Either try the Commanders of the Tivoli Gardens Massacre under the Terrorism Prevention Act or refer the matter to the International Criminal Court. In either case we demand that justice MUST be done NOW No lesser a person than Jamaicas ambassador to the United States, Stephen Vasciannie, is of the opinion that Jamaicas sordid record of police extrajudicial killings cannot be an accident. Not only does commonsense suggest that they must be deliberate, there is now police testimony confirming that these so-called shootout-killings are often planned at levels higher than those who pull the trigger. That (police executions) cannot be done by any likkle policeman at any likkle rank. That has to be ordered [at a higher level], explained the ex-policeman, who told stories of how he saw alleged gangsters executed in a rural area prone to migrating gangsters from Spanish Town, St Catherine, and its environs. If any likkle police try that, he is on his own when INDECOM (the Independent Commission of Investigations) and dem people deh start come down on him. If the (senior officer) order it, him know how him will take care of the report on the incident already, continued the ex-policeman, who asked that details of the actual events be kept off the record for fear that he would be identified and targeted by his former colleagues. (Sunday Gleaner January 19, 2014) According to Vasciannie, there is considerable scope for the view that police killings represent a fundamental breach of the right to life, with such killings being perpetrated as part of a deliberate scheme for the destruction of persons perceived by the State as criminal elements. (Human Rights in Jamaica: International and Domestic Obligations) The Jamaican political ruling class, including prime ministers and ministers of national security, have encouraged this policy over the decades, mostly with a wink and nod but sometimes explicitly. This then is the background to the challenge of holding anyone accountable for the 2010 Tivoli Gardens massacre. Since individual soldiers and policemen were assured of impunity, in that they cannot be identified, the spotlight logically shifts to those who ordered or commanded the killings. The evidence of culpability is mountainous where the commanders are concerned, but the problem is: how do we get these same State officials to put themselves on trial for crimes which have their finger prints everywhere. The background In 2001 the government of the day signed the Rome Statute of the International Criminal Court (ICC), though it has yet to ratify the Statute into Jamaican law. (The fifteen year delay cannot be accidental either). Among other things, the ICC was set up to prosecute criminal commanders for war crimes, crimes against humanity or genocide when national courts or judicial systems are unwilling or unable to do so. Or, if mandated by the UN Security Council. Since the Jamaican government did not ratify the Statute (Mark Golding says that legal drafting is taking place), the ICC cannot on its own initiative intervene in a matter such as the Tivoli Gardens massacre. However, under the Rome Statute, Article 12(3), the government as a signatory can refer the matter to the ICC. The problem is, that there is no sign that the government is prepared to do so without public pressure. As many as 200 people may have been killed by the security forces in the 2010 operation, but it is impossible to charge any individual soldier or policeman for the crimes committed because of the deliberate tactics of destroying evidence. Not only did most soldiers and police wear masks to conceal their identity, but there has been court testimony to the effect that the police high command gave specific instructions for there to be no record keeping of guns and ammunition issued. They were obviously thinking ahead. This was admitted to by the police during the trial of Livity Coke, brother of Christopher Dudus Coke. There is also another woeful tale of deliberate mishandling of dead bodies in order to degrade the value of any forensic evidence. Not to mention the burning and unauthorized burying of bodies which the State has never properly investigated. All of this was part of a deliberate attempt to ensure impunity for what was a plan to treat the entire Tivoli Gardens, west Kingston population -- women and children included -- as enemy collaborators and to inflict punishment. This was a classic counterinsurgency operation of a criminal nature. Under international humanitarian law, civilian and security forces commanders cannot escape criminal liability for what were clearly crimes against humanity or, under Jamaican law -- state terrorism (which we will deal with later). The problem is that the Jamaican State has over the decades refused to accept the doctrine of command responsibility for the actions of those under command. Instead, the State condones violence as a tool of social policy and pretends that the judicial system will or can catch the individual perpetrators, should any laws be allegedly broken. Those who command and or refuse to exercise their command responsibility escape accountability by the practice of this farce. By having sanctioned such state-terrorist tactics over the years, the State now finds it difficult to admit that 2010 was an extreme manifestation of this form of state terrorism. To put commanders on trial would undermine future reliance on this form of terror. The only concession to public pressure has been to establish a commission of enquiry which, under normal circumstances, means that no one will be held criminally liable, and certainly not the commanders. This Tivoli enquiry, like previous ones, is designed and intended to produce nothing more than an administrative whitewash or a wrap on the knuckles -- assuming that the Commissioners tacitly understand this to be their duty on behalf of the state. But even so, the Commissioners should not be allowed to so easily pull the wool over our eyes. The broad masses of people want to see commanders held accountable now and in the future. They want to see an end to the policy of state terrorism. They want to ensure that there are no more Tivoli Gardens massacres. As a gesture to the agitation of the Tivoli Committee, the Commissions terms of reference include the requirement to enquire into whether the human rights of residents were violated, the chain of command, and whether there was dereliction of duty on the part of the commanders. The evidence is overwhelming that gross human rights abuses took place which is in line with the ICC definition of crimes against humanity (the manner and extent of such violations, and by whom such violations were perpetrated TOR). The enquiry into the chain of command though vague can only be interpreted as a need to know how the decisions concerning the operations by the security forces were arrived at, the actual plan and the respective responsibilities of each person in that chain of command. These matters have to be scrupulously probed to help make the case for command responsibility. The professional integrity of the Commissioners from here on is at stake. The chairman, a former chief justice of Barbados, is from a jurisdiction that has ratified the ICC statutes. He offers his services as a professional jurist to Caribbean states, and poor Jamaican taxpayers are to now compensate him handsomely for those services worth almost US$500,000. We must ensure value for money or demand a refund. After getting off to a poor start by deciding to limit my participation as representative of the Tivoli Committee in the enquiry (on very specious, arbitrary and biased grounds) and then showing intemperance by excluding me for protesting this unnecessary and biased decision, the Chairman cannot be allowed to get away with his apparent pro-state approach, no doubt influenced by his more than generous compensation. Conclusion: Either charge the Commanders under the Terrorism Prevention Act or refer the matter to the ICC The Terrorism Prevention Act (TPA) (2005) is clear: The State in any kind of military operation must abide by International humanitarian law or stand accused of committing crimes against humanity, or war crimes. (The DPP is authorized to apply to the Supreme Court to have certain persons or entities listed as terrorists.) Jamaica as a member of the UN is a signatory to both Geneva Convention and the International Covenant on Civil and Political Rights (ICCPR) among other conventions -- all based on international humanitarian law. The TPA which was passed in 2004 specifically mentions that the State is not absolved of such crimes if it does not abide these humanitarian laws. The Tivoli operation, by its very design, was a criminal act. Will the Commission recognize: (a) that crimes against humanity were committed; (b) the culpability of the commanders; (c) will it call for referral to the ICC; or (d) will it invoke Jamaicas power to try the matter under the TPA? These are the issues and choices facing the Commissioners and we have grave doubts that they have given the slightest thought to these matters. Nevertheless, despite demonstrable pro-State bias on the part of the Commissioners (ignoring the fact that the matter has to be investigated within the context of international humanitarian law) the Tivoli Committee believes that public pressure must still be brought to bear for them to act as we have described it. By ignoring this position they only help to make the case even stronger that the matter MUST be taken out of the hands of the Jamaican state and referred to the ICC. The Jamaican judicial, political system is incapable of delivering justice to people against whom it has committed gross acts of terrorism. That is precisely rationale behind the setting up of the ICC. Let us demand that the government either tries the criminal commanders under the TPA or refer the matter to the ICC -- without further delay. Lloyd DAguilar Tivoli Committee
Posted on: Thu, 15 Jan 2015 03:03:05 +0000
Trending Topics
Recently Viewed Topics
© 2015