1 Friday, 26 March 2010
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.02 a.m.
5 [The witness takes the stand]
6 JUDGE PARKER: Good morning, Doctor.
7 THE WITNESS: [Interpretation] Good morning.
8 JUDGE PARKER: This morning Ms. Kravetz has some questions for
10 Ms. Kravetz.
11 MS. KRAVETZ: Thank you, Your Honour.
12 WITNESS: ZORAN STANKOVIC [Resumed]
13 [Witness answered through interpreter]
14 Cross-examination by Ms. Kravetz:
15 Q. Good morning, Dr. Stankovic.
16 A. Good morning.
17 Q. Sir, I want to take you back to portions of your report and your
18 testimony that you gave yesterday, and I want to start with page 2 of
19 your report which refers to P1167, the report of the Austrian team
20 regarding the Kotlina site.
21 MS. KRAVETZ: And I would ask that that be put up on the screen.
22 Q. And just so you know, sir, we're going to go through your report,
23 but not necessarily in the same order you discussed it yesterday with my
24 learned colleague. So I'll just let you know which specific pages of
25 your report I'm referring to as I move along.
1 So in relation to P1167, the Austrian report, you made a series
2 of comments yesterday, and I would like to direct your attention to
3 paragraph 2 of your -- of page 2 of your report. I believe it's the same
4 in the English. And these are comments in relation to body number 4.
5 Are you there, sir, with me, body number 4?
6 A. Yes.
7 Q. Now, in relation to this the description contained in the
8 Austrian report, the Swiss Austrian report, in relation to body number 4,
9 you made a comment that there was first a claim that there was -- the
10 body showed signs of injury by fire-arm, but then the report stated that
11 it was caused by shrapnel and you found this to be an inconsistent
12 finding. Do you remember saying that, sir? That's your position
13 regarding this, sir; is that a correct understanding?
14 A. Yes.
15 Q. Now I would like to take you to page 5 in the English of the
16 report and it's also page 5 in the B/C/S. And this is a preliminary
17 section of the report where the team that participated in the exhumations
18 and in evidence collection is indicated. And we see here, sir, if we he
19 look at this table that it says evidence recorded by crime scene group
21 autopsies conducted by, and we have Mr. Markwalder, about whom you spoke
22 yesterday, and then Daniel Wyler. Do you see that, sir, that we have
23 these indications of two different teams, one who was at the scene
24 recording the evidence and the other one that conducted the autopsies;
1 A. Yes, that is correct.
2 Q. Now, if we move to page 12 in the English and also page 12 in the
3 B/C/S, and this is the section that referred to body number 4, if we
4 could have that up on the screen -- and, sir, I presume you know from
5 having read the report that the evidence collection at the site took
6 place between the 7th and 9th of September, whereas the autopsies took
7 place in Kacanik cemetery and that was done starting on the 13th of
8 September. You are aware of that, no, from having reviewed the report?
9 A. Yes, certainly.
10 Q. Now, if we look at page 12 we have body number 4, and we see that
11 it's talking about the exhumation of the body, and in the information
12 referring to the exhumation it talks about a hole presumably a bullet
13 wound was visible in the torso on the back and to the right of the spinal
14 column. Now, if we go to the next page, this is page 13 both in the
15 English and the B/C/S, we see the comments made by Dr. Markwalder who
16 conducted the autopsy on the 13th of September, that is some days after
17 this body was exhumed. And in his comments he says:
18 "The body was practically complete as far as the region of the
19 head. Marks of an explosion and fire were present on the corpse, and
20 superficial skin lesions were visible on the back, possibly splinter
22 Now, sir, isn't a reasonable reading of this description, this
23 section of body number 4, that, in fact, the comments right under the
24 name and which refer to the exhumation were comments made by the persons
25 who were at the scene and collected the evidence, and Dr. Markwalder's
1 comments when he performed the autopsy are actually only those on page 13
2 of the report? Isn't that a reasonable reading based on the way these --
3 the exhumations and the autopsies were performed?
4 A. Not in my view. If we were to analyse a process of exhumation,
5 then on the site there must be a forensic medical expert, a forensic
6 pathologist --
7 Q. Sir --
8 A. -- who needs to register --
9 Q. I'm sorry to interrupt you, but we're speaking specifically of
10 the methodology used by this team, and what I'm asking is based on the
11 methodology that is indicated in the report, wouldn't a reasonable
12 reading of this entry referring to body number 4 be that, in fact, both
13 these comments cannot be attributed to Dr. Markwalder because this
14 section that refers to him is only the section on page 13 which refers to
15 the body showing marks of an explosion? That is, in fact, the section
16 with his comments, no, sir? Isn't that a reasonable reading on -- based
17 on what we know of the methodology used by this team that was on site?
18 A. Within a team everyone has his or her responsibilities, which
19 they need to meet, as permitted by their professional background.
20 Therefore, no one is to interpret what is outside his or her competence.
21 Those who were in charge of the exhumations when they realised there had
22 been a wound, they should have said a wound in the region of the back,
23 and they should not have gone into what the weapon may have been. In
24 this specific case one gets the impression that within the same team
25 working on the same task there was no co-ordination. It's rather as if
1 everyone was working something they deemed necessary, which is not a
2 permissible principle when there is team-work involved.
3 Q. I understand that that is your position. All I'm asking is:
4 Isn't it correct from reading the report that the comments made by
5 Dr. Markwalder are only those that appear on page 13? Isn't that what
6 the report says? And I understand your position on this.
7 A. After the examination he stated what is in the report, as you
8 quoted it. On the scene they -- well, he must have checked what had been
9 written by the experts who were present at the site when the exhumation
10 was carried out. In that case, at least in the remarks to his autopsy
11 findings, he should have specified the discrepancy between what was
12 stated on the scene during the exhumation and the conclusion he reached
13 when examining the mortal remains.
14 Q. Yes, and that goes outside -- or beyond the scope of what I was
15 asking. I understand that is your criticism or complaint regarding this
16 specific injury.
17 Now, if we move on in your report, paragraph 3 and 4, you refer
18 to the fact that no traces of projectiles were found in the trees around
19 the upper and lower well and the fact that soot-covered fragments of
20 fabric were found in the vicinity of the well as factors that indicate
21 that the bodies were brought from elsewhere and thrown into the well.
22 Correct, that is your position that these are indications that the bodies
23 were brought from elsewhere?
24 A. Yes. Among other pieces of information which indicate that there
25 were no executions on that site, that these two pieces of information
1 certainly make part of that body of information as a whole.
2 Q. Now, in relation to paragraph 4, yesterday you said - and this is
3 the paragraph referring to the soot-covered fragments fabric - you said:
4 "In the process of the bodies being moved, given that there were
5 traces of flame visible on the bodies, the clothing particles referred to
6 fell off the bodies and some of them ended up close to the well shaft."
7 This is transcript 13415. Sir, you don't really have any
8 information, do you, of how it is that fragments of clothing made it --
9 or were found outside the well, you don't know how that got there, no?
10 A. In any case, having in mind the depth of the well --
11 Q. Sir --
12 A. -- they could not have --
13 Q. I'm just asking -- I'm going to ask you -- I'm sorry I'm
14 interrupting you but since we have a lot of material to get through
15 today, just to focus on my questions. Do you have any specific
16 information to affirm that the clothing of -- fragments of clothing that
17 were found outside the well actually fell off the bodies as they were
18 being carried to the well? Do you have information to affirm that? I
19 mean, any personal knowledge to affirm that?
20 A. I don't have any personal knowledge, but as I said yesterday, if
21 certain body parts were burned in the location where the charred pieces
22 of fabric were found, then in addition to those pieces of fabric one
23 would have expected to find parts of the human body. If such parts or
24 pieces are missing, then it is highly likely that as the bodies were
25 being carried the charred items or pieces of fabric simply fell off and
1 landed on the location where they were found.
2 Q. And when you say that it's highly likely that the bodies -- that
3 as the bodies were being carried, charred items or pieces of fabric fell
4 off, this is actually just a guess from your part, isn't it, sir? I
5 mean, you -- you're not really in a position to affirm that that is what
6 happened and that is how those pieces of fragment made it there, no?
7 A. Based on the description of the place where those traces were
8 found, I arrived at the conclusion that they ended up there when the
9 corpses were carried. For, there was no other way for them to be there.
10 The only other possibility was that someone intentionally collected them
11 elsewhere and then have those strewn around the places where the bodies
12 were found.
13 Q. So there are different possibilities, sir, no? And you are just
14 giving us one -- what could be one possibility. There are many different
15 possibilities of what happened and how these fragments made it there, no,
17 A. As I have said, there are two possibilities: Either that those
18 items of fabric ended up there when the bodies were carried or that
19 someone intentionally spread them around the area. There's no other
20 possibility. Having in mind the depth of the well, it would have been
21 impossible for those pieces to fly out of the well shaft from the depth
22 of 8 to 9 metres, as was registered.
23 Q. Sir, if we look at page 7 of the report --
24 MS. KRAVETZ: If we could have that up on the screen.
25 Q. And this is a description of the crime scene. Could we have --
1 yes, thank you.
2 MS. KRAVETZ: Could we also have it up on the screen in English,
4 Q. Now, we see here, sir, that what the report actually says is that
5 there were a few soot-covered fragments of fabric in the vicinity of the
6 crime scene. Do you see that it says that, sir, that it refers to a few
7 soot-covered fragments of fabric?
8 A. Yes.
9 Q. And if we go to the next page, and this is page 8, and this
10 refers to the collection of evidence and recovery of bodies, and it's
11 also a description of the crime scene, we he see that in relation to both
12 of the wells, the upper and the lower well, the report indicates that the
13 wall -- the walls of the well shaft, that is, inside the well, was
14 blackened with soot. Do you see that, sir, that both for the upper and
15 the lower well that's indicated?
16 A. Yes, I can see that.
17 Q. And we see also that a soil test was carried out in the blackened
18 area of the well and the report -- we see that later on in the report,
19 I'm not going to go to the page, but it's on page 91 and 117 -- 91 of the
20 English and 117 of the B/C/S, it shows -- the report also says that tests
21 were conducted on this sample and, in fact, the tests showed that this
22 soil sample contained signs of TNT. Do you recall reading that, that the
23 tests conducted in the soil sample taken from inside the well showed that
24 it had signs of TNT, of explosives inside? Do you recall reading that?
25 A. Yes.
1 Q. And the report also tells us - and you can access that in many
2 places, but a summary of it is on page 72 of the English and 98 of the
3 B/C/S - it tells us that:
4 "Exhumation from the upper well resulted in a total of seven
5 bodies which were severely damaged from the effects of the explosion of
6 fire, and of the lower well the exhumation resulted in a finding of 15
7 bodies which were also severely damaged from the effects of the
9 Do you recall reading that in the report, sir? And these
10 specific descriptions of the damages are also in the individual entries
11 that referred to each body. I imagine you read through that when you
12 were reviewing this report?
13 A. You probably listened to what I said yesterday. I did not deny
14 the existence of blast injuries.
15 Q. So, sir, we have this expert team finding marks of soot inside
16 the well, samples taken, and signs of explosives are found from the soil
17 inside the well, the bodies that are found inside the well all showed
18 signs of being severely damaged by effects of explosives. And you are
19 telling us that based on what is in your report, these are not bodies
20 that were blown up inside the well, but they were, in fact, brought from
21 elsewhere? Is that what you are saying, sir, despite these findings that
22 are made in the report?
23 A. Yes, that is my conclusion.
24 Q. Very well, sir. One of the points that you make is -- and again,
25 to indicate that these bodies were not killed at the site, and this is at
1 page -- in paragraph 6 of your report - relates to the number of
2 cartridges found at the well. And you make the point that there are only
3 12 spent shells found and that the bodies examined indicate that there
4 were at least 26 gun-shot wounds. And I believe you also indicated
5 yesterday that given that the bodies had signs of explosions there could
6 have been more gun-shot wounds in the parts that were actually not found,
7 the body -- the parts that were blown up by the explosion. Do you recall
8 saying that, that you believe the number of gun-shot wounds was higher
9 than the number of spent shell casings found there? And this was one of
10 your -- the points you made to indicate that the killings did not occur
11 inside. Is that a correct understanding of your evidence?
12 A. Yes, I said that the number of the spent cartridges found does
13 not reflect the number of wounds. There were far fewer of them than
14 there were registered gun-shot wounds on the bodies.
15 Q. And your conclusion to say that the bodies were not killed on
16 site is in this case simply or merely based on the absence of the number
17 of shell casings?
18 A. No. If you followed closely what I said about the location in
19 Kotlina --
20 Q. Sir --
21 A. -- there are 21 items --
22 Q. -- I'm speaking specifically about paragraph 6. What you're
23 saying in paragraph 6 is this is an element -- the absence of shell
24 casings is an element to say the bodies were not killed in the well?
25 That's what you're basing your conclusion on; correct?
1 A. That is only one element of my conclusion. There are other
2 elements indicating that those people were not shot there but elsewhere.
3 Q. You would agree with me, sir, that there's several other
4 alternative explanations for the absence of shell casings at the site,
6 A. We don't have any other explanations in the material I reviewed.
7 Q. But you do know, sir, that a period of approximately six months
8 had passed between the -- when these alleged killings took place and when
9 this examination took place, this happened -- the examinations or the
10 exhumations and forensic examinations took place in September; right? So
11 this -- a long period of time had passed from the alleged killings; you
12 would agree with me on that, no?
13 A. Yes. It was a certain period of time between the time of death
14 and the finding.
15 Q. And we don't really know what happened to those shell casings.
16 For all we know someone could have gone to the site, picked them up -- we
17 really don't know, do we, sir? We don't have information of what could
18 have happened in that period of almost six months to explain the absence
19 of shell casings?
20 A. Well, there were so many spent shells in the whole of Kosovo, and
21 I don't know how is one to interpret all that, if one needs to go up a
22 slope which is at an angle of 50 degrees and whether one needs to go up
23 that slope only to collect spent casings, I'm not really sure.
24 Q. But you would agree with me, sir, that there are different
25 possibilities of what could have happened there, no? We really can't say
1 what happened based on the information we have?
2 A. Well, if someone had intentionally collected the spent
3 cartridges, then there is that possibility, yes.
4 Q. Now, sir, moving on in your report, paragraph 7, you speak about
5 the fact that dismembered body parts were found in different layers of
6 the well, that they were found in the top layer, they were found in the
7 bottom lawyer. And you reached the conclusion that the body parts were
8 brought and they were thrown into the well. Are you suggesting, sir,
9 that someone went around, collected fragments of -- small fragments of
10 body parts and then threw them into these well shafts? Is that what
11 you're suggesting is your interpretation of the finding made by the
12 Swiss/Austrian team?
13 A. Based on the position of the bodies, it would appear so. It
14 appears that someone gathered those mortal remains and threw them down
15 the well.
16 Q. You don't have information of how these explosions happened, do
17 you, sir?
18 A. No, I don't.
19 Q. And do you allow for the possibility that there were multiple
20 explosions at different times? That is a possibility, sir, isn't it, a
21 group of bodies is thrown in, grenades are thrown, then another group of
22 bodies is thrown down the well. That is a possibility, isn't it, sir?
23 A. There is that possibility; however, the number of metal fragments
24 found in the well does not confirm this assumption since, as you yourself
25 know, a small number was found, I think 16. Just one moment, please. I
1 think only 16 metal fragments were found in the well area. If several
2 bombs were thrown, then it would be a realistic thing to expect to find a
3 larger number of metal fragments in the well than the ones that were
4 actually found.
5 Q. So you're basing your conclusion solely on the fact of the
6 metal -- the number of metal fragments found in the well?
7 A. I already told you that my findings indicate the conclusion that
8 I referred to, not -- the conclusion is not based on one segment of it.
9 I analysed each of the possibilities. I collated and analysed the facts
10 through a large number of examples, which I explained, and on the basis
11 of all of that evidence, I drew the conclusion that I talked about
12 yesterday. This again is just one of the conclusions that would indicate
13 that the bodies were not killed in the well but at some other location.
14 Q. Well, let's look at another one of your conclusions, and this is
15 paragraph 8. In paragraph 8 you referred to three bodies; body 5, body
16 12, and body 13. And you indicate that these are bodies that are found
17 either on the stomach or on their front. And you say:
18 "If injuries inflicted by an explosive device had occurred, the
19 wounds would be located on the back, that is, on the back part of the
20 body in which the explosion mine or explosive fell."
21 Now, sir, what the report is telling us is the position in which
22 the bodies were found at the time of the exhumation; correct? That is
23 what the report is telling us?
24 A. Yes.
25 Q. And we do not know based on the information we have which was the
1 position the bodies were in the well shaft at the time the explosions
2 occurred; correct? We don't have that information?
3 A. We don't have that information.
4 Q. Now, sir, you've picked three examples from this report of bodies
5 found on their front, but there are a total of 22 bodies that were found
6 in these two well shafts. And if we go through -- I'm not going to go
7 through each one of them, but we do have examples of, for example, body
8 15 and 22, which are bodies that were torn to shreds by the effects of
9 the explosions or bodies 1, 16, 18, which had extremities or the head
10 missing as a result of the explosions and other bodies that showed signs
11 of explosions or in other parts, not only on the stomach.
12 Now, sir, this criticism that you make in paragraph 8 and your
13 conclusion that these bodies -- this shows that the bodies were brought
14 from elsewhere, in fact, is a valid conclusion with respect to all the
15 bodies that are found in these two wells, is it, sir?
16 A. I picked characteristic cases which point to the distribution of
17 the blast injuries which could not have been caused in the well in the
18 event explosive device was thrown into the well. At the same time, I
19 said that the bodies that I referred to and that you also referred to for
20 the most part - and this is in paragraph 9 of my report - have that
21 extent of destruction which would indicate that it was impossible that it
22 was caused in the well because only 16 fragments of metal were found in
23 the well. So the 16 metal fragments found in the well would not really
24 lead to the conclusion or indicate that the injuries were caused in the
1 Q. Yes, and you have already told us that. But, sir, doesn't the
2 position in which the body was at the time of the explosion determine
3 where the explosion injuries would appear on the body or where there
4 would be? Isn't this the factor that determines which part of the body
5 is affected by the explosions, the actual position they were in at the
6 time when the explosions took place?
7 A. Yes.
8 Q. And for all we know, sir, I mean, we don't know what -- you don't
9 know what type of explosives were thrown in, do you, sir, what type of
10 explosives were used in this case?
11 A. From what you've said it's certain that explosive devices were
12 not thrown in in the way it is stated, hand-grenades or any other kind of
13 explosive devices were not thrown in.
14 Q. Sir, but you don't know what sort of explosives were used here?
15 You don't have that information?
16 A. No, I don't. You said that in the analysis TNT was found in the
17 walls of the well. You said that a little bit earlier. I don't have the
18 whole report, I only have segments of it so I really cannot comment on
19 that, but what I am saying is that with the destruction of this extent we
20 don't have any body parts found on the walls of the well, which would be
21 a logical thing if we have in mind the nature of an explosion and having
22 in mind the fact that the body's made up of soft tissue and bone, which
23 in that case would be imprinted on the or impacted on the walls of the
24 well. An explosive device would throw the bodies to the side, and had a
25 blast occurred in the well it would be realistic then to expect that the
1 earth and walls of the well would also contain bone fragments which would
2 have struck the walls of the well. We don't have such findings, and we
3 cannot really claim or make any assertions about things for which we have
4 no material evidence.
5 Q. Yes, that is, in fact, my point, sir, that we don't have elements
6 to make the conclusions in fact that you're making, that these bodies
7 were brought from elsewhere because we would need to know, for example,
8 what sort of explosives were used, the position of the bodies at the time
9 of the explosions, no? These are information we would need to know to
10 reach the conclusions that you're reaching?
11 A. I'm sorry, but you are the Prosecutor. When do you have a
12 situation in a crime, let's say an explosion as a result of a terrorist
13 act, where you do have information about the positions of the body before
14 the explosion? And when somebody gives you information, for example, the
15 blast occurred in a subway, for example, the bodies of the people were
16 turned with their backs to the blast and that is why the injuries
17 occurred to the back. Again, I am saying the bodies were on their
18 stomachs at the time death occurred or at the time when the bodies were
19 thrown in the well. If somebody had thrown in a mine or an explosive
20 device, it would be normal for the injury to occur on the back. Why
21 would this be on the stomach? I don't know. I have no explanation for
22 that. Perhaps someone else does, and I would like to hear that from
23 them, and in that case we could talk about it and discuss it and see.
24 Q. But, sir, for all me know hand-grenades were thrown in the well
25 all the way down to the well and the explosions happened there and that's
1 where those bodies were that suffered injuries on their stomach, no?
2 That could be a possibility of what happened? I mean, there are many
3 possibilities, sir, no? Isn't that correct, to explain that?
4 A. I said -- no, what you just said is not possible in view of the
5 number of the metal fragments that were found in the well area with a
6 device such as a metal detector. Such a small number of metal fragments,
7 a small number of explosive devices thrown cannot inflict such
8 destructive injuries that I referred to in paragraph 9 of my findings.
9 You're talking about witnesses. We had yesterday a witness here who
10 claimed that --
11 Q. Sir, I think you're going outside the scope of my question, so
12 I'm going to stop you so we can move on.
13 Now, one of the comments you made with regard to this report
14 yesterday is that you were surprised by the short descriptions contained
15 in the section on the autopsies, the description made by Markwalder, no,
16 that they were very cursory comments on the state of the bodies? That is
17 one of your complaints, isn't it, sir?
18 A. Yes.
19 Q. Now, sir, in your report don't you also make, in fact, very
20 cursory observations with regard to each one of these bodies when you're
21 reaching your conclusions? Isn't that something you do in your own
22 report? You don't provide any analysis, do you, sir, on the different
23 points that you make in your report?
24 A. I was told that my report would need to contain very short
25 assertions. I'm not here for the first time. I'm appearing before this
1 Tribunal for the fourth and fifth time. So when my analysis was very
2 broad I was told that in a trial like this details will be explained,
3 just as I did that yesterday. We went through the information with the
4 Defence lawyer. So now I'm explaining my conclusions, my assertions, as
5 a person who has done this kind of expertise before. I had before me the
6 data that we're talking about. My task was for each one of these cases I
7 was supposed to write a broader explanation than what is described as an
8 autopsy here. Then we would have material that would number a couple of
9 thousand of pages. It's something that I can write very quickly if
10 necessary, but I believe that I acted pursuant to the instructions I
11 received, and that is why the report is in this form.
12 Q. Okay. Very well, sir. Now, we see from the comments made, and I
13 want to show you one example, and this is on page 18, it's body number 8.
14 And the autopsy comments are actually on page 19. And this is a body
15 where Dr. Markwalder says:
16 "Explosion and fire marks were found on the body. Most of the
17 body was missing. Only remains of the legs, both feet and various
18 remnants of clothing could be accounted for. No entry wounds were
20 Now, you've said that you were a bit surprised by the short
21 descriptions that Dr. Markwalder made in his report, but here we have a
22 case, sir, where the head is missing. And he can't really do anything
23 about the head and the fact that parts of the body are missing, can he,
24 sir? I mean, this is as much of a description as he can give based on
25 the state of this specific body that was found? Would you agree with me
1 on that, sir?
2 A. I don't see where it says that the head is missing. Where does
3 it say in the report that the head is missing?
4 Q. Well, I'm sorry, it says most of the body's missing. So, in
5 fact, he had very little of the body to examine in this case, not only no
6 head but it says both legs -- all that remained were legs and feet. I
7 mean, there's not much more he can say, can he, if this is the condition
8 of the remains of body number 8 that he's examining, can he, sir?
9 A. Unfortunately he could have done much more. I don't want to
10 dispute Markwalder's work now or in any way question his professional
11 integrity, but if you are working in conditions - I mentioned that
12 yesterday - that are peaceful, when there are no combat action, when you
13 have the technical equipment, when you have the necessary means, you can
14 really say much more in this particular part. The autopsy report must be
15 much more precise. You need to explain if there is no head. You have
16 the sections in the autopsy report which are external findings, internal
17 findings, the head, neck, and the chest, the stomach and the extremities.
18 And you have to describe what is there and what is missing of these body
19 parts. It's not stated here, so I am surprised. I did remark on that.
20 I would like you to see the protocols that I provided to the Tribunal, to
21 the Prosecutor's office, and I worked in the midst of combat at the time
22 when there was still combat. So the only person who actually worked in a
23 combat-affected area was me. So I don't understand how people who are
24 engaged by an institution like this, such as the Hague Tribunal, and in
25 cases where Prosecutors of this level are working. I really have a lot
1 of respect for you and all the questions, and now you're being put in a
2 position that because of somebody else's superficial work you are putting
3 10, 20, 30 questions to me. You're trying to confirm your indictment,
4 whereas the person who was supposed to have --
5 Q. Sir, I'm sorry, I'm going to stop you there. You're going well
6 beyond the scope of my question, sir, and making comments that do not
7 relate at all --
8 A. It's possible that I did go beyond the scope. I apologise if you
9 tell me I have three seconds, I will say what I can in three seconds. I
10 mean, there's no problem about that. But you just tell me the rule.
11 Sometimes when I am very brief then -- all right.
12 Q. Let's just go back to me asking questions, and I'll just ask you
13 to focus on the questions I'm asking. And you've given us your point on
14 the fact that I was raising.
15 Sir, if we can move on in your report, paragraph 12, you say in
16 paragraph 12:
17 "The penetrating and blast injuries found on different body parts
18 indicate that the injuries most probably occurred during an armed clash
19 between two sides to the conflict."
20 And you said yesterday in relation to this, you say:
21 "My experience in finding in one body various injuries which were
22 inflicted with different objects such as gun-shot wounds and injuries
23 from mines and explosives, then that indicates that such injuries could
24 have been inflicted and most likely were inflicted during armed conflict
25 between warring sides."
1 That's at transcript page 13421.
2 Now, sir, you don't really have sufficient information to state
3 that, do you, about the specific site?
4 A. I drew the conclusion on the basis of 5.000 autopsies that I
5 conducted in a combat-affected area. If I do not have the right on the
6 basis of that number of autopsies to have my opinion and to make
7 conclusions, then that is quite a different matter.
8 Q. What I'm asking, sir, is specific to this site, you do not know
9 the specific circumstances in which these killings occurred, so you don't
10 actually have sufficient information with regard to this specific site of
11 how -- whether these persons were killed in an armed clash or in any
12 other manner? You don't know that, sir, do you?
13 A. Yes, but I wrote "most probably," not "certainly," but most
14 probably or most likely which means that there is a slight possibility
15 for a different option. Had I said I was sure -- had I been sure, I
16 would have said I was sure.
17 Q. Okay. So there are other options is what I understand you're
18 saying. Now, sir, if we move to paragraph 15 you referred to the
19 injuries sustained by body number 20. And you say:
20 "The described injury to the left side of the neck an injury
21 caused by a sharp instrument, knife wound, as stated in the autopsy
22 report, body 20, page 32, could also have been caused by pieces of
23 shrapnel taking into account the movement of shrapnel and the degree and
24 depth of damage of soft tissue on the neck."
25 And in relation to this yesterday you said:
1 "Therefore, given the appearance and the description of this
2 wound, I believe the most -- that most likely this injury was also caused
3 by one of the shrapnels because if somebody had wanted to torture this
4 victim they wouldn't have stopped at just one knife stab. This is the
5 experience I have after having performed all those autopsies. So they
6 wouldn't have stopped at just one knife stab that didn't damage any
7 arteries. It is just unlikely."
8 This is at 13424.
9 Now, sir, again, you do not know how this injury was caused, do
11 A. Again I stated my view on it with a certain degree of certainty.
12 What is in the text that you have just read out, that investigation has
13 found that this wound did not cause damage to any vital arteries,
14 indicating that it was a superficial injury of the soft tissue of the
15 skin and possibly subcutaneous tissue. So I don't see any purpose of
16 anyone inflicting such superficial wounds with a knife without wishing to
17 do something worse or to cause worse damage than what is described here.
18 Q. So you're saying you don't see any purpose of anyone inflicting
19 such superficial wounds if they hadn't wanted to stab this person
20 further; is that what you're saying, that if this was a knife wound, the
21 person who caused it would probably have wanted to stab this victim
22 several times? Is that what you're saying?
23 A. I am saying that on the basis of the description and the way the
24 injury looked, you cannot with full certainty state that it was inflicted
25 by a knife. In my view, since a number of shrapnel wounds on the back
1 were also seen, it's most likely that this injury was caused in this way.
2 This is what I said.
3 Q. But you don't know anything, sir, about what was the intention of
4 the person who may have inflicted this knife wound, do you? You don't
5 know that?
6 A. I don't know, and I'm not talking about that.
7 Q. And you didn't examine the body yourself?
8 A. No.
9 Q. And you would agree that those persons examining the body would
10 be best placed to determine whether this was a knife wound or not? You
11 would agree with me based on your experience of the thousands of
12 autopsies that you've conducted?
13 A. Yes, I agree with you.
14 Q. Okay. Let's move on from that, sir. Now, let's look at
15 paragraph 19, where you say:
16 "The autopsies of the bodies did not find injuries indicating
17 that people were beaten up before they were thrown into the well and
18 died, as stated by witnesses."
19 Now, sir, if we go to body number 7, and this starts on page 15,
20 and the conclusions are on page 16, the autopsy description indicates:
21 "Explosions and fire marks were found on the body. No gun-shot
22 wounds were visible on the body. The skull was broken by the force of a
23 dull blow."
24 Now, sir, I put to you that isn't this at least one example of an
25 injury that would correspond to the eye-witness report that these persons
1 were beaten?
2 A. I said at the same time that the bone fractures and the skull
3 fracture could have been caused when the bodily remains were thrown into
4 the well and with the impact of those parts of the body on hard surfaces
5 or other bodies. So if somebody did perform an autopsy, they could have
6 referred to all of the possibilities, and that is my objection because
7 the person who did the autopsy did not explain the mechanism of the
8 inflicting of each of the wounds. It's just a general theory that it
9 could be perhaps the head striking a blunt object, and that is how the
10 injury could have been caused.
11 Q. And when you say that this injury could have been caused by the
12 body falling into the well and the impact with other bodies, you're, in
13 fact, just making an assumption there, aren't you, sir, because again you
14 don't have information to state that that's the case with respect to this
16 A. In the same way that the assertion is made in the autopsy that
17 the skull was crushed by a dull blow. They also don't have any grounds
18 for such an assertion. Had they referred to all of the possibilities
19 including the one that I mention, that it could have been caused by a
20 fall and impact on a blunt object, then I would not have been making
21 objections to this report. There's a kind of exclusivity here where
22 certain things are being ruled out and only one thing is being referred
23 to. The injury's been explained with only one possibility and not with
24 several possibility. I took into account all the mechanisms and possible
25 ways to inflict the injury, and I'm referring to this possibility as
1 well. When one explains an injury, and let's say that a fracture of the
2 skull was noted or an injury to the skull with an impacted fracture, then
3 I could say that it could have been caused by a blunt injury or an
4 object. It could have been a bat, a pole, a metal bar. All of these are
5 possibilities that I would need to mention in my report, then in the
6 course of an investigation or proceedings like this, the trial or the
7 Chamber would on the basis of all the material evidence collected during
8 an investigation decide on the actual cause of the injury. There is only
9 one possibility that is being referred to here, and this is something
10 that I could not accept.
11 Q. But, sir, just like in the case of the stab injury or knife
12 injury we just saw, wouldn't those persons who are examining the remains
13 of this body be the ones best placed to make a determination on what
14 they're observing of how this injury was caused? Wouldn't they be the
15 ones best placed? I mean, you're giving different possibilities, but you
16 didn't examine the bodies. Wouldn't those persons who examined the
17 bodies be in a better position than you to make an assessment as to how
18 this injury was caused?
19 A. Yes, Madam Prosecutor, but it was their duty, knowing that this
20 is evidence that would be looked at in a court proceedings, to describe
21 in detail what the injury looked like, meaning the size of it, whether it
22 was a linear fracture, impacted fracture, if it's a line fracture then
23 it's an injury or a skull fracture inflicted by striking a hard surface.
24 If it's an indented fracture then it could be caused with the head
25 sustaining the injury in a fall. So all these elements are not mentioned
1 here. For any kind of conclusion making that is precise, you would need
2 to refer to all the possibilities. We just have one assertion that does
3 not necessarily arise from --
4 Q. Sir, and you've already given us your position on that, so I'm
5 just going to interrupt you just so we don't go -- we move on and don't
6 go over the same point again.
7 Let me direct your attention to paragraph 20 of your report, of
8 the same section of the report. This is on page 4. In paragraph 20 you
9 refer to the material evidence found on site and you say:
10 "Material evidence of a Chinese-made-calibre bullet from 1964 was
11 found -- material evidence 1 is a Chinese-made -- is 7.62 times
12 3.9-millimetre calibre bullet from 1964."
13 And then you say:
14 "During the armed conflict and long before that the Army of the
15 Federal Republic of Yugoslavia and the police of the Republic of Serbia
16 did not have any ammunition of its origin -- of this origin or -- and
17 date of manufacture."
18 Now, sir, if we turn to page 75 of the report.
19 MS. KRAVETZ: If we could have that up.
20 Q. It's the page that refers to -- and it's page 101 in the B/C/S.
21 It refers to this Chinese -- it's 101 in B/C/S and page 75 in the
22 English. And it's a section that refers to the material evidence found
23 on site. I'm just waiting for that to come up, sir. I think we have the
24 wrong page in both languages. Well, I'll -- 75 in the English, 101 in
25 the B/C/S.
1 While that is being brought up, sir, just so we move on, on page
2 75 it says that -- what was found was, in fact, one rifle cartridge with
3 a full jacket bullet and it's of Chinese manufacture. So what was found
4 there was one bullet of Chinese manufacture; correct? That's what it
5 says there at the top of the page. And I'm sorry that we have the wrong
6 page in the B/C/S up because I've asked for page 105 [sic] and I see we
7 have page 75. That is what was found, sir, no, that you're referring to
8 in your report is one bullet of Chinese manufacture.
9 A. Yes, one bullet.
10 Q. And doesn't the report tell us -- we can see it's on the same
11 page that, in fact, 12 cartridge, rifle cartridge cases were found on
12 site, and if we read page 75 and the following pages, the report
13 indicates that these cartridge cases had, in fact, Cyrillic letters and
14 that they were of Yugoslav munitions factory, they were produced there.
15 You saw that in the report as well, no, that munition of Yugoslav origin
16 was found, and it's described in page 76, and it goes on in the English
17 and also in the B/C/S. You are aware, sir, that that was found also on
19 A. Yes, I did not dispute that.
20 Q. So this comment you make, sir, that there was one bullet of
21 Chinese made found on site doesn't really tell us anything, does it,
22 about what had -- about what happened there?
23 A. It does. It tells us that that bullet did not come from the
24 members of the police and army who were in the area of Kosovo. Official
25 units could not have had such a bullet, and this is what I said.
1 Q. Okay. So that's all we can say, really, there was one bullet.
2 It wasn't a bullet that was used by the army or the police. That's all
3 we can say, really, but it doesn't tell us anything more about what
4 actually happened, how that bullet got there. We don't know any of that,
5 do we, sir?
6 A. Well, one can have different interpretation, but it is up --
7 interpretations, but it's up to the Court to decide.
8 Q. Very well, sir. And if we can move to paragraph 21 of your same
9 report of the same page. You say there:
10 "Judging by the age of the people whose bodies were found in the
11 well, the youngest was born in 1982, the oldest in 1944. They were
12 capable of carrying arms and taking part in war operations."
13 And I believe yesterday you went into -- elaborated on this a bit
14 more and referred to the different ages that you had seen there. And you
15 said the conclusions is that these were able-bodied persons who could
16 discharge military duties.
17 Sir, is it usual for you to make these type of conclusions in
18 forensic reports that you prepare? Is it part of your forensic expertise
19 to say whether the victims were capable of carrying arms and taking part
20 in war operations?
21 A. Yes. We have a number of cases heard by our courts for
22 participation in combat activities. Claims for damages are submitted by
23 certain parties for compensation from the state. They allege that they
24 were not competent to serve a military term because they had been ill.
25 Based on evidence from the medical records, such allegations are
1 discussed. In our expert opinions, we also provide such opinions as we
2 do with people of different degrees of injuries or handicap resulting
3 from an earlier injury or other body limitations. We need to assess what
4 their physical abilities are. For example, if there are injuries to the
5 fingers of the right hand, we need to assess whether that person could
6 have fired from a weapon at the time a crime was committed --
7 Q. Sir, but we're not in a situation of a claim for damages case
8 here, are we, sir? This is not what this is about.
9 A. Which doesn't necessarily mean that it couldn't be so. The
10 families of those killed lost the most, and even tomorrow they can sue
11 for damages, sue those who killed these people or forced them to do
13 Q. So you're saying, sir, that you made this comment in the report
14 out of interest for the families of the victims who some day in the
15 future could sue for damages? That was the purpose behind making such a
16 statement in your report; is that what you're saying?
17 A. No. The only thing I say is that based on one's age - and this
18 is what I addressed - is important. I did not assess their medical
19 condition or anything else. I merely stated my opinion based on their
20 age, whether they could carry arms and take part in combat. This is just
21 a narrow part of the general assertion you're making. I'm not addressing
22 their health status. They may have well been sick, but based on the
23 autopsy findings we don't have such information.
24 Q. Sir, but I asked you for your reason for -- I asked you why this
25 was in the report, and you started speaking about the claim for damages
1 cases. In fact, sir, aren't you just making this comment here to
2 undermine this report and to support the Defence case regarding this
3 incident. Isn't that the only reason why you're making such a statement
4 in your report?
5 A. You asked me whether as part of my expert opinions I also make
6 use of this type of information and conclusions. I was trying to explain
7 to you what my role is as a forensic medical expert. I also included in
8 that explanation the cases I have just explained so as to illustrate that
9 there are situations like that. In this case, as I've said already, I
10 only stated that based on the age of the victims they were able to serve
11 a military term or carry out military duties.
12 Q. Sir, I believe you haven't answered my question. What I'm asking
13 you is your reason for doing that in this case. We're not dealing with a
14 claim for damages case. Isn't the only reason you did that was just
15 simply to undermine this report and support the Defence case regarding
16 this specific incident; isn't that why that is in your report in this
17 case with regard to the Kotlina incident?
18 A. No. Whether those people were able to carry arms, that was the
19 only reason I had in mind when I expressed my opinion whether these
20 people were fit for military service. I don't know what the position of
21 Defence is and what they propose.
22 Q. Very well, sir, we're going to move on in your report, and as I
23 say, we're not going to go in the order the different reports are
24 analysed. I'm going to jump around a bit, and I want to go to page 10
25 which refers to the Izbica site, and this is P1165, if we could have that
1 up on the screen. And I'm just waiting, sir, to -- for that to come up
2 before discussing it with you.
3 Now, sir, you referred to this report on page 10 and you say, and
4 I'm just drawing your attention to paragraph 1, you say that:
5 "It is alleged that the forces of the Republic of Serbia
6 Federal Republic of Yugoslavia rounded up approximately 150 people."
7 And then you go on to say that:
8 "84 military bullet fragments were collected," and your
9 conclusion is:
10 "So it follows that just over half the people suffered one
11 penetrating wound each and that just under half of the people did not
12 suffer any penetrating wounds."
13 So essentially what you're saying is although there's an
14 allegation that over a hundred people were killed here based on the
15 military fragments -- bullet fragments found, your assessment is that
16 less people suffered any type of penetrating wound. Is that a correct
17 understanding of what your conclusion here is on page 1 -- on paragraph
19 A. No. I said that based on the number of persons and based on the
20 number of cartridges collected in the locations where it is alleged that
21 they were killed, one comes to realise that there is a difference between
22 the number of cartridges found and the number of gun-shot wounds. It is
23 based on that that if half of those persons received a single gun-shot
24 injury, then the other half did not have a single gun-shot injury. Going
25 through all the autopsy findings by Gordana Tomasevic, which we don't
1 discuss, as you've said, I realise that there were many more gun-shot
2 wounds on those bodies compared to what I stated. In any case, I
3 referred to this example to illustrate the discrepancy between what is
4 contained and what was the evidence found on the spot.
5 Q. So if I understand you correctly, you say based on the cartridge
6 found on the spot then you can conclude that the number of persons killed
7 is different than the number of persons alleged to have been killed.
8 Would that be a fair summary of what you said -- what your position is?
9 A. Based on the number of cartridges found, it would seem that far
10 fewer of the victims were killed in the locations where it is alleged
11 that 150 people were killed.
12 Q. So you're just basing this conclusion on the absence of
13 cartridges found on site by the team who conducted this --
14 A. I had this as material evidence and this is something I was able
15 to address.
16 Q. From having reviewed this report that we have on the screen, the
17 French mission report to Izbica, I presume that you are aware that they
18 went to site in the summer of 1998 -- 1999, you know that, sir, around
19 June of 1999 is when the French team went to Izbica?
20 A. Yes, that's what one can read in their report.
21 Q. And you are aware, sir, I presume also from reading the report,
22 that by the time the French team had arrived to the site of Izbica the
23 bodies that had been buried there had, in fact, been exhumed by a
24 mechanical digger and they were no longer there; you know that, sir, no?
25 A. Yes, I do.
1 Q. And, in fact, sir, isn't it correct that you of all people are
2 well familiar with the fact that this exhumation happened before the
3 French team occurred because members of forensic teams from your
4 institute, the VMA - and I'm speaking specifically of Mayor Miroslav
5 Strbac and Dr. Gordana Tomasevic - they went to Kosovo at the time and
6 Mayor Strbac he was there when the exhumations occurred, and this team
7 later examined the bodies that were exhumed from Izbica, no? You know
8 that, sir?
9 A. Yes, I do.
10 Q. Now, sir, given that the bodies were removed from the site by a
11 mechanical digger, it is -- you would accept the possibility, sir, that,
12 in fact, the absence of cartridge cases on site could be simply the
13 result of the exhumations that took place there before the French team
14 arrived; correct?
15 A. If I understand you correctly, you say that during exhumation the
16 cartridges went missing, the cartridges containing the projectiles which
17 killed the victims. Is that your question?
18 Q. What I'm saying, sir, is that the bodies were removed from the
19 site, I mean a team from your medical institute went there along with
20 other persons. They removed the bodies from the site. So the fact that
21 cart -- there are not enough cartridges there or there are insufficient
22 number of cartridges doesn't really tell us anything about how many
23 persons were killed there, does it, because this could just -- the
24 absence of cartridges could just simply be the result of the fact that
25 there were exhumations there and they could have been removed or who else
1 knows what happened to them, no? It could just simply be the result of
2 that, sir, no?
3 A. No. If one looks at the footage, one arrives at a conclusion
4 that the dead bodies from the location where they were found were taken
5 to the place of burial by members of the KLA, that is to say Albanian
6 citizens of Kosovo. The forensic medical team headed by Dr. Strbac and
7 Dr. Tomasevic carried out examinations not at the location where the
8 people were killed but at the location where they were buried. And the
9 conclusion or the proposition you put does not arise.
10 Q. Sir, I'm not suggesting that your medical team carried out
11 examinations at the location. What I'm saying is, there was a group of
12 persons, including members of this forensic team, on site before the
13 French team arrived, and they carried out exhumations of all these bodies
14 with a mechanic digger.
15 THE INTERPRETER: Interpreter's note: It was a slip of the
16 tongue, in line 25, page 33, it should have been exhumations.
17 MS. KRAVETZ:
18 Q. Okay. I'm sorry, sir. I have just been told there was an
19 interpretation problem. I'm going to rephrase my question. What I'm
20 suggesting to you, sir, is that given that the soil there was removed,
21 there was a group of persons who went there and removed these bodies from
22 where they had originally been buried, the simple absence of cartridges
23 on site does not tell us anything about the number of persons killed
24 there because anything could have happened to those cartridges; correct?
25 I mean, we don't have that information, sir, do we?
1 A. We don't have that information, but it is clearly stated in the
2 report how many cartridges were found. And if this is what was found on
3 the scene then I used that to base my conclusion on. As for anyone was
4 tasked with collecting cartridges, that is something I don't know. I can
5 only address the issue of material evidence found on the location. From
6 the documentation in the case file, it is not clear or stated that there
7 was any heavy machinery involved. In the footage and photographs I saw,
8 there were no construction machines there, or it doesn't seem that there
9 had been any construction work carried out there. That is why it is
10 difficult for me to accept the proposition that those pieces of machinery
11 contributed to the cartridges going missing.
12 Q. The report does state that they found signs of digging by a
13 mechanic digger, and you yourself have told us that you are aware that
14 these bodies were removed from site; correct?
15 A. The traces of the digger exist at the location where the bodies
16 were buried and not where they were found. In the location where the
17 bodies were buried, there were no cartridges. They could not have been
18 found because there was no shooting there, which may be concluded from
19 certain statements. The exhumation was carried out in another location,
20 not the same location where the bodies were found.
21 Q. Sir, the only point I'm making is we don't have sufficient
22 evidence to know what happened to these cartridges, do we?
23 A. That is your conclusion then.
24 Q. So given that we don't know, we can't really draw any conclusions
25 from the absence of the cartridge cases on site with regard to the number
1 of persons killed, can we, sir?
2 A. One can draw that conclusion because it is in the case file. If
3 there is some other information indicating that the cartridges were
4 removed, then that is something that needs to be verified by looking at
5 all the documents.
6 Q. Now, sir, just to move on from this point. With regard to this
7 report you were shown page 16 of the English and page 22 of the B/C/S,
8 the conclusions. And your comment was that you found these totally
9 unacceptable and specifically you comment on the findings made regarding
10 the clothing and the bullet wounds, and this is at transcript page 13451.
11 I think we have the wrong pages again on the screen. It's page -- yes --
12 do you recall saying that, sir, that you found the conclusions made in
13 this report unacceptable and you specifically commented on the findings
14 made in this report with regard to the bullet-holes in the clothing?
15 A. Yes. I also explained that between the time of burial and the
16 time when the clothes were found there was a certain period of time which
17 elapsed and that it is because of that that there was damage to the
18 clothing. Those clothing items were also mixed with soil, and it is for
19 all those reasons that I do not support the conclusion of the French
20 forensic team.
21 Q. The report contains a detailed description of each item of
22 clothing found, no, and were relevant also the number and diameter of
23 bullet-holes that those who examined the clothing observed; correct?
24 Maybe you can look at one of these while you're answering my question.
25 Correct, sir, that the report contains a detailed description of each
1 item of clothing and the bullet-holes and calibre of the weapon of --
2 based on the observations made of the clothing?
3 A. I will read out the description at page 7. It is IS -- it's not
4 that it's not only incorrect. ISD1, male jacket with a hood with two
5 bullets in the upper third of the back, 60 centimetres from the bottom
6 edge of the jacket corresponding to the entry wounds caused by
7 gun-shots --
8 Q. Sir --
9 A. -- indicating that there was a point-blank range used. There is
10 no description of the condition of the clothes or anything else. That is
11 at page 7.
12 Q. Sir, you would agree with me that the persons who found these
13 items of clothing were able to observe bullet wounds, bullet-holes, in
14 the clothing? That is something that's in the report, that's what they
16 A. I agree with that, but if those persons observed that type of
17 damage then as forensic medical experts they have to describe the
18 diameter, the appearance, and any stains which may have come about
19 because there was blood if there were any gun-shot wounds registered.
20 The description as it stands serves no purpose. This is what I kept
21 repeating before this Chamber.
22 Q. Well --
23 MS. KRAVETZ: I see it's time for the break, Your Honours, but I
24 can continue on this point after the break.
25 JUDGE PARKER: If that's convenient, then we'll have the break
1 now, and we resume in half an hour.
2 --- Recess taken at 10.31 a.m.
3 --- On resuming at 11.01 a.m.
4 JUDGE PARKER: Yes, Ms. Kravetz.
5 MS. KRAVETZ: Thank you, Your Honour.
6 Q. Sir, right before the break we were talking about the French
7 forensic report, which we have up on the screen, and if we could go to
8 page 4 in the English and page 5 in the B/C/S. And I was asking you
9 about their conclusions regarding bullet-holes in the clothing, and you
10 said if those persons observed that type of damage then as forensic
11 medical experts they have to describe the diameter, the appearance, and
12 any stains which they may have come about because -- if there was
13 blood -- because if there was blood if there are any gun-shot wounds
14 registered is what you said.
15 Now, I want to draw your attention to case IS CI E1 which is at
16 the bottom of the page in the B/C/S and also in English. And the
17 comments made regarding this case, it says:
18 "Adult man's wine-coloured lined jacket, size 54, with seven
19 bullet-holes, three right dorsal, medial, and paramedial holes of which
20 two are 8 millimetres in diameter and 30 centimetres from the bottom of
21 the jacket; and another impact 8 millimetres in diameter plus three right
22 lateral dorsal impacts 45 centimetres from the bottom of the jacket; and
23 another right front impact 50 centimetres from the bottom of the jacket."
24 Now, sir, isn't this French forensic team doing what you said
25 that a forensic team should do had they observed bullet-holes on clothing
1 that was recovered from site? They're providing a description of what is
2 observed on the clothing.
3 A. Well, there is something that is not good here. If the edges of
4 the fabric are burned here, are they jagged edge or straight edge. Are
5 there any foreign materials close to it or not. Is it dirty or not. So
6 these are failings that I am permanently pointing out in my report. Yes,
7 they are referred to, but there is no detailed description on matters
8 that a conclusion would need to be made on.
9 Q. So you're saying that the information there about the diameter of
10 each one of the bullet-holes, the number of holes, the location of the
11 holes, the description of the clothing, that is not sufficient
12 information in your view?
13 A. No. Why? You know when a projectile passes through fabric, that
14 projectile that passes through would result in the fibres of the material
15 pointing in the direction of the movement of the projectile. So, for
16 example, this 8-millimetre hole then he could say the edge of the fabric
17 is straight or jagged, the fibres of the fabric are facing inwards or
18 outwards. And in that way the -- this would indicate the direction of
19 the movement of the projectile --
20 Q. Sir --
21 A. -- we don't have that here. So on the basis of what can I
22 then --
23 Q. -- but isn't this simply just a description of what they found?
24 This is what they saw, this is a description of what they found? Isn't
25 that what this information is, sir?
1 A. Some people describe in more detail what they see. It depends on
2 the person giving the description as to what they know is important and
3 how much they convey what is important and put it on paper. I am just
4 saying what else would need to be included about the defects in the
5 fabric that I was describing in this case.
6 Q. Very well, sir. And we have your position on that. Now, I want
7 to direct your attention to paragraph 5. This is again relating to the
8 Izbica site, and it's a paragraph where you comment on the video that you
9 watched. And I understood you yesterday to say that you have actually
10 watched the video footage that is referred to in paragraph 5 on a number
11 of occasions in order to prepare your report and also to prepare yourself
12 for testimony; is that correct, sir?
13 A. Yes.
14 Q. And you told us yesterday that based on your viewing of this
15 video footage you had arrived to the conclusion that bodies were found at
16 at least nine locations, no, and I believe this is at 13452 of
17 yesterday's transcript. Do you recall saying that yesterday, sir?
18 A. Yes, and I also mentioned the locations and the time counter on
19 the footage where you can see that.
20 Q. You are aware, sir, based on the information you were provided,
21 witness statements and other materials regarding this site, that this
22 video was not filmed for forensic purposes. It was filmed by villagers
23 who arrived to the site after these killings had occurred? You are aware
24 of that, sir?
25 A. I know that the footage was recorded by a doctor, Dr. Loshi or
1 something, and I expected that a doctor would know what the crucial
2 details would be to record the injuries on a body.
3 Q. The footage that was provided to this Tribunal by Dr. Loshi, but
4 a different person, his name is Sefedin Thaqi is the one who actually
5 filmed the bodies, and he is not a doctor. Do you know that sir, were
6 you aware of that?
7 A. No, I wasn't aware of that.
8 Q. Now, the first portion that you referred to is at minute 1.15
9 from the start of the film, and you say:
10 "It follows from the footage that one body wrapped up in a
11 blanket was found in a quartermaster supply depot."
12 Now, sir, Dr. Loshi testified here, and he explained that the
13 initial portion of this video footage, in fact, has nothing to do with
14 the Izbica site and that the footage concerning the Izbica site in fact
15 starts much later, close to minute 7 of the footage, and this is at
16 transcript page 740 and also P291, page 1. Were you -- did you have that
17 information? Did you know that, sir, that the initial six minutes or so
18 of the footage actually are showing something that's completely unrelated
19 to the Izbica massacre site?
20 A. No, I didn't know that.
21 Q. And now that you know that, sir, would that change your
22 conclusion or your opinion that this is, in fact, evidence that the
23 bodies -- that what is shown in this footage is evidence that bodies were
24 found at different location, what you say here quartermaster supply
25 depot. Now that you have this information would you change that
2 A. If it is the way you say it is my findings would definitely be
3 different, and I would say that the bodies were brought, instead of from
4 nine locations were brought from eight locations.
5 Q. Now, you -- the next video footage you referred to is the bodies
6 lined up on a green meadow and you say:
7 "They were brought there from elsewhere since the soles of their
8 footwear show layers of mud while the metal surface is clean."
9 I want to play this footage for you just very briefly, it's just
10 like a second.
11 MS. KRAVETZ: If we could just have that displayed, and if it
12 could be displayed for the witness as well.
13 [Video-clip played]
14 MS. KRAVETZ: If we could play that briefly. And stop there.
15 Q. Now, sir, this is the meadow and the persons with mud on their --
16 in their shoes that you were referring to in your report at minute 6.26
17 from the start of the film, correct? Is this what you're speaking about,
18 bodies lined up in a green meadow?
19 A. Yes.
20 Q. Now, sir, isn't it correct that the fact that these bodies had
21 mud on their shoes doesn't tell us -- that tells us nothing, in fact, of
22 whether they were killed in this meadow or not because another
23 explanation to the fact that they had mud on their shoes would be, for
24 example, that they were marched through mud before reaching this site
25 where the bodies were found. Isn't that another possible explanation?
1 A. It's a possible explanation, but then the place where the bodies
2 were found, does that -- are there fired shells, spent shells there?
3 Have any spent shells been found in that place where the bodies are
5 Q. But you're now bringing a completely different element here in
6 the equation talking about spent shells. I mean, your conclusion was
7 simply based on the mud on their shoes, and what I'm putting to you is
8 the fact that what the portion of the video we saw there which shows
9 bodies lying on a meadow with muddy shoes, that doesn't tell us anything
10 of whether the bodies were brought from elsewhere or not, doesn't it,
11 sir, the mud on the shoes?
12 A. The mud on the shoes would tell us that they walked through mud;
13 that is quite clear. Now, if they were walking on the meadow and in view
14 of the size of the meadow, the thick layer of mud on the soles of their
15 shoes would not be so thick. It wouldn't be there because if you walk on
16 the grassy surface of the meadow, the -- most of the mud would have been
17 removed, most of it.
18 Q. But, sir, you have no information of where these persons were
19 made to walk through before they ended up in this meadow. You don't know
20 that, do you, sir?
21 A. I don't have to know that while working on the expertise. I
22 don't have to know many of the details that I am writing a report on. I
23 reach many of the conclusions on the basis of the information that I
24 glean from the data that is made available to me. I don't have any prior
25 information before I embark on my expertise.
1 Q. Yes, I understand that. But you said if they were walking on the
2 meadow and in view of the size of the meadow, the thick layer of mud on
3 the soles of their shoes would not be so thick, but you do not know if
4 that's the case, sir, do you? You don't know if these persons were
5 walking on the meadow before they reached this site and were executed?
6 A. This is exactly what I'm talking about. I'm saying that they
7 were brought there, not that they walked on the meadow. Had they walked
8 on the meadow the layer of mud would not have been so thick. Had they
9 been brought there while they were still alive, I don't know -- I assume
10 that they were brought there after their death.
11 Q. But they could have also been brought there and walked through
12 mud while they were still alive, and that would explain the mud on the
13 soles of the shoes, no? That is another explanation, no?
14 A. I did agree with you, but I said that after being walked through
15 mud and which we cannot see in this footage, there is the meadow and 10
16 or more metres of walking on the grass-covered surface would lead to the
17 mud being removed from the soles of the footwear. And then you would end
18 up with a much thinner layer of mud on the bottoms of the footwear that
19 were in contact with the grassy surface of the meadow.
20 Q. But you're saying that on the basis of your assumption that the
21 meadow looked like this, like we saw it on the footage, the day these
22 persons were killed? You're assuming that this is what the meadow looked
23 like at the time?
24 A. The bodies were found. The bodies looked fresh. On the basis of
25 the footage, you can see that these are fresh bodies. They're not
1 putrefying, decomposing bodies. I didn't look at the details, and I did
2 not look at it in detail in terms of this particular question, but the
3 bodies seem to be fresh and the time of death seems to have occurred a
4 couple of days earlier. That is why the surface of the meadow could not
5 have changed in that period. We can see that it's covered with grass and
6 that would indicate that this condition of the meadow lasted for some
7 period of time which was longer than the time since the death of these
8 people on -- whose bodies are on the meadow.
9 Q. Sir, the evidence we've heard here from persons who were at
10 Izbica on the days preceding the killings of these persons was that it
11 was raining heavily, in fact. For all we know, sir, the meadow and all
12 areas around there could have been quite muddy at the time, no? There
13 could have been mud everywhere including the place where these persons
14 walked through? That is possible, sir, no?
15 A. It's possible, but you cannot see that on this video footage.
16 You cannot make such a conclusion on the basis of what is seen in the
17 video footage.
18 Q. So you would agree with me, sir, we can't make a conclusion
19 either way? We can't make a conclusion that these bodies were brought
20 from elsewhere, we can also not make the conclusion that they walked
21 through -- we don't know, actually, we can't make a conclusion either way
22 based -- just solely based on this footage?
23 A. I am prepared to defend my findings, and I remain by what I say
24 that are my findings.
25 Q. Very well, sir.
1 Now, another comment you make is -- and that's just a couple of
2 lines further down is that:
3 "Traces of blood that ran from the nose and the mouth and the
4 wounds are in a different direction from the position of the body."
5 Are you suggesting here, sir, by saying this, that this is an
6 indication that the bodies were brought from elsewhere, the fact that
7 traces of blood ran from the nose and mouth and the wounds in a different
8 direction from the position of the body?
9 A. No. What I'm saying is that the bodies were moved and that they
10 were moved after death. I don't know if they were brought from a
11 different location or not. I can't say that, but what I am saying is
12 that somebody did move the bodies and that is why the direction of the
13 blood flow is opposite to the direction of the -- or the position of the
14 body in which it was found. That's all I'm saying.
15 Q. And, sir, when you say the bodies were moved, these bodies could
16 have simply been turned over, correct, they could have just been moved
17 and turned around from whatever position they were lying?
18 A. Yes. I think the bodies were turned. That is what I think. I
19 used the term "moved," but actually they could have been turned around
20 also. Somebody moved or turned the bodies.
21 Q. And a possible explanation, sir, of why the bodies were turned
22 over could be that it was simply to identify the victims for the purpose
23 of identifying these persons they were turned over? That is a possible
24 explanation, isn't it, sir?
25 A. I agree with you, a possible explanation would be that somebody
1 wanted to record the injuries and that is why the bodies were turned so
2 that this could be recorded. I mean, there are a couple of
3 possibilities. Yes, I agree with you.
4 Q. Now, another body you referred to is one body with its back on
5 the ground is shown on -- in this same paragraph, one body with its back
6 on the ground is shone on a meadow with burn damage and intact tractors,
7 and this is minute 16.05 from the start of the film. I would like to
8 show you this specific clip. It's a very short clip again, if we could
9 play that.
10 [Video-clip played]
11 MS. KRAVETZ: We could stop it there.
12 Q. So this is the specific portion you're referring to, it's 16.05
13 minutes from the start of the film. Now we see here, we have the body of
14 a woman lying on some sort of a surface with some pillows it seems. Are
15 you suggesting, sir, based on what you indicate here that this is another
16 example of a body that's being moved or has been moved?
17 MS. KRAVETZ: Could we have the image back up? I see it's gone.
18 THE WITNESS: [Interpretation] On the basis of this footage, I
19 really couldn't say whether the body was moved or turned. I cannot see.
20 I don't have enough elements in order to be able to say anything. The
21 fact that the body has been placed on the pillow, on the blanket, is what
22 we see, but I really cannot say any more than that.
23 MS. KRAVETZ:
24 Q. So all you're making is an observation that there is a body here
25 in this area which is surrounded by damaged tractors? That is all you're
2 A. Yes.
3 Q. Now, you also refer further down to the fact that some -- one of
4 the bodies was bearing the name Bajra and that you saw them -- you saw
5 the bodies were brought on the blanket and you see them bringing -- the
6 bodies were brought by tractors for burial. You are aware, sir, that
7 this footage, in fact, not only shows the locations where the bodies were
8 found, but it also shows the burial process, that that is all included in
9 this video footage? You are aware of that from having viewed it so many
11 A. Yes, I do know there are other parts that I'm not going to
12 comment about. For example, some children's cradles were also filmed. A
13 lot of it was filmed, but I only focused on the details about where the
14 dead bodies were found and that constitutes the core of my report in item
15 5. But, no problem, we can comment on any part of the footage. Also,
16 the process of burial. I am not disputing that these are dead bodies.
17 What I -- I'm not disputing that the bodies were buried. But what does
18 not arise from the footage is that the bodies were found only in three
19 locations. I believe they were found in more locations, and that is the
20 nature of the opinion that I am providing.
21 Q. And you're basing this opinion that the bodies were found in many
22 locations also on the footage of showing that the bodies were being
23 buried, that graves were being dug and bodies are being put there?
24 You're saying that this is an additional location where bodies were
25 found? This is what you're saying?
1 A. No, I didn't say that about the burials. Not -- I didn't say
2 that they were found where they were buried. I am just saying that on
3 the basis of the film where the dead bodies were seen, registered.
4 Q. I think you misunderstood my question, sir. What I'm asking
5 is -- I'm not saying that the bodies were filmed where they were buried.
6 What I'm asking is: Have you included in these many locations that you
7 say bodies were found, the site of the burial? Is this one of the many
8 locations that you say the bodies are found, the site of the burial?
9 A. No. I never -- that can be seen on the basis of my report. All
10 I am saying is I am emphasizing at the end of the footage from the
11 beginning to the 30th minute I'm noting that the bodies are being brought
12 in tractors for burial, people are digging graves, and some bodies are
13 being buried. Only that. But not that this is some sort of new location
14 where people were killed.
15 Q. Okay, sir. If we move on to paragraph 5 of this same section,
16 you say that:
17 "On the basis of this footage we cannot see all the injuries to
18 the bodies. We cannot describe the injuries in detail and classify
19 them." And you go on to say considering the clothes -- that the clothes
20 and skin were dirty with earth, leaves, and so on.
21 Now, I want to show you some still shots from this video that you
22 have viewed, and this is P290. And if we could have page 45 of that.
23 And this, sir, is a collection of still shots taken from the same video
24 and just for the ease of going through them I'm putting these to you
25 instead of the actual video footage.
1 MS. KRAVETZ: I don't know if that's being displayed, P290. I
2 don't have it up.
3 THE WITNESS: [Interpretation] I don't see it on my screen either.
4 MS. KRAVETZ: Now, if we could have page 45 first. 45?
5 Q. Now, sir, this is one of the sites where bodies were found, and
6 if we could go to the next page just so we can have a close-up shot of
7 one of the bodies, page 46. Okay, the next page, please.
8 Now, sir, I'm no forensic expert like yourself, but it looks to
9 me just from viewing the injuries shown in this -- on this photograph and
10 still shot that this is a person who had his head blown off. Would you
11 agree with me on that, sir, that this looks like an injury to the head,
12 serious injury to the head?
13 A. Yes, this is a large head wound.
14 Q. And this type of head wound, sir, would have been something that
15 would have had to or would have been caused at quite close range, no, for
16 a person to sustain this sort of damage to the head, such serious damage?
17 A. For destruction of this type on a skull by fire-arm projectiles,
18 a bullet could have been fired from up close. I cannot see it very well,
19 but it was probably in the front of the head. However, you can have such
20 injuries in cases of semi-automatic rifles and bullets fired at from a
21 distance which because of the lateral impact and the amount of force hits
22 the side or the front of the skull, but the canal is transferred
23 laterally. And because of that specific direction of energy, we have
24 this type of skull injury. This could also be quite common with injuries
25 fired from fire-arms from a distance. This could also have been from up
1 close, as I've already said as well. However, the effect I just
2 described when using semi-automatic and automatic rifles is relatively
3 often. I have other cases back in my office in Belgrade which I could
4 use to further illustrate that.
5 Q. Thank you for that. Let's look at the next page. Now, sir,
6 again here we have a person - and again this is my layman's
7 interpretation - that seems to have suffered a gun-shot wound also in
8 the -- to the head, to the left side, left cheek.
9 A. Not in the area of the left cheek. It was below the lower part
10 of the lower jaw. The upper part of the cheek is further up. You can
11 see the eye and the nose. What we can see here the best is the lower jaw
12 which was probably broken as -- since the face is disfigured and the lips
13 are at a strange angle, which all indicates that there was a fracture of
14 the lower jaw. We also have the mastoid lobe of the cheek bone, and this
15 is where I believe the injury occurred initially.
16 Q. Okay. And if we could now see page 50 --
17 A. In any case, this is a gun-shot wound.
18 Q. And now, sir, giving my layman's interpretation, this person
19 seems to be missing a portion of the flesh of the head, no, in the top
20 part, seems to have some sort of injury directly in the top above the
21 forehead? And I understand this is not probably the best shot because we
22 are seeing this from the side, but ...
23 A. In this specific case the left side of the skull roof is
24 destroyed. We also have some blood in the nostrils, which indicates that
25 the injury occurred ante mortem.
1 Q. Now, sir, and this is the last shot I want to show you, page 51.
2 Now, sir, this person appears at least to me to have been shot right
3 through the eyes. There's a large injury in the frontal region right
4 between the eyes.
5 A. This looks like an exit wound of a fire-arm projectile. As you
6 can see, the edges are uneven and it can be described so. I can tell you
7 what my description would be. In the central part of the body at the
8 foot of the nose and in the place of the eyes there is a gaping wound,
9 wide with uneven edges, with bruising. The edges protrude outwards. The
10 canal seems to go through the skull cavity. In all likelihood, there is
11 an entry wound to the skull in whichever part, at the back or maybe down
12 towards the neck. That would be my description of this injury.
13 Q. Would you agree with me, sir, based on your comments on these
14 photographs that this video does provide a clear indication of the
15 injuries sustained by some of the victims that are shown on the video?
16 A. In the specific case out of the four photographs you have shown,
17 one can state regarding two of them that they display gun-shot wounds.
18 The previous photograph, however, doesn't tell us anything about the
19 instrument or weapon used to cause the injury in the left-hand side of
20 the skull roof. The first -- sorry, and that injury could have been
21 caused by a projectile or by an explosion or by blunt instrument.
22 However, we cannot say that with any degree of certainty based on the
23 photograph alone. The first injury we saw can be qualified as a gun-shot
24 injury or an injury caused by a blast. This is what I can
25 preliminarily -- say in preliminary terms based on the photographs I just
1 saw. There is some information, but it is incomplete.
2 Q. Sir -- okay. And with regard to the first injury you saw, you
3 said it could be caused by a blast or a gun-shot injury, but we he did
4 see for that in that case that the body was there -- I mean, I imagine
5 you have reviewed the video and seen that body before. You're saying
6 this would have been a blast that affected only the head?
7 A. Given that the body is clothed and that the footage moves rather
8 quickly with the camera panning over the bodies, I cannot say that with
9 any certainty. That is why I'm putting this only in diagnostic terms
10 when I say that there were several possibilities, although I do not
11 dispute that there was the possibility of a gun-shot injury as I've
12 already explained.
13 Q. Yes, and I'm not -- I wasn't asking for you to indicate this with
14 full certainty because I understand that would require an examination of
15 the bodies. I want to move away from this site, sir, and go to another
16 section of your report, and this is your comments regarding the report of
17 Dr. Alonso which is on the last page of your report, page 16, and if we
18 could have that up on the screen, P799. And while that is being brought
19 up, sir, do you have any expertise in the field of genetics and DNA
20 analysis, sir? Is that something within your area of work?
21 A. I'm not a genetics expert. I know about DNA identification what
22 I need to know for the taking of samples and handling of samples. I need
23 to take in the process of determining the identity of a victim. As for
24 the terminology used in the profession of molecular biology or
25 biogenetics, I can tell you in full responsibility that very, very few
1 people can understand if they don't come from those circles. It is such
2 a specific scientific discipline with so many specific and new terms
3 which a medical professional such as myself cannot fully comprehend. It
4 is as I say. This is what I can tell you on this topic.
5 Q. So you -- so for a person would be able to interpret DNA analysis
6 and facts needs specialised training in that field; correct?
7 A. In this case, yes, unless there is some help from a biogeneticist
8 or if that person undergoes a certain training or has a prior knowledge
9 about that.
10 Q. Now, in order to prepare your comments on this report, I take it
11 you read through this entire report by Dr. Alonso?
12 A. Yes. I read all the correspondence and everything else contained
13 in the document.
14 Q. So from your review of all this documentation, I presume you
15 understand that this report refers to human remains which were found in a
16 mass grave where the remains were co-mingled, these are remains that were
17 found in a mass grave? You understand that, no, sir, based on your
18 review of the documents?
19 A. Yes.
20 Q. And I presume you are also aware that this is a specific report
21 refers to DNA testing that was done on those remains which were found in
22 a mass grave for the purposes of identification?
23 A. Yes.
24 Q. Now, sir, if we could turn to page 17 of the report in English
25 and I believe it's page 20 in the B/C/S. You were shown one of the
1 conclusions yesterday which says, and it's in paragraph 3 of your report,
2 in fact, it's paragraph 1 of the conclusions. I'm not sure we have the
3 right page in the B/C/S. 20, there. Thank you. So you -- and you cite
4 this in your report, the first sentence which says:
5 "41 different genetic profiles were identified from 55 bone
6 remains, studied, which we were able to type."
7 And then it says:
8 "In view of the high discriminatory capacity of the markers used,
9 the analysed samples were deemed to represent bone remains of only 41
10 individuals. Ten individuals had duplicate samples and two individuals
11 had triplicate samples."
12 Now, this was put to you yesterday and in relation to this you
14 "There is a drastic difference between the number of the alleged
15 bodies for which autopsies were carried out for which the experts
16 determined that were the mortal remains of 55 individuals. However, DNA
17 analysis indicated that this number was not as great, or rather, that
18 there were only 41 persons. This is rather embarrassing for those who
19 worked on the bodies..."
20 Do you recall saying that, sir?
21 A. Yes.
22 Q. Now, sir, isn't all that this report is saying or this conclusion
23 that we're reading, isn't all this is saying is that they examined 55
24 bone remains through DNA analysis and that the testing showed that these
25 remains belonged to 41 different genetic -- different individuals? Isn't
1 that all that this conclusion is saying?
2 A. When autopsies are done or when bodies are examined which
3 originate from a mass grave, then out of the mortal remains found, the
4 mortal remains of a single body are identified intact. Everything which,
5 as a matter of fact, is considered as part of a single body. After that,
6 out of the heap of or pile of bones, usually the long bone is extracted
7 or a tooth to be used for DNA analysis. In this specific case I do not
8 object to Mr. Alonso's number of persons identified, I have no doubts as
9 to that. But it is peculiar that the mortal remains indicated that there
10 were actually 55 persons included, whereas DNA sampling confirmed only
11 41. That was the extent of my remark.
12 Q. But, sir, this conclusion is not saying that they conducted
13 autopsies on 55 persons. All it is saying is that there were 55 bone
14 remains which were examined, and we're talking about a situation of a
15 mass grave where the remains were co-mingled. So there is no reference
16 here, sir, to the fact that 55 persons -- different persons were
18 A. As I said, there is only one part of a bone taken from a single
19 body for DNA analysis, only one part, not two parts of the same bone. I
20 do not dispute that there were 55 sets of mortal remains, but then it was
21 proven that some of the bones belonged to the same person. This is what
22 is the result of the report. I do not dispute that.
23 Q. And in the situation of a mass grave where the remains were
24 co-mingled, this wouldn't be something unusual, sir, that you have
25 remains which you initially think belonged to different -- a larger
1 number of persons and later through DNA testing you discover that -- the
2 fact that they were samples from different people or several samples from
3 different people in this group of remains? That wouldn't be something
4 unusual, no, for a situation of a mass grave with co-mingled remains?
5 A. It is a very difficult situation. I know that from my
6 experience, I agree that there may be errors, but this margin of error is
7 quite big.
8 Q. And, sir, what the report is indicating is that ten individuals
9 had duplicate samples and two individuals had triplicate samples. So
10 what it's indicating is the samples received by Dr. Alonso simply -- that
11 there were duplicate and triplicates in the samples received. That's all
12 that is being indicated, no?
13 A. No. Dr. Alonso did not take those samples --
14 Q. And I'm not --
15 A. -- the samples were taken by those experts who were in charge of
16 Batajnica exhumations.
17 Q. Okay. And I'm not suggesting that Dr. Alonso took them. I'm
18 just putting to you what is in the report, and you agree that that is
19 what the report says, that what he received were, in fact -- with respect
20 to ten individuals duplicate samples and with regard to two individuals
21 triplicate samples. That's all that it -- this report is stating;
23 A. I do not dispute that.
24 Q. Okay, sir. I want to move to a different report now, and this is
25 the report of Dr. Baraybar, which is P454, if we could have that up on
1 the screen, and this is on page 14 of your report.
2 Now, sir, you -- I understand based on your professional
3 background that you stated yesterday that you are a forensic pathologist,
4 not a forensic anthropologist?
5 A. Yes.
6 Q. Do you have experience working with skeletal remains which have
7 little or no soft tissue on them? Is this something that you have had
8 experience doing, examining these type of remains?
9 A. A lot of experience, too much experience, at least 1500 corpses,
10 if not more.
11 Q. Okay.
12 A. I just wanted to tell you this: Anthropologists started working
13 only once the war in Bosnia-Herzegovina was over in 1998 or 1999 or
14 perhaps a year or two before that, but during the war I was the only
15 expert in the area of the former Yugoslavia
16 areas of combat. At the moment a mass grave was found I would be
17 notified and I went there while combat was underway. In such
18 circumstances, I did not have all the technology which was purchased only
19 later. These were the circumstances I had to work in. Later on, when I
20 worked in Sarajevo
21 co-operated and so on and so forth. But as I say, I was forced to do
22 most of the work alone, even including such locations which would
23 otherwise have been covered by an anthropologist.
24 Q. Okay. Thank you for that detailed answer. Sir, in relation to
25 this report yesterday you were read out a portion that says:
1 "It is assumed that the gun-shot would have happened at the
2 moment of the death. This is why it is considered to be the cause of
4 And you said in relation to this:
5 "As I said earlier, no single proof can be based on assumption
6 but on material traces. This way of understanding and interpreting
7 things like gun-shot wounds and cause of death is something that is
9 Do you recall saying that, sir?
10 A. I said that based on the fact that there was a gun-shot injury
11 registered on the bones, one cannot say by performing an autopsy that
12 this was the cause of death.
13 Q. Sir, I want to put to you the testimony of another witness in
14 this Court and just ask you to comment. So it's a rather lengthy passage
15 so I'll just read it out. This is transcript page 3015, and it starts
16 there and continues to 3016. This is the testimony of Professor Branimir
17 Aleksandric. Do you know who Professor Branimir Aleksandric is, sir?
18 Are you familiar with him?
19 A. Yes, he's the director of the medical forensic institute in
21 Q. So at page 3015 - I don't know if this could be displayed just so
22 we could all follow - he's being asked:
23 "Based on only the reports on forensic analysis is it possible to
24 determine the mechanism how injuries were inflicted in the cause of death
25 for bodies that are in an advanced stage of decomposition?"
1 And he responds:
2 "When you have injuries to the bone in some cases they're quite
3 peculiar when they are caused by a projectile or if you find the
4 projectile itself and you're able to determine how the injury was
5 inflicted, the mechanism itself, to determine in what direction the
6 projectile was moving, whether the victim was facing the assailant,
7 et cetera."
8 Then he goes on to say:
9 "Sometimes you can do the most probable mechanism."
10 And he continues on the next page and this is 3016:
11 "Solely on a pre-autopsy examination of decomposed bodies you
12 cannot determine the cause of death, that's what I've already said. But
13 later on, when the expert learns not only the result of the autopsy
14 report but when he or she gathers all other relevant data, the expert can
15 conclude with high degree of probability what the cause of death was or,
16 alternative, no such conclusion can be made. Let me give you an example.
17 If it was determined that the round passed through the head you can say
18 that the most probable cause of death was a through-and-through wound to
19 the head caused by a projectile of some sort of, but if you don't have
20 any elements that might lead to such a conclusion, then the cause of
21 death remains unknown."
22 Now, do you agree he, sir, with this statement of Mr. Aleksandric
23 that in some cases when examining injuries to the bone one can identify
24 peculiar injuries caused by a projectile and reconstruct the mechanism of
25 injury inflicted to establish the most probable mechanism of death?
1 Would you agree with that proposition, sir?
2 A. I agree with what Professor Aleksandric said, however, these are
3 two different processes. One is an autopsy finding, and the other is
4 providing an expert opinion of the autopsy finding as part of a criminal
5 case. When you provide an expert opinion of gun-shot injuries, if only
6 the bones were found when the investigating judge gathers all that
7 information in our country he provides it to the prosecutor. And then
8 the prosecutor orders that an expert opinion be provided. And based on
9 witness statements and based on all other investigative measures
10 undertaken, you provide a conclusion stating that death was caused by a
11 projectile. However, the one wouldn't do that based only on the results
12 of an autopsy before having all that information.
13 Q. I was just asking you, sir, my question was much more precise of
14 whether you agree with his comments, and I understand you said you agree
15 with the comment, although you provided further elaboration. Now, do you
16 agree with the part of his evidence where he says that:
17 If it was determined that a gun-shot round passed through the
18 head, one can say that the most probable - and he talks about a
19 through-and-through one - one can say that the most probable cause of
20 death was a through-and-through one to the head caused by a projectile of
21 some sort.
22 Do you agree with that statement that he makes?
23 A. No, for the simple reason that I was there at the front when we
24 were processing the victims of war. A man came who was a fighter and
25 whose three brothers had been killed. He fired a burst of fire for no
1 reason at the bodies that we were examining because he was upset that his
2 three brothers were killed. I verified the gun-shot wounds in my
3 report --
4 Q. Sir, I think --
5 A. -- and I stated this, and the investigative judge --
6 Q. -- I think you're going on to a different issue of whether the
7 injury was caused ante or per mortem or post mortem, and I'm not dealing
8 with that specifically. I'm just asking based on the fact that -- of the
9 examination of skeletal remains, and we're talking about the skull, if a
10 forensic expert is able to establish a through-and-through wound through
11 the head, would you agree that the expert can say as a most
12 probable - and we're talking about most probable - cause of death that
13 this person suffered a gun-shot wound through the head?
14 A. Yes, if there are the following changes on the skulls -- on the
15 bones of the -- on the skull bones. So if at the end -- entry and exit
16 wounds there are indications of bleeding, if there is presence of blood,
17 this is something that disappears with time, the brain and all the soft
18 tissue. But the staining of the blood does not disappear. We're talking
19 about ante mortem and post mortem wounds. If there are other places --
20 Q. Sir --
21 A. -- on the bone that are more visible, this discolouration due to
22 blood, then you would come to the conclusion that the injury was
23 sustained ante mortem and this caused bleeding.
24 Q. Yes, and I'm -- and again I'm indicating that I'm not dealing
25 with the issue of whether the gun-shot wound was ante mortem or post
1 mortem. I was just asking you whether you agree with this being an
2 indication to establish the most probable cause of death.
3 MS. KRAVETZ: Now I want to look at this report, and if we could
4 have page 8 in the English and it's page 9 on the B/C/S. I don't believe
5 we have the right pages on the screen.
6 Q. Now, sir, the sentence that was put to you in the English at
7 least it's at the top of the page where it starts with:
8 "It is assumed that the gun-shot wound occurred at the time of
9 death and therefore contributed to it."
10 MS. KRAVETZ: If in the English we could go to the previous page
11 just to see the section where this is dealt with.
12 Q. At the bottom of this page we see that this is in the section
13 called: "Determining the most probable cause of death." And this
14 sentence that precedes the one that we were just looking at speaks about
15 gun-shot injuries, and it says:
16 "While a number of events related to the disposal of the remains
17 would mimic blunt force trauma," which is abbreviated as BFT, "caused by
18 many familiar weapons ... the characteristics of other injuries such as
19 gun-shot wounds cannot be attributed to exhumation or burial process."
20 That's on the top. And if we turn back in the English to page 8.
21 Now, what -- while this is being done in the English, sir, what
22 Dr. Baraybar is saying here is that gun-shot wounds -- gun-shot wound
23 injuries on bones have certain characteristics that cannot be confused
24 with, for example, trauma caused by blunt force. Would you agree with
25 that statement, sir?
1 A. Yes.
2 MS. KRAVETZ: Now, if we go to the -- are we on page 9 in the
3 English -- 8, I'm sorry, in the English and it's the same page in the
5 Q. Now, the first complete paragraph on that page starts with:
6 "The location of gun-shot wounds in the remains examined by OMPF
7 was paramount in formulating the cause of death." Then he goes on to
9 "Shot through the head and chest were classified as lethal given
10 the short survival time of individuals suffering a gun-shot wound through
11 the brain, heart, lungs, and major blood vessels surrounding the chest."
12 Now, sir, I put to you what Dr. Baraybar is doing here is he is
13 explaining how OMPF was able to establish the most probable cause of
14 death when examining human remains returning from Serbia to Kosovo, which
15 is what this report deals with. He's not claiming that OMPF was able to
16 establish with absolute certainty what the cause of death was. He's just
17 explaining how they went about establishing the most probable cause of
18 death. Would you agree with me that that's what he's referring to here?
19 A. One can see that Baraybar is not medically trained, and this is
20 why the explanations are so brief. If you write what you read, bullets
21 fired through the head and chest as lethal, in case of ante mortem
22 wounding, which is proved on the basis of putrefaction of the body --
23 such a factor this analysis or that analysis the state of organs in the
24 body --
25 Q. I think you're going off track here with my question. My
1 question was a very specific one. Based on the portions I read out to
2 you, isn't what Dr. Baraybar is explaining here is how OMPF went about to
3 establish the most probable cause of death? Isn't that what he's talking
4 about in his report?
5 A. I'm sorry. Just allow me. I don't like brief, concise answers
6 because they can be misconstrued and misinterpreted. In this case you
7 can accept this position, but not in the way it is written in this
8 particular place.
9 Q. Okay. So I understand that you don't like the way he's
10 formulated it, but, in fact, this is what he's trying to explain, not in
11 the way you would have explained it but this is what he's trying to
12 explain that OMPF -- how OMPF went about trying to establish the most
13 probable cause of death?
14 A. Yes. You can draw that conclusion the way you put it from that,
16 Q. And he's not saying in any way that OMPF was trying to establish
17 with absolute certainty what cause -- what was the cause of death in the
18 cases that they examined? He's not saying that, is he, sir?
19 A. No.
20 Q. Now, sir, yesterday you were shown some photographs of a case
21 that is discussed in this report. If we could go to page 12, and it's
22 only in the English because the photographs are not in the Serbian
23 version. And while that is being brought up, sir, you would agree with
24 he me that the experts directly examining a set of human remains are the
25 ones best placed to make a finding on the most probable cause of death?
1 A. That's how it should be.
2 MS. KRAVETZ: It's the previous page in the English. I'm sorry,
3 page 12. If we could zoom in on the photographs that are at the bottom
4 of the page.
5 Q. Do you remember looking at these photographs yesterday, sir?
6 A. Yes.
7 Q. Now, at the bottom we see a fractured skull, and the report
8 indicates that there was fire damage on top of the skull, correct? You
9 saw that when you were reviewing this?
10 A. Yes.
11 Q. And now if we could go to the next page, and if we could again
12 zoom in on the photographs. Now, this is the same skull from a different
13 angle, and the report is pointing to a keyhole wound, correct? You saw
14 that this is what the report indicates, this wound -- this fracture there
15 with an arrow is a keyhole type of injury?
16 A. Yes.
17 Q. So we're looking at a skull that has on the one side fire damage
18 on the top and this keyhole injury on the bottom. And you said yesterday
19 when you were shown this, you said:
20 "In my opinion this is not a keyhole injury, considering that the
21 head was burnt, that the area where the mortal remains were found
22 included traces of projectiles that were never shot. It's possible that
23 there was an explosion and that some of the hard materials or traces of
24 projectiles did cause this sort of injury, but in any case, I do not
25 think this is the keyhole wound or gun-shot wound, considering everything
1 that I have just stated."
2 This is 13472 of yesterday. Do you recall giving that opinion
3 with regard to this photograph there?
4 A. Yes, I said that, and I stand by that.
5 Q. Now, keyhole injuries are a peculiar type of injury that is
6 created by impact of a gun-shot to the skull, isn't it, sir? This is a
7 peculiar -- specific type of injury or fracture?
8 A. Yes.
9 Q. And when experts are able to observe this specific type of
10 injury, this is a factor that could contribute to a conclusion that this
11 person was shot in the head, the fact that this type of specific keyhole
12 defect is observed on the skull?
13 A. Yes.
14 Q. Now, sir, in the answer that you gave yesterday to
15 Mr. Djordjevic, you said that -- that there was a possibility that this
16 was, in fact, an explosion and you said that:
17 "The mortal remains were found including traces of projectile
18 that were never shot."
19 It's not clear to me, sir, where it is or from what you're
20 drawing this conclusion that these remains were found with projectiles
21 that were never shot -- with traces of projectiles that were never shot.
22 What was your basis for making that comment?
23 A. Let us first comment on what I already said. If this injury was
24 caused ante mortem and in view of the fact that with keyhole injuries the
25 projectile enters the skull and exits immediately after a very short
1 distance similar to this, then around the bone damage you would have ante
2 mortem bleeding if the person was alive when they sustained this injury.
3 Then you would have the discolouration of the surface of the bone with
4 the blood. It would leave a brown stain, and that colour of the bone
5 would be very different from the other undamaged parts of the bone.
6 Then keyhole injuries are caused in those parts of the skull or
7 those parts of the bone that have a semi-circular shape, which in this
8 specific case is not that. This is the actual base of the occipital
9 bone. If this was a shot-gun wound, not a keyhole, it would be a
10 different kind of injury. Can we go back to the previous photographs?
11 Can we look at the three photographs, if you permit me, so that I can
12 give you a better explanation.
13 Q. Before we do that, sir, yesterday I remember, and correct me if
14 my recollection is wrong, that you thought that this had been -- had this
15 been a keyhole that you thought this would have been the exit of the
16 gun-shot wound?
17 A. No, with a keyhole injury the entry and the exit occur at the
18 same place, and that's why it is shaped like a keyhole. The projectile
19 would enter, causing an opening, and then it would exit causing an
20 opening. But in between you would have a narrower part, and that's why
21 it resembles a keyhole. This particular bone constitutes the entry point
22 and the exit point. That's why it's called a keyhole injury. It's both
23 the entrance and exit wound, but that we do not see here. Perhaps we can
24 comment the previous three photographs.
25 Q. And you say, before we go to that, that you would expect
1 discolouration on the surface of the bone with blood for this to be a
2 keyhole injury?
3 A. No. For this to be an ante mortem injury caused while the person
4 was still alive, then you would have the blood discolouration as a
5 consequence of the breakdown of the blood components. It has nothing to
6 do with the shape or type of the wound. It has to do with the fact
7 whether the injury was sustained ante mortem or post mortem.
8 Q. We have seen, though, sir, that this is a skull that suffered
9 other type of damage as well. There was burning, which is what we saw in
10 the previous photographs, no?
11 A. Yes, I would like to look at the photographs because I do have
12 additional explanations.
13 Q. We can go back to that, sir.
14 So we see here on the photograph, sir, the damage caused by the
15 fire, no? We're in the wrong part.
16 A. On the photograph we see bone damage at the base of the head of
17 9.5 diameter, 9.5 by 7.5, and we can see that there was fire from there.
18 You should be able to see the blood discolouration in those areas if you
19 look at the third skull which has been shot from above, and you can look
20 at the inside plate of the left side of the back of the head. There is
21 no blood discolouration in that part. You can see that this large
22 opening, the foramen magnum, part of the back of the head, you can see
23 the left profile of this skull. How could you inflict a keyhole wound in
24 this part of the skull when the bone there is straight? This part of the
25 skull bone -- well, I don't need to speak Latin, excuse me. This
1 protruding part of the bone, for example, the forehead part or the top of
2 the skull, there you could inflict a keyhole wound, but on the straight
3 part of the skull it would be difficult. You could just have a gun-shot
4 wound which -- where the projectile would not penetrate the skull. With
5 a gun -- with a keyhole wound the projectile would penetrate different
6 parts of the brain. This is what I'm talking about.
7 Q. But, sir, you do agree with me that we're looking at this top --
8 shot from quite a distance, so you would, actually in order to reach the
9 conclusion that you're making, need to examine this skull?
10 A. When an autopsy's conducted properly and documented and
11 photographed, as is the case here, then you can draw conclusions. And
12 then you know when --
13 Q. Sir --
14 A. -- the Trial Chamber or the Prosecutor is dissatisfied with the
15 findings and you know that yourself --
16 Q. -- these photographs -- I mean, these are just photographs that
17 are in this report which you are observing, but this case is documented
18 more thoroughly. It's just not included in this report. This is simply
19 something that was put there as an example. What I'm putting to you is
20 that you're making these assertions based on your observations of this
21 shot from quite some distance of the inside of the skull, aren't you?
22 A. You are wrong. I analysed this using a magnifier in order to be
23 able to look more closely at all the changes. I wouldn't want to appear
24 here unprepared and to make assertions that are unchecked. I spent a lot
25 of time examining all this material and double-checking so that my
1 testimony here would be accurate.
2 Q. But you would agree with me, sir, that in order to be able to
3 establish with some certainty whether this is a keyhole wound or not you
4 would actually need to examine the remains not just the photograph?
5 A. In a situation when that is possible. In a situation when that
6 is not possible and you are in possession of photographs like this, then
7 you can make assertions on the basis of an examination of the photographs
8 of the skull.
9 Q. And, sir, those persons who actually examined the skull are in a
10 better position than you are to establish whether this was a keyhole
11 wound -- a keyhole defect or not, weren't they, sir? Who were able to
12 look at it from all different angles and examined it?
13 A. Do you consider that what you notice reading a criminal case file
14 would be the same as those things that perhaps an economics expert would
15 read out of them? This is why I said that Baraybar is a person who does
16 not have the required medical training in order to be able to interpret
17 wounds or injuries of this type.
18 Q. Sir, my question was a lot more specific than that. I'm just
19 asking you: Isn't it correct that the persons who actually examined this
20 skull would be better placed than you are to determine whether this is a
21 keyhole defect or not?
22 A. Yes. In the case -- case that they were qualified and had enough
23 experience to be able to interpret this kind of evidence.
24 Q. And you do not know just from reading this page of the report who
25 it was that made up the team who carried out the examination of these
1 remains, do you, sir?
2 A. Madam Prosecutor, I know who examined the mortal remains. The
3 pathologists are listed at the beginning who carried out the
4 examinations. The persons who conducted the investigations should have
5 made the report, not the archaeologist. The summaries - again I am
6 exceeding perhaps the bounds of the question - but summaries that are
7 accompanying the indictment cannot be made by anyone else other than the
8 Prosecutor. This is only the job of the Prosecutor, who has the required
9 expertise to do something like that. This is my general remark or
10 objection in relation to Baraybar. He's interfering in matters that he
11 is not qualified to deal with and he is not familiar with, not just here,
12 in Bosnia
13 of --
14 Q. Sir, sir, this is really not proper. We're not here to talk
15 about Mr. Baraybar and your contacts with him. So I'm just going to move
16 on from that point.
17 Now, just a final point in relation to his report. You were
18 asked about page 15 of the report, which has some conclusions. And you
19 were asked:
20 "What is your opinion when you compare the gun-shot wounds in
21 bodies that were exhumed in Serbia
22 example, we can see the Afghanistan
23 this about, Doctor, can you please comment on this?"
24 And you said, and this is at transcript page 13473:
25 "In the territories that are discussed here, Cambodia
2 conflict in Kosovo, the only weapons which were used were hand-held
3 fire-arms and also mines and explosives which belonged to the police.
4 Under such circumstances, considering that the selection of weapons is
5 limited, sometimes these were hand-held mortars, then I don't think it's
6 constructive to compare such wars and the injuries sustained by people in
7 these territories with those who were killed in Kosovo primarily because
8 of the different weapons used ..."
9 Sir, are you suggesting that during the conflict in Kosovo in
10 1999 heavy weaponry was not used?
11 A. I don't know what you mean by "heavy weaponry." Are you thinking
12 of tanks, howitzers? Is that what you mean by "heavy weaponry"?
13 Q. Well, I'm actually trying to understand your testimony on this
14 point, sir, so -- and you were -- you said:
15 "Heavy weaponry was used in Cambodia, Afghanistan, the Gulf War."
16 And you said:
17 "In the armed conflict in Kosovo only weapons which were used --
18 the only weapons that were used were hand-held fire-arms and mines and
19 explosives" which belonged to the police. So I'm just trying to
20 understand if you're saying that in Kosovo these are the only type of
21 weapons that were used during the conflict in 1998 -- 1999, hand-held
22 fire-arms, mines, and explosives, but no heavy weaponry? Is that your
23 position, sir?
24 A. I know that when the military is concerned, because they have
25 such heavy weapons as tanks, howitzers, and large-calibre cannons, that
1 they had orders not to use them. This is the information I have and the
2 knowledge I have based on my own military experience. I don't think any
3 such thing occurred, otherwise it would have gone contrary to the orders
4 issued by those in charge of the military in the state. I am not
5 familiar with any such use there, and this is why I stated what I did.
6 Q. So you're saying, sir, that you have no information that the
7 military in Kosovo used tanks, howitzers, or any sort of large-calibre
9 A. Yes. I don't have any information that they used such weapons.
10 The police in their establishment have -- do not have such weapons. They
11 only have some smaller mortars and hand-held rocket-launchers, like
12 Zoljas. I would rather not go into that much detail because I'm not an
13 expert in the field, but this is the extent of my knowledge.
14 Q. Okay.
15 JUDGE PARKER: Ms. Kravetz --
16 MS. KRAVETZ: Yes, I see that it's time for the break,
17 Your Honour. I apologise. I was just trying to finish on this point.
18 JUDGE PARKER: You mean finish this --
19 MS. KRAVETZ: No.
20 JUDGE PARKER: -- particular part of your examination or the
21 whole cross-examination?
22 MS. KRAVETZ: No, just this point.
23 JUDGE PARKER: Okay.
24 Now, Mr. Djordjevic, you were rising?
25 MR. DJORDJEVIC: [Interpretation] I rose for the second time. We
1 have an expert here who however is not a military expert, unless the
2 question falls within the scope of his competences. That was my
3 objection, given that there was another witness by the Prosecution who
4 was asked about the use of weapons by the army and police in the period
5 in question. That was the only objection I had.
6 JUDGE PARKER: I -- in what you say, you are quite right,
7 Mr. Djordjevic. But what was being pursued here is what the witness
8 himself meant in his report when he made this comment about the weapons
9 that were used, and that matter has been at least partly explored by
10 Ms. Kravetz. She may want to follow it up after the break or not.
11 That's a matter for her. But it was essentially at this point a matter
12 of clarification of what the witness was saying about these matters,
13 which was perfectly appropriate.
14 We will resume at five past 1.00, but it would be convenient if
15 the Chamber were able to adjourn 25 to 2.00 or thereabouts today, so I
16 leave that with you, Ms. Kravetz, not to hurry you, but to allow you to
17 plan your timing.
18 We adjourn now and resume at five minutes past 1.00.
19 --- Recess taken at 12.35 p.m.
20 --- On resuming at 1.11 p.m.
21 [The witness stands down]
22 JUDGE PARKER: Our apologies that another matter delayed us. We
23 were not expecting the delay, so it happened. While we wait for the
24 witness, could I mention that a motion filed yesterday by the Defence
25 indicated that there are now English translations for several documents
1 MFI D686, D787, D802, D804, D806, and D809. That being so, those
2 documents which are marked for identification will now become exhibits.
3 [The witness takes the stand]
4 JUDGE PARKER: I'm sorry, Doctor, that another matter delayed us.
5 We regret that that occurred.
6 Yes, Ms. Kravetz.
7 MS. KRAVETZ: Thank you, Your Honour.
8 Q. Sir, I would like now to draw your attention to the report of
9 Dr. Baccard and discuss with you your comments in relation to this
10 report, and this is P1139. I believe you discussed this on page 13 of
11 your report. If we could have that up on the screen. And for P1139 I
12 would like to ask page 23 of the English and page 25 of the B/C/S.
13 Now, sir, this is the section of Dr. Baccard's report that deals
14 with Racak, and you were shown this portion yesterday. And at transcript
15 page 13463 my learned colleague Mr. Djordjevic asked you:
16 "Doctor, what can you tell us about the cause of death of the
17 bodies in Racak?"
18 And you said:
19 "The report speaks of 40 bodies which were found and later on
20 analysed and that come to Racak; whereas, this report speaks of 64 causes
21 of death, that is to say, that 40 persons have 64 causes of death. One
22 person can have only one cause of death, but not one and a half causes of
23 death." Then you say:
24 "So this is one illogical conclusion, which is not the only one
25 by no means."
1 Now, sir, I'm looking at this page we see that there's a small
2 table, which has one column is called "injuries," the other one, "number
3 of cases and percentage of victims." If I understand your evidence
4 correctly from yesterday, sir, this number 64 that you're referring to,
5 64 causes of death is just the sum total of the number of cases that are
6 listed in column 3 -- 2 of this table that's there?
7 A. Yes.
8 Q. Now, in this section under the heading "cause of death," the
9 report says:
10 "The cause of death has been determined with certainty in 39
11 cases ... it was generally related to ballistic injuries."
12 And then it says:
13 "The main causes of death are represented by injuries to internal
14 thoracic and abdominal organs as well as skull-brain injuries."
15 Sir, this table that's here on this page, isn't it simply
16 indicating the location of the different ballistic injuries that were
17 sustained by these bodies or 40 bodies that were examined? Isn't it that
18 all that it's indicating? It says "injuries to," and then the part of
19 the body and then it just gives the number of cases and percentage.
20 A. Yes, that's what it says.
21 Q. So all this is saying, sir, it's not that there were 64 causes of
22 death, but it's saying, and it's actually stated right below this table
24 "In several cases examined the death was considered as caused by
25 more than one wound mechanism."
1 So several bodies presented multiple gun-shot wounds. Isn't that
2 all that is stated here?
3 A. Yes, just below the table.
4 Q. Now, sir, you were asked in relation to page 27 of this report,
5 and it's 27 in the B/C/S and 25 in the English, so just two pages over in
6 both languages. You were asked:
7 "How do you interpret the location of gun-shot wounds, or rather,
8 locations of entry wounds in the bodies found in Racak?"
9 And you said:
10 "Based on the location of these wounds one can speak of a
11 situation in which people who perished in Racak found were perished in
12 the area because these type of wounds that came from the front and back
13 and from the left and right could have been seen. They come under these
14 circumstances. I don't see a particular problem bearing in mind that
15 such injuries are frequent with people who have taken part in combat."
16 And you were asked:
17 "And what is your conclusion?"
18 And you said:
19 "Without knowing any other information, witness statements and so
20 on, such injuries could have been inflicted on persons who were
21 surrounded and not persons who were executed only."
22 Are you suggesting, sir, that based on the distribution of
23 injuries these person -- in your opinion these are persons who perished
24 in combat? Is that what you're suggesting, sir?
25 A. My conclusion is contained in what you read out. They could have
1 come about as the -- as a result of combat.
2 Q. Now, if we look at the location of entry wounds, which is on the
3 page in front of us, there's also a table. And we see that in 49 per
4 cent of the cases these persons sustained injuries in the back of the
5 head and in 61, in the back of the trunk. Now, sir, I put to you that on
6 the sole basis of the distribution of injuries suffered by these persons,
7 you cannot conclude that they were, in fact, injuries sustained during
8 combat, can you, sir?
9 A. No. That is your conclusion which deviates from mine.
10 Q. Don't these findings that we see here about the distribution of
11 injuries, isn't the only thing that they mean is that these persons were
12 fired upon and they were killed? Isn't that the only conclusion we can
13 draw really from these findings?
14 A. Well, gun-shot injuries which resulted in death were registered.
15 Q. Yes. But from there to make the leap that this indicates these
16 persons were in combat, sir, we would need more information, no? And
17 you're using combat as opposed to being executed. We would need more
18 information to say these are persons who were killed in combat as opposed
19 to being executed?
20 A. Whether they were killed in combat or not is up to the Court to
21 decide. I merely pointed out both possibilities. It wasn't up to me to
22 decide which one is correct.
23 Q. But you didn't point out both possibilities. In fact, you said:
24 "Such injuries could have been inflicted on persons who were surrounded,"
25 and you also referred to persons who take part in combat and not persons
1 who were executed only. So you were putting forward the suggestion that
2 the distribution of injuries could indicate that they were persons in
4 A. That is correct. They could have come about as a result of that.
5 I did not categorically state so. Had I done this, I would have said
6 these injuries came about as a result of combat because the victims were
7 surrounded. I said they could have. This is not the same as stating
8 something with great certainty.
9 Q. Very well, sir. I'll move on from that point. Now, the last
10 point I wanted to discuss with you are your comments to the French
11 forensic team and their autopsies in the Gornja Sudimlja site or Vucitrn
12 area which are on page 6 and go on to page 8, and there's also another
13 page 9 which deals with a related report. Now, on page 6 you referred to
14 these two reports, P1174 and P1172, and in paragraphs 2 and 3 you make
15 the point that the description of the entry wound with regard to body L1
16 C14, are you there -- I'm sorry, sir, that I've been jumping back and
17 forth. I'll wait for you to get to the page.
18 A. I found it.
19 Q. My apologies. I'm just a bit pressed by time. Now, in paragraph
20 2 --
21 JUDGE PARKER: Ms. Kravetz, can we make clear you have no need to
22 feel pressed by time.
23 MS. KRAVETZ: Okay. No problem, Your Honour.
24 Q. Sir, in relation to body L1 C14, and also in the next paragraph 3
25 in relation to body L1 C19, you pointed out an inconsistency. You say
1 the autopsy report first concludes that the shooting was at point-blank
2 range and the conclusion assessed close range, and you make a similar
3 comment in paragraph 3 with respect to the other body. You see this
4 section I'm referring to, sir, in paragraphs 2 and 3?
5 A. Yes.
6 Q. Now, sir, I presume you're aware from having read the materials
7 that the original version of this report was prepared in French by this
8 French forensic team?
9 A. I didn't know that, but I could have supposed it was in French.
10 Q. And if I told you, sir, that in the French original, in fact, the
11 same word is used in both the autopsy report and in the conclusions, both
12 say point-blank, would that change your understanding of these comments
13 as being contradictory or inconsistent?
14 A. That would conclude -- that would change my conclusion that the
15 two conclusions from the report were in disaccord because one said
16 point-blank and the other one close range, whereas this changes it. What
17 does it mean, point-blank? It could also mean contact range, meaning
18 that the barrel is put against the skin or against the clothing or that
19 the distance is up to 5 millimetres. Next we have close proximity or
20 close range which can go up to 50 centimetres, and this again differs for
21 weapons with a short barrel and a long barrel. That is why I don't think
22 the conclusions are consistent.
23 Q. Yes, sir. What I'm putting to you, and I'll put it in a simple
24 way, is that what we're seeing here is simply a translation problem. The
25 term "point-blank" was translated inaccurately both in the English and
1 the Serbian version, and that's why you're seeing inconsistencies. Were
2 you aware of that, in the French, in fact, the same term was used in both
4 A. No. However, Madam Prosecutor, should one receive a longer
5 sentence based on a wrong translation? One must be objective vis-a-vis
6 the victims and vis-a-vis the accused. That is my general remark.
7 Q. I'm not sure I understood your answer, sir. All I'm saying is
8 that in the French original this inconsistency is not contained within
9 the report.
10 A. And I'm saying that a wrong translation cannot be used to
11 determine a sentence for any one accused.
12 Q. Okay, sir. That's fine. Now, with regard to this report, both
13 on page 6 and 7 and we're not going to get into all the specific cases,
14 you make the -- you repeatedly make the comment that the autopsy report
15 does not suggest a certain calibre of weapon or certain range of firing
16 of weapon. And in relation to this you were shown the French ballistic
17 report yesterday which is examined on page 9 of your report and it's
18 P1166. And I would like to have that up on the screen if we could have
19 it up. And if we could go to page 26 in both languages. Now, you
20 were -- and this is dealt with on page 9 of your report.
21 Now, sir, you were shown a passage, and I'll read out the passage
22 just in order to move along. It's a passage that says:
23 "It should be noted that the profiles were taken during firing
24 tests carried out using 10 per cent ballistic gelatin. Now this mixture
25 is a simulant of even consistency which mimics muscle at rest." Of
1 course the results obtained need to be tailored to the injured area of
2 the human body in accordance with the forensic observations.
3 Do you recall that this passage was put to you yesterday, sir?
4 A. Yes.
5 Q. And in relation to this passage, sir, you had the complaint that
6 on a body -- and this is at transcript page 13447:
7 "On a body we do not register entry wounds on the muscle tissue,
8 but rather on the skin and the composition of the skin tissues is rather
9 different from the composition of the muscle tissue." And you went on to
10 say also that you had a complaint regarding the fact that this gelatin
11 mimics muscles at rest and that that wouldn't be the case for persons who
12 were shot. Now, do you recall saying that, sir, yesterday when this
13 passage was put to you?
14 A. Yes.
15 Q. Now, sir, would you agree with me that the path of a bullet
16 through the muscle or the trauma immediately under the skin can assist in
17 determining the range of fire and the calibre of the weapon used to fire?
18 A. No. I don't think there is a method in existence which could
19 confirm with certainty that fact. There may be some assumptions, but
20 there is no method which can be applied on dead bodies. I'm positive of
22 Q. And just to pick up on that answer, sir, you said there is no
23 method which could confirm with certainty that fact. Now, sir, you've
24 reviewed both -- I mean, all of these reports now prepared by the French
25 forensic team P1174, P1172, in detail, I presume, and these reports that
1 deal with the Gornja Sudimlja site, no?
2 A. Yes, I did review and analyse them.
3 Q. And I presume, sir, that you would have noticed -- and I'm not
4 going to go through each one of these cases because it will take too
5 long, but you probably noticed that when conclusions are made regarding
6 the range of fire and the calibre of weapon, the language used, and at
7 least it's like that in the original, it says consistent with such or
8 suggests such calibre or such range. It doesn't say this demonstrates
9 with certainty that this is the case, does it, sir?
10 A. That is not correct, Madam Prosecutor. Concerning the body we
11 analysed a moment ago, L1 C13, in the conclusions it is stated the bullet
12 was of 12-millimetre calibre. It's an assertion, a statement leaving no
13 room for any doubt. They could have said the bullet may have been of
14 12-millimetre calibre, but if you say the bullet was of 12-millimetre
15 calibre, it's a positive statement and that that is not acceptable. This
16 is what I was talking about.
17 Q. And, sir, I -- based on the previous answer when we were talking
18 about paragraph 2 and 3 of your report, I understand you haven't reviewed
19 the original version of this report, the French version?
20 A. No. Even if I had had it, I wouldn't have been able to review it
21 since I don't read French. So I didn't do that.
22 Q. And, sir, I'm just putting to you, do you accept that in the
23 French version although there may be cases like you've pointed out where
24 the language is stronger, generally the language used "is consistent
25 with" or "suggests," and it goes on to state either the range or calibre
1 fired. That is the language used in the report? I see you shaking your
3 A. That was not my impression at all.
4 Q. Okay, sir. But I guess we would need to review the original one
5 to reach that conclusion. Anyway, sir, those were my questions for you.
6 MS. KRAVETZ: I have no further questions. Thank you.
7 JUDGE PARKER: Thank you, Ms. Kravetz.
8 Mr. Djordjevic, in view of some matters that the Chamber would
9 want to raise as well, it seems that we cannot finish the witness today.
10 MR. DJORDJEVIC: [Interpretation] I only wanted to say,
11 Your Honour, that is why I rose, that Defence will not have any questions
12 in re-direct.
13 JUDGE PARKER: Thank you, Mr. Djordjevic.
14 [Trial Chamber confers]
15 JUDGE PARKER: Doctor, can we ask what would be the inconvenience
16 for you of waiting over the weekend in The Hague? Would that be very
17 disruptive of your personal affairs?
18 THE WITNESS: [Interpretation] It does have an impact, but if
19 there is a need for you to put questions to me then this decision is
21 JUDGE PARKER: Thank you for that co-operation.
22 [Trial Chamber confers]
23 JUDGE PARKER: You'll be pleased to know, Doctor, that we feel in
24 the circumstances we should not delay you and that you will, therefore,
25 be free to return to Serbia
1 attendance here, for your detailed reports, and for the assistance that
2 you've been able to give. A court officer will show you out at this
3 point. Thank you very much.
4 [The witness withdrew]
5 [Trial Chamber confers]
6 JUDGE PARKER: We are informed, as you realise, that because of
7 the decision of the Chamber the Defence is not in the position to call
8 the witness which it anticipated next week. For that reason, we must
9 adjourn now and we resume in mid-April. So there'll be a break of just
10 over two weeks.
11 The question arises whether it is convenient to resume on
12 Thursday, the 16th of April -- the 15th of April, I think it is, or
13 whether it would be preferable to resume on the Friday or the following
14 Monday. Because counsel for the Defence have to travel from Serbia
15 offer those possibilities, and we do so also bearing in mind that the
16 Defence is in the position of having to organise its witness programme to
17 conclude its case. So in view of that, Mr. Djordjevic, do you have any
18 particular views as to whether it would be better to start on the
19 Thursday, the Friday, or the following Monday?
20 MR. DJORDJEVIC: First of all, Your Honour, thank you for that.
21 For Defence it would be convenient if we started Monday, especially
22 regarding the reasons you mentioned just before, few moments.
23 JUDGE PARKER: Thank you.
24 Would that concern the Prosecution, Ms. Kravetz?
25 MS. KRAVETZ: No, Your Honour.
1 [Trial Chamber confers]
2 JUDGE PARKER: In those circumstances, Mr. Djordjevic, we would
3 propose then to adjourn until the Monday, probably the 19th of April.
4 MR. DJORDJEVIC: Correct.
5 JUDGE PARKER: Yes. Which is a longer break than we had
6 expected, but for reasons which have been mentioned we can't sit next
7 week. And the difficulty of starting late in the week and the
8 inconvenience of it is obvious.
9 So we will now adjourn to resume on Monday, the 19th of April,
10 and we would wish everybody a safe and happy break.
11 --- Whereupon the hearing adjourned at 1.42 p.m.
12 to be reconvened on Monday, the 19th day of
13 April, 2010, at 9.00 a.m.