Public Defender Earl Witter claims that he got nowhere with the Jamaica Defence Force (JDF) because he does not have the power under the Public Defender (Interim) Act to force that institution to answer his questions.
He points out, however, that on previous occasions the JDF has cooperated with the police in terms of supplying requested information. He cites the Keith Clarke investigation as the most recent example. In response to his Tivoli/West Kingston queries (and that of the police investigating arm as well -- the Bureau of Special Investigations (BSI)), the JDF resorted to what he describes as an ipse dixit approach -- i.e. that's what I say it is, that's what it is. End of the matter.
That is clearly not what one would expect from an institution that wants to be transparent, especially as it relates to a legal investigation into its involvement in the deaths of more than 80 people.
To the eternal credit of the former contractor general, Greg Christie, he would never have allowed his office to be stymied by any individual or institution while investigating issues of corruption. The public would have been instantly informed, as the OCG has the power and the responsibility to do.
As an independent body, the Public Defender is under no constraint not to adopt a similar approach. The fact that Witter meekly accepted the JDF's stonewalling reflects poorly on his suitability for the job. Why did he not make it a public matter? Servility? Extreme legalism?
A public defender who fails to challenge this fig leaf claim about national security, which is often used as a means of covering up criminal acts by the state, is clearly failing in his duty to the public. In terms of his report, at a minimum, one would have expected that changing this provision within the Public Defender Act, which supposedly precludes the PD from demanding the cooperation of the JDF in an investigation such as this, is one of the institutional changes we would have expected the PD to make. He did not.
The residents of Tivoli Gardens and West Kingston have made consistent allegations of extrajudicial killings committed by soldiers and police, which Witter's report accepts as credible.
The use of a mortar, which is designed for indiscriminate killing in war, is the epitome of the criminal nature of the JDF's role in the massacre. To try to justify its use, as the JDF has done, raises serious questions about the leadership of its former head, Major Stewart Saunders.
The fact that there are enough legal loopholes in the constitution and other statutes that make the JDF almost answerable to no one raises serious questions about the ability of Jamaica's criminal justice system to seriously investigate, much more to hold the JDF accountable.
Given such a glaring institutional weakness, it is rather puzzling that the PD could so easily dismiss the idea of an international enquiry, leading to the possible involvement of the International Criminal Court in resolving criminal liability.
In his attempt to use Jamaican jurist Patrick Robinson to blunt the call for an international enquiry, the PD should instead have quoted Patrick Robinson's call for Jamaica to ratify the Rome statues of the ICC into local law.
"First, the main purpose of the Court is to ensure that serious breaches of international criminal law and international humanitarian law do not go unpunished. We in the Caribbean have a history that has made us all too familiar with impunity in respect of atrocities that today would readily qualify as crimes against humanity. The inhuman and degrading practice of slavery carried out in the West Indies for over two centuries should prompt all Caribbean countries to support an institution whose primary function is to put an end to impunity for serious crimes. . . The greatest contribution that the ICC has made to the international community is the principle of complementarity entrenched in its statute. The court will only exercise jurisdiction where a national state is unwilling or unable to do so."
No one can deny that the Jamaican state has been unwilling and unable to deal with a decades-old institutionalized practice of impunity for police extrajudicial killings. This practice dates back at least to when politicians gave guns to its gunmen to fight elections and then gave the police the wink and the nod to disarm these same gunmen by killing them once the election was over.
The greatest proof of its institutionalization and that it has become a policy of state is that there has never been a prime minister or minister of national security making a clear and unambiguous condemnation of the practice.
Even Witter was forced to acknowledge in his report, even if not explicitly, that the 2010 massacre was nothing more than an extreme manifestation of this practice concentrated in a particular area. How easy is it to perpetrate more Tivoli massacres?
Consequently, it is manifestly dishonest and an act of desperation for Mr Witter to claim that "although plagued by notorious delays, that system [i.e. Jamaica's notoriously corrupt and dysfunctional justice system] is at work, and is capable of handling matters"! According to him all that is required for its 'acceleration' is by setting up a commission of enquiry. Mr Witter sounds absolutely delusional.
On the contrary, what is required is a swift ratification of the Rome Statute of the International Criminal Court so that should an international enquiry find those who had command responsibility liable for the Tivoli massacre, they can be swiftly dispatched to that body for a trial that will never happen in Jamaica.
On behalf of the Tivoli Committee