Commission of enquiry not adequate for Tivoli incident

Soldiers patrol Tivoli Gardens during the May 2010 unrest which left at least
73 dead.
Three years after the security forces’ operation in Tivoli, which
resulted in the deaths of at least 73 people, some Jamaicans and
so-called human rights organisations still do not recognise that what
happened was a crime against humanity, which requires a special
investigation of those who had command responsibility for the
operations.
The typical Jamaican commission of enquiry (COE) is not an adequate tool for investigating crimes such as these.

Command Responsibility
Article 28 of the Rome Statute of International Criminal Court (ICC),
which Jamaica signed but has not yet ratified, defines “command
responsibility” in the following way:
In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:
(a) A military commander or person effectively acting as a military
commander shall be criminally responsible for crimes within the
jurisdiction of the Court committed by forces under his or her effective
command and control, or effective authority and control as the case may
be, as a result of his or her failure to exercise control properly over
such forces, where:
(i) That military commander or person either knew or, owing to the
circumstances at the time, should have known that the forces were
committing or about to commit such crimes; and
(ii) That military commander or person failed to take all necessary and
reasonable measures within his or her power to prevent or repress their
commission or to submit the matter to the competent authorities for
investigation and prosecution.
(b) With respect to superior and subordinate relationships not described
in paragraph (a), a superior shall be criminally responsible for crimes
within the jurisdiction of the Court committed by subordinates under
his or her effective authority and control, as a result of his or her
failure to exercise control properly over such subordinates, where:
(i) The superior either knew, or consciously disregarded information
which clearly indicated, that the subordinates were committing or about
to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii) The superior failed to take all necessary and reasonable measures
within his or her power to prevent or repress their commission or to
submit the matter to the competent authorities for investigation and
prosecution.
It is absolutely clear, according to this definition, that those who had
major command responsibility for the Tivoli operations, have some very
challenging questions to answer. None of their defenders or apologists
can deny that they had the responsibilities outlined above.
The same criteria were used to judge Egypt’s Hosni Mubarak and
Guatemala’s Efrain Rios Montt, who were both unsuccessful in defending
themselves against command responsibility charges. They are now in
prison where they will likely spend the rest of their lives. Why should
any less scrutiny be placed on their Jamaican counterparts who face
similar charges?
Jamaica has a well-known record of allowing those responsible for extrajudicial killings to go free.
First, those who have command responsibility for extrajudicial killings
are never implicated; it is always the individual policeman and soldier
who is investigated.
Second, eyewitnesses to these killings are routinely ignored so long as
the police use the standard claim of a “shootout”. And even when there
is overwhelming evidence, such as a videotape showing that there was no
shootout, the State is still unable or unwilling to convict.
The same tact is now being applied in regard to the 2010 Tivoli
incident. Many would like to argue that the people who died were
“casualties of war”, collectively causing it upon themselves because of
gunmen in their midst who supposedly declared war on the state. In
other words, the deaths are a mere inconvenience.
Crimes Against Humanity
Consequently, even though a prima facie case can be made that this was
an illegal and unnecessary war, that crimes against humanity were
committed (the Public Defender implies that this was so even though he
refused to be explicit), there are those who, rather than wanting an
effective investigation into the killings, are seeking the mere
formality of an enquiry which is predestined to exonerate the State.
ICC definition of crimes
against humanity
According to the ICC statute, “crime against humanity” means any of the
following acts when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of
the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(d) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(e) Torture;
(f) Other inhumane acts of a similar character intentionally causing
great suffering, or serious injury to body or to mental or physical
health.
In other words, “odious offences that constitute a serious attack on
human dignity or grave humiliation or a degradation of human beings.
They are not isolated or sporadic events, but are part either of a
government policy (although the perpetrators need not identify
themselves with this policy) or of a wide practice of atrocities
tolerated or condoned by a government or a de facto authority”.
Investigation
Three years on, there has been no investigation which can result in a
criminal prosecution. The Bureau of Special Investigations did not
investigate or prepare a case to take to the Director of Public
Prosecutions (DPP). This is a major indication that the State has no
intention of prosecuting those who allegedly committed serious crimes.
The Office of the Public Defender, which is not a body set up to do
criminal investigations, was preoccupied with preparing a document for a
commission of enquiry, which is not the same as preparing a case for
prosecution. The Independent Commission of Investigations (INDECOM)
cannot investigate at this late stage.
So, those who are clamouring for a commission of enquiry — even with
consultation over the terms of reference — naively or conveniently
forget that it is not designed to conduct criminal investigation which
can lead to prosecution. These are usually to guide future
administrative reform.
Historically, dating back to the COE investigating Governor John Eyre’s
command of the Morant Bay massacre, all that was recommended was that he
be recalled to England. It was the Jamaica Committee formed by English
people with a social consciousness, which made attempts to put Eyre on
trial for what were crimes against humanity.
The 2001 Tivoli enquiry was a total farce. But in the final analysis, it
is the DPP, acting on any report received (whether from the police, a
COE, or citizens) who — according to statute and precedent — will
start the process all over again, by referring it to the police who
failed to investigate in the first place, and are still incapable of
investigating.
Because the concept of “crimes against humanity” and “command
responsibility” are not part of the country’s legal code, referring such
matters to the DPP is a futile endeavour.
According to Jamaican legal precept, the DPP only goes after individual
soldiers and policemen, who are individually liable for their actions.
To go after those who had command responsibility would require a
paradigm shift in legal practice or ratification of the statutes of the
ICC. Some would argue that there are UN conventions that Jamaica has
signed which would allow for greater latitude in prosecuting such
crimes, but the point has been made.
Can we afford what appears to be a planned, sinister, and criminal
attack on a community designed to shore up the sagging fortunes of a
failed and disgraced politician to go unpunished? Can we afford to
allow the State to step up the policy of extrajudicial killings to a new
art by committing crimes against the people with impunity? When will be
the next instance?
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