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Commentary: Only the ICC will resolve the issues of the Tivoli Gardens Massacre
Published on March 18, 2014 Email To Friend    Print Version

By Lloyd D’Aguilar

Nearly 150 years after an unsuccessful attempt to put British Governor John Eyre on trial for his command responsibility (“high crimes and misdemeanours”) for the 1865 Morant Bay massacre, there is a similar challenge today in terms of applying the same legal principles to those who bear command responsibility for the 2010 Tivoli Gardens massacre.

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Lloyd D’Aguilar is a freelance journalist and convener of the "Tivoli Committee" lgdaguilar@yahoo.com
Governor Eyre declared martial law in Morant Bay and sent British troops into the area where they executed hundreds of people and committed untold acts of brutality. The Jamaica Committee (comprised of English liberals, including John Mills and Charles Darwin) made a valiant but unsuccessful attempt to have Eyre tried under existing British law.

Needless to say international law on the culpability of those who have command responsibility for military operations (including civilian commanders) has evolved and become far more explicit. German and Japanese generals were tried for war crimes after the end of the Second World War. And case law now exists in terms of experiences with Yugoslavia (International Criminal Tribunal for the former Yugoslavia –ICTY) and Rwanda (International Criminal Tribunal for Rwanda -- ICTR).

In 2010 Bruce Golding’s government declared a state of emergency in Tivoli Gardens, west Kingston, and sent in the security forces resulting in the massacre of 73 to 200 people; barbaric acts of torture and brutality were committed against the residents. Under international law these are classified as crimes against humanity.

From Morant Bay to Tivoli Gardens not much has changed in Jamaica in terms of such types of massacres being used to terrorize the poor in pursuit of political objectives.

Eyre was protected from prosecution because he was a white Englishman defending the interests of a racist, imperialist system, against black, colonial subjects. Prime Minister Bruce Golding, Police Commissioner Owen Ellington, head of the Jamaica Defence Force, Major General Stuart Saunders, and Minister of National Security, Dwight Nelson, are today being protected by the same colonial legal system that operates on behalf of a supposedly independent state in mortal combat with poor, inner city residents.

Despite decades of impunity for police extrajudicial killings, there is still a lack of appreciation among many, including human rights activists and the media, that these crimes committed by individual soldiers and police are only possible because they are sanctioned, and sometimes ordered by the command of the security forces, including the political directorate (without regard to party colour).

The convenient cover for murder and massacre in Jamaica is the “shootout” -- the code word to be invoked in order to get automatic state protection.

The emergence of the Independent Commission of Investigations (INDECOM) post-May 2010 (demanded by human rights bodies), supposedly to carry out independent investigations of security forces killings (though I would argue that it is also to draw attention away from police killings as a state policy), has been neither a deterrent to the killings nor a basis upon which to bring about convictions. It is fair to say that police killings are just as brazen and the rate has escalated since the creation of INDECOM.

When there is a police killing, for example, the security forces command structure, which is solidly behind the policy, is two steps ahead of INDECOM in terms of facilitating the concoction of statements within the death squads. There is also the question of whether there is collaboration, in some cases, between INDECOM investigators (some of whom are former police officers) and the police itself. There is strong circumstantial evidence to suggest that this happens. This is a serious matter that requires a public enquiry.

And then there is the matter of disturbing the crime scene -- which is a routine occurrence. The typical practice, after so-called shootouts, is for the police take the body to the hospital to save its life. In Brazil, where there is a similar problem with extrajudicial killings, the authorities have taken a revolutionary position, which is that the security forces must leave the body to be taken in by an ambulance. As a consequence, police killings have been reduced by 40%. INDECOM, on the other hand, is conveniently wedded to the ruse that the police take bodies to the hospital to save lives rather than to tamper with the evidence. Some would argue that the body is being taken away to ensure that it is dead on arrival. (During the Tivoli operations the opposite practice was to let bodies rot in the streets.)

Besides concocting statements, removing dead bodies, picking up spent shells, planting guns (“sweeties”), constructing shootout scenes, there are other important aspects to the impunity policy which include a reluctant and incompetent director of public prosecutions (DPP), and a judiciary with a pro-police bias. Space does not allow for elaboration.

The greater implication for this policy of impunity, however, is that there is no limit or restraint on the massacres which can be perpetrated by the State because there is no law which holds commanders qua commanders responsible for the criminal acts of those who they command.

For example, before the blood had dried in Tivoli Gardens, the then minister of national security, Dwight Nelson, was proudly referring to the Tivoli operations as a template for other inner city communities. The PNP’s Peter Bunting, who was then opposition spokesman on national security, had no quarrel with the brutality which was perpetrated in Tivoli. Within a year, after becoming Nelson’s successor, he too would be positively pointing to the ‘Tivoli paradigm’ as a way to reduce the murder rate.

The role of civilian commanders in facilitating security forces abuse cannot therefore be ignored. And given public concern over the high murder rate, and the calls for action to be taken, it requires no great stretch of the imagination to believe that sooner or later there will be another massacre, perhaps of even greater proportion than Tivoli. Again, in order to achieve political objectives.

The Tivoli Gardens massacre also shows how the impunity process works in one very important area. For reasons that seem obvious, the police took the decision not to carry out any investigation of what happened. Without such investigation the DPP can prosecute no one. Police investigation is the first requirement of Jamaican judicial due process. In other words, if the police are not interested in investigating, it is equivalent to saying that the massacre did not happen. No one has asked the police commissioner to explain this decision. This was tantamount to giving himself a free pass despite the stench of blood hanging over his head. This is a significant deficiency in the Jamaican politico-judicial system.

Not even the prime minister could be relied upon as a counterweight to the police commissioner because he refused to challenge the police commissioner’s handling of the operation. No doubt because he also had questions to answer himself. Instead he enabled the commissioner’s treacherous act by calling upon the public defender to investigate, knowing full well that the public defender was not set up or equipped to carry out criminal investigations of this magnitude. The public defender would in turn demonstrate his compliance and lack of independence by recommending a commission of enquiry (COE).

Nearly four years after, this COE has not taken place, even if one is imminent. Space does not allow for analysis of the timidity shown by the public defender in not carrying out an investigation, which he had the power to do, into the role of the prime minister, the minister of national security and heads of the security forces in the massacre. This he cowardly left for others to do. This speaks volumes to the point we make in conclusion that a just resolution of this matter properly resides in an outside investigation.

The same scenario was played out in 2001 when the police massacred over 27 people in the same Tivoli Gardens area. The police carried out no investigation and while there was a COE, it predictably resulted in no criminal charges being levelled against anyone.

The convening of a COE, as is now being planned, is merely designed to ‘go through the motions’. (There is no point in getting into the current distraction created by one appointed commissioner who revealed her pro-police bias in the 2001 enquiry. This is normal bias where the police is concerned.) The major point is that COEs can only make administrative “recommendations” which the government is not legally obliged to accept.

The COE would be unable to recommend criminal charges for any individual soldier or policeman, even if they were so inclined, since the evidentiary challenge is next to impossible. That is why the victorious “Allies” went after German and Japanese military commanders after the war, not individual soldiers.

The evidence is far more compelling where the Tivoli commanders are concerned and had the terms of reference been framed to specifically enquire into their command responsibility it would be far more likely to hold them accountable.

But even such a recommendation would have no legal weight under Jamaican laws, because as was said above, Jamaican laws have not been updated in keeping with the evolution of international legal concept on the role commanders in the commission of crimes against humanity. This would require the specific involvement of the International Criminal Court as the Tivoli Committee has recommended.

Jamaica and the ICC

In 2001 Jamaica signed but did not ratify the Rome Statute of the International Court. It is only under international law that Jamaican commanders can be prosecuted for crimes against humanity and thus far, for obvious reasons, this statute has never been ratified into Jamaican law. But, by having signed the Rome Statute of the ICC, the government can under Article 12(3) give the ICC jurisdiction over the Tivoli matter. The government has chosen, however, to turn a deaf ear to this demand as reflected in its lack of response to a petition signed by 2,000 Tivoli west Kingston residents demanding ICC involvement. The media and other public commentators have been silent on this point as well.

The present minister of justice, Mark Golding, has admitted that Cabinet has given approval for laws to be drafted so that the Statute can be ratified, but is unable or unwilling to give any time line as to when this will happen. Nor has he sought to publicize this important decision in order to promote public discussion.

Let us therefore outline the command responsibility charges against the commanders.

Bruce Golding as prime minister, minister of defence, head of the Defence Board, and member of parliament for Tivoli/west Kingston, would have been instrumental in having his Cabinet approve the state of emergency declared in west Kingston in May 2010. He would have consulted with the police commissioner, the head of the Jamaica Defence Force and certainly the minister of national security, who holds portfolio responsibility for the police force. Golding admits that he was advised by the security forces of the need to declare a state of emergency to deal with the alleged threat to the state.

Golding would have been aware or should have been aware of the military plans. He has publicly admitted that he requested a surveillance plane from the US in order to get an understanding of what was happening on the ground in Tivoli Gardens. He therefore would have been in a position to assess what was an appropriate response to the “threat”. Given the history of security forces abuse in Tivoli Gardens, he had a duty to effectively ensure that this was not another excuse for brutality. He admits that he received daily reports from the heads of the security forces. He saw no need to raise any questions with them, despite media reports, and residents in Tivoli Gardens claiming to have called him by phone asking him to put a stop to the atrocities.

There is a report that he received an emotional appeal from a Cabinet member as to the atrocities being committed once they started. Golding had a legal obligation to stop the massacre. The evidence suggests that he did nothing. The JDF through Colonel Rocky Meade, said no request for any change of plans was received from Golding and they would have complied had any such request been received. Golding‘s most significant statement to the residents of Tivoli Gardens since the massacre, was that ‘what happened could not have been avoided!”

Police Commissioner Owen Ellington had effective control over the police force. He was involved in the planning of the operation, certainly from the police side. He admitted on a television interview that the planning was in progress for months. Ellington was aware that citizens distrusted the police based on previous acts of brutality; that barricades were being constructed precisely because of this distrust and because there was an expected “incursion.” Several statements were issued by Ellington’s office to the effect that the people’s human rights would be respected. This turned out not to be the case. Ellington has recently admitted that certain “regrettable” things happened even though within hours of the operation he congratulated the police on a professional job, well done. The police force has neither investigated nor does it appear that Ellington has done his own internal investigation as demanded by INDECOM. Ellington cannot evade responsibility for the conduct of the police. The ICC must be allowed to decide his fate.

Major General Stuart Saunders

As is the case with Golding and Ellington, Saunders participated in the planning of the operation. Soldiers under his command are alleged to have carried out extrajudicial killings; destruction of property; theft; torture. A mortar was fired in a residential area destroying buildings, killing and maiming civilians. The use of mortar against civilians is a war crime. The JDF refused to cooperate with the public defender in his investigation. There is no indication that the JDF has disciplined any of its soldiers. The ICC must be allowed to decide his fate as well.

Dwight Nelson was a member of the Defence Board. He was minister in charge of the police force. He was responsible for policy and therefore a civilian commander. He had a duty to be briefed on all the plans for the attack. He had an equal duty to ensure that the security forces did only what was legally required. He had a duty to be apprised of what was happening on the ground, as the prime minister was. He had a duty to ensure that there was no mass killings or abuse of human rights. On the face of the evidence Dwight Nelson not only failed to carry out his duties and by claiming that Tivoli was a template for other inner cities, and other such inflammatory statements, shows that he gave unwavering and unquestioning support to the security forces. He should be investigated by the ICC along with the others mentioned above.

Conclusion

The government in collusion with the opposition Jamaica Labour Party is set to hold a COE which promises to be an administrative whitewash which cannot result in any criminal prosecution. Apart from the Tivoli Committee there is no section of civil society which is demanding the involvement of the ICC -- not even Jamaicans For Justice or Amnesty International. This is a serious indictment of the role being played by these supposed human rights organizations in terms of facilitating the impunity process.

The Tivoli Committee therefore invites all who are swayed by the arguments presented in this analysis to join us in continuing to expose the government’s and the opposition’s whitewash plans; to oppose impunity for the criminal massacre of so many innocent people.

A just resolution of the 2010 Tivoli Gardens massacre cannot be entrusted to a dysfunctional justice system and a brutal Jamaican state.

Join us therefore in demanding that the Portia Simpson Miller government agree to give jurisdiction over the investigation of the massacre to the ICC, and if it refuses, to stand condemned for facilitating the most egregious act of state terrorism since independence.

Please contact us to pledge your support.
 
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