Three years after the security forces’ operation in Tivoli, which resulted in the deaths of at least 73 people, some Jamaicans and so-called human rights organisations still do not recognise that what happened was a crime against humanity, which requires a special investigation of those who had command responsibility for the operations.

The typical Jamaican commission of enquiry (COE) is not an adequate tool for investigating crimes such as these.

Command Responsibility

Article 28 of the Rome Statute of International Criminal Court (ICC), which Jamaica signed but has not yet ratified, defines “command responsibility” in the following way:

In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:

(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:

(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and

(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:

(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;

(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and

(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

It is absolutely clear, according to this definition, that those who had major command responsibility for the Tivoli operations, have some very challenging questions to answer. None of their defenders or apologists can deny that they had the responsibilities outlined above.

The same criteria were used to judge Egypt’s Hosni Mubarak and Guatemala’s Efrain Rios Montt, who were both unsuccessful in defending themselves against command responsibility charges. They are now in prison where they will likely spend the rest of their lives. Why should any less scrutiny be placed on their Jamaican counterparts who face similar charges?

Jamaica has a well-known record of allowing those responsible for extrajudicial killings to go free. First, those who have command responsibility for extrajudicial killings are never implicated; it is always the individual policeman and soldier who is investigated.

Second, eyewitnesses to these killings are routinely ignored so long as the police use the standard claim of a “shootout”. And even when there is overwhelming evidence, such as a videotape showing that there was no shootout, the State is still unable or unwilling to convict.

The same tact is now being applied in regard to the 2010 Tivoli incident. Many would like to argue that the people who died were “casualties of war”, collectively causing it upon themselves because of gunmen in their midst who supposedly declared war on the state. In other words, the deaths are a mere inconvenience.

Crimes Against Humanity

Consequently, even though a prima facie case can be made that this was an illegal and unnecessary war, that crimes against humanity were committed (the Public Defender implies that this was so even though he refused to be explicit), there are those who, rather than wanting an effective investigation into the killings, are seeking the mere formality of an enquiry which is predestined to exonerate the State.

ICC definition of crimes

against humanity

According to the ICC statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of

the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(d) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(e) Torture;

(f) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

In other words, “odious offences that constitute a serious attack on human dignity or grave humiliation or a degradation of human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority”.

Investigation

Three years on, there has been no investigation which can result in a criminal prosecution. The Bureau of Special Investigations did not investigate or prepare a case to take to the Director of Public Prosecutions (DPP). This is a major indication that the State has no intention of prosecuting those who allegedly committed serious crimes.

The Office of the Public Defender, which is not a body set up to do criminal investigations, was preoccupied with preparing a document for a commission of enquiry, which is not the same as preparing a case for prosecution. The Independent Commission of Investigations (INDECOM) cannot investigate at this late stage.

So, those who are clamouring for a commission of enquiry — even with consultation over the terms of reference — naively or conveniently forget that it is not designed to conduct criminal investigation which can lead to prosecution. These are usually to guide future administrative reform.

Historically, dating back to the COE investigating Governor John Eyre’s command of the Morant Bay massacre, all that was recommended was that he be recalled to England. It was the Jamaica Committee formed by English people with a social consciousness, which made attempts to put Eyre on trial for what were crimes against humanity.

The 2001 Tivoli enquiry was a total farce. But in the final analysis, it is the DPP, acting on any report received (whether from the police, a COE, or citizens) who — according to statute and precedent — will start the process all over again, by referring it to the police who failed to investigate in the first place, and are still incapable of investigating.

Because the concept of “crimes against humanity” and “command responsibility” are not part of the country’s legal code, referring such matters to the DPP is a futile endeavour.

According to Jamaican legal precept, the DPP only goes after individual soldiers and policemen, who are individually liable for their actions. To go after those who had command responsibility would require a paradigm shift in legal practice or ratification of the statutes of the ICC. Some would argue that there are UN conventions that Jamaica has signed which would allow for greater latitude in prosecuting such crimes, but the point has been made.

Can we afford what appears to be a planned, sinister, and criminal attack on a community designed to shore up the sagging fortunes of a failed and disgraced politician to go unpunished? Can we afford to allow the State to step up the policy of extrajudicial killings to a new art by committing crimes against the people with impunity? When will be the next instance?

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.

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 on this Government as being complicit with crimes against the people; it would undermine its moral and political legitimacy.

Lloyd D’Aguilaron behalf of the Tivoli Committee