392 / 494
391
subject of voluminous jurisprudential debate to which we make no attempt to
contribute.
11.99.
For the purposes of this Report, we treat “duty” as a species of
obligation, prescribing a pattern of conduct, namely, prescribing how the security
forces ought, or ought not to have behaved towards the residents of West
Kingston who had correlative rights or claims. In short, we adopt the basic
theses of the jurists Hohfeld and HLA Hart. A breach or dereliction of duty will
occur as a result of conduct, whether by commission or omission
depending on
the source or circumstances giving rise to the duty, e.g. under the terms of the
operational plan or by reason of the very nature of the particular circumstances.
Thus, we approach the discussion of this Term of Reference by considering
(a)
whether a duty existed;
(b)
whether there was or ought to have been an
awareness of that duty; and
(c)
whether the duty was fulfilled or not. Those
three considerations are tested in relation to the rights of individuals. For
example, the right to life entailed a duty on the part of the security forces to
protect and respect that right and not to violate it.
11.100.
The requirement of awareness was satisfied to the extent that
many senior commanders of both Forces testified that they briefed their
subordinate officers on the human rights of Coke and all other persons prior to
the commencement of operations. Correspondingly, we were told that they were
briefed on the conduct expected of them as members of the security forces, viz.
their duties.
Issues of Probable Dereliction of Duty
11.101.
We now examine various matters where there might have been
evidence of probable dereliction of duty. – see (i) to (viii)
infra
.