 were killed illegally in an area under military control, it seems reasonable to ask whether on the basis of probability and common sense that these killings could have been carried out without the express approval or knowledge of the Superior and Senior Security Forces commanders? Logic, commonsense, reasonableness and the balance of probability suggest that the Superior Commanders were complicit with the killings.
Zahra Burton then asked the logical question which was never probed by the Commissioners.
ZAHRA BURTON: Where were the directives coming from?
POLICEMAN: it was from the hierarchy of the Jamaica Defence Force and also at the JCF at the time. [Certain names were called by this policeman that was not used in the broadcast and so we cannot mention the names].
GOLD SILVER and BRONZE COMMAND STRUCTURE
The Superior Commanders bamboozled the Commission with description of their Gold, Silver and Bronze command structure which was set up to execute the planned operation, but which was clearly designed to insulate themselves from responsibility for whatever happened on the ground. The Commissioners conveniently fell for it by allowing Superior Commanders to give responses to questions about their knowledge of what was happening on the ground with answers such as “I cannot answer that question. The Bronze commanders can answer that one better. They were on the ground.”
The fact is that the Superior Commanders were immediately aware that atrocities were taking place — former Prime Minister Bruce Golding confirmed this. Did they therefore not have a duty to stop it and to punish those who were involved? The Commissioners conveniently chose to ignore this aspect of command responsibility, relying instead on a false Chinese wall built between Gold Commanders and those below them.
The Commissioners refused to probe whether the Superior Commanders had a responsibility to monitor implementation of their own plan. They even refused to take on Police Commissioner Owen Ellington’s bait: “You have an operation which is guided by an Operational Order and it is a pre-planned operation, meaning that you have time to assess risks, plan, allocate responsibilities, resource them and set up structures to monitor the execution”. Furthermore, according to Ellington “The Gold Command’s duties and responsibilities were, among others
*To ensure the highest levels of professionalism during the operation;
*To monitor execution of the operation and issues of safety, welfare and conduct.”
The Commissioners might have been conveniently blind to their responsibility to conduct a serious Enquiry but we the people cannot afford to be so blinded.
BRUCE GOLDING: Accepting Responsibility
Bruce Golding told the Enquiry that he accepted responsibility as Prime Minister for what happened though not “personally”!? For his troubles he was completely let off the hook by the Commission. No charges were recommended against him or adverse comments made despite his knowledge of what was happening on the ground and his duty to stop the massacre and to punish those responsible. Golding acknowledged during questioning that he had the power to call off the State of Emergency even if he had to go back to Cabinet. It was also brought out that he had powers under the Defence Act and as head of the Jamaica Defence Board to give “operational” instructions to the Chief of Staff of the JDF.
The implication of these powers is that when Golding told Ellington and Saunders that he would assent to their request for declaration of a state of emergency and, thereby giving them the green light to begin the operation, he also told them that the condition was that the rights of innocent residents, women and children in particular, should be protected. This was an implicit acknowledgement that all three had a legal duty to ensure that human rights were respected and protected.
Shockingly there was no special probe as to what all three did personally to protect human rights despite taking responsibility for the disastrous results, explicitly in the case of Golding and Saunders, and implicitly in the case of Ellington.
The widespread, criminal behaviour of the police and soldiers in terms of the treatment of residents – killings, torture, looting, destruction of property – suggest that such behaviour could not have happened without the approval and certainly not without the knowledge of the Superior Commanders. There is evidence that they knew what was happening. It is inconceivable to accept that they planned the operation with protection of human rights in mind but yet a massacre was the exact opposite of what they planned. They have to be held accountable. The Commissioners must be condemned for the contemptible role they played in facilitating impunity for heinous crimes.
DESTRUCTION OF PROPERTY
The Commissioners correctly found that there was widespread, deliberate and unnecessary destruction of property during the Search and Clear exercise by both the JCF and the JDF. It should be noted, however, that the words “deliberate and unnecessary” are our words not theirs. The witnesses described many instances of deliberate and unnecessary destruction of property and the Commissioners seem to agree with them.
The Ministry of Labour and Social security made ex-gratia payments to 2,520 persons for property damages. We know for a fact that there are perhaps hundreds more whose property damages were not recorded for one reason or another. The Commission failed to unearth this fact. This could potentially cause a problem for these residents if and when the matter of compensation is finally agreed to by the government.
Ministry of Labour and Social Security statistics on property damage
Totally destroyed: 94
Severely damaged 200
Minor damage 1,505
Other damage 721
The problem with the Report, in terms of destruction of property is that it constantly hedges on describing the destruction for what it was: a planned and deliberate assault on the people and their property. Sometimes when the evidence is inescapably criminal, they call for more investigation – to be done by whom? INDECOM? We have already exposed that as a farce.
This wanton and malicious destruction of property must be described for what it was: an act of terrorism, no less than the deliberate killings. It is our understanding that there was prior training for this Search and Clear exercise. If the intention was to respect property then the training would have emphasised this.
Saunders and Ellington must be held accountable. There was too much time for planning for this kind of treatment not to have been avoided. And so too must Bruce Golding be held accountable. He was told by his constituents that their property was being destroyed by soldiers and police and he did absolutely nothing. He rebuked no one. This is indeed one of the clearest examples of the fact that these three Superior Commanders have a case to answer for the terrorist acts committed against innocent civilians
Finally on this matter of property destruction it is worth noting that while in individual cases the Commission accepted that mortars were fired into Rasta City (1 McKenzie Drive) or areas near there such as Wilton Hill Drive, there was no attempt to explore the contention that Rasta City was deliberately set afire by the security forces. This was a serious shortcoming.
UNLAWFUL DETENTIONS: The Right to Liberty and Protection from Arbitrary Arrest or Detention
The Commission found that five to six thousand men were illegally and arbitrarily detained. “There was little evidence that detainees were told the reasons for their detention. Failure to give reasons for detention is a breach of section 15(2) of the Constitution.” The reason given by Commissioner of Police Owen Ellington for this arbitrary detention policy was that they were removing men from a “hot zone”. The Commission found this explanation unconvincing. Those other on-the-ground Commanders, both JCF and JDF who carried out the policy, also gave conflicting or unconvincing explanations for the detentions which did not change the minds of the Commissioners that the policy was arbitrary and violated constitutional rights.
Shockingly, however, that was the end of the matter for the Commissioners. There was no recommended sanctions for the Superior Commanders who planned the operation and who obviously factored mass detention as part of their strategy. It was as if violating constitutional rights is a trifling matter. There was also no focus on Prime Minister Bruce Golding’s political responsibility to correct the Security Forces commanders as far as this constitutional violation or human rights was concerned. He bears as much responsibility for abuses suffered as do the Security Forces commanders. How could he have escaped sanction from the Commission?
The Commissioners failed to probe the depth of the torture that was part and parcel of the detentions. Rev. Herro Blair and Jasliin Salmon, the head of the Red Cross, witnessed treatment tantamount to torture at the Seprod detention centre.
Had there been an attempt to probe the matter of torture it would have been discovered that not only was there torture at Seprod but that men were being taken out and killed, according to some of the detainees. The Commission was not interested in sanctioning the Superior Commanders for human rights abuses and so were not interested in fully probing the extent of what transpired at Seprod.
The issue of Seprod (a private business complex) used not only as a detention centre but as a place of torture and executions doesn’t stop there. A particular high rise building at Seprod was used to host JDF snipers who terrorized people in the southern section of Tivoli Gardens. There was no attempt to enquire into this aspect of the use of Seprod even though there was suspicious testimony from a JDF officer that flare mortars were fired at men in bushes near to Seprod. We submit that the firing of flare mortar supposedly in response to men firing at snipers on top of Seprod was most likely because the firing heard was that of security forces taking men out of the detention center and killing them in nearby bushes. This is what detainees allege. The other matter is whether Seprod, a private company, should not also be compelled to compensate those who were tortured and killed on its property.
Kingston Public Hospital/Jubilee Hospital/The Blood Bank
The JDF admitted during the Enquiry that it had snipers on top of the Kingston Public Hospital (KPH), the nearby Jubilee Hospital (a maternity hospital) and the Blood Bank which is several hundred metres away. There are allegations that many people were shot and killed or severely wounded by snipers on top of these buildings. There was no special probe of these snipers in terms of who they were, how many rounds they fired and whether they submitted reports about these firings as they were required to do. The Chairman of the Commission, ignorant of international humanitarian law and military best practices, scoffed at a question which suggested that it was illegal to place such snipers on hospitals which should be kept neutral during armed conflicts. The allegations concerning random and criminal firing at civilians by snipers suggest that they could have provoked armed resistance and thereby put patients in these hospitals at risk. This is the reason why military best practice is to keep these institutions neutral. Clearly the Commission needed to be guided by a legal expert rather than be subjected to the biased whim of the Chairman.
This was a concept introduced into the Enquiry by the Tivoli Committee and scoffed at by the Commissioners. The Terms of Reference, however, while not explicitly using the term, do implicitly acknowledge the concept. The Commission is tasked with enquiring into:
(k) the chain of command in relation to the decisions concerning the operations by the security forces in Tivoli Gardens and related areas during May 2010, and the respective responsibilities of each person in that chain of command;
(l) whether any dereliction of duty or unlawful conduct is attributable to any person or persons in that chain of command in connection with the decisions concerning or the execution of the operations by the security forces in Tivoli Gardens and related areas during May 2010 and, if so, to which person or persons, and the nature and extent of such dereliction of duty or unlawful conduct;
The JCF Use of Force policy which was referred to on several occasions during the Enquiry also points to the concept of Command Responsibility:
30: “Supervisory members will be held responsible if they know, or should have known, through the proper discharge of their duties, that officers under their command are resorting, or have resorted, to the unlawful use of force, and they did not take all measures in their power to prevent, suppress or report such use.”
The Peace and Justice Initiative Towards Implementation of the ICC Statute summarizes Command Responsibility as follows:
“In sum, the doctrine of superior or command responsibility could be defined as follows: A superior, whether de jure or de facto, may be held criminally responsible under that doctrine in relation to crimes committed by subordinates where, at the time relevant to the charges, he was in a relationship of superior-subordinate with the perpetrators, knew or had reason to know (or, in the case of military superiors at the ICC, “should have known”) that these crimes had been committed or were about to be committed and, with and despite that knowledge, wilfully and culpably failed to prevent or punish these crimes.”
The evidence seems to suggest that human rights abuses were planned i.e. extrajudicial killings (soldiers and police telling this to residents); destruction of property; mass detentions; and the use of mortar. Beatings and torture were necessary ingredients of this planned abuse of human rights, while looting became a matter of personal choice in an environment of lawlessness.
The Commission failed to assess the individual responsibility of the three Superior Commanders – Golding, Ellington, Saunders – for the crimes committed. Saunders is criticized for the “reckless” use of mortars but no criminal charges are recommended; Golding for making public his decision to sign the extradition warrant; and Ellington for his supervision of the collection of “crime scene” evidence. In effect a few raps on the knuckles.
In effect this Commission has been a complete failure either in terms of holding Superior Commanders accountable. They have in effect been unable to critique the inbuilt structure of impunity and have contributed nothing towards preventing such a massacre from happening in the future.
We therefore close our critique of the report by responding to some of their 15 recommendations.
The Commission calls upon the government to “apologize in Parliament to the people of West Kingston and Jamaica as a whole for the excesses of the security forces during the operation. The Government is in the last resort, responsible for the conduct of the security forces.” [The question that logically arises from this admission is whether Prime Minister Bruce Golding as head of the government was not then “responsible” for the conduct of the security forces”? How come his responsibility was never focused on in the Report?]
Contradiction: And how does the government craft a genuine apology when according to the Commission the “operation was justified.” Was a different approach possible? Should the government apologize on behalf the Superior Commanders who should but were not held directly accountable for the excesses? The quandary for the government in crafting this apology is that it is being done on behalf of “some [nameless] members of the security forces” who were responsible for “disproportionate, unjustified and unjustifiable” excesses.
2. Counselling for traumatised persons
The Report mentions that according to ECLAC (European Commission for Latin America and the Caribbean) some “2500 children were witness to and affected by the events of the 24 May.”
Response: We believe that the Commission should have followed international best practices and recommended Compensation and Reparations which would have covered these traumatised children and other forms of trauma suffered by others including adults.
3. Compensation for Victims
“An apology alone will not meet the justice of the legitimate claims of the people of West Kingston and related areas….[a]ccordingly, we recommend the establishment of a Compensation Committee with two broad mandates”: (1) to compensate for “damage to property and business” and (2) to compensate “injured persons” and “personal representatives of deceased persons”. Furthermore, that the exercise should be carried out “promptly” and completed “within 9 months.” The Compensation Committee to be chaired by a retired judge or a senior attorney-at-law “experienced in the assessment of compensation for personal injuries and death.”
Response. Having made this recommendation to the Commission we are obviously in complete agreement that Compensation and Reparations must be made to the victims. However, at this time of writing we take note of the fact that the government is not moving “promptly”. No Compensation Committee has been set up as of now. The Commission recommended that the matter be resolved in nine months – supposedly within nine months of its appointment. We say that the matter must be resolved as quickly as possible so that the government will be in a position to include the monetary value of compensation in the next 2017/20018 budget.
In making this Compensation and Reparations recommendation to the Commission, we also made it clear that any Committee that is set must include representatives of the victims. We have already formed the West Kingston Compensation and Reparations Committee and are ready to play our part.
Compensation and Reparations is far more complex than is recognized since there are a number of people who were not captured in the original survey carried out by the government in 2010. We are also demanding compensation for those who were illegally interned; children who were traumatised, etc.
Finally, we take note that the Commission is recommending that the Compensation Committee be chaired by a retired judge, or experienced lawyer. The experience is that those connected to the legal system tend to be too legalistic and pro-State as was observed in the WKCEO. What we need most are people with human rights background and who understand international best practices in situations where there is an attempt to resolve State violence as was experienced in 2010. That is why we insist that there must be a victim’s representative on any Committee set up by the government.
4. Waiver of limitation period (3 years in the case of death and 6 years in all other cases)
It is a UN recommendation that even where a settlement is reached with victims of State violence, this should not preclude the victims from pursuing other legal claims. The government must explicitly recognize this in any apology and attempt at Compensation and Reparations. It is only by direct negotiation with the victims should this principle be altered.
PART 2 – PREVENTION
In this Section of the Commission’s Report recommendations are offered which purport to help prevent “similar events” from happening again. These recommendations however are of little value because they assign responsibility for the 2010 Security Forces terror — extrajudicial killings, use of mortar to terrorize, criminal destruction of property, unconstitutional mass detentions etc. – on certain “named officers” or those against whom “adverse findings” were made.
“If their careers are negatively affected then similar behaviour may be discouraged.” Hence they recommend “administrative reviews” of these named police officers leading to relieving them “of any operational commands that they may hold and that they be prohibited from servicing in any special operations units.” Note, however, according to the Commissioners that this should not be seen “as punishment but as a protective measure against similar abuses of power in future operations.”
The Report goes on to say however that though there are adverse findings against Police Commissioner Owen Ellington and Chief of Defence Staff Major General Stewart Saunders no administrative charges can be levelled against them because they no longer hold their respective positions! There is not the slightest consideration given to whether any of those “adverse findings” constitute criminal acts which could fall under the purview of the country’s criminal laws, such as the Terrorism Prevention Act. In effect they are let off scot free.
The adverse findings are against SSP Graham, SSP Budhoo, DSP Tabannah, Sgt. Waugh, Sgt. Pratt. ACP Gause and DSP Turner we should point out are no longer in the JCF and thus no action can be taken against them.
Dereliction of duty
SSP Graham was censured for not ensuring “that a record was made of the locations of bodies” etc.
SSP Budhoo was censured for not ensuring that DSP Tabannah and Sgt. Waugh carried out his instructions to retrieve bodies.
DSP Tabannah was censured for not making a “record of the information and have it handed over to the appropriate authority within the JCF.”
Sgts. Waugh and Pratt censured for the way they collected bodies – it did not “reflect well.”
ACP Gause was censured for “not moving expeditiously to commence investigations into the locations and deaths of civilians.”
The adverse findings against the above-mentioned police officers are ridiculous when compared to the fact that their ultimate commander was Police Commissioner Owen Ellington who is not held accountable for their conduct of those whom he commanded generally. He certainly didn’t punish them or seriously investigate their conduct. What the Commissioners fail to acknowledge is that given the history of crime scene disturbance as part of JCF policy to ensure impunity for police extrajudicial killings, not only would it have been normal for this to have taken place in 2010, but it would also have been normal for the police commissioner not to have cared much about such so-called dereliction of duty. The Commissioners completely missed the impunity process for extrajudicial killings and rather than focus on how and why this historical policy manifested itself n 2010 they go on to make other recommendations to “reform” the JCF and the JDF which are beyond their competence.
Mobile Reserve units accused of extrajudicial killings were identified by the Commission based on evidence provided at the Enquiry. No public exposure.
Recommendation: Mobile Reserves should be subjected to “special external oversight arrangements”.
Response: The paramilitary Mobile Reserve has historically committed numerous acts of extrajudicial killings. “Oversight” is not the issue. It is the policy of extrajudicial killings which has to be addressed.
Use of Weapons Systems: Suggestion that deployment of certain weapons systems should be guided by a policy laid down by “group of competent persons.”
Response: The Commission is of course referring to its adverse findings against the use of mortar. We will deal with this below missing from the picture is the fact that there were other questionable weapons which were deployed during the operation which were never discussed or questioned.
The JDF admitted that it deployed its own Big Boar gun. There was no probing as to why the weapon was deployed, where it was stationed (Seprod? Tivoli Gardens High School?), how many rounds were fired, and if so why was it used, etc.
The JDF deployed a helicopter gun ship. There was no probing as to how many rounds were fired from that helicopter and the circumstances under which rounds were discharged. Also, what was the tactical basis for the deployment of this helicopter? Why was it not used against gunmen supposedly on top of buildings, etc?
The Commission condemned the use of Mortar but described it as “reckless” rather than criminal. It then recommends that future use of Mortar should be in accordance with “contemporary best practice” and consistent with “international humanitarian law”. However, the question that arises is why should the 2010 lack of compliance with “contemporary best practice” and “international humanitarian law” be forgiven? Why was no criminal prosecution recommended? Also, their recommendation that future use of Mortar should be in keeping with “contemporary best practice” and “international humanitarian law” does not address what sanctions should apply if these are not followed. This is again another example of either the Commissioners’ lack of grasp of the gravity of the issue or their not so transparent attempt to assist the Jamaican State in whitewashing its terrorist attack against its citizens.
The letter sent to the Commission by 118 Tivoli residents also recommended that the government ratify the Statutes of the International Criminal Court so that the ICC can step in should the State in the future refuse to prosecute Crimes Against Humanity or terrorists acts against the people. This is one of the most positive ways of discouraging future terrorist acts as happened in 2010. The Commission completely ignored the residents’ recommendation for ICC ratification.
Apart from criticizing former prime minister Bruce Golding for publicly revealing that his government would sign the Coke extradition warrant and thereby triggering violent events, there was no concern expressed with the implications of Golding’s Superior Command Responsibility. It was pointed out by lawyers for the Tivoli Committee and the JDF that Section 9 of the Defence Act gave Golding operational command over the JDF. Golding denied the importance of that section and the Commissioners discouraged further probe. However, they now refer to the said act in their Report saying that in the future the “CDS (Chief of Defence Staff) should utilize the procedure for consultation with the Prime Minister as provided in Section 9 of the Defence Act before resorting to the use of mortars or similar weapons.” There could not be a more positive admission that Golding had Superior Command Responsibility for the JDF. The implication of this is lost only on the Commissioners.
The Tivoli Committee took the position at the start of the Enquiry that it was set up to whitewash the 2010 massacre – the worst since the 1865 Morant Bay Massacre.
What do we mean by whitewash? Commissions of Enquiry are oftentimes set up by governments to investigate egregious acts of abuse or outright violence by the State. The supposed intention is to rectify the wrongs committed and to prevent them from happening again. From the State’s point of view it is important that it doesn’t appear to be above the law — moral legitimacy and consensus of rule is far better than rebellion. Neveretheless, the State in essence, is as an instrument of violence to maintain class rule – in our case the capitalist class – and as its raison d’être it must always maintain that right to use violence to defend itself or to repress those it sees as a threat. Those whom it appoints to sit on Commissions of Enquiry – mostly lawyers, ex-judges, academics, etc. — must share that view whether explicitly or implicitly when appointed. This was the case in 2014 in terms of those selected hence the approach adopted and the results. The right of the State to use violence without serious sanction is deliberately left intact and never sanctioned. This is the essence of the WCCOE report. This is what we call a whitewash.
For decades, the Jamaican State has sanctioned police extrajudicial killings as a policy. Senior Commanders are never held accountable even when it is crystal clear that they explicitly defend and encourage policemen to carry out extrajudicial killings. There have even been newspaper reports about death squads. Several policemen are now before the courts for the acts stemming from being part of a police death squad.
The political directorate beginning with prime ministers usually maintain an indifference and are never called upon to account for their political and legal responsibilities where this matter of police killings is concerned. The justice system is dysfunctional and not a countervailing force in terms of bringing State officials to book.
We therefore end by summarizing the evidence brought out in the Enquiry against the Superior Commanders. The Tivoli Committee continues to insist that these individuals have a case to answer before the Jamaican courts on a charge of terrorism. We will ourselves use private prosecution to make the case, failing which we the people must demand that the government refer the matter to the ICC.
SUMMARY CHARGES AGAINST BRUCE GOLDING – Executive head of State
As prime minister and to whom the minister of national security reports, as well as head of the Defence Board, Golding would have known that the heads of the security forces were putting a plan in place to “capture” Coke should he, the prime minister, decide to sign the extradition warrant.
In agreeing to declaration of a state of emergency thereby giving the green light to the planned operation requested by the heads of the security forces, Golding specifically asked them to ensure protection of the human rights of residents – especially women and children.
In a short time after the operation started he was made aware by residents that “bombs” were falling and that extrajudicial killings were taking place.
He was able to confirm this by asking Rev. Herro Blair and head of the Red Cross, Jaslin Salmon to investigate and who confirmed that human rights abuses were taking place.
Golding also said in his May 25 public statement that “Police report that 26 persons are confirmed dead but it is likely that the number is higher. It is not yet possible to determine the precise circumstances in which these persons were killed. More detailed investigations including eyewitness statements will be required and the most thorough investigations will be carried out.” The fact is that as the Enquiry unearthed evidence that the investigations were not prompt and were far from thorough. Golding had a duty to demand a thorough investigation given that he had assured the public that this would happen. He also had the power to instruct the JDF to turn over all relevant information being sought by the Public Defender. He was as detached as all prime ministers have been in terms of their responsibility to protect the constitutional and human rights of citizens vis a vis the security forces..
Bruce Golding raised no public alarm about the ongoing massacre, nor did he sanction or publicly criticize the heads of the security forces. He famously said during the Enquiry that he had confidence in them “then”, and confidence in them “now”!
Bruce Golding had the power to respond in many ways including to call off the operation; to end the state of emergency; to discipline the heads of the security forces, etc. He did nothing.
As political head of State he also had a responsibility to address the unconstitutional mass detentions. He did nothing. [The Commission should have sanctioned minister of national security, Dwight Nelson, for not monitoring the detentions and curfews which required his signature. There is no evidence that Golding had a discussion with Nelson about this.]
Bruce Golding knew that terrorist acts were being committed by the security forces against thousands of residents in West Kingston. He didn’t try to stop it. And he punished no one. As the THE Superior Commander he should be tried for terrorism under Jamaica’s Terrorism Prevention Act, or be referred to the ICC for prosecution.
The Commission of Enquiry refused to explore any of the above issues.
SUMMARY CHARGES AGAINST POLICE COMMISSIONER OWEN ELLINGTON
Police Commissioner Owen Ellington testified that as far back as August 2009 he and Chief of Defence Staff, Major General Stewart Saunders started to plan their eventual May 2010 operation in Tivoli and the wider West Kingston.
Ellington gave a detailed outline of his command structure — Gold, Silver and Bronze commanders — and their responsibilities. He emphasized that during the planning stage the JCF Human Rights and Police Use of Force and Firearms Policy (HRPUFFP) was stressed to all and sundry. He goes as far as to say that “all members of the JCF who participated in the operation were briefed by the Commissioner of Police on the provisions of the Policy on Human Rights and Use of Force. These members were constantly reminded of these provisions and the necessity to adhere to them during the daily briefings.”
The Commission findings about human rights violations are devastating and we say simply that Ellington has to be held accountable. He had a duty to monitor, to stop the abuses and to punish.
He knew that abuses were taking place and he neither stopped them nor punished anyone.
The Commission Report essentially concurs with our assessment of Ellington’s responsibility for the massacre. They found that he failed to “maintain internal discipline through the chain of command. When, subsequently, there was no alacrity in systematically investigating complaints of killings or to review incidents as is required by the JCF’s own rules and procedures and international best practice, then, in our view, there is an even greater failure of leadership.”
This is a damning assessment but not as shocking as the fact that the Commissioners could find no possible punishment for such criminal behaviour: “In our judgment, CoP Ellington should have been held administratively accountable for weak superintendence of the JCF in May 2010. “
First of all – “found administratively accountable” by whom? After all he was the police commissioner! And what does “administratively accountable” mean? What is most shocking, however, is that since he is no longer a member of the JCF the Commissioners believe that the matter is dead.
This is indeed one of the most glaring indictments of the incompetence of these Commissioners.
The evidence is overwhelming. Ellington should either be tried under Jamaica’s Terrorism Prevention Act or be referred by the government to the ICC for investigation of having committed Crimes Against Humanity.
SUMMARY CHARGES AGAINST CHIEF OF DEFENSE STAFF MAJOR GENERAL STEWART SAUNDERS
The CDS Major General Stewart Saunders described the plan worked out with Police Commissioner Owen Ellington to arrest Coke as an “internal security type operation.”
Military conduct in an internal security operation is guided by both domestic law and international law.
As for domestic law this is the Terrorism Prevention Act (2005). The TPA (Section 3 –(3)) specifically states that a terrorist act as defined is committed by the “military forces” during “an armed conflict and, at the time and in the place of its commission” if it is not in “accordance with international law applicable to the conflict” or “other rules of international law.”
The basic international law which guides internal military conflict carried out by “military forces” is the Geneva Convention and its Protocols.
International law prohibits murder, looting, mass destruction of property, torture, and the use of indiscriminate fire such as mortar in a civilian residential area.
The TPA refers to death, serious bodily harm, endangering “a person’s life, or the health or safety of the public or any segment of the public”, and causing “substantial property damage, whether to public or private property.” And, any “person who, directly or indirectly, knowingly instructs any person to carry out a terrorist activity commits an indictable offence.”
Major General Stewart Saunders must take responsibility for all these terrorist acts even as he has admitted that he ordered the use of mortar.
Major General Stewart Saunders also took responsibility for the ordering of buses to take residents out of Tivoli which created an impression among soldiers and police that those who did not leave did so because they were staying behind to defend Dudus. Many of those who stayed were consequently subjected to brutal treatment. As we have pointed out before this was the same tactic used by the Israelis in regard to the Palestinians in Gaza. Those who did not leave were treated as Hamas collaborators and indiscriminately bombed.
According to Saunders, while “preparing to launch the Operation, I asked the Commissioner of Police to use his office to arrange public transportation for all law abiding citizens in Tivoli Gardens who wish (sic) to leave prior to the launch of the operation to do so. There were concerns as intelligence reports had indicated that persons, inclusive of imported gunmen, who had by now wanted to leave the community were not allowed to do so and some had been shot and killed in order to ensure compliance with the requirement to defend Mr Coke.” The Commissioners ruled that there was no reliable evidence to prove that anyone was killed because they wanted to leave thereby discrediting the rationale provided by Saunders!
Saunders also testified that according to “intelligence” up to 300 gunmen had been imported into Tivoli Gardens. No real proof of this was ever presented to the Enquiry even though this seemed to have been accepted by the Commissioners. But as we have suggested elsewhere many young men who were not from Tivoli for one reason or another were treated as imported gun men and many were either killed on the spot, tortured and or illegally interned.
Saunders has to take responsibility for using false intelligence, or disinformation for psyching up soldiers and policemen to terrorize young men who were supposedly either defending Coke or were imported gunmen.
Saunders planned the operation and must take responsibility for the use of snipers to terrorize residents. Many people were killed or injured by these snipers.
SNIPERS ON TOP OF HOSPITALS
According to the UN Geneva Convention hospitals should be treated as safety zones or neutral zones. We submit that by putting snipers on top of the Kingston Public Hospital, the Victoria Jubilee Hospital and the Blood Bank, the JDF and specifically Major General Stewart Saunders as the commander, put all patients and medical staff at risk by making these institutions a combat zone. This decision shows bad judgement and recklessness especially when the evidence is that civilians were shot by snipers perched on top of these hospital institutions.
It is estimated that JDF personnel fired over 7,120 rounds of ammunition. And its General Purpose Machine Gun fired over 770 rounds. It stands to reason that if Military Rules of Engagement policy stipulates that soldiers can only fire at a sighted target then 7,120 rounds is highly excessive, considering that only 74 people lost their lives. The Area of Operation would have been under control by late afternoon on Monday May 24. It stands to reason that indiscriminate firing was the hallmark of the operation, designed to terrorize. Unless Major General Stewart Saunders can give a satisfactory account for the rounds fired then as commander he has to be held accountable for the terrorist acts committed by the men under his command.
NO INVESTIGATION NO ONE DISCIPLINED
Prime Minister Bruce Golding complained to Major General Saunders about allegations of abuses committed by the men under his command. So too did the Public Defender amplify these complaints through written communication. To put it bluntly, the Public Defender complained that he was stonewalled by the JDF in terms of his investigation into the allegations of abuse.
Saunders must take responsibility for the lack of cooperation received by the Public Defender from the JDF.
As of October 2010 when Saunders retired from the military there was no evidence of any investigation into any of the serious allegations, and which resulted in any punishment. Saunders has testified that he got no reports of any wrong doing on the part of his men – ipso facto there was no wrongdoing.
SAUNDERS DEFENDS HIMSELF
According to Saunders “The loss of life under any set of circumstances is deeply regretted but I am confident in the fact that I had no choice but to take the steps that I did as Chief of Defence Staff of the JDF, to protect and maintain the integrity and survival of a democratic, safe, and law abiding Jamaica.”
Given the allegations against JDF soldiers which Saunders did not investigate — looting (more than a million dollars allegedly stolen by soldiers under his command); beatings (Oneil Smith, for example, kicked on his foot causing severe damage); verbal abuse; mortar attacks against residents; killings; indiscriminate firing of weapons causing terror; etc. — Major General Stewart Saunders is in effect saying that these are the measures he has no regret in using to “maintain the integrity and survival of a democratic, safe, and law abiding Jamaica.”
Saunders makes a mockery of what a democratic, safe and law abiding Jamaica means to most Jamaicans.
Saunders was expected to use professionalism in conducting this “internal security operation” instead his methods appear far worse than those against whom the operation was conducted.
Major General Stewart Saunders has to be held accountable for the human rights abuses committed by men under his command. This is demanded by standards of local and international law.
The Tivoli Committee