338 / 494
337
10.192.
The fact that there were no mass casualties as a result of
the use of mortars, does not
ipso facto
lead to a conclusion that their
use was appropriate or proportional. The overarching issue remains as
to whether the firing of mortars
within the community
was a rational
and proportionate decision. In our view that decision was not.
Maj. Cobb-Smith agreed with the proposition that it was not the
consequences of the decision that mattered but rather the actual
decision itself, given all the circumstances.
Re: Para.10.173 (formerly 10.131) – Summary of Responses
10.193.
(i)
The Commission should not give a negative interpretation to
the fact that CoP Ellington said that he was not informed of
the intended use of mortars.
(ii)
CDS Saunders was under no duty to inform CoP Ellington.
CDS Saunders was guided by the “need to know” principle.
In CDS Saunders’ judgment, CoP Ellington did not need to
know about the likely use of mortars.
(iii)
The Commission should reject Lt. Col. Sewell’s evidence on
the issue of knowledge of the use of mortars. He may have
been suffering a lapse of memory.
Commission’s Comments and Findings
10.194.
We understand the submission that CDS Saunders
practised the need to know principle and was not, as a matter of
courtesy, obliged to take CoP Ellington into his confidence with regard
to the use of mortars. We are nevertheless astonished that CoP
Ellington was excluded from the persons who needed to know that
mortars would be used. Both CDS Saunders and CoP Ellington were
Gold Commanders. The operation was a joint exercise by the two