Fomer Prime Minister Bruce Golding, Police Commissioner Owen Ellington, Major General Stewart Saunders former head of the JDF and Minister of National Security Dwight Nelson ordered soldiers and policemen to invade Tivoli Gardens in May 2010, resulting in a massacre and the deaths of at least 73 people.
Three years after the massacre, some Jamaicans and so-called human rights organizations still do not recognize 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 is not an adequate tool for investigating crimes such as these.
Article 28 of the Rome Statute of International Criminal Court which Jamaica signed but has not yet ratified defines “command responsibility” in the following way:
Article 28: Responsibility of commanders and other superiors
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 this definition that the above named individuals, who had major command responsibility for the Tivoli operations, have some very challenging questions to answer. None of their defenders, or apologists, especially those in the media who quake at the mention of their names as suspects, 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 but transparent method of ensuring impunity for state crimes and police extrajudicial killings. First, those who have command responsibility for extrajudicial killings are never implicated. It is always the individual policeman and soldier who is investigated but who is well adept at disturbing the crime scene (taking the victim to the hospital to save his life when his brains are likely to have already been blown out), planting guns, picking up spent shells, writing false reports, all the while knowing that there are other state collaborators along the line to ensure that there is no conviction.
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 video tape showing that there was no shootout, the state is still unable or unwilling to convict.
The same tact is now being applied in regards to the Tivoli massacre. Many, such as the PNPYO president,, 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 cowardly 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 offenses 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’.
Three years after the massacre there has been no investigation which can result in a criminal prosecution. The BSI did not investigate or prepare a case to take to the Director of Public Prosecutions. This is a major indication that the state has no intention of prosecuting those who allegedly committed serious crimes.
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. 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 (as if this would make a difference) — naively or conveniently forget that a COE 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 who made attempts to put Eyre on trial for what were crimes against humanity. The 2001 Tivoli enquiry was a total farce.
In the final analysis, it is the DPP, acting on any report received (whether from the police or a COE, or citizens) who according to statute and precedent will start the process all over again, by referring it to the same 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” is not part of the country’s legal code, referring such matter 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 International Criminal Court. 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 that 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 massacres and crimes against the people with impunity? When will be the next massacre?
What needs to be done
1. Convene an international body (made up of eminent jurists, human rights experts, and others (not excluding some Jamaicans) to conduct an investigation to determine if crimes against humanity were committed in May 2010;
2. Investigate the role played by those who had command responsibility for the massacre — primarily Bruce Golding; Owen Ellington: Stewart Saunders; and Dwight Nelson;
3. The government should agree to turn the matter over to the ICC for prosecution if a determination is made that these individuals have a case to answer;
4. The government should immediately begin to take the steps to ratify the ICC statutes into local law.
Failure to adopt this approach will only result in a whitewash of murder most foul. It would be an indictment of this government as being complicit with crimes against the people. It would undermine its moral and political legitimacy.
on behalf of the
The Tivoli Committee is about to spearhead a campaign to pressure the Jamaican government to ratify the Rome Statutes of the International Criminal Court which the government signed in the 1990s (but never ratified) in order to put an end to the policy of impunity for state crimes such as police extrajudicial killings and the Tivoli Gardens massacre which was a crime against humanity.
Please note that were it not for the fact that Guatemala recently ratified these statutes into Guatemalan law the trial and conviction of former dictator Rios Montt for genocide and crimes against humanity would probably never have happened.
on behalf of the
Former Guatemala dictator Rios Montt found guilty of genocide
ReutersBy Mike McDonald | Reuters –
GUATEMALA CITY (Reuters) – Former Guatemalan dictator Efrain Rios Montt was found guilty on Friday of genocide and crimes against humanity during the bloodiest phase of the country’s 36-year civil war and was sentenced to 80 years in prison.
Hundreds of people who were packed into the courtroom burst into applause, chanting, “Justice!” as he received a 50-year term for the genocide charge and an additional 30 years for crimes against humanity.
It was the first time a former head of state had been found guilty of genocide in his or her own country.
Rios Montt, 86, took power after a coup in 1982 and was accused of implementing a scorched-earth policy in which troops massacred thousands of indigenous villagers. He proclaimed his innocence in court.
“They convicted him, they convicted him. I can’t believe it,” said Marybel Bustamante, whose brother was ‘disappeared,’ a euphemism for kidnapped and murdered, the day that Rios Montt took power.
Prosecutors say Rios Montt turned a blind eye as soldiers used rape, torture and arson to try to rid Guatemala of leftist rebels during his 1982-1983 rule, the most violent period of a 1960-1996 civil war in which as many as 250,000 people died.
He was tried over the killings of at least 1,771 members of the Maya Ixil indigenous group, just a fraction of the number who died during his rule.
“He had full knowledge of everything that was happening and did not stop it,” Judge Yasmin Barrios, who presided over the trial, told a packed courtroom where Mayan women wearing colorful traditional clothes and head-dresses closely followed proceedings.
Rios Montt’s intelligence director, Jose Rodriguez Sanchez, also stood trial, but he was acquitted on both charges.
During the trial, which began on March 19, nearly 100 prosecution witnesses told of massacres, torture and rape by state forces. At one point, the trial hung in the balance when a dispute broke out between two judges over who should hear the case.
Rios Montt denied the charges in court on Thursday, saying he never ordered genocide and had no control over battlefield operations.
“I am innocent,” he told the courtroom, sporting thick glasses and a gray mustache. “I never had the intent to destroy any national ethnic group.”
“I have never ordered genocide,” he added, saying he took over a “failing” Guatemala in 1982 that was completely bankrupt and full of “subversive guerrillas.”
Defense attorneys said earlier they would appeal a conviction, arguing that prosecution witnesses had no credibility, that specific ethnic groups were not targeted under Rios Montt’s 17-month rule and that the war pitted belligerents of the same ethnic group against one another.
Rios Montt has been under house arrest for more than a year. The right-wing party that he founded changed its name this year to distance itself from its past.
President Otto Perez, who was in army intelligence during the civil war, says he was part of a group of captains that stood up to Rios Montt.
Declassified U.S. documents from the civil war years suggest Perez was one of the Guatemalan army’s most progressive officers and that he played a key role in an ensuing peace process. A peace accord was signed in 1996, but Guatemala remains a divided society with very poor indigenous areas.
Perez, himself a former general, was implicated in war crimes during the trial when one prosecution witness testified that soldiers under his command had burned down homes and executed civilians during Rios Montt’s rule.
Perez argued that genocide had not taken place during the war, underlining the divisions that persist in Guatemalan society over the conflict, which pitted leftist insurgents against a string of right-wing governments.
Perez, who took office in 2012, is the first military man to run the country since the war ended, and rights groups were concerned he could interfere with human rights trials.
Courts in Guatemala have only recently begun prosecutions for atrocities committed during the conflict.
Until August 2011, when four soldiers received 6,060-year prison sentences for mass killings in the northern village of Dos Erres in 1982, no convictions had been handed down for massacres carried out during the country’s civil war.
A judge who initially presided over pre-trial hearings cast a new shadow of doubt over the case on Friday when she confirmed a decision she had announced on April 18 to wind back proceedings to November 2011, and void all developments since then.
Prosecutors insist that decision is illegal and are preparing legal challenges to the ruling, while defense attorneys have argued that the decision is binding and the trial should never have proceeded.
(Writing by Simon Gardner; Editing by Kieran Murray and Peter Cooney
EARL WITTER’s disingenuous arguments against an international enquiry: The case of the JCF and the Police Commissioner ( Part 2)
Earl Witter didn’t get far with the JDF as we wrote previously. They haven’t complied with his requests in terms of giving a complete registry of guns issued to soldiers.
The JDF is not prepared to be probed about the use of mortars — which appears to be a clear criminal act. Their approach is: give us the evidence first, and then we’ll see if it’s worth responding to!
The JDF was very vague about the video images provided by the US Department of Homeland Security/DEA surveillance plane. The quality is supposedly not good. On the basis of what intelligence did they then decide to fire mortars into a residential area? Who were they firing at? One would have thought that the surveillance plane was there to help them gather intelligence (according to Bruce Golding) to guide their ‘indirect fire’ and now it appears that they didn’t have the intelligence.
How does the JDF explain the widespread allegations of systematic extrajudicical killings; beatings; destruction of property; and theft, etc. Who gave the soldiers orders to camp out in people’s homes? This was not raised by the Witter but it is a significant issue. Can the military command make a claim that so many soldiers under their command behaved totally contrary to the instructions given to them? What was the precise objectives and plan of operation?
Witter admits that Major General Stewart Saunders has to give an account. But there is no evidence of any attempt to interview him on the part of Mr Witter. Interestingly, Saunders left the military shortly after the operations. Was Witter still proscribed from asking the now civilian a few questions?
The JCF and the Police Commissioner
The JCF is essentially accused of committing the same atrocities as JDF soldiers, except for firing mortars. One resident to whom I spoke accused Harmon Barracks-type policemen (the “blue suits”) of setting fire to Rasta City in revenge for the burning of the two police stations!
The Public Defender has not only failed miserably by not publicly challenging the JDF but he has failed even more so in regards to his lack of investigation of the JCF in particular, and especially the police commissioner. Most alarming is the fact that the JCF investigating branch (the Bureau of Special Investigations) has NOT investigated what happened in May 2010. Don’t be fooled by the odd mention here and there of the BSI in Mr Witter’s report. Mr Witter knew this and raised no public alarm.
Mr Witter knew that he and his office had no prior experience, nor did they have the resources to investigate such a gross act of slaughter by the state.
He did not communicate this to the public. He lead the public to believe that he had the capability to investigate and that his office was supplanting the police. He knew very well that if his intention was to submit any findings to the DPP (and he has so far not done so ), that the DPP would treat it as it always does with the OCG — send it right back to the police to take statements! Is the police now going to investigate three years after the fact?
Earl Witter has used up precious time and resources pursuing ballistics testing of weapons (which is still not complete) to the exclusion of investigating those who had command responsibility for the massacre.
His report makes clear that in terms of bullet fragments recovered from bodies, these can be traced to the security forces. Individual soldiers and policemen may not be identified as the ones who pulled the trigger (some wore masks) but the bullets and munitions were issued by the command structure. (Earl Witter’s flawed legal strategy seems to be to rely on making such individual connection which is why there is a different standard of responsibility applied in a war crimes situation.)
In terms of his authority and DUTY to get sworn statements from the police commissioner in order to understand the plans for the operations (and of course the prime minister who we will deal with separately), and the command responsibility of each, he neglected to do so. Nay, he refused to depose them.
This was a deliberate strategy because the Tivoli Committee which the Public Defender chastises in his report wrote him a letter in 2011 requesting that he use his powers as a judge to question these individuals, who had command responsibility. He refused.
His response indicated that he had set his sights on a commission of enquiry rather than taking this path. We could not understand how this conflicted with his responsibility to question these individuals. We did not see the two things as being mutually exclusive. On the contrary, they were mutually reinforcing. Was the Public Defender being deliberately servile or reflexively closing the circle of impunity for state crimes against the people? We suspect a combination of both.
His refusal to question the police commissioner under oath — who had ultimate command responsibility for the JCF –is a most egregious and puzzling dereliction of duty because there was no legal prohibition against doing so.
The Public Defender claims there is a legal prohibition in terms of questioning the head of the JDF but at least the JDF provided an ipse dixit response. The JCF command has provided NOTHING. This was confirmed by the head of INDECOM at a recent press conference.
The weakness of this one-dimensional reliance on a local commission of enquiry falls apart under scrutiny.
(1) The police did not investigate the massacre. There is therefore no report or recommendation to give the DPP. (2) The Police Commissioner has given no account of his command over the operations. He was not asked to do so by the Public Defender. (3) The ballistics tests have not been completed. The PD hopes INDECOM will have better luck with the JDF. Really? (4) And the Public Defender to my knowledge has not cooperated with INDECOM in terms of sharing statements taken from residents?
The Public Defender now rightly claims that his office is not equipped to undertake an investigation of this nature and magnitude, and that INDECOM is the more appropriate body. (That is a problematic view but we will deal with that at another time.)
And if this is his view, when did he arrive at it, and why did he not inform the public about it much earlier? By not having cooperated with INDECOM, does he expect that body to start the investigations from scratch?
The Public Defender underlines his approach by saying that he “urgently recommends that the provisions of S.13(2)(b)(ii) of the (Interim) Act be “altered” or amended, expressly to exclude investigations related to allegations of infringement of any constitutionally protected right or freedom or, any criminal action.”
This is a startling recommendation because it means that the Public Defender undertook this investigation in bad faith and perpetrated a deception on the public. In other words he went through an exercise that he knew he had no business doing.
This bad faith is reflected in his refusal to interview those who had command responsibility as stated above; his refusal to inform the public in a timely and forthright basis of all the problems being encountered; and most important, though he makes inferences based on the testimonies and the evidence gathered, he draws no definitive conclusion as to what happened.
As a Public Defender, and not a judge, it was his DUTY based on the testimonies and the evidence gathered to draw common sense conclusions about what happened. The most obvious being that there was no evidence of any resistance to the ‘incursion’ while there is plenty evidence of extrajudicial killings, criminal destruction of property, and other brutal and inhumane treatment meted out to residents.
Second, that the operation was planned from the highest levels and those who had command responsibility should be held accountable for crimes against humanity.
Finally, we maintain that the International Criminal Court should be the final arbiter, after an international enquiry, because the Public Defender by his own demonstrated incompetence, proves that the Jamaican criminal justice system is dysfunctional, and incapable in every respect of delivering justice to those who suffered.
on behalf of the
That this Commission of Enquiry shall be comprised in the majority of international jurists, human rights experts and others of known integrity and independence;
Whose purpose shall be –
To determine if Crimes Against Humanity were committed in Tivoli Gardens and West Kingston during the May 2010 security forces operation;
To probe the culpability of those who had command responsibility for the operations: primarily, but not exclusively, depending on further information to be obtained: former Prime Minister Bruce Golding; former head of the Jamaica Defence Force, Major General Stewart Saunders; Police Commissioner Owen Ellington; and former Minister of National Security, Dwight Nelson;
And, that the Government agrees beforehand that if any or all of these individuals are found culpable for these crime as defined, that they be sent to the International Criminal Court to be tried; and
That the government begins to fast track ratification of the statutes of the International Criminal Court into Jamaican law so that any future crimes against humanity committed by agents of the state, will result in unimpeded referral to that court.
on behalf of the Tivoli
Earl Witter, the Public Defender, has predictably sought to give the government and the State a way out of holding those accountable for the Tivoli Gardens massacre by trying to rubbish the idea of an international enquiry, and possible referrals to the International Criminal Court.
Since he has extensively quoted Patrick Robinson to defend his position I think it is important for those intereseted in the matter to read again what Mr Robinson has to say in an article published in the Gleaner April 2010.
Even though it is true that Mr Robinson does support a local commission of enquiry, which I think is shortsighted, it is disengenous on the part of Mr Witter to suggest that it is impossible for the Jamaican matter to be referred to the ICC. I give a brief excerpt from an email exchange I had with Mr Robinson in 2011.
“Dear Mr DÁguilar, There are three ways that a matter goes to the ICC. The first two requires that the state be a party to the ICC Statute; therefore these would not apply to Jamaica. The third is the Security Council referring a matter to the ICC, irrespective of whether the state concerned is a party to the Statute e.g. Libya and Sudan. Politically it is not likely that this would happen.”
It should be clear to all that the point not made by Robinson is that the statutes setting up the ICC have not been ratified by successive Jamaican governments precisely because they contemplated massacres such as happened in Tivoli Gardens and by not signing, it makes it easier to avoid prosecution.
In going forward the Tivoli Committee is now launching its own campaign for ratification of the ICC statutes. Now!
on behalf of the
THE ICC AND THE CARIBBEAN
Gleaner: Sunday | April 11, 2010, Patrick Robinson, Contributor
An interesting aspect of the history of the Statute of the International Criminal Court (ICC) is that, although the idea of an international criminal court was raised from as far back as the period after World War I, the modern genesis of the topic was a proposal made in 1989 by Trinidad and Tobago at the General Assembly of the United Nations. This proposal, which was co-sponsored by the Caribbean countries, called for the establishment of an international criminal court with jurisdiction to try individuals and entities engaged in illicit trafficking in narcotics across national frontiers and other international criminal activities.
The proposal was the brainchild of the eminent Caribbean statesman, A.N.R. Robinson, who was at that time the prime minister of Trinidad and Tobago . The item was referred to in the International Law Commission. I was then Jamaica ‘s representative to the Sixth (Legal) Committee of the UN, and when I was elected to the International Law Commission in 1991, Marjorie Thorpe, Trinidad and Tobago ‘s ambassador to the UN, specifically asked me to keep a watchful eye on the drafting of the ICC statute by the commission. To that end, I made sure that I was a member of the working group entrusted with that task, which was completed in a relatively short time.
Trinidad and Tobago’s role
When the item was introduced in 1989 by Trinidad and Tobago , the reception in the Sixth Committee and the General Assembly was lukewarm. But when the Yugoslavia conflict broke out in 1991, the Europeans came aboard and pressed for the establishment of an international criminal court.
The statue of the ICC is, arguably, the most important international instrument to be concluded since the end of the Second World War and the adoption of the Charter of the United Nations. And I have spent some time explaining the very significant role played by Trinidad and Tobago and the Caribbean countries – a group of small states – in the establishment of this historic institution because it is a role that is not widely known, and in respect of those who are aware of it, not sufficiently acknowledged by them. We need not delve into the reasons for this ignorance and indifference.
But having commendably initiated the process, let us see how well we have performed in its completion.
The ICC statute, adopted in 1998, has now been ratified by 110 states. Within the Caribbean, the statute has been ratified by Trinidad and Tobago , Antigua and Barbuda , Barbados , Belize , Dominica , Guyana , St Kitts and Nevis , St Vincent and the Grenadines and Suriname .
In 1998 , I signed the Final Act on behalf of Jamaica and in 2000, Jamaica signed the statute, but has not yet ratified it. Nor has The Bahamas, Grenada , St Lucia .
I suggest three reasons for Caribbean states to ratify the statute of the ICC.
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.
Second, a cornerstone of the Court’s statute is international human rights, including the protection of the rights of the accused. Caribbean countries have always been at the forefront in the struggle for human rights and have a strong history of valuing human rights.
We are not new to the business of defending human rights. Jamaica was among the first set of countries, if not the first, to enact legislation imposing trade sanctions against apartheid South Africa . Jamaica took this action in 1957 under the leadership of Premier Norman Manley while still a colony of the United Kingdom . It was the initiative of Prime Minister Hugh Shearer of Jamaica in 1963 at the UN that led to 1968 being designated International Year of Human Rights to mark the 20th anniversary of the Universal Declaration of Human Rights. The Caribbean Westminster Model Constitutions provide for the protection of fundamental human rights, including the rights of the accused. Generally, the Caribbean can take pride in the system of parliamentary democracy that it has followed over the last five decades.
Moreover, Caribbean countries, which have fought for their independence, and therefore, value new sovereignty, need have no fear of the ICC.
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. Therefore, we can continue to deal with serious crimes within our own countries. But joining the ICC will allow us to be more engaged in the international legal and diplomatic community, working together to prosecute the most serious crimes in countries where the rule of law is lacking and rogue leaders fragrantly violate human rights. Caribbean countries were once the scene of the most horrifying human-rights abuses known to humanity, and it is therefore, our historical and moral responsibility to do whatever we can to make sure that the darkest chapters of human history are not repeated on other shores and in other lands.
As a Jamaican and the current president of the United Nations International Criminal Tribunal for the former Yugoslavia , I have a strong personal and professional interest in witnessing the active participation of my country and other Caribbean nations in the ICC and in witnessing the continued growth and success of the court. And it is my hope that one day, we will be able to proudly welcome a Caribbean national as the president or the prosecutor of the ICC.
A unified Caribbean membership in the International Criminal Court would be a powerful demonstration on a regional level that we take, with the utmost seriousness, our commitment to human rights, the global fight to end impunity and the search for justice. It is high time for all Caribbean countries to sign and ratify the Rome Statute.
TIVOLI post-petition press conference
April 24, 2012
Welcome everyone. And a special welcome to the media.
The purpose of this Press Conference is bring Jamaica up to date on what has transpired since March 20 when residents of Tivoli Gardens and West Kingston marched to Jamaica House to deliver a petition to the Prime Minister demanding an International Enquiry into the May 2010 Tivoli Gardens Massacre.
We made it clear then to the Prime Minister that we would be expecting a response within 30 days and if there was no response we would draw certain conclusions and we would proceed to publicly outline the next steps to be taken in our campaign for this international enquiry.
WELL 30 days have passed and there has been no response from the Prime Minister or any representative of the government.
So we have drawn our own conclusions. And we are here to spell out how we intend to proceed with our demand and our campaign for an international enquiry into the massacre..
IN terms of conclusion, it is our suspicion that this lack of response from the Prime Minister or the government is because they are waiting to take their cue from the Public Defender’s Report. assuming that it is ever completed. They anticipate or know his conclusions which will seek to sweep things under the carpet.
That is an unfortunate approach.
Let me say up front that while we believe that the country will be disappointed with any report from the Public Defender, we are not entirely dismissive of the value of it. After all he took statements from hundreds of residents.
Those statements are important because Jamaica has yet to hear the full story about the atrocities that took place in Tivoli Gardens in May 2010. The cruelty is unbelievable. Those statements should be published for all Jamaica to read.
AND then there is the matter of the autopsies and what those will reveal.
WILL the autopsies be able to confirm that young men were shot execution style at close range? Remember that famous statement by Police Commissioner Owen Ellington that ““many of the thugs who were shooting at members of the security forces were hit from ‘distances of over 300 yards’’”.
THAT is a statement that I hope the Public Defender would be trying to confirm or deny in the autopsies.
I suggest, however, based on past experience, where police killings are concerned, that autopsies are notoriously and sometimes deliberately vague in order to help exonerate those who kill on behalf of the state. Remember that pathologists after all are employed by the state.
SO even though there is a possibility for the Public Defender’s report to do some good, to provide some details about what happened we are not optimistic that this report will do that, because the Public Defender’s approach is off track.
Let me give a few examples:
(1) He has been wasting a lot of time and resources with ballistic testing of guns used by the security forces.
WE do not believe that ballistic testing of weapons, however important, will never be able to hold any individual policeman or soldier accountable for the slaughter which took place. There is no need to elaborate on that. It just doesn’t happen in Jamaica.
(2) The second point is that the Public Defender’s approach, focusing on individual policemen and soldiers, totally ignores those who had command responsibility for the operation.
AND this is the major reason why we want an International Enquiry because the Jamaican practice is to send police and soldiers to do the dirty work of the state and then everybody forgets who sent them out there in the first place. We forget who commanded them. We forget who gave them the orders to do what they do.
That is the biggest scandal in a country that has the highest rate of police extrajudicial killings in the world. Even human rights organizations forget this.
So the question is: shouldn’t we be going after those who have command responsibility for the operations of the security forces?
And specifically in terms of what happened in Tivoli Gardens and West Kingston, shouldn’t we be going after those who had command responsibility for that operation.
I’M Afraid that based on previous interaction with the Public Defender the Tivoli Committee is of the view that the Public Defender is still pursuing the old school approach.
ULTIMATELY, what the Public Defender wants to do is to reduce the most horrific massacre since the 1865 Morant Bay massacre into the usual kind of Commission of Enquiry which serves no other purpose than to whitewash the culpability of the state for this deliberate plan, to dismantle the Shower Posse gang, by murder.
There was no other way to dismantle the Shower Posse but to go house to house and kill young men who were suspected of being sympathizers of Christopher Dudus Coke. Every young man according to this logic was a Christopher Coke sympathizer. The real scandal however is that the real Shower Posse was made up of accountants, lawyers, and politicians!
The May 2010 operation then was only remotely connected to serving a warrant on Christopher Coke. If media reports are to be believed, Christopher Coke not only walked out of Tivoli Gardens, which was surrounded by two thousand members of the security forces, but ended up in a government-owned house in St. Ann.
How did that happen? Sacrificing the lives of so many people was totally unnecessary. It was a wicked act.
Coke could have been taken into custody without a single shot being fired. And I for one am anxiously waiting to see whether the Judge in the trial of the Rev. Al Miller is going to force the Police Commissioner to release vital information about the interaction between himself and the Reverend. Because if it proves that they were all working together — Coke, the police commissioner and the prime minister through the Rev Miller, then it makes this a clear cut criminal conspiracy to murder. But we’ll get back to that.
IN these circumstances, therefore, where a credible case can be made, according international law, certainly according to the definition provided by the International Criminal Court, that crimes against humanity were committed in May 2010, we believe that it is highly impossible for Jamaica’s dysfunctional, class-biased criminal justice system, to investigate those who had command responsibility for these crimes, much more to prosecute them.
WE have said it quite clearly that three individuals must be specially investigated for their roles in the massacre that took place in 2010.
The primary responsibility for the massacre must be squarely placed on the shoulders of the former Prime Minister Mr Bruce Golding; the former head of the Jamaica Defence Force Major Stewart Saunders; and the present Police Commissioner Mr Owen Ellington.
I shall briefly lay out the charges against these individuals
1. Mr Golding has publicly admitted that he requested a surveillance plane from the DEA/HOMELAND SECURITY DEPARTMENT to conduct aerial surveillance of the Tivoli Gardens West Kingston Area prior to the start of the operation.
2. IT was his duty before and during the operations to be apprised of what had been observed.
3. The information from this surveillance should have been part of the decision-making process in declaring a state of emergency.
4. There is no evidence to suggest that this aerial surveillance uncovered anything that warranted a state of emergency to be used as a cover for a war.
5. Based on Mr Golding’s past acknowledgement of atrocities committed by the security forces in the area –1997, 2001 — and certainly by 2005 when he became its representative, Mr Golding was reasonably expected to give specific instructions to the security forces to respect the human rights of the residents during the state of the emergency.
6. His public declaration of the state of emergency included no such instruction.
7. As MP for the area Mr Golding made regular visits to Tivoli and would have had on the ground intelligence about any preparation for war against the security forces.
8. AS MP for the area, and in light of immediate media reports about atrocities and extrajudicial killings it was Mr Golding’s duty to inform himself of what was happening though formal and informal channels;
9. We have information that residents called Mr Golding through his secretary to inform him of killings by the security forces;
10. Mr Golding has publicly admitted that he got daily briefings from the security forces;
11. It was his duty to carefully check these reports against claims by residents;
12. Mr Golding failed in his duty to put a stop to the tactic used by the security forces to go house to house and execute young men, in addition to other atrocities and human rights abuses;
13. JDF Colonel Rocky Meade is on record as saying that as head of Defence Board, and as Prime Minister, any lawful instruction received from Mr Golding would have been obeyed.
14. This was in reference to a claim by Mr Edward Seaga that Mr Golding was being defied by the security forces.
15. Given the known political connection between Mr Golding and Mr Christopher Coke, given the refusal of Mr Golding to have the extradition matter heard in the Jamaican courts, given the compromising situation Mr Golding found himself in at the time; We believe that the Tivoli/West Kinston operation was sanctioned by Mr Golding in order to burnish his image, as a crime fighter, and to counteract the image of him as a confederate of an alleged drug trafficker.
16. He had been branded as a “known criminal associate” of Christopher Coke by US authorities according to ABC News. Mr Golding threatened but never sued to clear his name.
17. For these reasons based on the atrocities committed by the security forces we believe that Mr Golding should be investigated for failing to stop a massacre.
18. AND if these charges should be substantiated by an international enquiry which we are calling for, we are calling upon the government to give the International Criminal Court jurisdiction over this matter.
THE POLICE COMMISSIONER
1. The police commissioner was instrumental in advising the Prime Minister of the need for a state of emergency.
2. The police commissioner, as commander of the JCF contingent of the security forces, had a legal responsibility to ensure that despite the ‘extraordinary’ powers given to the security forces, that these powers were not used as a basis to abuse the constitutional and legal rights of the residents;
3. The evidence is that the security forces including policemen under the command of the police commissioner systematically went house to house and executed young men;
4. The security forces including policemen under the command of the police commissioner, some operating as snipers, did engage in random shooting of residents in the affected area, including women walking on the streets;
5. The security forces including policemen under the command of the police commissioner did engage in malicious destruction of people’s property;
6. The security forces including policemen under the command of the police commissioner did engage in beatings of young men in the affected area;
7. The security forces including policemen under the command of the police commissioner did unnecessarily allow bodies to rot in the streets for several hours and days;
8. The security forces including policemen did set fire to a residential area known as PWD otherwise known as Rasta City;
9. Eyewitnesses claim that in this particular operation people were burnt alive.
10. Within hours of the operation the Police Commissioner publicly congratulated the security forces for a professional job well done.
11. The police commissioner as commander for the operations has ultimate responsibility for the actions of the forces under his command;
12. We believe that he should be investigated by the international body which we are proposing and if found liable for the massacre, should be placed before the International Criminal Court to answer charges.
MAJOR STUART SAUNDERS: FORMER HEAD OF THE JDF
1. Major Stewart Saunders served as advisor to the Prime Minister in recommending a state of emergency.
2. Like the Police Commissioner, Major Saunders had a legal responsibility to ensure that the legal and constitutional rights of citizens were respected.
3. FOR the purpose of brevity there was no difference in the conduct of soldiers under the command of Major Saunders as opposed to the conduct of the police under the command of Police Commissioner Owen Ellington.
4. RESIDENTS allege that soldiers and police equally participated in committing the same atrocities.
5. Major Saunders must additionally bear responsibility for the illegal firing of mortars into a residential area.
6. Mortars are not accurate as the JDF claims and as Major Saunders should know;
7. Mortars are designed to kill indiscriminately.
8. The firing of these mortars resulted in the burning of buildings and destruction of property;
9. The firing of mortars resulted in injury and death to residents;
10. Major Saunders must explain on what legal basis he gave orders for soldiers to camp out in people’s homes resulting in criminal destruction and theft of property.
11. Major Saunders should be investigated for crimes against humanity and if found liable we are demanding that he be tried by the International Criminal Court.
In conclusion I want to raise two more points.
Tivoli Gardens and West Kingston are economically depressed areas. Many people are unemployed and under-employed. It is unconscionable for the state to have committed such acts of violence against them; destroying their hard earned property — beds; stoves; fridges; Television sets; settees; toilets; and then the stealing of hard earned savings — and yet up to now there is no just compensation for all of this damage.
This aspect of the violence should be investigated but since the state has already admitted liability for what happened then we are calling upon the PRIME MINISTER to at least have the HEART to speedily arrange to have a just settlement over outstanding claims.
Some people were inadequately compensated and some have received no compensation whatsoever.
You may not have responded to the petition, Prime Minister, but you are morally obliged to settle this matter expeditiously.
In terms of going forward:
The Tivoli Committee acting on behalf of Tivoli Gardens and Wet Kingston residents has initiated contact with ALL major international human rights bodies.
We are in the process of filing formal complaints against Jamaican authorities for the massacre which took place in 2010.
These bodies include the United Nations High Commissioner for Human Rights, OHCHR and the IACHR, Inter-American Commission for Human Rights.
In addition we have initiated discussions with Jamaican and other civil liberty organization in several metropolitan areas of the US, UK and Canada.
These bodies and organizations are just as appalled as we are that three years after the massacre the Jamaican state, including this government seems to be indifferent, and want to sweep the matter under the carpet.
We are resolved not to rest until there is justice and we make a pledge here today that from here on there will be frequent updates in terms of our plans and strategies to inform the world that this present government is a participant in impunity for state abuse of citizens.
Our agitational activities shall be accelerated here in Jamaica as well because people throughout the length and breadth of Jamaica realize that what happened in Tivoli Gardens is just an extreme manifestation of the rampant and widespread killings by the police… which is a state policy.
We the citizens need to adopt a different approach in terms of how we deal with this state policy giving the police the power to be judge, jury and executioner. We need to stop believing that it is because of rogue policemen or untrained policemen.
They are all very well trained. Extrajudicial killings happen because the state, the government, the prime minister, the minister of national security, the police commissioner want them to happen.
I say one thing in response to those who say where is this policy written?
It is an unwritten policy.
Can anyone tell me the name of a Prime Minister or Minister of National Security, going back as far as you wish, who has made a clear and unambiguous statement condemning police extrajudicial killings? Not one in the history of Jamaica. And that is no accident.
So we must change our tactics. We must begin to hold the prime minister, the minister of national security, the police commissioner and the head of the JDF responsible for extrajudicial killings. They must give account and be brought before the courts if necessary.
And the final thing is this: The Tivoli Gardens massacre must serve as a wake-up call for Jamaica. The then Minister of National Security said that Tivoli must be used as a template for the rest of the inner cities.
IF we don’t bring to justice those who had command responsibility for this massacre, then dawg nyam all ah we supper.
Why do you think none of these governments has ratified the International Criminal Court statutes which they originally signed. We need to pressure the government to do what is legally necessary so that crimes like what happened in Tivoli Gardens and West Kingston can be automatically referred to the International Criminal Court for prosecution.
Jamaican law tends to be silent on this aspect of state crimes and we cannot allow the state to continue slaughtering the people without some form of legal redress.
I think I have said enough and I will take your questions.
OUTRAGE at police extrajudicial killings. Fire those most responsible: The police commissioner and the Minister of National Security
The media outlets were mostly silent last week when over 3000 people heeded the call of Dub Poet and social activist Mutabaruka and Irie FM for a day of OUTRAGE and commemoration for the Coral Gardens massacre of 1963 and the 2010 Tivoli Gardens massacre.
The day of OUTRAGE came appropriately at a time of an unprecedented wave of police extrajudicial killings.
No media outlet is calling upon either the Minister of National Security Peter Bunting, the Police Commissioner, or the Prime Minister to explain what they intend to do to stop these killings.
The hypocritical Gleaner is pretending that it doesn’t see the connection between Peter Bunting’s call for a reduction of murder to one per day by 2017 and the spike in police killings.
Everyone pretends as if it is ok for the police commissioner to be deaf dumb and blind to what is happening around him, almost as if he is a piece of furniture being paid millions of dollars at tax payers’ expense.
The prime minister can no longer pretend as if her Minister of National Security is doing a wonderful job and there is no need for her to intervene.
From Coral Gardens to Tivoli Gardens and in the name of all others who have died illegally at the hands of the police, including this year at the rate of one per day, the OUTRAGE continues this Thursday and every Thursday until the government takes action to end this policy of the state and government giving the police licence to kill illegally.
We call upon the prime minister to immediately accept that the buck stops with her. That the time has come to show good faith by immediately firing National Security Minister Peter Bunting, not only for his indifference to the killing spree, but for having given the police conflicting signals about the acceptance of police extrajudicial killings. The most notorious being his reference to the ‘Tivoli paradigm’ as an option for the police to consider in reducing civilian killings. ONE PER DAY by 2017! Police killings have been on the rise ever since.
It is time for the police commissioner who famously congratulated the security forces on a professional job well done during the Tivoli Gardens massacre, to be fired or asked to resign. He has neither the moral nor professional capability to put a stop to the practice. It is time for him to go.
We call upon the prime minister to take action in regard to these two individuals who most symbolize that police killings is not the work of rogue policemen, badly trained policemen, but it is what it is: State policy. With designated police killers to boot.
We call upon the prime minister to comprehensively and unambiguously address the matter and to refute the notion that the government and the state do not condone, encourage, or wink at police extrajudicial killings.
We call upon the prime minister to state what is the plan going forward to deal with this issue.
Until that time we encourage the continuation of OUTRAGE, every Thursday. Wear red to show your OUTRAGE.
Campaign for Social and Economic Justice
Dear Editor, [NOT PUBLISHED AS USUAL]
I take note of comments about Dr Omar Davies’ optics and arrogance but there is another side to the matter that is being overlooked.
Dr Davies as far as I know is still being investigated by the DPP in terms of whether there was any malfeasance committed in his handling of the sale of Air Jamaica’s Heathrow terminal to Virgin Atlantic. So confident I guess was the prime minister and indeed Dr Davies himself that this criminal investigation would be resolved in his favour that it did not preclude him from being nominated or accepting a Cabinet position.
In other jurisdictions with such a cloud hanging over his head he might have had to refuse the appointment until the matter had been settled. But then again, he is so used to investigations being a storm in a teacup such as that famous sweetheart deal with Dehring Bunting and Golding that he has every reason to be arrogant.
But it is this new US$320 million China deal that worries me. Dr Davies was one of those who first raised questions about that US$400 million JDIP/China loan under Mike Henry that eventually lead to a forensic audit (which turned out to be a whitewash thanks to the terms of reference crafted by Davies). There was no transparency in that loan and now Dr Davies is doing the same thing by also not giving any details about this loan.
He says wait until the budget is read, but that is not good enough. That assumes that the loan is a done deal and in Jamaica’s situation where so much of our 1.7 trillion dollar debt is clearly illegitimate, or fraudulently converted, NO ONE can be trusted when it comes to the moral hazard of contracting debt on behalf of the people.
We need the details NOW. We need a debate in parliament. Was Dr Davies’ trip to China for example, paid for by the Jamaican government or by the Chinese as is customary?
I will go one step further and say that like what now obtains in Ecuador, following a forensic audit its public debt, “citizen participation must be ensured all throughout the cycle of debt, that is, in the moment of deciding its acceptance, acquisition, monitoring and control.”
Perhaps if we had such a serious approach to the issue of public debt Dr Davies would be far less inclined to be so arrogant about the peoples’ money.
The Jamaica Constabulary Force is out of control. It has been carrying out an unprecedented wave of extrajudicial killings. The question is: are these killings an attempt to achieve the policy directive from the Minister of National Security, Peter Bunting, to reduce the murder rate to one per day by 2017?
In the Jamaican context, where the police have the highest killing rate in the world, to issue such a directive without spelling out how this reduction in the murder rate is to be achieved is highly problematic.
After all, the minister is not running a business (as he used to do) where he can give orders to reduce losses by certain percentage points and expect them to be carried out. And if this directive is motivated by political ambition (or grandstanding) then it gives even more cause for concern in terms of whether Bunting is being reckless and has the proper judgement to hold such a position.
It is fair to say that what Jamaicans want most from the police is not for them to be judge, jury and executioner, but for them to be professional, courteous, efficient and to operate within the law in terms of apprehending criminals and protecting citizens. This is the policy directive that people want Bunting to insist on most.
The police cannot be held directly accountable for a high or low murder rate unless it is their own murder. How can they be expected to “reduce” the murder rate to a specific number by a specific date?
Even within the inner cities where people experience high rates of violence at the hands of criminals, people are quick to point out that what is needed to stem the violence is for there to be more jobs, education, recreational facilities, especially for the youth, less alienation and a sense of hope. No one wants jungle justice from the police.
The minister has not addressed these issues and cannot since his government is in the pocket of finance capitalists, local and foreign, who demand their pound of flesh, and the government is only too happy to comply. After satisfying this voracious appetite there is little resources left over to address the economic causes of crime — though there is always enough left over to provide lethal and other weapons to the police and to keep the machine going.
Bunting is in effect continuing where his predecessor Dwight Nelson left off. Nelson famously told the police that collateral damage is acceptable as they carry out their duties. And when they are hauled before the courts, he would see to it that they got the best legal defence.
As for the 2010 Tivoli Gardens massacre, Nelson recommended it as a template for other inner cities.
And as for Bunting, he didn’t have anything critical about the atrocities committed during the Tivoli operations, giving it his implicit approval because, according to him, it was responsible for reducing the murder rate. And now in calling upon the police to further reduce the murder rate (which increased soon after he took office) he recommended the “Tivoli paradigm” as one of the options to be considered.
Can there be any doubt as to the message this sends to a trigger happy police force? This is the minister after all, acting on behalf of the government, that is responsible for setting policy. If Bunting was concerned that there could be a misinterpretation of his words he has had plenty of time to make a public clarification. He hasn’t. He has only compounded the perception of the message he is sending.
During a period in 2012 when there was public outrage in response to a rash of police killings within the space of one week, Bunting waded in by appealing to the police, not to stop extrajudicial killings, but to reduce killings! In other words, he had his opportunity like so many other ministers before him to explicitly and unambiguously condemn the practice and like all of them he refused to do so. Instead he did the obligatory wink and nod at what is in effect state sponsored police killing of citizens.
To further underline the point Bunting went to St Elizabeth recently to assuage the outrage of firemen and women whose colleague had been killed by police in what citizens claim was cold-blooded murder. Once again, instead of expressing his abhorrence at this pattern of police killings, and to clearly and unambiguously condemn the practice, he muddied the water by telling them not to rush to judgement and wait on the ‘investigation’. After all, he told them, they themselves have been unfairly criticized in the past for tardy action in putting out fires. Clearly, this was an odd and bizarre mixture of apples and oranges. It speaks volumes about Bunting’s mentality.
In Bunting’s mind he doesn’t accept the residents claim of unwarranted killings and he will wait until five years time when the case is called up in court before he can be convinced that this was an extrajudicial killing. And if the courts refuse to convict the policeman as they didn’t in the case of a policeman who was caught on tape executing a man in St Ann, then there is nothing to get alarmed about.
And so the people keep crying out for justice but the state in the form of people like Bunting keep saying let’s wait on the investigation. Somehow they seem not to realize that this tactic of using a flawed due process as a cover to continue police killings is wearing thin on the the population.
As for waiting on investigations, for example, INDECOM has driven no fear at all into the police. The killing rate continues unabated. The crime scene is routinely disturbed by the police and they ALWAYS drag away their victims. INDECOM remains silent about this practice because it too has become intimidated by the police, and even the minister. He wants the Act setting up INDECOM reviewed because he feels that it gives INDECOM the power to act unfairly towards the police!
So what is to be done? The people of Jamaica, including the media, must stop blaming rogue policemen or untrained policemen for these killings. These killings have the support of the highest command of the police. They are mostly planned, beginning at the station house, and a band of designated killers have been created within the JCF. The latest INDECOM report bears this out.
These killings have the support of the state and the government and whoever is the minister of national security. It is state policy for the police to fight crime, to reduce murder, or whatever else they must do, by having the discretion to execute those whom they feel should be executed.
The issue is therefore a political one. It is about confronting the government over this criminal policy rather than being fooled, confused and stalled by notions of waiting on due process or investigations.
Campaign for Social and Economic Justice is calling on people to come up with ways of showing OUTRAGE every Thursday, beginning Wednesday March 28 when we:
Support a protest march called by Rastafari Brethren and Sistren remembering Coral Gardens and Tivoli Gardens;
Call upon the PRIME MINISTER to either FIRE the Minister of National Security and the Police Commissioner as an example of how to hold officers of state accountable for their failures and/ or make a categorical and credible policy statement about ending police extrajudicial killings.
Until that is done we are encouraging Wednesdays as a day of OUTRAGE against state sponsored, government approved police extrajudicial killings.
Campaign for Social and Economic Justice