1 Monday, 17 August 2009
2 [Rule 65 ter Conference]
3 [Closed session]
4 --- Upon commencing at 11.14 a.m.
5 JUDGE BONOMY: Good morning everyone.
6 MR. SLADOJEVIC: Good morning, Your Honour.
7 JUDGE BONOMY: I suppose this is properly described as a 65 ter
8 meeting. If we need a designation for it, that should make it clear to
9 all concerned that although it's taking place in private, in camera, that
10 as before, the transcript will, if it seems appropriate, be made public.
11 The first thing, I think, to do is to record who is present. I
12 note that Mr. Karadzic is present, as he has been at any such meetings,
13 but I'm delighted to see that he is not on his own this time. I won't
14 express too high a degree of pleasure at that, just at the moment, but I
15 think it's a very useful exercise on this occasion to have the assistance
16 of at least one of his assigned associates, and I take it you are
17 Mr. Sladojevic.
18 MR. SLADOJEVIC: Yes, I am, thank you.
19 JUDGE BONOMY: Well, I'm pleased to meet you.
20 Can I now have confirmation of who is here for the Prosecution.
21 MS. UERTZ-RETZLAFF: Mr. Nicholls, Julian Nicholls, trial
22 attorney, and myself, Hildegard Uertz-Retzlaff.
23 JUDGE BONOMY: Thank you very much, Ms. Retzlaff. I have ask the
24 Registry in the form of someone from OLAD at least should be here, and we
25 have Ms. Reinhardt in that capacity. Now, I want at the outset to make
1 one thing very clear to avoid any misunderstanding.
2 And that is that I don't have power, nor does a Trial Chamber as
3 an entity have power to tell OLAD what to do or the Registry what to do
4 in the context of this sort of meeting. Obviously there are
5 circumstances in which the Trial Chamber may be asked to make
6 determinations which do affect the work of the Registry. So my role in
7 this meeting, which is for a fairly limited purpose, is to try to
8 facilitate agreement on matters, insofar as there can be agreement.
9 I anticipate, however, that we will not leave here with clear
10 agreement on how matters affecting all the expert witnesses that are at
11 issue today are to be resolved from here on in. But let's see how far we
12 can go. And the first issue I would like to address is the question of,
13 I think, broadly is best described as the issue of DNA. It was when I
14 saw the exchanges of correspondence about this that I thought that it was
15 worth having this meeting to make sure that there are no
16 misunderstandings about where we are going on this.
17 Now, I think the best plan, Mr. Sladojevic, if you don't mind, is
18 for you, if you are willing to do so, and Mr. Karadzic is happy that you
19 should do so, if you could explain to me exactly what it is you have
20 requested is provided to you, and the reason for that in as simple terms
21 as possible.
22 MR. SLADOJEVIC: Well, if I may I suggest that I explain at least
23 how I understand the whole problem with the ICMP and the pathology
24 reports that we need. There are a couple of steps the Defence has to
25 undertake in order to establish basically what happened in Srebrenica and
1 other crime bases. So basically the evidence that in Srebrenica had been
2 killed or died so many people are the DNA reports on the one hand, and on
3 the other hand, pathology reports or exhumation reports on the other
4 hand. The first one serves to establish the identity of the victim, and
5 the other one to establish the causes and mechanisms or reasons of that,
6 origin of that.
7 So our position is to ask basically, was to ask the Prosecution
8 and ICMP through the Prosecution to disclose all relevant documents that
9 are related to the identification of victims, and because of the very
10 limited resources that we have at our disposal, we suggested to analyse
11 about 5 per cent out of approximately 6.000 allegedly done identification
12 cases, which is around 300 cases that the ICMP basically did.
13 And then on the basis of this analysis, to give our assessment or
14 the -- to give his assessment of the validity or accuracy of the
15 procedure. Now the -- our expert explained that he needs 300 cases for
16 the following reasons, because the Prosecution expert, Dr. Parsons, he
17 said that the procedure of establishing identity of victims has evolved
18 over time since 2002. So that's around last -- it concerns the six
19 years, so we suggested then 50 cases for each year, which makes 300.
20 Now, that is only one side of the problem that we have.
21 The other side of the problem luckily for me was explained to
22 greater detail by the forensic expert Dr. Dunjic, and so he sent a
23 memorandum or a letter explaining the problem in greater detail. So if
24 you don't mind, I can -- unfortunately we have it only in Serbian
25 version, in Serbian language, and since we got it last night, and if you
1 would like, I could give you -- I have three copies with me, so you can
2 maybe have it translated soon.
3 JUDGE BONOMY: But does that say essentially what has already
4 been said in the communication before from Dr. Dunjic?
5 MR. SLADOJEVIC: No, he developed it further basically. And just
6 to finish the other topic, the ICMP and I finally established the
7 communication with Mr. Kleiser from the ICMP, and he suggested that he
8 needed to consult the donors of the DNA, family members, which will take,
9 in his view, a couple of weeks, if not months to get. And this really
10 puts us in a very difficult position to do our duty within the time
11 limits allowed by the Trial Chamber.
12 But if I may, I can read out this letter which I can do in a
13 shorter version, which will take me 15 or 20 minutes maybe but you can
14 have a complete picture of the problem, if you want.
15 JUDGE BONOMY: Perhaps you, first of all, could assist me with
16 some detail. In relation to the DNA testing that has already been done,
17 is the exercise envisaged, looking at the results and the work that was
18 done to achieve these results, and assessing whether that was good or bad
19 or accurate or not, or is the work you envisage actually doing the job
20 again, doing the whole DNA analysis again? Which is it?
21 MR. SLADOJEVIC: Well, for the purposes of the motion, I think
22 that, I believe that the analysis that we would like to do is to confirm
23 or let's say put a test to the accuracy of the procedures and proceedings
24 that were collected by the ICMP. But we basic -- our expert told us that
25 he couldn't make any -- he couldn't give us any opinion until he has seen
1 the raw material underlying the aggregate reports made by Dr. Parsons and
2 by others.
3 JUDGE BONOMY: But you envisage that it's a question of reviewing
4 the material and the results rather than conducting a totally independent
5 DNA assessment; am I correct?
6 MR. SLADOJEVIC: Well, I couldn't agree with that, because I
7 think that the point he will -- our expert Mr. Stojkovic would like to
8 get his 300 cases of raw material and which includes electropherograms
9 and all the other things that I didn't master, those kind of things, but
10 as I understand it, he -- let me just consult the notes, because I have
12 MR. KARADZIC: [Interpretation] [No interpretation] ... is looking
13 for the material, I am a doctor, I know how these things go, I worked on
14 that, although I am a psychiatrist, but did I cover that in my studies.
15 Anyway, what we need is to have access to all the material available to
16 the experts of the Prosecution when they were compiling their reports.
17 So we need to have exactly the same material that they base their
18 assessment on. We cannot assess their report until we see exactly the
19 same material that they had in front of them when they were drafting
20 their report.
21 JUDGE BONOMY: That I have clearly understood. It's the purpose
22 that I want to be clear about and it sounds as though the purpose is to
23 review the material, rather than to do a quite separate cross-check.
24 It's a question of looking at what was done and having available all that
25 was before the original expert and coming to a view on the quality of
1 that work. Now, is that your understanding, Mr. Sladojevic?
2 MR. SLADOJEVIC: Well, my understanding -- I suggested the OTP
3 [indiscernible] a little bit the work of the ICMP in the transcript of
4 Dr. Parson's testimony, and I believe that our experts will want to apply
5 independently the tests on the results of the ICMP which is -- the ICMP
6 changed the methods of extracting the DNA from bones into a more
7 efficient methodology, so basically our expert wants to check whether the
8 results of or a samples taken from bones correspond to the samples given
9 by the DNA donors of the family members, basically, to see whether these
10 correspond. And in order to do that, he needs to have a random sample of
11 300 cases as suggested, especially in the electronic form because the
12 Prosecution disclosed the electropherograms, which are very important for
13 the analysis in the hard copy format; he cannot do that, because he wants
14 to put the electronic, the electropherograms in his computer system
15 programme and then run the results. And that is only one side of the
16 coin, of the problem, because this is a -- very connected to the work of
17 our pathologist, Dunjic, and conducted both analysis will be able to
18 establish whether the accurate and correct methodology was used in
19 establishing the identity, first of all, of victims, and in addition to
20 that the numbers, and then the reasons and causes or origins of death for
21 the people, for the victims in Srebrenica.
22 As I said, I could read out the shorter version of the letter for
23 you to get a better picture because it really provides the other side of
24 the coin.
25 JUDGE BONOMY: I'll allow you to do that in a moment. Dunjic has
1 already carried out significant amounts of work in connection with other
2 cases, and has given evidence here already. Now, one of these cases is a
3 Srebrenica case and is currently before the Tribunal. I take it that he
4 is able to make use of the work he did in other cases in preparing what
5 he has been asked to do for you.
6 MR. SLADOJEVIC: So far the report that is he produced in
7 Srebrenica of course he will be able to use it, but the problem in the
8 Popovic et al case where he also acted as a Defence expert was that he
9 never got the necessary hours to conduct the same analysis that he is
10 suggesting now for our case. That was the problem, and he addresses also
11 among other issue, that issue which occurred in the Popovic et al case,
12 so only to a certain extent he can help us with his analysis in Popovic
13 et al case.
14 JUDGE BONOMY: And one other thing you mentioned was the problem
15 of consent by relatives to the use of the material. Some correspondence
16 earlier referred to that, but we have not seen a copy of the consent
17 form, do you have that?
18 MR. SLADOJEVIC: Yes, I got the consent form.
19 JUDGE BONOMY: Could I see a copy, please.
20 MR. SLADOJEVIC: Yes. Unfortunately, it is in B/C/S.
21 JUDGE BONOMY: Maybe the Prosecution has a copy.
22 MR. NICHOLLS: Your Honour, I can show Mr. Sladojevic my copy and
23 I think we probably have the same ones. There were two, Your Honour. If
24 I could show you. I'll hand one to my colleague. [B/C/S on English
25 channel] Your Honour, what we have now is, I suppose I should say just
1 for the record what I'm looking at it's U016-8978 is our evidence number.
2 This is the current form or consent form, Your Honour, which, as I
3 understand it, is -- has been used since 2007. And it's a very clear
4 form where the donor either consents or does not for use in criminal
5 proceedings in courts.
6 The problem is that the vast amount of donors relevant to the
7 Srebrenica case used an earlier form, which I will hand to my colleagues,
8 and Mr. Sladojevic can tell me whether it's the same one. This does not
9 have a number, Your Honour. And the translation is on the top. This one
10 as Dr. Kleiser has explained in his e-mail, which Mr. Sladojevic has
11 shared with us was a short of blanket form which was used by donors,
12 family members, looking for their missing relatives, and does not
13 contemplate use of the samples in national or international courts.
14 MR. SLADOJEVIC: If I may, the only thing that we don't
15 understand, and we were never explained, is that our understanding is
16 that some genetic data contains the most private information about the
17 person like the susceptibility to disease or a specific behaviour. And
18 the genes that were and analysed in analysing forensic genetics has
19 specifically been selected. In 1996, it was suggested to us by our
20 expert and so that they can not provide any information with the testing
21 individuals other than their identity. And the only answer that I got
22 about from Mr. Kleiser was that the consent form is self-explanatory.
23 So we have no other information about the suggestion that basically that
24 we don't need to or they don't need to ask for the consents to the
25 donors, although I understand the position is different on your side.
1 MR. NICHOLLS: I'm not sure what that last comment meant, but I'd
2 agree that the consent form is self-explanatory. If I can just say my
3 understanding is that, and I'm not an expert, is that the DNA used or
4 included by the donors may be limited in some respects, but there are
5 still, of course, privacy concerns. It is the person's DNA. It
6 identifies them. And more than that, the entire database which the
7 Defence have requested not only identifies all of the donors, many of
8 whom signed the form stating that their material would be private, but it
9 also, Your Honour, allows one to reconstruct all of the family
10 relationships which can also implicate privacy interest. So it goes
11 beyond just the individual.
12 JUDGE BONOMY: In any event, it's desirable that the use of this
13 material shall be done by agreement. Other the other hand, if reasonable
14 agreement can't be secured, then there is an issue which the
15 Trial Chamber might have to resolve if it was seen that there was some
16 potential unfairness in the use of material which could not be checked,
17 then that would have to be addressed at the appropriate time, and we
18 haven't reached that stage.
19 MR. NICHOLLS: No, Your Honour, if I may respond to what you've
20 just said. I think there is substantial agreement on many parts of this,
21 which is that the Defence should be able to test the evidence adequately
22 and should have access to it. The only issue is the logistics of
23 obtaining consent properly.
24 Now, what my understanding from the e-mail from Mr. Kleiser,
25 Dr. Kleiser back to the Defence, was that in principle they find the
1 request for 300 samples reasonable. That would entail obtaining consent
2 from around 1.000 individuals, which they will do, but it will take time.
3 The question that hasn't been answered really other than just we need
4 that many is why it needs to be such a large sample, 5 per cent or 300,
5 and why it couldn't start perhaps on a rolling basis with a fewer number
6 of samples. What the Defence have access to, and just to be clear, we
7 don't have any material from ICMP and no in-house material that we are
8 not disclosing. Everything we have from ICMP we have the same as the
9 Defence. But the Defence have, which I've brought a copy of, the missing
10 persons report which is attached, it lists all of the still considered
11 missing from Srebrenica, this is from the ICRC list as well as is
12 identified, as well the periodic updates which we received from ICMP.
13 These updates contain the name of every individual, their date of birth,
14 the case ID, the protocol, lots of information, where they were found,
15 the jurisdiction they were found in, the date of disappearance, the date
16 that the result was submitted or finalised, and the type of report.
17 And this lists, with each update, everybody, every individual
18 identified, and the new individuals are highlighted in a different colour
19 so they can see in a last six months. So there's no reason I can think
20 of why using this list, the Defence couldn't select randomly by year
21 individuals to be tested and ICMP will then obtain the consent forms and
22 as they did regarding Bisina, the Bisina incident in the Popovic case,
23 disclose the entire file. So there's no -- my understanding from the
24 ICMP, there's no refusal to comply. There's no refusal on our part.
25 It's just simply a matter of how to select an adequate representative
1 number, and then, although it will take time, that consent can be
2 obtained and all the information will be provided.
3 JUDGE BONOMY: I assume from all you've said and from the
4 correspondence, Mr. Nicholls, that identity is an essential part of a
5 Prosecution case.
6 MR. NICHOLLS: Again this is not a part of a case I've worked on,
7 although I was on the Popovic case intimately. What is more important
8 than the identity of the each individual is to show that the persons
9 found are unique individuals. The reason for that is that in some
10 instances parts of one person's body shows up in different sites,
11 different locations as the bodies were moved or shifted around. So more
12 than saying this is so and so, this is this person's name, this is when
13 he was last seen, what is most crucial about the evidence is showing the
14 actual number of unique identified people avoids the problem of perhaps
15 somebody being counted twice. The identifications as well show who these
16 people are, and it is an important part of the case because it shows that
17 they disappeared from Potocari or in the woods, but that evidence is
18 corroborated by lots of -- this has been done before many times and
19 there's -- we feel that is not as crucial as the showing that we've got a
20 unique individual.
21 JUDGE BONOMY: It's important not to lose track of the bigger
22 picture here and to remember that the DNA identification of individuals
23 may not be the sole evidence on which the Prosecution is relying, and
24 that the precise determination of the cause of death of individuals may
25 not be something that is essential at the end of the day to prove the
1 broad case that the Prosecution presents. That's not to say that you
2 might not be able to show that perhaps a few cases have been wrongly
3 explained as deaths which look like executions rather than in combat,
4 just to pick an example.
5 Now, I don't dispute for a moment your right to investigate this
6 case in the way you consider appropriate, but when it comes to the use of
7 public resources which have to be authorised, then account has to be
8 taken of the purpose for which this is being done in the context of the
9 case and the issues in the case.
10 At this stage, it's very difficult for me to have a clear picture
11 of how necessary all of this will turn out to be, but what I can tell is
12 that there's agreement that you should be doing the work that you wish to
13 do in relation to a proportion of these examples, and when I say
14 examples, I mean a proportion of all the one who have been identified by
15 this method. But there also seems some sense in what Mr. Nicholls says
16 that while there may be a desirable amount of 300, that there must be a
17 lower starting point at least because it's going to take time to get the
18 necessary authority for whichever number you select here.
19 So I -- what is emerging is consistent with my understanding
20 that -- that you may have been reluctant to commit yourselves to doing
21 things in a certain way because, and I understand your point of view, you
22 might feel well if I say, I'll do 50, then I'll be seen as having given
23 up my case to do 300. Well, I think what is emerging at the moment is
24 that you wouldn't be seen to be doing that because you've got the ICMP on
25 your side as indicating that 300 is a reasonable sample, but I think you
1 are going to have to start this job with a lower number.
2 Bear in mind also this: That at this stage in the case, your
3 concern is with how you challenge 92 ter -- sorry, 92 bis motions, and
4 how you prepare to cross-examine the Prosecution witnesses. There is
5 going to be another stage at which you are going to have to produce
6 reports. Now, I had hoped when all of this started that perhaps your
7 experts would be able to produce reports at this stage in the case. It's
8 clear to me now that that is not going to happen, that it's just
9 impossible, and that we then have to tailor our expectations of the
10 experts. So the main thing is to make sure that you have adequate
11 material for cross-examination, for challenging the Prosecution case. I
12 don't envisage now any agreement being reached that you accept the
13 scientific experts in relation to DNA identification and pathology and
14 exhumation. That's just not going to happen. So you've said what you
15 can so far in respect of that 92 bis motion. If there's anything else --
16 is the dead-line passed for the -- 1 September. But Mr. Karadzic has
17 already indicated that there's going to be cross-examination of these
18 witnesses, that's his wish. But if there's anything further to be said,
19 then it can be said by the dead-line.
20 But I imagine the Trial Chamber is going to be faced, in this
21 instance, with the question, do we order cross-examination, authorise
22 cross-examination of the evidence in relation to this issue. Now, I
23 can't prejudge that at this stage, but I think without -- I'm sure the
24 Prosecution will understand that indication that it seems likely that
25 some of the Prosecution scientific witnesses included in the motion for
1 eight experts are not likely to be simply accepted by the Trial Chamber
2 without any form of cross-examination. Now, exactly what the decision is
3 will emerge after your submissions have come in. But in relation to this
4 sort of area where there clearly are issues that you are still exploring,
5 and quite rightly exploring, it's difficult to imagine such a decision.
6 Of course the Trial Chamber could postpone the decision and see how your
7 work develops and invite the Prosecution not to lead that evidence until
8 later in the trial and see if there's some issues that can be resolved so
9 that we can then focus, but that's an ongoing exercise. That is not
10 going to be completed in the course of the pre-trial phase.
11 So I would like to hear your comments on the suggestion that ICMP
12 are invited to concentrate on perhaps getting say 100 rather than 300
13 examples to you to get the work started.
14 MR. KARADZIC: [Interpretation] Your Lordship, I would like to add
15 my comments once Mr. Sladojevic has read a shortened version of the
16 letter by Mr. Dunjic, but in principle, we do agree that complete
17 confidentiality be provided to the donors. And, of course, I don't see
18 why we wouldn't be granted this. But we can't know this until we have
19 all these electropherograms, which we would then use to explore by using
20 a special programme to make sure that there are no duplicates. And as
21 for the consent forms, this could be done once the selection of the 300
22 random samples has been done, and we can, of course, discuss this with
23 Mr. Stojkovic and Dr. Dunjic to see what the best way to proceed would
24 be. But what I would like to say is we do not oppose certain matters
25 being admitted without cross-examination if they are reasonable and we
1 can confirm that they are accurate. So we are not trying to obstruct
2 anything here, we are just trying to be rational in our procedure. I
3 believe that once we have done our examination and research, and after we
4 have provided our comments, we are sure that the Prosecutor might want to
5 also adapt their own comments and procedure and this could help the
6 economy of the trial.
7 But I would I now like Mr. Sladojevic perhaps to read.
8 JUDGE BONOMY: Just one moment. Mr. Nicholls, is it your
9 understanding that [B/C/S on English channel]. Is it your understanding
10 that the electropherograms can be disclosed in electronic form without
12 MR. NICHOLLS: No, Your Honour. That's not -- excuse me. No,
13 Your Honour, that is not my understanding. I think those were -- the
14 issue I don't understand is why the entire donor database must be
15 disclosed, that's the problem in order for the random selection to be --
16 JUDGE BONOMY: Let me come back to that. I understand that.
17 Mr. Karadzic, are you saying that the electropherograms themselves do not
18 enable identification of the individual.
19 MR. KARADZIC: [Interpretation] Your Lordship, now I'm talking
20 about overlaps and duplicates. This is the first task that we need to
21 complete if DNA sample. I'm just talking about the victims and the
22 remains here. If one of the DNA samples is duplicated, we are going to
23 leave it out, so it would be good to look at the entire material without
24 names. At this stage --
25 JUDGE BONOMY: That's the point I am making. This would enable
1 to you to tell if two samples referred to the one person, I understand
2 that that. Are you saying that that can all be done using material which
3 does not disclose the particular identity, the name of that individual?
4 MR. SLADOJEVIC: If I may, Lord Bonomy, we have submitted the
5 request to make available the entire database with DNA profiles and the
6 name of the tested people in order to have the database of the names in
7 advance, so that when our experts sends you a specific request, for
8 specific individual, 300 of them, the parties are certain that the
9 maximum fairness in [Overlapping speakers], but we come to the point.
10 JUDGE BONOMY: Well, okay.
11 MR. SLADOJEVIC: I am sorry. We note that the same can be
12 accomplished if the database is presented only with profiles and some
13 unique markers, such as bar-codes without names, and that way the ICMP
14 will protect the information regarding the identity of the victims and
15 their relatives. This is our understanding based on our expert
17 JUDGE BONOMY: Mr. Nicholls will no doubt respond to that to say,
18 but that still doesn't mean that it can -- you can circumvent the consent
19 form because the consent form is a broader than simply the question of
20 identity. But plainly the purpose of the consent form is to protect
21 either people's concern about identity. But it should be easier, I
22 think, to deal with this issue in the light of this comment. I wonder if
23 the ICMP themselves might not be prepared to take a bold decision about
24 the impact of the consent form in light of a request initially to have
25 material which would not disclose identity.
1 MR. NICHOLLS: That may be, Your Honour, and we will consult with
2 ICMP on that. We are meeting with Dr. Kleiser later this week. He is
3 coming here. We hope to meet with him this week and try to resolve all
4 of these issues.
5 In principle and I can't -- I'm not speaking for ICMP, if -- and
6 I don't understand, I have to admit, the exact science of what is saying
7 in the electropherograms, but if there is a way to disclose without
8 identifying the person, I think that that may not be a problem. The
9 initial request was for everything, that is clearly -- would be contrary
10 to the consent forms. And it may be me just not understanding, but what
11 I don't understand is why the initial selection of 100, 200, 300, can't
12 be made off the list and information which they have provided, then once
13 the consent is done --
14 JUDGE BONOMY: You are both determined to get to a question I
15 haven't reached yet. I'm quite -- I mean I find this very difficult just
16 as I think Mr. Karadzic seems to be more familiar with it than any of us,
17 but even he has a limited knowledge of the technology involved.
18 I just wanted to be clear, first of all, that one of the requests
19 being made does not involve disclosure of identity. We seem to have
20 established that. The next question is why cannot we find a way of
21 identifying the 300 without disclosing identities of everyone which
22 effectively seems to be what you've asked for to enable that to be done.
23 MR. SLADOJEVIC: As I understand it, I don't pretend to
24 understand it completely, next to each name there is a probably some
25 unique marker bar-code, numbers, et cetera, if I'm not mistaken. So if
1 the ICMP discloses these database without the names only with these
2 bar-codes that we need to run the test of establishing whether there are
3 repetition of these codes and establishing the exact number of the
4 identified, that would also do it.
5 JUDGE BONOMY: Mr. Nicholls, that would suggest that at least let
6 me explain my understanding of this, that because what is being sought
7 here is indication of duplication, you really need everything, and what
8 is being suggested is that there's a way of providing everything without
9 disclosing identity. Now, that would seem to wrap the two issues
10 together in the way Mr. Sladojevic was trying to do in his earlier
11 submission and you were, to some extent, too. So now we now have a clear
12 understanding, I think, of, well, the layman's understanding of what
13 might be a way of providing sufficient material to make a selection
14 without divulging identity and meanwhile the exercise in obtaining
15 consent could be ongoing, and we might make some progress.
16 MR. NICHOLLS: I think, Your Honour, just to speaking from what
17 you've said and what my friends have said, if there is a method where
18 it's logistically possible for them to provide information that avoids
19 any problem of duplication and doesn't identify persons or in any way
20 come close to a consent form, I don't see any problem with that.
21 JUDGE BONOMY: But it would -- the purpose wouldn't be to avoid
22 any duplication it would be to establish whether there is any
24 MR. NICHOLLS: That's what I'm -- to avoid that problem is what I
25 meant to say, sorry.
1 JUDGE BONOMY: Okay. Now, if we have reached a suitable stage in
2 the discussion where it appears we've resolved the issue of, as far as we
3 can as lay people, of trying to identify a way of disclosing the
4 necessary material without revealing identities then perhaps now is the
5 time to hear your shortened version of what Dr. Dunjic has written.
6 MS. UERTZ-RETZLAFF: Can I ask one question. To me it's not
7 clear why there should be -- why you should -- how you should find
8 duplications. If you have a database where you have 5.000 people
9 identified, 5.000 victims identified, how can there be a duplication? If
10 you check random examples of 300 or whatever number, and you find these
11 procedures correct as they were applied, I can't really see how checking
12 the entire database to find duplication ever come up.
13 MR. SLADOJEVIC: First of all, if we find that the procedure is
14 accurate then that will be probably our position, but the point is in
15 addition to establishing the identities of persons, I understand that by
16 the way of DNA analysis, you can also establish the time of that. It was
17 suggested to us by our experts. So in addition to identification and
18 making sure there are no duplications in the identification process, then
19 you can also establish the time of that which is also very important,
20 whether it happened in 1992, 1993, 1994, during Srebrenica incidents or
22 JUDGE BONOMY: I think there have also in the Tribunal been
23 examples of fairly closely related family members being identified by
24 DNA, but there being uncertainty about who was there, and yet there have
25 been duplicate and triplicate identifications of people. It is a
1 possibility. I'm not suggesting that that is necessarily the issue here.
2 But for present purposes, I'm prepared to accept that the Defence experts
3 have a genuine concern to establish something that would either reassure
4 them or give them a basis for further investigation, and it seems to me
5 that we are beginning to get to a point where can be done within
6 realistic period of time and extent of time, which is the issue that
7 obviously concerns those who provide the funds.
8 MR. NICHOLLS: May I ask one related question, Your Honour.
9 JUDGE BONOMY: Yes, Mr. Nicholls.
10 MR. NICHOLLS: If Dr.
11 now, how long would that take? How long would he need to analyse those
12 300 and come up with his results?
13 MR. SLADOJEVIC: I believe, if not mistaken, that we requested
14 450 hours or 300 hours for Mr. Stojkovic. Do you remember that,
15 Ms. Reinhardt?
16 MS. REINHARDT: Yes, you have requested 150 to 300 hours for
17 Mr. Stojkovic and about 800 hours for Mr. Dunjic at the time.
18 JUDGE BONOMY: I don't propose to go anywhere on this particular
19 subject with OLAD because it's impossible to say anything definite about
20 the issue on the material that we've been discussing. That may change
21 depending on what emerges from your initial exploration of the data,
22 which I hope you now get. So let's lay that aside and let's move to the
23 Dunjic issue and can I hear from you the abbreviated form of the letter.
24 MR. SLADOJEVIC: Unfortunately, Lord Bonomy, we already found
25 ourselves in the vicious circle because of the hours necessary but we
1 will come to that point.
2 JUDGE BONOMY: Yeah, but you are not going to be able to put
3 forward a sustainable argument about hours unless you start doing some
4 work and demonstrate something solid to justify not just exceptional but
5 highly exceptional measure that you are requesting.
6 MR. SLADOJEVIC: May I read it in Serbian language so the
7 interpreters can translate it.
8 JUDGE BONOMY: Yes.
9 MR. SLADOJEVIC: I'll try to be as short as possible.
10 [Interpretation] Over the last four years I have been working in
11 processing the various locations relating to Srebrenica in the case of
12 Vujadin Popovic and the rest. We --
13 JUDGE BONOMY: Mr. -- just hold on, you'll be able to read it
14 much more quickly if there's a copy you can give to the interpreter. But
15 even then you have to allow for the problem of probably technical
16 language in there. And please continue.
17 MR. SLADOJEVIC: On the reports, the reports of the Prosecution
18 experts, Richard Wright; Fredy Peccerelli; Christopher Lawrence; Haglund,
19 William; John Clark; and Jose Pablo Baraybar represent collective reports
20 of the localities with comments of their findings. In order to evaluate
21 and comments their reports, I had to look at the autopsy reports related
22 to the sites in question. In that way, I analysed their collective
23 reports and their specific conclusions, primarily that of Haglund, Clark,
24 and Baraybar, and I made numerous objections or remarks. And I indicated
25 the inconsistencies between the general conclusions and the autopsy
1 reports, especially in terms of the cause of death and the mechanism of
2 injury, the localities of Sandici and Potocari and Vesinje [as
3 interpreted] were processed by the local pathologist of the Federation of
4 Bosnia and Herzegovina with the supervision of the ICTY. In the analysis
5 of their reports, I found numerous failings and inconsistencies between
6 the findings and the conclusions on the cause of death.
7 The reason for the inconsistency between the pathology reports
8 and the concluded cause of death of the pathologists who did the
9 autopsies and the main pathologists who made the collective report in
10 their expert reports, I also said that the reason for this is in the data
11 by Haglund on page 11 of his reports for task of June 15th, 1998. The
12 autopsy of the victims began on the 31st of July, 1996, and lasted until
13 the 22nd of August, 1996. The autopsies were carried out in temporary
14 morgues in the war damaged factory of -- textile factory in the outskirts
15 of Kalesija. The autopsies were conducted under the supervision of Dr.
16 Robert Kirschner, the director of international forensic programme of the
17 organisation, Doctors for Human Rights.
18 In the establishment of their final conclusion on the cause and
19 matter of death, as well as in the editing of the final version of the
20 autopsy reports, the legal advisor of ICTY, Peter McCloskey, assisted a
21 summary of the pathological findings was written by Dr. Page Hudson
22 [phoen]. Last year, Dr. Dunjic presented to the Court, and Mr. McCloskey
23 objected quite dramatically to this. The problem presented and noted by
24 Mr. Dunjic was that in the lists of the ICMP and the International Red
25 Cross persons as missing throughout that whole report in relation to
1 Srebrenica, names of persons are mentioned who were exhumed at specific
2 locations and for whom there is evidence that they died before the 11th
3 of July, 1995, and some of them substantially after the 1st of October,
4 1995. According to information from the cited documents, it arises that
5 the victims of genocide in Srebrenica among those are also identified
6 remains of individuals who disappeared in 1993, and those who disappeared
7 after 30th of July, 1995.
8 In the case file of the Prosecution of the cantonal court in
10 contained bodies that had nothing to do with the fall of Srebrenica.
11 Thirty-nine bodies were found there. In relation to this, it is
12 important to analyse two documents, the first one is the report by
13 Mr. Janc, and the second one is a list, ERN 0663290, examples of
14 identified persons from the list of the Prosecution and the database of
15 the B & H Army only for cases of those killed and missing soldiers before
16 July 1995, which was given by Mr. Geoffrey Nice. There is a correction
17 by the ICTY which is -- has to do --
18 THE INTERPRETER: I am afraid we are finding it a little bit
19 difficult because you are not reading in order, so we cannot exactly --
20 and it's very fast. Yes, but we need to know where you are reading from.
21 JUDGE BONOMY: Can you assist by when you move, missing out
22 something, just indicate so that the interpreter can find the part.
23 MR. SLADOJEVIC: I will do so. Apologies to the interpreters
24 [Interpretation] We are now on page 3 paragraphs 2 and 3:
25 Dusan Janc, investigator of the Prosecution made a clarification
1 in order to correct identification that refers to Kravica and Branjevo as
2 locations of executions and identified persons at those places of
3 execution. As far as the executions in Kravica, at the moment all
4 identified persons a total of 1.319 cannot be linked with this place of
5 execution. The conclusion is based on different sources including expert
6 report, documents, statement by witnesses and their testimony.
7 And then on the same page under B:
8 Examples of identified persons from the list of the Prosecution
9 and the database of the B & H Army where a specific number of persons are
10 referred to for which the Army of the B & H and the command says were
11 killed in 1992, 1993, and 1994 as cases of members of the B & H Army who
12 were killed up to July 1995 and whose remains were found and identified
13 in various graves which are then referred to.
14 On page 4:
15 In the cited report and all the reports of the ICMP, the
16 International Red Cross and the institute for missing persons
17 investigated so far, different dates are given for death of the same
18 identified person. Dr. Dunjic doesn't know how this was established. In
19 the mentioned list, a large number of persons from the list of the B & H
20 Army, there are two different dates of death for a large number of
21 persons and they are very different. This difference can and must be
22 established by looking at the autopsy reports and the forensic expert
24 The document provided by the command of the B & H Army also
25 contains these discrepancies, so the question is: What is the exact date
1 of death and based on what information it is established? It is possible
2 to responds to this question only on the basis of forensic findings of
3 the found remains, the state of the bodies, the decomposition of the
4 bodies found, and the skeletal remains, and compare that with the
5 documents and statements of other people.
6 And as far as the Sandici and Potocari locations are concerned,
7 it has been established that there is a different degree of
8 putrification, changes, and skeletisation, partial or complete
9 mummification in bodies, which indicates the conclusion that these are
10 cases of bodies buried at different times. For all the above, I believe
11 that we need to insist on an analysis of specific locations, specifically
12 those from Eastern Bosnia. The aim of the forensic analysis was to
13 compare the methodology of the autopsies after 2002, used by experts of
14 the ICTY, their findings, and also to carry out an analysis of the age of
15 the bodies and compare that with the age of the bodies on which the
16 Tribunal investigators worked until 2001.
17 The age of the bodies, the change, in an indirect way indicates
18 that certain mass graves were filled on several locations and not all
19 bodies from the mass graves are linked with the events in Srebrenica.
20 For this analysis we need to check their identification, the DNA
21 identification, because you can also establish the time of death by
22 looking at the lists of those identified.
23 The third thing that I am suggesting actually one of the
24 conclusion that I had in analysing previous locations that refers to the
25 mechanism of injury is that there is no in-depth analysis of the injuries
1 and possible manner of injury, and this is important because in the
2 compiled reports of the experts of the Prosecution, a large number of
3 bodies found indirectly indicate that they had been shot or that they
4 were executed from the autopsy findings. This is impossible to establish
5 in the largest number of cases so that it can only be assumed how the
6 persons died.
7 This also offers ample opportunity for manipulation. For a
8 certain number of cases, from all localities, I have established that
9 they could have been killed in direct fighting. The injuries from
10 shells, projectiles of large calibre and of great force, PAMs, Zoljas,
11 and so on were numerous in various localities, and this can also be
12 checked from witness statements from many parts in various periods.
13 On page 7, Dr. Dunjic also says that:
14 There is a description of events of July 1995, the manner that
15 brigades of the BH Army were formed in Srebrenica, the participation of
16 witnesses in them, their breakthroughs through Republika Srpska army
17 formations, their capturing, as well as the description of the conflicts
18 and the death of a large number of people in this period. A joint
19 conclusion which can be concluded from all of the above are following and
20 this can be very useful: One, a lot of the victims were killed in direct
21 battles; two, the localities, the victims were killed in various
22 localities around Srebrenica; three, most men were members of the BH
23 Army; four, the wounding and killing was performed by various artillery
25 THE INTERPRETER: Could Mr. Sladojevic please slow down. I'm
1 still at number 4.
2 JUDGE BONOMY: Could you go back to number four and just read a
3 bit more slowly again, Mr. Sladojevic, please.
4 MR. SLADOJEVIC: I will did so.
5 [Interpretation] Four, the wounding and killing was inflicted by
6 various artillery pieces; five, some bodies of the victims had already
7 been skeletonised in that period; six, women, children, and elderly were
8 evacuated from Srebrenica before the conflict; seven, a certain number of
9 BH Army soldiers was captured; eight, some captured individuals died in
10 camps as a result of previous wounding or famine; nine, some prisoners
11 were tied up and later questioned; and ten, many of the captured soldiers
12 were physically and psychologically abused.
13 The witness statements also offer a number of issue that can be
14 analysed, concluded based on the analysis of autopsy reports: The time
15 of death, the manner of death, whether all the killings were -- all the
16 deaths were in the same location or not, which can also be determined on
17 the base of their wounding, among other things. Whether among the
18 victims there were also those who had died in any manner before or after
19 the critical period between the 11th and 19th July, 1995, and in order to
20 answer all these questions, it is necessary to compare autopsy reports
21 and DNA analysis of all of the identified individuals from this area.
22 In the Popovic case, there were -- there is a list of folders
23 that were never analysed because not enough time was assigned for this,
24 and he insisted he needs additional time, and also information that could
25 be found in various other DVDs which were subsequently provided to him by
1 us. And soon we will come to his opinion on page 8, paragraph -- the
2 last paragraph. Dr. Dunjic mentions that there are inconsistencies in
3 the aggregate reports of these experts of the Prosecution, and that these
4 inconsistencies can only be established on the basis of an analysis of
5 the aggregate reports and autopsy reports on which they were founded.
6 These inconsistencies were -- I point out in my expertise of the expert
7 reports of the Prosecution, however, on the basis of the documents that
8 we provided to him, I have pointed out some localities in Eastern Bosnia
9 which were analysed by experts and commissions of the Federation of BH,
10 and we believe that this might be significant to re-analyse these because
11 from these documents we can see further inconsistencies in the findings
12 and the conclusions as to the cause of death.
13 In addition, the changes on the bodies that are mentioned in the
14 reports point to the different times of death and burying, and I felt
15 that the additional hour that is I would be -- that the hour that is I
16 was given for or granted to report this were insufficient and I would
17 need an additional 120 hours which would be a minimum in order to analyse
18 the autopsy reports and the exhumation reports and the following
19 documentation. At the end of his letter, Dr. Dunjic also offers his own
20 opinion, which consists of several portions. Under one, he discusses the
21 cause of death saying that the cause of death on decomposed bodies cannot
22 be established with certainty and it can be -- they can be understood
23 only very conditionally. And all pathologists and even anthropologists
24 are decisive in their conclusions regarding the perimortem injuries and
25 the injuries that were -- that came about after their death. Generally
1 speaking, in their joint reports there are two major issues. First of
2 all they all speak of in life changes, in manners that point to the fact
3 that it is impossible to determine the cause of death on skeletonised
4 bodies after their death. All the experts, forensic experts, adopt the
5 assumption, and I reiterate, the assumption that these injuries by
6 fire-arms were inflicted during their life. In their reports, all these
7 experts say that this is a doctrine that is accepted, however this
8 doctrine is not accepted by this profession. However, in addition to
9 these data and the data provided by Mr. Haglund, based on autopsy reports
10 of victims which started on 31st July and went on until August 22nd, he
11 said that all these deaths were inflicted in the area of Kalesija and he
12 also says that in doing these reports, and examinations, he was assisted
13 by a Prosecutor, Mr. McCloskey. This is unacceptable as far as the
14 profession is concerned.
15 In addition, the injuries that were determined to have been done
16 by a blunt instrument and which are considered to have been inflicted
17 while the victim is alive, is not something that is taken as a position
18 on which to base their conclusion that such injuries were actually
19 inflicted after death.
20 It is impossible to determine whether such injuries were actually
21 inflicted during battle or in some other manner.
22 THE INTERPRETER: Could Mr. Sladojevic please slow down a little
24 JUDGE BONOMY: Mr. Sladojevic, another request to slow down,
1 MR. SLADOJEVIC: Sorry, I apologise.
2 JUDGE BONOMY: Where are we, can we go back to a suitable --
3 THE INTERPRETER: Pilica.
4 MR. SLADOJEVIC: [Interpretation] The additional injuries,
5 gun-shot wounds to the heads of a number of victims, point to a
6 conclusion that fire was opened from immediate or absolute vicinity.
7 Such a conclusion does not comply with the forensic doctrine and autopsy
8 reports because it is impossible to establish, among others, the sequence
9 of the injuries in addition to the fact that these were decomposed
10 bodies. And I consider that it would be very useful if the doctors who
11 performed the autopsies and prepared these aggregate reports used the
12 international classifications of injuries and wounds as mentioned below
13 and then I will skip this part, but he also says that:
14 I also consider that it is necessary, before the Court, to
15 determine the consequences under which the death was inflicted. In order
16 to be of assistance to the Court, the doctors could determine precise and
17 complete reports and prepare precise and complete reports for every
18 individual and only then would it be possible to establish facts for a
19 group of individuals from a certain location either exhumed or on whom
20 the autopsy was performed.
21 This is precisely the reason why I insist that it is necessary to
22 examine each body and each body part to determine the entries. In his
23 report, Dr. Lawrence among other things, says the following: There were
24 many skull injuries, rib injuries, and hip injuries which were
25 deliberately inflicted after death in order to obscure the injuries to
1 those parts of the bodies which were inflicted while the victim was
2 alive. The intent is something that is to be determined by a Court in
3 any legal system. However, as an expert who provides a report, this
4 person is not professionally -- is not professional enough to provide
5 this kind of opinion and to discuss intent.
6 Under item 14 of the same document it says that:
7 In the case of six bodies, the cause of death was impossible to
8 determine, and the conclusion was that they were probably -- they
9 probably had perforating wounds of soft tissues which were inflicted by a
10 fire-arm. However, it is impossible to determine that or see that
11 because there was loss of soft tissues due to decomposition changes.
12 This type of opinion is not based on the professional standards and it
13 can cause significant damage to the -- to the work that they produce.
14 There is not a single report, a single full report for one
15 particular locality that would encompass all the cases beginning with the
16 description of the location, the transport, the traces, exhumations,
17 photo documents, and identification. Opinion number 3 relates to the
18 mechanism of injuries which was not established, and there was no
19 in-depth analysis of the injuries and the possible ways that they were
20 inflicted. Based on the autopsy reports provided, it is impossible to
21 determine this in most of the cases so that we can only assume the manner
22 of death of the individuals.
23 In addition to shells and large calibre projectiles, and similar,
24 which can be found in numerous localities, it can be concluded with some
25 truthfulness that a large number of deaths, the autopsied bodies were
1 actually killed during combat in the period mentioned above. The joint
2 conclusions are the following: First, a large number of the victims died
3 in combat; number two, the victims around numerous locations were found
4 around Srebrenica; three, most men were members of the BH Army; four,
5 there were wounded by various and killed by various artillery assets;
6 five, some bodies were already skeletonised in the period, in review;
7 six, women, children, and elderly persons had been evacuated from
8 Srebrenica before the conflict; seven, a certain number of BH Army
9 soldiers were captured; eight, some individuals died in camps --
10 JUDGE BONOMY: Sladojevic, it's repetition now, is there anything
11 else of substance to be added?
12 MR. SLADOJEVIC: There is. We are approaching the end.
13 [Interpretation] The fourth opinion put forth by Dr. Dunjic is
15 Based on the review of the work of the pathologists, we can
16 conclude that in the case of Nova Kasaba, Ravnice, and Zeleni Jadar as
17 well as Pilica their work was very shoddy. They did not produce autopsy
18 reports that could later be analysed and surveilled so that relevant
19 information could be drawn from them. In their conclusions, they
20 proceeded from assumptions that all the injuries were inflicted
21 perimortem, which means during the life of the victim.
22 JUDGE BONOMY: I've heard enough for today's purposes. I'm
23 beginning to suspect that this might even be a way of reading some of the
24 Defence case into a document which is going to be made public and that's
25 not the purpose of today's hearing. The meeting today is to look at ways
1 of resolving issues. Now, you've advanced a number of arguments by
2 Dr. Dunjic. I'm not clear if he is the only person whose opinion is
3 being expressed there, because at one stage you talked about joint
4 conclusions. Are we confine -- is this letter confined to his own
6 MR. SLADOJEVIC: This is only for his own [indiscernible].
7 JUDGE BONOMY: Now, is there any other specific additional
8 argument to be made because you'll appreciate many of these points relate
9 to evidence which is available whether you do a DNA analysis or a
10 postmortem analysis, and the post mortem analysis is perhaps an
11 additional confirmation; but there already is, according to him, evidence
12 to support the points that he is making without further expert
13 examination. Now, is there any other point beyond that to be made.
14 MR. SLADOJEVIC: I can only summarise the point Mr. Dunjic is
15 making which is that [Interpretation] This is page 15 now of the letter
16 and it is somewhere in the middle of the page where it begins:
17 However, from all the analysed cases, it's not possible to
18 establish the precise cause of death because of skeletonisation and
19 putrefaction, it's not possible to establish the time of death or the
20 mechanism of injury because the given descriptions in the autopsy
21 findings do not correspond to the collective report by Mr. Haglund which
22 he gave, especially to his comments and interpretation, Nova Kasaba and
23 Pilica. Certain number of injuries at all the locations of Nova Kasaba,
24 Pilica, Zeleni Jadar and Ravnice indicates that it's possible that
25 individuals were injured in combat. There were statements by witnesses
1 and in order to establish the cause of death of from other locations and
2 based on 3.221 cases, I need to be allowed additional work time of 500
3 hours. Sincerely yours, Mr. Dunjic.
4 [In English] Especially bearing in mind the Prosecution had 15
5 years at its disposal to make the same conclusions. Thank you.
6 JUDGE BONOMY: Now, your last point from the letter about the
7 hours is obviously a crucial part of this. In an earlier part of that
8 letter there was reference to an additional 120 hours. What is the
9 relationship between these two figures?
10 MR. SLADOJEVIC: The OLAD has authorised so far 120 additional
11 hours for our forensic expert, for the handwriting expert for
12 Mr. Stojkovic and for Mr. Dunjic. And it was basically left up to us to
13 decide how we are going to allocate those hours and we decided that since
14 Dr. Dunjic is dealing with six OTP experts that he should take all 120
15 hours because the amount of material that he needs to go through is very
16 voluminous. Whereas, since we are still in the process of obtaining
17 documents from the ICMP, there is not much that Dr. Stojkovic can do
18 until we received documents from the ICMP, so he can start his analysis
19 as well. But the main problem is that Dr. Stojkovic will not be able to
20 start the analysis until he has been authorised additional hours to
21 perform the analysis that he needs to do. And that's why we say we are
22 in the vicious circle.
23 JUDGE BONOMY: Are lawyers the only professionals in the world
24 who work pro bono.
25 MR. SLADOJEVIC: Sorry, do we need to comment on that?
1 JUDGE BONOMY: Was that letter -- is that letter addressed to
3 MR. SLADOJEVIC: That was written for the purpose of this meeting
4 so that the Trial Chamber and the Prosecution and the OLAD gets the
5 overall picture of the problem that we would like to analysis as well to
6 do and to perform. That is basically our duty. But we would like also
7 to hear from the OLAD because we simply fail to understand the -- it was
8 suggested by the OLAD that we should do a certain kind of analysis and
9 that we will be allowed later to perform a more detailed analysis, but we
10 fail to understand why don't we just resolve this matter while it's now
11 on the agenda? We could resolve everything now and then there is no need
12 later to ask for additional hours for expertise, et cetera, because it's
13 already on the agenda. We didn't want to do this analysis in the first
14 place. It was the idea of the Prosecution. We need to respond, and we
15 need to respond adequately and properly. And we don't believe that OLAD
16 is in a position to know better what our expert needs to do. And as I
17 said, Dr. Dunjic never suggested that he would examine the entirety of
18 the role information underlying the reports, but as you said four or five
19 months of full-time work or approximately two so many Euros, we are
20 trying to find a solution, but it's very hard when the Prosecution
21 tendered a very voluminous material that we need to go through. There is
22 no reason that we should just run a superficial analysis and then only to
23 later run another analysis which would be thorough analysis. I fail to
24 understand why don't we just resolve this issue now while it's being on
25 the agenda.
1 JUDGE BONOMY: But do I correctly understand that what he has in
2 mind is analysing every postmortem report.
3 MR. SLADOJEVIC: No, he doesn't, because that's physically not
4 possible. So he suggested that within those 120 hours currently
5 authorised that he would analyse 30 to 40 per cent of the material
6 disclosed randomly selected by him in order to come to certain
7 conclusions. But the main problem with the hours authorised is that our
8 experts are not in a position to give us any opinion because in order to
9 give us an opinion, they need to have additional necessary hours to
10 perform analysis. Once they perform analysis they will come up with an
12 JUDGE BONOMY: I am sorry, I haven't understood that correctly.
13 You are saying that he suggested using 120 additional hours to review 30
14 to 40 per cent of the postmortem materials; is that --
15 MR. SLADOJEVIC: That's been disclosed to us in the past month.
16 JUDGE BONOMY: Yes. Now, can I take it then that the 500 hours
17 was with a view to analysing every postmortem report?
18 MR. SLADOJEVIC: I don't believe that he meant the entire raw
19 material database, but in relation to also to other -- basically to all
20 the grave sites in Eastern Bosnia. That's what I understood.
21 JUDGE BONOMY: Now, he still has these 120 hours in hand, does
22 he? He hasn't used them yet.
23 MR. SLADOJEVIC: He used around 30 hours because he needed to go
24 through the material in order to write this kind of a --
25 JUDGE BONOMY: Was that not an earlier 30 hours --
1 MR. SLADOJEVIC: No.
2 JUDGE BONOMY: Part of this 120. But he is saying to you that he
3 can carry out a review of 30 to 40 per cent on the 120 hour basis; is
4 that --
5 MR. SLADOJEVIC: Yes, he will probably be able to produce an
6 opinion by mid-September or towards the end of September.
7 JUDGE BONOMY: And that will be based on establishing or
8 confirming some of the points he has made in that list of criticisms of
9 the OTP material.
10 MR. SLADOJEVIC: Yes indeed. Yes, indeed.
11 JUDGE BONOMY: Don't you think that's adequate for the purposes
12 of the preparing to deal with the Prosecution case?
13 MR. SLADOJEVIC: I believe it's up to Dr. Karadzic to answer your
15 JUDGE BONOMY: You are quite right, it's not a question for you,
16 I agree.
17 MR. SLADOJEVIC: Merely I can say that my understanding is that
18 we could -- maybe we could -- it is important to establish the causes, et
19 cetera, of that because in the end it is -- it directly relates to the
20 qualification of the crime committed -- allegedly crime commited in
21 Srebrenica, whether it was a genocide or war crime against war prisoners,
22 et cetera, but it's really up to Dr. Karadzic.
23 JUDGE BONOMY: Dr. Karadzic.
24 MR. KARADZIC: [Interpretation] Your Lordship, with all due
25 respect to all present at this meeting I have the impression that Defence
1 cases do not bear the same weight and the conviction if as when something
2 it missed from the Prosecution case, this is not done in a convincing
3 way, that some allegations do not stand. So I hear of the idea that we
4 need to establish the complete accuracy of the Prosecution case and then
5 our job in the Defence would be much easier.
6 What we have here is a false picture where the number of
7 illegally killed has been magnified or augmented by ten. In Bosnia
8 they are talking about 10.000 victims even 20.000 victims, so leaving
9 aside the fact that any illegal death does not go to the credit of
10 anyone, and those persons should be held responsible before the law, and
11 this is up to us, not to our opponents. But in order for this area to
12 have a future, for purposes of the future of Balkans and as whole and the
13 future of Europe
14 happened. And in the Defence case, this will not be possible if we fail
15 to look at this massive date which are going to be presented, and we have
16 to provide our counterevidence and convincing arguments in the face of
17 such a vast amount of detail that would be provided by the Prosecution.
18 Already we are in the position, and we can see that we will be in the
19 position to be able to present completely to the Chamber of how what has
20 been presented to it so far actually looks like in the light of what
21 actually happened.
22 JUDGE BONOMY: You will find though that in the course of the
23 Prosecution case a realistic cross-examination is going to be selective.
24 It's going to prioritise, and its going to take examples of the type that
25 are set out in Dr. Dunjic's letter. And its going to rely on the
1 inconsistency between other evidence about death of people and what is
2 said in the reports and so on. The cross-examination in the Prosecution
3 case is not going to go through every one of these deaths and analyse it
4 with each expert witness.
5 So the issue for OLAD isn't quite the one that you are
6 identifying at the moment. Maybe by the end of the case the issue is the
7 one that you've just identified, but at this stage it may not be. And
8 that is traditionally been the way that things have operate here, that
9 there's been an allocation of expert hours to enable you to deal
10 adequately with the Prosecution case and then other allocation to deal
11 preparation of any report that is follow. And obviously the success you
12 have with the Prosecution case may have a significant bearing on the
13 allocation of the hours, if you still seek additional hours at that
14 stage, for the provision of your final report for the presentation of
15 your own Defence case.
16 Now, I understand your anxiety about trying to do it all now, and
17 I understand that you may well have an argument that that is a more
18 efficient way of doing it, but the question is who is to determine that,
19 and I think in the first instance it's a matter for OLAD to assess and
20 decide whether the right way to deal with this is the traditional way or
21 whether you've said enough to justify and even further exceptional
23 You've presented a very full statement and account of the
24 position. I think that letter should be translated as quickly as
25 possible by -- and I don't know who is going to undertake that offhand
1 but it should be done as quickly as possible and then communicated to
2 OLAD along with whatever covering letter you wish to submit. But I
3 suggest, Dr. Karadzic, that you do give thought to whether non-compromise
4 of any kind is the answer to this particular issue. And whether
5 Dr. Dunjic cannot do a perfectly adequate job for present purposes on the
6 basis of the hours already allocated and the arguments that he has
7 presented with an analysis of 30 to 40 per cent of the postmortem
9 Anyway, that's a matter for the parties to think about. Yes.
10 MR. KARADZIC: [Interpretation] I didn't understand that what I
11 was saying referred only to OLAD. What I wanted to emphasise was that
12 Dunjic is working on the evidence of six Prosecution experts. So he
13 needs to do that with his associates. It's not possible for him to do
15 On the other hand, what I wanted to say is that OLAD, well, I
16 believe that I am very cooperative out of respect for all the people
17 involved, and OLAD would need to be sensitive about the importance of the
18 whole case, and never mind equality of arms. The six OTP experts had the
19 time and the hour that is they had, so we need to establish an adequate
20 proportion of time for the Defence experts for them to come out something
21 that will actually be a true opposition of arguments or confrontation of
22 arguments, not something that is just superficial.
23 JUDGE BONOMY: They were, of course, doing a rather different job
24 from the one that arises now. It's one of the features of this Tribunal
25 and some might be critical of it, that it is essentially adversarial in
1 nature. However, experts truly doing the job that they are professional
2 expertise is dedicated to are not protagonists of one side or the other,
3 unless some attack -- unless some attack can be made on their
4 impartiality as experts, then they can be viewed as independent
5 professionals carrying out an exercise for which their own self-respect
6 as professional experts is answerable.
7 Now, there has been -- well, there have been and are experts who
8 are engaged by the Prosecution. They may be engaged in different ways,
9 but the professionals we are talking about in the scientific arena are on
10 the face of it, of what we read, independent experts doing a job as part
11 of an international effort to investigate these events. So it would be
12 wrong to look at every element of this as a adversarial presentation.
13 That is not to say the Prosecution might not tend to put their own
14 interpretation and gloss, the best one that they can perhaps present in
15 support of their case on the material, but when we are looking, as we are
16 at the moment, on the basic -- at the basic material itself, before I
17 would be prepared to view an expert as other than working impartially in
18 the interest of justice, I would have to see some basis for doing so.
19 So what I'm more concerned about in the light of all that's been
20 said today is the indication given by Professor Dunjic that he sees bases
21 for criticising the way in which the job has been done, the results that
22 have been achieved, and the interpretation of these results. And he is
23 not suggesting that people have been doing this in a biased and partial
24 way. He is suggesting that it's not perhaps the way it ought to have
25 been done and that he, as an expert, takes a different view. Well,
1 that's legitimate position to be taken, even in your legal system, I
2 think, where the expert would essentially be a court-engaged expert. But
3 there may be circumstances in which he can be challenged. And that's the
4 sort of area that, it seems to me, is in issue here.
5 Now, that doesn't mean that you go back to square one and do the
6 job completely again. It means that you dip sample the work of the
7 experts. You demonstrate legitimate criticisms, then you try to justify
8 on the basis of that, securing, if necessary, more hours to complete the
9 job. But it seems to me that OLAD's exceptional allocation in this case
10 has given you a pretty good basis for carrying out a fair assessment of a
11 large proportion of the postmortem material.
12 I can see circumstances in which that could lead to you
13 presenting an argument for yet more, but whether Dr. Dunjic needs to
14 insist on a complete analysis of all the material, I think it's
16 Now, I am expressing only my own personal reaction here with a
17 view to encouraging you with OLAD to reach an agreement that will allow
18 you sufficient scope to deal with the 92 bis motion if you wish to say
19 any more on it, and to challenge -- prepare to challenge the Prosecution
20 case, on the understanding that his final report will be prepared on the
21 basis of a further allocation at the time of the Defence case.
22 MR. SLADOJEVIC: If I may, we are very anxious that should we
23 fail in conducting a proper analysis of the OTP proposed or preferred
24 forensic expert evidence, that there is a possibility at least that the
25 Trial Chamber will accept the reports, and that we will not get the
1 opportunity to cross-examine the experts, and then it will have to deal
2 with it later in our Defence case, which is completely different from our
3 proposition that we are entitled to cross-examine or Dr. Karadzic. And
4 in order to do that, we have to convince the Trial Chamber that we are
5 entitled to do so. And in order to be able to convince the Trial Chamber
6 that we are entitled to do so, we need to perform a thorough analysis and
7 come up with strong arguments.
8 JUDGE BONOMY: You may find that there would be some value for
9 the Chamber in you making a submission based on the letter which you've
10 read out today and selecting the appropriate elements that are
11 demonstrated in that, as long as you've got a material basis to support
12 what Dunjic is saying. He is giving you conclusions without telling you
13 the precise source of his conclusions, at least in some instances. And
14 it may be that you need to supplement what is in that as part of your
15 submission. But that is obviously material which you can use to support
16 an argument that Dr. Karadzic should be entitled to cross-examine these
18 As I said earlier, I've abandoned hope of reaching agreement on
19 this area, and it would be silly, I think, to try to press that any
21 Now, the Prosecution have been silent because we haven't really
22 given them a chance to say anything recently, but maybe there is nothing
23 to be added.
24 MS. UERTZ-RETZLAFF: The only -- my only observation would be
25 having heard now what Dr. Dunjic is writing, you are actually already in
1 a position to make a response to the 92 bis evidence of some of the
2 experts that he refers to, and I would say you have made the points that
3 would actually lead to cross-examination. So that's all I can say. So
4 he needs only 30 hours basically to solve the question that -- which is
5 currently on the table.
6 JUDGE BONOMY: And just for the avoidance of any doubt, we've
7 been talking about these 120 hours, but I think -- is that the additional
8 allocation that applies to all three witnesses?
9 MS. REINHARDT: If I may just very quickly explain that. We have
10 already on one hand we have doubled the pre-trial allotment to 300 hours
11 all together for all the experts that we are going to assign in the
12 pre-trial phase, which is more than the three. For mainly in order to
13 prepare reports because that's what usually is done. That's what we can
14 do under our remuneration scheme is to allocate hours for the production
15 of expert reports. Usually we wouldn't even be in a position to allocate
16 money for the review of material for experts without the outcome of a
17 report afterwards. So in this case, we have in addition to these 300
18 hours allocated another 120 hours for these three experts which also
19 included Lacroix at the time, but mainly Dunjic and Stojkovic to go
20 through the materials and basically come up with what is in this letter.
21 That was our understanding at the time that for now they just needed to
22 respond to the OTP motion and indicate whether cross-examination is
23 necessary in the point of view of the Defence or not.
24 And in our opinion, that was basically what we thought was the
25 purpose of these 120 hours. That doesn't mean that if it comes out, as
1 already obviously did for Mr. Dunjic, that there needs to be further
2 challenge of the OTP experts and that he might actually want to come up
3 with a report, he obviously can use some of the 300 hour that are still
4 in the pot, and as we have already talked with Mr. Robinson, I
5 understand, we also offered the possibility to take hours from the
6 allotment for the trial phase, which is, again, two times 150 hour, 150
7 for OTP phase and 150 for the Defence phase to be able to pull that
8 forward basically to the pre-trial phase. If the argument the Defence is
9 we don't want to wait until the Defence phase to come out with reports on
10 other own behalf but we want to do it all now, we offered the possibility
11 to do that, but I understand that that was actually not accepted by the
12 Defence team and they said they don't want to do this.
13 JUDGE BONOMY: Well, that's something obviously that Dr. Karadzic
14 can think about again, but what is emerging from this is that you have
15 the best -- most of your more or less 100 hours on hand in this
16 particular area, but you've got three experts that that relates to. If
17 you use them all on Dunjic, obviously you may suffer consequences in
18 relation to the others, but it doesn't sound as though you really do need
19 to use all of these hours on Dunjic. I agree with you that Dunjic should
20 do more and do some analysis of a significant proportion of the
21 postmortem report toss back up the points he is making so that he is
22 presenting Dr. Karadzic with a report which will give him a sound basis
23 for cross-examining the Prosecution experts in the Prosecution phase of
24 the case. But it may be that you are able to keep and reserve all that
25 may be available to you for the Defence phase because you may want to
1 work on presentation of a case using the lessons that are learned from
2 the success or otherwise of the cross-examination. That's a question of
3 judgement. If you don't want to do that, if you want to make use of all
4 the hours now, then the offer is being made that some of these, at least,
5 can be advanced to this stage and used at this stage of the case. If you
6 feel that would enable you then to make a better presentation in
7 challenging the OTP and then in also presenting your Defence case, then
8 that's a matter for your judgement.
9 Mr. Karadzic.
10 MR. KARADZIC: [Interpretation] Your Lordship, before the
11 Prosecution case, my primary concern is that maybe because of an
12 insufficient number of hours that we are allocated, we will fail to be
13 persuasive enough before the Trial Chamber. If that should happen, that
14 error is incorrigible later on because I cannot really claim that the
15 Trial Chamber has reached a decision without proper, without due
16 examination, if I fail to present sufficient evidence for them to make
17 another decision.
18 Now, further, we need to actually clarify and point out and
19 highlight the arguments that the Prosecution is offering. So I need to
20 have a sufficient number of hours in order to actually persuade the
21 Trial Chamber to rule in my favour, to security my right to
23 JUDGE BONOMY: Well, I think we've exhausted this particular
24 subject. As I indicated at the beginning, it's not for me to make
25 decisions on this, I can only try to facilitate agreement that's going to
1 enable everyone to have a fair opportunity to present their respective
3 MS. UERTZ-RETZLAFF: Perhaps one point, we would appreciate if
4 the decision on the 92 bis motion for the expert would be postponed to a
5 later date until everything is ready, and I also can say that the
6 Srebrenica part of the case will definitely not -- will definitely be at
7 the end of the Prosecution case, so there's no need to have it all ready
8 by the beginning of the trial.
9 JUDGE BONOMY: I'm not inclined to postpone the decision on this
10 at my own hand. If it was left to me, I would want this decision made
11 fairly soon, partly for the reasons that Dr. Karadzic himself has
12 advanced, that it will be of assistance to know the position. It's,
13 what, another two weeks before this response is due. I think the
14 response should come in. The Trial Chamber will be alerted to what
15 you've said and we'll consider whether the decision ought to be made
16 then. I will write a brief note summarising this discussion so that
17 emphasis is placed on the most important parts of this discussion, and it
18 will then be for the Trial Chamber at the appropriate stage, which could
19 be in September, to make their decision. If they decide to postpone it,
20 then whether they would notify you or simply wait until an appropriate
21 time, I don't know, and I don't think it really helps very much for there
22 to be this uncertainty.
23 MS. UERTZ-RETZLAFF: I was actually only think being the DNA, not
24 about Dunjic, just the DNA, not the other experts.
25 JUDGE BONOMY: No, no, I can see the value in relation to the DNA
1 expert. Yes.
2 Dr. Karadzic.
3 MR. KARADZIC: [Interpretation] I owe an explanation here. It is
4 not our position that these experts should be questioned, that their
5 expertise should be questioned, that they have deliberately misled
6 anyone. However, these are expert witnesses, and the expertise follow
7 certain international standards and now we have two experts that should
8 actually confront each other on the basis of these different scientific
10 Now, I do -- I am entitled to being a bit suspicious when an
11 expert testifies as an expert as a member of the Prosecution. The more
12 so because -- and I'm especially entitled to being a little bit
13 suspicious of the portion of the work that was done by the Federation of
14 Bosnia-Herzegovina experts because this is really a conflict of interest
15 in their case. So please, I just want to make myself very clear, we are
16 not in any way suggesting that the OTP experts are deliberately
17 misleading or presenting false information. We just feel that in order
18 to establish a certain level of confidence, we must verify certain
20 MS. UERTZ-RETZLAFF: One more point, the letter of Dr. Dunjic was
21 actually very helpful, and we think we will not oppose cross-examination,
22 but we would have to see this letter and have a possibility to digest it
23 and consider it. It would be very helpful if we had something also from
24 Dr. Stojkovic because he has already the 30 files with the raw material
25 for one grave. If he could look at that and also give a preliminary
1 assessment and if he finds points to make that would definitely be very
2 helpful, then we could even deal with this.
3 MR. KARADZIC: [Interpretation] If I may.
4 JUDGE BONOMY: Yes.
5 MR. KARADZIC: [Interpretation] Well, then I have a proposal.
6 Let's simplify matters and speed up the whole proceeding. I've noticed
7 that in some other cases, and this is something that other Trial Chambers
8 had resorted to, the procedure would be that a certain witness will be --
9 that a certain witness report will be accepted in part as a credible
10 report, whereas other portions are not admitted as being insufficiently
11 credible. I feel that in the event -- in my view, it would be far more
12 appropriate if there is any doubt as to an expert witness and the report
13 of an expert witness, I believe that we should eliminate the entire
14 report and the witness, and in this way we would probably eliminate some
15 of the experts right off. Of course, I'm joking in part, but just in
17 JUDGE BONOMY: Just one comment on what you said earlier about
18 the work being done by the representatives of the Bosnia-Herzegovina
19 Federation, I think all of the expert work here has been independently
20 reviewed and presented by an international expert no doubt with a view to
21 ensuring that the appropriate standards have been met. And you're quite
22 right to identify the principal bases, as I see it, for attacking the
23 expert evidence as the quality rather than the partiality of the work
24 that's been done.
25 Now, is there any other point on these expert matters that you,
1 Dr. Karadzic, wish to raise?
2 MR. KARADZIC: [Interpretation] For now, no. I would just like to
3 address you off record with one thing, but I would like to do that at the
5 MR. SLADOJEVIC: If I may, make one thing on behalf of
6 Dr. Karadzic. In relation to the ICMP materials, now, we went through
7 the testimony suggested, testimony of Dr. Parsons, as suggested by the
8 OTP to find out about the mandate and organisation of the ICMP. So we
9 went also to the website. We couldn't find many thing that we thought we
10 would find, but anyway in them, ICMP -- Dr. Parsons claims the ICMP
11 establishes neither the year nor the manner and time of the death, and
12 which can be established according to our experts through the DNA
13 analysis. So in addition to establishing the identities and the number
14 of victims, we would also like to conduct independent analysis in order
15 to try too establish through the DNA analysis the time of death which is
16 also very important.
17 Unfortunately I've only one memorandum that we prepared for this
18 meeting in relation to the ICMP work, but I can send it by e-mail, if you
19 want. I think it's more useful if you give it the Trial Chamber at this
20 stage, as well in relation to the Serbian letters, Dr. Dunjic's.
21 JUDGE BONOMY: Ms. Retzlaff, Mr. Nicholls, anything else?
22 MS. UERTZ-RETZLAFF: We will be meeting Dr. Kleiser, and we will
23 ask him whether this is possible and whether they can do something in
24 addition to time of death and cause of death.
25 MR. NICHOLLS: I would just add, Your Honour, just to be clear,
1 the Defence now has their own communication with Dr. Kleiser and are
2 working directly with ICMP, but we will continue to do anything we can to
4 JUDGE BONOMY: Well, I hope this meeting has assisted parties in
5 identifying ways of speeding up this whole exercise in the interests of
6 ensuring that injustice is avoided. I'm very grateful to you,
7 Dr. Karadzic, for arranging for Mr. Sladojevic to attend this meeting.
8 I've found that helpful. Although you, yourself, have a measure of
9 knowledge of the subject, those who are actually carrying out the
10 day-to-day dealings with the OTP usually have some information that would
11 be supplementary to you, so that was of great assistance to this meeting.
12 And if there's anything else discovered on the subject by the time of the
13 Status Conference on Thursday then that can be raised, but I suspect
14 there's nothing more to be said on this for the moment, and I just wish
15 you well in trying to make progress in reviewing the expert evidence.
16 Thank you very much.
17 Sorry, yes.
18 MR. KARADZIC: [Interpretation] I wanted to tell you something
19 that has nothing to do directly with the case, but it was not decent to
20 say that in a public session -- has to do with Saint Andrew. I'm a
21 Knight of Saint Andrew. He is also a protector of Russia, and it was not
22 perhaps quite appropriate to say that and he is from Russia, I have a
23 medal of Saint Andrews, and this is something that is perhaps not
24 appropriate to state in a public session.
25 JUDGE BONOMY: I take it you are referring to the fact that he is
1 my patron saint. I doubt if it will work well in a Defence case though.
2 Thank you. Until Thursday, thank you.
3 --- Whereupon the Rule 65 ter Conference adjourned
4 at 1.11 p.m.