1 Thursday, 19 March 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.20 p.m.
5 [The witness takes the stand]
6 JUDGE PARKER: Good afternoon. Mr. Zyrapi, the affirmation you
7 made at the beginning of your evidence to tell the truth still applies,
8 and Mr. Djurdjic is continuing his cross-examination.
9 MR. DJURDJIC: [Interpretation] Thank you, Your Honour.
10 WITNESS: BISLIM ZYRAPI [Resumed]
11 [Witness answered through interpreter]
12 Cross-examination by Mr. Djurdjic: [Continued]
13 Q. Mr. Zyrapi, let's pick up where we left off yesterday. Could you
14 please tell me, where were the training centres that the KLA had in
16 A. At the time I was staying in Albania, the training was conducted
17 with small groups. One of the centres was in Qerret between Dures and
18 Kavaja. Another one was in northern Albania close to Kukes. It was an
19 old factory which was used for the training of groups of men.
20 Q. Thank you. Mr. Zyrapi, could you please tell me, In March 1999
21 who was the commander of the Karadak Operational Zone?
22 A. In March 1999 the commander of the Karadak Operational Zone was
23 Ahmet Isufi.
24 Q. Thank you. Could you tell me what brigades were operating in the
25 area of responsibility of the Karadak Operational Zone?
1 A. Up until March I think there was only one brigade, 171.
2 Q. Thank you. And after March?
3 A. I don't know after March because I handed over my post, and I
4 don't know after that.
5 Q. Thank you. You handed over the post on the 23rd or the
6 24th of March, 1999. So --
7 THE INTERPRETER: Interpreter's correction: April.
8 MR. DJURDJIC: [Interpretation]
9 Q. -- so that would be the extent of your knowledge, that's what you
10 told me?
11 A. Yes, up until then.
12 Q. Thank you. Can you tell me how many soldiers the KLA had in this
13 operational zone, Karadak Operational Zone, in March 1999?
14 A. As far as I remember, there were very few of them, about 200 or
15 300, not more than that.
16 Q. Thank you. Could you tell me who was the commander of the
17 Lap Operational Zone in March 1999 when the NATO attack was launched?
18 A. The commander of Llapi Operational Zone was Rrustem Mustafa.
19 Q. Thank you. How many brigades were there in the area of
20 responsibility of the Lap Operational Zone?
21 A. There were three brigades.
22 Q. Could you please tell me what brigades?
23 A. 151, 152, 153.
24 Q. Could you tell me where was the command post of the 151st Brigade
25 and what was the area of responsibility of this brigade?
1 A. The 151st and 152nd were in the same area, I'm speaking about
2 that time. They did not have separate areas of responsibility. While
3 the 153rd was somewhere else. I can't remember for the moment where the
4 command was located.
5 Q. Thank you. And do you remember what area of responsibility the
6 151st and the 152nd had, because you said that they were together, and
7 what was the area of responsibility of the 153rd?
8 A. Their area of responsibility started from the Prishtine-Podujeve
9 road on the left side of the road, included the Podujeve villages up to
10 the Bajgora villages.
11 Q. Thank you. And 153rd?
12 A. The 153rd was on the right side of the Prishtine-Podujeve road,
13 including the villages of the Podujeve municipality, on that side of the
14 road. I don't know how many there were and I don't know where the
15 command was.
16 Q. Thank you. And it extended all the way down to the
17 administrative border with the rest of Serbia; is that correct?
18 A. Yes.
19 Q. Thank you. How many fighters did the KLA have in this
20 operational zone in March 1999?
21 A. I can't be exact, but I think there were about 2.000 or 3.000
23 Q. Thank you. Mr. Zyrapi, could you please tell me who was the
24 commander of the Salja Operational Zone in March 1999?
25 A. In March 1999 commander of the Shala Operative Zone was
1 Rahman Rama.
2 Q. Thank you. Could you please tell me, do you know where the
3 command of the Salja Operational Zone was located at that time, in
4 March 1999?
5 A. In March 1999 the commander of the Shala Operational Zone was in
6 the village of Oshlan
7 Q. Thank you. And could you tell me what brigades were operating in
8 this area of responsibility, we're talking March 1999?
9 A. There were two brigades in this zone, 141 and 142nd.
10 Q. Thank you. And can you tell me as far as the 141st command is
11 concerned, where its command was and what its area of responsibility was,
12 if you can recall?
13 A. The 141st was located in Cicavica -- the command was located in
14 Cicavica, but I can't remember now the exact name of the village in that
16 Q. Thank you. And where was the command of the 142nd Brigade and
17 where its area of responsibility was?
18 A. The 142nd was in Shala of Bajgora, and the command was located in
20 Q. Thank you. I forgot to ask you this: Where was the command of
21 the Karadak Operational Zone in March 1999?
22 A. I can't remember where it was in March 1999. They would move
23 about a lot, so I can't tell you where they were at the time.
24 Q. Thank you. And do you remember where the command of the
25 Lap Operational Zone was in March 1999?
1 A. I can't remember now the name of the village where it was.
2 Q. Thank you. Mr. Zyrapi, now as of March 1999 when the NATO
3 air-strikes began, were there any meetings of the KLA staff with the
4 commanders of the operational zones?
5 A. After March 1999, we were not able to have any contacts or to
6 have meetings with the zone commanders as we used to do before that.
7 Q. Thank you. And when the -- after the NATO air-strikes began, did
8 you have collegium meetings of the KLA General Staff?
9 A. No, because the General Staff was spread in different places at
10 the time, and they couldn't meet.
11 Q. Thank you. And during NATO air-strikes were elements of the
12 General Staff in Albania
13 A. The logistics members were there, the Ministry of Defence members
14 were there, but most of the members of the General Staff were inside
16 Q. Thank you. And could you tell me who of the KLA General Staff
17 members were in Albania
18 A. As I already said, members of the logistics department, the head
19 of logistics was Xhavit Haliti. Azem Syla was there as well, but he was
20 not staff commander, but he was minister of defence at the time. I was
21 there after April as a member of the Ministry of Defence. In May/June
22 Sylejman Selimi was present there as well. Other members were present as
23 well by the end of May and beginning of June, members of the -- such as
24 Thaqi, members of the government.
25 Q. Thank you. Thank you. Am I right when I say that you passed the
1 decision to establish the brigades in February 1999?
2 A. No. The decision to establish brigades was issued earlier, and
3 it was not issued by me but by the department. The brigades began to be
4 formed in November, December, January, and some of the brigades were not
5 fully established until the end of the war. They were in a process of
6 development up until the end of the war.
7 Q. Thank you. Mr. Zyrapi, yesterday when I asked you about the
8 Pastrik Operational Zone you told me that 121st through 126th Brigade
9 were operating there; but in this decision of the
10 Pastrik Operational Zone commander where areas of responsibility are
11 designated, I found that there was also a 127th Brigade in the
12 operational zone -- in the Pastrik Operational Zone.
13 A. I explained it yesterday, where the brigades were. There was a
14 decision to form another brigade, the 127th, but it was not formed. So
15 the order was given, but it was not formed as a brigade.
16 Q. Thank you. That means that the decisions that we have need not
17 have been implemented to the full extent, as is indicated in them?
18 A. Yes, the 127th is a case in point, it was not established as a
20 Q. Thank you. Mr. Zyrapi, am I right when I say that in the
21 planning of large-scale operations, the political administration of the
22 KLA General Staff also took part in 1999, in March?
23 A. Not always. On some occasions they did.
24 Q. Thank you. I was referring to large-scale operations. And now I
25 would like to know what operations involved the participation of the
1 political administration in 1999.
2 A. During that period, they took part in the preparation of the
3 Shigjeta Operation, the Arrow Operation.
4 Q. Thank you. Let's clarify. That's the action to launch an attack
5 from Albania
6 the 9th of April, 1999; am I right?
7 A. Yes, it started on the 9th of April.
8 Q. Thank you. And did the political administration take part in the
9 planning of any other operations?
10 A. As far as I remember, no.
11 Q. Thank you. And could you now tell me, what operations were
12 planned by the staff, the Supreme Command Staff of the KLA, from the
13 24th of March, 1999, onwards until the time when you stopped being the
14 Chief of the General Staff?
15 A. In addition to the Arrow Operation, there were plans for the
16 protection of the population, the defence of territories where the KLA
17 was operating.
18 Q. Thank you. Mr. Zyrapi, am I right in saying that you came over
19 to Metohija from Albania
20 travel to the area of Drenica?
21 A. I entered in May 1998, 28th of May, not in March. And the
22 journey continued for ten days until I reached Drenica.
23 Q. Thank you. My mistake.
24 Am I right in saying that you were tasked by the General Staff to
25 train troops of the KLA and to verify the capabilities of the local
2 A. Yes.
3 Q. Thank you. Am I right in saying that at the time there were no
4 operational zones?
5 A. When I arrived in May there were no zones, the only exception
6 being Drenica, and in June the Dukagjini Zone began to be formed and the
7 other zones followed.
8 Q. Thank you. Am I right in saying that from May 1998, when you
9 came, until November 1998 that only Mr. Selimi, Mr. Bashota, and
10 Mr. Grabovci of all the members of the General Staff were in Kosovo,
11 sometimes Hashim Thaqi when he was not in Albania, but you always were on
12 the move, and you never were together in one place?
13 A. Yes, it's correct. In addition to Selimi, Bashota, and Grabovci,
14 Jakup Krasniqi was always in Kosova, while the others used to move
15 between Albania
16 Q. Thank you. Am I right in saying that there was no daily
17 communication between members of the General Staff and the local
19 A. Yes, that's correct. To my recollection, there was no
21 Q. Thank you. Am I right in saying that apart from you, no other
22 member of the General Staff of the KLA had any experience of a
23 professional military officer, in 1998 while you were there?
24 A. That's true as far as the General Staff is concerned, while in
25 the brigades there were professional soldiers involved.
1 Q. Mr. Zyrapi, I'm referring only to the May-to-November 1998
2 period, not afterwards. From the moment you came to Kosovo and Metohija
3 until your appointment, that is the period that I'm asking you about.
4 A. That's correct, yes.
5 Q. Thank you. Am I right in saying that local unit commanders were
6 men of standing in the villages where those units operated?
7 A. Yes.
8 Q. Am I right in saying that on the 15th of June, 1998, in the
9 Dukadjin valley a decision was taking on mobilisation?
10 A. I don't know of a decision as such, but I know that at this time
11 the decision to form the Dukagjini Operational Zone was taken.
12 Q. Thank you.
13 MR. DJURDJIC: [Interpretation] Let's see Exhibit P431.
14 Q. And before this document is brought on the screen, Mr. Zyrapi,
15 and you saw it the day before yesterday and yesterday, these are minutes
16 from Duskaja, Glodjane, Baranski valley, Lusanska valley, and Drinska
17 valley staffs dated 29th of June, 1998. We see who attended the meeting
18 here, and I meant to work on this document to reach the part I am
19 interested in. On page 1 in the Albanian version, S majl, that's
20 Ramush Haradinaj if I'm correct, says we're dealing with the liberation
21 of the whole country through a general uprising. Do you agree that at
22 the time in that part of Kosovo and Metohija that it went for a general
23 uprising or a liberation of a country through a general uprising?
24 MR. NEUNER: Before the witness, answers I'm trying to find the
25 general uprising portion in the document if my learned colleague could
1 please assist because the Prosecution can't follow.
2 MR. DJURDJIC: [Interpretation] Third paragraph from the beginning
3 of the minutes, Smajl speaking, the last part of that sentence, it is
4 about the liberation of the country through a general insurgency.
5 THE WITNESS: [Interpretation] This shows that
6 Mr. Ramush Haradinaj pointed out the fact that this is not a war of a
7 group or of an individual but of the whole nation, that the liberation of
8 the country should be carried out through a general insurgency, but it's
9 a not a proclamation for mobilisation, it's not a call for mobilisation.
10 MR. DJURDJIC: [Interpretation] If I can get the interpretation of
11 the witness's answer, please.
12 Q. Sorry, can I get the last part of your last answer.
13 MR. DJURDJIC: [Interpretation] Interpreter, please.
14 THE WITNESS: [Interpretation] I said that Mr. Ramush Haradinaj
15 pointed out the fact that a war is not a war of an individual or of a
16 group but of a whole nation, that this is a general uprising; however, by
17 saying this he is not proclaiming this situation of general uprising or
18 he's not calling for mobilisation, he's just expressing his opinion.
19 MR. DJURDJIC: [Interpretation]
20 Q. Thank you. Let's take a look at the last paragraph of the
21 minutes. Mr. Major is being referred to. Could you please explain who
22 that was.
23 A. The Major at the time was Sali Veseli.
24 Q. Mr. Zyrapi, I think it's supposed to be at the end of this page,
25 starts in Albanian with a sentence:
1 "Tying the strategic operational axes in Junicko field, Keqe, and
2 other parts of the Dukagjin is a prerequisites for the spread of the war
3 and for supplies to those parts which are not supplied and which would
4 lead to the final liberation of Kosovo."
5 Does this go to the creation of a territory or a zone to be used
6 for the supply of arms for the insurgency that we were talking about?
7 A. According to these meetings, it is about a zone or area that
8 would facilitate the supply of the KLA.
9 Q. Thank you. Let's turn the page, please. Let's go to page 2.
10 Below the first bold letters Smajl there's a paragraph attributed to
11 The Major. After that The Major read the order to mobilise the
12 Junicko field dated the 15th of June, 1998.
13 A. This is what the document says, yes.
14 Q. There was an order in Junik area on mobilisation on the
15 15th of June, 1998?
16 A. According to this document, yes.
17 Q. Thank you. Now I'm going to ask you in the penultimate paragraph
18 Mr. Mala is speaking. Could you please explain who that person was.
19 A. Mala, as far as I remember, was a pseudonym of Alush Agushi.
20 Q. Thank you. Please take a look at the third sentence. He says:
21 "What about the misuse of insignia, uniforms, and weapons?"
22 Could you please explain what Mr. Mala is referring to?
23 A. I don't remember, but according to this document there were
24 misuse of insignia and uniforms at the time.
25 Q. Thank you. Let's go to the last paragraph. Mr. Haradinaj, or
1 Smajl, takes the floor in the first sentence and says:
2 "To assist one another in future we have to supply weapons to the
3 whole population above the age of 16."
4 Did this mean that all the persons above the age of 16 would be
5 taking part in the general insurgency and that they were to be provided
6 with weapons?
7 A. It says 16 years of age, but to what I know it was 18 and older,
8 persons of the age of 18 and older could join the KLA.
9 Q. Thank you. But Mr. Haradinaj obviously thought that the age 16
10 was enough for somebody to be recruited and mobilised and able-bodied.
11 Let's continue.
12 Mr. Zyrapi, on the penultimate page, that would be page 4 in the
13 Albanian and 5 in English. Mr. Zyrapi, I would like to quote Mr. Agron.
14 Could you please spell out his name.
15 A. Agron is Rexhep Selimi, it's his pseudonym.
16 Q. Thank you. And Mr. Selimi is saying:
17 "I'm explaining to you that you can be called the
18 Local Operational Staff of the Plain of Dukagjin, while bearing in mind
19 the KLA's division into zones. The whole of Kosovo is one operational
20 zone without ... regions."
21 Could you please comment this.
22 A. To what I know from the time I was there, the Kosova area,
23 overall area, was divided into operational zones, but maybe this is an
24 influence from the LPK, the patriotic movement that I mentioned, that
25 regarded Kosova as one zone.
1 Q. Thank you. Am I right in saying that local, commanders until
2 autumn 1998, took independent and autonomous decisions on the actions
3 that they would be undertaking?
4 A. For the area that I know and according to the information I had
5 at the time, yes, that was so in some of them.
6 Q. Thank you. Am I right in saying that until autumn 1998,
7 General Staff of the KLA did not function in terms of the prevailing
8 military doctrine?
9 A. To what I know, yes, it is so more or less.
10 Q. Thank you. Am I right in saying that on the 18th of June, 1998
11 there was an attack on a convoy of military and police vehicles at the
12 place called Iglarevo, in the Klina municipality, and that on that
13 occasion a number of persons were suffered, casualties or fatalities?
14 A. I'm not familiar with this incident. I was not there at the
15 time; and as I said, I don't know of this incident.
16 Q. Excuse me, when -- where were you on the 18th of June, 1998
17 A. At the time I was in the territory of the Pashtrik Zone, touring
18 the units of the Pashtrik Operational Zone and assisting them. So I was
19 not in this territory that you mentioned during this time, and I didn't
20 receive information about this incident.
21 Q. Thank you. Did you receive any information that there was a
22 blockade of the Pec-Prizren road and that, from the direction of Pec,
23 barricades were erected at the Dolac village, Klina municipality, and
24 from the direction of Pristina the barricades went up in the municipality
25 of Glogovac in the village of Lapusnik
1 A. The blockade of the roads at Llapushnik and at the territory
2 between Kijeve and Kline, I don't remember the exact name of the village,
3 it is true that the roads were blocked there.
4 Q. Thank you. Am I right in saying that Kijevo was blockaded for a
5 month and that the KLA forces tried to capture Kijevo?
6 A. It is true that it was blocked; however, I don't know whether it
7 was captured or not during this period.
8 Q. Thank you. I did not say "captured," but there were attacks with
9 the intent to capture Kijevo?
10 A. I don't remember. I know that the road was blocked, but for
11 these attacks with this intention, I'm not familiar with.
12 Q. Thank you. Is it known to you that Tahir Zemaj issued an order
13 to block the Pec-Pristina road?
14 A. You're referring to June 1998? No.
15 Q. Very well. Am I right in saying that in the Lapusnik village
16 there was a KLA prison in that period, in 1998, summer of 1998?
17 A. From what I remember, no.
18 Q. Do you remember whether at any point in time there was a prison
19 in Lapusnik, and in which period if you do remember?
20 A. To my recollection, no, there wasn't in any period, not in 1998,
21 not in 1999.
22 Q. Thank you. Is it known to you that the KLA captured the Obilic
23 thermo-electric plant in 1998?
24 A. I have information that this happened, that KLA entered an area
25 of Mirash and had it under its control for some time.
1 Q. Thank you. Do you know any information that a bus belonging to
2 the thermo power-plant of Obilic with nine passengers was abducted at
3 roughly the same time?
4 A. No, I have no information about that because I was not in this
5 territory at the time.
6 Q. Thank you. Am I right in saying that in July 1998 you became
7 chief of the operational administration of the General Staff of the KLA,
8 I think it was on the 15th of July?
9 A. Yes, that's correct. In mid-July I was appointed chief of the
10 operational department of the General Staff of the KLA.
11 Q. Thank you. Am I right in saying that at the time, in 1998 when
12 you were appointed chief of the operational section of the General Staff
13 of the KLA, that the KLA held 40 to 50 territories in Kosovo and Metohija
14 under their control was centred around Malis [as interpreted]?
15 A. I don't remember the exact percentage, but quite a big part of
16 this territory was under its control, yes.
17 Q. Thank you. What I just put to you is -- I don't know if you
18 recall that interview that you gave to the Zeri, that's when you
19 mentioned the percentages. Do you now recall now? Have I jogged your
21 A. When I was interviewed, most probably I did give the percentage,
23 Q. Thank you. And you, in fact, added that the policy pursued by
24 the Bukoshi's government was better -- had it been better and had the
25 cooperation with the army been better, then greater amount of territory
1 would have been taken; do you recall that?
2 A. Yes.
3 Q. Thank you. Am I right in saying that the KLA in July 1998 wanted
4 to place another town under its control, another town apart from
6 A. In July at the time, the aim of the KLA was to spread the
7 territory, and when I became head of operations I began to tour the area
8 of responsibility of Dukagjin; however, I was not aware of such
9 intentions to capture a town or another territory.
10 Q. Thank you. Yes, I'm looking for that part of the interview that
11 you gave to the Zeri where you noted that in addition to Malisevo --
12 well, I don't want to waste our time on that. It's not so important.
13 Thank you. Let's move on. Am I right when I say that in the summer of
14 1998, it was widely known that the Albanian civilians were killed by the
15 KLA for alleged cooperation or collaboration with Serbia?
16 A. At the time, I didn't know who. I did hear this as an
17 information, but I didn't have any other knowledge, concrete knowledge.
18 Q. Thank you. And am I right that the General Staff of the KLA
19 informed the public about that?
20 A. I'm not saying it didn't, but I wasn't involved.
21 Q. Mr. Zyrapi, I'm not saying that you took part, that this was done
22 under your control, but what about your information and knowledge about
24 A. Only rumours, but not correct, accurate information.
25 Q. Thank you. Am I right in saying that the KLA General Staff and
1 KLA generally never undertook investigations about the murders and
2 killings of Albanian civilians loyal to Serbia?
3 A. As far as I remember, in 1998, no.
4 MR. DJURDJIC: [Interpretation] I would like to ask the usher to
5 bring up D002-20-51 paragraph 37, please. That would be page 7 in
6 English, in my version. No indication of page in Albanian.
7 Q. Can you see paragraph 37, please?
8 A. Yes.
9 Q. Mr. Zyrapi, that is your statement which you gave on the
10 25th of November, 2005.
11 A. Yes.
12 Q. Is it true what is stated in your statement?
13 A. Yes.
14 Q. Thank you.
15 MR. DJURDJIC: [Interpretation] Your Honours, I would like to
16 tender this paragraph 37 as evidence, it's paragraph 37.
17 JUDGE PARKER: At the moment we haven't seen an English text,
18 Mr. Djurdjic.
19 MR. DJURDJIC: [Interpretation] I apologise, Your Honours. That
20 would be page 7 in English. Yes, page 7, last paragraph on that page.
21 [In English] Yes, I have ...
22 [Interpretation] Your Honour -- well, if there's an error, I can
23 read it. Perhaps it would be a good idea.
24 JUDGE PARKER: Something, I believe, is happening now.
25 MR. DJURDJIC: [Interpretation] Sir, I can tell you that's D000 --
1 JUDGE PARKER: We -- the problem is an English version cannot be
2 located in e-court. We will mark for identification paragraph 37 of the
3 statement of the 25th of November, 2005, and perhaps you can take it up
4 with the Registry staff after we have sat today. And when we find an
5 English version of it, it can be admitted as an exhibit.
6 MR. DJURDJIC: [Interpretation] Thank you, Your Honour. I have
7 the ERN number of -- for the whole of the statement that Mr. Zyrapi gave
8 on the 25th of November, 2005, but let us move on. Thank you.
9 THE REGISTRAR: That will be D00060 MFI, Your Honours.
10 MR. DJURDJIC: [Interpretation]
11 Q. Mr. Zyrapi, in July 1998 were you in the Dukadjin Valley
12 A. Yes, in July 1998 I was in the Dukagjin Plain.
13 Q. Thank you. And the KLA General Staff, did it decide to attack
14 Orahovac on the 17th, 18th, and 19th of July, 1998?
15 A. No.
16 Q. Thank you. And do you know who made this decision to launch an
17 attack on Orahovac?
18 A. According to what I know, I was a member of the staff at the
19 time, I was direct -- head of the operations department, and none of the
20 members of the staff gave that order to attack Rahovec.
21 Q. Thank you. I'm asking you whether you learned who had issued the
22 order to attack Orahovac?
23 MR. NEUNER: Just could I ask my learned colleague, I've listened
24 to this line of questioning. So far this witness has not confirmed that
25 even an attack on Orahovac occurred. Could you maybe clarify that first
1 with the witness, so that we see what the basis of the witness's answers
2 are. Suggesting to him that attack orders were filed, don't help us at
3 this point in time if the witness doesn't even recall whether there was
4 an attack on that town in July 1998. Thank you.
5 MR. DJURDJIC: [Interpretation] Thank you, my learned colleague,
6 but there is an entire statement made by this witness about the knowledge
7 about the attack on Orahovac and his stay in Orahovac. That's why I
8 didn't do it gradually to lay the foundations; and secondly, this is the
10 Q. So, Mr. Zyrapi, do you know or did you learn at any point who
11 issued the order to attack Orahovac?
12 A. According to some inquiries I made at the time, it was the
13 commander of the unit that was in Rahovec organised the attack, but he
14 was killed. It was impossible to confirm that with him.
15 Q. Thank you. How many days did the KLA hold Orahovac?
16 A. I can't remember how long they held Rahovec because I was not
17 there. On the 18th and 19th of July I returned from Dukagjin, and at
18 that time Rahovec was not under KLA control.
19 Q. Thank you. And did you meet Mr. Hashim Thaqi near Orahovac at
20 the time when you went there yourself?
21 A. Yes, I met all the members of the General Staff, including
22 Hashim Thaqi, upon my return.
23 Q. Can you tell me where you actually met with Mr. Thaqi?
24 A. I met Mr. Thaqi outside Rahovec. The place is called
25 Rasat e Rahovecit. There I also met the other members of the General
2 Q. Thank you. Am I right that Mr. Thaqi ordered that the road be
3 cut off with a bulldozer?
4 A. Yes, that's correct.
5 Q. Thank you. Mr. Zyrapi, do you know how many civilians were
6 killed by the KLA in Orahovac during the time that it was in its hands?
7 A. I've never had that information at my disposal, what you're
8 mentioning now, the number of civilians killed by the KLA.
9 Q. Thank you. And do you know that some civilians were arrested and
10 taken to the prison in Malisevo?
11 A. No. When I went there, there were Albanian civilians who were
12 leaving Rahovec and were trying to get shelter in other parts of the
13 country, such as in Suhareke.
14 Q. Thank you. And do you know that the KLA had its prison in
16 A. There wasn't a prison there at that period.
17 Q. Do you know that in July 1998 the KLA attacked the village of
18 Terusa [as interpreted]?
19 A. I heard that there was an attack in Opterusa, but I was not
20 there, I was outside the territory of the Pashtrik Zone. I was in
21 another zone in the outskirts of Prizren. It's there that I heard about
23 Q. Thank you. Well -- but isn't Prizren in the Pastrik Zone?
24 A. Yes, it is, but at that time in June/July, it had not been formed
25 yet. There was no command yet.
1 Q. Thank you. You said that on the 19th you were close to Orahovac?
2 A. Yes, when I returned from Dukagjin, I was there on the 19th.
3 Q. Thank you. Well, how far is the place where you were from
5 A. As the crow flies, I would say 15 or 20 kilometres.
6 Q. Thank you. And did you hear that the KLA attacked and liberated
7 Retimlje on the 17th of July?
8 A. No, I didn't hear about that. At that time I was in the
9 Dukagjini Plain area.
10 Q. And did you hear that the KLA liberated Zociste, that was on the
11 21st of July, 1998?
12 A. No, no. The 21st of July there were fightings at that time, not
13 only there but also in Bllace, in the direction of Llapushnik.
14 Q. Thank you. Do you know that the KLA imposed a tax to finance its
15 activities and that civilians had to pay this tax?
16 A. Which period are you referring to?
17 Q. I'm referring to the period from the time when you came to
18 Kosovo and Metohija, so May 1998, throughout your stay there.
19 A. I don't have any information about that.
20 Q. Thank you.
21 MR. DJURDJIC: [Interpretation] Now I would like to have on our
22 screens P00439.
23 Q. Mr. Zyrapi, the date here is the 2nd of July. It's a decision on
24 assignment. Could you please explain to me what -- to what post is
25 Officer Ujku assigned?
1 A. I cannot see it here in this document, what kind of duty he was
2 being assigned to. He is just being transferred or reassigned, but it
3 does not say anything about the task he was given.
4 Q. Thank you. But this is not a document on the transfer from one
5 post to another; am I right?
6 A. No, from one unit to another, which means reassignment.
7 Q. Mr. Zyrapi, please listen to me, you can't see that from this
8 document. What is the sense of this document?
9 A. The commander of the operational zone has issued a document
10 called reassignment, which reassigns the officer, Ujku, from the
11 Dukagjini Operational Zone to the Dujake village, but it does not say
12 what post he is supposed to take there.
13 Q. Mr. Zyrapi, I'm sorry, but is the village of Dujak
14 Dukadjin Operational Zone?
15 A. It is in the Dukagjini Zone.
16 Q. Thank you.
17 MR. DJURDJIC: [Interpretation] Could we please have document P441
18 on our screens, please.
19 Q. Mr. Zyrapi, this is a document that you yourself signed. The
20 date is the 28th of November, 1998, it is sent to the commanders of the
21 operational zones. Now I want to know -- I want you to explain what it
22 says in item 1 of this order.
23 "The operational zone commanders are to increase checks and to
24 involve the members of the command, the military police commanders, to
25 urgently stamp out any negative trends and the abuse of persons and
1 private property."
2 Could you please explain to me what incidents are you talking
3 about here?
4 A. This order, speaking about negative phenomena, is based on the
5 complaints of zone commanders, about people who had moved from one area
6 to another, had taken property from people without issuing any kind of
7 certificate. This order attempts to do this to increase the control of
8 the zone commanders in order for them to stop this kind of phenomenon.
9 Q. Thank you. And who abused persons?
10 A. According to reports, there were some soldiers from some units
11 doing those kinds of things.
12 Q. Thank you. And could you explain to me item 3, what kinds of
13 inappropriate behaviour are we talking about, inappropriate behaviour
14 towards civilians?
15 A. I mean the same thing on the basis of the complaints or reports I
16 received from the zone commanders, but also from the civilian population,
17 about incorrect or inappropriate behaviour by KLA soldiers towards people
18 and their property; and this order attempts to address exactly that.
19 Q. Thank you. You issued this order in order to stamp out those
20 kinds of behaviour that you listed in this order; am I right?
21 A. Yes. It is in the framework of taking disciplinary measures to
22 stamp out negative phenomena.
23 Q. Thank you.
24 MR. DJURDJIC: [Interpretation] Your Honours, I have just a few
25 documents to go through with the witness, so perhaps I could do that
1 after the technical break because I think the time has come for it now.
2 JUDGE PARKER: We will resume at 4.15.
3 --- Recess taken at 3.44 p.m.
4 [The witness stands down]
5 --- On resuming at 4.18 p.m.
6 JUDGE PARKER: Mr. Djurdjic.
7 MR. DJURDJIC: [Interpretation] Thank you, Your Honour. Before we
8 bring in the witness, I've been informed that this glitch in the e-court
9 has been eliminated and under D0024953 marks the English translation of
10 the witness's statement taken on the 25th November 2005, and hereby I
11 move for that transcript or that statement to be tendered into evidence,
13 JUDGE PARKER: I thought it was only paragraph 37 that you had
14 tendered. Well, that being so, the document marked for identification as
15 D60 will become Exhibit D60.
16 MR. DJURDJIC: [Interpretation] Yes, yes.
17 [The witness takes the stand]
18 JUDGE PARKER: Mr. Djurdjic.
19 MR. DJURDJIC: [Interpretation] Thank you, Your Honour.
20 I would like to ask the usher to bring up P437, please.
21 Q. Mr. Zyrapi, this is your order dated 20th January 1999. In
22 paragraph 1 of this order you order to operation zone commanders to
23 compile regular daily combat reports in the morning between 10.00 and
24 11.00 hours and in the evening between 20 and 2100 hours. What is the
25 purpose of such regular daily combat reports, if you could explain to us,
2 A. The order that was issued and the request that they report was in
3 order to have a clear idea of what was going on in the operational zones.
4 Q. Thank you. Am I right in saying that the failure to submit such
5 reports would bring criminal responsibility over the commander of the
6 operational zone in question?
7 A. Yes, if they did not send in the reports, then they would.
8 Q. Thank you. Mr. Zyrapi, am I right in saying that at the time the
9 Kosovo Verification Mission was in Kosovo and Metohija?
10 A. Yes.
11 Q. Thank you. We've dealt with this document.
12 MR. DJURDJIC: [Interpretation] Could we please bring up
13 document P442, please.
14 Q. Mr. Zyrapi, I would like you to explain this order by the
15 commander of the Pastrik Operational Zone. Am I right in saying that the
16 military police does not carry out investigating judge's instructions if
17 they do not have an order to do so by the operational zone commander?
18 A. The order says that if the investigating judge has asked to carry
19 out investigations in the zone, that request is sent to the military
20 police, but the military police needs the approval of the zone commander
21 to execute it.
22 Q. Thank you. But this does not have anything to do with
23 investigations. So I am right in saying that an operational zone
24 commander has to issue an order to the military police so that the
25 military police can carry out orders of the investigating judge?
1 A. Yes.
2 Q. Thank you. Which means that a military court investigating judge
3 is not autonomous in his work, particularly in terms of having his orders
4 carried out?
5 A. The order has been executed, but in order for him to be able to
6 use the military police of that zone, the zone commander needed give that
8 Q. Thank you. But you are a career officer, and you know that
9 instructions of the military investigating judges are to be carried out,
10 military police organs, and military organisations; am I right in
11 presuming so?
12 A. Yes.
13 Q. Thank you.
14 MR. DJURDJIC: [Interpretation] Your Honours, I would like
15 Mr. Usher to bring up P435 on the screen, please -- page first, please.
16 Thank you.
17 Could we please go to page 2 of this document.
18 Your Honours, I would like a previous explanation. There is a
19 set of decisions in this exhibit, 304, that I received from the OTP. I
20 would like to know whether all documents submitted to me have been
21 tendered into evidence and accepted; and if not all of them, then which
22 of them were because those documents do not have any interconnections.
23 They come from different structures even.
24 JUDGE PARKER: All of them have become an exhibit, the one
1 MR. DJURDJIC: [Interpretation] Thank you. Then I will deal with
2 only those that I'm interested in. Please go to page 02460. If I may of
3 assistance, it is an attack order without a date, and it concerns the
4 Pastrik Operational Zone.
5 MR. NEUNER: To assist, I believe it's the next page, yes.
6 MR. DJURDJIC: [Interpretation] Thank you.
7 Q. Mr. Zyrapi, could you please tell us, since there is no date on
8 this document, when was this document issued if it's known to you judging
9 by its contents?
10 A. First of all, this document and the documents we saw earlier are
11 documents used in the training of battalion commanders. They served as a
12 template, as an example, how to train battalion commanders. They are not
13 orders in their full meaning.
14 Q. Thank you. Does this document contain forms or templates that
15 you used for training?
16 A. Yes, it's a sample document used in that training, as are the
17 other documents that I have produced.
18 Q. Thank you. But I'm a bit confused because one bears the
19 signature of Ekrem Rexha, and there is a stamp dated the
20 4th of February, 1999. But thank you. I will accept that these were
21 just templates and had no force.
22 Another question: Where were you between 25th of March, 1999,
23 until 2nd
24 A. On the 25th of March, I was at the command in Divjake. On the
25 26th I went to the commander of the Pashtrik Operational Zone; and I was
1 stationed in the Pashtrik Operational Zone and in the Berisha area,
2 moving around this territory, until April 1999, 2nd April.
3 Q. Thank you. Could you please remind me where the commander of the
4 Pastrik Operational Zone was at the time, 26th?
5 A. On the 26th I went to his command in Nishor village.
6 Q. Thank you, Mr. Zyrapi. I have no further questions for you.
7 MR. DJURDJIC: [Interpretation] Thank you, Your Honours, for your
8 patience. I have concluded my cross-examination.
9 JUDGE PARKER: Thank you, Mr. Djurdjic.
10 Now, Mr. Neuner, is there any re-examination?
11 MR. NEUNER: Very few, Your Honours, probably I can deal with
12 this in two or three minutes.
13 Re-examination by Mr. Neuner:
14 Q. Witness, you were asked today and yesterday by my learned
15 colleague about combat operations from the KLA. What I'm interested in
16 is: Could you tell us briefly what was the reaction of the civilian
17 population towards combat operations carried out by the KLA?
18 A. If you can be more specific about the operations. Which
20 Q. For example, you mentioned Operation Arrow in your evidence. I'm
21 interested, so to speak, whether the civilian population, as the result
22 of Operation Arrow, had to leave certain territories?
23 A. The Operation Arrow was carried out at the border area between
25 by the KLA had as their goal the defence of the territories, the
1 evacuation of the population, and finding shelter for the population. So
2 in these type of operations, there was no specific reaction of the
3 population toward us.
4 Q. I want to be a little bit more specific --
5 JUDGE PARKER: Mr. Djurdjic.
6 MR. DJURDJIC: [Interpretation] I would like to ask for
7 interpretation of this witness's answer, please, the one -- the answer to
8 the last question, please.
9 JUDGE PARKER: [Microphone not activated]
10 THE INTERPRETER: Microphone for His Honour, please.
11 JUDGE PARKER: Are you able to say whether you are now getting
12 Serbian interpretation?
13 MR. DJURDJIC: [Interpretation] Yes, yes, I understand it. I read
14 it in English. Please.
15 JUDGE PARKER: Thank you.
16 Carry on, please, Mr. Neuner.
17 MR. NEUNER:
18 Q. I want to be a little bit more specific. You said this
19 Operation Arrow was in the border area between Albania and Kosovo. Was
20 through that or as a result of that operation any civilian population
21 moved from a territory?
22 A. During this operation at this territory there was no population.
23 It had moved earlier from that territory.
24 Q. Do you know the reason why the population had moved earlier away
25 from that territory?
1 A. During even the earlier Serb offensive, the proposition was
2 expelled from the villages and was sent to Albania and other directions.
3 Q. Can I just ask you: Do you recall a KLA operation which resulted
4 in the permanent removal of the local population from its own territory?
5 And I'm referring to the period 1998 till 1999.
6 A. To my recollection, no.
7 Q. Do you recall any KLA operation which caused that the population
8 in Kosovo or part thereof had to move across the border into Albania
10 A. To what I know, no.
11 MR. NEUNER: The Prosecution has no further questions, Your
13 [Trial Chamber confers]
14 JUDGE PARKER: Mr. Zyrapi, you'll be pleased to know that that
15 concludes the questions for you. The Chamber would like to thank you for
16 your assistance with the answers you've given and for your being prepared
17 to come to The Hague
18 officer will assist you out. Thank you indeed.
19 THE WITNESS: [Interpretation] Thank you.
20 [The witness withdrew]
21 JUDGE PARKER: Ms. Kravetz.
22 MS. KRAVETZ: Good afternoon, Your Honours. The next Prosecution
23 witness is Mr. Jose-Pablo Baraybar.
24 JUDGE PARKER: Thank you.
25 [The witness entered court]
1 JUDGE PARKER: Good afternoon.
2 THE WITNESS: Good afternoon, Your Honours.
3 JUDGE PARKER: Would you please read aloud the affirmation that
4 is shown to you on the card.
5 THE WITNESS: I solemnly declare that I will speak the truth, the
6 whole truth, and nothing but the truth.
7 WITNESS: JOSE-PABLO BARAYBAR
8 JUDGE PARKER: Thank you very much. Please sit down.
9 Now, Ms. Kravetz, you have some questions for the witness?
10 MS. KRAVETZ: Thank you, Your Honour.
11 Examination by Ms. Kravetz:
12 Q. Good afternoon, Witness. Could you please start by stating your
13 full name and present occupation for the record.
14 A. My name is Jose-Pablo Baraybar. Shall I spell that? My first
15 name is J-o-s-e, the second one is P-a-b-l-o, my last name
16 B-a-r-a-y-b-a-r. I am the executive director of the
17 Peruvian Forensic Anthropology Team by its acronym EPAF.
18 Q. And what are you by profession, Mr. Baraybar?
19 A. I'm a forensic anthropologist.
20 Q. In June 2002 where were you employed?
21 A. I was the head of the office on missing persons and forensics, by
22 its acronym OMPF, by the United Nations Mission in Kosovo.
23 Q. And when did you cease your employment with OMPF?
24 A. I ceased my employment with the UN as a whole on the
25 1st of May of 2007.
1 Q. In 2006, in late October and early November 2006, did you provide
2 a statement to the Office of the Prosecution of this Tribunal?
3 A. That is correct.
4 Q. Before coming to court today, did you have the opportunity to
5 review this statement?
6 A. Yes, I did.
7 Q. And having reviewed this statement, are you satisfied that the
8 information contained in the statement is true and accurate to the best
9 of your knowledge and belief?
10 A. Yes, it is.
11 Q. Did you also provide an expert report to the
12 Office of the Prosecution?
13 A. Yes, I did.
14 Q. And what is the main topic of your report?
15 A. The main topic is examination of forensic inspection of the
16 remains that were found in Serbia
17 then returned upon identification to Kosovo to the custody of my former
19 THE INTERPRETER: Interpreter's note: The witness is kindly
20 asked to pause before answering for interpretation. Thank you.
21 MS. KRAVETZ:
22 Q. Mr. Baraybar, I note that you don't have your headphones on.
23 Since we're both speaking the same language, you need to wait -- make a
24 pause between question and answer so everything is recorded.
25 JUDGE PARKER: We are being translated into a number of other
1 languages as well, and we have to allow time for the process. Gradually
2 you'll get used to the pausing.
3 THE WITNESS: Thank you, Your Honour.
4 MS. KRAVETZ:
5 Q. You were explaining the main topic of your report. Is it correct
6 that your report is attached to your statement as appendix C?
7 A. That is correct.
8 MS. KRAVETZ: Your Honours, I seek to tender both the statement
9 and the report, this is 65 ter 02794.
10 JUDGE PARKER: First the statement will be received.
11 MS. KRAVETZ: It's the same 65 ter number.
12 THE REGISTRAR: That will be P00453, Your Honours.
13 JUDGE PARKER: And the report ...
14 [Trial Chamber and Registrar confer]
15 THE REGISTRAR: That will be P00454, Your Honours.
16 MS. KRAVETZ: Thank you, Your Honour.
17 Q. Mr. Baraybar, did you also prepare a corrigendum to page 11 of
18 your report, which is a corrigendum to one of the graphs on this page of
19 the report?
20 A. Yes, I did.
21 MS. KRAVETZ: Your Honours, I seek to tender this one page into
22 evidence, it's 02795.
23 JUDGE PARKER: It will be received.
24 THE REGISTRAR: That will be P00455, Your Honours.
25 MS. KRAVETZ:
1 Q. Appendix A to your statement contains your CV which I don't
2 intend to go through in detail as its self-explanatory, but I would ask
3 you if you can briefly summarise your academic training in the field of
4 forensic anthropology for the Court.
5 A. Certainly. I have a Bachelor of Arts, a B.A. in archaeology from
6 University of San Marcos in Lima, Peru
7 the University of London
8 anthropology, and forensics. I am currently finishing my doctorate in
9 science at the University of Strasbourg
10 Q. Thank you. And since you provided your CV to the Office of the
11 Prosecution in October, 2006, have you published any peer review articles
12 in your field?
13 A. Yes, I have. Actually, they were published between 2007 and 2008
14 primarily, including a book co-authored with a colleague of mine,
15 Erin Kimmerle on skeletal trauma within human rights violations and
16 modern warfare; it is a textbook, so to speak.
17 Q. And you told us that you're currently employed in the Peruvian
18 forensic anthropology institute. What are your current tasks within this
20 A. I am a member of the Peruvian forensic anthropology team. It's a
21 non-profit organisation who advocates on the use of forensic sciences in
22 the search of the missing during the internal conflict of Peru
23 1980 and 2000. I was appointed as executive director based on my
24 qualifications, experience, exposure, I would say. Primarily I advise
25 the team on forensic issues and strategy issues.
1 Q. And before testifying in this case, have you previously testified
2 in other cases as an expert witness in this Tribunal?
3 A. I have indeed. As a matter of fact, I was also the resident
4 forensic expert of this Tribunal between 1996 and 2002, first in the
5 Rwanda Tribunal and in this Tribunal; and yes, I have testified in a
6 number of cases in this Tribunal.
7 MS. KRAVETZ: Your Honours, I seek to tender appendix A, this is
8 the witness's curriculum vitae, which is attached to his statement.
9 JUDGE PARKER: Um --
10 MS. KRAVETZ: Unless it's going to be --
11 JUDGE PARKER: I had rather assumed it was part of the statement.
12 MS. KRAVETZ: Okay. If it's going to be entered -- since the
13 report got a different number, I was tendering it separately. That's
14 fine, Your Honours.
15 JUDGE PARKER: The report has a different number because of its
16 separate significance.
17 MS. KRAVETZ: That's fine. Thank you, Your Honours.
18 Q. Mr. Baraybar, before we turn to your report, I want to ask you
19 some questions about your statement. In your statement you describe the
20 procedures and protocols that were in place to repatriate the mortal
21 remains found in clandestine mass graves in Serbia, you speak about three
22 such mass graves, Batajnica, lake Perucac
23 Could you tell us when the first repatriation of mortal remains found at
24 these mass graves from Serbia
25 A. Certainly. In November 2002, we must remember that the office of
1 missing persons and forensics was opened in June 2002. By November 2002
2 the first repatriation of eight, if I recall well, sets of remains took
3 place from Serbia
4 Petrovo Selo under code PS in the report. This was arranged at the time
5 with the forensic institute in Nis
6 mention, that is the protocol on the repatriation of mortal remains.
7 Q. And I understand from your statement that the exhumations of the
8 mortal remains found at these three sites where the mass graves were
9 discovered were carried out prior to the establishment of OMPF; is that
11 A. That is correct.
12 Q. Now, in your statement when you're referring to one of these two
13 protocols, the protocol on exchange of forensic experts and expertise,
14 you refer to the fact that the mortal remains were re-exhumed from the
15 holding facilities where they were in Serbia and that an OMPF was present
16 during these examinations and also to ensure the secure transport to
17 Kosovo. When did this take place that OMPF experts began to attend the
18 re-exhumation of bodies?
19 A. If -- again, I think from my recollection, having been a long
20 time now, this happened in November 2002 with the first eight sets of
21 remains. There was always an OMPF representative present when these
22 activities took place. If I recall well, the Petrovo Selo remains were
23 actually reburied in a cemetery or something of the kind and were still
24 temporary holding facility, but was like a cemetery, they were buried;
25 while the remains from Batajnica, for example, in Belgrade, were kept in
1 some kind of underground tunnel or bunker or something of the kind, close
2 to the Danube
3 somebody present from my office or former office to oversee the process
4 and accompany the remains back to Kosovo.
5 Q. And I understand from your statement that these remains were
6 identified as coming from Kosovo based on DNA samples and testing done by
7 the OMPF; is that correct?
8 A. It is correct. However, the first eight sets of remains did not
9 have at the time DNA
10 to obtain from the Serb authorities photographs of the clothing of the
11 dead, meaning Petrovo Selo in this case, and organised an exhibition of
12 the photographs of the clothing for family members to identify some of
13 the items of clothing, they were so identified; and based on that, we
14 drew a number of presumptive identifications of these eight people upon
15 discussion with our colleagues in Nis. And based on that, these bodies
16 were returned to Kosovo. All the other remains that came afterwards did
17 come, however, with DNA
18 Q. And did the DNA
19 eight set of remains, become available subsequently?
20 A. Yes, it did.
21 Q. Now, when you prepared your report and you gave this statement to
22 the OTP, had the repatriation of remains from Serbia to Kosovo been
23 concluded or was it still ongoing?
24 A. No, it had concluded.
25 Q. Do you recall approximately when this process was concluded, if
1 you recall?
2 A. I do not recall exactly. I would say it happened early 2006 most
3 likely, but again it is just based on my recollection. I could not be
4 totally precise on that.
5 Q. Now, in paragraph 29 of your statement you speak about the chain
6 of custody of how these remains were transferred from -- to Serbia
7 later handed over to OMPF, and you indicate that when they were handed
8 over, OMPF proceeded to give or carry out a forensic inspection. Can you
9 explain what's the purpose of these forensic inspections?
10 A. Well, the issue is the following: We at the time were under
11 tremendous pressure, of course, of the families primarily in Kosovo to
12 guarantee in a way that the remains that have actually come from Serbia
13 had or not DNA
14 on this, what we needed to do is contrast in a way the inventory we had
15 received with the remains that were contained in the body-bag. Every
16 started as a cursory examination to say there is a body in the bag and
17 reports are referring to one body as well.
18 The problem then became that these inspection or examination
19 became something slightly more complicated when we found some
20 inconsistencies between the contents of the bag and what was stated on
21 the report.
22 To give you an example, we may find the remains of multiple
23 individuals within a bag that allegedly contained the remains of one
24 single person. Obviously, the DNA
25 many people being identified. Therefore, we could not just return the
1 remains as they were to the families. So the forensic inspection became
2 like a second examination, certainly a much more cursory examination, but
3 a second examination that looked at whether we had only one person or
4 more than one; and second, whether there was some kind of coincidence
5 between the description in the autopsy report we received from the
6 Serbian authorities and what actually was there.
7 Q. So just so we're clear, when you said it became a bit more
8 complicated because there were inconsistencies between the contents of
9 the bag and what was stated in the report, you were referring to the
10 reports that accompanied each set of remains?
11 A. That is correct. The autopsy report provided by the Serbian
12 authorities from any of the forensic institutes that participated in the
14 Q. And who would normally participate in these forensic inspections?
15 A. At OMPF we had multi-disciplinary teams of pathologists,
16 anthropologists, radiographers, scene of crime officers, sometimes even
17 an odontologist that was present during these inspections.
18 Q. Did you yourself participate in any of these forensic
20 A. In quite many of them. I could not really give you a precise
21 number, but in a few dozens of them I was present and actually conducting
22 some of them myself.
23 Q. You spoke about there being a pathologist as a member of the team
24 that conducted these forensic inspections. What would be the role of a
25 pathologist during these inspections?
1 A. The pathologist is normally a person who would certify the cause
2 of death, and that is why in the reports that I submitted together with
3 my statement back then, the signature of the -- of the inspection report
4 would be done by a pathologist, the one specifying or certifying that
5 these persons died of this or that.
6 Q. And what would be the role of something like yourself, a forensic
8 A. Well, you know that when people are killed and time passes,
9 tissues decay, decompose, and sometimes disappear. What is normally left
10 are only bones. Pathologists are medical doctors trained primarily to
11 work with soft tissues, with organs of some kind; and anthropologists are
12 trained to work with bones.
13 In order to determine the most probable cause of death, meaning
14 what is the injury that likely killed a person, an anthropologist, in
15 order to assist the pathologist, must reconstruct as much broken bones as
16 possible. Violent death in general terms is accompanied -- I'm being
17 very general here - with broken bones. So it is some kind of a jig-saw
18 puzzle, if you wish, besides certainly normal other determinations like
19 age, sex, height, handedness, and things of the kind.
20 Q. And were your findings during these forensic inspections recorded
21 in any way?
22 A. Certainly. I provided back then a form, a forensic inspection
23 form, per each body that was examined. So every body or body-bag, let's
24 put it that way, that came from Serbia
25 autopsy protocol from the Serbian authorities; and to this one we
1 attached, after we finished our examination, another short summary form
2 indicating the findings of the forensic inspection.
3 Q. Were the standards that were applied during these forensic
4 inspection reports appropriate or accepted standards in international
5 science of -- forensic science?
6 A. Most definitely. They were, and they are.
7 Q. And was also a death certificate produced at the conclusion of
8 these forensic inspections?
9 A. That is correct. If I may elaborate just for a second, just for
10 the sake of clarification. We received in addition to the autopsy
11 protocol from the Serbian authorities, death certificate reflecting what
12 the Serbian experts have actually found during the examination. We
13 produced a second death certificate based on our forensic inspection.
14 Mind you, there was also obviously a political issue, sensitive issue, to
15 provide, at the time, Albanian families with death certificate that was
16 written in Cyrillic. I mean, it was really politically incorrect at the
17 time to do such a thing.
18 MS. KRAVETZ: Could we please have Exhibit 02394 -- this is
19 65 ter 02394 up on the screen. And I would like page 1 of that exhibit.
20 If we could zoom in on the document a bit.
21 Q. Sir, do you recognise the document that is there before us?
22 A. Yes, I do.
23 Q. Can you explain what this is?
24 A. This is the death certificate that OMPF -- one of which parts was
25 the office of the medical examiner issued, a standard death certificate
1 issued in any type of case. So it could be a so-called historical case,
2 such as the one dealing with missing persons, or it could be a recent
3 case of a recent homicide or traffic accident or whatever.
4 Q. We see that right under the name of the person here identified
5 there is a code which starts with a 2Ba and it says 006. Do you know
6 what that is?
7 A. That is the code that each of the body-bags had. That is the
8 code that was given to the remains exhumed by the Serbian authorities.
9 Q. So if I understand correctly, this code was assigned by Serbian
10 authorities and you maintained the same code in your -- the death
11 certificates that were issued by OMPF?
12 A. That is correct.
13 Q. And what would the Ba stand for, 2Ba reference number?
14 A. Batajnica, the site of Batajnica.
15 Q. Thank you.
16 MS. KRAVETZ: Could we turn the page, please, next page. And if
17 we could zoom in on the top of the page.
18 Q. So we have here that the cause of death is set out as gun-shot to
19 the head, chest, and to the right arm. Would this have been the cause of
20 death that was established during the forensic inspection of these
22 A. That is correct.
23 MS. KRAVETZ: Could we go to page 3, please.
24 Q. Do you recognise this document?
25 A. Yes, I do.
1 Q. Can you explain what it is.
2 MS. KRAVETZ: If we could zoom out of the document a bit.
3 THE WITNESS: This is the forensic inspection report that is the
4 summary of findings after the forensic inspection. After we received the
5 body-bag, we opened the body-bag at the mortuary, we laid out the
6 remains, we re-examined them. And as you see, the level of detail is
7 certainly less than a full autopsy, but nevertheless detailed enough as
8 to account, for example, for injuries and these kind of things.
9 MS. KRAVETZ:
10 Q. We see here that we only have the code, 2Ba-006, which we saw on
11 the death certificate. You had told us before that you -- that the
12 identities of the victims were established through DNA analysis. So how
13 were you able to know which identity to indicate in the death certificate
14 for these remains?
15 A. In order to minimise any influence by the examiners or the people
16 that were examining the remains, these people were provided only with the
17 codes. I mean, they were provided with a bag for them to actually see
18 whatever was in the bag. They may -- at some point they did have the
19 original autopsy report with them to try to contrast and to go faster.
20 But in some occasions autopsy reports were not even translated, and the
21 people we had did not necessarily read Serb, so they could not really
23 When this inspection was finished with that number the
24 identification unit were the ones elaborating or filling in the
25 information with the pathologist on the death certificate and then they
1 put the name. So we did not have names at the onset of the process. So
2 if somebody - I do not know - could have a special request, for example,
3 by a family member saying, My father or mother or whoever is there, can
4 you please tell me something? They didn't know that. They just had a
5 number. That's why the forensic inspection reports have only numbers,
6 the case number.
7 Q. Thank you.
8 MS. KRAVETZ: Your Honours, there are a series or sets of
9 forensic inspection reports and death certificates which are referred to
10 in this witness statement. I'm not going to go through the whole batch
11 because they are quite lengthy documents, but I would seek to tender them
12 into evidence at this stage. The one that we were just looking at is
13 02394. The other ones referred to in this statement are 02454, 00943,
14 00944, and 02799.
15 JUDGE PARKER: They will be received.
16 THE REGISTRAR: Has P00456, Your Honours.
17 MS. KRAVETZ: Could we now have Exhibit 00213 up on the screen,
18 and if we can display that for the witness both in the English and in the
20 Q. Do you recognise this document, sir?
21 A. Yes, I do.
22 Q. Can you explain what it is?
23 A. The one on the left is the original death certificate that came
24 together with the autopsy report for each bag labelled with a code that
25 you can read on top, in this case PSII/18. As you can see, it is an
1 official Serb death certificate, as much as I am acquainted with from my
2 work there, written in Cyrillic. It has the name of the victim on the
3 first -- on the first line, and then I presume is the date of death on
4 the second line. The second one on the right is the translation of the
5 same document.
6 Q. What does the code PSII/18 stand for?
7 A. Petrovo Selo II, body 18.
8 Q. We see that this document is signed by a Professor V. Otasevic,
9 do you know who this person is?
10 A. Yes, it's Professor Vujadin Otasevic from the forensic institute
11 in Nis
12 Q. And while you were head of OMPF, did you have any dealings or
13 contacts with Professor Otasevic?
14 A. Yes, as a matter of fact the first eight bodies that were
15 transferred were thanks to -- the -- I cannot find the right word to say,
16 but the dealings we had with Professor Otasevic were quite collaborative
17 I would say.
18 Q. Thank you.
19 MS. KRAVETZ: Your Honour, I seek to tender this exhibit, this is
20 00213. There are a set of other similar exhibits -- similar death
21 certificates and documents from this same institution which I'm not going
22 to go through unless it assists Your Honours with the witness in detail.
23 The exhibits are -- go from the range 002114 [sic] to 00226.
24 JUDGE PARKER: Are you suggesting this should be separate from
25 them or part of that batch?
1 MS. KRAVETZ: Each one of them has a separate exhibit number. I
2 can call each exhibit number separately. They go from the range 00213 to
4 JUDGE PARKER: For our purposes I'm asking one exhibit or --
5 MS. KRAVETZ: Separate exhibit numbers.
6 JUDGE PARKER: Separate exhibits.
7 They will be received then.
8 THE REGISTRAR: The document currently on the screen,
9 Your Honours, with 65 ter number 00213 would be P00457; 65 ter 00214
10 would be P00458; 65 ter number 00215 would be P00459; 65 ter number 00216
11 would be P00460; 65 ter number 00217 would be P00461; 65 ter number 00218
12 would be P00462; 65 ter number 00219 would be P00463; 65 ter number 00220
13 would be P00464; 65 ter number 00221 would be P00465; 65 ter number 00222
14 would be P00466; 65 ter number 00223 would be P00467; 65 ter number 00224
15 would be P00468; 65 ter number 00225 would be P00469; and 65 ter number
16 00226 would be P00470, Your Honours.
17 JUDGE PARKER: Thank you.
18 MS. KRAVETZ: Thank you, Your Honour.
19 Q. Witness, now turning to your report and to the conclusions that
20 you reach in your report, in your report you refer to identifying and
21 differentiating between different types of trauma in bone. In very
22 simple terms can you explain, when you examine remains, bone -- skeletal
23 remains in this case, as you were explaining, how were you able to
24 distinguish between gun-shot trauma and other types of trauma?
25 A. Right. I will try to be as simple as possible, but please feel
1 free to interrupt me if I use terms that may sound too complicated.
2 Bones break because of different mechanisms, and different
3 mechanisms are characterised primarily by the energy that is applied to
4 bone. For example, blunt-force trauma on bone is a load applied slowly
5 over a large area. For example, a rock thrown to somebody's head or
6 somebody being beaten with a hammer or something of the kind. Why it's a
7 slow load? Because the velocity involved in this is quite low. If I
8 have to calculate the velocity that my arm, holding a hammer, will get
9 upon swinging my arm over the head of somebody will be a few metres per
11 On the other hand, all the types of trauma such as, for example,
12 gun-shot trauma are considered high-velocity trauma, because unlike the
13 previous example, a bullet leaving the muzzle of a weapon would have, at
14 the very least -- I mean, the lowest possible calibre over a hundred
15 metres per second. So it is exponentially much much higher than
16 blunt-force. And also it acts upon a much smaller area of the body. A
17 bullet may have, let's say, 9 millimetres in diameter while a hammer
18 would have a few centimetres in diameter.
19 Bones do react to external loads or forces in various ways. For
20 example, all materials have what is called an elastic phase and a plastic
21 phase, and then they break. I give you another example. Let's say we
22 have a plastic pen. If I bend this plastic pen with both of my hands, I
23 will deform it. So it will go beyond its elasticity and will be
24 plastically deformed. When I try to bend it over and to have it straight
25 again, I won't be able to; it will remain like that. Bones are the same.
1 Bones can go through elastic phase. It will be an immature bone of a
2 child. Children are very elastic, so to speak. Then it may go through
3 the plastic deformation and then it will break. Typically blunt-force
4 trauma will cause plastic deformation on bone, meaning the bone may break
5 and may yield and stay like that; while gun-shot wound trauma would
6 definitely perforate and destroy bone, make it break automatically. And
7 all this is based on the amount of kinetic energy that is transferred
8 from an object in movement to bone.
9 Q. And in very lay-man terms, is the fragmentation observed on the
10 bone different in the case of blunt-force trauma and gun-shot trauma?
11 A. Both -- in general terms both characteristics are mutually
12 exclusive, so there is a number of details of stigmata of each of these
13 types of mechanisms that are totally different from one other. In other
14 words, yes, it is possible to distinguish what is blunt force and what is
16 Q. And how are you able to distinguish between trauma that is
17 suffered by the bone before or at the time of death and that that is
18 suffered after the time of death? For example, during the transport of
19 bones from Serbia
20 A. In general --
21 THE INTERPRETER: Could all unnecessary microphones please be
22 turned off. Thank you.
23 MS. KRAVETZ:
24 Q. Just go ahead.
25 A. Right. Sorry. I don't know if it's for me or for somebody else.
1 The trauma caused at the time of death or around the time of
2 death that we shall call peri mortem - in latin peri, around; mortem,
3 trauma - has some specific characteristics. But before I go into that, I
4 will try to link this with the rest of the answer.
5 By definition, all these bodies that were transported from Serbia
6 back to Kosovo, since we knew that these bodies have been buried and then
7 dug up and then taken and then reburied and then exhumed again, we have
8 to assume that all blunt-force trauma found in those remains could have
9 been caused by post mortem phenomenon. In other words, I could not have
10 said, unless some very specific characteristics were found, that somebody
11 was clubbed to death, for example, or that somebody -- or that that
12 damage was actually caused by an excavator ripping through bodies.
13 Now, regarding the last point that was actually in your question.
14 The patterns of bone damage caused by, for example, mechanical means of
15 excavation are very typical. They cause, for example, major crushing
16 injuries over large parts of anatomical areas, like the chest, the head.
17 It causes transverse fractures of long bones with no radiating fractures
18 of any kind. These are very typical post-mortem changes caused by
19 mechanical instruments, such as excavators and so on.
20 I may add that we, regrettably, had a very large experience with
21 this dealing primarily with the Srebrenica case in which these type of
22 practices were very common. I do not know whether I answered your
23 question or I went off of it too much.
24 Q. I'm sorry. I think you have answered my question.
25 MS. KRAVETZ: Could we have Exhibit 455 up on the screen -- this
1 is 65 ter 02795, it's just been admitted as Exhibit 455.
2 Q. Do you have that page up on the screen before you?
3 A. Yes.
4 Q. Now, this is the corrigendum to your -- to page 11 of your
5 findings that we spoke about earlier.
6 MS. KRAVETZ: And if we could zoom in on the graph, please.
7 Q. Looking at these exhibits, could you tell us how the findings of
8 OMPF during these forensic inspections reports -- forensic inspections
9 that we've been speaking about compare to the findings of Serbian
10 forensic teams for these three grave-sites?
11 A. Certainly. Differences starting in many respects. In blue you
12 have -- starting from left to right, you have the first column in blue,
13 this is the number -- the total number of cases that were examined from
14 the Ba, or Batajnica, site, that's 744. From those, when we received the
15 bodies a hundred per cent, mean 744 cases, did not have a cause of death
16 ascertained during the examination, the original examination, done by the
17 Serbian authorities.
18 Upon the inspection we were able to ascertain cause of death in
19 506 individuals, that is, more or less 61 per cent of the total. And, of
20 course, we have 238 cases without cause of death ascertained. And we
21 could continue from left to right on each of the other sites. In blue
22 being the total, the second column being the cases in which we were able
23 to ascertain cause of death after the forensic inspection, and the third
24 column being the one where we could not ascertain cause of death.
25 Meaning that we were able to determine the most probable cause of death
1 based on the remains we were examining. That is what it means.
2 Q. And what does the D at the bottom, next to Ba stand for?
3 A. That is Perucac lake.
4 Q. And the PS?
5 A. Petrovo Selo.
6 Q. Thank you.
7 MS. KRAVETZ: If we could now look at page 11 of the report. If
8 it hasn't been split, if it's still 2794, and in e-court it would be
9 page 34. I don't know if we have it as a new exhibit. Could we zoom to
10 the bottom of the page. Thank you.
11 Q. This is one of the examples contained in your report. This is
12 case Ba-12, and we have the identity of the victim there. Using this
13 example, could you explain how you were able to establish the cause of
14 death in this case?
15 A. Certainly. As a matter of fact, the next page would be the one
16 showing the -- the features where -- or based on which cause of death
17 were determined. But maybe before we go to that I can explain you
18 briefly what we're seeing on the three photographs at the bottom of the
19 page. This large opening on the top of the skull, a hole, if you wish,
20 that is seen from the back, from the left side, and from above is an
21 opening or a hole caused by fire damage. You see a blackened area on the
22 first picture to the left on the back of the skull, and on the middle
23 photograph you can see some spongy bone of the skull that have been
24 exposed due to flaking of bone layers due to fire. And then you have
25 that large opening. There is likely what they call volcano fractures of
1 the skull, meaning the brain will heated up and building a lot of gas,
2 and this gas will pretty much cause like a small explosion for it to
4 If we go to the next picture I can discuss what you actually
5 asked me.
6 MS. KRAVETZ: Could we please turn to the next page.
7 THE WITNESS: On the photograph of the left we're seeing an
8 inferior or lower view of the head, obviously this is articulated from
9 the neck. And on the right one we see a detail of something that you can
10 actually see on the lower part of the photograph on the left, there is an
11 elongated defect, elongated hole, if we use lay terms that is better
12 known as a keyhole. It means that a tangential shot, or rather, a shot
13 hit the skull tangentially and has or shares components of an entrance
14 wound and an exit wound.
15 I do not know whether I can point -- there was a way to point,
16 but I cannot remember how to do it.
17 MS. KRAVETZ:
18 Q. There is a pen on the side of the screen. The usher can assist
20 A. It actually happened last time in the same -- the same way.
21 Thank you.
22 This part here is the entrance component, and you can see a
23 slightly rounded or half-rounded part on the left side, while this part
24 here would be the exit component. Primarily this arrow is pointing
25 at - and then I will do another arrow here - is pointing at some areas
1 that are externally beveled that is a typical element of an exit wound.
2 The trajectory or how the shot would have been inflicted would be this,
3 on your photograph from the top to the bottom.
4 Q. Thank you.
5 MS. KRAVETZ: If this photograph could be assigned an exhibit
7 JUDGE PARKER: I'm just concerned, it's part of the report.
8 You're wanting it separately?
9 MS. KRAVETZ: Simply because it's been marked by the witness,
10 just that one page.
11 JUDGE PARKER: Of course. I was not quick enough to see that.
12 It will be received.
13 THE REGISTRAR: That will be P00471, Your Honours.
14 MS. KRAVETZ: Could we now turn to page 38 of this exhibit.
15 JUDGE PARKER: It's probably convenient time, Ms. Kravetz.
16 MS. KRAVETZ: Oh, I thought the break was at quarter to because
17 we began at 4.15, but maybe I'm mistaken. We can break now. That's no
19 JUDGE PARKER: That will take us, you see, to five past 6.00,
20 finishing at 7.00.
21 MS. KRAVETZ: Okay. No problem.
22 JUDGE PARKER: I'm afraid we have to have a break now, our tapes
23 have to be rewound, and that's a 30-minute task. So we adjourn now and
24 resume at five past 6.00.
25 --- Recess taken at 5.35 p.m.
1 [The witness stands down]
2 --- On resuming at 6.07 p.m.
3 MS. KRAVETZ: Your Honour.
4 [Trial Chamber confers]
5 JUDGE PARKER: Ms. Kravetz.
6 MS. KRAVETZ: Your Honour, before the witness is brought in a
7 matter was brought to my attention during the break. I had tendered some
8 batches of OMPF forensic inspection reports and death certificates --
9 which are mentioned in this witness statement, and I am being told that
10 they haven't yet been assigned an exhibit number.
11 [The witness takes the stand]
12 JUDGE PARKER: Thank you. We will do that now and you tender
13 them, do you?
14 MS. KRAVETZ: I'll go through the list again. So it's 02454.
15 THE REGISTRAR: That will be, Your Honours, P00472.
16 MS. KRAVETZ: 00943.
17 THE REGISTRAR: That will be P00473.
18 MS. KRAVETZ: 00944.
19 THE REGISTRAR: That will be P00474.
20 MS. KRAVETZ: And 02799 which has been provided on a CD ROM.
21 THE REGISTRAR: That will be P00475, Your Honours.
22 JUDGE PARKER: Thank you.
23 Just doing some housework.
24 Yes, Ms. Kravetz.
25 MS. KRAVETZ: Thank you, Your Honour.
1 Q. Witness, earlier we were looking at a photograph on the screen,
2 and you had indicated how you were able to establish the cause of death
3 and you also referred to the fact of observing fire damage on this
4 photograph. Do you recall, whether there were other cases where you were
5 able to observe fire damage or mortal remains that you examined?
6 A. Yes, as a matter of fact, I have some notes here that may help
7 us. For example, in the sites of Batajnica and Perucac combined, 531
8 cases showed gun-shot wounds --
9 Q. Witness, if I may stop you there. I'm only speaking about fire
11 A. I'm sorry, the break did not really help me much. I lost
12 concentration. Yes, indeed, a number of cases did show fire damage. I
13 cannot tell you at the moment a specific number, but it was a number of
14 instances where fire damage was found, yes.
15 Q. And just going back to one of my earlier questions, I had asked
16 you about how you were able to establish the difference between
17 peri mortem and post mortem trauma on bone, and you had explained how you
18 were able to establish post mortem; and you said that peri mortem
19 fractures or trauma had some specific characteristics but you didn't
20 explain what those characteristics were. Are you able to clarify that
22 A. Yes -- actually, it would be very helpful if we would go back to
23 page 12 with the original pictures we saw before.
24 MS. KRAVETZ: That is page 34, I believe.
25 THE INTERPRETER: Could all unnecessary typing please stop. The
1 interpreters cannot hear very clearly. Thank you.
2 MS. KRAVETZ: We're sorry about that.
3 Q. Are you talking about the graph we saw earlier?
4 A. No, it's page number 12 of my report where I circled some
5 characteristics of a gun-shot wound to the head.
6 MS. KRAVETZ: This would be page 35 on -- in e-court, if the
7 exhibit is still one single exhibit.
8 THE WITNESS: If I may use the -- this pen again.
9 Peri mortem trauma, such as in this case, a gun-shot wound to the
10 head, is associated, depending on the mechanism that is causing it, to
11 the dissipation of energy. This energy dissipates through fractures. We
12 can see - and I'm going to try to do my best to point on this graph --
13 suddenly it went off focus. I don't know if it was me or -- we got that
14 fracture there that is associated to this defect -- this elongated defect
15 we are seeing.
16 In other words, peri mortem trauma has a relationship between two
17 things: Specific defects such as the one we observing there and
18 dissipation of energy through fractures. These fractures run depending
19 on what bone they are located through the areas of least resistance of
20 bone. And if they cross areas that are heavily reinforced or protected
21 or buttressed, as we say, it means that the energy that is being
22 dissipated is quite high, such as in this case, for example, this area
23 here is an area of a buttress, as an occipital buttress, and you can see
24 that the fracture is running around it, not crossing it. Having said
25 that, this area of the bone, the occipital bone, is very thick. In other
1 words, this type of fracture is a peri mortem fracture because it is
2 associated to a specific defect that can be identified or traced to a
3 gun-shot wound.
4 Q. Thank you for that answer. Just so we can understand the
5 transcript, I believe -- I think it's better to have this page be
6 assigned an exhibit number again, since it's been marked by the witness.
7 JUDGE PARKER: It will be received.
8 THE REGISTRAR: That will be P00476, Your Honours.
9 MS. KRAVETZ: If we could now have page 38 in e-court back up on
10 the screen, it's the page we had up earlier. This is page 15 of the
11 report. If we could please only display the English for the witness and
12 zoom in.
13 Q. So, Witness, here we have a graph that is included in your report
14 which refers to the distribution of probable gun-shot injuries per
15 anatomical area. Which conclusions, if any, can be drawn from this graph
16 that you have included in your report?
17 A. Yes. Again, I'll try to be as succinct as I can. It is -- it
18 has been learned now, over the last few years, looking at the
19 distribution of injuries or death in war conditions - it could be Iraq
22 people dying or being injured in a traditional conflict, armed
23 conflict - by "tradition" I mean where two armed groups are fighting one
24 another, it doesn't really matter whether they are regular or
25 irregular - is shrapnel, meaning the leading cause of mortality and
1 morbidity is shrapnel. The second cause is gun-shot, and there is a very
2 important difference between these two because gun-fires are also known
3 as weapons of volition. In other words, if I want to kill one person in
4 a crowd, I would not throw a grenade that would certainly kill everybody
5 including the person I'm trying to kill, while shrapnel primarily comes
6 from sectorial weapons, I mean, a bomb that goes off, a mortar, a
7 grenade, or something of the kind.
8 When we look at the distribution of injuries of people injured by
9 gun-fire, a pattern emerges. In traditional conflicts, as per the
10 definition I gave, the distribution of gun-shot injuries should be, that
11 is based on some 25 traditional conflicts that were examined as a matter
12 of fact when I wrote this report and has been expanded further in some
13 other publications: First the limbs, meaning legs and arms; second, the
14 trunk; and third, the head. Whenever we're dealing with the opposite
15 scenario, meaning when there is an armed group and another group that is
16 not necessarily armed, meaning a non-confrontational or armed
17 confrontational context, we tend to find the reverse, meaning the head
18 first, the distribute of gun-shot injuries in this case, the head first;
19 the trunk; and then the extremities.
20 What we're looking at in this graph is that we have the head with
21 300 individuals; the trunk with 323, so they are very close; followed by
22 the limbs. So this pattern is an anomalous pattern of what you expect to
23 find in a traditional armed confrontation.
24 Q. Now, you referred to shrapnel injury, and in your report you said
25 that from the cases that you were able to examine you were only able to
1 find three cases of individuals that had sustained shrapnel injury and
2 one that had sustained both shrapnel and gun-shot wounds for the sites of
3 Batajnica and Lake Perucac
4 individuals had ascertained gun-shot wounds. Which conclusions, if any,
5 can be drawn from this fact that you state in your report?
6 A. That it is highly likely that the pattern being observed
7 corresponds to a non-confrontational pattern of armed conflict. If I
8 have this evidence to elaborate, I would say that it is highly unlikely,
9 improbable in this case, that this distribution of injuries is consistent
10 with the confrontation of two armed groups. As an example I would tell
11 you that 0.5 per cent, meaning three individuals, in all sites combined,
12 have shrapnel injuries and 0.1 per cent has shrapnel and bullet wounds.
13 So it is a totally insignificant number compared to the proportions of
14 people that sustained gun-shot wounds.
15 Q. And can any conclusions be drawn based on this pattern that you
16 were able to observe as to the circumstances of how these individuals met
17 their death?
18 A. Well, if we look at yet again the distribution of injuries, it
19 would be quite interesting to see that we got 300 people that sustained
20 gun-shot wounds to the head, the head being a very restricted area or
21 very discrete area of the body, certainly is not the area where you
22 expect to have such a high number of injuries unless they were purposely
23 inflicted in that area. What I'm saying is, if you're shooting, you're
24 going to go for the bulk of the body for the largest area not for the
25 smallest area, that in this case would be the head or a hand or a foot or
1 something of the kind.
2 The other important issue to be drawn from this is that the
3 number of cases in which cause of death was not ascertained was primarily
4 because of the destruction of these remains, meaning they were very
5 fragmented or they were burned or they were incomplete. So this means
6 that such a large number of cases with gun-shot wounds is defining as a
7 context that the real number of people injured by a gun-shot is much
8 higher than we're observing here. It has been proven, and there is a
9 study of a Frenchman, another associate that is listed in my report, that
10 the number of people that show skeletal injuries, bone injuries, in a
11 fire-fight context is only a fraction of the people that actually were
12 injured or died of gun-shot. For example, if you are shot through soft
13 tissues of the abdomen, you will not find -- have a broken bone; if you
14 are shot through the spine or the head, you will have a broken bone. But
15 if -- let's say we have ten people that have been in a fire-fight of some
16 kind, maybe three or four will show skeletal injuries, while the rest
17 will not; but the rest also sustained gun-shot injuries although they
18 have no broken bones.
19 Q. Now, you have referred several times to the fact that you
20 examined mostly skeletal remains because there was very little soft
21 tissue in the remains you examined. Was this is case for all three mass
22 grave sites or was there a different for one or two of the sites?
23 A. As a matter of fact, the site of Petrovo Selo, the PS, site
24 consisted of primarily saponified or in some cases what we call wet,
25 mummified tissues, meaning body fat was saturated in some cases giving
1 the appearance to some waxy material, or bodies were slightly desecrated
2 keeping some humidity as well in some areas and having recognisable
3 muscle in pink colour. This actually means the examination of these
4 remains was much easier, "easier," in as much we were dealing with
5 cadavers. It was almost a proper corpse, so to speak, while the remains
6 in Ba and D sites were primarily disarticulated bones.
7 Q. And I understand from your report that that was one of the sites
8 where you found no cases of shrapnel injury; is that correct?
9 A. That is correct.
10 Q. What conclusion if any can be drawn from that?
11 A. That the under representation of shrapnel injuries is actually
12 real. It is not, to say, an artefact of the examination. In other
13 words, in the Petrovo Selo cases that I think were 60 -- 61 cases, yes,
14 61 cases, 53 of them showed gun-shot wounds and none showed shrapnel. We
15 cannot say that we have missed shrapnel injuries in these remains because
16 they were complete; and on top of it as any other remain all of them were
17 gone through X-ray examination to look for any metal particles that can
18 be lodged or found anywhere in the body. And since the soft tissues were
19 there -- since they were there, you could see them. So what I'm trying
20 to say is a low representation of shrapnel injuries in all the samples
21 likely probably reflects what actually happened, meaning that very few
22 people were injured by shrapnel; i.e., shrapnel was not the first means
23 of injury or mechanism of injury that operated in these sites.
24 Q. And with regard to the distribution of injuries per anatomical
25 area, was the site of Petrovo Selo similar to that which we just saw for
1 Lake Perucac
2 A. As a matter of fact, in Petrovo Selo we have 20 individuals with
3 injuries on the head and 21 on the chest, so it's almost the same with a
4 difference of one. Upper limbs, there are five; and 13 on the lower
5 limbs. So it would be in order: Chest, head, and limbs, but obviously
6 head and chest are almost identical.
7 Q. And going back to what we were talking about about the
8 circumstances in which these individuals had met their death, can you
9 make any specific or draw any specific conclusions with regard to this
10 site of Petrovo Selo based on what you were able to observe?
11 A. Well, the conclusions regarding Petrovo Selo would not be
12 different to the ones drawn for the other two sites with the exception
13 that no shrapnel injuries were detected, meaning that the only type of
14 weapons that were likely used were, I mean, guns of some -- fire-arms of
15 some denomination. In this case, if I recall well, all injuries were
16 caused by high-velocity rounds, meaning rounds fired likely by rifle of
17 some kind.
18 Q. Thank you. I want to turn away from your report now, and I just
19 have very few questions left with regard to the consolidated list of
20 missing persons that is referred to in your statement at paragraph 31.
21 You refer to this list and you indicate in your statement how it is
22 compiled and you say it is updated at regular intervals. Do you know how
23 regularly this list is updated since it was first created?
24 A. Well, obviously from my recollection I no longer work for MPF,
25 the list was updated almost on a monthly basis. Primarily the issue with
1 this list is that we wanted to have a list that could be accepted by all
2 parties or former parties to the conflict. So this list was compared
3 constantly with the International Committee of the Red Cross list, since
4 obviously they are the neutral body by excellence, that have a similar
5 list to ours; and the idea was to try to get to agreement to the two
6 lists to see why cases that were in their list were not in ours and so
7 forth. But certainly the list was constantly updated.
8 Q. In your statement you refer -- you indicated that you had
9 provided to the ICTY two versions of this list, one from December of 2004
10 and one from October 2006. Have you recently had the chance to review a
11 more updated list from April 2008?
12 A. Yes, I have.
13 Q. And can you just very generally tell us what differences you were
14 able to observe when you reviewed that list from the most recent one you
15 had seen at the time of your statement, which is October 2006?
16 A. The difference between the two lists is the last one from
17 April 2008, the total number of cases is higher. So if in October 2006
18 we had a total universe of 5.298 cases, in April 2008 there were 5.367
19 cases. Equally, the number of cases closed and the number of cases
20 active in both lists are obviously different. Why do we close cases?
21 Primarily through a number of mechanisms. One of them could be that the
22 person turns out to be alive; therefore, the name of this person has to
23 be eliminated from the list. Actually what we do is we simply close the
24 case, the name remains there as a record. Or we have to close a case and
25 there is no information whatsoever regarding whether this person actually
1 existed or the conditions in which this person went missing. Another
2 reason for closing a case would be to identify the remains, what is what
3 mostly happened, identifying the remains and returning them to the
4 families. Or maybe identifying the remains and we have not yet broken
5 the news to the families but the remains have been identified. So we
6 know that Mr. John Doe has been identified, now has a name, and pending
7 explaining to the family that we have identified their loved one, the
8 remains in the list changed status to a closed case. And that is why, as
9 of April 2008, there were 3.241 cases closed, all reasons combined; and
10 there were 2.126 cases active, meaning whereabouts of missing persons
11 still unknown.
12 Q. And would it be fair to say that this April 2008 list now
13 represents the most updated and exhaustive record of the missing persons
14 reported missing during the Kosovo conflict?
15 A. I would say so, but I would also suspect, I do not know that
16 because I have not been in contact with my former office, that there are
17 other versions of that list as of January or February 2009, I do not
18 know. But obviously April 2008 would be as exhaustive record as there
19 was until April 2008, yes.
20 Q. Thank you.
21 MS. KRAVETZ: Your Honours, I don't intend to show the list to
22 the witness, but I do seek to tender it into evidence at this stage.
23 This is 05232.
24 JUDGE PARKER: This is the April 2008?
25 MS. KRAVETZ: Yes.
1 JUDGE PARKER: Yes. It will be received.
2 THE REGISTRAR: That will be P00477, Your Honours.
3 MS. KRAVETZ: And I have no further questions at this stage for
4 this witness, Your Honour.
5 JUDGE PARKER: Thank you very much.
6 MS. KRAVETZ: Your Honour, while my learned colleague is
7 preparing himself on the other side, I just wanted to bring one matter to
8 your attention. We have tendered today an extensive amount of forensic
9 documentation. I just wanted to let you know that later on during the
10 Prosecution case we intend to submit to the Chamber proof of death chart
11 where we link all the different death certificates and forensic reports
12 to the individual victims that are listed in the schedules to our
13 indictment, and this is just in order to facilitate Your Honours' work
14 with these exhibits because we are aware they are quite lengthy and they
15 are a bit difficult to navigate otherwise.
16 JUDGE PARKER: Thank you very much. I'm sure that will help.
17 Mr. Djordjevic.
18 MR. DJORDJEVIC: Good evening, Your Honours.
19 Cross-examination by Mr. Djordjevic:
20 Q. Good evening, Mr. Baraybar. Now I will switch on B/C/S.
21 [Interpretation] I was wondering if perhaps it would be better to
22 start tomorrow so that I could do my cross-examination in one piece, but
23 I think that we can take the 20 minutes that we have, and I can start
24 with my cross-examination.
25 Q. Mr. Baraybar, we've just heard the Prosecutor ask you questions
1 about your education. My first question to you is: Am I right if I say
2 that the faculty that you graduated from, Univesitat Nationale Mayor de
3 San Marcos in Peru
4 is archaeology?
5 A. That is correct.
6 Q. Thank you.
7 THE INTERPRETER: Interpreter's note: Could the counsel's
8 microphone be put closer to him.
9 MR. DJORDJEVIC: [Interpretation]
10 Q. And then you say that you went on to do your master's degree in
12 A. That is correct.
13 Q. However, what I want to know is the exact name of the university
14 where you pursued this course of studies, I believe that this was in
16 A. That was in 1991, University College London, part of
17 University of London
18 Q. Can you tell me your master's thesis. Did you have to write it?
19 What was your topic, and who was your supervisor, if you did have to
20 produce a thesis?
21 A. Yes, I did. I could not tell you the title of it because it
22 escapes me, but I can tell you a subject and tell you also whom my
23 supervisor was. Starting with my supervisor, it was
24 Professor Don Brothwell. I believe he is a professor of merit in the
25 southern university of York
1 archaeological collection from the central coast of Peru dealing with
2 trace element analysis for the reconstruction of diet.
3 Q. Is that all?
4 A. Yes.
5 Q. My next question is this: Before you went to Great Britain, did
6 you have any medical training?
7 A. No, I did not.
8 Q. As you did your master's thesis, did you take any courses in
9 medicine; and if yes, could you please elaborate?
10 A. No, I did not.
11 Q. You note in your CV that for all intents and purposes you also
12 did some work in heart science, such as, for instance, archaeology - just
13 a moment, I do apologise -- that you actually combined archaeology,
14 physical anthropology, and forensic medicine. And now you tell us that
15 you didn't do any medical studies; however, this is what I read in your
16 CV. And that's why I'm asking you: Why do you now tell us that you
17 didn't do any forensic medicine studies, whereas in your CV this is what
18 it says? Is that an error? Can I consider it to be an error?
19 A. Should be because I have mentioned as a matter of fact during the
20 examination-in-chief that it was a combination between physical
21 anthropology, bio-archaeology, and forensics. I never used the word
23 Q. You mentioned forensic medicine. What do you mean when you say
24 "forensics"? What is it?
25 A. "Forensics" is an ever-evolving field that contains a number of
1 sub-disciplines of forensic medicine itself. It could be criminalistics,
2 could be trace analysis, could be elements of forensic pathology, could
3 be scene of crime reconstruction, could be, frankly, a number of things.
4 And I reiterate the fact that I have mention the word "forensics" in that
5 open and wide spectrum of disciplines.
6 Q. This is why I asked you this, and this is why I want you to tell
7 us whether you meant forensics in the broadest sense or whether you meant
8 only one segment of this science that you studied in London?
9 A. Well, I tell you again that I dealt with forensics, meaning all
10 the aspects of forensic sciences as applied to the examination of
11 skeletal remains, be they found in an archaeological context or in a
12 medical or legal context.
13 Q. Could you please tell me now whether you ever studied human
14 anatomy - and here I mean the overall anatomy - or did you just study
15 human skeletons?
16 A. I have not had any formal education on human anatomy in the way
17 you describe it to me.
18 Q. Did you focus in particular on human skeleton?
19 A. During my education, yes.
20 Q. When and where? You said that you did it in the course of your
21 studies, and I want to ask you: When and where? In what segment of your
23 A. During the time I studied my B.A. in archaeology, there were two
24 compulsory courses taught by the Faculty of Biology that were called
25 physical anthropology, where you have to actually study skeletal anatomy
1 as part of the courses. During my master's, I did a refreshment course
2 on skeletal anatomy as part of my education, obviously, yes.
3 Q. Could you please tell me, are you familiar with the basic tenets
4 of pathophysiology and pathology?
5 A. Yes, the basic tenets, yes.
6 Q. Do you have any formal education or is this something that you
7 did in the course of your general education? So when you say that you
8 have some knowledge of pathophysiology and pathology, did you take some
9 exams, do you have some proof of that, or is this some knowledge that you
10 gained as you went along in the course of your education?
11 A. It is rather knowledge I gained during the course of my work, not
12 during my education.
13 Q. Thank you. Before you came to Kosovo and Metohija as the head of
14 the service where you remained until May 2007, did you take part in any
15 forensic medical expert analyses of cases involving violent deaths before
16 courts in your country or before any other courts before your arrival in
18 A. Yes, I did, both in my countries, in this Tribunal, and as a
19 member - and even in some cases - directing commissions of inquiry, could
20 be for the UN or for any other body.
21 Q. While you worked here at the Tribunal, would you please tell me
22 what jobs did you have, what posts, and what was it that you actually
24 A. Certainly. My first employment with the Tribunal was with the
25 Rwanda Tribunal back in 1996, if I'm not mistaken it would be
1 February 1996. My function or title then was forensic investigator. My
2 work was as a forensic anthropologist for the Office of the Prosecutor,
3 exhuming, analysing the remains found in mass graves following the
4 genocide in Rwanda
5 to ICTY about June - if I'm not mistaken - June 1996, where I
6 participated both in the exhumations of mass graves related to Srebrenica
7 massacre as well as to the killings at the Ovcara farm in Croatia.
8 In 1997 I was officially employed by ICTY, since at that time I
9 was still technically employed by ICTR, as a forensic anthropologist;
10 that was my functional title. Since then on I became the person
11 responsible for setting up the teams that worked in the field and/or in
12 the mortuary for the Tribunal and I -- my position was quite
13 exchangeable. I could be an archaeologist dealing with exhumations of
14 mass grave sites or chief anthropologist at the mortuary, until the year
15 2001, if I'm not mistaken, that is the last major operation of this
16 Tribunal in the field.
17 Q. Thank you. My next question: When you say that you worked as a
18 forensic investigator for the ICTR, and later on for the ICTY too, do you
19 mean that you actually worked as an OTP investigator?
20 A. As a matter of fact, my functional title of forensic investigator
21 was with ICTR, and I was appointed to the Office of the Prosecutor as a
22 forensic person. I was not carrying out investigations -- criminal
23 investigations, if you wish. But yes, I was appointed to the
24 Office of the Prosecution.
25 Q. Thank you. My next question: Most of the abduction reports of
1 the team that you headed are signed by forensic medicine specialist
2 doctor -- doctors, Dr. Marek Gasior --
3 THE INTERPRETER: Interpreter's note, we could not get the names
4 of the three doctors.
5 MR. DJORDJEVIC: [Interpretation] I will have to repeat the names
6 because I can see that they're not in the transcript -- [In English] Some
7 problem with the microphone definitely.
8 [Interpretation] Let me repeat the names, Marek Gasior,
9 Asoka Senevirante [phoen], Ananda Samarasekera [phoen].
10 Am I right when I say that?
11 A. Yes, there's a minor pronunciation or spelling issue, but yes,
12 it's true.
13 Q. Well, you will not take it amiss because I'm not really familiar
14 with those names, but we understand each other and that's the point. So
15 I go on to my next question.
16 In various documents that follow, documents that have been
17 admitted into evidence by the Trial Chamber, they were tendered by the
18 Prosecution. They contain names of your colleagues, forensic
19 anthropologists. And I would like to know whether there are CVs for all
20 those people; in other words, their expertise, something that should be
21 there before you even take them on to be on your team?
22 A. Certainly all the people which names appear in those documents
23 would have a CV on file in my former office. I mean, obviously as a UN
24 procedure, people were not employed without knowing who they were or what
25 they have done. So I would definitely invite you to request those CVs if
1 this is the case. I presume the CVs exist still. They were when I was
2 head of the office, so I guess they would still exist now.
3 Q. Of course. I assumed that this was the case, but I have to ask
4 you this because of my follow-up question. You, as the head of this
5 section and the head of the whole team, were you the person who actually
6 decided who you would work with? Did you decide whom to employ on the
7 basis of their qualifications that were made known in accordance with the
8 Rules of the United Nations or was it somebody else's decision?
9 A. No, I -- as a head, I had prerogatives certainly to employ
10 certain people depending on what -- on how these people were employed.
11 So let me clarify: If people were employed or as part of the UN on a UN
12 contract, certainly, as you may know, the UN has very specific rules
13 regarding hiring people. You have to short-list from an open-application
14 process. There may be two people from your office and a third person
15 from another office that is not yours and things of the kind, a number of
16 interviews and so on. If people are employed, for example, on a
17 short-term contract on another fund be, for example, on a donor fund, we
18 had a number of donor funds, the process of recruiting is slightly more
19 flexible. People maybe come for a month or even two weeks. In the case
20 of pathologists, they came for a short time. In that case, yes, I had
21 extensive leverage as to who I would hire. But certainly it was not me
22 myself who was hand-picking every single expert. Certainly I gave an
23 approving look or non-approving look at the CVs I received in order not
24 to have people that were literally unqualified, certainly.
25 Q. My question is: How great was your role in the selection of
1 personnel, either full-time personnel or those who only worked on
2 short-term contracts?
3 A. Well, it was the -- I mean, it was a rule that the head of an
4 office dealing with what we deal has. I mean -- I mean, I -- it's a bit
5 difficult for me to specify or quantify my role. I was a head of an
6 office with a very important mandate in hand; therefore, I would
7 definitely oversee things as much as I could, certainly. I mean,
8 obviously delegating authority and all the rest of it, but obviously the
9 issue was not that people would be employed, so to speak, without me
10 knowing who they were primarily to deal with such a sensitive issue.
11 Q. Thank you. Were there any cases where you decided that some
12 people could no longer be on your team to do some jobs that they had done
13 previously on the team?
14 A. Could you elaborate on that because I do not understand very much
15 your question.
16 Q. Did you fire anyone from your team, either somebody who was there
17 like a full-time employee, a staff member, or on a short-term contract?
18 A. Instances of firing people primarily if they were on posts of any
19 kind had to be decided by a committee, of which, as a matter of fact, I
20 was not part of, in order to guarantee the rights of the person and
21 investigation or whatever it may be. In cases of people working in short
22 contracts, people in theory could be, yes, I mean fired upon finding some
23 major breaches in their behaviour or work; and this could be a
24 prerogative of mine as head of the office, yes, that is correct.
25 However, I do not recall "firing" any person on this last category,
1 meaning these short-term employees. However, I do recall an instance in
2 which some of the staff members were "fired" through a very lengthy
3 process with the Department of Justice.
4 Q. My next question: I understand what you say about short-term
5 contracts. You mentioned people who were on posts. You also mentioned
6 the committee that was set up to protect all the rights of the employees,
7 people who work there. And my question is: Could you recommend to such
8 a committee that a person be -- that a person's employment be terminated
9 for a serious breach of duty or any kind of criminal behaviour? Did you
10 have this opportunity -- did you have this prerogative?
11 A. Yes, I did. As head of the office, yes.
12 Q. My last question in this line of questioning is: In percentages,
13 how many people were on short-term contracts and how many people were
14 staff members? Could you please answer and then I have a follow-up
16 A. That is a very difficult question to answer based on
17 recollections -- but again, based on recollections and stating really
18 that it is only a recollection, the number of people -- of experts on
19 short-term contracts depended on the workload we had. In other words, I
20 give you an example. Imagine that we had a transfer of remains from
22 these bodies or body-bags crossed the Inter-Entity Boundary Line, the
23 families were pressing us to return these bodies to them, so we needed to
24 work fast. So in that case we would hire a number of people to work, for
25 example, for two weeks in the mortuary and to finish with that back-load
1 of cases. But then maybe there would be no transfer until, who knows
2 when, a few months ahead, and the exhumations being conducted in Kosovo
3 would yield a few bodies that could be actually dealt with by the
4 permanent staff we had in the office. So the extra personnel, meaning
5 these short-term personnel, will go home and we will remain with the
6 people we had.
7 If I had to give you a precise number of permanent posts, I mean
8 from my recollection maybe we were -- on UN posts maybe there were 15 and
9 there were a number of other people on KCB, Kosovo Consolidated Budget
10 posts, at the time -- or there was a time in which the office they were
11 primarily staffed by KCB staff. We were, like, 79 or 80-something
12 people. If we add to this the short-termers, the short-termers could be
13 up to 10 people or 12 people, so you can have an idea of how many people
14 were working at the same time in Kosovo.
15 JUDGE PARKER: I'm afraid, Mr. Djordjevic, I've got to interrupt
16 with time.
17 MR. DJORDJEVIC: [Interpretation] Yes, I wanted to take this
18 opportunity after the witness responded to tell you that my next question
19 would require a five-minute answer, so I wanted to concur with you this
20 is the right time to make a break. Thank you.
21 JUDGE PARKER: We must adjourn for the evening now, to resume
22 tomorrow in the morning, and the court officer will show you out and give
23 you instructions, and we look forward to continuing with your evidence
25 THE WITNESS: Thank you, Your Honours.
1 JUDGE PARKER: While the witness is leaving, Ms. Kravetz, I
2 understand there is a matter you wish to raise.
3 MS. KRAVETZ: Yes, Your Honour. Thank you. It's a matter that
4 concerns scheduling. The witness who's scheduled to testify right after
5 we conclude with this witness is Mr. Jan Kickert. The witness is already
6 here, he has arrived to The Hague
7 needs to return home tomorrow at the end of the day to attend some
8 personal matters. We would like to request to start tomorrow first thing
9 with Mr. Kickert's testimony and complete his evidence and later continue
10 with Mr. Baraybar's testimony. That is, to interrupt Mr. Baraybar's
11 testimony right now. I should point out that I had informed my learned
12 colleagues from the Defence about the fact that Mr. Kickert had to
13 complete his evidence tomorrow at the start of the session.
14 JUDGE PARKER: Have you consulted with the present witness?
15 MS. KRAVETZ: He has no problem staying if his testimony goes
16 over the weekend and needs to continue --
17 JUDGE PARKER: How long do you expect Mr. Kickert will take in
18 total tomorrow?
19 MS. KRAVETZ: Well, in direct he will take approximately one
20 hour. I don't know how much time the Defence anticipates to take in
22 JUDGE PARKER: Mr. Djordjevic, do you anticipate difficulty in
23 finishing the evidence of Mr. Kickert tomorrow?
24 MR. DJORDJEVIC: [Interpretation] If we proceed as my colleague,
25 Ms. Kravetz, suggested, I don't see any problems; but life has taught us
1 that there may be all kinds of problems. So with this caveat, I agree.
2 JUDGE PARKER: Life has taught this Chamber that whatever time in
3 estimates is bound to be inadequate, a matter about which we are
4 gradually effecting change in the approach of counsel on both sides.
5 Thank you for that. We look forward to the evidence of Mr. Kickert first
6 up tomorrow and we will then progress later in the morning to the
7 evidence of the present witness.
8 MS. KRAVETZ: Thank you, Your Honour.
9 JUDGE PARKER: We adjourn now to resume tomorrow.
10 --- Whereupon the hearing adjourned at 7.04 p.m.
11 to be reconvened on Friday, the 20th day of
12 March, 2009, at 9.00 a.m.