334 / 494
333
weapons of indirect fire are indiscriminate in their very nature. The
International Criminal Tribunal for the former Yugoslavia (ICTY) has
received numerous opinions from experts that mortars are
indiscriminate, i.e. they “cannot be directed at a military objective as
their effects cannot be limited as required by IHL”.
Adverse Comments re: CDS Stewart Saunders and Maj. Warrenton
Dixon
Re: Para.10.172 (formerly 10.130) – Summary of Response
10.184.
(i)
The Commission should consider the principle of
proportionality.
(ii)
CDS Saunders was under a duty to balance the interests of
residents and those inherent in the objectives of the internal
security operation. In all armed conflicts, there is the
possibility of damage, injury and death.
(iii)
The authority of the UK Supreme Court in
Bank Mellat v
HM Treasury [2013] 4 All ER 533
formulates the
principles of proportionality. These have been applied in the
recent case of
Beghal v. DPP [2016] 1 All ER 483
.
(iv)
The use of mortars must be seen against the background
that they were the only weapons not possessed by gunmen
in Tivoli Gardens and they had a psychological effect on the
gunmen many of whom fled from Tivoli Gardens.
(v)
The heavy resistance put up by gunmen outside Tivoli
Gardens is attributable to the fact that no mortars were fired
in the areas where Maj. Henry’s forces were operating.
(vi)
The Commission should conclude that the fact that there
were no mass casualties as a result of mortar fire “means
that the JDF, given what they were faced with did a good