Tribunal Criminal Tribunal for the Former Yugoslavia

Page 22336

 1                           Friday, 2 December 2011

 2                           [Open session]

 3                           [The accused entered court]

 4                           [The witness entered court]

 5                           --- Upon commencing at 9.03 a.m.

 6             JUDGE KWON:  Good morning, everyone.  Yes, before we begin today,

 7     I'd like to begin with my apologies to the parties, in particular to the

 8     Prosecution.  It was apparent from a while ago that the Chamber would not

 9     be able to sit in the week of the 12th December, but it was not until

10     yesterday that I realized the reality and informed the parties

11     accordingly.  I apologise in particular in terms of scheduling on the

12     part of the Prosecution.

13             Yes, Mr. Tieger.

14             MR. TIEGER:  Mr. President --

15             THE ACCUSED:  Apology accepted.

16             JUDGE KWON:  Yes, Mr. Tieger.

17             MR. TIEGER:  Before we commence, I wanted to raise with the Court

18     one ongoing schedule issue and a proposed solution that I've already

19     discussed with Mr. Robinson.

20             As the Court recalls, there were difficulties obtaining the

21     services of and availability of Dutch to English translators.  That

22     appears to be a continuing problem leaving us with limited flexibility

23     for next week.  However, we have a proposed solution which appears to be

24     agreeable to the parties.  It is tentative because we still need to check

25     certain logistics, but we are hoping now that the interview with

Page 22337

 1     Professor Lawrence will be accelerated from Tuesday to Monday, therefore

 2     his testimony will be able to commence immediately after

 3     Witness Riedlmayer.  That would be on Tuesday.  So the --

 4     essentially the -- and then we could have Mr. Patelski and

 5     Mr. Groenewegen both on Wednesday when interpreters are available.  So

 6     it's a fairly modest adjustment, just moving Professor Lawrence up

 7     slightly and Mr. Groenewegen back slightly.

 8             As I say, it is acceptable to the Defence, and it just needs some

 9     final double-checking to make sure the logistics of travel are not

10     implicated in some way that undercuts the solution.  So I wanted to let

11     the Court know that's where we hope to be heading next week.

12             JUDGE KWON:  And notwithstanding the change of schedule, the

13     Chamber still wants to hear from you on the issue of Jean-Rene Ruez, the

14     issue of Jean-Rene Ruez.  The Defence motion was either to postpone his

15     evidence after the winter recess or hear him live.  The Chamber still

16     considers the issue of hearing him live, so I'd like to hear from you on

17     that issue.  But not -- that would not be as urgent as before.

18             MR. TIEGER:  Thank you, Mr. President.

19             JUDGE KWON:  I apologise for your inconvenience, Dr. Baraybar.

20     If you could take the solemn declaration, please.

21             THE WITNESS:  I solemnly declare that I will speak the truth, the

22     whole truth, and nothing but the truth.

23                           WITNESS:  JOSE PABLO BARAYBAR

24             JUDGE KWON:  Thank you very much.  Please be seated.

25             Yes, Mr. Mitchell.

Page 22338

 1             MR. MITCHELL:  Thank you, Mr. President.

 2                           Examination by Mr. Mitchell:

 3        Q.   Good morning, sir.

 4        A.   Good morning.

 5        Q.   Can you please state your full name and spell t.

 6        A.   I will say it first and spell it afterwards.  It's

 7     Jose Pablo Baraybar Do Carmo.  I'll spell it for the translators.  It's

 8     J-o-s-e; the second name is P-a-b-l-o; my last name is B-a-r-a-y-b-a-r.

 9     And in my country we use both last names, so it will be D-o C-a-r-m-o.

10        Q.   Mr. Baraybar, what is your profession?

11        A.   I'm a forensic anthropologist.

12        Q.   Can you tell the Chamber very briefly what that is.

13        A.   Forensic anthropologists are specialists that works with human

14     remains in medico-legal contexts or forensic contexts.  So unlike people

15     working with very old remains from archaeological settings, we tend to

16     work with more recent remains.

17        Q.   Can you tell the Chamber very briefly about your fieldwork

18     experience.

19        A.   I have some 20 years' experience throughout the world, I would

20     say throughout the world in Africa, south-east Asia, and Latin America

21     certainly.  I come from Peru.  Besides work in the Tribunal, I have

22     expert witness status in Inter-American Court of Human Rights and as well

23     in the special court in my own country and in the high court as well.

24        Q.   You started work at the ICTY in 1996; is that correct?

25        A.   As a matter of fact, I started to work in ICTR in 1996.  Formally

Page 22339

 1     I got a contract with the ICTY in 1997, although we were lent from ICTR

 2     to ICTY in 1996.  But I mean formally, as a contract, it was 1997.

 3        Q.   Thank you.  Can you tell us very briefly about your work for the

 4     ICTY.

 5        A.   I was hired as a forensic anthropologist, although as a function

 6     I worked as chief anthropologist or chief archaeologist depending on the

 7     season and circumstances throughout the years.

 8        Q.   And have you been doing this same kind of work since you left the

 9     ICTY?

10        A.   I'm an advisor now with the Peruvian forensic anthropology team.

11     I work in similar issues, primarily dealing with missing persons in

12     post-conflict situations.

13        Q.   Now, you have written two reports, a "Report on the Anthropology

14     Examination of Human Remains from Eastern Bosnia in 1999" and a "Report

15     on the Exhumation of Mass Gravesites in Eastern Bosnia,

16     August-October 1999."

17        A.   That is correct.

18        Q.   Now, the first report, the anthropology examination report, has

19     two addenda that should be read together with that report; is that right?

20        A.   Yes, that is correct.

21        Q.   Do you recall testifying about these two reports in the Krstic

22     case on 29 and 30 May, 2000?

23        A.   Yes, I do.

24        Q.   Have you had an opportunity to review that testimony?

25        A.   Yes, I have.

Page 22340

 1        Q.   Can you confirm that it accurately reflects your evidence in that

 2     case?

 3        A.   Yes, I do.

 4        Q.   And --

 5             THE INTERPRETER:  Interpreter's request: Kindly pause between

 6     answers and questions, and answers and questions.

 7             MR. MITCHELL:

 8        Q.   If you were asked the same questions on the same topics today,

 9     would your answers be the same?

10        A.   Yes, they would.

11             MR. MITCHELL:  Mr. President, I'd like to tender Mr. Baraybar's

12     testimony from the Krstic case.  That's 65 ter number 23514.

13             JUDGE KWON:  Yes.  That will be admitted.

14             MR. MITCHELL:  The associated exhibits --

15             JUDGE KWON:  Just a second.

16             THE REGISTRAR:  That will be Exhibit P4029, Your Honours.

17             JUDGE KWON:  Yes.  Yes, Mr. Mitchell.

18             MR. MITCHELL:  I'd also at this stage like to tender those two

19     reports that I referenced.

20             JUDGE KWON:  Together with that addendum?

21             MR. MITCHELL:  Correct.  So the first report is 65 ter 2392.

22             JUDGE KWON:  I think first one is 2393.  Which is the first one?

23     I'm not sure.

24             MR. MITCHELL:  Sorry, the first one, the anthropology examination

25     report, is 2392, and the two addenda are 2390 and 2391.

Page 22341

 1             JUDGE KWON:  Very well.  What about 2393?

 2             MR. MITCHELL:  That's the second report.  That's the exhumation

 3     of mass grave-sites.

 4             JUDGE KWON:  Very well.  So we'll admit 2329 and two addenda.

 5             THE REGISTRAR:  Yes, Your Honours.  65 ter number 2392 will be

 6     Exhibit P4030.  65 ter number 2390 will be Exhibit P4031.  And 65 ter

 7     number 2391 will be Exhibit P4032.

 8             JUDGE KWON:  Thank you.

 9             Yes, Mr. Mitchell.

10             MR. MITCHELL:  I'd now like to read a summary of Mr. Baraybar's

11     testimony from the Krstic case.

12             Mr. Baraybar testified in the Krstic case about the

13     anthropological examination of human remains that were exhumed from

14     Srebrenica-related graves between 1996 and 1999.  He describes the

15     following methodology that he used to determine the gender, the age, and

16     the minimum number of individuals exhumed from those sites.

17             First he would determine the gender of an individual.  If this

18     could not be determined by an examination of the external genitalia, it

19     was done by examining the pelvic bone, the skull, and the long bones, in

20     that order.

21             Second, he would establish the age-range of each individual by

22     examining changes in certain bones by using the so-called Suchey-Brooks

23     method and relying on Bosnian population-specific standards.  The

24     relevant age-ranges were 8 to 12, 13 to 24, and over 25 years of age.

25             Third, the minimum number of individuals at the site in question

Page 22342

 1     would then be calculated.  This was done by adding together the total of

 2     the most commonly occurring bone in each age-range.  Only a unique bone

 3     or one of a pair of bones would be used for this calculation.  For

 4     example, if there were 38 left proximal femurs in the 13 to 24 age-range

 5     and 48 right proximal tibia in the 25 and over age-range, that would give

 6     a minimum number of 86 individuals for that particular site.

 7             To avoid overcounting, the human remains from a primary grave and

 8     any known secondary sites were examined together using the same bone as

 9     the basis of the calculations.

10             Mr. Baraybar concluded that between 1996 and 1999 a minimum

11     number of 1.883 individuals had been exhumed by the ICTY from

12     Srebrenica-related graves.  Of those 1.883 individuals, 1.656 were male,

13     one was female, and 212 were of indeterminate sex.  1.547 of these

14     individuals were aged 25 years or over at their time of death.

15             Mr. Baraybar also testified that in 1999 he supervised the

16     exhumation of mass graves at Nova Kasaba, Konjevic Polje, and the site

17     known as Glogova 2.

18        Q.   Now, Mr. Baraybar, I have a few additional questions for you.

19             First, can you briefly describe to us what the procedure was once

20     a body or a body part had arrived at the morgue.

21        A.   Certainly, the -- all the remains that arrived to the morgue were

22     placed in a refrigerated unit or container.  Once a body would be taken

23     out of the container, in a body bag, it would be logged in as being

24     assigned to a specific autopsy table and pathologist team, meaning a

25     pathologist, an anthropologist, a seen-of-crime officer, an autopsy

Page 22343

 1     technician.  The body bag would be taken to a fluoroscope.  A fluoroscope

 2     is an X-ray machine that allows you to scan through, with X-rays, the

 3     body bag looking for metal particles such as bullets.  In some other

 4     occasions it became quite useful because we found, not in this case

 5     specifically but in other cases, live grenades with the bodies and things

 6     of that kind that could be very dangerous.

 7             After that, the body bag would be placed on the table, open.

 8     Pictures would be taken.  The body placed on the table, undressed.  All

 9     items of clothing, personal effects, and other associate artefacts would

10     be given to scene-of-crime officer to describe them, log them, and take

11     pictures of them.  And the autopsy as such would progress.  I mean, if it

12     was a flesh body, opening the three cavities.  If it was a skeletonised

13     body, cleaning the bones, laying them out in anatomical position and then

14     reconstructing broken parts to assess trauma.  Obviously, in this process

15     I mean age, sex, stature, and other characteristic would be recorded by

16     anthropologists.

17        Q.   Were there times where you were involved in the reconstruction of

18     broken parts of bones?

19        A.   Whenever I was in the morgue, that was my -- one of my

20     activities, yes.

21        Q.   Okay.  What was your role as the chief forensic anthropologist?

22        A.   Primarily co-ordinating a team of anthropologists working under

23     my direction, but primarily to establish consistency in the protocols

24     used so every person that was there would be pretty much looking at the

25     same thing and recording things in the same way.  Otherwise, it would be

Page 22344

 1     quite complicated to try to merge all the information from different

 2     people.  To choose and discuss with my colleagues, as well, the best

 3     techniques that would be used to establish, for example, age or sex or

 4     stature.  So primarily ensuring consistency, I would say, among all those

 5     that were there.

 6        Q.   I want to ask you just very briefly about two reports related to

 7     exhumations that you wrote.

 8             MR. MITCHELL:  Can I please have 65 ter 3469 in e-court.

 9        Q.   Is this your report on exhumations at the Glogova 2 --

10        A.   Yes, it is.

11        Q.   -- site?

12        A.   Yes.

13        Q.   And this report summarises the data from your 1999 report on

14     Glogova that you testified about in Krstic and also includes information

15     on three additional sites; is that right?

16        A.   Yes.

17        Q.   Okay.

18             MR. MITCHELL:  Mr. President, can I tender that report, please?

19             JUDGE KWON:  This is -- how is this different from exhibit --

20     65 ter 2393, second report?

21             MR. MITCHELL:  Mr. President, it contains -- it summarises the

22     work from the earlier report.  But there's a second exhumation done in

23     2001 which is an additional three sites, the sub-graves known as GL07,

24     GL08, and GL09.  So there's that additional information in this second

25     report.

Page 22345

 1             JUDGE KWON:  And what is the reason why you didn't tender

 2     65 ter 2393, his second report, that it -- you're going to tender it as

 3     one kind of associated exhibit?

 4             MR. MITCHELL:  I'm sorry, Mr. President, I thought I did tender

 5     it.  Maybe that was my mistake.  I would like to tender the first report

 6     as well.

 7             JUDGE KWON:  You tendered only 2392.

 8             MR. MITCHELL:  There was 2392 with its two associated addenda and

 9     then 2393 which is the Glogova -- the first Glogova exhumation report.

10             JUDGE KWON:  Can I confirm with the Court Registrar that 2393

11     hasn't been admitted, then we'll give that number.

12             THE REGISTRAR:  65 ter number 2393 will be Exhibit P4034,

13     Your Honours.

14             JUDGE KWON:  And we will admit 3469 as well.

15             THE REGISTRAR:  As Exhibit P4033.

16             JUDGE KWON:  Thank you.

17             MR. MITCHELL:  Can I please have 65 ter 3470.

18             JUDGE KWON:  Would you give the number again.

19             MR. MITCHELL:  Sorry.  3470.  And this is a report called "Report

20     on Excavations at the Site of Zeleni Jadar 6, Bosnia and Herzegovina,

21     2001."

22        Q.   And, Mr. Baraybar, you're the author of this report; is that

23     correct?

24        A.   Yes, it is.

25        Q.   And just a couple of very brief questions.  Was Zeleni Jadar 6 a

Page 22346

 1     primary or a secondary grave?

 2        A.   It was a secondary grave.

 3        Q.   And can you confirm how many bodies and body parts were exhumed

 4     from that site?

 5        A.   Yes.  Just give me one second.  According to the report, we got

 6     38 bodies, 356 body parts, and 552 artefacts.

 7        Q.   Thank you.

 8             MR. MITCHELL:  May I tender that report, please.

 9             JUDGE KWON:  Yes.

10             THE REGISTRAR:  Exhibit P4035, Your Honours.

11             MR. MITCHELL:  May I please have 65 ter 2394 in e-court.

12        Q.   This is an updated version of the report you testified about in

13     the Krstic case; is that right?

14        A.   Yes, it is.

15        Q.   Does it use the same methodology as the report you testified

16     about in Krstic?

17        A.   Yes, it does.

18        Q.   Now, can you briefly explain to the Court a little bit about the

19     age-ranges that you used to calculate the minimum number of individuals.

20     Why those three age-ranges?  Why not use a greater number of more precise

21     age-ranges?

22        A.   The problem -- the problem we faced in this case was the large

23     number of cases we were dealing with or large number of individuals that

24     were involved in these calculations.  So while every single set of

25     remains was -- had a specific age determination depending on the number

Page 22347

 1     of elements available to be aged, in order to present the data in a

 2     comprehensible manner we have to include those individual estimates.  For

 3     example, somebody being 18, 25, 27, or whatever other age, into broader

 4     age-ranges in order to present the data in an easier way.  That is one

 5     part of the explanation.

 6             The second one is that a number of remains were fragmentary.  So,

 7     for example, you may receive as a case a hand, a foot, a piece of a torso

 8     or a piece of a spine, a piece of a leg, and those elements did not yield

 9     much features in order for you to determine age in a precise manner.  And

10     I'm using the word "precision" and accuracy, meaning that precision is

11     how -- how close you are in terms of the deviation from the real age.

12     For example, I would say you could be -- you have a mean of 35 years of

13     age plus/minus 2.  I'm being very precise.  But obviously I could be more

14     accurate to say that you are between 20 and 50 years of age.  Or 0 to a

15     hundred.  I would always be right and accurate, therefore.

16             So the age-ranges only reflect a way to present data more than to

17     establish individual age.  I do not know whether I'm answering your

18     question.

19        Q.   Yes, I -- in a nutshell, the broader the age-ranges, the more

20     accurately you're able to place individuals within those ranges.

21        A.   That is correct.  Otherwise, if I try to be precise without

22     having enough elements to support my age determination, I would be, I

23     mean, doing it wrong.  That's the bottom line of it.

24        Q.   Now, what were your conclusions in this report regarding the

25     minimum number of individuals?  What was the actual number?

Page 22348

 1        A.   Well, the last -- the last number, and let me just check the

 2     report not to give you the wrong figure, is -- you mention a minimum

 3     number of individuals in the Krstic report, and this actually changed --

 4     in the Krstic trial, and this actually changed in the last report of

 5     2004.  I think that's the one you --

 6        Q.   We'll -- we'll come to that one in a minute.

 7        A.   I'm sorry.  Sorry, sorry, sorry, sorry.  It's my mistake.  Let me

 8     check the right report here.

 9        Q.   It's your 2000 anthropology report.

10        A.   Yeah, I have so many reports here, so one -- give me one second.

11        Q.   Well, I can give you the number and you can confirm that, if

12     that's easier.

13        A.   Yes, please.

14        Q.   Two -- a minimum number of 2.028 individuals.

15        A.   Yes, that is correct.

16        Q.   Now, what was the age-range distribution?

17        A.   If I'm not mistaken, we are talking about three age-ranges.  But

18     I'm looking for the report here, because I want to answer -- oh, there

19     you go.  It's here.

20             We have three broad age-range categories, from 8 to 12 years,

21     13 to 24, and 25 plus years.

22             JUDGE KWON:  Why don't we upload page -- e-court page 5 and then

23     let's follow with the witness.

24             THE WITNESS:  Thank you, Your Honour.

25             JUDGE KWON:  We can collapse the B/C/S.

Page 22349

 1             Is this the page you're referring to, Mr. Baraybar?

 2             THE WITNESS:  Yes, it is.

 3             JUDGE KWON:  Yes.

 4             THE WITNESS:  So the distribution of the 2.028 individuals is

 5     7 individuals in the 8-to-12-years category, 332 in the 13-to-24, and

 6     1689 in the 25-plus category.

 7             MR. MITCHELL:

 8        Q.   The Chamber has heard some evidence about the Lazete or Orahovac

 9     site.  Can you just tell us the numbers -- the minimum number of

10     individual -- individuals at those two sites, Lazete 1 and 2?

11        A.   Okay.  Here we have merged the primary site, that is, for

12     example, Lazete 2, with Hodzici Road 5, because one is a primary site and

13     the other one is a secondary site.  Therefore, the remains in Hodzici

14     come from Lazete, so we have merged them, because it is the same site,

15     the same people pretty much.  Is 243.  And in Lazete 1 that is also

16     related to the secondary sites of Hodzici Road 3 and 4 is 250.  That's

17     the MNI, the total minimum number of individuals.

18        Q.   Thank you.

19             MR. MITCHELL:  Can we please have 65 ter 3471 in e-court.

20        Q.   And, Mr. Baraybar, this is the 2004 report entitled "Calculation

21     of the Minimum Number of Individuals Exhumed by the ICTY between 1996 and

22     2001."

23             You are the author of this report?

24        A.   Yes, I am.

25        Q.   This report introduces a new phrase, the minimum minimal number

Page 22350

 1     of individuals exhumed by the ICTY forensic teams.  Can you briefly

 2     explain the difference between MNI, or minimum number of individuals, and

 3     this new term MMNI?

 4        A.   The new term was coined in order not to cause, I mean, further

 5     confusion since the Chamber has seen many reports actually referring to

 6     minimal number of individuals.  And this was yet again another merging

 7     exercise and would cause much confusion.

 8             The two words are clarifying two things:  First, what the MNI is.

 9     And then we move on to the MMNI.  The minimum number of individuals is a

10     calculation, a very conservative calculation to explain at least how many

11     people are represented by the bodies or body parts recovered in a

12     grave-site.  For example, if we had a grave with complete bodies, you

13     would do a head count.  I mean, you would just count them and that's it.

14     But if you got complete people and pieces of people, then you would need

15     to take another kind of decision and that is you cannot just simply count

16     every piece as being one person because you could be wrong.  We got two

17     arms and two legs and you do not know whether a right and a left may go

18     together from one person, so you cannot count them twice.

19             What you need to do is to count either a bone or a part of a bone

20     that is unique or one of a pair, for example the head or, for example,

21     the right leg or the left leg and so on.

22             In this way, you will determine at least how many people there

23     are there.  Not at most, but at least.  And if you have individuals of

24     another age, for example, you have right legs representing 25 adults but

25     you may have an arm from a -- for a child, this arm is counting as one

Page 22351

 1     because an individual of a different age, they cannot be considered as

 2     part of the leg.  So up to there, fine.

 3             Now we move to the minimal minimum.  I'll try to explain this in

 4     the most clear way because it is quite complicated.

 5             At the beginning, we had primary sites, okay?  Bodies were buried

 6     in a primary site.  But these bodies were taken off the primary site and

 7     then buried in a number of secondary sites.  Once it was established

 8     through a number of means, and I presume the Prosecution had already

 9     shared with the Court a number of these studies, that primary sites were

10     related to a number of secondary sites, we had to merge in terms of

11     numbers the remains found in the primary site and the secondary site,

12     because they were part of the same thing, okay?  But now, how can we get

13     an estimate of all the bodies that ICTY recovered until the year 2000 so?

14     We could not simply add the MNI for each site, because it will be yet

15     again an overrepresentation.  So we have to be even more conservative.

16     And that's it.

17             I give you an example.  For the Glogova site, we used the right

18     leg and for some other site we used the left leg.  How do I know that

19     these rights and the lefts are not together.  So in order to do that, we

20     have to normalise everything and use the same bone throughout all the

21     sites, meaning that there were sites that were represented or further

22     represented by other bones that were not counted, and that is why our

23     estimate as the MMNI is -- that is the most, I mean, hyper conservative

24     estimate we can get is 2.691 or 2.541.  If we had counted simply all

25     these MNIs I told you about, we would have got 2.691, okay?  But our

Page 22352

 1     estimate that is the most conservative one is 2.541.  That is the very,

 2     very least of how many people may have been represented by all the

 3     remains collected by ICTY until that time.

 4        Q.   Okay.  Perhaps this will be -- to simplify it, we'll work through

 5     an example together.

 6             If you had ten graves, each of which had a minimum number of

 7     individuals of 50, now, the first nine graves used the left femur to

 8     calculate their MNI, but the tenth grave used the right femur.  Now, when

 9     you add all of them up, the MNI is 500; correct?

10        A.   Yes.

11        Q.   Okay.  But because the MMNI only counts the most common bone

12     across all graves, you don't count any of the right femurs from grave 10,

13     but you do look at grave 10 to see if it contained any left femurs that

14     you can add in to the total, so ... is that right?

15        A.   Yes.

16        Q.   Okay.  So say the tenth grave has 50 right femurs but it also has

17     25 left femurs, what will your MMNI be from those ten sites?

18        A.   Well, you would just count -- you would just count the 25, not --

19     not -- not the 50.  So it would be 475 rather than 500.

20        Q.   Thank you.  Just one final question on a different topic.  Can

21     you explain --

22             JUDGE BAIRD:  Just -- what would you do, Doctor, with the

23     remaining 25?

24             THE WITNESS:  They exist, but you do not take them into account

25     in your calculation because you try to be conservative.  Meaning, you try

Page 22353

 1     to say, At the very least we got so many people.  We most likely have

 2     more, but I cannot say for sure based on this calculation.  In other

 3     words, it would be easier but less scientific, I would say, or serious,

 4     for that matter, to just simply count.  Because it would be even easier

 5     to just count all the bodies parts we have and say, We've got 5.000

 6     people there, but that is not true.  So we have to say, At least, at the

 7     very, very, very least, we have so many people.

 8             So in order to be fair and very conservative, I'm going to use

 9     the same bone across the spectrum.  Even if I know that 25 other people

10     may be represented there, and I'm not counting them, but just -- it's a

11     way to be very transparent with that and very conservative for the

12     estimation.  Because normally what actually happen is that they may tell

13     you, You've been overcounting.  You've been too generous in counting.  So

14     in order not to be told that, we're just, I mean, drawing back and saying

15     we've got to be very conservative in counting.

16             JUDGE BAIRD:  Thank you.

17             MR. MITCHELL:

18        Q.   If I can just add one other question to that, Mr. Baraybar.  The

19     reason why the right femur can't be counted in that scenario is because

20     it may match a left femur; is that right?  It may come from the same

21     person?

22        A.   That's correct.

23        Q.   Just a last question.  Can you explain whether the

24     anthropological analysis of remains and the anthropological calculation

25     of MNI and MMNI is still relevant in light of advances in DNA technology?

Page 22354

 1        A.   That's a quite relevant question.  Remember that DNA, as many

 2     other techniques, are complementary techniques.  So you will need to

 3     start always with your MNI prior to deciding what technique to use to

 4     advance further.  Because, having a preliminary number of people, then

 5     you can start with your testing to corroborate that.  But what is very

 6     important to say is that DNA will always give you a much higher estimate

 7     than the MNI, because the MNI is that, it's a minimum number of

 8     individuals.  I mean, DNA will allow you then to match, for example,

 9     right and left and say that perhaps you've got other individuals

10     represented by other bones not counted in the MNI.

11        Q.   Thank you, Mr. Baraybar.  I have no further questions.

12             MR. MITCHELL:  Mr. President, sorry, can I tender that last

13     report, 3471.

14             JUDGE KWON:  Have we admitted 2394 first?  We'll give the number

15     for that.

16             MR. MITCHELL:  Thank you.

17             THE REGISTRAR:  65 ter number 2349 will be Exhibit P4036,

18     Your Honours.

19             JUDGE KWON:  And the last one.

20             THE REGISTRAR:  65 ter number 3471 will be P4037.

21             JUDGE KWON:  Thank you.

22             MR. MITCHELL:  Thank you.

23             JUDGE KWON:  Well, Mr. Karadzic.

24             THE ACCUSED: [Interpretation] Thank you.  Good morning,

25     Your Excellencies.

Page 22355

 1             JUDGE KWON:  My apologies, again.  Shall we deal with associated

 2     exhibits?  I have just one question.  Among the associated exhibit is

 3     listed 65 ter 2393, which is the report itself.  So --

 4             MR. MITCHELL:  Mr. President, that shouldn't be tendered as an

 5     associated exhibit.  It should come in separately under Rule 94.

 6             JUDGE KWON:  Yes.  Which has been already admitted.

 7             MR. MITCHELL:  Yes.

 8             JUDGE KWON:  Any objections from the Defence?

 9             MR. ROBINSON:  No, Mr. President.

10             JUDGE KWON:  Thank you, Mr. Robinson.

11             All of the associated exhibits but 2393 will be admitted and be

12     given number in due course.

13             Yes, Mr. Karadzic.

14             THE ACCUSED: [Interpretation] Good morning, Your Excellencies.

15     Good morning to everyone.

16                           Cross-examination by Mr. Karadzic:

17        Q.   [Interpretation] Dr. Baraybar, good morning.  First of all, I

18     would like to thank you for meeting with the Defence.  I hope that this

19     will help us to proceed in a simple and efficient way.  First of all, I

20     wanted to ask you this:  You worked --

21             JUDGE KWON:  That's right.  I think we can continue.  Yes,

22     Mr. Karadzic.

23             MR. KARADZIC: [Interpretation]

24        Q.   You also worked in the field and in the morgue.  What were you

25     doing -- what sort of job were you doing in the morgue and what were you

Page 22356

 1     doing in the field?

 2        A.   Certainly.  As I said before, I really explained what I did in

 3     the morgue with the team of anthropologists that worked under my

 4     supervision.  I participated in -- in the autopsies when I was in the

 5     area reconstructing body parts, doing determination of age, sex, stature,

 6     normal analysis in the morgue.  And in the field I directed in some -- in

 7     some cases exhumations of some sites, as is indicated in my reports as

 8     well, with a team of archaeologists, surveyors, scene-of-crime officers,

 9     and those kind of people.

10        Q.   Thank you.  I'm going to be looking at a few of your documents

11     simultaneously grouped by topics because we don't have time to test each

12     document separately.  In the report P4033, in the summary of the

13     findings, you say that during your work you specialised --

14             JUDGE KWON:  In order for us to follow as well, let's upload it

15     and let's see it together.

16             THE ACCUSED: [Interpretation] Is the number clear?

17             JUDGE KWON:  It's coming.  Mr. Karadzic, will it be okay with you

18     that we follow in English only?

19             THE ACCUSED: [Interpretation] Yes.  I'm going to be reading in

20     Serbian, so the public will be able to follow.

21             JUDGE KWON:  Or it can be translated into B/C/S as well if you --

22     even if you read in English.  Let's continue.  Page?

23             THE ACCUSED: [Interpretation] This is page 3, I think, in the

24     report.  194 is the last ERN number.  It's the summary of the finding.

25     I'm afraid that that's not the number.  Isn't the Eastern Bosnia one that

Page 22357

 1     got the number 4033?  No, no, no.  Not Glogova 2.  Then it's the one

 2     dated the 8th of December, 1999, mass grave-sites in Eastern Bosnia.  I

 3     made a mistake, I think.

 4             JUDGE KWON:  It's his first report?

 5             THE ACCUSED: [Interpretation] Yes.  02392.  4034.  P4034.

 6             JUDGE KWON:  Yes.  Page 3.

 7             MR. KARADZIC: [Interpretation]

 8        Q.   Yes.  Here you said that during the work of the specialists in

 9     the second half of 1989 in Eastern Bosnia three main localities were

10     examined, Nova Kasaba, Konjevic Polje, and Glogova.  Each one had graves

11     where allegedly there were the remains of victims from the protected area

12     of Srebrenica.

13             Who said that these were the victims from those localities?  Who

14     said that?

15        A.   As you -- as you perhaps know, as part of the OTP, or the Office

16     of the Prosecutor, for which I was working, we knew we were working in

17     the investigation of the -- on the fall of Srebrenica.  However, I have

18     indicated in the report that these were alleged victims, since that is

19     information we had received.  I have not affirmed in the first paragraph

20     of this that they were victims from there because this information, the

21     background information, we got.  Certainly we got background information

22     as to what investigation we're working on.  So as far as that, that is

23     correct.

24        Q.   Thank you, Dr. Baraybar.  That's quite fair.  So you did not

25     establish that, but you -- you quoted that.  Did the Prosecution inform

Page 22358

 1     you about the fact that that area was a front during the 42-month period

 2     of the civil war, where the fighting was constant during that period in

 3     that location?

 4        A.   To tell you the truth, I do not recall the Prosecution telling me

 5     that, but, I mean, I read that in some, I mean, background books I may

 6     have read at the time.  But, I mean, nobody, let's say, informed me or

 7     gave me any formal report or information regarding where people may be

 8     placed or how the fighting was going on.  I mean, remember, I'm a

 9     forensic, I mean, person, not a military analyst.  So that information

10     was not privy to me in any official form, so to speak.

11        Q.   Thank you.  Does that mean that you were also not informed that

12     you could encounter bodies from different time periods or from -- or

13     bodies whose time of death was different?

14        A.   Well, I mean, there was no information pertaining to what we

15     would expect to find.  We were primarily presented with a problem, so to

16     speak, I mean, a number of potential graves, and to determine whether

17     these were graves or not, to extract their contents in a scientific

18     manner, and to make expert opinions based on our findings.  So I don't

19     think the issue was at any point in time that we were supposed to find

20     something or the other.  I mean, nobody ever told me what I was supposed

21     to find.  I mean, if that is what you're implying.

22        Q.   Thank you.  So it was not given to you as an assignment to

23     differentiate between victims who fell before the 14th of July, 1995, and

24     those who died during that week of the 14th of July.  Do you know anyone

25     else who was given that assignment, to make a distinction between those

Page 22359

 1     who died before the 13th of July, 1995, and who was killed in that

 2     critical week?

 3        A.   I mean, I'm not privy to any information pertaining to that.  But

 4     as a matter of clarification, do remember that this was a forensic

 5     investigation.  And in any forensic investigation you do not distinguish

 6     between types, let's say, of victims or qualify the remains you are

 7     finding as being victims of one kind or the other.  You're collecting or

 8     recovering the scene as presented to you.  So if you have a grave with

 9     50 people inside, you will not be choosing, you know, 25 from this period

10     and 25 from the other.  You would just collect the scene as it is and

11     then process the whole scene as it is.

12             Certainly afterwards, I mean, definitely -- I mean, prosecutors,

13     defence lawyers, will decide whatever they need for what.  But, I mean,

14     forensic personnel will be primarily recovering the seen and making,

15     obviously, interpretations based on the findings.

16        Q.   Thank you.  In this same summary you also said that there were

17     ten graves with at least 208 individuals recovered from them and it was

18     established that 184 were determined as males, 1 was a female, and so on

19     and so forth.

20             When we're talking about these 76 persons aged between 13 and 24,

21     do you agree that for legal and judicial purposes it is quite important

22     to establish more precisely the facts and that this range from 13 to 24

23     is quite a large range?

24        A.   Most definitely.  However, as I said yet again at the beginning,

25     this is the way we are reporting a large number of cases.  Not -- this

Page 22360

 1     doesn't mean that every single case has the same age-range.  Meaning, if

 2     we go back to the autopsy reports of every single case, you will have a

 3     specific, I mean, age determination for each of them.  Okay?  So, for

 4     example, you may have somebody between 13 and 16.  That would be included

 5     in the range 13 to 24, but that doesn't mean that the individual age

 6     estimation for each of them is a range.  The range is just a way to

 7     present information.

 8             And also remember that when you estimate age in bones, you will

 9     always give a range.  And that's the whole thing of precision and

10     accuracy.  Meaning, you could say, oh, this person looks like 16, but it

11     is most likely that this person is between, let's say, 14 and 18, because

12     you cannot say by examining the bones that this person had 16.2 years.  I

13     mean, that -- I mean, you cannot do that.  That's chronological age.

14     You're establishing only biological age.  But to answer your question,

15     the specific age estimate would be found in the autopsy report of that

16     specific case.  This is just a way of reporting.  So not to, kind of,

17     confuse the two things.

18        Q.   Thank you.  I would just ask for your understanding.  I am asking

19     this because the Prosecution generally characterizes the victims by

20     saying that 8.000 Muslim or Bosniak males and young boys were killed.  So

21     the Defence has to clarify what young boys, what that term signifies.  So

22     we have not yet come to the specific description of what is a young boy.

23     But in your report what I would like to know is that I can see that --

24     well, you didn't do that yourself, others did that, the anthropological

25     examination of the bodies.  Let's look at the ERN number 107.  This is

Page 22361

 1     the last page, the age indicators.  How did it happen that we have the

 2     interval from 8 to 12, then from 13 to 17, and then from 15 to 24,

 3     age-ranges?  This overlap, does that not allow for the possibility of

 4     some remains being counted in two groups?

 5             JUDGE KWON:  Can we see that page as well, Mr. Karadzic?  If you

 6     could be of assistance, Doctor, as well.

 7             THE ACCUSED: [Interpretation] I believe that that is 4033,

 8     exhibit, but I'm not quite sure that that is that exhibit.  But we're

 9     talking about the anthropological examination, in any event, so then that

10     would be -- I think that that's on page 7, I would say.

11             The title of that report is the "Report on the Anthropology

12     Examination of Human Remains."  The number is P4030.

13             THE WITNESS:  Yes.  I have it in front of me.  As I told you

14     before, because individual remains or sets of remains have individual age

15     estimates, it was a matter of fitting those individual age estimates into

16     some intervals, because otherwise, for example, in the example you refer

17     before of the 76 cases, I'm going to refer to the individual estimate for

18     each of the 76, and it would take obviously --

19             MR. KARADZIC:

20        Q.   Just one, Doctor.

21             THE ACCUSED:  May I ask to lift the page for the participant to

22     see the part that I'm dealing with.

23             THE WITNESS:  Isn't it this one?

24             THE ACCUSED:  Maybe next page.

25             MR. KARADZIC: [Interpretation]

Page 22362

 1        Q.   Yes.  Here we see this table, and that's what I would like to

 2     discuss.  Please go on, Doctor, but please bear in mind that I would like

 3     you to focus on this portion alone, the age-ranges which are not clearly

 4     defined statistically, and it is possible that some of the remains

 5     actually belong to a number of groups, not just one.

 6        A.   Yes.  That is correct.  However, there's bound to be overlap

 7     between certain age categories, primarily regarding young -- young

 8     people.  The overlap will generally happen -- generally happen between

 9     the younger people.  Why is this?  We have been using here indicators of

10     a growth of bones and the development of teeth.  Okay?  And obviously

11     sometimes in many people, and due also to specify circumstances, for

12     example, if people are malnourished and all the rest of it, they will

13     grow less and develop and continue developing.  So, for example, the

14     teeth can give you an age and the bones can give you another age.  Okay?

15     That is, that the person will be older because of the teeth and will be

16     younger because of the -- of the long bones.  Of course, yes, there is an

17     overlap, but we're not talking an overlap of ten years.  You're talking

18     an overlap of six months or maybe a year.  Okay?  This retardation of

19     growth will happen in that way.  And, yes, there is a possibility of

20     people being fitted into an interval to which they do not belong.  If we

21     were keeping these very rigid intervals as I pointed here, like 8 to 12,

22     and 13, et cetera.  That's why we merged the things of the 15 to 24,

23     because it would be yet again a more conservative way of putting, let's

24     say, younger or several people together, okay, in the teens, rather than

25     dividing the teens.  But whenever you have a problem of overlap, it is

Page 22363

 1     likely that it will be towards the young side, not towards the older

 2     side.  So misclassification in this case may happen that you may confuse

 3     people as being older but as a matter of fact are younger.

 4             I don't know whether I am answering your question.

 5        Q.   Thank you, Dr. Baraybar.  Now, who was it who decided that they

 6     should be merged?

 7        A.   Oh, I decided that.  I decided that for -- for reporting -- yet

 8     again for reporting purposes.  Yet again, as I said before, these were

 9     reporting -- it's a way of reporting large number of cases.  I mean, if

10     we -- we had five cases or ten cases, of course we would say, you know,

11     individual one has this age, and two, and so forth.  But in this case

12     you're talking about, I mean, hundreds, I mean, a few thousand in this

13     case.  So it would be, I mean, absurd to refer to the specific or

14     individual age estimated for each person.  In that case we would need to

15     bring every case and read every single case, you know, one by one.

16        Q.   Thank you.  I do see that there were scientific and

17     anthropological reasons for that.  However, for forensic purposes would

18     you agree that the Defence especially has a vested interest in

19     establishing more precisely the presence of minors in the -- in this

20     population of victims?

21        A.   I mean, most definitely.  But then we could go back -- I can -- I

22     can give you an explanation for that, and something even that the Defence

23     may want to do.  If we look at -- and I don't know how to tell you to

24     look for this, but I mean --

25             JUDGE KWON:  If you could read out the title of your report.

Page 22364

 1             THE WITNESS:  The title, certainly.  If we go to the calculation

 2     of the minimal number of individuals of the report from January 2004.

 3             JUDGE KWON:  That's Exhibit P4037.  Page 5.

 4             THE WITNESS:  We go to page 8 of that report.

 5             JUDGE KWON:  Is this it, Mr. Baraybar?

 6             THE WITNESS:  Yes, it is.

 7             JUDGE KWON:  Yes.

 8             THE WITNESS:  For example, here we were using the old -- again,

 9     we're going back to the old separation of age-ranges.  The Defence, for

10     example, would like to examine, perhaps, the autopsy reports of the

11     specific cases listed here that could be minors or younger people, and

12     you see that in the category 8 to 12 you have seven people.  So in

13     principle you could review the autopsy reports of these seven people and

14     find out why they were placed in that age-range.  What you will likely

15     find is that the teeth had a level of development as that age or that the

16     bones were not fused, certain bones were not fused, or that, for example,

17     the pelvic bone was separated, still not fused, and therefore these

18     people are likely to be minors.

19             You could also examine in detail perhaps this 157 autopsy reports

20     of these people from 13 to 17 and see whether they will be -- they will

21     qualify as people under 18, or minors, and so forth.

22             All I'm trying to say is that we should not confuse the way

23     things are reported and believe that because they are reported in that

24     way the individual autopsy reports also follow the same, let's say,

25     vagueness, if we can use that term.  I mean, this way of reporting is

Page 22365

 1     only to simplify the presentation of a very large number of cases.  But

 2     it is always possible to go back to the specific autopsy report and look

 3     at the anthropology form and say, Okay, how did I establish age in this

 4     specific individual?  And you will have an estimate, an age estimate for

 5     that specific case that would be fitted into that age category, but it

 6     would have its own estimate based on specific evidence.

 7             So my advice for you would be to review, perhaps, these -- these

 8     cases and to get to the conclusion.

 9        Q.   Thank you.  Would it be reasonable to expect, though, that up

10     until the age of 25, based on the fusing of the bone ends and the

11     cartilage and bone connections, it would be possible to determine more

12     precisely the age, with an error of probably plus or minus one year?

13        A.   Well, not plus/minus one year.  Remember that the 25 cutting

14     point is primarily given by the partial or complete fusion of the -- the

15     medial epiphysis of the clavicle.  There is a number of epiphyses or the

16     ends of long bones that by then already are closed.  So, kind of, the

17     last bony piece that is in this case to fuse is the medial clavicle and

18     that is why we're using it as a cut-off point.  As a matter of fact, most

19     of the epiphyses are already fused much earlier than that, you know, by

20     17, by 18, and there is a variation among individuals.  And actually

21     females, even by 16 they could be already closed.  So, no.  As a matter

22     of fact, no.

23             And you could use teeth, perhaps, to get something much more

24     precise, like a year plus/minus, but not a long bone or any bone

25     epiphysis fusion, never.

Page 22366

 1             JUDGE KWON:  Mr. Mitchell, is it possible to see a concrete

 2     autopsy report to see how the age is reflected in it?

 3             MR. MITCHELL:  I'll find one.  And if you can give me a couple of

 4     minutes, Mr. President.

 5             JUDGE KWON:  Or we can do that after the break.

 6             MR. MITCHELL:  Certainly.

 7             JUDGE KWON:  Yes.  And just one further question in order to be

 8     clear, Mr. Baraybar.  You see this table, so the second and third

 9     category overlaps in terms of age.  First one -- second one being 13 to

10     17, and third one, 15 to 24.  So there's overlap of as far -- overlap as

11     far as age 15, 16, 17 are concerned.  But in terms of counting, there

12     should be no overlap because they are based upon each autopsy report?

13             THE WITNESS:  Yeah.

14             JUDGE KWON:  Yes.  Thank you.

15             THE WITNESS:  And also, Your Honour, remember that you're

16     counting specific bones.

17             Perhaps for Mr. Karadzic, and for the Chamber as well, to -- just

18     for an issue of clarification, the -- the way in which we grow and we

19     mature is not really linear.  So you cannot really say this person is 16

20     and this person is 15, because there are 15-year-olds that look like 18

21     and 18 that look like 13 perhaps, and so on and so forth.  So it's not

22     really a -- there's always an overlap.  So it is not -- let's put it, it

23     is an exact science but it's not a precise science.  It is an accurate

24     science but not really precise in that respect.

25             MR. KARADZIC: [Interpretation]

Page 22367

 1        Q.   Thank you.  If we can now just revisit the earlier document

 2     P4030, please.  You mentioned today, and I also found it somewhere in

 3     your reports, that the undernourishment and lifestyle and so on can

 4     affect the precision in determining one's age; is that correct?

 5        A.   What I meant is that, to give you an example, malnourishment,

 6     disease, and so on, even high altitude, for that matter, would affect the

 7     balance between growth and development.  So generally growth is

 8     sacrificed for development.  So, for example, somebody -- not to say

 9     malnourished, but someone in high altitude, like in my part of the world,

10     that lives at 4.500 metres above sea level will be smaller people.  Fully

11     developed, but smaller.  Meaning that the body in a way chooses to

12     develop fully, sacrificing growth.  So for example, if you were to

13     measure the bone of a child in that respect and compare it to a European

14     child, you would say, Okay, this child is, I mean, younger because the

15     bone is smaller.  But it doesn't mean that he's younger, he's just simply

16     smaller.  So you've got these issues.  But when you compare and you use,

17     for example, the teeth and the bone together, you get a very good

18     estimate.  If you get only one of the two, you may be underestimating

19     age.  But yet again, as I told you, it is not a matter of many years.

20     You're not talking about -- by saying, This person I think is 5, and

21     suddenly he's 15, that is not -- I mean, the variation is much smaller

22     than that.

23             JUDGE KWON:  Yes, Mr. Mitchell.

24             MR. MITCHELL:  Mr. President, if you want to look at an autopsy

25     report right now --

Page 22368

 1             JUDGE KWON:  Yes, while we are --

 2             MR. MITCHELL:  -- on that topic.

 3             JUDGE KWON:  While our memory's fresh, let's take a look at it.

 4             MR. MITCHELL:  65 ter 2408.  This is one of the reports from a

 5     Kozluk --

 6             THE ACCUSED: [Interpretation] Perhaps it could be easier if we

 7     get a printout so that my associate Professor Dunjic could also take a

 8     look at it during the break and then perhaps it will be easier to

 9     proceed.  And perhaps we can also obtain a Serb -- a B/C/S version,

10     Serbian version.

11             JUDGE KWON:  We heard the explanation of Mr. Baraybar first, and

12     you can print out during the break.  Yes.  Let's -- let's move to the --

13             THE WITNESS:  So --

14             JUDGE KWON:  What page should we look at?

15             MR. MITCHELL:  There's only one page to this report, I believe.

16             JUDGE KWON:  Very well.  It says it's 14 pages.

17             Why don't you move on just one.

18             MR. MITCHELL:  I think page 2, Mr. President.

19             JUDGE KWON:  Yes.  Uh-huh.  This has age-range of 35 to 60.  Can

20     we see some -- some --

21             MR. MITCHELL:  -- a younger age-range?

22             JUDGE KWON:  Let's -- let's do it later on.  Yes, later on.  I'll

23     leave it in the parties -- leave it in the hands of the parties.  Let's

24     proceed.  Yes, Mr. Karadzic.

25             THE ACCUSED: [Interpretation] Could we have P4030 on the screens

Page 22369

 1     again, page 6, please.  That's the paragraph or, rather, the chapter on

 2     age.

 3             MR. KARADZIC: [Interpretation]

 4        Q.   Yes.  Now we have it.  Now, I am a bit puzzled by something here.

 5     It is clear, namely, that the sternal range of the fourth rib and then

 6     pubic symphysis, that two is clear.  However, the sentence, the

 7     above-mentioned techniques in determining the age was obtained by the

 8     standards for epiphysical [as interpreted] union as described by Simmons

 9     and Web and Suchey, and so on, for the Bosnian population, so would that

10     mean that they actually established certain anthropological specificities

11     or racial, if you will, for the Bosnian individuals and did they actually

12     differentiate, distinguish between Serbs, Croats, and Bosniaks?  In other

13     words, the reliance here on the Simmons work, could you tell us a bit

14     about it?  What is it that they did?

15        A.   Okay.  Let me put this into context first to be understood by

16     everybody.  We used -- for aging adults, we're no longer talking about

17     bones fusing or teeth growing or anything of the kind for people over 25.

18     Two techniques that are known to be very robust techniques, these

19     techniques, called the Suchey-Brooks and the Iscan and Loth, look at some

20     changes in the pubic symphysis, that is, the anterior part of the hip

21     bone, and the end of the rib of the fourth rib close to the cartilage

22     that joins from the sternum.  These parts of the bone do change with age.

23             They were original developed, I mean, the technique, that is, a

24     technique of phases, from 1 to 6 or 1 to 8 or whatever, they change with

25     age, and they were developed originally in the United States.  Okay?  The

Page 22370

 1     Suchey-Brooks techniques was developed using an autopsy room sample from

 2     Los Angeles with a multi-racial sample of over 700 people, while the

 3     Iscan and Loth was a sample for Caucasians and African Americans from

 4     Florida.  Okay?  Simmons and Associates did a correction of the

 5     age-ranges for each of the phases on an autopsy room sample from Tuzla.

 6     Okay?  That is the closest sample that existed at the time for a Balkan

 7     population.  And I'm not distinguishing here whether, you know, it is

 8     similar or different to -- or is a difference between Croatians and Serbs

 9     and whoever else.  I mean, it's just for the area.  Such as, for example,

10     the sample that used Suchey-Brooks was a sample from Los Angeles.

11             So what I'm saying for Bosnian population, I mean for the Bosnia

12     population leaving the territory of Bosnia that ended up in the mortuary

13     in Tuzla.  So I do not know if they determined the ethnicity of the

14     cadaver that was being examined.  But that is the closest data that

15     existed at the time regarding a population-specific sample, you know?

16     Because we were told as well at some point, Oh, you've been using

17     standards derived from an American population.  How does an American

18     population has to do with the Balkans?  Okay, well therefore the data was

19     corrected now to a sample from the Balkans, irrespective of, let's say,

20     ethnicity.

21             When I say Bosnian population, because Tuzla, as far as I'm

22     concerned, is in Bosnia, and, you know, whoever ended up in the morgue in

23     Tuzla would be a Bosnian -- I'm not saying -- giving this with any ethnic

24     connotations so to speak.

25        Q.   Thank you.  Is this method -- or, rather, this standard used by

Page 22371

 1     Simmons and others for Bosnia -- for the Bosnian population, is it -- has

 2     it been standardised and has it received scientific support or was it

 3     just a sample that was done by them?  So was it scientifically confirmed

 4     that there are certain anthropological characteristics for people in

 5     Bosnia that are different from those of other people from other areas?

 6        A.   Yes.  As a matter of fact, I can give you more data regarding

 7     this.  At the time, Simmons and Associates was the only standard that was

 8     being created.  They did not apparently keep working on -- on this issue.

 9     However, this data was even slightly modified -- or, rather, perfected by

10     another study based on a population sample from Kosovo in 2008, if I'm

11     not mistaken, by Kimmerle and Associates.  And when you compare the

12     sample from Kosovo yet again as a sample from the Balkans - yet again I'm

13     not differentiating here whether the people involved here could be

14     Albanian or Serbs or -- or Romas or whatever - and you compared, for

15     example, with a population sample from the US, yes, there are

16     differences.  And the overall difference would be - yet again I'm

17     oversimplifying things, but I can give you certainly the references if

18     you'd be interested - is that the Balkan samples when compared to the

19     American samples in starting more or less on the fourth decade, they look

20     older.

21             In other words, if you have, I don't know, a pubic symphysis

22     phase 4, for example, and this phase 4 would be, let's say, 40 years of

23     age for the American sample, in the Balkans it would be 45.  So if we

24     were using American standards at the time, we would be underaging people

25     that would be actually older.  By that is for adults, not for younger

Page 22372

 1     people.  These are people 25 and plus.

 2             JUDGE KWON:  Mr. Karadzic, if it is convenient, we will take the

 3     break now.

 4             Mr. Baraybar, there is one administrative matter we'd like to

 5     deal with in your absence.  So we will resume at 11.00.  So you may be

 6     excused now.

 7             In the meantime, could the Chamber move into private session.

 8                           [The witness stands down]

 9                           [Private session]

10   (redacted)

11   (redacted)

12   (redacted)

13   (redacted)

14   (redacted)

15   (redacted)

16   (redacted)

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18   (redacted)

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20   (redacted)

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22   (redacted)

23   (redacted)

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Page 22373

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10   (redacted)

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14   (redacted)

15   (redacted)

16                           [Open session]

17             JUDGE KWON:  Yes, Mr. Tieger.

18             MR. TIEGER:  A glance back at the transcript indicated there

19     might be some confusion, if the Court looked at the transcript for next

20     week's anticipated schedule.  So to clarify:  It should be

21     Misters Groenewegen and Patelski on Wednesday and concluding with

22     Professor Haglund on Thursday.  Thank you, Mr. President.

23             JUDGE KWON:  Thank you.

24             We'll take a break for half an hour and resume at 11.00.

25             THE ACCUSED:  Could we get the hard copy of these autopsy?  Ah,

Page 22374

 1     sorry, sorry.  Thank you.

 2                           --- Recess taken at 10.29 a.m.

 3                           [The witness takes the stand]

 4                           --- On resuming at 11.02 a.m.

 5             JUDGE KWON:  Yes, Mr. Mitchell.

 6             MR. MITCHELL:  Mr. President, we've got three autopsy reports

 7     here from the Cancari 12 site that you saw the exhumation of yesterday.

 8     There's one from each of the three age ranges that Mr. Baraybar has

 9     talked about, and they're also relevant to the testimony of Dr. Lawrence

10     who will be here next week, so we can discuss them again then.  But I

11     don't know if you'd like the witness to be shown one now or --

12             JUDGE KWON:  Those have been disclosed to the Defence, I take it.

13             MR. MITCHELL:  I believe so, but we'll double-check.

14             JUDGE KWON:  And why don't you hand over the hard copy for their

15     convenience, and I'll leave it in the hands of Mr. Karadzic whether to

16     put that to the witness or not.

17             MR. MITCHELL:  Thank you.

18             JUDGE KWON:  Thank you.  But before we continue, Judge Baird has

19     a question for the witness.

20             JUDGE BAIRD:  Dr. Baraybar, just -- just a very brief question on

21     the question of the samples.  Can we assume that the Tuzla sample and the

22     Kosovo sample harmonised?

23             THE WITNESS:  Yeah.  Roughly speaking, yes, they do.  I mean, I

24     do -- I was checking in the break the age-ranges per phase as I was

25     telling you.  I mean, you have, for example, for each of the techniques

Page 22375

 1     you can have a number phases and see what are the age brackets of each of

 2     them and they are more or less the same, but they are different to the

 3     American sample.

 4             JUDGE BAIRD:  Thank you very much.

 5             JUDGE KWON:  Yes, Mr. Karadzic.

 6             THE ACCUSED: [Interpretation] Thank you.

 7             MR. KARADZIC: [Interpretation]

 8        Q.   Dr. Baraybar, I'm a little nonplussed by these norms, by these

 9     standards applied.  I'm looking at your document P4030 and the CV, and I

10     can't find the Simmons or somebody else endeavoured to establish

11     standards for the Bosnian man.  But on the last page I see in one work

12     that this paper was once presented at the American Academy for Forensic

13     Medicine.  This is the penultimate on your list, Simmons, Tuco,

14     Kesetovic, and Cihlarz.  But that a paper has been presented somewhere

15     does not mean that the work itself has been accepted and that the norm

16     has been established.  Do you agree?

17        A.   No.  As a matter of fact, no.  Remember, for a paper to be

18     accepted into the -- represented to the academy, it has to go in through

19     peer review.  I mean, it is not that you submit a paper and it gets

20     automatically accepted.  That's not the case.  It is true, though, that

21     the paper never made it into publication, and that is something that we

22     should ask perhaps Simmons and Associates.

23             It is true, however, that the nature of the investigation in

24     terms of the raw data that I actually got from Simmons at that time is

25     quite sound.  It is quite sound.  I don't see any problems with it.  And

Page 22376

 1     as I said a moment ago, the results of Simmons are quite similar, I would

 2     say, although the technique is different in terms of statistics used to

 3     treat the data, from what Kimmerle and Associates did in 2008 that

 4     actually was published in the Journal of Forensic Sciences.

 5        Q.   Thank you.  Before this, something from the American journal for

 6     physical anthropology.  Isn't there any more recent reference than this

 7     one where African Americans are referred to as Negroes?  Isn't the term a

 8     bit obsolete?  So isn't the paper itself obsolete?  Hasn't there been any

 9     progress since 1952 in the field?  It's almost 45 years now.

10        A.   I believe it has, but I do not see the relationship of one thing

11     with the other.  I have not mentioned this.  I have not mentioned the

12     American Journal of Physical Anthropology in these references, although

13     the technique I'm referring to of the Iscan and Loth technique from a

14     sample of Caucasian and African Americans is not from the 1950s.  It's

15     much later than that.  I mean, much, much later than that.  So I do not,

16     I mean, see the parallel between the two things.

17        Q.   To the best of your knowledge, has the same been done in Vietnam?

18     Is that how comparisons were made such as between African Americans and

19     whites in America?  Was the same done in Vietnam, and was that

20     standardised?

21        A.   I do not understand, I mean, your question.  What was

22     standardised?  Are you referring to a technique in particular, to the

23     fourth rib in this case?  Or what are you asking me about?

24        Q.   If I understood correctly, indexes for recalculation of age was

25     standardised here.  Was a similar index established for the Bosnian man,

Page 22377

 1     be it a Serb, Croat, or Muslim?  Has that been scientifically approved,

 2     that it can be repeated in any scientific experiment and produce the same

 3     results?  Has this recalculation been standardised?

 4        A.   Well, let me try to answer your question as I understand it.  We

 5     have referred to two techniques here.  One is changes in the pubic

 6     symphysis, that is this anterior part of the pelvis, and the other on the

 7     fourth rib.  Okay?  The techniques, meaning the observations of the

 8     changes in these bones, and the classification of these changes into

 9     phases was developed in the United States, one in a sample, a very large

10     sample in Los Angeles, and the other one in a sample, smaller, in

11     Florida.

12             While these changes and the phases remain the same, okay, the

13     composition of the population sample has changed, for example in the

14     sample of Simmons or the sample of Kimmerle or some other samples in any

15     other country in the world.  So to that we call population-specific

16     standards.  Meaning, I will develop the same technique in a Peruvian

17     population.  So I will look at the same phases, but I may get to the

18     conclusion that phase one in the US sample is, whatever, 20 years of age,

19     and in Peru is 22 or 19 or something of the kind.  So this thing that we

20     would call calibration has been done, for example, for the Balkans by

21     Simmons in 1999, in this paper you refer to, by Kimmerle in 2008 with

22     this Kosovo sample, and is being done, as a matter of fact, in other

23     places.  I mean, most of the -- well, not most, but a number of people in

24     the world use these techniques.  They are very well established, they're

25     very solid, very robust.  Nobody will say that they're useless.  Or the

Page 22378

 1     opposite; they're quite useable.  And I would calibrate this according to

 2     the population.

 3             As a matter of fact, if I'm recalling now correctly, there is

 4     even a study in Serbia by Marija Djuric, published, perhaps, in

 5     Forensic Science International, isn't it?  Professor Djuric - I'm just

 6     almost in a dialogue here - but, I mean, Marija Djuric did a study on

 7     this.  So what I'm trying to say -- and she's a Serbian forensic doctor.

 8     So what I'm saying is it is a very useful technique and therefore

 9     investigators throughout the world tend to calibrate - that would be the

10     proper word - these techniques to their own population standards.  So the

11     answer would be yes.

12        Q.   And reckoning with the papers of Kesetovic and Cihlarz, that

13     implies a certain reference group, a certain reference value.  Do you

14     know what that control group was for them?

15        A.   I may or may not have the specific sample sizes they used.  Let

16     me check on my notes.  Oh, I do.  So, for example, the male sample with

17     242 individuals and the females was actually quite small with 52, and

18     that is for the pubic symphysis.  And for the ribs they used 233 males

19     and 52 females as well.  Obviously compared, for example, to the -- to

20     the Suchey-Brooks sample, it is smaller, but statistically significant

21     nevertheless.  I mean, Suchey-Brooks has 739 cases, so it is like a

22     third.  But it's still, I mean, a fairly large sample.

23        Q.   I understand, Dr. Baraybar, but in order to establish an index

24     for conversion for a specific population such as the Bosnian one, there

25     must be a reference value.  A control group has to exist.  Did Cihlarz

Page 22379

 1     and Kesetovic provide evidence of this?  Because any statement made in

 2     the academy has to be verifiable.

 3        A.   Yes, but let's just clarify.  And maybe we're missing something

 4     here in the translation.  It is not an index for conversion.  It is

 5     really a calibration, so to speak.

 6             And I explain you how it works.  It is actually much more

 7     simple -- I mean, simple than what it sounds.  So imagine the following:

 8     The advantage of working with an autopsy room sample is that you get

 9     individuals who come in with a chronological age, an identity, so you

10     know this person is -- the age is stated in ID card or something of the

11     kind.  So that is your control group.  You're starting with a control

12     group based on the identity of the person in that case and on the age of

13     the person in that specific case.  So that is a control group in itself.

14     You study from the known.  Okay?  So when I say you got 242 people, you

15     got 242 people that had chronological age and were identified, or meaning

16     they were identified and therefore they have an age.  So that is your

17     control group.  You do not need, let's say, a holdout sample that comes

18     from somewhere else.  I mean, it is -- your control group is the one that

19     you base in your examination.

20             So you say, Okay, I got 242 people.  Divided by a decade, for

21     example.  You could -- the one between 10, 20, and 30; 30 and 40; and so

22     on.  So you're going to look at this bone piece and you say, Okay,

23     irrespective of the age of the person, I would ascribe this fragment to

24     phase 2.  Okay?  So then you will count all your phases 2 and you say,

25     Okay, the phase 2 I got people that are 20, 22, 25, 30; therefore, your

Page 22380

 1     range is between 20 and 30.  That's a super-simplification of the -- of

 2     the issue.  That's the way you would actually do it.  So it is sound.

 3     Yes, it is sound.

 4        Q.   Yes, but in these ranges that you mention it cannot be more

 5     precise, can it?

 6        A.   Oh, most definitely not, because you're trying to be accurate

 7     more than precise.  Remember that establishing the age of adults, I mean,

 8     people over 25 that have all their bits and pieces -- I mean -- I mean,

 9     fused, looking at the bones is very imprecise, I mean, unprecise.  It is

10     quite accurate but unprecise.  I mean, you well know that is individuals

11     that are -- that look much older what they are or younger than what they

12     are.

13             So, for example, if I give you a very popular example why a

14     soccer player retires at age 35, because the knees most likely will be

15     totally destroyed by activity, meaning playing soccer.  So if you're

16     looking at the bones of such a person and, you see, looking at the knees,

17     you have only the legs, you say, Oh, this person is very old, because the

18     knees are totally destroyed.  And they happen to be 35, not 85.

19             So it is definitely -- what you have at hand is much less than

20     what you have when the people are younger, where the teeth are developing

21     and the bones are getting fused or growing.  So, yes, you are unprecise

22     but more accurate.  Let's put it that way.

23        Q.   Thank you.  I'm now on page 103 of this document, the previous

24     page, and you stated there very correctly that these are alleged victims

25     from the Srebrenica area, the protected area, victims who were killed in

Page 22381

 1     1995.  The aerial photographs of moved earth, et cetera, was that the key

 2     indicator where you need to dig?

 3        A.   I would say that it was more an orientation, and it varied

 4     according to the site.  So, for example, if I would give you a practical

 5     example, what you see from above is that the -- that the earth has been

 6     scraped.  So you got, like, a stain, so to speak, of soil, that what you

 7     see from above.  So from above you're not really seeing, not always, at

 8     least, that you have a grave.  So you have to actually determine whether

 9     this big stain of soil corresponds to one grave, two graves, many graves,

10     or where the grave is located.  I mean, based on that it's just an

11     orientation.  It's not, you know, a specific thing.

12             There are other sites where this stain is smaller perhaps and

13     then you can, kind of, focus more in an area.  But there are some other

14     areas, and I'm thinking specifically on the Glogova site, where you have

15     this enormous stain and the grave obviously was like all over under this

16     stain.  So it's just a reference.  I mean, it's just only a reference.

17        Q.   Thank you.  Could you assist us somehow in obtaining daily

18     changes of the appearance of the ground, because from the 5th to the

19     25th of August is too long a period, and again very imprecise, because we

20     have a phase of unlawful killing and executions on the one hand and we

21     have the phase of burial of those killed in the woods.  Do you know what

22     it looked like on the 15th, the 16th, the 17th of July, or did you take

23     as reference points only the 5th and the 25th?

24        A.   It would be for me impossible to know how the ground look at any

25     point in time.  I mean, your previous question referred to what I saw on

Page 22382

 1     the aerial photograph that I was shown, and obviously I only know what I

 2     saw on those photographs and on the days or the dates marked on those

 3     photographs.  I wouldn't have any means of knowing how it looked or how

 4     the ground looked from above in those dates.  But as I told you, the

 5     photograph, for me, was simply a reference.

 6             And it's very important to say this because some -- some of

 7     the -- of the sites did not necessarily -- there was not a

 8     hundred per cent correspondence between the stain you saw and -- say that

 9     you have a stain and the site would be, I don't know, right in the middle

10     under it.  Could be a bit on the side.  I mean, the way -- little

11     variations regarding the way you see it from above and the way you find

12     it on the ground.  So the answer is no.  I mean, there's no way for me to

13     know how the ground looked in those days.

14        Q.   Thank you.  Then we'll approach the Prosecution to try to obtain

15     daily photographs.

16             And when you say killed in 1995 in Eastern Bosnia-Herzegovina,

17     were you expected to distinguish or did anyone else distinguish between

18     those who were possibly unlawfully killed and those who were killed in

19     combat, the combat that lasted all of that month?  Because they must have

20     been buried somewhere too.

21        A.   No.  I think that this relates to a previous question you asked

22     at the beginning of this examination.

23             As I said, all these references are just references to the

24     information I was privy to.  I mean, I am not in a position, nor I was

25     then, to -- based on my own observations, so to speak, to determine the

Page 22383

 1     nature of -- of people being buried there, meaning the way combatants,

 2     noncombatants.  Obviously all the interpretations that are presented in

 3     these reports are based on the analysis or after the analysis of the

 4     evidence was recovered from the sites we were indicated to recover.  As I

 5     said, we were not told at any point in time, Go and exhume that grave

 6     because that grave contains so-and-so and so.  Obviously that was not the

 7     type of information we received.  All the background information we

 8     received is that yes, this area contain the casualties or the victims

 9     of -- or alleged victims of the fall of Srebrenica, but that is just

10     background information we obviously needed to proceed with our work.  But

11     not further than that.  We never got any type of, I don't know, specific

12     instruction or information regarding the nature, specific nature, of the

13     victims we were dealing with.

14             And obviously, and it's also present in the report, most of the

15     statements I have written down here are based on direct observations of

16     things.  So, for example, I would find a body that was dressed.  And in a

17     preliminary examination of the remains, you could see it has a wallet in

18     the pocket.  And then you would open the wallet and you would find an ID

19     card with a name and that would be a cursory thing at that moment because

20     that will be very helpful for the mortuary, to, for example, open the

21     ICRC, the International Committee for the Red Cross, book of the missing

22     and find the name of Mr. So-and-so that was the name matching in the ID

23     card, and according to this report this person was last seen in the

24     enclave of Srebrenica in July 1995, and therefore that information would

25     be written down in the report.  Nothing more than that that you have

Page 22384

 1     seen.

 2        Q.   Thank you.  With all due respect, Dr. Baraybar, my first question

 3     today related to those killed before July 1995.  However, do you agree

 4     that even within the number of those killed in July 1995 for the purposes

 5     of this Court it was necessary to make a distinction between those killed

 6     unlawfully and those killed in combat?  So before July 1995, or

 7     between -- before 13 July 1995, it's one batch of people, and in July is

 8     another batch.  Was your team able to distinguish between those two or

 9     even three categories?

10        A.   I think the answer to this question has two parts.  The first

11     part, and this is the straight answer, that would be no.  But the second

12     part will be however - because there's an explanation that complements

13     this no - obviously through a naked-eye examination of a cadaver, of a

14     body, be it decomposed, preserved, or not, you will not be able to say

15     when this person died, let's say, in 1992, 1993, 1994, 1995, obviously

16     not.  However, the associate elements or evidence to those bodies are the

17     ones that make us think and infer, therefore, that these people were

18     likely killed in such and such date.

19             This association - and, as a matter of fact, association is one

20     of the principles of archaeological practice, be it forensic or

21     otherwise - it would allow us to infer, for example, that if I find a

22     body that is dressed, that has personal effects on it, among which is an

23     ID card and the name on that ID card that belongs to a male with a given

24     name appears, for example, in the book of the missing of the ICRC as

25     being seen last in the enclave of Srebrenica in 1995, a priori and unless

Page 22385

 1     is proven otherwise my logical inference would be that this person indeed

 2     died after July 1995, after this person was last seen.

 3             Obviously if, for example, I was able to demonstrate - and to my

 4     knowledge that is not the case until now - that this person was not the

 5     person bearing the ID card, that would be something different.  You know,

 6     happened to be somebody who died three years before.  That's -- that's a

 7     possibility.  But as I told you, everything is possible, but not

 8     everything is probable.  So they are two different things.  I mean,

 9     possibility is 50/50 pretty much, but probability is something different.

10     So it is very important to bear that in mind.

11             So strictly speaking, obviously no.  The answer is no, as I told

12     you.  But:  No, but.  And the "but" rebuts, in a way, the no, because it

13     is not a matter of naked-eye observation of a body.  Certainly, I mean,

14     observing a cadaver like this, I mean, I cannot, I mean, tell you much

15     more than that.  I mean, did it die in year one or year three?  Well,

16     kind of difficult.  I will not be able to tell you he did, unless I have

17     some other associate evidence, that in this case I do have.

18        Q.   Thank you.  You now mentioned clothing and such.  Would you agree

19     that in Glogova and in RV site, that is to say Ravnice, adult males were

20     found wearing clothing such as camouflage trousers, soldiers' boots,

21     et cetera?  Was any conclusion drawn from that?  Was it observed, noted,

22     and was it then perhaps established that those were combatants?

23             JUDGE KWON:  Yes.  Before you answer Mr. Baraybar.

24             Yes, Mr. Mitchell.

25             MR. MITCHELL:  Could I ask for a cite, Mr. President.

Page 22386

 1             THE ACCUSED: [Interpretation] That's from the findings of that

 2     entire team.  It says this was found on these sites.  I can find the

 3     reference later, but I thought perhaps the witness remembers that this

 4     clothing and gear was found on the bodies.  We'll find the cite later.

 5             JUDGE KWON:  Very well.  Can you answer the question,

 6     Mr. Baraybar?

 7             THE WITNESS:  I'm looking at some of the reports because I don't

 8     want to rely only on memory, because as far as memory is concerned I

 9     personally do not recall, personally, that, finding somebody in military

10     fatigues or with military gear.  However, again, I do recall, and I have

11     such occurrence here, for example, in the site of Glogova 5, finding a --

12     in grave A a loaded Beretta pistol, calibre 7.65 millimetres, in a

13     leather holster associated to one of the bodies, that is, 152B, for

14     example.  But this person is not dressed in any -- dressed with any

15     military fatigues.  In one of the Nova Kasaba sites, I think there was

16     also a number of rounds -- or live rounds of ammunition.  But, yet again,

17     not, as I said, associate to somebody dressed in military fatigues.

18             So it would be a matter of then reviewing the specific cases,

19     because, I mean, if it's based on my memory alone, I mean, I wouldn't --

20     I wouldn't trust it.

21        Q.   Thank you.  Talking about the state of the mortal remains, the

22     preservation of the corpse, you speak of that on the fifth page of the

23     report.  This is the report 4030.  And you're talking about primary and

24     secondary graves.  Are these your findings or did you rely on

25     Professor Wright's findings?

Page 22387

 1        A.   A combination of the two.  Because, remember that as much as --

 2     well, not as much, actually less, than Professor Wright, because he

 3     devoted quite a lot of time at the exhumation of sites.  I also directed

 4     a number exhumations, but I also participated, for periods, in some

 5     exhumations with Professor Wright.  So it is a combined thing.  As a

 6     quote, of course I'm quoting here Professor Wright's report, that would

 7     be the most appropriate thing to do, but it is a combined thing.  So it

 8     is my personal observations but also I'm subscribing Professor Wright's

 9     testimony in that matter.

10        Q.   Thank you.  In view of the fact that for 42 months this was the

11     front specially active until spring 1993, I'm interested in this finding

12     regarding the integrity of the remains.  You said that from an

13     anthropological aspect the degree of fragmentation is one element, and

14     the second is the saponification.  Did you have any examples of

15     mummification?  Would a dry soil lead to skeletonisation or would you

16     also encounter examples of mummification?

17        A.   I do not recall example of mummification on the top of my head

18     again, but remember that preservation is primarily related to the

19     conditions of burial.  So, for example, a -- a site that is well drained,

20     that is -- that allows water to seep through it, so, for example, a kind

21     of rocky -- more than rocky, a soil full of gravel would allow water to

22     go through it and then this would tend primarily to allow or promote

23     skeletonisation of bodies.

24             As an example, if we can use examples to illustrate this, for

25     example, the site found at the Brnice Dam that was dug into one of the

Page 22388

 1     dam platforms that was full of gravel, the bodies were skeletonised, were

 2     primarily just bones, while some other sites such as, for example, some

 3     of the -- which site?  Some of the Nova Kasaba sites, for example, there

 4     was a clay-rich soil that tends to trap humidity.  Bodies were

 5     saponified, meaning that the fat saturates and becomes a combination

 6     between wax -- I mean, a wax or a butter, as something quite hard.  But

 7     as mummified bodies, I do not really recall.  I recall some mummified

 8     bodies from other cases that has nothing to do with this one, but not

 9     really, no.

10        Q.   You will agree with me that judging by the integrity of the

11     remains it -- actually, that is a very important element in determining

12     the time of death, isn't it?

13        A.   Certainly.  More than -- yeah.  Integrity understood as

14     preservation more than integrity, because integrity here is used in the

15     term of the -- whether the body's complete or not.  I mean, so I'm using

16     the word integrity here more than -- to differentiate between complete

17     bodies and incomplete bodies.  Primarily in this last case, incomplete

18     bodies due to the so-called robbing or tampering of grave-sites.  But in

19     general terms, yes, preservation is -- is -- is crucial, yes.

20        Q.   But I'm afraid I did not say integrity, "celovitost."  I did say

21     preservation or the degree of the degradation.  So this is where the

22     mix-up comes from.  I said that I was talking about the degree of

23     degradation or the degree of the changes in the body and that that is

24     something that would indicate the time of death, would it not?

25        A.   Up to a certain extent, yes.  But remember the following:  It is

Page 22389

 1     totally different to establish a post-mortem interval or the time since

 2     death in a cadaver, okay, where you can go for hours up to, let's say,

 3     days than after a certain time in which the body is buried and how it is

 4     preserved.  What I'm trying to say is the following:  Would you be able,

 5     by looking at -- at the naked eye, to a body to say that this body has

 6     been buried here for two months and three days or one year and one day?

 7     Of course you cannot.  Yet again, we go back to the whole issue of

 8     precision and accuracy.

 9             If you do have a cadaver, certainly you can take temperature, you

10     can look at rigor mortis, livor mortis, and another number of changes.

11     But in this case, no.  So what I'm trying to say with this is that

12     preservation or -- preservation of the remains here was more dependent on

13     the burial environment, okay, but this would not allow you in precise

14     terms to make an estimate of a post-mortem interval with the same

15     precision that you would do it with a cadaver.

16             So, for example, it would be very difficult to say these people

17     died, let's say, in 1995 or they died at the end of 1994 or -- well, not

18     the end of 1994 but it would be winter, but they would die in 1994 or

19     1993 or so on, however - and that comes with however - we are not looking

20     at bodies in a vacuum.  They are not naked bodies in a hole.  You have

21     bodies with elements that are associated to them.  And this means, yet

22     again, another principle is that the context, in a way, defines up to a

23     certain extent what your interpretations will be.  Because you have

24     bodies that are clothed, that have items of varies kinds that will give

25     you a relative dating.  Not an absolute dating.  Absolute dating would be

Page 22390

 1     something like carbon 14 when you do a scientific test and will give you

 2     a specific number.  In this case it would be relative.  So ID card, name,

 3     found book of the missing July 1995, therefore, I mean, you've got

 4     already a relative dating in that -- in that respect.

 5             So your -- to answer your question, yes you're right in what

 6     you're saying, but, I mean, it cannot be taken out of context,

 7     regrettably.  I mean, we are not just looking at bodies, I mean, naked

 8     bodies with no nothing found in a hole where you have less elements to

 9     make a determination.  In this case you have to combine all these

10     elements to make a logical inference.

11        Q.   And talking about days, what sort of precision would you be able

12     to achieve if we're talking about the time period or the range in days?

13        A.   Again, based on the naked observation of the bodies alone, none.

14     However, you got some other materials that are associated like the

15     watches.  And I believe that you may have seen -- there's a report by

16     Mr. Mills, who's a watch specialist, and you may also know that a number

17     of automatic watches were found in various sites, primary, secondary, on

18     somebody's wrist or about in the field or the field of the grave, and

19     automatic watches, as far as I know, are operated by the oscillation of

20     the wrist.  And when -- when you stop -- I mean, when the wrists stop

21     moving or oscillating, for example, when you're dead, it will take

22     between 32 and 35 hours, if I'm not mistaken - I'm literally referring to

23     another report that is not mine - for it to stop.  And then the day and

24     date combination found in those watches, the way -- throughout my report

25     you're going to see a number of references for these watches, is always

Page 22391

 1     the same.  It's Friday the 15th or Saturday the 15th, although there was

 2     no Saturday the 15th or Saturday the 16th in reality, so it's a little

 3     problem with the watch.  But Friday the 15th are different times.  If you

 4     subtract the number of hours, you get to the 13th.

 5             So yet again that would be another indirect element - forgetting

 6     about the book of the missing, forget about the ICRC and all the rest of

 7     it - to try to establish a time, you know, and a date interval for these

 8     individuals who have been placed in that -- in that grave.

 9             Now, is it scientifically sound?  Totally scientifically sound.

10     You're going to use whatever you have at hand that makes sense in order

11     to make a logical inference.  I mean -- and it's very practical.  As a

12     matter of fact, I consider that approach extremely practical.  That was

13     never used before.  I mean, personally I didn't know much about automatic

14     watches until Mr. Mills came out with his report, and I found it quite, I

15     mean, quite interesting as a matter of fact.

16        Q.   And in your report you mentioned Friday the 15th, while

17     Professor Wright 's report talks about Saturday the 15th.  Perhaps this

18     was then something that indicated two different months.  Perhaps even

19     years.  For example, each month, if the date is different, if last

20     month -- if Saturday was the 15th, the following month the 15th would be

21     the Friday, and so on.

22        A.   You could be right.  The problem is that, at least in as far as

23     I'm concerned, and I have indicated that in my report, we found watches

24     within the same grave that have these two day/dates combination.  So the

25     most likely explanation for this, considering -- taking all the context

Page 22392

 1     as a whole, is that is more a malfunction of the watch than something

 2     else.  Let me clarify this.

 3             If I find bodies with ID cards of people that were last seen

 4     missing in Srebrenica, book of the missing of the ICRC, and the watches

 5     all together, okay, obviously the likelihood of this Saturday 15th being

 6     another year is highly unlikely.  It is much more probably that it is a

 7     malfunction of the watch than a body was kind of inserted in -- I mean,

 8     no.  It's just improbable.  I mean, I won't say impossible, but it is

 9     improbable in this situation.

10        Q.   Thank you.  Dr. Baraybar, I want to tell you why the Defence

11     insists on this.  For example, if you have a person who was seen for the

12     last time in Srebrenica, let's say on the 9th, the 10th, or the

13     11th of July, and then the person was found in one of the graves, are you

14     able to establish whether the person died or was killed on the 12th,

15     13th, the 14th, or the 15th, or the 16th, or after the 16th?  Are you

16     able to establish how long the body stayed on the ground, on the surface,

17     before burial?  In other words, as a forensics expert, are you able to

18     provide my forensics experts with such a description of putrefactory

19     changes which would seem reasonable and logical to him and that he could

20     agree with?

21        A.   Well, it is very difficult.  And the reason why is that you are

22     not talking about individual graves.  So, okay, let's wind back for a --

23     I mean, rewind for a moment.  The basic elements that were found in -- in

24     many of the bodies, I wouldn't say all of the bodies, were a cadaverica

25     fauna.  So you got primarily fly larvae.  As you know, the colonisation

Page 22393

 1     of flies to dead bodies is -- occurs very, very fast.  And this was

 2     alledgedly, yet again, if we're talking about 1995, summertime.  So it

 3     was quite hot, and flies don't take much long to lay their eggs on body

 4     orifices.  I mean, it could be ears, nostrils, mouth, et cetera.  Or open

 5     wounds, for that matter.

 6             So all I can say is that the bodies we found had at least

 7     colonisation of flies at the level of -- at the larval stage.  And in --

 8     you also know that a larvae can grow eating pretty much away flesh in

 9     various conditions as long as it is kind of warm, moist, et cetera.  Even

10     if the body has been, for example, buried.  If the body has been buried,

11     the larvae will continue being, kind of, alive and there they will go to

12     a quiescent stage, and so on.

13             So in that respect the interval of time for the position of eggs

14     and then the appearance of the larvae is always within, let's say, seven

15     days to a week to seven days to ten days, more or less, in these

16     conditions.

17             Now, as I said, the flies arrive very fast.  So you, for example,

18     could be dead, get colonised by the flies, and be buried.  And when you

19     are unburied, you will be found with all these maggots.  But that doesn't

20     mean that you've been exposed for ten days to the surface.  So it is a

21     very tricky -- a very tricky thing, because the flies are very fast to

22     get to you.

23             So in those terms, and understanding that there were many people

24     in one single hole and not just one single body, I would say the state of

25     preservation of the bodies in general was the same -- within the same

Page 22394

 1     site.  It is not as if we have found, for example, I don't know,

 2     20 bodies totally preserved and one totally skeletonised, that you would

 3     say, Well, this is not, I mean, explainable.  But what were you finding?

 4     That you find all these people and in the centre of that you have one

 5     body that's totally skeletonised, then you would say, Well, perhaps this

 6     body's older or came from somewhere else.  This was not the case.

 7             So the state of preservation or decomposition of the remains

 8     was -- per site was quite consistent within itself.  Okay?  So that would

 9     be the explanation I could get to you.  So you've got, for example,

10     larval stage of colonisation of flies and equal, let's say, decomposition

11     regarding that, but obviously having many bodies in a -- in a -- in a

12     single hole also will recreate a microenvironment that will tend either

13     to preserve or decay the bodies at the same rate within the same

14     assemblage, so to speak.  I don't know whether I'm answering your

15     question.

16        Q.   Up to a part in terms of the time of burial.  However,

17     Dr. Baraybar, let's now just stick to July, the second and the third week

18     of July.  Can we -- or were you able to tell whether that person was

19     killed on the 10th, the 11th, the 12th, the 13th, or was that on the 14th

20     or the 15th or the 16th, or was it something that happened after the 16th

21     actually?  This is why I'm asking you this.  We have no evidence about

22     reprisals or illegal executions before the 14th and after the 16th, and

23     we know that a large number of people were killed outside of the illegal

24     executions.

25             JUDGE KWON:  I think witness has answered the question, but --

Page 22395

 1     yes, Mr. Mitchell.

 2             MR. MITCHELL:  That's also just a flat-out misstatement about no

 3     killings before the 14th or after the 16th.

 4             JUDGE KWON:  Thank you, Mr. Mitchell.

 5             Yeah.  I will allow you to put this question for the last time.

 6             But don't -- don't be bound by his explanation as to the time of

 7     execution, but -- yes, Mr. Baraybar.

 8             THE WITNESS:  Thank you, Your Honour.  As I said before, I mean,

 9     I can say simply no.  But obviously saying no is no to the -- just for

10     the record, let me put it this way:  The answer is no.  In other words,

11     can I or can anybody, through a naked-eye examination of a body, to say

12     whether this person in these conditions we have described, of course, for

13     these bodies collected from mass graves, whether these people were killed

14     on day one, two, three, or four?  No, it is not possible.  But I think I

15     have rebutted that argument as well on my previous answers to your

16     previous questions.

17             MR. KARADZIC: [Interpretation]

18        Q.   Thank you.  I would like to draw your attention now to P4034.

19     This is the exhumation report.  I would now like to ask you if you have

20     it with you.  I am on page 3 in the summary of your findings, where it

21     states something about Kasaba 4, for example.  You say that the graves

22     were dug by a backhoe.  Does that mean that the other graves were not dug

23     by a backhoe?

24        A.   Some graves were dug with backhoes or some other graves were dug

25     with front-end loaders.  Some other graves were dug by hand.  There is a

Page 22396

 1     variety of -- of things.  And that is also indicated in the report.

 2     Whenever it was possible to determine such thing, it was, I mean, stated.

 3        Q.   Thank you.  I'm a little bit confused when you say that three --

 4     that two men had the mean ages of 17.  Does that mean that one of them

 5     was 16 and that the other one was 18?

 6        A.   No.  Yet again -- yet again I will refer you to the specific

 7     report, pathology report, to look at the -- the ages of these -- of these

 8     people.  Remember that the way the reports have been presented is a means

 9     of them being easy to read and -- and, kind of, simplified, but I'm not,

10     as I say, eliminating or avoiding things.  All that information exists in

11     the original pathology reports.  I'm just trying to be as -- to make it

12     as readable as possible, otherwise it would be far too dense.  But, I

13     mean, the information exists and obviously I don't have it in front of me

14     but it does exist, and these individuals would have a specific age

15     estimation.

16        Q.   Thank you.  And can we look at the summary for Kasaba 6.  You say

17     that it was dug by hand and it contained the remains of two male

18     individuals, one between 14 and 24 years of age, and that a group was

19     found between 14 and 24 and the other between 22 and 50.  So we have this

20     overlap there.  However, I'm interested.  This person under which four

21     bullets were found, can you tell me at what part, what level of the body,

22     next to which organ, were these bullets found?

23        A.   If I'm not mistaken -- if I'm not mistaken, maybe it is here.

24     Hold on a second.  What I recall is - I have the picture here, let's

25     see - at least in one of the cases was on -- on the head.  I think number

Page 22397

 1     one had one on the head, if I'm not mistaken.

 2             JUDGE KWON:  Page 13.

 3             THE WITNESS:  Page 13 you've got a picture?  Let me see.

 4             JUDGE KWON:  Yes.  We'll upload it, yes.  And if you could mark

 5     it and let us see.

 6             THE WITNESS:  Okay.  Body 1, for example - I was telling you the

 7     wrong thing - body 1, it says here, according to the pathology report

 8     fragmentation of some of the bones from the left hand could have been

 9     caused by gunshot, and a fired bullet was on -- lying next to his left

10     knee in this case.  Okay?

11             JUDGE KWON:  Just a second.  Do you see the monitor in front of

12     you?

13             THE WITNESS: [Overlapping speakers] Yes.  Ah, you have the --

14     thank you.

15             JUDGE KWON:  Do you -- but do you think you can mark --

16             THE WITNESS:  Yes.

17             JUDGE KWON:  -- something on that picture?

18             THE WITNESS:  Yes.

19             JUDGE KWON:  Could you wait till assisted by our usher.  Yes.

20             THE WITNESS:  So it says here that body 1, that is this body

21     here, okay, that's body 1 according to this photograph, it says that a

22     fired bullet was found lying next to his left knee.  So highly likely

23     would be somewhere, I mean, underneath here.  Okay?  And according to the

24     pathology report the bones of the left hand could have been caused by

25     gunshot.  Okay?  And then the left hand is actually under -- underneath

Page 22398

 1     it.  I mean, you cannot really see it.  I mean, you see part of the --

 2     part of the arm there.  You got the arm here.  But it would be pretty

 3     much going underneath it.  Okay?  So that's one.  That's one of them.

 4             Then under body 2 we found four bullets.  One under the head.  So

 5     bullet two is this one here.  So one was under the head there.  Another

 6     under the chest, roughly there.  And two under the pelvic area.  That

 7     would be there.  Okay?  And there were two shell casings of -- spent

 8     shell casings found at the feet, and you actually see one here.  That's

 9     one of the -- of the shelling casings that were -- that were found.

10             JUDGE KWON:  For reference, Mr. Baraybar marked an arrow.  Yes.

11             Could you kindly put your initial.

12             THE WITNESS:  Ah, sure.  Certainly.

13             JUDGE KWON:  And the date of today.

14             THE WITNESS:  Yes.

15             JUDGE KWON:  It's the 2nd --

16             THE WITNESS:  The 2nd, sorry.

17             JUDGE KWON:  -- of December.

18             THE WITNESS:  [Marks]

19             MR. KARADZIC: [Interpretation]

20        Q.   Thank you.  Can you tell us at what depth these bullets were

21     recovered?

22        A.   Yeah, the slugs, I mean the bullet itself, we recovered in the

23     soil under the body, typically between half an inch and one inch,

24     approximately.  So ...

25             JUDGE KWON:  We'll admit this as a Defence exhibit.

Page 22399

 1             THE REGISTRAR:  As Exhibit 1976, Your Honours.

 2             MR. KARADZIC: [Interpretation]

 3        Q.   As the bodies were in the condition that we see here, is it

 4     correct that you were unable to establish whether the injuries were

 5     pari-mortem, in other words, whether these people were shot while they

 6     were still living, and whether these shots were fired at these particular

 7     men; correct?

 8        A.   Well, I tend to disagree [Realtime transcript read in error

 9     "agree"] with you.  Obviously the pathology expert will discuss these

10     issues regarding injuries, but I would give you my position regarding

11     this.  I think that one of the things we do is to determine the most

12     probable cause of death.  In other words, certainly you do not know, and

13     you will never know, whether the person died of a heart attack when it

14     saw the gun and -- and died and then you shot a dead body.  That is

15     actually immaterial.  If we were assuming that, no investigation anywhere

16     in the world could be done.  I mean, pretty much whenever you have a

17     skeletonised body you couldn't say much about it.

18             I think that the logic is rather different.  Meaning, is it the

19     injury you are recording a lethal injury or not?  Meaning, if someone

20     gets shot on the head, this person dies or not.  Therefore what you're

21     determining is the most probable cause of death.  Also given by the

22     context in which other people have been found.  In other words, going

23     back to this context here, what is the likelihood of these people burying

24     themselves and then having bullets fired through their bodies and lying

25     under them in the soil is, I will say, improbable, to say the least.  Yet

Page 22400

 1     again not impossible, but improbable.  Therefore in this case what you

 2     are reconstructing is the most probable, not the most possible scenario.

 3     And as such you're determining also the most probable cause of death.

 4     Otherwise, unless you have, I mean, a cadaver, you wouldn't -- you

 5     wouldn't be able to say absolutely anything.  So it is a very fair

 6     scientific assumption you have to take prior to undertaking any kind of

 7     work of this kind.

 8             JUDGE KWON:  Yes, Mr. Mitchell.

 9             MR. MITCHELL:  Mr. President, I just wanted to clarify the first

10     sentence on line 7 of the previous page.  I don't want to suggest

11     anything, but if that -- I'm not sure whether it's recorded accurately.

12             JUDGE KWON:  I heard that way.  Mr. Baraybar, did you say that at

13     the outset of your answer you tend to agree with Mr. Karadzic?

14             THE WITNESS:  Let me just ...

15             JUDGE KWON:  It's gone.

16             THE WITNESS:  Ah.  Could you refresh my memory?  What was the --

17             JUDGE KWON:  The question was:  "As bodies were in the condition

18     that we see here, is it correct that you were unable to establish whether

19     the injuries were pari-mortem, in other words, whether these people were

20     shot while they were still living and whether these shots were fired at

21     these particular men; correct?"

22             THE WITNESS:  Yeah, I said yes --

23             JUDGE KWON:  Yes.

24             THE WITNESS:  With the however that followed.

25             JUDGE KWON:  Yes.  Thank you.

Page 22401

 1             MR. KARADZIC: [Interpretation]

 2        Q.   However, there were, for instance, shots found under the head of

 3     body 2.  Were there any injuries on body number 2 found that would be

 4     consistent with that shot?

 5        A.   As a matter of fact, the position of the slugs, of the bullets,

 6     matched the injuries I have described, therefore, you know, a gunshot

 7     wound to the head and to the -- to the thorax and to the pelvic area.  So

 8     you've got correspondence, so to speak, between location of the slug and

 9     the body and the injuries on the body, so yes.

10             JUDGE KWON:  Would you like to see the next page, Mr. Baraybar?

11             MR. KARADZIC: [Interpretation]

12        Q.   Does that mean that these victims were lying down when they were

13     shot?  Because, if they were standing either in the grave or outside of

14     it, the trajectory of this slug would have had to be different.  If the

15     injuries on the body and the slugs are in the same area, in other words,

16     they are consistent with each other, that would then mean that the shots

17     were fired while the body were in that position, lying down.

18        A.   Yes.  I don't want to get into a discussion here, but just for

19     the sake of purism, what you're saying is correct.  We could envisage

20     other certainly more complicated scenarios, but in general terms it is

21     correct.  If you have -- but it depends on a number of factors,

22     certainly.  I mean, you can have -- talking about all the infinite

23     possibilities, that, for example, somebody shooting a standing person

24     from above and as such the bullet will tend to come back to the ground,

25     but then you would need to measure the distance and the height by which

Page 22402

 1     this person is shooting somebody from above to below first to the head

 2     and see it's like a triangle, to see where trajectory ends on the ground,

 3     and perhaps this will be much bigger that the extension that the grave

 4     has.  Therefore, it is highly probable, most likely, that the people were

 5     indeed lying down and that is why you found the slugs under the head, the

 6     chest, and the pelvis.

 7             In an another scenario, I would concur with you that perhaps

 8     there are other explanations for it than people could have been standing

 9     or running or whatever, but in this case I would say it's quite

10     straightforward that it is most likely that people were lying down in

11     this hole, whatever, when they were shot.

12        Q.   Thank you.  Since it is impossible to determine whether those

13     injuries were inflicted while the people were still living, based on the

14     strategic of the bullets that were found there we cannot really establish

15     whether those were the bullets that killed these people; correct?

16        A.   Actually, no.  It is not impossible to determine whether the

17     injuries were inflicted while the people were still living based on the

18     trajectory.  The trajectory has nothing to do with whether people were

19     alive or dead.  Your question actually is pointing at a much more -- an

20     almost philosophical, I mean, discussion, regarding whether based on a

21     bone you can determine whether the person had their heart beating or

22     their brain working when they were shot at.  And I told you no, that is

23     not possible.  But what you are not inferring things based on this

24     impossibility.  That impossibility primarily stems from the fact that

25     when you work with a cadaver, right, you are not only establishing the

Page 22403

 1     cause of death, you're also establishing the mechanism of death, the

 2     pathophysiological mechanism by which this person ended up being dead.

 3     But obviously, having a skeleton, you have no organs.  Therefore, you

 4     have to rely on a number of other things, such as the context is one of

 5     them.

 6             So, for example, if you find somebody that did not bury himself

 7     or herself with hands tied behind their back, blindfolded, with a gunshot

 8     wound to the head, it is highly improbable that this was a case, for

 9     example, of suicide, or that this person just had an accidental death;

10     therefore, the issue of mechanism of death in this case is useless.  What

11     you're trying to determine in this case is the most probable cause of

12     death.

13             And certainly, in terms of purism, it is an assumption, because

14     you cannot say whether the person saw the gun and then had a fit and just

15     died and then you shot a dead body.  But that is not, I think, the issue

16     you're trying to determine.  It's whether likely, if somebody gets shot

17     at, this person dies or doesn't die.  And therefore, for example, if you

18     get shot in the hand, it's different than if you get a shot in the head,

19     you know?

20        Q.   Well, this is a bit of a case of a red herring, Dr. Baraybar, but

21     could you tell us, please, whether there's any evidence that those

22     bullets were not fired at people who were already lying down dead?  And

23     how do you imagine a situation where you first ask someone to lie down

24     and then you shoot them dead?

25             JUDGE KWON:  Asked and answered.

Page 22404

 1        Q.   I would like to refer you to your summary for Nova Kasaba

 2     number 7.  There, one male fully grown was found.  Age, the age between

 3     31 and 65.  And you say that the evidence is consistent with him having

 4     been shot while in the grave.  The presence in the grave of a large

 5     calibre ammunition shell casings together with the fact that only one

 6     body was disposed therein suggested that the trench was originally used

 7     as a gun emplacement.  Now, can you exclude with absolute certainty that

 8     this was in fact the case of a combatant who was killed, since he was

 9     found in the trench?

10        A.   Well, let's do the exercise in reverse.  No combatant

11     paraphernalia was found as such, I mean, on the body.  I'm not saying

12     in -- in the trench, but on the body.  And you have two things that are

13     quite different, meaning some large-calibre -- I mean, very large-calibre

14     shells not to be fired by a handgun or a rifle or something of the kind

15     but something much bigger, and then you've got some spent shell casings

16     from a handgun, that is this 7.65 millimetre shell case.  So I do not see

17     what is the relationship between somebody shot at in an empty hole with a

18     handgun rather than some other kind of -- some other kind of weapon on

19     top of the fact that this individual does not have any military

20     paraphernalia in itself.  So obviously we are speculating here, I mean,

21     and it really -- it doesn't really matter what I think personally whether

22     this person is a combatant or not.  Based on the evidence alone, I cannot

23     tell you that this person was a combatant because I could not identify

24     him as a combatant in terms of what we -- how we define a combatant.

25     That's another story.  But, I mean, he's not somebody dressed in fatigues

Page 22405

 1     or something of the kind.  And you got this hole that -- that was

 2     something else.  When I say gun emplacement, it's because you even have

 3     one of these large shells that is smashed.  So it's smashed by something

 4     very heavy.  So most likely something heavy was inside.  I don't know, a

 5     tank.  I mean, some kind of -- something big that was firing these

 6     30 millimetre rounds that were quite -- quite -- quite big.  And then

 7     suddenly you find a body thrown in that hole.  So it's like an

 8     opportunistic use of an area or a trench that was used for something else

 9     in the first place.

10             Other than that, I wouldn't speculate further.  I mean, I have no

11     more legal opinion, so to speak, regarding this case.

12        Q.   Well, first of all, can we agree that this is not a mass grave;

13     correct?  And please, whenever possible, would you just reply with a yes

14     or no, because I'm afraid I'm running out of time.  So we can agree that

15     this is not a mass grave; correct?

16        A.   Yes.

17        Q.   Thank you.  Can we agree that these shell casings, especially the

18     30-millimetre ones, remain at the place from which they had been fired?

19        A.   Yes.

20        Q.   Isn't it more probable, then, that somebody shot from the trench

21     rather than the other way round, that they were shot -- that they were in

22     the trench and then they were fired upon and killed by their own shell?

23        A.   No.  If you want yes or no, I tell you no.  But, I mean, there's

24     an explanation that goes with it.  So I tell you no for the time being,

25     but -- as you request, anyway.  But, I mean, there's an explanation for

Page 22406

 1     the no.  But I keep it a no.

 2        Q.   Very well.  Now, this person was not executed with a

 3     30-millimetre round, correct, because you would have observed that on the

 4     remains?

 5        A.   Yes.

 6        Q.   Isn't it very probable then that the 30-millimetre shell was

 7     fired from the trench rather than into the trench?

 8        A.   Yes.

 9        Q.   Thank you.  You also say for Kasaba 8 that it's possible that the

10     individuals were shot in the mass grave itself, in the grave itself, and

11     you mentioned that there were 33 individuals there, 32 males and 1 whose

12     sex determination could not be performed.  Is it correct that the

13     establishment of the cause of death -- well, was it done independently?

14     Have you done it by yourself?  Or did you also use the findings of

15     Professor Clark and then build them into your report?

16        A.   I never did it myself.  As stated in the report, I'm always

17     quoting the pathologist report.

18        Q.   Thank you.  Did you actually visit all of these sites?  For

19     instance, Kasaba 6, 7, 8, did you take part in their recovery, or did you

20     just receive descriptions of them?

21        A.   No.  I did -- I did the recovery myself.

22        Q.   Thank you.  You can also not claim for these people whether they

23     were killed in early July or late July or maybe even before July;

24     correct?

25        A.   Yes, although this issue has been recurring in -- in your

Page 22407

 1     questions.  I say yes, but.  I mean, I leave the "but" as I answered

 2     previously in your questions.

 3        Q.   Thank you.  Would you now please take a look at Glogova 2.  There

 4     is a separate paper on that.  However, it is also described on page 197,

 5     following Konjevic Polje 2, and then we see Glogova 2.  Konjevic Polje 2

 6     was also a place where one body was recovered; correct?  And the

 7     age-range was rather large, wide, between 31 and 71 years of age;

 8     correct?

 9        A.   Yes.

10        Q.   In Konjevic Polje 9, individuals were recovered --

11             JUDGE KWON:  Where do we have it, exhibit number and page number?

12             THE ACCUSED: [Interpretation] That's the next page after the one

13     that we already have before us with Nova Kasaba 8.  It's the following

14     page.

15             JUDGE KWON:  I'm sorry.  Yes.

16             MR. KARADZIC: [Interpretation]

17        Q.   So we see Konjevic Polje with 9 bodies, and then there is a watch

18     that was recovered there showing the 15th, Friday.  And then

19     Konjevic Polje 2, there is one body, also not a mass grave.  And then if

20     we look at Glogova 2 and then go -- move on to the next page, and I

21     believe in English that's also on the next page, let's see what the

22     conclusion was there.

23             You concluded here, didn't you, that there were artefacts

24     recovered -- or, rather, there were traces of clay from some other site

25     found there; correct?

Page 22408

 1        A.   I'm a bit confused here.  What are we looking at now?  Because I

 2     got on the screen something else, so ...

 3             MR. MITCHELL:  Mr. President, I think we need to go -- it starts

 4     on page 32 of the report.  I'm not sure what -- whether that's the same

 5     page in e-court, but it will be around page 32, 31 --

 6             JUDGE KWON:  Mr. Karadzic, starting with the summary and

 7     conclusions on Glogova, is this the page you're referring to?

 8             THE ACCUSED: [Interpretation] Well, in the copy I have, the

 9     report I have, it's the same type of summary -- the same summary as the

10     Konjevic Polje and then Glogova 2 follows.  The bullets looks the -- look

11     the same.

12             The subtitle appearing on the screen is not consistent with what

13     I have in my report.  Maybe it's just graphically different.

14             MR. KARADZIC: [Interpretation]

15        Q.   Can we take a look further down where you discuss Glogova 5,

16     where you say it was undisturbed.  There were two graves there.  So this

17     was a group of graves, correct, Glogova 2?

18        A.   Yes.

19        Q.   And you conclude that Glogova 5 was a primary grave for a set of

20     remains, whereas for another set of remains it was a secondary grave;

21     correct?

22        A.   GL05 is a primary site, yes, and GL02, for example, among others,

23     is a robbed site.  It's still a primary site that has been tampered with,

24     robbed, disturbed.

25        Q.   Well, then I will try to read out the portion and then you will

Page 22409

 1     find it.

 2             GL05 was an untouched site composed of two graves coalescing

 3     with --

 4             JUDGE KWON:  Exhibit P4033, page 4.

 5             THE ACCUSED: [Interpretation] Well, the way I have it, it's part

 6     of --

 7             JUDGE KWON:  I think this is it.

 8             MR. MITCHELL:  Mr. President, I think it was the report we

 9     were -- oh, no, you're correct.  My apologies.

10             JUDGE KWON:  This also started with an untouched site.  Yes.  We

11     go back to the previous one.

12             MR. MITCHELL:  That's what I was thinking, Mr. President.  So the

13     previous one, page 34.

14             JUDGE KWON:  Yes.

15             MR. KARADZIC: [Interpretation]

16        Q.   Well, I am reading from the resume part, and this portion is

17     probably somewhere elsewhere in the text.  And the way I have it, it's

18     document P4034.  However, the same matters are discussed.  I will

19     continue interpreting this.  I won't read it out.

20             So what was found there were two graves close to each other, and

21     73 bodies were recovered there, almost whole.  And there were also some

22     body parts found in addition to those.  And you also concluded that a

23     number of these bodies had multiple fractures of the bones.  And you also

24     concluded that the clay was rich in vegetation, and this clay soil was

25     foreign to the grave; correct?

Page 22410

 1        A.   Yes.

 2             JUDGE KWON:  Page 41.

 3             MR. KARADZIC: [Interpretation]

 4        Q.   Does that mean that for a number of bodies this was a primary

 5     grave, whereas for another number of bodies it was a secondary grave?

 6        A.   No, really, the grave was primary for all the bodies.  What

 7     changed was the condition in which the bodies were.  So some bodies were

 8     complete and some bodies were, let's say, fragmented, so to speak, prior

 9     to getting into the primary grave.

10        Q.   Very well.  So this was at the time of death; correct?

11        A.   Yeah.  Presumably, yes.  Mm-hmm.

12        Q.   Thank you.

13             JUDGE BAIRD:  Dr. Baraybar, the question of the clay matrix was

14     foreign to the grave?

15             THE WITNESS:  Yes, according --

16             JUDGE BAIRD:  What does that mean?

17             THE WITNESS:  Yes, according to Professor Brown, if I'm not

18     mistaken, analysis of the soil and pollen, the -- all these remains were

19     placed in this hole in Glogova 5 with soil as well.  They were not only

20     bodies alone, were bodies that came with some soil.  And this soil was

21     different to the soil in which the original hole had been dug.

22             JUDGE BAIRD:  But it was a primary grave?

23             THE WITNESS:  It was a primary grave.  And one explanation for

24     this could be, just to simplify things, that bodies were -- for example,

25     if you have bodies lying on the ground and you pick them up, for example,

Page 22411

 1     with a machine like a front-end loader, the front-end loader will scrape

 2     also soil from underneath it and put them together with them.

 3             JUDGE BAIRD:  Thank you.

 4             JUDGE KWON:  I note the time, Mr. Karadzic.  Your time is up some

 5     time ago, but how much longer would you need to conclude your

 6     cross-examination, Mr. Karadzic?

 7             THE ACCUSED: [Interpretation] I would appreciate receiving as

 8     much time as possible from the next session when you also calculate in

 9     the re-direct, because we don't have a witness after this one today.

10             JUDGE KWON:  You spent so many time asking repetitive questions.

11     In any event, then we'll take a break for an hour and resume at 1.30.

12                           --- Luncheon recess taken at 12.30 p.m.

13                           --- On resuming at 1.30 p.m.

14             JUDGE KWON:  Yes, Mr. Mitchell.

15             MR. MITCHELL:  Thank you, Mr. President.  Just to confirm what

16     you asked me earlier about those three autopsy reports that were all

17     disclosed on the 9th of July, 2009:  I also wanted to put on the record

18     the watch report by Mr. Mills that was talked about both yesterday and

19     today is on our 65 ter list with number 2480, just in case Mr. Karadzic

20     wants to refer to that at all.

21             JUDGE KWON:  Thank you.

22             Yes, Mr. Karadzic, please continue.

23             THE ACCUSED: [Interpretation] Thank you.

24             MR. KARADZIC: [Interpretation]

25        Q.   Do you agree, Dr. Baraybar, when a soldier gets killed, whatever

Page 22412

 1     army he belongs to, they wouldn't bury his equipment, his kit, or his

 2     rifle together with the body?

 3        A.   I mean, I -- it's beyond my field of expertise, so I wouldn't

 4     comment on that.

 5        Q.   But right now in relation to Kasaba 7 where one man was found you

 6     said you couldn't say whether he was a soldier or not because his

 7     military equipment or weapons were not found with him.  My position is

 8     that not a single person alive would bury the equipment and the weapons

 9     of a soldier together with him.

10        A.   What I refer to was primarily paraphernalia, starting with

11     clothing and things of the kind.  I presume, but that's a totally

12     personal opinion, that you wouldn't bury somebody with a weapon.  But

13     that's not being an expert opinion, that's just a personal opinion.  But,

14     I mean, I was referring specifically to clothing and other items that

15     would, I mean, make it look as if this person was a soldier, a combatant

16     of some kind.

17        Q.   And would you agree that if somebody's running from an advancing

18     force the first best thing they would do would be to change into civilian

19     clothes, shed the uniform?

20        A.   Yet again it's not my field of expertise.  I mean, I don't think

21     my opinion is worth anything as an individual.  As an expert, I have no

22     opinion regarding that.

23        Q.   Thank you.  Thank you.  But you mentioned this a moment ago, so I

24     have to clear things up.  Should I then just disregard all such comments

25     that you made?

Page 22413

 1        A.   I mean, what comments?  I -- I mean, I'm reading the proceedings

 2     here, and I don't see any -- any discrepancy between the things I'm

 3     saying.  But if you believe there is one, please point it out to me.

 4        Q.   No.  I accept it's not your field of expertise, but it looked

 5     like it was because even before the break you said the person was not a

 6     combatant because there were no paraphernalia with him, no artefacts that

 7     would indicate that he was a soldier.  That's why I said, If somebody, a

 8     soldier, is running from an enemy army that's advancing, the first thing

 9     they would do would be to change into civilian clothing.

10        A.   There are two points here.  I mean, first, I never said it was or

11     was not a combatant, because, I mean, what I said is that there was no

12     paraphernalia or clothing or anything that made me think it was a soldier

13     as such.  I mean, whether a combatant is a soldier or could be somebody

14     dressed in civilians clothes is another story and another field of

15     discussion that I will not engage in.

16             But if what you are asking me here is regarding whether somebody

17     running from the enemy line is changing clothing, well that, I have no

18     opinion regarding that, because, I mean -- or if you want to know my

19     personal opinion, that I do not know, I mean, what is the value of it as

20     an individual, I presume that if you're running away from the enemy line

21     you have to have other clothing to get changed in the run, what is

22     something ... quite a difficult exercise, I believe.  I mean, changing

23     your trousers and shirt and whatever to other clothing while you're

24     running.  But, anyway that's my personal opinion.

25             JUDGE KWON:  Thank you, Doctor.

Page 22414

 1             Mr. Karadzic, I view this as a waste of time.

 2             THE ACCUSED: [Interpretation] Thank you.

 3             MR. KARADZIC: [Interpretation]

 4        Q.   But you did conclude that in this grave-site, Glogova 5, and we

 5     discussed it before the break, that there were leaves and clay from a

 6     different site around the bodies.  Is it then reasonable to assume that

 7     these bodies were brought from somewhere else and then buried in that

 8     grave?  It is a primary grave-site for them, but it's not the location

 9     where they met their death or were executed.

10        A.   Yes.  That's -- that is correct.

11        Q.   Thank you.  You must be familiar with the obligation to sanitise

12     the terrain after combat.  The mortal remains of humans and animals have

13     to be removed; correct?

14        A.   I don't know if it's an obligation.  It is, I would call it, a

15     customary -- I mean a customary practice in some -- in some countries.

16     Not in all the countries anyway.  Mm-hmm.

17        Q.   In the summary and in the conclusions, you say that -- which

18     grave is it?  It ends with Glogova 7.  Glogova 2 and Glogova 7, you say

19     that 19 bodies were found.  And the exhumation was on the 18th and

20     19th of August.  Two were around 7.  In the case of eight bodies, the

21     cause of death was not established, and the rest had been killed by

22     gunshot.

23        A.   We look in the report of Glogova 2 from 1999 and 2001?  Are you

24     referring to that?

25             JUDGE KWON:  Yes, Mr. Mitchell.

Page 22415

 1             MR. MITCHELL:  It's the 2001 report.

 2             JUDGE KWON:  Yes.  Exhibit P4033.  Yes.

 3             THE ACCUSED: [Interpretation] [Microphone not

 4     activated] ... before me.  P45034, summary for Nova Kasaba and the rest.

 5     In my text, it's page 8, Exhumations in Eastern Bosnia, August to

 6     October.  In Serbian, it's page 8.

 7             JUDGE KWON:  Yes.

 8             MR. MITCHELL:  I'm sorry, maybe it's my confusion, but that's --

 9     the 1999 report is the one with Nova Kasaba in it.  Glogova 7 is in the

10     second report.  It's not in that one.  So I'm not sure which report we're

11     focusing on at the moment.

12             THE ACCUSED: [Interpretation] There's just a reference to

13     Glogova 7.  It's P4034.  It's only summary and conclusions.

14             MR. KARADZIC: [Interpretation]

15        Q.   Let me remind you, you found all sorts of tinned food and

16     clothing there; correct?  Three persons had bandaged wounds and

17     tourniquets.

18        A.   I'm trying to locate, I mean, the page you're talking about.

19     Only one second.

20        Q.   8 December 1999, exhumation report on mass graves in

21     Eastern Bosnia.  My page 8, your page 7, 8, or 9.  And it's the chapter

22     "Summary and Conclusions."

23             We have the English version on the screen.  You can see it on the

24     monitor, Doctor.

25        A.   Yeah, that's Nova Kasaba 4, but you're talking about Glogova;

Page 22416

 1     right?  Or you're talking about Nova Kasaba?  Because that -- I'm a bit

 2     confused.  What -- what site are you talking about, Glogova or

 3     Nova Kasaba?

 4        Q.   I'm talking about the one on the screen now, but the previous

 5     page contains references to Glogova 2 and Glogova 7.  That's why I

 6     mentioned it.  We have it on the screen now.  Have a look, please.

 7             JUDGE KWON:  This is in 1999 report.

 8             THE WITNESS:  Yeah.  Yes, I have it here, please.

 9             MR. KARADZIC: [Interpretation]

10        Q.   Is it reasonable to infer that these were combatants who before

11     death had been bandaged and had tourniquets put on them?

12        A.   Well, it would be fair to conclude that they were individuals

13     that were wounded by gunshot wound prior to being killed.  I mean,

14     whether they were combatants or not, I do not know.  Yet again, there was

15     no evidence, as I said, of some kind of combatant attire, so to speak.

16        Q.   As we agreed a moment ago, nobody's crazy to bury equipment and

17     weapons with bodies, and we didn't even have any uniforms, if you

18     remember.  Our armies were popular armies.  Most men did not have

19     uniforms.  Even if they did not get a chance to change, many went through

20     the entire war in civilian clothing.  Did you know that?

21        A.   I didn't.  But yet again that's information that I'm not privy

22     to.  So if I, as an expert, have to make a definition, I have to use some

23     measurable, visible, objective elements.  I mean, in this case, for

24     example, somebody with camouflage fatigues or some other military or

25     something used by armed forces or police of anything of the kind -

Page 22417

 1     because I have dealt with, as a matter of fact, with military casualties

 2     too in other contexts - not in this specific context in which you

 3     identify this person as a military personnel as what you were seeing was

 4     something that I wouldn't, as a civilian, wear, for example.  But, I

 5     mean, in this case what I've said at the beginning, and I keep saying, is

 6     that there was no objective elements that allow me to make that

 7     judgement.

 8             I mean, you are making that judgement and you have the right to

 9     do so, but, I mean, I cannot, I mean, as an expert make that judgement.

10     I can as an individual tell you what I think or not, but that is totally

11     irrelevant, I mean, in this testimony, I believe.

12        Q.   Well, probably, from your viewpoint as anthropologist, this is

13     not relevant for our forensic affairs.  It is relevant.

14             Further below you talk about tinned food, items of clothing, et

15     cetera.  Would that be an indication of preparations for some individual

16     journey?  They have all sorts of canned food.

17             JUDGE KWON:  Mr. Karadzic, I'm struggling to understand why you

18     are asking -- putting such questions to the witness.  Is witness able to

19     answer such questions?  I think you're coming to an end.

20             THE ACCUSED: [Interpretation] Your Excellency, my main purpose is

21     to establish whether those were prisoners of war liquidated by someone or

22     they were fighting men attempting a breakthrough and getting killed.

23             JUDGE KWON:  It's a perfectly legitimate subject for your

24     submission, but there are certain extent of questions to be put to this

25     witness as an expert.  Please move on.

Page 22418

 1             THE ACCUSED: [Interpretation] Thank you.  I should now like to

 2     call up this report that we received courtesy of Mr. Mitchell.  The first

 3     one we received, case K3166B.  Can we call up that document in e-court.

 4             JUDGE KWON:  Yes, Mr. Mitchell.

 5             MR. MITCHELL:  We've uploaded those three into e-court.  They

 6     have 65 ter numbers 23550, 23551, and 23552.  We might need to just bring

 7     up the first one and --

 8             JUDGE KWON:  Thank you.

 9             THE ACCUSED: [Interpretation] The first one I got.  It's a

10     combined report, not the three other ones.  It was easier for me to

11     review.

12             JUDGE KWON:  Let us show the second page.  Please check whether

13     this is the one you want, Mr. Karadzic.  Otherwise we'll --

14             THE ACCUSED: [Interpretation] No, no.

15             JUDGE KWON:  -- move on.

16             THE ACCUSED: [Interpretation] It's not the right document.  The

17     first one we were given in hard copy before the three other ones.

18             JUDGE KWON:  We'll try to match with the e-court number.  We'll

19     try the next one.

20             THE ACCUSED: [Interpretation] ERN X0042483.  No.  483.  0042483.

21             JUDGE KWON:  Yes.

22             MR. MITCHELL:  Mr. Reid tells me it's the third number --

23             JUDGE KWON:  Yes.

24             MR. MITCHELL:  -- that ends in 52.

25             JUDGE KWON:  Yes.

Page 22419

 1             THE ACCUSED: [Interpretation] 2408.  65 ter number is 2408.  Yes.

 2             MR. KARADZIC: [Interpretation]

 3        Q.   In this case, you performed an anthropological forensic

 4     expertise, and Mr. Clark did the pathology.

 5        A.   I do not know if me personally did, but, I mean, somebody did for

 6     sure, yeah.  I would need to look at the -- the anthropology forms or the

 7     part of the -- of the report where it says who did the anthropology

 8     examination.  But for your -- I mean, what you're stating is correct,

 9     even if I was not individually involved necessarily.  I do not recall the

10     case by number, of course.

11        Q.   Thank you.  Do you agree that physical defects in cadavers that

12     underwent skeletonisation, degradation, et cetera, do not necessarily

13     indicate a cause of death?

14        A.   I think we had this discussion before, and I told you that I did

15     not agree with you.  I think that we were discussing one -- before one of

16     the breaks, I mean, regarding the most probable cause of death and all

17     the rest of it.  I think I already answered that -- that question.

18        Q.   Look at the cause of death.  Do we have a way of establishing

19     that this defect in the chest was at the same time the cause of death,

20     and do we need to have a description of putrescent changes for that?

21        A.   Well, as I said at the beginning, what you determine here is the

22     most probable cause of death.  But in addition to that, what you're

23     looking at is a summary of the autopsy report.  So there is an autopsy

24     report that comes along that explains, I guess, in detail what were the

25     findings, in case what was broken, that there was a piece of jacket of

Page 22420

 1     the bullet that was still found in soft tissues of the back, and things

 2     of that kind, and therefore it was the opinion of the pathologist in this

 3     case that the gunshot wound to the chest was the most probable cause of

 4     death in this specific case.  We are not talking about pathophysiology of

 5     death and whether the person had a heart attack before being shot or

 6     something of the kind.  That is totally immaterial in this discussion.

 7     But regarding what we're seeing on the screen, we're just looking at the

 8     summary yet again.

 9             JUDGE KWON:  Would you like to see this report?

10             THE WITNESS:  Not me personally, but, I mean, if the Chamber

11     wants, of course.

12             JUDGE KWON:  No.  Let's proceed.

13             THE ACCUSED: [Interpretation] Can we seat next page, please.

14             MR. KARADZIC: [Interpretation]

15        Q.   It says the gender was determined through pathological analysis

16     of soft tissues and pathologically it could not be established.

17        A.   Anthropologically, no, it's not that it could not be established.

18     It meant that whenever you had external genitalia present and a body was

19     saponified or otherwise was visible, you wouldn't need to go through the

20     effort of accessing, for example, the pelvic cavity in order to see

21     whether it was really a male.  If you're seeing genitalia there, it is, I

22     mean, enough to determine the person is male or female, for that matter.

23     If you have no genitalia, then you have to do the very invasive, I mean,

24     work of going into the pelvic cavity first, skull later, and then long

25     bones if it is the case in order to observe different characteristics.

Page 22421

 1     But if you have external genitalia, I mean, that's why you put

 2     indeterminant because you didn't take the effort, the extra effort, to

 3     just go and investigate those structures.

 4        Q.   Thank you.  So anthropologically it was determined that the age

 5     was 35 and 60 and the height had a margin of error of 7.7?

 6        A.   That is -- that is correct.  But just for you to know, all the

 7     height determination in order to be -- or to be fit into a 95 per cent

 8     confidence interval will have the same standard deviation.  What makes,

 9     as a matter of fact, and if I may, the estimation of stature pretty much

10     useless in many contexts, because at the end of the day stature is as a

11     legal -- with a legal value, is a stature that may be on a piece of

12     personal ID.  And if you are a tall person and you report yourself as

13     shorter, or if you're short and report yourself as taller, what is on

14     your ID is what is valid.  Not your real stature.  So this is really an

15     academic discussion that can go on and.  But just for the record, to

16     understand that this type of estimation here is not, let's say, unique to

17     this kind of work, it is as broad and as general as in any other kind of

18     setting.  You always will have a plus/minus 5, plus/minus 7 centimetres,

19     what makes quite -- I mean, determination quite useless in many respects.

20        Q.   Thank you.

21             THE ACCUSED: [Interpretation] We see page 3.  Sorry, 3 pages

22     further.  It's the autopsy report.  This was the summary, and we want the

23     report now.  It says the ERN ends in 486.

24             JUDGE KWON:  I think it's safe -- it's fair to the witness to

25     seat next page and then move on to the autopsy report.  Albeit briefly.

Page 22422

 1     Next page.

 2             Very well.  Let's move on to the page Mr. Karadzic indicated.

 3             THE ACCUSED: [Interpretation] It has to be one page before.  [In

 4     English] Other page for autopsy report.

 5             MR. KARADZIC: [Interpretation]

 6        Q.   This is a description of a complete body with some soft tissue,

 7     fragments of skin, clothing, ligature around the wrists made of cloth.

 8     Can we see the degree of putrefaction changes here that enable us to

 9     establish the time of death?

10        A.   As I said at the beginning, such determination in the conditions

11     in which we have worked and in the condition in which the bodies were

12     buried makes it, I mean, senseless.  As I said at the beginning, we are

13     not dealing with fresh cadavers here where you have very specific signs

14     that may allow you to calculate a post-mortem interval.  Therefore, the

15     examinations at naked eye, as it is this case, of a body alone as the

16     body alone will not allow you to say whether this body -- when this

17     person died and became a body at, you know, a specific time or day.

18     Obviously it is -- it would be safe to say or accurate to say that these

19     people did not die 50 years before, but certainly you can't say

20     otherwise.

21             JUDGE KWON:  Thank you, Mr. Baraybar.  You can ask the same

22     question with respect to ten -- for example, 1.000 bodies.  I think

23     it's -- I find it to be repetitive.  Come to a conclusion.

24             MR. KARADZIC: [Interpretation]

25        Q.   All right.  Now I have to move on to something else, but I have

Page 22423

 1     to draw the conclusion that even if I were a pathologist, I could not do

 2     more than you have done.  I cannot establishment time of death; right?

 3        A.   The time of death, certainly not.  Nor you nor anybody else.  The

 4     time of death, no.

 5        Q.   How accurately?  What is the time range, 50 years?

 6        A.   No.  What I said is that you will not be enable to say, based on

 7     what we have found, that these people belonged to, I mean, some

 8     outrageous interval of time, 50 years, a hundred years, or so on, because

 9     there were obviously elements to say they were contemporaneous remains.

10     Right?  I mean, that is what we have said at the beginning as well.  I

11     mean, the conditions which they were buried; they were saponified; some

12     of them, depending on the soil conditions, some of the them skeletonized,

13     et cetera.

14             However, I also have said, and I want to say for the last time,

15     the condition of remains alone is not to be taken out of context.  We

16     have to take the context as a whole.  And the context as a whole means

17     that you have bodies, you've got artefacts associate to those bodies,

18     you've got all sorts of other things that allow you to pinpoint some kind

19     of interval.  You've got ID cards, you've got watches, you've got all

20     sorts of things, and all those things together and independently point

21     out to the same time interval.  So I do not think it is correct to assume

22     or to try to insinuate that we are looking at bodies that are naked and

23     in a hole.  And we have, with the naked eye again, to make an estimate,

24     that would be a guesstimate, as a matter of fact, of when they died.  I

25     think that there has been explained sufficiently that we are not looking

Page 22424

 1     at things separately.  So we have to look at things in context.

 2             And as an archaeologist, when I was in the field, I was

 3     recovering a context.  I was not recovering bodies and then dropping

 4     everything else.  I was not taking a body out and then getting the

 5     clothes out and just throw it on the side and the watches or whatever.

 6     All this evidence together is what allowed me to express expert opinions

 7     regarding different things such as the ones that I presented in these

 8     reports.

 9        Q.   Thank you.  Could we just briefly see the second page to confirm

10     that a razor was found, cigarettes, a lighter, two keys were found on

11     this body.  Can we say page 2 of the document.  Yes, it's written there,

12     but it's also written in the summary.  Is that right?  I am particularly

13     interested in the razor.  This was recorded; correct?

14        A.   Yes.  Whatever you see there was recorded, yes.

15        Q.   Thank you.  Then I won't be asking you whether you know that a

16     prisoner would not be allowed to keep a razor.

17        A.   Is that a question or a statement?  I mean, you asked me if I

18     know.  Well, I understand that a prisoner in a prison is not allowed to

19     have a razor, a gun, anything of the kind, in a prison.  Yes, that is my

20     understanding, I think.  I'm not a prison expert either, but it would be

21     my understanding that people in a prison or confined in a cell would not

22     be allowed to have something with which it can hurt himself or some other

23     people.

24        Q.   Thank you.  You were speaking about the minimal number.  Do you

25     know the findings of Mr. Manning, who determined that DNA analysis

Page 22425

 1     established 5.021 and there were certain overlaps so it had to be reduced

 2     to 4.017 in total?

 3        A.   No, I was not aware of that report.  I mean, I have not read

 4     Mr. Manning's report.

 5             JUDGE KWON:  You said Mr. Manning's report.

 6             MR. MITCHELL:  Yes.  Citation please, Mr. President.

 7             THE ACCUSED: [Interpretation] I don't know the 65 ter number, but

 8     in the B/C/S it's 0614-8656, and then 8680.  And then on the next page of

 9     the summary of the forensic material of 2007, Mr. Manning says -- if we

10     can see that on the screen, that would be even better.  ERN number in the

11     B/C/S is 0614.

12             JUDGE KWON:  Mr. Karadzic, Mr. Baraybar didn't know about

13     Dean Manning's report.  There's no point of putting that.  What is your

14     question for this witness, Mr. Karadzic?

15             THE ACCUSED: [Interpretation] Perhaps Dr. Baraybar does not know

16     about these findings, but he knows about the minimum number.  That's what

17     he was working on.  Also Mr. Manning was working on that in 2007 after

18     Dr. Baraybar dealt with that.  So actually this then amounts to new

19     information.  And I thought it would be all right to show that to the

20     witness.  65 ter 3936.  It's the second page.  Yes, just one moment,

21     please.  I don't have that.  Yes, yes.  That's it.

22             MR. KARADZIC: [Interpretation]

23        Q.   Since you did look at the minimum number, I would like you to

24     look at the second paragraph, where the responsibility for the exhumation

25     of mass graves is discussed, that this was transferred to the Government

Page 22426

 1     of Bosnia and Herzegovina from the ICTY, and then it states all victims

 2     identified through the DNA analysis at the ICMP is 5021.

 3             THE ACCUSED: [Interpretation] Can we scroll up a little bit,

 4     please.

 5             JUDGE KWON:  The other way round, yes.

 6             MR. KARADZIC: [Interpretation]

 7        Q.   Can you please look and can you see whether it states there that

 8     758 unique DNA records were found which had not been matched to a person

 9     yet?  They don't know whose samples they are, so that number should be

10     subtracted from the total.  And then can we -- yes, yes, on the next one

11     we see what was it that was done.  Victims relating to Srebrenica that

12     were identified --

13             THE INTERPRETER:  Could Mr. Karadzic please repeat what he said.

14             JUDGE KWON:  Mr. Karadzic, could you repeat what you said.

15     Interpreters couldn't follow.

16             THE ACCUSED: [Interpretation] Yes.  You can see it on the screen.

17     Srebrenica victims are identified via DNA analysis in mass graves, 4.017.

18             MR. KARADZIC: [Interpretation]

19        Q.   Dr. Baraybar, do you agree that the DNA, if it's accurate, cannot

20     be disputed in any way?  Do you agree?

21        A.   Well, everything can be disputed in anyway, even DNA.  But, I

22     mean, in this case, I guess, in the context of your question I would say,

23     I mean, I agree with you, yeah, it cannot be disputed.

24        Q.   Can we look at the next page, please.  Well, all right.  We don't

25     have to deal with this any more.  All right.  Thank you.  Thank you for

Page 22427

 1     the answer and I hope I will have the opportunity to discuss this

 2     document with the author.

 3             Do you agree that in all of these findings the time of death and

 4     the time of burial were not established either through forensic or

 5     anthropological examination?

 6        A.   Yes.  As I've said many times, yes, you're correct.  Not through

 7     anthropological examination.  Not through the naked-eye examination or

 8     remains, no.

 9        Q.   Thank you.  Can I just ask for a moment, please.

10             Dr. Baraybar, do you know who Dusan Janc is?

11        A.   No.  Doesn't -- I mean, doesn't ring a bell by name, no.

12        Q.   I think that he's one of the investigators of the OTP.  In 2009,

13     already, you didn't have any insight into the materials that became

14     available in 2009; is that right?

15        A.   Yes.  And remember that I left ICTY in 2002.

16        Q.   Thank you.

17             THE ACCUSED: [Interpretation] I don't know the D number.  This

18     has been admitted.  Can we show Dr. Baraybar 65 ter 21024.  D1975.  Yes.

19             MR. KARADZIC [Interpretation]

20        Q.   Can you please look at this piece at the bottom, 12 individuals.

21     But you can look at the whole document as well, where you can see the

22     need for certain persons to be excluded from certain localities.  I don't

23     need to read that to you.  You can just look at that for yourself,

24     please.

25        A.   You're referring to the paragraph number 3, 12 of individuals,

Page 22428

 1     that ...

 2        Q.   Yes, yes.  Can you -- regarding Kravica.

 3        A.   Mm-hmm.  Okay.

 4        Q.   Yes, and you can see that at the bottom, "Nevertheless ..."

 5             THE ACCUSED: [Interpretation] Can we scroll up a little bit

 6     please.  [In English] "Nevertheless considering ..."

 7             THE WITNESS:  Yeah, yeah.

 8             JUDGE KWON:  Let him read out the document.

 9             THE WITNESS:  I read it, yes.

10             JUDGE KWON:  Yes.  What is your question, Mr. Karadzic?

11             MR. KARADZIC: [Interpretation]

12        Q.   This information from 2009, does that complicate even further the

13     precision and the accuracy of the data?

14        A.   Well --

15             JUDGE KWON:  Before you answer.

16             THE WITNESS:  Yes.

17             JUDGE KWON:  Mr. Mitchell.

18             MR. MITCHELL:  This is a hard copy that may assist the witness.

19             JUDGE KWON:  I -- I took his word that he read it.

20             THE WITNESS: [Overlapping speakers]

21             JUDGE KWON:  Yes, if he -- would you like to have the hard copy?

22             THE WITNESS:  No, no, no, that's fine.  I mean, that's fine.

23     The -- I mean, I don't -- I cannot really give you an opinion whether it

24     complicates matters or not.  I mean, obviously I'm presented with a

25     report that I do not know is part of what -- or anything.  So I'm just

Page 22429

 1     seeing a number here, and it says that some people came from Kravica and

 2     that is part of investigation, but I think we are combining apples and

 3     potatoes here.  I mean, they're two different sorts of data.  I do not --

 4     I mean, I -- what I would need to do for -- to give you an opinion would

 5     be to examine this document and whatever other documents that are being

 6     used to prepare this document and compare it with my own documents and

 7     tell you whether it complicates matter or not.  But, I mean, for the time

 8     being, I -- this in 2009, the last report here 2004, so I cannot tell you

 9     much more than that.

10             JUDGE KWON:  Mr. Mitchell, Mr. Janc is coming as witness.

11             MR. MITCHELL:  Correct.

12             THE ACCUSED: [Interpretation] Yes, but I wanted to ask

13     Dr. Baraybar, in view of the fact that information evolves, does that

14     mean that the information from the time when you made your conclusions

15     was not definitive?

16        A.   No, of course.  Of course it was not definitive.  Imagine the --

17     if you look through the reports of minimal number, it was changing from

18     800 -- 1.800 something to two thousand and something and then it went

19     back, and I expect of course that further work has been done.  As in the

20     previous report it was said by Manning that exhumations were handed over

21     to the local Bosnian authorities therefore more graves would be exhumed.

22     DNA results will always be higher than the minimal number of individuals,

23     that it is minimal.  And then I presume that perhaps the working figure

24     now is much higher than the one we worked at the time.  But I have never

25     suggested that my reports were definitive.  Imagine.  I mean, these

Page 22430

 1     reports date from almost ten years ago.

 2        Q.   Thank you.  And do you agree that these additional data by

 3     Dr. Janc indicates that some graves were filled later?  Not only were

 4     some robbed, but some were added to later.  If it's easier for you to

 5     answer after looking at a hard copy, then I would kindly ask Mr. Mitchell

 6     to show it to you.

 7        A.   I can receive a hard copy, and I will take, I mean, some time, I

 8     guess, to review it.  But, I mean, I don't want to give you an answer

 9     regarding something I'm not privy too and just on the examination of a

10     page of a document.  I would be -- as far as a scientist, of course, I

11     would like to see these corrigendum to begin with.  So it is the

12     corrigendum of something I do not have with me.  So in order to give you

13     actually an opinion, I would like to see, for that matter, what is the

14     original document.  If the Chamber allows it.

15             JUDGE KWON:  Fair enough.  I will now ask you to come to -- to

16     conclude, Mr. Karadzic.

17             THE ACCUSED: [Interpretation] Thank you.

18             MR. KARADZIC: [Interpretation]

19        Q.   Dr. Baraybar, you were very kind and you met with the Defence.

20     We talked, among other things, about some conventions and some good

21     customs and even the obligations of the interested parties, parties that

22     are interested in investigations.  You confirmed that the UNHCR

23     promulgated a sort of guide for good practices in the analysis of mortal

24     remains, and you know that there is such a practice.  The UNHCR did that

25     in 1991, as you said, and this was done also by the UNMIK in Serbia,

Page 22431

 1     Serbian UNMIK in Kosovo exchanged experts and expert reports, and they

 2     allowed each other access and access to all the interested parties; is

 3     that right?  Can you briefly tell the Trial Chamber what practice was

 4     introduced if you're not in a position to name the document, at least,

 5     that regulates that?

 6        A.   Just to clarify what I -- what we discussed yesterday in the

 7     meeting we had, we referred to two sets of documents.  The first one is

 8     the Minnesota Protocol.  The Minnesota Protocol published, as a matter of

 9     fact, by the High Commissioner of human rights of the UN in 1991.  That

10     it is a guide.  It's not a covenant.  It's just a guide of best practices

11     to the investigation of human rights violations primarily committed by

12     states against their own citizens.  And recommending the impartiality and

13     the fact that it should be an independent body the one investigating

14     those crimes.  It has another section regarding the treatment or the

15     examination of remains as well as the exhumation of remains that are the

16     way you should proceed in autopsy, if there's a suspicion of -- of

17     torture, how you should examine the body, meaning a fresh body, and also

18     skeletal remains.  So that is a recommendation of best practice.  I would

19     say, personally, that the way we worked collectively throughout all these

20     years fulfilled completely what is recommended in the Minnesota Protocol.

21             Since there's no covenant that I know of, but I'm no lawyer

22     either, I'm just telling you pretty much commonsensical answers, the

23     documents I quoted, and now I can correct, because I -- yesterday I think

24     I told you four, but there are actually three.  There were three

25     memorandums of understanding that were signed between UNMIK and the Serb

Page 22432

 1     government regarding the exchange of experts and expertise, joint parties

 2     to look for hidden prisons, and repatriation of remains.  I believe

 3     Professor Dunjic, as well, is quite versed on -- on -- on those protocols

 4     because they were applied at the time I was in Kosovo, as a matter of

 5     fact, to facilitate repatriation of the remains from the mass graves in

 6     Batajnica, Petrovo Selo, and so on, into Kosovo, and the remains of

 7     Kosovo Albanian, Kosovo Serb victims into Serbia proper.  So these are

 8     the two sets of documents we discussed yesterday, and I know of as --

 9     that exist, but there's no other protocol I know of that regulates or

10     imposes or demands any other kind of exchange of -- of anything, I mean,

11     or witness of one party to be in the other one.  I mean, that is -- I

12     mean, that is -- as I said even the one in UNMIK was an MOU, memorandums

13     of understanding.  It was not even a covenant of any kind.

14        Q.   But today, just now, you have said that it's desirable and

15     customary for the investigations to be carried out by an independent

16     body.  Do you agree that interested parties do have some right at least

17     to observe the investigations and the examinations in order to be able to

18     recognise them or acknowledge them as legitimate?

19        A.   Minor correction:  I didn't say that.  What I said is the

20     Minnesota Protocol, not me, requests or suggests or recommends, whenever

21     state -- the state may be involved in killings on citizens, for

22     independent commission to be set up.  So it is not, I mean, quite the

23     same thing.  And remember, the Minnesota Protocol was primarily created

24     or influenced, very much influenced by Latin American states killing and

25     disappearing its own citizens.  So it's a very specific thing now.

Page 22433

 1     Obviously now it's a broad recommendation, and even -- there is even

 2     another protocol regarding the examination of remains, that it's been put

 3     forward through the High Commissioner for human rights again, and there's

 4     another legal protocol on the treatment of -- of the dead produced by the

 5     ICRC, but all these are like recommendations of best practices.  There's

 6     no covenant of any kind, I mean, enforcing or anything, anybody, to do

 7     anything.

 8             JUDGE KWON:  Now your last question, Mr. Karadzic.

 9             THE ACCUSED: [Interpretation] Thank you.

10             MR. KARADZIC: [Interpretation]

11        Q.   And do you agree that it would be very useful and it would make

12     the recognition of the reports much easier had the Serbian side had

13     access at least to the investigations conducted by the Bosnian government

14     as a party that cannot be called a disinterested party, as well as the

15     investigations that were carried out by the United Nations?

16        A.   Here again, I mean, I may have a personal opinion.  But, I mean,

17     as an expert I have no expert opinion regarding that.  I mean, yet again,

18     I mean, it would be a very subjective opinion, the one I have.  I mean,

19     whether I agree or don't agree as a person, it is immaterial to my

20     testimony.

21        Q.   Well, go ahead and give us your subjective opinion.  If that's

22     the only instance of you putting forward a subjective opinion, then the

23     Defence will accept that.

24        A.   Well, I believe that the -- the results of any -- of any

25     investigation that is contested, I mean, should be shared whenever

Page 22434

 1     possible with all the interested parties.  I mean, that's, for me, a

 2     commonsensical thing.  The problem is that when you have a contested

 3     subject, no matter what, even if the results are made public or shared

 4     with the parties, I mean, the parties will tend to keep the opinion they

 5     had at the beginning, no matter what.  Even if the evidence is there.  So

 6     that's something -- that's regrettably something else that I have seen

 7     throughout my career.  But I'm all for transparency in any kind of

 8     setting, in any country, in any conflict, in anything.  That's -- that's

 9     my own personal opinion.

10             THE ACCUSED: [Interpretation] Dr. Baraybar, I would like to thank

11     you very much both for meeting with the Defence and also for your

12     testimony.  Thank you.

13             JUDGE KWON:  Yes, Mr. Mitchell.

14             MR. MITCHELL:  I have no further questions.

15             JUDGE KWON:  Very well.  Thank you.  That concludes your

16     evidence, Mr. Baraybar.  On behalf of this Chamber and the Tribunal as a

17     whole I would like to thank you for coming yet again to The Hague to give

18     it.  Now you're free to go.  But we'll rise all together.

19             Unless there's any further matters to be raised, we'll adjourn

20     for the week.  And we'll resume next week at 9.00 on Monday with

21     Dr. Riedlmayer.  Have a nice weekend.

22                           [The witness withdrew]

23                           --- Whereupon the hearing adjourned at 2.26 p.m.,

24                           to be reconvened on Monday, the 5th day

25                           of December, 2011, at 9.00 a.m.