1 Monday, 23 March 2009
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 2.18 p.m.
5 JUDGE PARKER: Good afternoon. Before we commence, it will be
6 necessary tomorrow to adjourn at 12.15 because all Judges are meeting in
7 a Plenary session from 12.30. So it will not be possible to have the
8 third session tomorrow morning. And could I mention that it has just
9 been advised late on Friday by the Dutch security personnel that this
10 whole area, including this building, will not be open at all to the
11 public on Tuesday, the 31st of March, that is Tuesday week, the reason
12 for that is an international conference at the highest government levels
13 on Afghanistan
14 conference centre, so that this whole geographic area will be closed to
15 the public which means we will not be able to enter or leave this
16 building on Tuesday, the 31st of March. So in your planning ahead, if
17 counsel can take account of the fact that tomorrow we must finish at
18 12.15 and that we will not be able to sit at all on Tuesday,
19 the 31st of March.
20 Mr. Stamp, I understand you have a matter.
21 MR. STAMP: Yes, Your Honours. It would be a matter that asks
22 that we go in private session. Perhaps before we do that may I indicate
23 it is in respect to protected measures for a witness to come. I rise
24 because I think I should indicate to the Court that the application is --
25 we propose to make an application, but perhaps it might be better if the
1 application is made when the witness -- just before the witness comes
2 instead of breaking the flow of this witness. But I just wanted to say
3 so at the first opportunity because we will have the information on the
5 JUDGE PARKER: Very well. We will wait until this witness is to
6 come. He is the witness following this one?
7 MR. STAMP: Following this one.
8 JUDGE PARKER: Very well.
9 MR. STAMP: As it pleases you.
10 JUDGE PARKER: We will then have the witness that is to continue
12 [The witness takes the stand]
13 JUDGE PARKER: Good afternoon.
14 THE WITNESS: Good afternoon, Your Honours.
15 JUDGE PARKER: Could I remind you that the affirmation you made
16 to tell the truth still applies.
17 THE WITNESS: Thank you.
18 JUDGE PARKER: Mr. Djordjevic.
19 MR. DJORDJEVIC: Thank you, Your Honours.
20 WITNESS: JOSE PABLO BARAYBAR [Resumed]
21 Cross-examination by Mr. Djordjevic: [Continued]
22 Q. Good afternoon, Mr. Baraybar. This afternoon I'm going to
23 continue my cross-examination from where we broke off. It has to do with
24 the statement you gave during your direct examination. Mr. Baraybar, I
25 would like to ask you about wounds and the nature of the wounds
1 established by your team. I wish to restrict myself only to the bodies
2 that had been exhumed and then repatriated to Kosovo from Batajnica,
3 Petrovo Selo, and in relation to the type of injury and kind of injury
4 sustained by the persons on whose -- on whom autopsies had been carried
6 We have here a document of yours that has already been admitted.
7 We see in Batajnica that there was a total of 744 bodies. For 506, the
8 cause of death was established, and the cause of death is unknown for 238
9 bodies. Now, my question: Your conclusion when speaking about this was
10 that the persons who lost their lives were civilians in your view -- or
11 rather, if they were not civilians, then they were persons who could not
12 defend themselves. Why? Because they had bullet wounds rather than
13 shrapnel wounds, and it is your experience that they are mainly the cause
14 of death of persons who take part in combat. Could you please explain
15 this to us. Where do you get this experience from, and what is it based
17 A. Certainly. What I said is that after carrying out a survey of
18 some 25 armed conflicts, some of this information as a matter of fact was
19 also submitted to the Court in the case of the Prosecutor against
20 Brdjanin and Talic. The primary cause of morbidity and/or mortality in a
21 traditional armed conflict, and by this I mean two groups of people
22 fighting one other, armed both of them, whether it be guerillas, an army,
23 or whatever, people with arms; generally the first cause of mortality and
24 morbidity is shrapnel followed by gun-shots, that is in terms of
25 mechanism of injury. When in these settings gun-fire is the leading
1 cause as it may be, the distributions of injuries in the bodies are: The
2 extremities, be arms and legs; thorax; and head. However, we have
3 observed the reverse pattern in cases in which the context in which these
4 people are dying is not an armed conflict as such, meaning that one of
5 the groups is armed and the other one is not armed. So it is not a
6 military engagement of some kind. In this case what we have recorded is
7 that the distribution of injuries by gun-fire would be head, thorax, and
8 extremities. In some cases, the number of injuries on the head and the
9 thorax may be the same or very close one another. As in our case, for
10 example, the thorax is slightly higher than the head but the head is
11 extremely high for what it is.
12 What I have also said is that -- and I can give you the quote.
13 If you wish. Maybe if you wish you can tell me and I will give you the
14 quote. It has been determined that in gun-fire contexts, meaning
15 shoot-out context of some kind, some people may show skeletal injuries
16 while other people may not show skeletal injuries. However, all of them
17 may have died of gun-shots. When dealing with decomposed remains with
18 all that remains, even if I'm being redundant here, is the skeleton or
19 the bones, it is possible to assume that some of the remains that do not
20 show any bone trauma may have also been injured by gun-fire not affecting
21 bones, such as, for example, somebody being shot through the abdomen or
22 through any other part of soft tissue through the body.
23 I don't know whether I'm answering your question.
24 Q. You mentioned that you can give me a particular quotation. What
25 was it that you meant?
1 A. Yes, the quotation I was referring to was a quotation of how the
2 context, in this case a gun-fire context, is the one that may determine a
3 certain distribution of skeletal injuries in some cases and no skeletal
4 injuries in some others. And the article I was referring to is by -- I
5 will pronounce it and then spell it, De La Grand Maison, in French, so it
6 would be D-e L-a G-r-a-n-d M-a-i-s-o-n, and associates 2001. I have the
7 full -- the actual full quote in the bibliography of the report that has
8 been already tendered to the Court.
9 Q. Mr. Baraybar, could you please tell me whether you are familiar
10 with the autopsy reports of the soldiers of the Army of Yugoslavia and
11 the policemen of Yugoslavia
12 A. It would depend. I mean, your question is quite -- I mean,
13 broad. I mean, I have seen some reports primarily, if I'm not mistaken,
14 on some cases. I'm just trying to recall now on what cases. On some
15 specific cases of people we identified back -- back in Kosovo as
16 belonging to possible soldiers, but unless you are more precise I cannot
17 really give you a precise answer.
18 Q. What I'm asking about the members of the police, and what I'm
19 asking about the members of the military - at that time it was still
20 definitely the territory of the sovereign Republic of Serbia
21 sovereign Federal Republic of Yugoslavia - so I'm asking you about the
22 members of the police and the Army of Yugoslavia who took part in
23 fighting in Kosovo. Do you have any knowledge about that or not, in
24 relation to autopsies, of course?
25 A. In -- no, in those cases you are mentioning, no, I don't.
1 Q. Thank you. According to the reports that you provided to the
2 OTP, and some of them were admitted into evidence here, it appears that
3 the number of cases that were solved while you headed the team was 1800,
4 or rather, 1800 or 1900 cases from the territory of Kosovo
5 make any comparative statistics in terms of bodies that you dealt with
6 excluding Batajnica, Petrovo Selo, and Perucac?
7 MS. KRAVETZ: Your Honour, could we please have a reference to
8 the passage that my learned colleague is calling -- is citing to where
9 this number is referred to.
10 JUDGE PARKER: Could you assist, please, Mr. Djordjevic.
11 MR. DJORDJEVIC: [Interpretation] Your Honours, right now I cannot
12 give you a reference but I'm going to rephrase my question in that case.
13 I'm going to ask Mr. Baraybar: How many exhumed bodies were autopsied,
14 excluding Batajnica, Petrovo Selo, and Perucac, while he headed the
15 organisation, that is. What I mentioned is contained in his report. I
16 don't have the reference right now, so in order not to waste any time
17 I've rephrased my question this way.
18 THE WITNESS: I could not give you an exact number. I mean we
19 could obviously extrapolate something on the consolidated list of missing
20 persons. Meaning, I left in May -- the 1st of May, 2007, and the list
21 you have here is April 2008, and before that you got another list of
22 October 2006. Just for simplicity's sake, let's take the list of
23 October 2006, in which 3.011 cases were closed, of which the ones that
24 were examined, meaning remains were identified and therefore were subject
25 of an examination, were 1751 plus 91. We could do a bit of an addition,
1 if you wish, just to give you an exact number, would be 1842 remains. So
2 I would say that that is the average number of cases that my office while
3 directing that office examined -- I mean physically examined.
4 MR. DJORDJEVIC: [Interpretation]
5 Q. As for the autopsies that were carried out, was cause of death
6 established for those persons, and do you have these statistics as you
7 did for Batajnica, Petrovo Selo, and Perucac, do you have those
8 statistics? I'm asking you because I haven't seen them.
9 A. I don't have them, and as far as I know they are not part of my
11 Q. I'm asking you this for the sake of the objectivity of your
12 report in relation to your conclusion that the persons who were exhumed
13 from Batajnica, Petrovo Selo, and by Lake Perucac were injured in a way
14 that made it obvious that they could not defend themselves and that they
15 were therefore unarmed persons. You referred to certain sources, and I
16 see that these sources are French, French authors. I don't know what
17 armed conflict and what part of the world you were actually dealing with.
18 Do you know any research in relation to the conflict in Kosovo? Do you
19 have any comparative study in relation to that?
20 A. No; however, in my report tendered to the Court for the case of
21 Brdjanin/Talic and then expanded also in an article by myself and
22 Gasior, G-a-s-i-o-r, from 2006, it's a peer reviewed paper at the
23 Journal of Forensic Sciences. We expand and explicit some of the
24 resources you're referring to, not specifically regarding Kosovo but
25 elsewhere in the Balkans, primarily Croatia and Bosnia
1 mistaken, Croatia
2 anatomical location, and the nature of injuries caused by one or another
3 mechanism in wartime. But to answer your question: No, I have no
4 sources for Kosovo, certainly not.
5 Q. Mr. Baraybar, I was not challenging the part of the skeleton
6 where the wounds were found or whatever it was that you did. I'm saying
7 something else. You say that this indicates that these were unarmed
8 persons who could not take part in combat, or if they were combatants
9 they had no weapons at that moment. That's why I'm asking you whether
10 you have any comparative knowledge from Kosovo in relation to the way in
11 which war fair was waged, what weapons were used, and to what extent it
12 was possible in view of traditional war conflicts, as you said, that
13 injuries in combat can be sustained in the way in which you describe
14 this, namely, coming from shrapnel and not being exit/entry wounds. That
15 is the essence of my question. Do you have information about how
16 conflicts in Kosovo developed in view of this assertion that you're
18 A. No, but I have to -- I'm afraid I cannot tell you yes or no, but
19 let's just put the thing in context. I have the conclusion of my report
20 here. What it says:
21 "Strongly suggesting the killing of individuals unable to defend
22 themselves rather than the confrontation between two armed groups,"
23 suggesting, so I'm not affirming it. The information I have provided in
24 this report and in the previous quotes I gave you is totally comparable
25 to any other country in the world where different types of "war" have
1 been waged. The survey of 25 armed conflicts from Cambodia to
3 in which war has been waged and the pattern repeats itself in any place.
4 To give you yet another example, this distribution of injuries, whether
5 shrapnel first, gun-shot second, and when gun-shot having this specific
6 pattern has been recorded in a killing in Peru dating from 1984 where a
7 counter-insurgency war had been waged by the army. So again we may say
8 what is the point of comparing Peru and Kosovo or Croatia
9 whatever, but it seems to be a quite universal thing. That is what we
10 know for the time being.
11 Q. Am I right if I say after this response of yours that it is your
12 conclusion that that is probably the way it was. You're not saying
13 anything with 100 per cent certainty, are you, as regards whether they
14 could or could not have defended themselves?
15 A. That is correct, because all the affirmations that an expert,
16 such as myself or any other expert, would give you are the most probable
17 scenarios not the most possible scenarios since we know that everything
18 is possible 50/50 per cent. So the most probable scenario meaning that
19 the evidence I have collected allows me to reconstruct this as a
20 probability, but certainly I cannot give you a statistical probability
21 because it is not the nature of the material we are working with to tell
22 you this is probable 99.9 per cent. This is not DNA. Certainly we are
23 not talking about that kind of quantitative variables, if you wish. But
24 it is the most probable scenario. That is what an expert will
25 reconstruct. The most probable scenario, not the most possible one, but
1 the most probable one. Therefore, if I was certain to a hundred per cent
2 that I am not. I mean, I'm not saying I'm a hundred per cent sure. I
3 think this is the most probable scenario, meaning all these elements most
4 likely assist us to conclude this, this is the most likely scenario;
5 otherwise I would say that these attest to the killing of individuals
6 unable to defend themselves. I said "strongly suggesting," so it is the
7 most probable scenario. The information we have as compared with all the
8 sets of information and as explained in this report lead us to conclude
9 that, as the most likely cause. Now, is it possible that some other
10 cause may have come into play here? Yes, it is possible. Everything is
11 possible, but I cannot comment upon possibilities. I can only comment
12 upon probabilities, the ones contained in this report.
13 Q. However, had you had comparative data to show the Trial Chamber
14 and the OTP as regards other persons whose bodies you looked at in
15 Kosovo, and if you had very specific information, as you did for
16 Batajnica, Petrovo Selo, and Perucac, you will agree with me that in that
17 case, had we had these statistics, the probability of your assertions
18 would have been much higher or perhaps it would have been non-existent.
19 Had you showed us that the other bodies that you had examined had
20 sustained injuries from shrapnel and then you say they probably lost
21 their lives in armed conflict, the situation would be quite different.
22 If all the bodies that you examined had only exit/entry wounds, as in
23 gun-shot wounds. Will you agree with what I said just now?
24 A. I wouldn't, but I'll tell you why. I mean, I'm not trying to
25 disagree with you for the sake of keeping my argument, but there is a
1 reason why I do disagree with you. Let's remember that the three mass
2 graves which remains are discussed in this report correspond to specific
3 events. These are not random people that end up in holes with other
4 people. For example - and that is just out of pure recollection from my
5 days in Kosovo - one of the groups of people came from Izbica and Izbica
6 was a specific attack in a specific day when a number of people, not
7 everybody, were killed. Other people came from Meja and in Meja it was
8 another specific attack, so another event. Therefore, the event and the
9 nature of the event is the one that will determine the nature of the
10 injuries sustained by the victims because the event is an event of this
11 kind or the other kind. Therefore, I cannot compare simply 1800,
12 whatever number I gave you, 1842, I think, individuals found in Kosovo in
13 various events to these events. Of course I can compare similar things.
14 I can compare an event similar to Meja or to Izbica or whatever to
15 another event of its kind, but I cannot compare all the bodies found in
16 Kosovo that could be a collection of various events and various
17 mechanisms and all the rest of it. For example, I cannot compare some
18 old lady found dead in her apartment with Meja or something of the kind.
19 I mean, it doesn't make any sense. Therefore, that's why I disagree with
21 Q. I would have agreed with you if you had written that in your
22 report, but it's missing in your report. What we have in your report is
23 a heap of death certificates and then forensic inspection reports, and
24 I'll come back to one of these. It's Ba012 case that you had commented
25 upon earlier in your testimony. Now let me see, I have a reference here.
1 Just a minute. In B/C/S the report is 2794, 02794 is the English
2 version, the certificate for Lirije Berisha and the forensic inspection
3 report comes with it. We can see that on the screen. Right.
4 I'm looking at this report. Why is the autopsy report only a few
5 sentences long, and how are we who are interested -- I see Ms. Kravetz is
6 on her feet.
7 MS. KRAVETZ: Your Honour, I wanted to request a page reference
8 to which page we are referring to in the report, if my learned colleague
9 could kindly indicate that.
10 MR. DJORDJEVIC: [Interpretation] Just a second, Your Honour.
11 I'll continue, and I'll give you the reference in due course. I'm asking
12 a general question using this specific example because that's the one
13 chosen by Mr. Baraybar.
14 Q. Why are all autopsy reports only a few sentences long; and how
15 are we who are interested in the nature of injuries, the origin, the
16 mechanism of the injury able to check these reports with our expert
17 witnesses when the reports are so short and lacking in the kind of detail
18 that we feel should be included so that we could review them critically?
19 We have no minutes of the autopsy, no record of what had been
20 established, the origin of the fractures, whether the injuries were
21 post mortem or ante mortem? Why are the reports so short? Is that the
22 usual practice?
23 A. No, it is not. As a matter of clarity, what I have in front of
24 me here is just the cover page of my report. Mr. Djordjevic was
25 referring to, I think, the inspection report that I do not have it in
1 front of me. I mean, I have the paragraph on page 11 of my report, but I
2 don't think that is what he is referring to.
3 Q. Sure, just a moment.
4 MR. DJORDJEVIC: [Interpretation] Your Honour, not to waste time,
5 I would kindly ask the usher to give the witness a hard copy of the
6 report that he discussed yesterday, and in the meantime we'll find a
7 reference. I'll just ask the usher to show it to the Prosecutor first.
8 THE WITNESS: Thank you.
9 As I explained at the beginning of the examination, the forensic
10 inspection, although the factor becomes a second autopsy, it is not a
11 formal autopsy in that respect. Therefore, the information is quite
12 summarised. However - now I have it here, yes - this doesn't mean that
13 this document was produced in the autopsy room, certainly not. All the
14 forms, the original forms, that were filled in by hand during the
15 examination where they described each of the injuries and all the rest of
16 it does exist. This piece of paper is only the forensic inspection
17 report, as it says, which is a summary; it is not the paperwork that goes
18 with it. Having said that, the forensic inspection is only that, an
19 inspection, it is not a full autopsy in the way that was carried out in
20 the -- in Serbia
21 attention was given to reconstructing body parts that were broken in
22 order to make these interpretations such as, for example, here gun-shot
23 injury to the head, et cetera, describing the keyhole, where it is
24 located, et cetera. But yes, I mean, there is pictures that go with
25 these inspection reports, there is handwritten notes that go with them.
1 I mean, all that does exists to my knowledge. It should be in the
2 Office of Missing Persons in Kosovo. So all I'm trying to say is this
3 piece of paper is not an examination. I was not in front of the body-bag
4 and filled it in. This is only a summary that is produced for purposes
5 such as this one.
6 MR. DJORDJEVIC: [Interpretation]
7 Q. These are documents --
8 THE INTERPRETER: Could the counsel please repeat the numbers.
9 MR. DJORDJEVIC: [Interpretation] The second one is P5148 and the
10 first one -- let me repeat. P4556 and P5148.
11 Q. My next question, Mr. Baraybar: To what extent did you take into
12 account the autopsy reports of bodies repatriated to Kosovo from
13 Batajnica, Petrovo Selo, and finally Perucac?
14 A. Could you be more precise in -- I mean, how -- if we took it --
15 Q. Did you take them into account? Did you review them? Did you
16 use them in your paper? Or did you not use them in your paper at all?
17 A. We did. As a matter of fact, the whole issue of the forensic
18 inspection comes after reviewing the first cases we received -- not the
19 first eight, but when we were receiving a larger number of cases when you
20 could actually see that they -- all of them, at least in Batajnica or
21 Perucac, had cause of death ascertained; and it seemed that there had
22 been like a cut and paste in the text, meaning that all were crushed by
23 blunt-force instrument, cause of death was unascertained because the
24 bodies were too decomposed. And obviously what was more worrying is that
25 in some of the cases we found extra body parts. We found another arm or
1 leg of another person that -- obviously there's nobody with three legs,
2 and this was really a problem. Therefore, at some point we had a look at
3 these reports but just as a reference -- as a reference. I mean,
4 obviously the inspection report is still independent report, it's not --
5 we were not trying to pick, if you wish, "pick" on the mistakes of the
6 others, but we had a duty towards the family -- there were a tremendous
7 amount of pressure to hand over the remains, and we could not just hand
8 over remains primarily if there were extra remains in the bag.
9 Q. I'll go back to the statistics that you provided.
10 MR. DJORDJEVIC: [Interpretation] I think it's 02795 in B/C/S,
11 that's page 5455, that's -- sorry, it's P5455. Could we have that on the
12 screen. I'm mostly interested in the table. The number is 5455. That's
13 Exhibit 5455.
14 THE REGISTRAR: Your Honours, P455 is on the screen now.
15 MR. DJORDJEVIC: [Interpretation] Thank you.
16 Q. Let's look at the table you made for Batajnica. You have 238
17 unknown causes of death. What is the main reason why your team was
18 unable to determine the cause of death?
19 A. Just to clarify, I do not know whether it is a translation term.
20 Unascertained is not the same thing that unknown, so this is cause of
21 death unascertained; meaning that you are able to ascertain the most
22 probable cause of death based on hard evidence that the body, so to
23 speak, is providing you or the skeleton is providing you. You may have a
24 skeleton of somebody who has been, let's say, poisoned, choked with a
25 pillow or simply stabbed in soft parts of the abdomen and has no boney
1 injuries of any kind. Therefore, you cannot ascertain the cause of
2 death. It is not that it is unknown, but it is unascertainable, so to
4 So the reason, to answer your question, why these cases are
5 unascertainable is because they were too fragmented or incomplete. As I
6 told you, for example, there were some body-bags that contained more than
7 one individual and, for example, you may have a torso that was
8 articulated to arms and head and all the rest of it. But, for example,
9 the legs, one leg may be his leg but the other leg could be somebody
10 else's; or you may have only one leg and obviously you cannot ascertain
11 the cause of death of a body based on a leg. Certainly you can assume
12 certain things that if they take your leg you will die, but obviously
13 that will be far too much far-fetched in a way.
14 Q. What does the number 238 unascertained mean? Because after your
15 answer I'm completely at a loss. You have statistics where you say the
16 number of cases, the number of ascertained causes of death, and this
17 number is unascertained. What does that mean?
18 A. Well, I think I already explained you, but I can say it again.
19 From a total number of 744 individuals that you have, 506 had the cause
20 of death ascertained based on physical evidence of the bodies themselves,
21 while 238, the remaining of the 744, the cause of death could not be
22 ascertained based on the remains we had examined. So, for example, there
23 were incomplete remains, for example, there were skeletons with no
24 injuries of any kind and things of the kind.
25 Q. Now I understand. I did not understand the previous answer quite
1 clearly, but now you've made it quite clear. Now, my next question
2 relating to these persons where the cause of death was not ascertained:
3 Did I understand correctly that in Batajnica you found mostly skeletons
4 with barely any tissue on them; is that correct?
5 A. Yes.
6 Q. Thank you. Does that mean that in case of a stab wound or an
7 entry and exit wound through a tissue, you would have been unable to find
8 a bullet wound and you were unable to say that the cause of death is a
9 bullet wound?
10 A. Yes, that is correct.
11 Q. Now, my next question: Would injuries sustained not only from a
12 blade or a gun-shot also leave no trace on the skeleton?
13 A. That is correct.
14 Q. Thank you. Now, I have another question concerning your report,
15 D002-4164. I believe that's the version in English. It's over 50 pages
16 long, so I won't call it up, but since you are the author I believe you
17 are familiar enough. I want to look at the results of examination of
18 human remains found in Berisa, Kosovo. You conducted the examination
19 yourself, correct? Nine groups found in the location of Berisa, Kosovo?
20 A. If I am right, that was the evidence presented through the case
21 of Limaj and others, wasn't it?
22 Q. Yes, but I'm giving you the exact number of the document. Let us
23 call up the first page. D002-4166, to avoid any doubt. D002-4166.
24 A. Yes, I can see it.
25 Q. Is this something you have written yourself? Are you familiar
1 with the document?
2 A. Yes, it is.
3 Q. Thank you. I think on page 3 of this document it reads:
4 "In the part of examination of wounds it says:
5 "Due to the impossibility of determining whether the bullet
6 wounds were post mortem or ante mortem, it was assumed that gun-shot
7 wounds were the cause of death and occurred at the time of death ..."
8 Is this forensic determination based on assumptions or on fact?
9 A. Okay. I will give you a lengthy answer because it requires a
10 lengthy answer so we are all very clear regarding this. Forensic
11 anthropologist, forensic pathologist, anybody examining extremely
12 decomposed remains is determining the most probable cause of death, not
13 the mechanism of death, unlike a pathologist working on a cadaver. For
14 example, somebody has been shot to the head in a homicide, the cause of
15 death definitely will be the gun-shot wound to the head. The mechanism
16 of death, however, may be hypovolemic shock, I mean, the person bled to
17 death or any other more pathophysiological mechanism. So what happens
18 when you have a remain, a set of remains, that has no soft tissues of any
19 kind; be bones, be something very decomposed? If we as scientists are
20 trying to determine the mechanism of death of that individual, then we
21 shouldn't even be in this court today, I mean there's no point of any
22 examination. Because all you can say is that this body has a gun-shot
23 wound to the head; however, I do not know whether the person was
24 clinically dead or alive. I cannot say that the person -- when the
25 person saw the gun had a heart attack and died. The question is: Is
1 this logic a useful logic for any type of context? It isn't, in my
2 opinion certainly, and it is an opinion I defend strongly.
3 So I think that one of the things we have a take into account
4 when dealing with this nature of cases, be extra-judicial killings, full
5 disappearances, any kind of human rights violation, to put it in a
6 broader sense. We have to take into account two things. One is the
7 context, for example. The bodies found in these mass graves, these
8 people did not go there themselves. These people did not bury
9 themselves. A person found in a grave with a blindfold and hands tied
10 behind the back is not a case of suicide. All I'm trying to say is that
11 the context is defining a number of elements that you will find
12 eventually on the body; by the same token when examining the remains and
13 using that context into account you have to make that assumption - and
14 yes it is an assumption - in absolute terms if we become the most purest
15 of the purest certainly you cannot say if the person was clinically dead
16 or alive. We can go into a metaphysical discussion as to what is alive
17 or dead. Maybe the person got into a cataleptic state but was breathing
18 or was no breathing or was no pulse but was this person alive or not?
19 And use that hard evidence you are finding as an element that contributed
20 to the cause of death not to the mechanism of death of the person.
21 By the same token I will tell you: You find a body with five
22 shots through the head, if the person was dead, why did you shoot the
23 person five times in the head? Of course they can give you an answer,
24 anybody can give you an answer. This explanation I gave you refers to
25 the need for determining the most probable cause of death. This also
1 means there has to be some correlates between the injuries you are
2 describing in real life as I mention in this report in the paragraph --
3 last paragraph, I refer, for example, to some paper by Okoye and Kimmerle
4 in the year 2000 where they were looking, for example, at patterns of
5 activity and survival of people after they were shot. So, for example,
6 you know somebody shot on the head likely will die or will die after very
7 few minutes depending on what calibre of weapon this person was shot,
8 certainly. While somebody shot with a rifle through the thorax or the
9 chest would also eventually die. And this person may run for 2 metres or
10 10 metres and then drop dead.
11 So all these studies help you to relate the physical injuries you
12 are recording in this bone in this decomposing body to a specific
13 clinical correlate that physicians and other people deal with on a daily
15 So what is actually written here has also been written and peer
16 reviewed certainly in other publications I can provide you if you are
17 interested that is called, On the means of determining the most probable
18 cause of death; and that is something that is quite generally assumed as
19 a -- I mean procedure in any setting, I mean not only in this Tribunal
20 but in any setting.
21 Q. Tell me, is it in the purview of an anthropologist to establish
22 the origin of injuries of bones, the mechanism of their occurrence in
23 determining the cause of death?
24 A. Yes, meaning the anthropologist assist the pathologist in
25 ascertaining the most probable cause of death, as I already explain you.
1 And definitely it is in the purview of the anthropologist to determine
2 the mechanism of injury because we work with bones, and if it's not us
3 who would do it? A pathologist deals with soft tissues, with organs and
4 tissues. I mean, we work with bones. Bones is are our subject of study,
5 so to speak, so we have to understand how a bone breaks, how a bone
6 grows. We need to know everything about bones, and yes -- the answer is
8 Q. What about the mechanism of the occurrence of injuries, of the
9 infliction of injuries, would that be included too?
10 A. Yes, certainly. I mean, as I explain you -- I mean, even as an
11 anthropologist if I cannot differentiate between a hole in the bone
12 caused by a gun or caused by a drilling machine, then I would be jobless
13 I guess.
14 Q. Again on page 3 of the same report we read that all the entry and
15 exit wounds in the area of the head and chest are lethal, or is it my
16 misunderstanding? Would you confirm this? Would you say that all
17 gun-shot wounds to the chest and the head are lethal?
18 A. We have to take this comment in the context in which it has been
19 written. When determining the most probable cause of death, you have two
20 kinds of injuries, okay. The first kind of injury called lethal are
21 injuries limited to the head and the torso, the thorax, and lethal if
22 untreated could be injuries linked to the arm -- I mean to the arm and to
23 the leg, primarily the thigh and the upper arm, primarily because of the
24 link between the comminution or the fracturing of the humerus, I mean the
25 bone of the arm, and the femur, that is the bone of the thigh, and the
1 presence of the arteries, brachial artery in the arm and the femoral
2 artery on the leg, that normally lacerated at the time of a high velocity
3 through those areas.
4 Q. Now, sir, have you heard of the Baraybar collection? Does the
5 term mean anything to you?
6 A. Most definitely. I mean, I have certainly heard about the
7 Baraybar collection, not that it exists, but yes I have certainly heard
8 about it.
9 Q. Baraybar forensic skeletal collection, right? Can you tell me
10 what that is?
11 A. As far as I know, the term was given I guess by those who gave or
12 named this so-called collection after me were trying to honour me,
13 although they didn't really make my life easier as a matter of fact.
14 ICTY had or the Office of the Prosecutor had a project through the work
15 they did in Bosnia
16 aging standards for Balkan populations and that is what was done. The
17 papers with peer reviewed and published last year, in 2008, I think the
18 Journal of Forensic Sciences. This "collection" consisted of a number of
19 sleeves of bone and casts and -- I know that after this collection -- or
20 these bones, sorry, I mean, were used for these examinations and then
21 returned to -- returned from wherever they came from.
22 Q. That collection of bones it was made by whom? Why is it named
23 after you?
24 A. Since I was the resident forensic scientist in the Tribunal, and
25 I was acting as chief anthropologist in most of these occasions, I
1 oversaw this project; and that is why I believe these scholars at the
2 University of Tennessee
3 thought that there would be really a distinction, if you wish, to call
4 these series of studies - because there's no, as far as I know, physical
5 collection of bones behind some glass windows - after me. That is, I
6 mean, my understanding of the situation.
7 Q. Did you attend the meeting, professional meeting, of
8 anthropologists, pathologists, forensic scientists of the
9 American Academy
11 present, and could you tell us, if you were there, what you remember from
12 that occasion, from that congress?
13 A. I was there, and I remember I arrived late and I gave a paper
14 that is -- that has been published within the same volume of that
15 symposium that is called: When there is no DNA can we still identify
16 people? It is published within that symposium in 2008, if I'm not
17 mistaken, I mean the publication in the Journal of Forensic Sciences and,
18 as a matter of fact, I did learn then that when the symposium was
19 introduced, I have been given the honour, if you wish, to have this
20 "collection" named after me.
21 Q. Wasn't it different over there -- wasn't it a fact that you and
22 the entire group of scholars from Tennessee
23 criticism in view of the ethnic background of the entire story, and also
24 all the bones of these victims were obtained by you without the consent
25 of their next of kin and no one had been informed about that. At that
1 time Mr. Graham Blewitt Deputy Prosecutor of the OTP said that you were
2 authorised to carry out an investigation, but that was in the broadest
3 possible terms; whereas the scientists from Tennessee said that they did
4 not know that these bones or remains were from the victims from Kosovo
5 and Bosnia
6 exposed to severe criticism by a professor of anatomy and forensic
7 anthropology and other scientists who attended the gathering? Therefore,
8 the entire project was brought into question?
9 A. Well, that is an opinion. I can explain you this. If it was
10 anybody that has been subject of much heated debate -- and I'm being very
11 politically correct, not to say slandering - has been actually myself.
12 And as you well know if you go to internet and just type my name and put
13 bones next to it and it will have quite a lot of articles and comments of
14 otherwise unnamed scientists criticising this and that and the only name
15 that is associated to that is mine.
16 So far, I have not seen any scholarly disagreement or discussion
17 regarding these series of papers that have been published, as I said, and
18 peer reviewed. And that is exactly the type of criticism I would pretty
19 much expect. All the other type of criticism that actually started with
20 a publication in the Sunday -- what was it -- no sorry, it was the
22 magazine in the United Kingdom called The Age, and I remember this
23 because I was working for the Tribunal in Sanski Most I think. You know,
24 the same -- the same topic pretty much with various different backgrounds
25 came over and over and over over the years. And it seems there's
1 still -- I mean, moves quite a lot of people and gives a lot of
2 inspiration to a lot of people to keep writing about this. But regarding
3 that I have no comments. This type of work is not a popularity contest.
4 Therefore, I am not searching whatever is written about myself on a daily
5 basis, certainly not.
6 Q. Can you give us your comments with regard to the statements made
7 by your colleagues from the University of Tennessee
8 were not aware of the origins of these bones and they found out only
9 later that the bones had come from recently deceased persons, or rather,
10 the way you put it, recently killed persons. Why was it that you said
11 that, or rather, that they said that?
12 A. I -- this is the first time I heard about my colleagues from
14 what newspaper it has been said -- I mean, in any case, even if I see it,
15 I have nothing to comment. If it is true they say that, well, you should
16 ask yourself to them. I mean, I have nothing to comment on that. This
17 is the first time I hear it in any case.
18 Q. You were asked by journalist from an organisation that is called
19 IACAN [as interpreted], Kosovo Action Network. The journalist is
20 Petra Kirning [phoen] and Kees Birning [phoen] you said the same thing
21 that they should be asked why they had stated that, but that's not really
22 the most important thing that we're dealing with now. I'm interested in
23 the following: Why were samples taken for 800 bodies? Was it to
24 establish the possible age of the persons who were supposed to meet the
25 requirements of a profile of a Kosovar or Bosniak? I think that's what
1 you said. Was that the reason of the scientific research, to establish
2 the possible age of the deceased person after the skeletons were found?
3 Was that the reason why the bones were taken? As far as I know, it was
4 the ribs and the collar bones that were taken; am I right?
5 MS. KRAVETZ: Your Honour, the witness has been put a compound
6 question. There are several questions in fact in this one question. He
7 also hasn't been shown the source of the materials my learned colleague
8 is talking about. So I wonder if we could first break up the question
9 and also if the witness could be directed to the source of the -- of this
11 JUDGE PARKER: We are presented with compound questions and
12 compound objections.
13 If you want the witness to comment with some intelligence, it
14 will be necessary to put to him the article and the specific reference.
15 The way you're putting it, I would suggest, would preclude the witness
16 from bringing any sort of sensible expertise to an answer.
17 MR. DJORDJEVIC: [Interpretation] Thank you, Your Honour, then
18 it's going to take a bit longer because I familiarised myself with this
19 material just before the trial.
20 Q. So first of all, for the purposes of your research, did you take
21 the remains of the bones of over 800 corpses or not? There.
22 A. First, it was not my research, as I already said; and second, I
23 do not know on the top of my head how many remains or samples of remains
24 were taken, but the number may be correct -- actually, you have -- you
25 got the source, I don't have it. So I would say or consider that is the
1 case, yes.
2 Q. Would you please be so kind as to answer whether it's possible or
3 whether it is a number that is just that big. At whose proposal was this
4 project started, the taking of these bones, and what was the purpose of
5 the taking of these bones because we heard that you did take bones --
6 JUDGE PARKER: You're now getting into multiple questions,
7 multiple questions again. Now, do you want the witness to comment on a
8 specific article?
9 MR. DJORDJEVIC: [Interpretation] You are right. You are right,
10 Your Honour. I don't want the witness to say anything about any article
11 because it may be a case of libel or slander. I'm asking him whether it
12 is correct that they took the remains of bones of over 800 corpses and
13 the witness said that that is possible. And now I'm asking under whose
14 supervision and at whose proposal were these samples taken. He was the
15 head then so I'm asking whether it was his proposal.
16 JUDGE PARKER: Let him answer that then.
17 THE WITNESS: As I said at the beginning, the proposal to the
18 Office of the Prosecutor, the scientific concept of that was mine
19 although it was not my personal research, collection, whatever else we
20 want to add. And just to answer now, since we are at it, your compound
21 question, I mean the other two parts of your question is the why, the
22 reason why, is very simple.
23 Over the years in the Balkans, the standards for determining age,
24 individual age, skeletal age that has been used were primarily derived
25 from American -- North American populations. What we now know is that
1 different populations age skeletal-wise, obviously, I'm not talking about
2 whether somebody's wrinkled or not, in different ways. Therefore, in
3 order to be objective not just when you reconstruct demographic profiles,
4 meaning you got so many people dying between, let's say, 25 and 35 or
5 something of the kind; but also to assist with individual identification,
6 meaning I suspect this person was so and so and part of his profile is
7 that it is a male and is this age requires to have age standards that are
8 derived from that population in question. That is why now one of the
9 things or one of the objectives of forensic anthropologists throughout
10 the world is to elaborate what is called population-specific standards.
11 I cannot use an African standard and apply on a South American population
12 or North American standard and use it in any other thing. So that is the
13 reason. I do not know whether it is clear, but that is the -- I mean,
14 the overall reason. I mean, I can obviously expand, but, I mean, I don't
15 know if you're satisfied with that.
16 Q. In part. My next question in relation to this collection, this
17 bone collection: I've read this and now you're going to tell me whether
18 it's correct or not. In several articles of that, not at one, that the
19 samples that had been taken were the pubic bone, rib, and collar bone; is
20 that correct?
21 A. It is and it isn't. Depending -- let's see. In the clavicle,
22 they took a piece of the clavicle for what is called osteon counting,
23 that is a histological technique, as a matter of fact, that requires a
24 slight of bone so not the whole bone, that's one thing. The second thing
25 is, the pubic bone in some cases was resected and in some others cases
1 was casted. So they took a cast, kind of like a silicone cast. And the
2 ribs, the same thing, some where the external extremity, meaning the
3 extremity that is closer to the cartilage was cut, that is a 2-centimetre
4 or 3-centimetre cut or was casted as well. So it depends. It is a
5 variation of this -- again, I do not have with me inventories or anything
6 of the kind to tell you how many casts or how many actual specimens were
7 taken, but this is variation and a combination of all.
8 Q. Very well. The next question I would be interested in the
9 remains of the bones that were taken from the remains of these bodies.
10 Did this have to do with persons whose identity had been established or
11 were these persons whose identity had not been established?
12 A. They were a combination of both. There is a large number of
13 cases with known identities and there are some other cases with unknown
14 identities. The thing is that now, the standards derived from the known
15 can be employed to the unknown. That is, in lay terms, what it is about,
17 Q. When you spoke of the profile that you were interested in, did it
18 have to do with the Balkans or the former Yugoslavia or, for example,
19 only Kosovo and Bosnia
20 A. I guess these were -- profile has been quoted from where? From
21 an article? I mean, somewhere?
22 Q. What you said yourself just a moment ago. You said that the
23 profile of establishing the age of the remains could not be identical to
24 the one used in North America and that's why you started the entire
25 project. However, since you say that the research was in Kosovo and
2 and the Balkans is an even broader notion. So now I'm interested in
3 hearing what the purpose of your investigation was. What area?
4 A. Yes, I did not use the word profile, I used the word
5 population-specific standard. And as a people, former Yugoslavia
6 quite representative sample of a people. In other words, aging -- aging
7 in former Yugoslavia
8 as a population, no matter how we want to divide these populations up in
9 subgroups than, for example, a North American population that yet again
10 is a multi-racial population or is a multi-national population. So the
11 idea was to create population-specific standard for that part of the
12 Balkans that is quite representative as a matter of fact.
13 Q. Tell me, before you got this idea to do that, you mentioned the
14 word standard rather than profile. Did you use European profiles or
15 standards? Are you familiar with those standard? Why didn't you use
16 them rather than American standards?
17 A. Well, as a matter of fact, and we're going to go into a very
18 technical detail here, the only -- let's go back in time a bit. In
19 1995/1996 we were, for example, working in Rwanda, okay, not even in the
20 Balkans but in Rwanda
21 up with a specific individual profiles in this case regarding how old
22 they were, males or females and so on. Then the only forensic standards
23 we did have at hand were the ones they were and widely used were
24 North American standards. Why is that? The North American standards,
25 and I'm referring to two specific standards here, one called the
1 Suchey-Brooks that refers to the changes or metamorphosis of the pubic
2 synthesis that is part of your pelvis to parts of your pelvic bones, and
3 then the standards produced by Iscan and Loth based on the metamorphosis
4 of the external end of the ribs were the only forensic standards
5 available. Why were they the only forensic standards available? Because
6 these people have actually carried out an identical research collecting
7 autopsy room specimens of known age and sex. In the case of
8 Suchey-Brooks was a very large multi-racial sample at Los Angeles county
9 medical examiners office while the samples from Iscan and Loth were from
11 be applied in forensic contexts until then. So we came mid-1996 to the
12 Balkans and yet again we had the same problems as in Rwanda, what
13 standard should we use? Of course there were other standards, for
14 example, the European association of anthropologists that has some kind
15 of standards; but they were not forensic standards. They have been
16 derived on medieval populations. Of course you have some other standards
17 by Aksavi [phoen] and Nemeskedy [phoen] very famous Hungarian
18 professors of anthropology that have developed the complex methods widely
19 used in the Balkans and in this way. These cases yet again where is
20 majority, archeological populations that cannot be compared to modern
22 So if I had a choice in 1996 I have to use what I had at hand,
23 but obviously the idea was that we have to be using something that could
24 actually be replicated elsewhere and used by those who would continue the
25 work of identification in the Balkans, I mean beyond ICTY, as they do it
1 now. So that is the reason. So when we talk about standards we have to
2 be very careful because, yes, there is a lot of standards. But the
3 validity and the usability of a standard is only dependent upon the
4 sample on which it was based and whether it is applicable or not in a
5 medical-legal context. I cannot apply or for that matter even defend a
6 report and say I have used, you know, standards derived from an Egyptian
7 population from the time of the Pharaohs to apply to a Bosnian sample or
8 Peruvian sample here. That doesn't really work. Here you're trying to
9 defend the specific identify of one individual or a group of individuals
10 so you have to really base your things on the most accurate things you
12 Q. How could you then provide findings for all these bodies -- or
13 actually, tell me, when did the collection start, actually, the
14 collection known as the Baraybar skeletal collection, what year?
15 A. The project, if I'm not mistaken, started back in -- this I would
16 question, 1998 or 1999, one of those two years. Again, I'm using my own
17 sort of memory, so to speak -- I mean the project -- I rather call the
18 project rather than to my learned colleagues in Tennessee using the name
19 or my name for the project.
20 Q. If it's 1998, when did Bosnia
21 were taken from Bosnia
22 wrong on that?
23 A. No -- yes. I mean, as I -- I think I already said it. This
24 project contemplated things from -- remains from Bosnia, and there's a
25 tiny collection, if I'm not mistaken, there's a tiny collection from
2 Q. Is that also 1998?
3 A. Yet again, based on my recollection, I think the project started
4 in 1998 or 1999. I mean, then -- I don't have the -- I mean, I got
5 nothing. I'm just using my own memory for that.
6 Q. You said that there were both identified and unidentified corpses
7 from which these remains were taken. Tell me, in the case of the
8 identified bodies, was consent sought officially from family members to
9 take these bones for scientific research or not?
10 A. No. These bones were collected as part of the autopsy procedure.
11 As in any autopsy you collect the specimens you need for your
12 examination; and in these types of cases, the determination of age or
13 whatever determination was part of the investigation of that specific
14 case. If in an autopsy you collect tissue samples, you collect urine and
15 blood and vitreous and organ samples, whatever you need, in order to
16 conclude your case, there was the same logic. So there was not an issue
17 of, I don't know, taking pieces for some strange, I mean, experiment of
18 some kind.
19 Q. No, that's certainly not what I meant; however, I'm asking you
20 this because of the feedback involved from the families of these victims
21 and the representatives of certain international organisations that
22 voiced their views on this. For example, Mrs. Munira Subasic,
23 Mothers from Srebrenica and Zepa; then again a gentleman who spoke on
24 behalf of Shpresimi [phoen] and Mari [phoen] Hoti, the Association of
25 Missing Persons. Their comment was that this was scandalous, that no one
1 had asked them about this, and that they are all appalled. I don't know
2 whether you're aware of these comments or not?
3 A. What I'm aware is that a number of very irresponsible journalists
4 and maybe, maybe -- I would say maybe, although I'm almost sure,
5 colleagues as a matter of fact unnamed so far decided that it was really
6 a good venture to go to the media with these type of very inaccurate
7 comments and then to the families to tell the families that indeed
8 somebody has been taking pieces of the loved ones for some private
9 collection, maybe a collection that I had in my house or under my bed or
10 something like that, because I have heard that too; and the families
11 therefore in -- reacted, as expected they would react, when exposed to
12 this kind of information. What can I tell you? It has been -- I have
13 lived through these types of slandering campaigns for years now. And
14 they have used the families when the families, I mean, stopped saying
15 whatever they have to say, they went back to the families again and when
16 they did not hear anything from the families they invented something else
17 and that. So there's quite a lot of those things on the internet. I
18 stopped reading them, frankly. For my mental health I have stopped
19 reading them a long time ago.
20 MR. DJORDJEVIC: [Interpretation] Your Honour, I have very few
21 questions left, but I believe that the time is right for the technical
22 break. I've already overstepped, but I'll have a maximum of ten minutes
23 left for my questions for Mr. Baraybar, and I will then conclude my
24 cross-examination. I think it would be a good idea to take the break
1 JUDGE PARKER: Well, a break now will enable you to look over
2 your remaining notes and consolidate your thoughts, perhaps,
3 Mr. Djordjevic.
4 So we will adjourn now and resume at quarter past 4.00.
5 --- Recess taken at 3.47 p.m.
6 --- On resuming at 4.17 p.m.
7 JUDGE PARKER: Mr. Djordjevic.
8 MR. DJORDJEVIC: [Interpretation] Thank you, Your Honour.
9 Q. Sir, Mr. Baraybar, my last question is related to this
10 embarrassment connected to the bone collection. Did the collection
11 remain at the University of Tennessee
13 A. As far as I know, the University of Tennessee
14 remains to ICTY. I mean, I no longer work for ICTY, as you know;
15 therefore, questions regarding that should be addressed to the
16 University of Tennessee
17 Q. One more question. Why were the bones taken to the USA in the
18 first place, to the university?
19 A. The University of Tennessee
20 capital T, university that has developed the most comprehensive forensic
21 anthropology programme in the US
22 know, the department there was -- and the forensic anthropology programme
23 was set up by Dr. William Bass, a very well-known forensic
24 anthropologist. As a matter of fact, his -- one of his books is pretty
25 much a textbook used by forensic anthropologists, I mean, all over the
1 world. So that was the main reason.
2 Q. Was it at your suggestion?
3 A. Yes, it was my suggestion, yes.
4 Q. Was there any kind of understanding or a protocol between the
5 ICTY and the University of Tennessee
6 A. Yet again, you should ask ICTY, but I presume there is, yes.
7 Q. You personally, as head of the PMF, no nothing about this, about
8 any sort of agreement or protocol?
9 A. I wouldn't say I know nothing, but as I told you you should
10 actually ask ICTY because I stop working for ICTY in 2002. I understand
11 there was some kind of agreement, but obviously I was not part of that
12 agreement since I was not employed by that institution. I am not the
13 right person, based on recollection, to answer anything related to that
14 because it's just recollection. I do not know. I don't have any
15 documents in front of me. But, I mean, I guess the right body to be
16 asked would be the ICTY.
17 Q. Is there an expert report at the University of Tennessee
18 the OTP or the Tribunal that has ever been used in a courtroom in any
19 case before the Tribunal?
20 A. Yet again, you should ask the University of Tennessee
21 sent a specific report to ICTY; however, there's a suite of papers
22 published in the Journal of Forensic Sciences, peer reviewed papers that
23 at least within the North American, more specifically United States
24 system, would comply with the so-called Daubert standard of peer reviewed
25 publications that can be used in court published last year, 2008, yet
1 again I do not have with me the specific issue, but I can -- I think you
2 can find it on internet without any problems.
3 Q. I'm asking this because I suppose that the
4 University of Tennessee
5 perform expert analysis for the benefit of a trial here or some other
6 case, but I suppose you don't have any information about that.
7 MR. DJURDJIC: [Interpretation] Now can we call up 5453
8 [In English] -- that is the headline. [Interpretation] Page 18.
9 [In English] It is not 5453, it is P, P453. Yes, that's correct.
10 JUDGE PARKER: On the screen at the moment is I think
11 Exhibit P455; is that correct?
12 MR. DJORDJEVIC: [Interpretation] P5453 is the one we need --
13 sorry, P453, page 18.
14 JUDGE PARKER: No, I'm interested in whether we need to receive
15 the document on the screen as an exhibit. You referred to it when you
16 were questioning the witness. It's a document --
17 MR. DJORDJEVIC: [Interpretation] I have not used this document at
18 all, Your Honour. This is a protocol on forensic experts and reports,
19 it's P453, it's a document I have not used before, P453, page 18.
20 JUDGE PARKER: Mr. Djordjevic, I don't think we are understanding
21 each other. On your screen at the moment is a document you asked to be
22 put on your screen which you referred to the witness. Do you want it to
23 be received as an exhibit or not?
24 MR. DJORDJEVIC: [Interpretation] Yes, I do want to tender this
1 JUDGE PARKER: Can I tell you that you're in very good company,
2 Mr. Djordjevic. Mr. Djurdjic has set the example for this. We will
3 receive the document.
4 THE REGISTRAR: That will be D00064, Your Honours.
5 MR. DJORDJEVIC: [Interpretation] Yes, yes.
6 May I kindly ask for the protocol on the exchange of forensic
7 experts and reports to be shown on the screen. It's P453, page 18.
8 That's correct. That's the one.
9 Q. Now a very short question. Are you familiar with this protocol?
10 A. Yes, I am.
11 Q. Did any cooperation actually take place under this protocol? And
12 when I say that, I mean an exchange of your experience, the mutual
13 exchange of experience between pathologists, anthropologists, or not?
14 A. Yes, in general terms, yes. I would say that we were very
15 accommodating to Serbian forensic experts to come to Kosovo to oversee
16 the exhumation and examination of any remains that they suspected to be
17 non-Albanians. On the other hand, however, most of the, if not all, the
18 exhumations and examinations of remains found in Serbia proper were
19 carried out prior to my office being set up. Therefore, I was not even
20 there, so we could not really -- I mean, be reciprocated, so to speak, in
21 that regard.
22 Q. My question basically is this: Did you exchange data with
23 Serbian experts regarding precisely what I call profile and you call
24 standard, if I'm not mistaken, of the age of the exhumed bodies? Was
25 there any cooperation on that issue and on the application of certain
1 standards that were not familiar to you because you said that the
2 Northern American standard was the one you applied beginning with Rwanda
3 and former Yugoslavia
4 A. Well, as I already told you, the final publication of the
5 standards, I mean as peer-review standards, has taken place last year. I
6 left Kosovo the year before. Therefore, by definition, no.
7 Q. So your answer is no. Thank you. I have no further questions.
8 I thank you for the answers you've provided today and over the past three
10 MR. DJORDJEVIC: [Interpretation] Your Honours, I have completed
11 my cross-examination. If any other comments arise, we will file a
12 submission in writing. Thank you.
13 JUDGE PARKER: Thank you. Are you wanting this document received
14 as an exhibit?
15 MR. DJORDJEVIC: Again [Interpretation] Yes.
16 JUDGE PARKER: It will be received.
17 [Trial Chamber and Registrar confer]
18 JUDGE PARKER: It's being pointed out by our court officer that
19 it's already an exhibit, so you've done well.
20 Ms. Kravetz, is there any re-examination?
21 MS. KRAVETZ: No, Your Honour, I have nothing in re-examination.
22 Thank you.
23 [Trial Chamber confers]
24 JUDGE PARKER: Judge Baird has some questions.
25 Questioned by the Court:
1 JUDGE BAIRD: Mr. Baraybar, I shall like to take your mind back
2 to the reference you made to the tangential gun-shot wound to the head,
3 the keyhole, as you called it, displaying exit and entrance wounds
4 simultaneously. Now, can you tell us what was or what would have been
5 the position of the deceased in relation to the person doing the actual
7 A. That is a very tricky question, as a matter of fact, Your Honour,
8 and is a question that is generally posed -- generally by lawyers, if I
9 may say. One thing we have to understand regarding this is that the
10 trajectories that are presented in a corpse, I mean in a skeleton, are in
11 relation to the anatomical position of the individual, so irrespective of
12 whether the person was, for example, lying or standing. Anatomically it
13 would be standing with both arms extended next to the body. So in those
14 absolute terms it would be from let's say back to front, above to below,
15 below to above. However, in a case like this one I cannot tell you
16 whether the person was with a head, for example, bent or kneeling or
18 In very specific cases certain shots generally caused by handguns
19 in this case can provide us more insights as to how the person may have
20 been, I mean, placed in or regarding the person shooting. For example,
21 shots that enter areas that are covered by the neck, in which you
22 actually need for the head to be hyper-flexed, meaning flexed anteriorly,
23 there is no other way by which the bullet could come in that way. But
24 with high-velocity rounds such as in this case that's a high-velocity
25 round, a rifle round, it is extremely difficult to say in what position
1 the person was. I do not know whether I am answering --
2 JUDGE BAIRD: I thank you.
3 A. Thank you.
4 JUDGE BAIRD: Now, you referred to the peri mortem injury. Now,
5 a peri mortem injury is in essence a post mortem injury, is it not.
6 A. It is not, as a matter of fact. Peri mortem is distinguished by
7 post mortem by the fact that it belongs to the interval around the time
8 of death, meaning could be slightly before or slightly after. In other
9 words, let's say I have a person, I shoot this person and the person dies
10 of an injury, but let's assume that I shoot the person a second time and
11 the person is clinically dead. I will not be able to find in that second
12 interval a difference between the first and the second shot. The only
13 way to find this out, and I may say there's an element of current
14 research in various -- in various places, is on the detection of certain
15 elements that are produced by your body while you are alive. For
16 example, some by-products of blood -- of bleeding specifically more than
17 of blood, but of bleeding -- certain proteins that may be produced when
18 you are alive.
19 Therefore, yes, if I shoot a dead body and the body bleeds
20 because this person died 30 seconds ago, this person is not producing
21 that substance. That would be a lay way to put it. But for the time
22 being it has been for the last many many years, peri mortem is something
23 we interpret as around the moment or the episode of the death. So it
24 could be slightly before or, yes, slightly after. But post mortem is
25 something more of an artefact. For example, I threw the body in a grave
1 and then the massive rocks, I mean, covered the body and broke the bones,
2 and things of the kind. That would be post mortem, but peri mortem is
3 around the time of death.
4 JUDGE BAIRD: There is no line of demarcation between the peri
5 mortem and -- there is none, I suppose, there is none.
6 A. No, yet again, the beauty of somebody working with a cadaver is
7 that having soft tissues you can actually measure that. You can measure
8 the person bled because you have the blood, you've got the broken vessel
9 because you've got a hematoma because you have everything. Not having
10 that, as such as in bone, you remain with other things that are less
11 precise, they may be as accurate as, but less precise.
12 JUDGE BAIRD: I see. I thank you very much indeed, Dr. Baraybar.
13 Thank you.
14 A. Thank you.
15 JUDGE PARKER: You'll be pleased to know that that concludes the
16 questioning for you. The Chamber would like to thank you for your
17 attendance for the assistance you've been able to give and the time that
18 you've been asked to devote to this. We are grateful. You may of course
19 now resume to your ordinary activities.
20 THE WITNESS: Thank you, Your Honours. If I may, can I say
21 something? It's just, I had a note -- I have a note here on a
22 clarification for Mr. Djordjevic, as a matter of fact, that I wanted to
23 say as a closing remark of mine if I may steal some of the time of the
25 JUDGE PARKER: It would depend upon Mr. Djordjevic.
1 Would you like to hear, Mr. Djordjevic? I take that as a yes.
2 MR. DJORDJEVIC: Rather no.
3 JUDGE PARKER: No.
4 THE WITNESS: Okay. Fine.
5 JUDGE PARKER: Okay. That's the answer, I'm afraid.
6 THE WITNESS: That's fine.
7 Thank you very much.
8 [Trial Chamber confers]
9 [The witness withdrew]
10 JUDGE PARKER: Now, Mr. Stamp, we understand there's a matter you
11 wish to raise?
12 MR. STAMP: Thank you very much, Your Honours. If I could do so
13 in private session, I'd be grateful.
14 JUDGE PARKER: Private session.
15 [Private session]
11 Pages 2694-2704 redacted. Private session.
2 --- Whereupon the hearing adjourned at 5.46 p.m.
3 to be reconvened on Tuesday, the 24th day of
4 March, 2009, at 9.00 a.m.