1 Tuesday, 30
2 [Open session]
3 [The witness entered court]
4 --- Upon commencing at 9.31 a.m.
5 [The accused entered court]
6 JUDGE RODRIGUES: [Interpretation] Good
7 morning, ladies and gentlemen. Good morning, technical
8 booth, interpreters, legal assistants, court reporters,
9 Mr. Harmon, Mr. McCloskey, and Mr. Cayley,
10 Mr. Petrusic, Mr. Visnjic, the expert witness. Good
11 morning, General Krstic.
12 And good morning to you too, Mr. Baraybar. I
13 hope you've had a good rest. Have you? Yes, very
14 well. Let me remind you that you are still on oath and
15 you are going to be answering some more questions put
16 to you by Mr. Cayley.
17 WITNESS: JOSE PABLO BARAYBAR [Resumed]
18 JUDGE RODRIGUES: [Interpretation] Mr. Cayley,
19 the floor is yours.
20 MR. CAYLEY: Good morning, Mr. President,
21 Your Honours, Mr. Petrusic, Mr. Visnjic.
22 Examined by Mr. Cayley: [Cont'd]
23 Q. Good morning, Mr. Baraybar.
24 A. Good morning.
25 Q. Just to remind you where we had left off
1 yesterday, you had explained, in generic form by way of
2 a model, how you come, as a forensic anthropologist, to
3 calculate the minimum number of individuals, the MNI.
4 Now I'd like to show you Exhibit 232, which
5 is, in fact, the minimum number of individuals which
6 you calculated from the anthropological examination
7 from human remains which resulted from the Srebrenica
8 investigation. The graves concerned are listed, and
9 indeed in the footnotes of this document, you have
10 given credit where you have obtained data from sources
11 other than your own, such as Dr. Haglund, who testified
13 Mr. Baraybar, if you could move it down the
14 screen towards the public gallery, the credits at the
15 bottom. That's better. If you could explain this
16 table to the Judges, please.
17 A. Yes. The first thing I would like to say is
18 that as it reads there, this is an addendum. There was
19 a miscalculation in the original report submitted in
20 1999. The error -- with an arithmetic error in the
21 calculation of the total MNI, and the variation was
22 between 866 in the original report to 1.883. It's a
23 miscalculation of .9 per cent.
24 Q. Mr. Baraybar, just to absolutely clarify
25 that, you're talking about a simple addition problem
1 within this table. The errors had nothing to do with
2 the work you did in the field in the sense of counting
4 A. That is correct.
5 Right. I explained yesterday how we
6 constructed the age intervals that we can see in this
7 table. We have three age intervals, the 8 to 12 one,
8 13 to 24, and 25 plus. I also explained to you
9 yesterday that it was necessary, in order to account
10 for all individuals in primary and secondary sites,
11 that it was to merge the minimal number of individuals
12 between the primary sites and the linked secondary
14 This table shows all the calculations done
15 for the whole season, meaning from 1996 to 1999. I
16 have been using all the data available to create these
17 calculations. Therefore, the sites of Branjevo Farm
18 that were excavated in 1996 were linked to the sites of
19 Cancari Road 12 that were excavated in 1998. There is
20 a secondary site, and therefore a minimal number of
21 individuals was calculated.
22 Q. Mr. Baraybar, if I could interrupt you, as
23 you speak about each of these individual locations,
24 could you use the pointer to indicate the particular
25 primary grave that you're speaking of or the primary
1 and secondary linked grave that you're speaking about?
2 A. Sure. The first site, the site of Kozluk, we
3 have heard yesterday on Professor Wright's testimony,
4 is a primary site. It happened to be linked to the
5 secondary site of Cancari Road 3 that was excavated by
6 Professor Wright in 1998. The total minimal number of
7 individuals for the merged sites, for the primary and
8 secondary sites, is 506 individuals. Again, I would
9 say at least 506 individuals are represented between
10 what was left in Kozluk and what was extracted from
11 Kozluk and disposed of in CR-03.
12 We proceed with the site of Glogova that I
13 excavated last year. That is linked to the site of the
14 [indiscernible] 5. That is a secondary site that was
15 excavated by Professor Wright in 1998. Further
16 clarification for the Glogova sites will be given when
17 I present that information. However, the minimal
18 number of individuals would be 187.
19 Glogova 5, that is an undisturbed primary
20 grave in the Glogova area. Again, I will discuss that
21 further when I talk about my horology report. It has a
22 minimal number of individuals of 90.
23 And then the Nova Kasaba sites that were
24 excavated in 1999, there are other ones obviously
25 excavated in 1996. That is why we got Nova Kasaba 4.
1 That is where we left it in 1996, three sites with a
2 fourth site and so on. It had 19 individuals. Nova
3 Kasaba 6, two; Nova Kasaba 7, one; Nova Kasaba 8, 33.
4 All these sites were excavated by myself last year.
5 From there we move to other primary graves.
6 All these graves are primary. Konjevic Polje number 1,
7 that was excavated by me last year with nine
8 individuals; Konjevic Polje 2 with three. Hodzici road
9 5 that was excavated by Professor Wright in 1998 as a
10 secondary site has 57 individuals. This specific site
11 has not been linked to any primary site because the
12 apparent source has not been excavated yet.
13 We move then to Hodzici 3 and 4. That's two
14 secondary sites that have been linked between each
15 other based on soil evidence provided by Professor
16 Brown, and it has 127. These two secondary sites, 3
17 and 4, again have not been linked to a primary site as
18 yet because we do not have the evidence for that.
19 The Pilica dam site, that is a primary site
20 again, excavated by Professor Wright in 1998, and was
21 linked to another secondary site dug the same year by
22 Professor Wright that give us 219 individuals.
23 We proceed to Branjevo Farm, excavated by
24 Dr. Haglund in 1996. That is linked to Cancari Road
25 12, a secondary site dug in 1998 by Professor Wright,
2 The total of the Nova Kasaba sites dug in
3 1996 by Dr. Haglund give us 33 individuals.
4 The Lazete site dug by Dr. Haglund in 1996
5 give us 164.
6 Finally, the Cerska site dug by Dr. Haglund
7 in 1996 give us 150.
8 This basically means that the total minimal
9 number of individuals recovered at the moment, between
10 1996 and 1999, adds up to 883 [sic].
11 Again, I would like to stress to the Court
12 that this is only a very conservative estimate, meaning
13 no less than 1.883 individuals are to be represented by
14 all the bones, the thousands and thousands of bones we
15 have recovered since then.
16 Q. Mr. Baraybar, you stated that Hadzici sites
17 3 and 4 have not been linked to a primary site, but am
18 I right in saying that they are, in fact, linked to
20 A. That is correct. The problem at the moment
21 is that the soil analysis done by Professor Brown
22 refers to a site in Orahovac that has not been
23 excavated yet, that is, what we know as Lazete 1.
24 MR. CAYLEY: Mr. President, there's a slight
25 problem for the figure of minimum number of individuals
1 is 883 and it is, in fact, 1.883.
2 Q. Now, Mr. Baraybar, of these individuals
3 who -- this minimum number of individuals that you've
4 identified, what proportion of them did you establish
5 as male and what proportion as female?
6 A. I will consult my report. I don't recall the
7 numbers offhand.
8 One thousand six hundred and fifty-six have
9 been determined to be male; one has been determined to
10 be a female, recovered from the site of Konjevic
11 Polje 1; and 212 are of indeterminate sex.
12 Q. What was the predominant age that you
13 established from the mortal remains that you examined?
14 A. The majority of the remains in this case,
15 1.547 are individuals of 25 or more at death. I have
16 created a breakdown of this 25-and-more category using
17 some specific indicators like the pubic bone I
18 mentioned yesterday.
19 That information still tells us that most of
20 the people are still clustered between the third,
21 fourth and fifth decade, that the majority of the
22 24-and-more individuals cluster around those ages.
23 Q. Now, when Mr. Manning put together his
24 summary of all of the experts, he relied on your
25 original report which had the arithmetical error in it,
1 did he not?
2 A. That's correct.
3 Q. And this Exhibit 232 replaces page 4 of your
4 anthropological report; is that correct?
5 A. That is correct.
6 MR. CAYLEY: One final point, Mr. President,
7 for the benefit of the Court and indeed the public,
8 this part of Mr. Baraybar's evidence has been agreed by
9 the Defence. The reason that we have gone through it
10 is to explain what within the report appears very
11 complex to lay some foundation. So this is an
12 abbreviated form of what his evidence might have been
13 if the report had not been agreed to by the Defence.
14 Q. We can now move on to the part of your
15 evidence which is not agreed by the Defence, which is
16 the exhumations report which you completed in 1999,
17 which is Exhibit 234.
18 A matter that arose yesterday with another
19 witness in terms of the composition of your team, from
20 what areas of the world were your members of staff
22 A. From Europe, North America, Central America,
23 South America. That is, yes, pretty much it, yes.
24 Q. These were both anthropologists like
25 yourself, scenes-of-crimes officers, anthropological
1 assistants; is that correct?
2 A. That is correct.
3 Q. Could you explain to the Court which sites
4 you examined between August and October of last year?
5 It might be helpful if you place the map -- that map on
6 the ELMO.
7 A. We investigated a number of sites in the
8 location of Nova Kasaba, very close to the area where
9 Dr. Haglund conducted his exhumations in 1996 that I
10 point to there. So it would be Nova Kasaba 4, 5, 6, 7,
11 and 8.
12 Not so far from there, up the road, close to
13 the intersection that goes on the road that goes to
14 Bratunac is the site of Konjevic Polje 1, also
15 indicated there. Up the road going to Bratunac is the
16 road -- the site of Konjevic Polje 2. And right past
17 the village of Glogova that is not on this map, again
18 on the road going to Bratunac, there's a number of
19 sites known as Glogova 2, but they include many other
20 graves I will discuss later.
21 Q. So although that site is known as Glogova 2,
22 it's actually a multiple, complex grave site; that is
24 A. That is correct.
25 Q. If we could move on to the first site, which
1 is Nova Kasaba 4. When was that site exhumed by you
2 and how did you come to know of its location?
3 A. Nova Kasaba was exhumed between the 18th and
4 the 21st of August last year. I was made aware by
5 investigators of the existence of alleged graves in the
6 area of Nova Kasaba after being shown an aerial
7 photograph of the area.
8 Q. How many bodies did you assess were present
9 in that grave?
10 A. Nineteen.
11 Q. What was the sex of those individuals?
12 A. Males. All of them were males, if I'm not
13 mistaken. Let me check my notes again. Yes, they were
14 all males.
15 Q. What was the age range of these individuals?
16 A. They were all adults, again on the 25-plus
17 range, but two of them were about 17 years of age.
18 Q. If the first photograph could be placed on
19 the exhibit [sic], and in order to save exhibit
20 numbers, we're going to use the report. It's on page
21 10 of your report, and I refer to the number in the
22 bottom right-hand corner.
23 Could you explain to the Judges what this
24 represents and the significance of your findings in
25 this part of grave?
1 A. The most instructing feature in this grave
2 was the presence of two litters or stretchers that we
3 can see here. There is one here, and the other one
4 goes here. Only one branch is depicted in the
5 photograph. The other arm of the stretcher is under
6 some of the bodies.
7 These ones were made with tree branches and a
8 blanket between the two, tied with rope, makeshift
9 stretcher or litter. I'm leaving the term open,
10 because I do not really know if it was a stretcher or
11 litter. However, there are some other significant
12 findings that may define this more clearly.
13 Three individuals showed some kind of
14 dressing, wound dressing, and one of them specifically
15 had a splint on the lower -- on the lower leg.
16 Therefore, the term "stretcher" in this -- at least one
17 of the occasions would be most appropriate.
18 Q. Did you find any items of clothing or luggage
19 in this grave?
20 A. There's quite a lot of it, as a matter of
21 fact. Pretty much what you're seeing in this
22 photograph, these items here are items of clothing.
23 There was quite a lot of items of food, like
24 humanitarian aid food, canned food of all sorts, tuna,
25 canned tuna, and crackers, and all those kinds of
1 things. A lot of the clothing was folded. I would not
2 say pressed but it was folded as if it was part of
3 somebody's luggage.
4 Q. Did you find any items of identification on
5 this grave site?
6 A. There were nine, nine items of
7 identification, various items of identification, all of
8 them reported in the ICRC missing persons book.
9 Q. So in essence, you linked the pieces of
10 identification with individuals who had been reported
11 as missing --
12 A. That is right.
13 Q. -- by the International Committee for the Red
15 A. Yes.
16 Q. If you can place the photograph that is on
17 page 9, so it's one page back, which is of a
18 skeletonised body lying in a grave, and if you could
19 explain to the Judges the significance of this
21 A. This photograph shows an individual lying on
22 his back with both feet close to each other and the
23 arms hyperextended over his head. That's one, and
24 another one there. However, it's important to notice
25 that the wrists -- both wrists are almost converging
1 close to each other, so to speak. They're forming
2 almost like a circle.
3 These individuals, together with some others
4 that are not shown in this photograph, made us think
5 that some of them at least could have been balanced
6 manually in the grave by holding the feet and holding
7 the arms and just throwing them to the grave.
8 Q. Did you find any military paraphernalia in
9 this grave?
10 A. We did not find any items that made us think
11 of any -- of anybody dressed -- dressed in terms of
12 clothing with military uniforms like camouflage
13 fatigues or anything of the kind. However, we did find
14 an individual that may have been carrying, it was close
15 to him, a 54 live round of 7.62 millimetre ammunition.
16 That is the Kalashnikov family ammunition.
17 Q. Lastly, on this particular grave, if you
18 could show the photograph on page 11. You mentioned
19 earlier you found an individual within the grave who
20 had a makeshift split attached to his leg. This is a
21 photograph, is it not, that was taken shortly after the
22 body was removed from the grave?
23 A. That is correct. In order to preserve
24 anything that could be lost due to transport when the
25 body is transported to the mortuary, we took a picture
1 after lifting the body from the grave. Just for
2 orientation purposes, this is the foot here and this is
3 the lower leg. This is a tree branch. This is another
4 tree branch, and there is some kind of bandage joining
5 this or keeping these tree branches together.
6 Subsequent examination at the mortuary shows
7 that it is a fracture in this area. So this is
8 basically a splint to stabilise the fracture.
9 Q. If we could quickly move on to Nova
10 Kasaba 6. Do you have it in front of you,
11 Mr. Baraybar?
12 A. Yes.
13 Q. How did you become aware of this site?
14 A. Again, this alleged grave was indicated to me
15 by investigators based on an aerial photograph.
16 Q. When did you exhume it and how long did it
17 take to exhume?
18 A. It was exhumed only one day, on the 25th of
19 August, 1999.
20 Q. What type of grave was this and how many
21 individuals did it contain?
22 A. This is a very different grave than the one
23 previously shown. This grave was dug by hand, most
24 likely by shovels or spades, and contained the remains
25 of two people.
1 Q. What was the sex of these two individuals, if
2 that could be ascertained?
3 A. Male.
4 Q. And were you able to assess their ages?
5 A. One of them was young, was between, I would
6 say, 14 to 24 years of age, and the second one was
7 again 25 plus, between, let's say, 22 and 50 years of
9 Q. If you could show the diagram on page 14,
10 which I think is produced from the survey that
11 Professor Wright demonstrated to the Court was taking
12 place on every grave. Can you explain to the Judges
13 how this image is produced and the significance of it?
14 A. Well, as Professor Wright has shown before,
15 we take a lot of care in recording the position of
16 every artefact and body found in the grave by means of
17 electronic survey. That data from this machine can
18 then be downloaded into a computer in order to produce
19 a map or a sketch. That is what you see at the moment
20 and is basically a schematic representation of the two
21 bodies, the position in which they were lying, and a
22 number of artefacts that were recovered in association
23 with these bodies.
24 Q. Can you explain the particularly significant
25 points in this diagram?
1 A. Individual number 2 -- or under, rather,
2 individual number 2, a number of bullets were
3 recovered, and by "bullets" I mean fired
4 rounds, slugs. A total of basically five were
5 recovered from under this individual. This one here
6 labelled "9A" and this one here labelled "4A" were not
7 in direct association with the body, and 8A as well
8 as. They were very close to the body. However, number
9 7 and number 5 were literally under the body. In all
10 these cases, the bullets were embedded in the soil.
11 They were not lying on the surface. They were at least
12 an inch or less between -- let's say half an inch and
13 an inch embedded in the soil. An interpretation we
14 draw from this is that this individual was most likely
15 shot while lying in the grave.
16 MR. CAYLEY: Just for the purpose of the
17 record, the witness has been referring to figure 3 on
18 page 14 of Exhibit 234.
19 Q. Mr. Baraybar, if you can now move on to Nova
20 Kasaba 7, and I'll give you a moment to find the
21 relevant page in your report. How was this grave
22 notified to you?
23 A. Again, this is one of the graves that was
24 shown to me as to be present in an aerial photograph.
25 The important feature regarding this site was that in
1 the photograph shown to me that is dated 27th of July,
2 1995, the site of Nova Kasaba 7 looks to be an open or,
3 rather -- "open" would be the right word, trench, an
4 unfilled trench, simply an open trench.
5 Q. When did you exhume this site?
6 A. This was exhumed on the 22nd of August, 1999.
7 Q. And how many people did you find in this
9 A. Only one.
10 Q. And what was the sex of that individual?
11 A. It was a male between 31 and 65 years of age.
12 Q. Did you find anything of significance, apart
13 from the body, within that grave?
14 A. Yes, we did. We recovered two 30-millimetre
15 cartridges, spent cartridges. That is, there seemed to
16 be some part of cartridges of a large weapon, most
17 likely anti-aircraft or something of that kind, that
18 were at the bottom of this trench.
19 In order to clarify what I mean by "trench",
20 this was basically a trench excavated by a front
21 loader, so it was a trench with a ramp. So on the ramp
22 at the bottom, there were two large shell casings. One
23 of them was smashed, as a matter of fact, by something
24 very heavy that ran over it. We also recovered a
25 number of shell casings of smaller weapons, as well as
2 Q. How are you able to conclude that this grave
3 had been dug by a front loader?
4 A. A feature of front loaders when digging
5 basically any trench, whether the trench is to be used
6 as a grave or not, is to create a ramp. Otherwise,
7 they could not dig in.
8 Q. And this feature is apparent when you exhume
9 the grave?
10 A. That's correct. We also -- sorry to
11 interrupt you. We also recovered parts of tracks of
12 the machine, wheels of the machine, so it was quite
14 Q. If we could now move on to Nova Kasaba 8.
15 How were you made aware of this site?
16 A. Again, this site, the alleged grave at the
17 time was shown to me in this aerial photograph I
18 already mentioned.
19 Q. And when was this site exhumed?
20 A. Between the 27th of August and the 6th of
21 September, 1999.
22 Q. And how many individuals did you recover from
23 this grave?
24 A. Thirty-three.
25 Q. Were you able to establish the sex of these
2 A. Thirty-two of them were male, and one remains
4 Q. Now, I think in this grave there were a
5 number of clusters of individuals, and if you turn to
6 page 20 of your report, there's a photograph which
7 represents this very clearly. Can you explain this to
8 the Judges, please?
9 A. We recovered in this grave three clusters of
10 bodies. The clusters were labelled in the same order
11 they were placed into the grave. Cluster 1 was the
12 first at the bottom of the grave. As a matter of fact,
13 you actually see that the grave again is one of these
14 trenches dug by some kind of front loader with a ramp.
15 You see the ramp here and the tooth marks of the
16 machine, of the blade of the machine. The cluster 1 is
17 this one [indicates]. Cluster 2 is the one in the
19 You see that between cluster 1 and 2 there is
20 spoil, so we have excavated this as a cake, so to
21 speak, to show you the way in -- the position of each
22 of the clusters in relation to each other. So if this
23 [indicates] was not excavated, the dirt that we see
24 between the two clusters was covering the whole of
25 cluster 1, so it's basically literally a layered
1 grave. And cluster number 3, that is the last to be
2 deposited into the grave, that is basically there
3 [indicates]. You see in each instance there is an
4 amount of spoil placed between each of the clusters.
5 Q. What is the significance of the turf or spoil
6 between the clusters?
7 A. It indicates pretty much two things. The
8 first is that there is a time difference between the
9 disposal of the clusters of bodies. By "time", I'm not
10 referring here to absolute time, because I cannot
11 actually time the time elapsed between each disposal.
12 I cannot say whether it happened in a matter of hours
13 or days. I can't really say.
14 And the second element is that for the length
15 of the grave and the amount of sediment between each of
16 the clusters, that could have not been placed there by
17 hand, but rather, again, through mechanical means. It
18 also implies that the bodies themselves could have been
19 lifted mechanically from another location and
20 transported to this place, and they came with a lot of
21 dirt, as a matter of fact.
22 Q. And, lastly, did you find anything else of
23 significance in this grave which I think will become
24 relevant later on in your testimony?
25 A. Yes, I did. The first important thing is
1 that in cluster 1, meaning here, these bodies had a
2 number of branches and leaves from a willow tree. The
3 branches were between two and four millimetres of
4 thickness. They were quite thick branches. They were
5 completely entangled -- commingled with the bodies.
6 We also discovered that in cluster 1, meaning
7 the ones I just showed you, at least again some people
8 could have been shot while in the grave. Again we
9 recover bullets embedded in the soil under them. And
10 in the last cluster to be placed there, number 3, we
11 also recovered bullets under some of the bodies
12 embedded in the sediment.
13 I will discuss the issue of the willow leaves
14 when I discuss Nova Kasaba 5.
15 Q. And I think the clusters are, in fact,
16 clearly numbered by marks that have been placed in the
17 graves. If you could just point those out for the
18 reference when people come back to look at this.
19 A. Number 1 [indicates], number 2 [indicates],
20 and number 3 [indicates].
21 Q. Thank you, Mr. Baraybar. If we could now
22 move on to Nova Kasaba 5, and again I'll give you a
23 moment to find your place.
24 MR. CAYLEY: If the witness could be provided
25 with Exhibit 14/10, please.
1 Q. What, if anything, did you find in Nova
2 Kasaba 5? And please remember that it's not actually
3 marked on this photograph, so if you could actually
4 identify the location of Nova Kasaba 5 on this
5 particular photograph.
6 A. This is Nova Kasaba 5, this area here. That
7 is an area of lighter soil, an elongated area of
8 lighter soil, some narrow lanes parallel to each
9 other -- two, as a matter of fact, here -- and then a
10 small area of lighter soil again.
11 In this area, literally immediately adjacent
12 to this small area of lighter soil, is a willow tree
13 that cannot actually be seen in this copy, but there is
14 a tree, as a matter of fact. It is visible in the
15 original photograph, I think, if I see it here.
16 Q. Could you use a marker and mark Nova Kasaba
17 5? Otherwise, I think we're going to lose this. And
18 we'll provide a new exhibit to the Court and we'll
19 re-mark this exhibit.
20 A. [Witness complies]
21 Q. And if you could mark that as "NK-5".
22 A. [Witness complies]
23 Q. Please continue, Mr. Baraybar.
24 A. So all the other Nova Kasaba graves we have
25 discussed a moment ago already marked in this
1 photograph. The only one that was not marked was
3 Then as these areas here of soil disturbance
4 were interpreted to be graves and, as a matter of fact,
5 proven to be graves later on, we assumed that this area
6 here was also a grave. We conducted a series of
7 trenches across this area of lighter soil [indicates].
8 However, the place did not show any features of a
9 grave. There was no grave whatsoever. So this
10 basically was interpreted as to be only a scrape of the
11 soil exposing lighter soil. So from the air, it would
12 look as an elongated area of lighter soil. That is
13 what we see at the moment.
14 However, a significant feature is that from
15 this scrape, that is quite regular in terms of width
16 and length, emerged two areas of, again, lighter soil,
17 thin lanes parallel to each other such as tracks, and
18 you can see them here. One is here and the other one
19 is here. Both of them are leading to this small mound
20 of, again, freshly-scraped soil most likely from here,
21 in here at the foot of the willow tree.
22 So once we discovered this was not a grave
23 and we assumed, therefore, it was a scrape, we
24 remembered the willow leaves we found in NK-08. And
25 then we got to formulate the following hypothesis: If
1 people were shot in this area close to the road and
2 then were removed mechanically from there, and if these
3 bodies were, by whatever reason, in contact with this
4 willow tree that, as a matter of fact, is the only
5 willow tree to be found in this area, in that area, and
6 in all this area here the only willow trees that exist
7 are actually interspersed along the stream we can see
8 here, some 20 metres away from NK-08, it would be
9 impossible that branches and leaves from the tree, once
10 it has been shaken, would fall on the bodies and then
11 would end up in NK-08. So we did two things in order
12 to try to ascertain this. It's still a hypothesis. We
13 then tried to validate our hypothesis.
14 The first thing is that if people were shot
15 in this area of lighter soil, we would need to find
16 shell casings of some sort. However, we assume again
17 that the scrape was caused by bodies being removed from
18 there. Therefore, the shell casings should not be
19 there, but at least some shell casings should be in the
20 small mound at the foot of the willow tree. So we
21 excavated the small mound, and indeed we found five
22 shell casings from 7.62-millimetre ammunition.
23 Then we compared the leaves and branches from
24 NK-08, from cluster 1, in order to ascertain whether
25 they were indeed willow, and they were. Therefore, we
1 also reproduced the same movement with our own small
2 backhoe, and after shaking the tree we obtained some
3 thick branches and leaves. This basically means that
4 the probabilities of branches and leaves flying around
5 this area and arriving in an area of over 200 metres
6 from the tree close to the road to the grave are highly
7 unlikely. Therefore, NK-05 has been preliminarily
8 interpreted as a possible excavation site maybe linked
9 to NK-08, at least to the first cluster of individuals
10 buried there.
11 Q. If we could now move on to KP-1, Konjevic
12 Polje site 1. Do you have your report in front of you?
13 A. Yes.
14 Q. When was this site notified to you?
15 A. This site was notified to me at the same time
16 that the Nova Kasaba sites were shown to me in this
17 photograph. Actually, it's through another
19 Q. And when you speak of photographs, you're
20 speaking of aerial --
21 A. That is correct.
22 Q. How long did it take to exhume this site?
23 A. We exhumed it between the 7th and the 9th of
24 September of 1999.
25 MR. CAYLEY: And if Exhibit 15/2, Mr. Usher,
1 could be placed on the ELMO.
2 Q. And so as not to waste any time, I'll
3 continue asking you questions.
4 How many bodies were exhumed in this site?
5 A. Nine.
6 Q. Were you able to establish the sex of these
8 A. There were eight males and one female.
9 Q. What were the age ranges of the males?
10 A. Seven of them between 25 and 65 years of age,
11 and one between 16 and 23.
12 Q. Were you able to establish the age range of
13 the female?
14 A. Yes. Between 16 and 30.
15 Q. Now, this exhibit in front of the Judges at
16 the moment, this is, in fact, the site of KP-1. Can
17 you explain to the Judges the layout of this particular
19 A. This grave, again, was -- contained two
20 clusters of people. Eight individuals in the first
21 cluster and only one in the last one.
22 Q. What items of significance did you find
23 within this grave?
24 A. We recovered, again, one bag with quite a lot
25 of items of clothing. Inside the bag was somebody's
1 luggage, pretty much. And we also recovered a Seiko
2 automatic watch that was marking the date as Saturday,
3 the 15th at 12.35.
4 Q. Did you consult an expert on that watch?
5 A. Yes, I did.
6 Q. And what conclusions did he come to?
7 A. Based on the expert report of Mr. Mills, a
8 horologist, it seems that that combination of date and
9 time lead us to a time between 32 and 36 hours before.
10 That would be the 13th. And if I may correct, I said
11 Saturday, but it was actually Friday the 15th at
13 Q. Now what you're saying is the expert
14 concluded that the watch had stopped 32 to 36 hours
16 A. That is correct. The oscillation of the
17 wrist stopped 32 to 36 hours before.
18 Q. If you can place photograph 11, which is on
19 page 28, on the ELMO.
20 Is this exactly as you found the watch?
21 A. That is correct. This is a picture taken.
22 The watch is there. The person is lying face down.
23 That is the picture we took before cleaning any further
24 or altering the scene.
25 Q. Were you able to conclude how the bodies were
1 brought to this grave site?
2 A. Again, the individuals placed in the first
3 cluster, meaning the first eight individuals, may have
4 been brought by mechanical means, pretty much by a
5 front -- a front loader. There was some turf, some
6 grass under the bodies pretty much as it was being
7 scraped or taken off the topsoil.
8 We also found some white powder. I was
9 actually forgetting that. Some white powder such as
10 lime on top of some of the bodies and a stretcher.
11 There was a stretcher.
12 Q. Why would lime be placed on the bodies?
13 A. In other -- it's my experience, at least in
14 other settings, that there is an association between
15 quenching the smell of rotting bodies and placing lime
16 on top of them.
17 Q. In essence, to conceal their presence in the
19 A. That is correct.
20 Q. If we could now move to the last site?
21 Konjevic Polje, which is Konjevic Polje 2. That is on
22 page 29 of your report. Do you have that in front of
24 A. Yes.
25 Q. Was this site identified to you through
1 aerial imagery?
2 A. That is correct.
3 Q. When was it exhumed?
4 A. On the 10th of September, 1999.
5 Q. How many bodies did you find in this grave?
6 A. Three in two graves. One grave with one and
7 another one with two.
8 Q. What was the sex of these individuals, if you
9 were able to determine that?
10 A. Male.
11 Q. And what were their ages?
12 A. In grave 1 was a male between 31 and 71 years
13 of age. In grave 2, two young males between 15 and 21.
14 Q. Were you able to establish whether or not
15 they'd been placed by a mechanical digger into the
17 A. Yes. In grave 1, the body most likely was
18 placed, again, through mechanical means. There was a
19 pedestal of branches; turf, meaning grass; flowers,
20 literally scooped with the topsoil where he was lying.
21 And in grave 2, at least one of the two may have been
22 again pushed in by scraping quite a lot of topsoil and
23 vegetation into the shallow grave.
24 Q. Do you have any other comments on that
25 particular site?
1 A. Yes. In grave 2, at least one of the two
2 individuals may have been shot while in the grave. He
3 sustained a number of shots and a number of bullets,
4 again, when recovered from under the body. I think the
5 pathologist will -- Dr. Clark will clarify this issue
6 even further.
7 Q. Now, the last site, which, I think, is the
8 most complex site, that at Glogova. Was this site
9 notified to you through aerial imagery?
10 A. That is correct.
11 MR. CAYLEY: If the witness could be shown
12 161/1, Prosecutor's Exhibit. You may have it there.
13 It's the aerial imagery of Glogova.
14 Q. Mr. Baraybar, which site did you supervise
15 the exhumation over?
16 A. The area marked as GL-2.
17 Q. Now, has it been -- has the site GL-1 been
18 tested for the presence of human remains?
19 A. Yes, it has.
20 Q. And what did that test reveal?
21 A. A positive. There are human remains in the
23 Q. Now, how long did GL-2 take to exhume?
24 A. We started on the 11th of September, and we
25 finished on the 15th of October.
1 Q. So it was a very large site.
2 A. Yes, indeed.
3 MR. CAYLEY: Now, if the witness could be
4 shown 161/5, and that is the large crater.
5 Q. You might wish to put these two photographs
6 on the ELMO at the same time, Mr. Baraybar, to
7 demonstrate the point that you're making, if that's
9 Perhaps the lower exhibit could be moved up
10 and tucked under the upper exhibit. Yes. That's
12 Mr. Baraybar, if you could explain to the
13 Judges the significance of the differences between
14 these two photographs.
15 A. In this photograph labelled as 27th of July,
16 1995, we see a large area of disturbance on either side
17 of the road. In this second photograph of the 30th of
18 October, 1995, we see a large crater in the area marked
19 as GL-2. We do not see anything similar, at least in
20 GL-1, but it is quite clear there is a large hole in
21 the area of GL-2.
22 Also, it is indicated in the photograph the
23 shape, according to the photograph, of a front loader,
24 but what is really clear to my eyes is that there is a
25 large hole in this area.
1 MR. CAYLEY: So let the record show that on
2 161/5, the witness has indicated that a large crater is
3 present at the site marked GL-2, which is not present
4 on the same site represented in Exhibit 161/1.
5 Q. Mr. Baraybar, how many graves were there at
6 site GL-2?
7 A. We estimate that at the moment we may have
8 between six and seven. There's still a section of that
9 area to be excavated this year.
10 Q. Now, the simplest way to represent this to
11 the Judges, I think, is to do a sketch of the various
12 grave sites, and I've put some paper and a pencil in
13 front of you. I think that a sketch is actually
14 clearer than the diagram in your report. So if you're
15 able to do that on the ELMO, that would be helpful.
16 A. What I will draw here is the position -- the
17 relative position of the grave we found before the
18 crater that we have seen in this other photograph was
19 made, and I will explain all the details regarding the
20 crater later.
21 The first -- and the other thing I want to
22 say is that the order in which I will draw these graves
23 is not necessarily the order in which the graves were
24 originally dug, because I cannot demonstrate when each
25 one of them was dug, in which order, which one came
1 first and so forth.
2 So GL-03 is a trench, again, dug with a front
3 loader. It's one of these graves with a ramp. Then we
4 have the remains of a grave. We don't really know how
5 this grave was because the grave may have been
6 something like this, that is, GL-06 -- I'm going to
7 mark it here -- and this GL-03.
8 Then we have another grave that was a trench
9 that was opened in this case with a backhoe, a large
10 excavator with -- a backhoe with teeth. We found, as a
11 matter of fact, the teeth marks on it. It was roughly
12 like this. This is what we call GL-02 grave.
13 Also we found, isolated from this, a series
14 of two graves that happened to be expanded. So this
15 one was expanded like this. That is what we call
16 GL-05. This is section "A" and "B." Basically this
17 was a grave at some point, and then they expanded it
18 and created a big one. So the two graves coalesced.
19 So for the sake of clarity, I'll refer to GL-05 all the
21 Right. In the picture of the 27th of July
22 that we just have seen, we see an area of disturbance
23 marked as GL-1 on one side and GL-2 on the other side.
24 In the second photograph of 30th of October we see a
25 crater. I will explain what I found.
1 What we found, basically, was indeed a large
2 crater that crossed in this fashion. The grave of
3 GL-03 was sectioned pretty much by its middle part.
4 However, an area of it, meaning this one here, was left
5 untouched, and in this untouched area, we recovered a
6 number of 11 bodies.
7 The bottom of this area I'm calling GL-02
8 grave, and again was left untouched, and we found seven
9 bodies. In this area of GL-06, we did not find
10 anything in its original position. Everything was
11 mixed up. In this large crater, we found the remains
12 of some 32 individuals. Making a minimum number of
13 50 found in the whole area.
14 So this area of the crater, we're going to
15 call it GL-02 crater. A number of items of clothing,
16 again of canned food, stretchers, and things of the
17 like were found in this large crater.
18 In the area of GL-05, we detected an
19 undisturbed primary grave. We recovered from there
20 90 individuals. This again would be a minimal number,
21 estimate number of 90 individuals.
22 And between GL-05 and all this large crater,
23 we have seen an area that has not been excavated yet
24 that we're going to term GL-07, that is pending to be
25 finished this year. And area here again may have been
1 robbed, but I cannot really give any assurance of that
2 at the moment.
3 MR. CAYLEY: If that exhibit could be given a
4 number, please.
5 Q. Were you able to establish the sex of the
6 individuals who you've identified were exhumed from
7 this grave?
8 A. I will give you the data in a minute. I have
9 to check in my notes. From -- yes. Some 20 found in
10 this area of the crater were determined to be male.
11 Q. And the other 12?
12 A. I'm almost sure they were also male. I do
13 not have the specific data in front of me. No. As a
14 matter of fact, yes.
15 Seven of these ones were male. So seven of
16 GL-03 were male. And from these other ones, 20 were
17 male as well.
18 Q. And that's from the GL-02 crater?
19 A. That's correct.
20 Q. And in GL-05?
21 A. In GL-05, 82 of the 90 were male.
22 Q. Were any of these individuals established to
23 be females?
24 A. No.
25 Q. So the remaining numbers are of indeterminate
2 A. That's correct.
3 Q. If you could place page 39 of your report --
4 THE REGISTRAR: Excuse me, Mr. Cayley. His
5 drawing will be 161/2/A.
6 MR. CAYLEY: Thank you.
7 Q. If you could briefly explain this photograph
8 to the Judges.
9 A. This is GL-03. We are observing the ramp in
10 the first plain here. So we are basically standing at
11 the entrance, so to speak, of the grave. This is the
12 ramp. You can see on this area here the tyre marks of
13 the excavator.
14 This area here clearly shows that the grave
15 was robbed, was sectioned pretty much into two parts.
16 The crater I just drew is here, and this is a section
17 that was left untouched and the bodies are still in
18 situ there.
19 Q. Now, by inference, it is obvious from what
20 you're saying about the crater is that there was this
21 major disturbance. What conclusions did you reach
22 about this crater? What had happened to this grave?
23 A. Well, although we cannot say what is the
24 order in which the graves, with the exception of GL-05,
25 were excavated, we can say for sure that all the graves
1 that were excavated, meaning GL-03, 6, and 2, were
2 robbed simultaneously, because the crater is basically
3 the linking factor between all those graves.
4 And we have to say as well that we do not
5 sort of discard the possibility that in the middle part
6 of the crater there was still another grave because
7 it's simply a crater. The crater went beyond the
8 existence of any grave, up to the sterile soil. It was
9 a big, deep hole. So we don't really know whether
10 there was something else in there. We cannot prove it.
11 Q. If you could turn to the photograph on page
12 36 of your report, which is GL-02, and I'd like you to
13 comment upon the tooth marks that you've identified on
14 that photograph.
15 A. As I drew a moment ago, the GL-02 grave is a
16 trench primarily, so the boundaries of it would be from
17 here to here coming down. You see the dark soil. That
18 shows the outline of it, and continues like here and
19 goes there.
20 In this area here, obviously the photograph
21 doesn't show much, the tooth marks in the wall of the
22 grave from the machine who actually originally
23 excavated the grave. So this is nothing to do with
24 robbing in this case. These are the marks of the
25 machine who opened the grave in the first place, who
1 dug the hole. So basically the trench opened by a
2 backhoe type or class of excavator.
3 Q. Were there any particular items of interest
4 that you found in this grave, such as ID cards?
5 A. Yes, there were. An important thing, since
6 we are discussing the GL-02 grave, is that all over
7 this area here again we found a tremendous amount -- I
8 would say close to half a cubic metre that is quite a
9 lot of lime or a lime-like substance. We also
10 recovered, in addition to that, a watch -- an automatic
11 watch in the crater, in the GL-02 crater, in the
12 robbing area, marking again Friday the 15th at 8.15.
13 And we recovered a second watch on the ramp of GL-03
14 that I just showed you a moment ago marking "Saturday,
15 15", but no times, just "Saturday, 15".
16 Q. Were these watches examined by an expert?
17 A. That is correct. We -- Mr. Mills -- based on
18 Mr. Mills' report, we conclude again that the time
19 we're referring to is 32 to 36 hours prior to this
20 date, around the 13th again.
21 Q. Now, as a final matter on these graves, there
22 was a sediment in GL-03 and GL-05, and if you could
23 place your drawing that you did back on the ELMO and
24 explain this to the Judges.
25 A. Professor Brown again took some soil samples
1 to make some comparisons between these sites and some
2 other sites, so some samples were taken from here from
3 under the bodies in GL-03. Some other samples were
4 taken from GL-05 in different locations of the grave.
5 Then the conclusions of this soil analysis,
6 including pollen and mineralogical analysis, is that
7 the sediment of GL-03 and GL-05 are identical and the
8 sediment is foreign to this area and should come from a
9 meadow type of environment that was cultivated in the
10 past for cereal, including maize. He also found that
11 those sediments were identical to those recovered in
13 Q. Are you aware as to whether or not the
14 Sandici area had been cultivated for maize production?
15 A. I do not know.
16 MR. CAYLEY: Finally, if the witness could be
17 shown this, rather than getting him to search for it,
18 Mr. Usher.
19 Q. Now, Mr. Baraybar, the sites that are shaded
20 in green are exhumed sites?
21 A. That is correct.
22 Q. And the unshaded sites are sites which have
23 been identified but not yet exhumed; is that correct?
24 A. Yes, sir.
25 Q. And do all of those sites, based on the
1 preliminary examination, contain human remains?
2 A. Yes, sir.
3 Q. And based on your experience, would you
4 expect to find at least a number of bodies in all of
5 those graves?
6 A. Yes, sir.
7 Q. So the figure that you have given as the mean
8 number of individuals which, as you acknowledge, is
9 very conservative, is going to significantly increase
10 as these graves are exhumed?
11 A. Absolutely.
12 MR. CAYLEY: Your Honour, I have no further
13 questions for the witness, so I can offer him for
15 JUDGE RODRIGUES: [Interpretation] I think
16 that this is a good time for a break before we continue
17 with the cross-examination, so let us have a 20-minute
18 recess now, after which we will resume.
19 --- Recess taken at 10.43 a.m.
20 --- On resuming at 11.10 a.m.
21 MR. CAYLEY: Mr. President, if I could --
22 excuse me, Mr. Visnjic. It's just housekeeping. The
23 last exhibit that Mr. Baraybar was referring to was
24 Prosecutor's Exhibit 140, which was not placed on the
25 record. And earlier the court deputy informed me that
1 when I was referring to Exhibits 161/1 and 161/5, it
2 should have been 161/1 and 161/2. I put it in the
3 record now so that in future months, when people come
4 to read it, they are aware of what I was referring to,
5 indeed what the witness was referring to.
6 JUDGE RODRIGUES: [Interpretation] Yes. Very
7 well, Mr. Cayley.
8 Mr. Baraybar, you're now going to answer
9 questions put to you by Mr. Visnjic.
10 Mr. Visnjic, your turn.
11 MR. VISNJIC: [Interpretation] Thank you,
12 Mr. President.
13 Cross-examined by Mr. Visnjic:
14 Q. Mr. Baraybar, good morning.
15 Mr. Baraybar, the first group of questions we
16 have for you has to do with the Nova Kasaba 04 grave
17 site. In this grave, according to your report, 19
18 bodies were found. However, you isolated two bodies of
19 males, and you determined that on average they were
20 17 years old. Is there any particular reason for this?
21 A. What I have written in the report is that we
22 have 19 adult males. Two of them, however, were or had
23 mean ages of 17 years of age, not that all the 19 have
24 mean ages of 17 years. Only two.
25 Q. There may be an error in the translation. My
1 question was: Was there any particular reason why you
2 separated out those two males from the rest?
3 A. If -- I do not know if I understand the
4 question correctly. Two individuals have been classed
5 as to have a mean age of 17 years of age, meaning they
6 fall in the range 13 to 24 because of specific
7 features, pretty much -- I presume -- I don't have the
8 specific anthropology report in front of me regarding
9 those two, but my assumption would be that a number of
10 traits in those individuals, basically in their bones,
11 would show that they were still in the process of
12 growth. Therefore, they have been ascribed to that age
14 Q. Mr. Baraybar, the growth phase that you have
15 mentioned now continues until what age?
16 A. Most individuals stop -- I would not say
17 "growing", because that gives the impression that
18 people grow like plants forever and ever, in a way.
19 Most processes regarding the fusion of some parts of
20 the bone to another part of the bone end on average at
21 age 21, on average. That's just a very generic
22 explanation. We could go and refer to specific bones.
23 But the average, let's say it stops about 21.
24 Q. In your previous report, when describing
25 several age groups, you said that you combined the age
1 groups of 13 to 17 and the next group of 15 to 24, that
2 you combined these two groups. Could you explain to us
3 the reasons for doing this?
4 A. The reason is simply a mathematical reason.
5 In my archaeology report, I am dealing with a level of
6 detail I am not dealing with in the anthropology
7 report. The anthropology report refers to the whole
8 set of numbers that have been collected over all these
9 years. Therefore, in order to depict the distribution
10 of age of hundreds of individuals, I have to be able to
11 include or to fit individual ages into wider ranges.
12 That is why if I am referring only to 19 individuals,
13 it makes much more sense, in my opinion, when reading
14 the report of 19 individuals, to specify or to be more
15 specific regarding the ages defined for each of these
17 If I see these 19 bodies in the -- as part of
18 the whole of the 1.800 bodies, of course I cannot be as
19 detailed with that and I need to just merge them. That
20 is why.
21 Q. When you were working on this global
22 estimation, in a part of your report you stated that
23 the method used to determine the age was modified by
24 certain standards for the Bosnian population.
25 A. That is partly correct. The standard has not
1 been modified. In other words, the standard remains
2 the same. What has been modified are the age ranges
3 associated to the standard.
4 So for example -- just for the sake of
5 clarity, I will expand on this, if I may. If, for
6 example -- let's assume that technique "A" is composed
7 by the observation of four different features of the
8 pubic bone or the hip bone. The characteristics that
9 define each phase, meaning what I'm observing, remain
10 the same. What changes, however, is the number of
11 individuals that share that characteristic. So if the
12 original sample used to develop that technique was, for
13 example, a North America population, I might expect the
14 North Americans of age, let's say, 20 to 30 to show
15 characteristic "A."
16 However, if I now turn to a Bosnian
17 population or a Balkan population, an European
18 population, maybe the same characteristics of phase "A"
19 will be shared by people between 30 and 40. So I am
20 observing still the same things; however, the age
21 ranges associated to those things have changed.
22 So the standards have not changed, just the
23 number of individuals who share those features have
25 Q. The standard you used for the Bosnian
1 population was established in 1999. Am I right in
2 saying that?
3 A. Yes. The results of the study have been
4 published or presented, rather, in an international
5 meeting in 1999. I presume that this investigation was
6 done through 1998.
7 Q. Bearing in mind large population migrations
8 in Bosnia until that time, are you aware that there was
9 a certain standard for the Yugoslav population or for
10 the population of Bosnia prior to the outbreak of the
12 A. I am not aware of any Yugoslav standards
13 referring to this specific technique, meaning the
14 techniques, rather, we have used in this study.
15 Q. Generally speaking, bearing in mind the
16 standard established by this investigation in 1999 and
17 the standards that you refer to in your studies -- I'm
18 not quite sure whether they are American standards --
19 anthropologically speaking, can it be said of the
20 Bosnian population that they develop earlier or
21 quicker. Or let me put it this way: What is the
22 difference between the two standards? Is it of
23 substantive significance?
24 A. I will explain to you directly -- I will read
25 to you the differences. We are dealing, in these
1 questions, only with the standards for adults, and we
2 are, just for the sake of clarity, referring to two
3 techniques that are the techniques we have used for
4 aging adults, that is, the so-called Suchey-Brooks
5 pubic symphysis age estimation system, and the
6 Iscan-Loth sternal rib age estimation system.
7 The two techniques were developed indeed in
8 multi-ethnic North American population. The pubic
9 symphysis one was developed, as a matter of fact, in
10 Los Angeles at the office of the chief medical
11 examiner, and the rib technique was developed in
13 I would like to read to you some examples of
14 the point I'm trying to make. For example, in American
15 or North American males, phase one of Suchey-Brooks, or
16 the technique regarding the hip bone, has a range,
17 meaning the people that share the characteristics of
18 that phase, that spans between 15 until 23 years of
19 age. In Bosnian males, based on this study I'm
20 referring to, there is a study by Simmons and
21 Associates from 1999, the same range spans between 13
22 and 25.
23 If we go to other phases that speak -- for
24 example, phase number 4, the range for the North
25 Americans would be between 23 and 57, and in Bosnians,
1 between 15 and 71.
2 So in both cases, there are certain
3 differences in the ranges, but what will change, as a
4 matter of fact, in each case, will be the mean of each
5 of the phases. But we are really not dealing with
6 means but with ranges.
7 It is quite difficult to say whether Bosnians
8 or anybody from the Balkans ages quicker or evolves
9 quicker or slower, because these techniques relate to
10 changes in shape, integrity -- shape and integrity
11 mainly or some aspects in bones. These techniques are
12 not linked to anything such as growth of children, for
13 example. This is only for individuals past a certain
14 age, for fully developed individuals.
15 Q. Can you please tell me the standard that you
16 have adopted, and which is based on Simmons and
17 Associates investigation, how large was the sample used
18 and how many cases do you need to establish such a
20 A. Two criteria are important in order to
21 establish a standard. Firstly, a sample size, of
22 course. But besides a sample size is the number of
23 individuals represented in each age range. I may have
24 1.000 individuals between 20 and 30. I will not be
25 able to predict anything about individuals between 30
1 and more; obviously not. I would need to have them --
2 let's say 100 individuals with ten people in each
3 ten-year range category, ten in 20 to 30, ten in 30 to
4 40 and so on, would be much easier.
5 So this collection that seems an associate
6 assembled is substantially and statistically large
7 enough for that and fills the criteria of a
8 distribution within the sample of ages. So this male
9 sample is 242 individuals. All these individuals were
10 recovered at autopsy room conditions, so these are not
11 war casualties nor anything of the kind. They are
12 people that went into the medical examiner's office for
13 a medical autopsy. The sample for the females is much,
14 much smaller. It's only 52 individuals. That is for
15 the pubes. Now, for the ribs we have 233 males and we
16 have 52 females, again a small sample.
17 But if I may call your attention on a very
18 important factor. In the case of the pubes of the hip
19 bone, the original sample collected in Los Angeles was
20 739 individuals, and the Bosnian one is literally a
21 third of it, 242. However, in the rib technique, the
22 American sample is 118, while the Bosnian one is twice
23 as large; 233. From a scientific point of view, I
24 think that it is quite sound evidence that this
25 technique is reliable, the sample taken is quite, quite
2 Q. According to your report, in which you
3 provided in groups the ages for all graves, in this
4 particular grave site, Nova Kasaba 04, it is stated
5 that five persons were in the age group between 13 and
6 24 and 14 in the group over 25 years of age. That is
7 page 9 of your report. My question is: Does that mean
8 that your report on exhumations is far more precise
9 regarding certain graves as compared to the report on
10 the investigation of human remains?
11 A. Maybe the term is not "precision", but I
12 would call it "emphasis". It is certain that more
13 details regarding individual graves and, therefore,
14 individuals recovered in those graves will have much
15 more emphasis in the archaeology report than in the
16 anthropology report. If I were to use the same
17 emphasis in the anthropology report, my report will be
18 hundreds and hundreds of pages long in the case of the
19 anthropology report. That is one factor.
20 The second factor, I think, is that the
21 emphasis of the anthropology report is not to detail or
22 to discuss individual cases but rather to discuss it
23 globally. It's a global presentation of how many
24 people have been examined over these last years.
25 Q. Mr. Baraybar, does that mean that in the Nova
1 Kasaba 4 grave site, there were no persons who were
2 younger than 17?
3 A. There were individuals, let's say using now
4 the anthropological term, no younger than 13. Those
5 people would be classed in the 13 to 24 age range. So
6 it would be correct to say there were no younger than
8 Q. How many individuals were there in the group
9 between 17 and 25?
10 A. In what grave?
11 Q. In Nova Kasaba 4.
12 A. I can actually pick up the specific data, if
13 you give me just one moment.
14 I see what you're getting at. When we
15 assembled the age ranges, the age ranges of 13 to 24
16 and 25 plus, and I said that earlier, we were combining
17 a number of data that was coming from different
18 sources, the 1996 report and all the other reports done
19 before. As you rightly said, in 1998, for example, the
20 13-to-24-year interval was divided into two, into two
21 parts, one between 13 and 17, 18 to 24, and so forth.
22 In order to be more inclusive, we have merged them in
23 the range 13 to 24 to be just simply more inclusive.
24 So according to this, in Nova Kasaba 4, the range 13 to
25 24 has or contains five individuals out of the 19.
1 Q. Does that mean that this group cannot be
2 determined more closely as being a group ranging
3 between 17 to 24 years?
4 A. That is correct.
5 Q. In your report relating to the Nova Kasaba 04
6 grave site, you state that traces were found of
8 A. In number 4 -- could you tell me what page,
10 Q. On page 7, paragraph 2, last sentence.
11 A. No. What I'm saying here is that in a few
12 cases the presence of shotgun pellets was recorded in
13 addition to other gunshot injuries. That refers to
14 injuries and has been extracted, as indicated
15 previously, from the pathologist's report.
16 Q. I didn't understand. So did you find shotgun
17 pellets or traces of them? Did you actually find the
18 shotgun pellets themselves, the buckshot, or traces of
20 A. According to the pathologist's report, as I
21 raise in my report here, 11 individuals died of gunshot
22 wounds, while the cause of death of the eight others
23 was unascertained. In a few cases, the presence of
24 shotgun pellets, and that links to the bodies not in
25 the sediment or anywhere else, was recorded in addition
1 to other gunshot injuries. I would refer this
2 information to the chief pathologist.
3 Q. Do you have an explanation for these traces
4 of shotgun pellets?
5 A. No, I don't.
6 Q. In this grave site, you also came across an
7 individual who had 54 bullets of a calibre of 7.62.
8 Did this individual, if you can tell us that at all --
9 that is to say, was that person wearing civilian
11 A. I can tell you that information. Give me a
12 moment. This information is extracted again from the
13 pathologist's report. The individual was dressed in
14 blue jeans, and let's say blue denim trousers -- that
15 would be the appropriate way to put it -- and a blue
16 jacket, so jean-type jacket.
17 Q. In the Kasaba 04, you also found some
18 personal documents scattered around. Does that mean
19 that the bodies were searched or is there some other
21 A. I don't have any explanation. I can just
22 tell you that documents were found in the grave fill,
23 in most of the cases, as well as many other items of
24 clothing and artefacts. There were quite a lot of
25 artefacts found.
1 I stated in my report, regarding the
2 artefacts found loose in the grave, that the two
3 stretchers that we found were covering some of the
4 bodies, and the stretchers were -- for the shape in
5 which they were found, were basically found turned
6 inside out, so as if they had been stuffed with things
7 and then just simply emptied in the grave. That is to
8 be found in paragraph 1 on page number 10 of my
10 Q. Mr. Baraybar, do you perhaps have information
11 on the following, although I don't think that was part
12 of your job: The identification of individuals from
13 that grave site? Were most of them identified, do you
14 happen to know?
15 A. No, I don't.
16 Q. In keeping with everything that you found in
17 the grave site, do you exclude the possibility that the
18 bodies in this grave site, in this grave, had been
19 casualties during combat activities in an attempt to
20 cross the asphalt road and that they were buried in
21 this grave later on, subsequently?
22 A. I cannot exclude the possibility. In my
23 opinion, however, if I may add, there's two things
24 important to remember. The first one is that the
25 documents found either on bodies or lose in the grave
1 fill are of people reported missing by the ICRC, the
2 International Committee for the Red Cross, and appear
3 in the book of the missing of the ICRC.
4 The date of -- in which these people were
5 reported as missing spans roughly, according to those
6 documents, between the 11th and the 18th of July,
7 1995. That's, again, point number one.
8 Second, in my opinion, it is quite
9 difficult -- it would be very difficult for me to
10 imagine that people carrying stretchers or litters, for
11 that matter, could be engaged in some kind of
13 The third point, in my opinion, again, it
14 would be -- that would be even more difficult
15 considering one of them had a fracture caused,
16 according to the pathology report, by gunshot to the
17 leg and has a splint and dressing.
18 Those basically would be the three points
19 which, in my opinion, would sort of preclude that
20 explanation. However, the answer to your question
21 originally would be no.
22 Q. Mr. Baraybar, the stretchers -- we're talking
23 about a grave with nine individuals and only two
24 stretchers were found; is that correct?
25 A. Nineteen.
1 Q. I'm sorry. Yes, nineteen.
2 A. But, yes, that's correct, two stretchers.
3 Q. And also found were three -- a maximum of
4 three individuals who had had previous wounds or
6 A. That is correct.
7 Q. Did any one of the individuals -- that is to
8 say, on how many individuals did you find traces of
9 shotgun pellets?
10 A. I do not know. You would need to refer to
11 the pathology report.
12 Q. In keeping with your conclusion that at least
13 19 persons, 19 persons and at least 4 were carried --
14 were carrying the stretcher and that 3 were injured,
15 12 people were, nonetheless, capable of engaging in
16 combat operations. Do you agree with me?
17 A. Yes. The answer is yes. However, I
18 cannot -- I have no evidence whatsoever to make such a
19 conclusion, but presented in that way, yes.
20 Q. Mr. Baraybar, I'd like to talk about the next
21 grave site, Nova Kasaba 06, now, please.
22 In this grave, a male individual was found,
23 ages ranging between 14 and 24.
24 A. That is correct. Yes, sir.
25 Q. Bearing in mind your previous testimony where
1 the standard was 13 to 24, can you explain the
2 difference in this concrete case?
3 A. Yes. There is no difference, as a matter of
4 fact. In my previous testimony, what I have stated is
5 that the range we are using for calculations of the
6 overall number of cases goes between 13 and 24. In
7 this specific individual, the emphasis, again, in the
8 archaeology report is much more in the description of
9 individual cases. And according to the standards we've
10 been using and the evidence we've been finding in this
11 case, this individual happened to be between 14 and
12 24. For calculation proposals, this individual will
13 adapt to the 13 to 24 category.
14 Q. You also state that four bullets were found
15 below the body of an individual, which lead to the
16 conclusion and confirmation, according to you, that he
17 was shot in the grave itself. My question is the
18 following: At what depth did you find these
20 A. In general -- in general, as I said earlier,
21 the projectiles were found in various depths in the
22 sediment and under the body, which could range between
23 half an inch and an inch. In this specific -- in this
24 specific case -- I am looking through the report to see
25 if I have stated that. Maybe I have not stated how
1 many millimetres under the body the projectiles were
2 recovered, and I don't think I have. As a matter of
3 fact, no. They were simply in the sediment under the
4 body, but the norm has been pretty much between half an
5 inch and an inch. Sometimes less, sometimes more than
6 that. Doesn't mean ...
7 Q. In your opinion, how far would a 7.62-calibre
8 metre lodge -- be lodged in the earth, having passed
9 through a body? Have you got an orientation as to
11 A. I don't have a precise orientation because,
12 in my knowledge, the factors influencing this would be
13 the compaction of the soil. Obviously, it would be
14 very different if somebody shot through a concrete
15 floor than if he shot through mud or if he shot through
16 some kind of clay soil that is very compacted.
17 The only evidence I have is based on our
18 findings in recovering a slug of a projectile embedded
19 in the soil.
20 Q. You also find 14 casings, 14 shell casings.
21 Do you know whether these casings were identified, as
22 well as the projectiles in this concrete case, although
23 I know that that was not your job?
24 A. I do not know.
25 Q. Mr. Baraybar, according to your overall
1 impressions for the Nova Kasaba 06 grave site, do you
2 exclude the possibility that on a dead body lying in
3 the grave, a burst of gunfire was fired?
4 A. I definitely cannot explain nor draw such a
5 conclusion. I have only bones. I don't think that
6 anybody could really determine whether the person was
7 dead or alive while being shot in the grave.
8 Q. As an anthropologist, did you take part in
9 determining the character of the injuries that were
10 inflicted, whether they were ante-mortem or
12 A. As anthropologists, we do assist the
13 pathologist in the reconstruction and assessment of
14 injuries. However, it is the pathologist's
15 responsibility and prerogative to give an opinion about
16 the nature of those injuries.
17 Q. Thank you. My next group of questions
18 relates to the Nova Kasaba grave site 07.
19 In your report, you state that in this grave
20 you also found projectiles.
21 A. That is correct.
22 Q. During your examination-in-chief, you also
23 stated that this grave had the character of a trench,
24 that is to say, like a defence position.
25 A. That is correct.
1 Q. In keeping with the ammunition that was found
2 in the grave, can we assume, therefore, that there were
3 high-calibre weapons there, 30 millimetres, for
5 A. I would say it's correct.
6 Q. Does your overall image of the grave site
7 exclude the possibility that in this trench at this
8 position with the heavy-calibre weaponry, that there
9 was shooting going on during combat operations and that
10 the ammunition that was found in fact represents part
11 of those activities and operations?
12 A. I would say yes and no. If I may explain the
13 no part of it that would be in my opinion. I do agree
14 with the fact that to fire a 30-millimetre round, you
15 cannot do that from a handgun or a rifle. It has to be
16 a quite substantially large gun. Therefore, those
17 shells found at the bottom of the trench, one of which
18 was smashed, as a matter of fact, could be linked to
19 the fact that whenever this gun in transport or
20 carrying this gun or whatever was moving this gun may
21 have smashed some shell casings left behind.
22 However, I do not see what would be the use,
23 in my opinion, to fire a 30-millimetre weapon together
24 with a 7.65-millimetre pistol bullet. If I was firing
25 a 30-millimetre weapon that would have a very long
1 range, I presume, I would not expect my pistol to reach
2 as far as the other weapon. That is my first, in my
3 opinion, objection.
4 The second one is that why would I have then
5 a body lying in a gun emplacement? We do know two
6 things regarding this. In the picture that was shown
7 to you that is Exhibit number -- if I can find it
8 here -- OTP Exhibit 14/10 of the 27th of July, we see
9 that the site labelled as NK-7 is still open, is very
10 much an empty -- an empty trench. So the point is that
11 we know that whatever happened there has to happen,
12 according to this photograph, after the 27th of July.
13 The problem with the shell casings is, just
14 to summarise this, is that 30-millimetre shell casings
15 and a handgun, in my opinion, are not something that
16 are really compatible in terms of, let's say, fighting
17 of some sort.
18 Q. Perhaps the interpretation was not the proper
19 one, but on page 17 of your report, we don't mention a
20 shell casing but just a bullet. No mention is made of
21 a shell casing, which means that somebody dropped a
22 bullet in the trench.
23 A. I do not follow you. You may repeat your
24 question, please.
25 Q. On page 16. I'm sorry. On page 16 of your
1 report. I see that it is page 16 now. You make no
2 mention of the shell casing of a pistol, of a
3 7.62-millimetre pistol, but the complete bullet, which
4 leads me to conclude that somebody lost the bullet in
5 the trench rather than having shot from the trench with
6 a pistol.
7 On the other hand -- to round off my
8 question, on the other hand, you found shell casings of
9 7.62-millimetre automatic weapons, which leads me to
10 conclude that if somebody did, in fact, fire, were
11 using weapons other than heavy weapons, he fired only
12 from an automatic weapon of the 7.62-millimetre
14 A. In your first point, the 7.65-millimetre
15 pistol bullet is, indeed, a bullet, and is not a live
16 round, is a fired bullet; otherwise, it would be
17 referring to a round. It is a bullet and therefore has
18 been fired.
19 Then we have, on top of it, three shell
20 casings of 7.62 millimetres, and we've got two bullets,
21 again fired rounds, of 7.62 millimetres and a jacket
22 fragment, the part of the bullet that encases the core
23 of the bullet, that we cannot determine from where it
25 Q. In view of the fact that the body was found
1 next to the place where the projectiles were
2 uncovered -- at least that is what is shown on your
3 sketch on figure number 5 -- does that exclude the
4 possibility of the fact that it was a body which had
5 previously been hit and later on introduced into the
7 A. I have really no, again, opinion about it.
8 The answer again could be "yes". However, by the same
9 token, I could, in my opinion, question why then those
10 fired bullets are in the sediment in close proximity to
11 the body. But the answer to your question would be
13 Q. Thank you. My next question relates to the
14 next grave site, Konjevic Polje. I'm sorry, Nova
15 Kasaba 08, that is the next grave site. In this grave,
16 you explained to us that you found 33 individuals who
17 were buried in three groups, so to speak?
18 A. That is correct.
19 Q. Your conclusion in paragraph 3 seems to
20 indicate that the groups -- that the individuals in the
21 first and third groups were shot in the grave itself?
22 A. That is correct, yes, sir.
23 Q. Also, your conclusion in paragraph 4
24 indicates that clusters 1 and 2 were mechanically
25 removed from an unknown location and disposed of in the
2 A. That is correct too.
3 Q. It seems to me that there is something
4 illogical there. If cluster 1 was mechanically removed
5 from an unknown location and then buried in the grave,
6 why was that same cluster shot at in the Nova Kasaba 8
7 grave itself?
8 A. Well, I have not stated the answer to that
9 question because it will be too much to speculate. But
10 in my opinion, if I may, I would speculate regarding
11 this in order to answer the question.
12 There are two things that need to be taken
13 into account. If I'm saying that the bodies were
14 transported mechanically, it's because we have physical
15 evidence linking turf, meaning grass, under the bodies
16 as if they've been scooped. That is a fact. There is
17 no interpretation linking that fact to anything else.
18 So my interpretation goes, then, to the mechanical
19 removal of the bodies. That is number 1.
20 Number 2, I have never said in any point in
21 time whether the people were scooped alive or dead
22 because I cannot make that interpretation. Again, if
23 somebody has bullets under the body embedded in the
24 ground, I am only saying that the person may have been
25 shot while in the grave. I am not saying whether the
1 person has been killed while in the grave, nor whether
2 the person has been killed elsewhere and then
3 transported to the grave. That is something I cannot
4 extract, assess, nor answer based on the evidence I
5 have recovered.
6 So the facts basically are that the
7 mechanical removal is one thing, primarily supported by
8 the fact of the grass and the turf and the sediment
9 under the bodies. And the second element is that
10 through all those sediments, there are bullets, and on
11 some occasions I stated in the report -- not in this
12 specific case, I believe -- there has been an
13 association between injuries recorded by the
14 pathologist and the position of the bullets. So I'm
15 leaving all this here very purposely vague in order not
16 to over-interpret my findings.
17 Q. Mr. Baraybar, at what depth below the bodies
18 were the projectiles found? Do you have that fact?
19 A. Let me look for it in the report. It only
20 says here that three to four bullets and one jacket
21 fragment -- that's referring to cluster 1 -- were found
22 embedded in the bottom of the grave. Again, I would
23 say that by "embedded", I mean the bullet was literally
24 stuck in the ground, in the soil, below the depth of at
25 least half an inch or over a centimetre to an inch.
1 Q. Mr. Baraybar, one more question relating to
2 this grave. As we're in the area of speculation, there
3 is something one might call a custom, a rather strange
4 one. In wartime, it has been recorded on many
5 occasions that bodies that have died and that are
6 thrown into a grave, a burst of fire, a round of fire,
7 is fired in order to confirm I don't really know what.
8 And bearing in mind, in particular, the conclusions you
9 make regarding grave site Nova Kasaba 8 -- and my
10 question is related to the previous graves -- could
11 this possibility be excluded, in your opinion?
12 A. Let me rephrase, only for the sake of
13 understanding, to see if I understand your question.
14 What you suggest is that in wartimes, a burst of fire
15 may be open against an individual that is already
16 placed into a grave for some reason. I just need
17 clarification on that.
18 Q. Yes, yes.
19 A. The answer would be, no, I am not acquainted
20 with that information you have produced. However, in
21 my opinion again, I would say that if somebody opens a
22 burst of fire against a body lying on a grave, it is
23 because that person suspects that the individual may
24 still be alive.
25 Q. My next question relates to the Konjevic
1 Polje 1 grave site. Within the framework of this
2 grave, you registered the presence of a white powder?
3 A. Yes, sir.
4 Q. The existence of this white powder, could it
5 be an indication that it was scattered in order to
6 prevent possible disease from spreading?
7 A. It is, in my opinion again -- I cannot answer
8 this question if I don't give an explanation for it.
9 It is, in my opinion again, lime, in general, is placed
10 in graves in any country in the world primarily to
11 quench smell more than to prevent disease, as far as I
12 know. I don't really see what disease-preventing
13 capabilities lime has for that matter.
14 Q. Does lime itself have a smell?
15 A. Lime, in itself, does not have a smell such
16 as the one that it's trying to quench, no.
17 Q. In that connection, is it a fact that most of
18 the bodies were transported mechanically, by mechanical
19 means? At least that is what I gather from your
21 A. That is correct, at least those to be buried
22 first, the first eight.
23 Q. One of the reasons -- I'm not just referring
24 to this grave but the others too. Most of the bodies
25 were transported mechanically to the grave sites; is
1 that correct?
2 A. We have evidence that in some instances, as I
3 have put in my report, some bodies or some groups of
4 bodies were transported mechanically to the location
5 where they were buried, that is correct.
6 Q. Could one of the reasons be fear of infection
7 or -- could one of the reasons be fear of infection, or
8 the unpleasant stench, could that be one of the
10 A. That would be one of the explanations for
11 burying the bodies, not for them being transported
12 mechanically, if I understand correctly.
13 Q. My next question -- just a moment, please.
14 There's another question I have to ask.
15 Does lime, in contact with water, emanate a
16 particular smell?
17 A. Yes, it does.
18 Q. Thank you. My next question relates to the
19 Konjevic Polje 2 grave site. According to your
20 finding, this grave was dug by hand?
21 A. That is correct. Both graves were dug by
23 Q. But still there are traces that the body was
24 mechanically put into the grave?
25 A. That is correct for grave 1 and maybe for one
1 individual in grave 2.
2 Q. Is this grave an instance of the kind of
3 speculation we referred to earlier on as to the reasons
4 for putting bodies into the grave by mechanical means?
5 A. I do not know. However, I would like to
6 clarify this issue a bit more.
7 In my report, I say that the grave in grave
8 1, for example, was dug by hand, and that individual
9 may have been placed there through mechanical means
10 because it was lying on a pedestal of turf, branches
11 and some flowers. What I'm not saying in my report,
12 however, is when the hole in which the body was placed
13 was open -- in other words, a hole becomes a grave by
14 putting a body in it. I do not know and there's no way
15 I can know whether the hole was simply a hole and has
16 been there for a long time and then a body was placed
17 in it later. So that just helps to clarify, in that
18 specific case, that I'm not trying to infer when -- or
19 why, rather, or to speculate why, if I open a grave by
20 hand or I dig a grave by hand, why I put in a body
21 mechanically. I cannot really speculate on that.
22 MR. VISNJIC: [Interpretation] Mr. President,
23 I have several more questions for the witness, but I am
24 looking at the time. I don't know whether it might be
25 advisable to have a break now.
1 JUDGE RODRIGUES: [Interpretation] Yes,
2 Mr. Visnjic. Do you have any idea how much more time
3 you need to finish your cross-examination?
4 MR. VISNJIC: [Interpretation] Another ten
5 minutes or so, Mr. President.
6 JUDGE RODRIGUES: [Interpretation] Ten minutes
7 or so? I think we should have a break then.
8 So we're going to have a 20-minute break
10 --- Recess taken at 12.17 p.m.
11 --- On resuming at 12.37 p.m.
12 JUDGE RODRIGUES: [Interpretation]
13 Mr. Visnjic, you may continue, please.
14 MR. VISNJIC: [Interpretation] Thank you,
15 Mr. President.
16 Q. Mr. Baraybar, let us go on to the next grave
17 site, Glogova. In view of the global impression you
18 have of this grave site, would you agree that there
19 were several burials in that grave?
20 A. That is correct. Yes, sir.
21 Q. Do you have any idea as regards the time when
22 those burials took place?
23 A. No. No, I don't. From the direct
24 examination of the graves, I do not have an impression
25 of the time. Having said that, I do have an impression
1 of the time based on the photographs showed to me by
2 the investigators, that have already been presented to
3 the Court.
4 Q. Regarding this grave and in view of the
5 bodies recovered, can it be said that bodies were
6 brought to this grave from several locations?
7 A. That is actually possible for any grave,
8 including this one, yes.
9 Q. In your report, you said that a person was
10 found with a Baretta pistol on him.
11 A. Yes, that is correct.
12 Q. Could you tell us how that individual was
14 A. Yes. Based on the pathology report again --
15 it's in my notes -- he was dressed with a black leather
16 jacket, green tartan shirt, olive-green T-shirt, and
17 brown trousers.
18 Q. Could this be described as civilian
20 A. Yes.
21 Q. In this grave, a group of bodies was found
22 with traces of scorching. Is that correct?
23 A. It is correct. I think that we should tell
24 the Court that we're referring to GL-05 specifically,
1 Q. Do you have an explanation for that?
2 A. No, I don't. I guess that that matter will
3 be dealt with when the pathologist -- with the
4 pathologist's testimony.
5 Q. In this grave, a certain quantity of lime was
6 also found, as was the case in the previous graves.
7 A. That is correct.
8 Q. Would you say that there was a particular
9 reason for this?
10 A. I do not know what is the reason of putting
11 the lime there. I just know that there was quite a lot
12 of it, as much as -- I would say almost a cubic metre.
13 Quite a lot of lime.
14 Q. Mr. Baraybar, within the framework of your
15 studies and investigations, you managed to obtain a
16 global overview of virtually all the graves.
17 A. That is correct.
18 Q. If the existence of lime could be a reason
19 for concealing a grave, how would you explain that in
20 the case of secondary grave sites lime is mostly
21 absent, with the exception of Zeleni Jadar 5?
22 A. I would need to answer your question in my
23 opinion, because I have never discussed that issue in
24 any of my reports.
25 In my opinion, lime is not a means of
1 concealing a grave. I would conceal a grave by
2 backfilling it with something else less visible from
3 the surface. And as a matter of fact, in the report, I
4 said that at least 75 centimetres of the area where the
5 grave was supposed to be, 65, sorry, centimetres, was
6 disturbed. So when we arrive to the area, the only
7 visible thing would have shown in photograph 15 in my
8 report, page 34, was basically an overgrown area.
9 When digging that, we have to remove 65 or
10 more centimetres of soil that had been just ploughed
11 over and over. Even after that, when we recovered the
12 cut or the area, the extent of the grave, we found the
13 lime. Therefore, the lime was part of the grave but,
14 in my opinion, was not to be used to conceal anything.
15 It was simply there for whatever other reason.
16 MR. VISNJIC: [Interpretation] Mr. President,
17 I have no further questions. Mr. Baraybar, thank you
18 for your detailed answers.
19 JUDGE RODRIGUES: [Interpretation] Thank you
20 very much, Mr. Visnjic.
21 Mr. Cayley.
22 MR. CAYLEY: I have only a few questions,
23 Mr. President.
24 Re-examined by Mr. Cayley:
25 Q. First of all, Mr. Baraybar, in your
1 examination-in-chief you were referred -- and indeed in
2 your cross-examination -- you were referred to Exhibit
3 232, which is the addendum to your report and sets out
4 the minimum number of individuals and their age groups
5 from the various sites on which you reported.
6 MR. CAYLEY: If the witness could be shown
7 Exhibit 140, and specifically page 00950927.
8 Q. Mr. Baraybar, I want you to concentrate on
9 the diagram on the extreme right of that page, which is
10 the Orahovac/Lezete 2 and then linked to Hodzici Road
11 3, Hodzici Road 4 and Hodzici Road 5.
12 When you wrote your report in December of
13 1999, were you aware that examination of shell cases
14 and blindfolds and ligatures had linked Orahovac/Lezete
15 2 with the secondary sites at Hodzici Road 3, Hodzici
16 Road 4, and Hodzici Road 5?
17 A. No. The only evidence that I have used for
18 those links, as called in my report, have been the
19 pollen and soil analysis.
20 Q. So you were not aware of that subsequent
21 evidence that's been discovered since your report?
22 A. No, sir.
23 Q. I'm sorry. Since the writing of your report,
24 you're not aware of that new evidence?
25 A. No, I'm not.
1 Q. If I could now refer you to the Nova Kasaba 4
2 site and specifically your exhumation report that is on
3 page 7, you state, in the second paragraph of your
4 summary and conclusions, that there were two adult
5 males with mean ages of 17 years. Now, you're not
6 stating in this report that those two individuals were
7 actually 17 years of age, are you?
8 A. No, I'm not.
9 Q. Can you explain what you mean by "mean age of
11 A. "Mean" is a measure of a central tendency. In
12 other words, if I have an individual that, according to
13 my analysis, is between -- let's just take a
14 hypothetical example -- between 20 and 30, I would say
15 that its mean age is 25. I am not saying, however,
16 that he is 25. He is somewhere between 20 and 30. The
17 problem is that in terms of writing a report, if I am
18 to explain or refer to ranges all the time, it would be
19 extremely confusing. In that case, it's basically why
20 I'm using a mean age of 17 years of age.
21 Q. So am I right in saying that explains why, in
22 your anthropological report, you used age ranges, but
23 in order to make a more realistic presentation in your
24 exhumations report, you used a mean age of 17?
25 A. That is correct, and the mean age -- the mean
1 of 17 is roughly the mean of the range 13 to 24.
2 Q. Thank you. If I could refer you to page 11
3 of your report, and this is simply a clarification, you
4 state that a young adult male, in the second paragraph
5 of that page of your report, was found with 54
6 7.62-millimetre live rounds. Were they actually found
7 on his person or were they found nearby to the body?
8 A. As far as I recall, they were in close
9 association to the body. I'm not making any reference
10 here, although I can check my notes if you give me a
12 Yes. The bullets were in close association.
13 There's no mention of a pouch, there's no mention of
14 anything. They were not, let's say, a metre or ten
15 centimetres away from the body. They were on the
16 body. Therefore, they are associated to the body. I
17 am not saying, however -- that's why I have not stated
18 here -- that the body was carrying that, because there
19 was found no carrying case or bag or anything. It was
20 simply associated to the body.
21 Q. Since you've been asked in your
22 cross-examination to exclude a number of possibilities,
23 and I don't want you to speculate, can you exclude the
24 possibility that those rounds of ammunition were thrown
25 on top of the body after the body was put into the
2 A. I cannot.
3 Q. If we could now move to Nova Kasaba 8 and
4 page 20 of your report, you were asked a number of
5 questions about bullets -- deformed bullets that were
6 found under a number of bodies, and you state in your
7 report that the three bullets, the 7.62-millimetre
8 bullets, were found in the soil deformed.
9 Question: Is it right that when bullets pass
10 through bodies and hit flesh or bone, that they deform
11 or flatten?
12 A. In general, yes.
13 Q. And by deforming or flattening, does that
14 reduce the distance that they can travel once they have
15 left the body?
16 A. In most cases, that is correct.
17 Q. You were asked -- and this is really my final
18 question in respect of Nova Kasaba 4 -- whether you
19 could exclude the possibility that the individuals in
20 that grave were killed in combat, and your answer was,
21 in essence, that you could not but that there were a
22 number of factors which went against drawing that
23 conclusion. Do you recall?
24 A. Yes, I do.
25 Q. Based on your knowledge of that grave,
1 equally can you exclude the possibility, Mr. Baraybar,
2 that the individuals in that grave were summarily
3 executed and then placed in that grave?
4 A. No, I can't.
5 MR. CAYLEY: Thank you.
6 Mr. President, I have no further questions
7 for the witness.
8 JUDGE RODRIGUES: [Interpretation] Thank you
9 very much, Mr. Cayley.
10 Judge Fouad Riad has the floor.
11 Questioned by the Court:
12 JUDGE RIAD: [Interpretation] Thank you,
13 Mr. President.
14 [In English] Good morning, Mr. Baraybar.
15 A. Good morning, Your Honour.
16 JUDGE RIAD: I've been listening very
17 carefully to your testimony. I have a general
18 question, in fact, related to the cross-examination and
19 to what our Prosecutor has just asked you.
20 When you were asked by the distinguished
21 Defence counsel if some casualties could have happened
22 during combat, your answer was, "No," and you gave
23 reasons. You said that some carried stretchers, some
24 were reported missing by the ICRC, some had dressings
25 of previous wound shots. Does this apply to all the
1 mass grave sites, or were there some which indicated a
2 battle connected with it, or were some traces of
3 military clothes, weapons, around or in the grave?
4 A. Your Honour, regarding the first example,
5 that is, Nova Kasaba 4, as I said, we recovered 19
6 individuals and two stretchers. Three individuals were
7 with some kind of dressing. One of them specifically
8 had a splint. They wear different items of clothing
9 and other objects.
10 In this specific case, the only military
11 element, if I can call it in another way, although I'm
12 speculating because we would need to define what
13 military items are, the obvious military item would be
14 the live rounds that were found in the grave.
15 In the grave of Glogova as well, we found a
16 pistol, a loaded pistol being directly carried, not put
17 in the grave but carried by an individual.
18 In general terms, I do not recall any other
19 obviously military elements such as camouflage
20 fatigues, khaki trousers, gun holsters or other
21 elements of military paraphernalia that were found in
22 the graves, helmets. The range would be limited.
23 So the answer is, basically, we have only --
24 we can not exclude -- I cannot exclude to a hundred per
25 cent the fact whether they would be military casualties
1 or not. My evidence does not allow me to
2 over-interpret beyond what I have. But in sort of
3 physical evidence, we have only those two instances I
4 have referred to as the most military things that could
5 have been found, rounds and a loaded pistol.
6 JUDGE RIAD: You also mentioned that one of
7 the bodies had bullets almost on the body. Now, if a
8 body is thrown in a grave dug, would he fall with the
9 bullets over him?
10 A. No. The 54 bullets we were referring to in
11 the case of Nova Kasaba 4 were four groups of bullets
12 placed on a -- on a clip. So it was a package of
13 bullets in there. I do not know -- the bullets were
14 not, let's say, spread all over the body. There was a
15 tight package of bullets, because bullets were in these
16 clips, held in a clip. So they were not thrown, they
17 were in a package.
18 The issue is whether the body was carrying
19 those bullets. I cannot say for sure. What I have
20 said is there was no bag, there was no suitcase, no
21 backpack, no nothing in which the bullets were found.
22 So the body was here, and the bullets were literally
23 attached to the body.
24 JUDGE RIAD: With a belt?
25 A. No.
1 JUDGE RIAD: No.
2 A. No.
3 JUDGE RIAD: Thank you very much.
4 A. You're welcome.
5 JUDGE RODRIGUES: [Interpretation] Thank you
6 very much, Judge Fouad Riad.
7 Judge Wald has the floor.
8 JUDGE WALD: Thank you. Mr. Baraybar, you
9 mentioned that in one of the graves, I think it was
10 Konjevic Polje 1, there was a body of a woman, and I
11 believe that was the only identified woman found in all
12 of the graves that you included in your report.
13 Was there anything at all unusual or
14 anything, from your point of view, that would explain
15 the presence of that lone woman in the grave?
16 A. Your Honour, there is no -- again, my
17 evidence does not allow me to speculate as to why she
18 was there. However, there's something I can definitely
19 comment upon, and it's the fact that from the remains
20 that have been classified as undetermined by different
21 causes, either, because they were very fragmented,
22 there were tiny pieces, none of them, the ones that
23 were more or less complete, showed female features or
24 obvious features of a female.
25 The interesting factor here is that during
1 the exhumation, all the field team, upon having a close
2 look at the body said, "This is a woman." I was the
3 most skeptical person, maybe influenced by the fact
4 that in the past we have been dealing with hundreds and
5 hundreds and hundreds of male victims to actually
6 accept that this was a female.
7 Well, it was a female. We had a cursory look
8 in the field, and then I was able to re-examine the
9 body in the mortuary. It was a full skeleton, and
10 indeed it was a female.
11 On top of it, as far as I can recall, it had
12 some pink trainer shoes, and I can't really recall the
13 rest of the clothing, but it was quite a striking
14 element for other people than me, so to speak. They
15 just saw it and said, "This is a female. It is a
16 female." My impression was maybe it's not. Maybe it
17 was a dressed as a male, but it was definitely a
19 Q. Was there anything in that relatively small
20 grave site to suggest that the female had been -- had
21 met her death in any different way than the males?
22 A. I again would leave comments on the cause of
23 death of the female to the chief pathologist. I am
24 going through my report. Well, apparently she was
25 shot. The pathologist would be able to explain that
2 JUDGE WALD: Okay. My second question deals
3 with the phenomenon that's been so extensively
4 discussed of those bodies that you found in a few
5 different sites where at least you said in the
6 beginning they would be consistent with the person
7 having been shot when they were already in the grave,
8 although other possibilities were discussed.
9 Could you tell, from the evidence that you
10 look at, if that were true, if that possibility that
11 you first mentioned were true, that the body was shot
12 while in the grave, that these bodies had been tossed
13 into the grave and then shot or that they had actually
14 been, as it were, ordered into the grave and then shot
15 while they were still active and upright?
16 A. Your Honour, one of the individuals in
17 grave 2 in the site of Konjevic Polje 2, KP-02, may
18 answer this question. This body happened to have three
19 7.62-millimetre bullets embedded in the grave floor
20 under the body. One was below the waist, at the chest
21 level, and the right shoulder. In both cases, the
22 second body in the same grave has also a bullet under
23 the chest.
24 I wrote in my report here that according to
25 the pathologist's report, the cause of death of both
1 individuals was multiple gunshot wounds. The
2 pathologist will explain this in detail.
3 However, the interesting fact is, and this is
4 extracted from the pathologist's report, so this is not
5 my examination but the pathologist's examination, in
6 both cases the location of the bullets matched the
7 injuries recorded during the post-mortem examination.
8 So up to there, I can say that in this
9 specific case, I have a link, an independent link
10 between the bullets being found under the bodies and
11 the pathologist's examination. It is a separate
12 examination from the one I did when I recovered the
13 bodies and the locations have both matched.
14 Whether the person was forced in there or not
15 is something very difficult to ascertain, extremely
16 difficult to ascertain. However, if some people, such
17 as the Defence counsel asked me previously, where a
18 burst of gunfire was opened on them while in the grave
19 and they were transported mechanically, well, I would
20 not like to draw the conclusion of that, but it seems
21 to me very obvious that if somebody does that, it's
22 because the person is not dead.
23 JUDGE WALD: Okay. My last question to you
24 is: In the final part of your direct-examination, you
25 were shown Exhibit 140, which showed the sites that
1 have already been exhumed and those that have not yet
2 been exhumed.
3 Do you know of any schedule or what the
4 schedule will be? In short, how much longer it is
5 likely to be, number of years before those sites, if
6 they are going to be exhumed, can be exhumed?
7 A. I do not know.
8 JUDGE WALD: Okay.
9 A. I could not comment on that.
10 JUDGE WALD: All right. Thank you.
11 JUDGE RODRIGUES: [Interpretation] Thank you
12 very much, Judge Wald.
13 Mr. Baraybar, I also have a few questions for
14 you, at least five brief questions, in actual fact.
15 You talk about -- you talked about American
16 standards, Bosnian standards for calculating age. Now,
17 even for the American standard, does it require -- how
18 shall I put this? -- continuously examines in order to
19 maintain the viability of the standard?
20 A. Up to a certain extent that is correct.
21 Beyond that, I would tell you that if a sample is large
22 enough and representative -- more than large -- large
23 and representative, that would be the right
24 combination. The standard can stand on its own. Some
25 adjustments would need to be made if the sample is
1 under-represented in some parts, but otherwise, the
2 technique itself will be standing on its own.
3 JUDGE RODRIGUES: [Interpretation] These same
4 statistical operations, are they applied to perform the
5 adaptations of the American norm to the Bosnian
6 standard or are there different operations to do this?
7 A. No. It is the same -- it is basically the
8 same operation. As I explained, the features to be
9 observed remain the same. What changes is the number
10 of individuals that share those features.
11 JUDGE RODRIGUES: [Interpretation] In applying
12 the standard, let us say Bosnian, have you maintained
13 the same criteria throughout, for numerous observations
14 or did you change the criteria?
15 A. No. When we made -- we were made aware in
16 1999 of this study, what we have done is we have
17 changed the ranges, not the observations, of the
18 previous years. Well, not the previous years. I
19 correct that. Only of 1998, because 1996 was already
20 presented as a report. So we have left the
21 observations, and we have just changed the age ranges
22 to make them more accurate, more close to reality.
23 JUDGE RODRIGUES: [Interpretation] With
24 respect to the age groups, these ranges that you
25 adopted, do they have any connection with the stages of
1 human development, that is to say, children,
2 adolescents, younger people, adults, the elderly,
3 something along those lines?
4 A. No. The standards we have discussed are only
5 to age -- adult individuals in a post-development time.
6 JUDGE RODRIGUES: [Interpretation] I have
7 another question for you.
8 You compiled your report, and of course you
9 make a report in order to answer certain questions
10 posed. You don't do an academic report, but you do a
11 report according to the needs. Now, can you tell me
12 what the questions were that guided you, that the
13 people seeking answers asked you? That is to say, what
14 was the objective of your answers and response either
15 in the report itself or the research applied?
16 A. It primarily was to establish a demographic
17 profile of the population we were dealing with. So the
18 questions asked, basically, by the investigators would
19 be how old they are, how many they are, and what sex
20 they are. Other things have also been performed, such
21 as stature estimation. However, stature is something
22 less linked to the Prosecution than to humanitarian and
23 identification matters.
24 We have also been recording, in addition to
25 that, any other features; for example, if somebody may
1 have an old fracture or things of the kind that could
2 assist in the identification of these individuals. But
3 again those things are not part of the report primarily
4 because they are not pertinent to the matters we're
5 dealing with here.
6 JUDGE RODRIGUES: [Interpretation] We have
7 made a series of speculations, which is quite
8 acceptable in my mind if you have an expert witness, of
9 course. It is a little difficult to distinguish the
10 result of the observation and the opinion of the expert
11 himself, and entering into that realm, I should like to
12 ask you the following question.
13 We have already associated mechanical
14 resources used, and the smell, and possible disease.
15 Can we associate the use of mechanical resources to
16 rapidity, the need to be quick, and organisational
17 needs and requirements?
18 A. In my opinion, I think we can, and I'll give
19 you some examples.
20 In every -- take the issue of the lime or the
21 alleged lime, the white substance. At least on two
22 occasions, meaning the Glogova sites, the amount of it
23 has been far beyond what one person can actually
24 carry. A cubic metre is a substantial amount. So
25 again unless we have 1.000 people bring a small bag, it
1 has to be brought in a big lump and just left there.
2 The fact that some or many -- or the
3 majority, for that matter, of graves -- not the ones
4 that contained one person or two people -- were dug
5 mechanically and the fact that some of the bodies were
6 also collected, it seems, mechanically, I would say, in
7 my opinion, they are associated and involve definite
8 logistics, because by experience, from my own
9 operations, I know that it requires logistics to bring
10 a machine. Even for us to do the work, it involves
11 logistics. An element of time is definitely present,
12 because if I need to bury 33 people and I have a
13 shovel, it will take much longer than if I have a
14 mechanical excavator, and organisation, in a way,
15 because in my opinion I would need to know where to
16 dig. I don't want to go to a place where there's
17 already a grave and open it up and the bodies may have
18 been lying there for a week, and it will be very stinky
19 and very unpleasant. So those things, I think, are
21 JUDGE RODRIGUES: [Interpretation] Thank you
22 very much, Mr. Baraybar. I think that you have
23 answered all our questions and queries from the Bench,
24 the Prosecution, and the Defence, and this concludes
25 your testimony, I think.
1 Mr. Cayley, I think we have some documents to
2 tender into evidence before the witness leaves the
4 MR. CAYLEY: Yes, Mr. President. If I could
5 apply for formal admission of Exhibit 220, which is the
6 curriculum vitae of Mr. Baraybar; Exhibit 224, which is
7 a photographic copy of a male pelvic bone; Exhibit 225,
8 which is the female pelvis; 226, which is the skull;
9 227, which is the calculation of the minimum number of
10 individuals; 229 is the same diagram but where it
11 involves a primary and secondary site; 230, which is
12 the table of age distribution for long bones; 231, a
13 table of age distribution of long bones; 232 is an
14 addendum to the anthropological report; 233 is the
15 anthropological report; 234 is the exhumation report,
16 and then the final exhibit is the sketch that
17 Mr. Baraybar did, which is Exhibit 161/2/A.
18 JUDGE RODRIGUES: [Interpretation]
19 Mr. Visnjic, any objections?
20 MR. VISNJIC: [Interpretation] No,
21 Mr. President. None.
22 JUDGE RODRIGUES: [Interpretation] These
23 documents have therefore been admitted.
24 Now we should like to thank you,
25 Mr. Baraybar, for coming here, for your cooperation
1 with international justice, and we wish you every
2 success in your future work. And unfortunately there
3 is always scope for that work.
4 The usher will now escort the witness out of
5 the courtroom.
6 THE WITNESS: Thank you.
7 JUDGE RODRIGUES: [Interpretation] Thank you
9 [The witness withdrew]
10 JUDGE RODRIGUES: [Interpretation] Mr. Cayley,
11 what are we going to do now? We have a problem. We
12 have had two breaks. Perhaps it's a bit much to go on
13 until 2.30, and perhaps we could now have a quarter of
14 an hour break and then go on working until 2.30.
15 What do you have for us, Mr. Cayley?
16 MR. CAYLEY: We do have another witness for
17 the Court, Mr. President. We have a forensic
18 pathology, as you could probably predict. His
19 examination-in-chief will be longer than an hour; not
20 much longer than an hour, but certainly longer than an
22 JUDGE RODRIGUES: [Interpretation] In that
23 case, perhaps I could ask the registrar to have the
24 witness brought in. We will have a 15-minute break,
25 and then we will resume with the witness's testimony.
1 --- Recess taken at 1.20 p.m.
2 --- On resuming at 1.37 p.m.
3 [The witness entered court]
4 JUDGE RODRIGUES: [Interpretation] I think
5 that we have Dr. John Clark with us. Good afternoon.
6 You're going to read the solemn declaration, which the
7 usher is handing to you, please.
8 THE WITNESS: I solemnly declare that I will
9 speak the truth, the whole truth, and nothing but the
11 WITNESS: JOHN CLARK
12 JUDGE RODRIGUES: [Interpretation] Please be
13 seated. Dr. Clark, I think you are familiar with
14 proceedings in the courtroom, so I'm sure you will be
15 quite at ease. For the moment, you're going to answer
16 questions put to by Mr. Cayley.
17 Mr. Cayley, your witness.
18 MR. CAYLEY: Thank you, Mr. President.
19 Examined by Mr. Cayley:
20 Q. Dr. Clark, before we begin your evidence,
21 something that we have spoken about, you and I are both
22 speaking English.
23 A. Yes.
24 Q. Between us are banks of highly-skilled
25 interpreters, but because we speak the same language,
1 it makes their task more difficult. If you can speak
2 as slowly as you can, and I will try and regulate the
3 pace, and also if you can take a pause after my
4 question before you answer and I will do the same.
5 That will make life easier for everybody.
6 A. Yes.
7 Q. Your name is John Clark; is that correct?
8 A. Yes.
9 Q. You were born on the 5th of September, 1951?
10 A. Yes.
11 Q. You're British. You're a Scotsman, in fact.
12 A. Yes.
13 Q. You've a bachelor's degree in medicine and
14 surgery from the University of Aberdeen?
15 A. Yes.
16 Q. You are, by profession and specialisation, a
17 forensic pathologist?
18 A. Yes.
19 Q. Now, I think you've lectured in forensic
20 pathology at the Universities of Aberdeen, Sheffield,
21 and Glasgow, and you're currently teaching at the
22 University of Glasgow.
23 A. That is correct, yes.
24 Q. Am I right in saying that the University of
25 Glasgow has one of the major academic departments in
1 the United Kingdom on forensic pathology and certainly
2 the largest?
3 A. Yes, that's right.
4 Q. You're a fellow of the Royal College of
5 Pathologists; is that correct?
6 A. Yes.
7 Q. Could you explain to the Court what that
9 A. Essentially, any doctor in the United Kingdom
10 wanting to qualify as a pathologist has to pass an
11 examination set by the Royal College of Pathologists.
12 So I have passed that. After a certain period of time,
13 one is made a fellow of the Royal College.
14 Q. Indeed I think you're now the chairman of the
15 panel of examiners of the Royal College of
16 Pathologists. Is that correct?
17 A. In the speciality of forensic pathology, yes.
18 Q. You're also the secretary of the British
19 Association of Forensic Medicine. Can you explain to
20 the Judges what that role entails?
21 A. That's a national association of forensic
22 pathologists. It includes just about all forensic
23 pathologists in the United Kingdom. We also have many
24 members from other countries. We meet, have academic
25 meetings twice a year and other activities, and I'm the
1 general secretary of that.
2 Q. Now, apart from your academic duties, can you
3 describe to the Judges your profession obligations,
4 like how many autopsies you perform every year, the
5 geographical extent of your forensic pathology
7 A. Carrying out post-mortems is, in fact, the
8 largest component of my work. I carry out probably
9 350 to 400 post-mortem examinations every year. That
10 is involving a very wide range of deaths, from natural
11 disease but including a substantial number of homicides
12 and other suspicious deaths.
13 My work involves working for the legal
14 authorities in a large part of Scotland, the main
15 population of Scotland in the Glasgow region, and
16 occasionally elsewhere.
17 Q. Now, for the sake of the public -- the Judges
18 are familiar with the type of work that you do -- what
19 is a pathologist, first of all?
20 A. A pathologist is a medical doctor who,
21 amongst other things, carries out post-mortem
22 examinations on people who have died to try and find
23 out why they have died. A forensic pathologist, in
24 particular, is someone who deals with people who have
25 died in suspicious or criminal circumstances.
1 Q. Apart from your work at the International
2 Criminal Tribunal for the Former Yugoslavia, where else
3 have you worked? And I'm speaking now in the
4 international context.
5 A. Well, I have substantial work with the
6 Tribunal both in Bosnia and in Croatia. I have also
7 carried out a post-mortem examination in Pakistan on a
8 chief of the army general staff, and last year I was
9 briefly in Kosovo carrying out post-mortem examinations
10 on two Albanians who had been allegedly shot by British
12 Q. Now, Dr. Clark, I'm not going to go through
13 the whole of your curriculum vitae. It speaks for
14 itself in terms of your work, your publications, and
15 indeed your international work. I would simply offer
16 it to the Court as Exhibit 235.
17 Now, I think I'm right in saying that you
18 worked on the Srebrenica investigation in connection
19 with your autopsy work as a pathologist in 1996; is
20 that right?
21 A. No, not in 1996, 1998 for the first time.
22 Q. Sorry, in 1998. And then you assisted as a
24 A. Yes.
25 Q. In 1999, I think you were the chief
2 A. Yes.
3 Q. Now, you have in front of you, I think, your
4 report from that season. We'll be referring to it.
5 It's going to be Prosecutor's Exhibit 236. Do you have
6 a copy in front of you?
7 A. I do.
8 Q. Very briefly, because it's a matter that has
9 arisen before, who worked for you and with you in the
10 mortuary in the 1999 season?
11 A. It was quite a large team of individuals,
12 pathologists, anthropologists, technicians, a
13 radiographer, scenes-of-crime officers, and other
14 assistants. They were drawn from many different
15 countries of the world. In fact, we had nineteen
16 countries represented.
17 MR. CAYLEY: If Exhibit 238 could be placed
18 in front of the witness.
19 Q. Or, indeed, if you have it, Dr. Clark, with
21 Sir, these represent a pretty good
22 cross-section of member states of the United Nations.
23 Staff were drawn from all of these countries who worked
24 with you?
25 A. Yes.
1 Q. And did that work well, Dr. Clark?
2 A. It worked very well. Obviously, everyone had
3 their own medical-legal backgrounds and were used to
4 carrying out examinations in different ways. But we
5 had a fairly common standard, and everything did work
6 very well.
7 Q. Now, if we can move on to the operation at
8 the mortuary, and if you could -- I know it's covered
9 in your report, but if you could describe firstly to
10 the Judges briefly how you received bodies and parts of
11 bodies into the mortuary.
12 A. Well, I think the bulk of the evidence you've
13 heard so far has been related to the grave sites. The
14 bodies were removed from the graves and put in
15 individual body bags. These were then stored in a
16 refrigerator at the site. Regularly, that refrigerator
17 was brought down to the mortuary. The bodies were
18 transferred from it into a large refrigerated room in
19 the mortuary. This was all carefully logged, and the
20 bodies were stored in the room until the post-mortem
22 Q. To your knowledge, and if you're aware, was
23 the chain of custody or evidence in respect to the
24 bodies closely monitored by members of the staff?
25 A. Yes, including myself. We all took part in
2 Q. If you could explain briefly to the Judges
3 how the mortuary operated, so the process that you went
4 through, and the pathologists that worked for you, in
5 actually examining the body and making a report on the
6 cause of death.
7 A. Briefly, the body would be removed from the
8 refrigerator and the numbers logged on various
10 The first step in examination was to
11 fluoroscope the body. This is a form of X-ray which
12 just scans over the whole body and is looking for
13 fragments of metal and particularly bullets. This has
14 two uses. It indicates that there are bullets present
15 in the body, which is -- and we can make a permanent
16 record of that on a printout, and secondly it assists
17 us knowing exactly where it is in the examination, and
18 we can then find it all the more easily. That's the
19 first step.
20 Then the bodies are taken to the examination
21 tables themselves, and various procedures are then
22 carried out, including photography, both at the start
23 and during the examinations. We removed the clothing,
24 and this was washed -- subsequently washed, and we
25 described it in detail later on. We removed any
1 blindfolds or ligatures on the body. We looked for any
2 possessions or any other identifying items such as
3 documents, jewellery, etc.
4 Then the main part of the examination, from
5 the point of view of the pathologist, was to examine
6 the body for various things, its state of preservation,
7 any parts missing, identifying features like hair
8 colour present, height, any old injuries, age, et
9 cetera. Then particularly we looked for injuries on
10 the body and made a careful record of these, and also
11 looked for any natural disease which was present.
12 In doing all this, we retrieved bullets and
13 any bullet fragments, and these were handed to the
14 scenes-of-crime officers, and we collected various
15 samples particularly for future DNA testing.
16 We were assisted in the work by technicians
17 and particularly by anthropologists, and they helped us
18 to establish identifying features like age, height,
19 sex, and also assisted in reconstructing bones and
20 interpretation of injuries.
21 And the final thing that we, as pathologists,
22 did was to look at the clothing again after it had been
24 This was all recorded on to a pro forma, a
25 post-mortem report form, so each pathologist completed
1 that in longhand and it was subsequently typed up into
2 a final autopsy report.
3 Q. Can you just place on the ELMO Exhibit 237.
4 Now, this is an example of an autopsy report that you
5 completed. We'll talk about it in more detail when we
6 come to the relevant site.
7 Did you review all of the autopsy reports
8 that were produced by pathologists working with you?
9 A. Yes. I should perhaps just say, because this
10 doesn't look particularly impressive -- there's a lot
11 of scoring out -- this is the rough copy which we
12 completed, and it comprises about eight or nine pages.
13 It's recording all the details, et cetera. And then
14 the final report typed up is what you see on the front
15 page, two- or three-page report. So that's how it ends
16 up. At the end of the season, I went through all the
17 reports and extracted various bits of information and
18 analysed them and put them into this final report,
19 which is presented here.
20 Q. So essentially your report is a comprehensive
21 summary of all of the autopsy reports from the 1999
23 A. Yes.
24 Q. Now, Dr. Clark, in your report, you address
25 the limitations of pathology evidence in this type of
1 case, and I wonder if you could explain to the Judges
2 what those limitations are in a case such as this.
3 A. Obviously, we were not dealing with ideal
4 conditions and ideal bodies; certainly not the sort of
5 bodies that we, as pathologists, normally deal with.
6 Primarily, this was because these were bodies which had
7 been dead for a number of years, had decomposed very
8 badly, and had been disrupted for various reasons. So
9 that made things difficult, for a start.
10 If I can just concentrate on perhaps four
11 specific areas of difficulty and how we approached
12 them. The first one was actually recognising that
13 something that we found was an injury and that it was
14 an injury caused in life.
15 In a person who's died recently, when we
16 examine the body looking for injuries, we can tell that
17 injuries happened in life because of various reactions;
18 bleeding, swelling, bruising, et cetera, on the body.
19 And that allows us to say that that is an ante-mortem
20 injury. Clearly, when a body is decomposed or there
21 are no tissues left at all, then we don't have that
22 evidence. And in the vast majority of cases here, all
23 we were left with was the skeleton and just injuries to
25 Now, an injury to bone will look exactly the
1 same if it's caused before death as it is caused after
2 death, and it is really only by looking at these other
3 things like bruising and bleeding, et cetera, that we
4 can be sure that that is caused in life. So,
5 theoretically, given that these bodies were almost all
6 skeletonised, we could not 100 per cent say that any of
7 these injuries occurred in life. But we had to be
8 rather sensible about this. These bodies had huge
9 numbers of gunshot injuries, and if we were to suggest
10 that all these injuries occurred after death, then
11 we're suggesting that all these people died in some
12 obscure way that we had not detected and also that they
13 had been shot afterwards, systematically shot after
15 So on that basis, finding that unbelievable,
16 we adopted the position that any injuries suggestive of
17 gunshot damage, we assumed, with the occasional
18 exception, we assumed had occurred in life.
19 The second area was that we knew that there
20 was damage -- there would have been damage to the
21 bodies, injuries to the bodies after death. This is
22 because these bodies were, a large number of them,
23 lumped in a grave, piled on top of each other. You
24 will get crushing effect. There may also have been
25 vehicles on top of the grave compacting the bodies. So
1 it was to be expected that we would find injuries
2 caused after death.
3 We could usually recognise for what they
4 were, because the sort of injuries we would expect
5 would be crushing injuries of the ribs, which are the
6 most brittle bones. Crushing injuries of the pelvis
7 because it splits open under pressure. And indeed many
8 of the bodies did have injuries like this. So we
9 interpreted these injuries as having occurred after
10 death. That may have meant that we missed genuine
11 injuries, blunt-force injuries, but we just had to
12 accept that. So we interpreted this crushing type of
13 injuries of the chest and pelvis as having occurred
14 after death.
15 The third area, and I'll be brief, given the
16 bulk of the evidence here, was gunshot injuries, how
17 did we prove that a particular damage to a bone was a
18 gunshot injury and not something else. And we worked
19 on varying levels of certainty that this was gunshot
20 damage. Clearly if there was a very typical bullet
21 entrance in the bone, that was classic evidence of a
22 gunshot injury, entrance and exit perhaps.
23 Alternatively, we may just have had a very
24 fragmented piece of bone. That, again, highly typical
25 of gunshot damage, high-velocity gunshot damage, and it
1 may have been backed up by finding, perhaps, some
2 bullet fragments with it.
3 The third proof of gunshot damage may have
4 been that we actually found a bullet or part of a
5 bullet in tissues in the body, and that, again, clearly
6 is proof that there's been a shot to the body.
7 Without that, without any of these three
8 categories, although we perhaps might suspect that a
9 particular injury was gunshot damage, we didn't call it
10 that because we didn't have the full proof it. So
11 again, we may well have underestimated the number of
12 gunshot injuries to the body.
13 The fourth area of limitation in our evidence
14 is accepting what is and what isn't a cause of death.
15 This was proving that a particular injury to the body
16 necessarily killed the person, because again, we're
17 left -- we just have the skeleton to deal with. People
18 don't die because of damage to the skeleton. You die
19 of the damage to the associated tissues round about,
20 the damage to the organs, to the blood vessels, et
22 With decomposed bodies that evidence is gone,
23 so we're left just to speculate as to what damage there
24 would have been or there possibly could have been based
25 on what we found on the bones.
1 Now, I think it's reasonable to suggest that
2 a bullet going through somebody's skull is also going
3 to go through their brain. You don't die of the damage
4 to the skull, you die of the damage to the brain, but
5 we felt it was reasonable to assume that that would --
6 that there would have been damage, fatal damage, to the
8 Similarly, a bullet striking the chest, I
9 think that it's safe to assume that that would have
10 caused fatal damage to the major organs as blood
11 vessels in the chest, and it is highly likely that one
12 or more of them would have been damaged.
13 The difficulty came when all we had was
14 perhaps an injury to an arm or a leg, a gunshot injury
15 to the arm or leg. An injury like that would not
16 necessarily be fatal. It could be if it damaged a
17 large blood vessel in the leg, the person may bleed to
18 death, but we could not prove that. These are
19 potentially survivable injuries. So if that was the
20 only injuries we found on the body, by and large we
21 felt that we cannot, in all honesty, say that that was
22 necessarily the cause of death, so we tended to leave
23 these causes of death unascertained.
24 Q. Now, Dr. Clark, even taking into account all
25 of these limitations that you rightfully identify, how
1 did the vast majority of these people die, in your
2 professional opinion?
3 A. The vast majority died of gunshot injuries.
4 Q. If you could place Exhibit 195 onto the
5 overhead projector. That's correct. That's the one.
6 Just to orient the Court and the public, what
7 is represented by the orange shading on these
8 particular sites?
9 A. That is the grave site I was involved in. So
10 the main one was Kozluk, Nova Kasaba, the two Konjevic
11 Polje graves, and finally Glogova.
12 Q. And these are the sites on which you acted as
13 the chief pathologist.
14 A. Yes.
15 Q. Now, if we could move now to Kozluk, and you
16 might wish to turn to the relevant page in your report
17 to assist your recollection, how many whole or largely
18 complete bodies did you examine from this site?
19 A. We found 292 whole or largely complete
20 bodies, and there were an additional 233 body parts.
21 By "body parts," I'm meaning what it says really, part
22 of a body but perhaps a forearm or some leg bones or a
23 few ribs. Just a fairly small part of the body.
24 Q. I think the figure of 292 actually represents
25 the number of people that were originally in that
2 A. No. I'm sure there were more individuals,
3 yes. Two hundred and ninety-two is certainly a minimum
4 number, and most of my calculations are based on the
5 292, because it's only with the largely complete bodies
6 that one can make reasonable interpretations.
7 Q. Indeed, the anthropological conclusions on
8 the number of individuals would be different from the
9 figures that you have here, because you are the
10 pathologist dealing with bodies essentially?
11 A. Our main remit was to look, to examine the
12 bodies for injuries rather than count the numbers.
13 Q. The people that you examined from Kozluk, in
14 life what kind of people were they?
15 A. Well, we know that they ranged widely in age,
16 potentially from as young as 8 to potentially as old as
17 85. In Kozluk, the bulk of the people were over 25,
18 and as far as we could determine, all were male. They
19 were not a uniformly fit group of people, and a
20 significant number had physical disabilities or some
21 evidence of chronic disease.
22 For instance, and it's on --
23 Q. It's Prosecutor's Exhibit 239 is that
24 photograph, Dr. Clark.
25 A. This is a photograph of somebody's elbow
1 joint, upper arm here and forearm here. Now, the elbow
2 joint, as we all know, normally moves. This person is
3 completely rigid. The bones are just joined, fused
4 together, no movement whatsoever. This person would
5 have had a fixed -- fixed elbow joint.
6 Similarly, one man had a completely fused
7 knee joint. The two bones at the knee joint are just
8 stuck together. Whether that's from an old injury or
9 from disease it was difficult to say, but, undoubtedly,
10 he would have walked with a completely straight leg.
11 He wouldn't have been able to bend it.
12 MR. CAYLEY: And the witness, for the
13 purposes of the record, is referring to Exhibit 240.
14 A. There were other people. Somebody had a
15 glass eye. One man had a big plate inside his skull.
16 He'd obviously had previous surgery. Somebody had
17 evidence of open-heart surgery, coronary artery bypass
18 surgery. Several had old fracture -- bony fractures.
19 One man had an inhaler, Celbutimol [phoen] inhaler for
20 asthma and there were a number of other deformities and
22 Q. What other items did you find on the bodies
23 that you examined, Dr. Clark?
24 A. We found various personal possessions, simple
25 things, spectacles, cigarettes, cigarette lighters,
1 some documents, money, and various other items.
2 Q. If you could place Exhibit 241 onto the ELMO,
3 which is the next exhibit that you have in front of
5 A. Yes.
6 Q. Can you describe to the Judges what this
7 represents, this photograph?
8 A. We found a significant number of the
9 individuals had blindfolds around their heads; and
10 more, even more had ligatures around their hands; and
11 some had both.
12 This is an example of somebody with a
13 blindfold. It's a skull. You can see the nose here,
14 the eye sockets here and here, and this cloth blindfold
15 tied around the head.
16 Q. What percentage of the bodies that were
17 examined by you and your team had blindfolds?
18 A. We found them in 44 individuals. That's
19 about 13 per cent of cases.
20 Q. Now, you also mentioned that a number of the
21 bodies had ligatures. And if you could place on the
22 ELMO the next Exhibit, which is 242.
23 What comments do you have about this
24 photograph, Dr. Clark?
25 A. Well, we found ligatures in 140 people.
1 That's 41 per cent of cases. This is an example,
2 typical example of a ligature. It's a bit of cloth
3 which has been tied, it looks around both wrists and
4 tied in the middle there. We found the ligatures of
5 two materials. The bulk were cloth which was all of
6 the same material, strips of cloth all cut from the
7 same material. Some people also had or instead had
8 string, sort of twine binding the wrists together, and
9 some people had both types.
10 Apart from one man, everyone had their hands
11 tied behind their backs. This one man had his hands
12 tied in front of him.
13 Q. Now, Dr. Clark, you stated earlier that the
14 vast majority of the bodies that were examined by you
15 and your team had gunshot injuries. What proportion of
16 the bodies at Kozluk had gunshot injuries?
17 A. We found definite gunshot injury in 89 per
18 cent of the victims.
19 Q. And could you establish from where those
20 individuals, from which direction those individuals had
21 been shot?
22 A. We could establish, in a certain proportion
23 of cases, which direction they had been shot in, and
24 particularly in looking at injuries to the head and the
25 trunk. And looking at that, we found most often people
1 had been shot from behind, then a significant number
2 from the front, some from the side and some from the
3 top, but mostly from behind. Having said that, in a
4 substantial number of cases we could not tell the
6 Q. Now, if you could place the next exhibit,
7 which is 243, and if you could explain to the Judges
8 what is represented in this photograph.
9 A. This is a very typical gunshot injury,
10 typical of many that we found. It's a gunshot injury
11 to the side of the skull. This is the front of the
12 skull, the eye socket here, the cheekbone going back
13 here, and the ear sits roundabout here. So this is a
14 gunshot injury. When one has a circular hole in the
15 skull, it is an entry hole. It has caused tremendous
16 structuring of the skull, these various lines you can
17 see going over here and up at the top. The skull has
18 been stuck together, glued back together again to
19 reconstruct it, but a typical gunshot injury.
20 Q. Could you and your colleagues establish the
21 type of weapon that had been used to create these
22 gunshot injuries?
23 A. To our view, all these injuries were typical
24 of high-velocity rifle weapons. We based that both on
25 the extent of the damage, the fragmentation of the
1 bones, and also by the finding of typical high-velocity
2 rifle bullets in the bodies.
3 Q. To give you an example of a high-velocity
4 weapon here, we're talking about military assault
5 weapons such as AK-47s or their variants?
6 A. Yes, that's right.
7 Q. What was the average number of shots per body
8 where you could actually identify that somebody had
9 been killed by gunshot injury?
10 A. In Kozluk, it was 2.3, so people had been
11 shot, on average, between two to three times.
12 Q. Were you able to establish in any cases that
13 people had been injured by something other than gunshot
14 prior to death?
15 A. We found two people with bandages along with
16 the skeleton, which did suggest previous injuries,
17 probably soft-tissue injuries. One of these was on
18 somebody's hand and one was on their legs.
19 Q. Was there any other evidence -- and I know
20 you've already stated that there are certain
21 limitations in this field -- of blunt-force injury to
22 any of the bodies that you saw?
23 A. Yes. Even allowing for these limitations and
24 expectation of crushing injuries in the grave, we found
25 some people with fractures of the face and the shoulder
1 blades, which did not really fit well with post-mortem
2 injuries, and they could well have been caused by
3 blunt-force kicking or blows from a weapon in life.
4 Q. If Exhibit 244, the next exhibit, could be
5 placed onto the ELMO. Could you explain to the Judges
6 what is represented on this exhibit?
7 A. Well, this is an interesting case. This is
8 the man, the same man who had the rigid leg, which I
9 showed you earlier, and who would have walked
10 undoubtedly with a limp with a very straight leg. He
11 only had one injury on his body, and that was a gunshot
12 wound to his other foot. Now, this was a relatively
13 intact body with all parts present and with the skin
14 still present, so we could say fairly surely that this
15 was the -- this appeared to be the only gunshot injury
16 on the body, and we would not say that he died from
17 that. It would be unusual for somebody to die from a
18 single gunshot wound to the foot. We could not find
19 out why he died, and one could only speculate as to
20 what may have happened.
21 Q. Is it possible, in your opinion, that he may
22 have been placed alive into the grave?
23 A. I think that's entirely possible.
24 Q. How would he have died in those
1 A. He would -- he could have died eventually
2 from blood loss, although it would take some time. He
3 could have died, if he was in the grave, from crushing,
4 suffocation under other bodies or other material.
5 Alternatively, he could have been killed in other ways
6 which we would not detect at post-mortem. Any cutting
7 injuries, perhaps stabbing or cutting throats, would be
8 difficult for us to see post-mortem.
9 Q. If now, Dr. Clark, you could place
10 Prosecutor's Exhibit 245, which is actually two
11 exhibits, first of all the photograph, and there's a
12 larger version of that next to you.
13 MR. CAYLEY: This is an exhibit, Your
14 Honours, that was previously addressed by Professor
16 Q. Now, Dr. Clark, were you able to identify the
17 autopsy reports in respect of each one of these
18 numbered bodies in this grave?
19 A. Yes.
20 Q. If you could go through each one, and if it's
21 possible -- I know you've done a little sketch which --
22 would it be easier for you to have that in front of
24 A. Yes. I have it, yes.
25 Q. I think the bodies are numbered, so I think
1 it's quite clear if you just keep the paper in front of
3 A. Yes. We're really speaking about these five
4 bodies here, here, here, here, and here. And if I deal
5 with them from right to left, it was interesting just
6 generally that these were all young men. No one was
7 over the age of 35, in our estimate, and some perhaps
8 as young as 12. So the age range in all of them was 12
9 to 35.
10 This one at the end, 65, he was found face
11 down, and he had a probable single gunshot wound to the
12 back of his neck, or to his neck, rather.
13 Number 61, he was found with a ligature
14 partly around his wrists. He had three gunshot
15 injuries, one to the back of the head and two to the
17 Body 81, he had no obvious bony injuries, but
18 we did find a bullet inside his ribcage, with staining
19 of the bone, suggesting that the bullet had been
20 genuinely lying there. And the pathologist felt that
21 that was sufficient evidence to suggest that he died of
22 a gunshot wound of the chest.
23 Number 82 had two gunshot injuries, one to
24 the upper chest and one to his left leg. The cause of
25 death there was felt to be a gunshot wound to the
2 And finally to body 83, the one lying along
3 the way, he had a single gunshot injury to the front of
4 his left arm. This was one of these cases in which the
5 pathologist felt he could not justifiably say that that
6 was the cause of death and left the cause as
8 Q. Dr. Clark, the autopsy report that we
9 previously put into evidence is, in fact, from the
10 Kozluk site. Is there anything that you would wish to
11 add from that report or there is nothing in it that --
12 A. No, it is a very typical example. I chose it
13 because it was fairly untypical -- because it was
14 typical, and there is nothing really more to say.
15 Q. If you could place page 12 of your report
16 onto the ELMO, and this is really for the benefit of
17 the public as well, and this gives quite a neat summary
18 of your findings.
19 A. I don't know if that's in focus or not.
20 Q. Yes, that can be clearly seen. Do you have
21 any particular comments on that summary?
22 A. No. I'll read it, if you wish.
23 MR. CAYLEY: Mr. President, would you like it
25 Q. If you could read out your summary of
2 A. It's a summary of findings from Kozluk. It's
3 a very large grave site. It had been extensively
4 robbed, but it still contained 292 bodies and 233 body
6 All the victims were apparently male, mostly
7 over the age of 25. Several had old injuries,
8 disabilities, and chronic disease. Blindfolds were
9 found in 13 per cent of bodies, and ligatures in 41
10 per cent. Eighty-nine per cent of the victims had
11 gunshot injuries, most having been shot either once or
12 twice, but some as many as seven times. The largest
13 number of shots were to the trunk, with the head and
14 legs next, although the commonest final cause of death
15 was gunshot injuries to the head.
16 There were bandaged wounds on two people,
17 suggestive of injuries suffered sometime earlier.
18 There was extensive cutting out, in fact, in many
19 bodies and parts missing. This is the post-mortem
20 damage we spoke about.
21 And the cause of death remained unascertained
22 in a substantial number of people. Some clearly died
23 from causes other than gunshot wounds.
24 Q. Dr. Clark, you're using a lot of medical
25 terminology, and I wonder, for the sake of the public
1 gallery, could you explain what you mean by
2 "post-mortem", "ante-mortem", and "pari-mortem"?
3 A. I use only two terms, "post-mortem" and
4 "ante-mortem". Others still use "pari-mortem".
5 "Post-mortem" remains anything occurring after death.
6 "Ante-mortem" is anything occurring before death.
7 MR. CAYLEY: Mr. President, we're now going
8 to move to a new site, so I don't know if you want me
9 to continue -- I know the interpreters have been
10 working very hard -- or whether you wish to conclude at
11 this point. It is entirely up to you.
12 JUDGE RODRIGUES: [Interpretation] Yes. I
13 think it is preferable, for it's almost 2.30, so it
14 would be a better idea to resume tomorrow so as to not
15 interrupt the sequence of the testimony. Therefore,
16 Dr. Clark, we expect you to come again tomorrow,
18 So we'll be here tomorrow at 9.30.
19 --- Whereupon the hearing adjourned at
20 2.26 p.m., to be reconvened on
21 Wednesday, the 31st day of May, 2000,
22 at 9.30 a.m.