331 / 494
330
10.174.
Secondly, the evidence disclosed mixed reasons for using
mortars. CDS Saunders, Maj. Dixon and Capt. Anderson all testified
that one of the reasons was to keep women and children indoors to
reduce their potentiality to be used as human shields, an experience to
which the security forces had been exposed previously. Yet, more than
two years after 2010, when the Public Defender enquired of
Capt. Crooks the reasons for deploying mortars on 23 May 2010,
Capt. Crooks made no mention whatsoever of keeping women and
children indoors. We are not satisfied that such a reason was
prominent in the thinking of the leadership of the JDF in 2010.
Moreover, as Prime Minister Golding testified, it took some time before
the JDF admitted using mortars at all, and when Mr. Golding himself
enquired of CDS Saunders about the use of mortars, he was told that
they were “devices to create an impression”.
10.175.
Although we accept that two open playing fields were
targeted for landing the mortars, we condemn the decision to explode
mortars inside Tivoli Gardens itself. The area chosen was a heavily
populated built-up area which carried a great risk of injury or death to
residents. Our reading of materials provided by INDECOM on the use
of mortars in international humanitarian law (IHL), convinces us that
the weight of contemporary opinion, policy and law is against the use
of mortars in densely populated areas, such as Tivoli Gardens. In the
circumstances, we endorse the characterization by Maj. Cobb-Smith of
the use of mortars within Tivoli Gardens, as “irresponsible and
reckless”.
10.176.
Turning to the technical expert evidence adduced at the
Enquiry, we are satisfied as to the credentials of both Maj. Dixon and
Maj. Cobb-Smith and we note that the latter has had more practical
experience of seeing mortars in use. As indicated during our review of