1 Wednesday, 14 May 2008
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.01 a.m.
5 JUDGE BONOMY: Good morning, everyone. I gather, Mr. Ivetic,
6 that you will be leading the next witness, who is?
7 MR. IVETIC: That is correct, Your Honour. That will be
8 Professor Dr. Zoran Stankovic.
9 JUDGE BONOMY: Thank you.
10 [The witness entered court]
11 JUDGE BONOMY: Good morning again, Dr. Stankovic.
12 THE WITNESS: [Interpretation] Good morning.
13 JUDGE BONOMY: Would you please make the solemn declaration to
14 speak the truth by reading aloud the document which will now be shown to
16 THE WITNESS: [Interpretation] I solemnly declare that I will
17 speak the truth, the whole truth, and nothing but the truth.
18 JUDGE BONOMY: Thank you. Please be seated.
19 You will now be examined by Mr. Ivetic.
20 Mr. Ivetic.
21 MR. IVETIC: Thank you, Your Honours.
22 WITNESS: ZORAN STANKOVIC
23 [Witness answered through interpreter]
24 Examination by Mr. Ivetic:
25 Q. Good morning, Professor Stankovic.
1 A. Good morning.
2 Q. Professor Stankovic, could you please first tell us your full
3 name, first and last, and tell us briefly about your background and
5 A. My name is Zoran Stankovic. I was born on the 9th of November,
6 1954, in the village of Tegoviste, municipality of Vladicin Han. I'm a
7 physician by profession. I'm a specialist in forensic medicine. From
8 the very outset of my career, I served in the military first as head of
9 the garrison infirmary in Pec; then I was a forensic doctor in the
10 Institute For Pathology And Forensic Medicine of the Military Medical
11 Academy; and later on from 2002 until 2005, I was head of the Military
12 Medical Academy. I am a major-general, retired. During the course of my
13 professional career, I lectured in King's College at Cambridge and then
14 in several countries such as the Ukraine. I was also in The Hague and
15 Amsterdam and Utrecht. After that, I published about 60 scientific and
16 professional papers. I took part in the writing of four or five books.
17 I was an expert witness in The Hague Tribunal in General Krstic's case.
18 Also, inter alia, I was a member of the commission of the Government of
19 Yugoslavia, the truth commission of the ad hoc group of Vukovar, and I am
20 a permanent forensic expert for Serbia and Republika Srpska, and I also
21 testified at the higher court in Thessaloniki.
22 Q. If we could call up Exhibit 6D 711 on the monitors in e-court,
23 sir, I would ask you to take a look at this and tell us if this document
24 is your curriculum vitae and if there are any additions or supplements
25 that need to be made to the same to complete it. I think you've done
1 that in answer to the first question already.
2 A. I have to say that the text is in the English language.
3 Q. You should have the text in the Serbian on the left side of the
4 screen about now.
5 A. Yes. I just have to say that currently I teach forensic medicine
6 at the Faculty Of Dental Medicine in Pancevo, and also I teach in
7 Belgrade at the police academy, and from October 2005 until the 15th of
8 May, 2007, I was minister of defence of the state union of Serbia and
9 Montenegro, later on the Republic of Serbia.
10 Q. Thank you, sir. Now, could you please enlighten us on the
11 precise topic and subject matter that was examined by you and defended as
12 part of your doctoral dissertation as part of your studies?
13 A. My doctorate has to do with dealing with corpses in wartime and
14 it is entitled, Problems Of Examining Corpses In Conditions Of War. I
15 examined 1.360 cases and several variables in terms of all the problems
16 cropping up in relation to corpses. Some of these problems and dilemmas
17 will be the subject of my expertise today in view of the findings that
18 are in the case file.
19 Q. And now just to get some specifics, you indicated that you are at
20 the dental college and the police criminalistic academy. Could you tell
21 us what courses or responsibilities you have at those institutions.
22 A. These are lectures that primarily have to do with forensic
23 medicine, that is to say the application of medicine or the explanation
24 of all the medical concepts that are of importance for court proceedings.
25 Primarily, this pertains to the classification and qualification of body
1 injuries, causes of death, and all injuries that involve violence,
2 poisoning; at the same time, autopsies, bodies, and all activities
3 related to forensic medicine. I have to say that Serbia is one of the
4 few countries that has forensic medicine as an isolated subject, like in
5 Great Britain. In contrast to that, in the United States it is called a
6 court pathologist or something like that. However, the activities are
7 the same, those of a court pathologist.
8 Q. Thank you. And you mentioned lecturing at the Kings College, and
9 indeed, in your CV it mentions the Kings College at Cambridge in Great
10 Britain. Could you tell us what was the precise nature of the lectures
11 that you presented at the Kings College at Cambridge?
12 A. During the war in the territory of the former Yugoslavia, I
13 carried out autopsies of about 5.000 corpses, so practically this
14 involved all the big mass graves that were dealt with at the time during
15 the war operations. I can say now that I worked in several cities like
16 Vukovar, Siroko, Kula, Nevesinje, Trebinje, Bilaca, Sarajevo, Bratunac,
17 all of Eastern Bosnia, in fact; then Mrkonjic Grad, Banja Luka; in Kosovo
18 Klina and Lake Radonjic where I was in attendance. Since I participated
19 and led so many activities in relation to mass graves, then I was invited
20 to give lectures on victims of war at all of these institutions, as
21 you've seen, including Kings College at Cambridge and the British
22 parliament and in the Ukraine too.
23 Q. And, Professor Stankovic, could you please tell us if you have
24 testified as an expert in any legal proceedings domestically in Serbia or
25 the former Yugoslavia and if said testimony was exclusively on the side
1 of defendants, or have you had occasion to testify for the Prosecution?
2 A. Well, practically every day I take part in such court proceedings
3 that have to do with violence, and I give my forensic opinion. I would
4 particularly like to highlight as far as this Tribunal is concerned, at
5 least, that I took part in providing expert opinions regarding victims
6 from Kosovo. It had to do with the processing of the well near Klina in
7 Kosovo. The trial was before the district court in Kraljevo, and that is
8 where I presented my findings and opinion.
9 Q. Thank you. And, Doctor, you've mentioned all the experience that
10 you've had dealing with mass or multiple graves arising out of wartime
11 situations. Based upon your knowledge, training, experience, and area of
12 expertise within the forensic sciences, are there any nuances or
13 peculiarities relating to applying forensic science to the examination of
14 so-called mass graves that differs from normal, everyday forensic science
15 work that most professionals in your field are exposed to, that is to say
16 examination of single or small number of corpses in clinical
17 circumstances. That is to say, would you consider the examination of
18 mass graves to be a specialised area of forensic medical science, and if
19 so, how?
20 A. Yes. In order for someone to deal with a mass grave, in addition
21 to theoretical experience he must have practical experience. In
22 day-to-day work, there are numerous problems that crop up and that you
23 have to resolve, regardless of how high level of training you have had if
24 you did not see what projectile wounds look like or, for example, if you
25 did not see how mine and explosive devices actually work, you cannot be a
1 proper expert in this field until you see things like that. For example,
2 if you look at a 556 bullet, it has a very characteristic entry wound.
3 Sometimes it is barely perceptible as opposed to the exit wound that is
4 very big. Then, the experience we had when we were in Vukovar. Eight of
5 our soldiers got killed in Vukovar, and 24 lost one or both legs at the
6 moment when we were walking up to the corpses that were there and when we
7 were gathering them for forensic examination. When we realized that they
8 had been mined, then we realized that the site had to be dealt with in a
9 completely different way. Also, when we were involved in exhumations of
10 the mass grave in Rogatica. At that moment, the son who saw his father
11 and recognised him by his footwear, in -- at that moment he tried to dig
12 his father's body out as past as possible, and he lost his own foot
13 because there was a booby-trap there. So this is the kind of experience
14 that one can gain only when war operations are actually going on,
16 Q. Thank you, sir. Just waiting for the transcript to catch up with
17 us. Now, Professor Stankovic, did you have an occasion to prepare a
18 written report specifically in professional analysis on behalf of all the
19 Defence teams in these proceedings?
20 A. Yes, yes. I provided my findings and my opinion that were
21 submitted to the Tribunal. At the same time, it is actually -- could I
22 just have a moment, please. It involves 13 pages with 19 conclusions
23 related to Kotlina and nine related -- nine conclusions related to
25 Q. Thank you. If we could please take a moment to call up Exhibit
1 6D 670 on e-court. And, sir, when this document comes up, I would ask
2 you to take a look at the same and tell me whether you -- this is the
3 professional work product or analysis that you prepared based on your
4 knowledge and expertise relating to the matters of relevance for these
5 instant court proceedings.
6 A. Yes, that's the report.
7 Q. Thank you, Professor. Could you please take a moment to
8 highlight for us the materials which you had occasion to review and
9 analyse for purposes of preparing this report and performing your
10 preparations for testifying as an expert before this Trial Chamber.
11 A. As for the material, I reviewed the report of the Federal
12 Ministry of the Interior of the Republic of Austria. They worked in
13 Kotlina in 1999, then the collective report of the French forensic
14 mission of Kosovo in the summer of 1999. I also saw the recordings of
15 Dr. Liri Loshi; the forensic medical examination, the synthesis of the
16 report on forensic examinations carried out in Kosovo during 1999 of
17 Dr. Baccard; the report of the MUP of Serbia about the examination of the
18 scene in Kotlina in Kacanik, the 23rd of March, 1999; then a record
19 compiled by Dr. Strbac and Dr. Tomasevic; and the statements of Thaqi
20 Milazim, Draga Mustafa, and Hazbi Loku.
21 Q. Waiting for the transcript -- okay, we have reached the end of
23 MR. IVETIC: For the record, Your Honours, those are all exhibits
24 in these proceedings. The report for the Austrian team for Kotlina is
25 P361; the report of the French team of Izbica is P209; the report of
1 Dr. Baccard is P1809; the SUP Urosevac Kotlina forensic material is 6D
2 501; the videotape of Witness Liri Loshi is P232; the statement of Hazbi
3 Loku, P2296; the statement of Mustafa Draga is P2244; the statement of
4 Milazim Thaqi is P2246; and the pictures of -- that -- the previous
5 statement of Milazim Thaqi is P227; and the Tomasevic-Strbac report of --
6 review of -- external review of corpses is P248.
7 JUDGE BONOMY: Thank you.
8 MR. IVETIC:
9 Q. Now, Professor Stankovic, if I could ask you some general matters
10 first if we're going to the specifics of your findings or conclusions
11 related to the matters in your report. Based upon your knowledge,
12 experience, and expertise, is it possible within a degree of medical
13 certainty accepted in the forensic science field of practice to ascertain
14 a precise cause of death and circumstances where only skeletal remains
15 are discovered where human tissue is sparse or gone, particularly
16 differentiating between post mortem and antemortem damage and gun-shot as
17 opposed to other injuries?
18 A. I have to say -- well, I will try in -- not to use any long words
19 in my presentation in light of the report submitted by my colleagues and
20 on the basis of what they described in the course of their processing of
21 the remains and dead bodies at the sites where those bodies were found.
22 At the same time, I have to say that the manner in which conclusions are
23 formed, and I will say something more specific about that. Let me put it
24 this way. It's not arbitrary, but at the same time if you bear in mind
25 that all those autopsies were performed on the orders or at the request
1 of such a high international body or institution such as the
2 International Criminal Tribunal, if the injuries -- or rather, if those
3 bodies were processed at the time when there were no combat activities
4 going on and when there was enough time to record all the data important
5 for determining the truth about the fate of those victims and to
6 ascertain -- to ascribe the responsibility for those crimes, I think that
7 this should have been done in a much more thorough manner than it -- than
8 I was able to ascertain on the basis of my analysis. When we're talking
9 about isolated cases of injuries, or rather, injuries on the bodies that
10 do not have any soft tissue when there are no clothes, it is very
11 difficult to draw any conclusions about those injuries except when we're
12 dealing with injuries that leave visible traces on bones. And it is
13 particularly difficult to draw conclusions about the causes of death, and
14 it is also impossible to draw any conclusions on the basis of only those
15 data on the relative positions of the assailant and the victim, and it is
16 impossible to make any conclusions, for instance, on the basis of the
17 putrefaction of soft tissues, about the calibre of the weapon with which
18 those injuries were inflicted. I can speak about that in greater detail
19 later, but this is what I can tell you in answer to your question at this
21 Q. What are the general or major concerns that you have about the
22 methodology of work utilised by the forensic science professionals whose
23 work you reviewed for purposes of preparing your analysis and expert
24 report in this case?
25 A. First of all, I will be very brief, but I have to note some
1 specific examples of findings that were made both by the Swiss
2 pathologists as part of the report submitted by the Austrian Ministry of
3 the Interior and the conclusions by Lecomte and the way in which this was
4 done by Baccard. For instance, at page 12 and 13 in the Serbian version,
5 when describing the injuries or describing the remains we're talking
6 about the dead body number 4 - that's Xhemajl Kuqi - one, and the same
7 expert at page 1 in the first paragraph states the following: "On the
8 torso, on the back to the right of the vertebral column, there was an
9 injury visible, probably inflicted by a fire-arm." Mr. Markwalder then
10 goes on, again in the part where he talks about the autopsy, says the
12 "There were remains of explosives visible on the body. The
13 lesions probably inflicted by shrapnel could be seen on the back."
14 So one and the same doctor examining the body says in the first
15 paragraph that this was a gun-shot wound, and in the last paragraph
16 describing the autopsy, he says that the injuries were inflicted by mines
17 or explosives. So to say the least, this is an error and an
18 inconsistency that should disqualify him as an expert. What is even
19 worse than that, the whole record of the autopsy has only two and a half
20 sentences or two sentences. He says: "The body was whole all the way up
21 to the head area. There were marks of explosives on the body," and the
22 sentence that I just read out, "superficial lesions could be observed on
23 the back, probably caused by shrapnel."
24 So this is really unacceptable, that this person who was given
25 the mandate to discover how this man got killed, to do this in such a
1 perfunctory manner.
2 MR. IVETIC: [Previous translation continues] -- This is P361.
3 JUDGE BONOMY: Mr. Ivetic, which paragraph of the report is this?
4 MR. IVETIC: This is the first section of the report dealing with
5 the forensic report of the Austrian --
6 JUDGE BONOMY: And which paragraph deals with body number 4?
7 THE INTERPRETER: Interpreter's note, could this be placed on the
9 MR. IVETIC: I don't believe that the --
10 JUDGE BONOMY: Just a second. For the interpreters' benefit,
11 there's been no reference made so far by counsel to the report. I'm
12 seeking clarification. When they wish to use the report, it will be
13 placed on the ELMO.
14 MR. IVETIC: Correct.
15 JUDGE BONOMY: But where is it referred to, sorry, Mr. Ivetic?
16 MR. IVETIC: Body 4 is not specifically referred to in the
17 report. I believe now he's giving general concerns about the
19 JUDGE BONOMY: Professor, is your report not meant to deal with
20 specific examples of inadequate examination of bodies?
21 THE WITNESS: [Interpretation] Mr. President, if one examines a
22 dead body, he's duty-bound, first of all, to provide the basic
23 characteristics of the body being examined, and that --
24 JUDGE BONOMY: You've misunderstood. I thought that you had
25 provided us with a written report which reviewed the work of the Austrian
1 Ministry of the Interior team investigating Kotlina. Is that correct?
2 THE WITNESS: [Interpretation] Yes.
3 JUDGE BONOMY: Now, all I'm asking is why is this particular
4 example that you've been speaking about just now not dealt with in your
5 report? I was looking -- that's what I've been -- I've been trying to
6 find it, and I can't see it in the report. Now --
7 THE WITNESS: [Interpretation] Well, then, in that case,
8 Mr. President, I would have to make an even larger report than the one
9 done by the Austrian team about the examination of the bodies in Kotlina
10 and to highlight all the inconsistencies contained in this report. In
11 this specific case, I thought that I could present it in this manner. If
12 necessary, I can deal with it at a later stage and then submit it to the
13 Trial Chamber.
14 MR. IVETIC: [Previous translation continues]... general
15 conditions with respect to P361, which is, in fact, the Austrian medical
17 JUDGE BONOMY: I've obviously misunderstood what this document
18 amounted to. That was all. I thought this was a thorough review of the
19 work of the other team, and you're telling me these are only examples of
20 your criticisms and that you have far more. Is that the position?
21 THE WITNESS: [Interpretation] Yes. In the course of my analysis
22 of the reports that I listed at the beginning, I saw a number of
23 inconsistencies and conclusions that were not in line with the usual
24 forensic medical practice. On the basis of this, I was able to provide
25 this report that is rather general, and it should be supplemented by the
1 information that I am now providing.
2 JUDGE BONOMY: And you're saying in relation to this particular
3 body there's no possibility that there were two separate causes of
4 injury, a fire-arm or explosive device?
5 THE WITNESS: [Interpretation] No. I am saying that one and the
6 same expert, a doctor that performed the autopsy, in the first paragraph
7 notes that this was an injury caused by a projectile; and at the end when
8 he presents his autopsy report, he notes that the injury was caused by
9 shrapnel. So for one and the same injury, he stipulates that this injury
10 could have been caused by two different kinds of weapons.
11 JUDGE BONOMY: So you're satisfied he's talking about the same
12 injury. Thank you.
13 Mr. Ivetic.
14 MR. IVETIC:
15 Q. Dr. Stankovic, is your criticism of the -- of this particular ...
16 [Trial Chamber confers]
17 JUDGE CHOWHAN: Well, I think we should examine Markwalder's
18 report on this very specific report you've mentioned, and let's see if it
19 is -- let's see it on the screen and then read the results. But I feel,
20 Professor, that while speaking of a projectile, I mean, a shrapnel is
21 also a projectile, and a bullet can also be a projectile. There wouldn't
22 be much of a difference, but a wound caused by either of these may differ
23 because charring, because of the shape, because of the visible marking on
24 the bone, and so on and so forth. But how he differed, we'd like to see
25 it right away and examine this document. I think it'll be very important
1 while you are present here. Thank you very much.
2 JUDGE BONOMY: Mr. Ivetic, can you identify the exhibit and the
3 paragraph, please.
4 MR. IVETIC: Yes, Your Honours. Again, this is P361, the
5 Republic of Austria reports of crime scene team, and in English it's
6 pages 12 to 13 just as in the B/C/S, item number 4, Kuqi Xhemajl. This
7 takes the bulk of page 12 and goes on to the first half of page 13 before
8 body number 5 is discussed.
9 THE WITNESS: [Interpretation] I would just like to answer this
10 question posed by His Honour. First of all, in the first paragraph a
11 mention is made of a fire-arm, not of artillery weapons. And fire-arms
12 fire projectiles, whereas artillery weapons fire what we call mines and
13 explosives. So in the first paragraph, he talks about fire-arm, and in
14 the last one he talks about the explosives. So there are similarities
15 and differences between those kinds of injuries, but this is at any rate
16 a serious departure from the usual way in which injuries are described
17 and classified.
18 JUDGE BONOMY: Is your understanding that Dr. Markwalder was
19 present when the body was exhumed?
20 THE WITNESS: [Interpretation] Well, at any rate, he had to have
21 been there if he was able to describe those injuries to the bodies.
22 JUDGE BONOMY: I understand that, but in the report it looks as
23 though the conclusion about a bullet wound which was a presumption may
24 have been made by someone unprofessional in the forensic medicine sense
25 exhuming the body and that the position was clarified by the autopsy. Is
1 that the wrong way to read the report?
2 THE WITNESS: [Interpretation] If a person signs a report where he
3 actually co-signs it, he is duty-bound to perform a full examination of
4 everything that is written in the report and then to correct it as
6 JUDGE BONOMY: Thank you.
7 Mr. Ivetic.
8 JUDGE CHOWHAN: I think the only -- Professor, were you kindly
9 speaking of body 4, were you, while presenting a critique of -- is it?
10 THE WITNESS: [No interpretation]
11 JUDGE CHOWHAN: I'm just trying to understand. Now, here it says
12 at the last paragraph before the description of the body is given: "A
13 hole, presumably a bullet wound, was visible in the torso on the back to
14 the right of the spinal column."
15 Now, who could have written these remarks? You think this was
16 Dr. Markwalder or just somebody who saw the body and passed it on later
17 for the test?
18 THE WITNESS: [Interpretation] I can't say because I didn't
19 perform this kind of analysis, nor was this part of my task. I'm only
20 speaking about what is stated when the injuries found on the corpse -- on
21 corpse number 4 are described.
22 JUDGE CHOWHAN: And then we go to the autopsy, the report
23 reproduced by you, which says: "The body was practically complete as for
24 the region of the head. Marks of an explosion and fire were present on
25 the corpse. Superficial skin lesions were visible on the back, possibly
1 splinter wounds."
2 So how do you differentiate between these two? A whole -- you
3 mean to say that he missed the factum of the hole which was stated in the
4 first part which I read over to you? You mean he didn't carry it on
5 here? That is what you mean, Professor? I'm talking of a comparison
6 between the first paragraph and this last paragraph.
7 THE WITNESS: [Interpretation] What I can say is the following:
8 What is stated here, and I'll be very open about it, practically means
9 nothing. This could have been done by a layman who has completed eight
10 years of primary education, and it's impermissible to treat a victim in
11 this way and the last moment of that victim's life. It's impermissible
12 to decide on the basis of this kind of description of injuries on the
13 sentence to be awarded certain people. It's impermissible for a
14 high-level professional body to allow experts to do their work in this
15 way, and any further comment I might make would be even worse. I
16 apologise for using such hard words, but a person who conducted autopsies
17 while I was being shelled, and my findings contain all possible details
18 as one can see. Even under shelling, I was able to include all details
19 in my report, and yet here they were working in peacetime conditions, and
20 they failed to include such details, and that is impermissible.
21 JUDGE CHOWHAN: Well, what is absolutely visible here is that
22 this aspect of the hole which is mentioned in the first paragraph doesn't
23 find a mention at the concluding paragraph. Am I right in understanding
24 this? So he has omitted something, is it? Am I right?
25 THE WITNESS: [Interpretation] You are right when you say this.
1 There is a wound in the back, but it's not the same thing to say that
2 this wound was caused by a fire-arm, by a projectile or bullet, because
3 someone would have had to fire such a projectile from a fire-arm. This
4 is not the same thing as saying that the wound was caused by shrapnel
5 coming from a shell or explosive device fired and which then exploded.
6 If someone has to clarify this, when a wound is caused by shrapnel, the
7 shrapnel is in the area of the wound, and it would not have been
8 difficult in the case of this corpse to take a scalpel, make a cut, and
9 see whether in the area of the wound there was a bullet or a piece of
10 shrapnel, and then it could have been easy to state with precision the
11 weapon that caused the injury. The person who did this, in this
12 particular case Dr. Markwalder, is disqualifying himself in the case of
13 every finding he made. I don't want to go into details and analyse each
14 and every case, each and every corpse.
15 JUDGE CHOWHAN: Thank you very much. I am grateful.
16 JUDGE BONOMY: What I'm not understanding, I'm afraid, Professor,
17 is why you say no victim should be treated in this way. What is it you
18 say is the way in which the pathologist treated the victim in which is
20 THE WITNESS: [Interpretation] By your leave, Mr. President, in
21 the course of a conversation with a previous prosecutor of this Tribunal,
22 Mr. Goldstone, I said in the course of lunch that I talked to my corpses,
23 and he choked when he heard this. He thought that I was -- well, I won't
24 say what he thought, but I explained to him that when you are conducting
25 an autopsy, the victim is telling you about the last moments of his life.
1 If you do not know how to register what the injuries rely, how they were
2 inflicted, the manner in which they were inflicted, the mutual positions
3 of the attacker and the victim, whether the victim suffered or not when
4 the injuries were inflicted, whether death was instantaneous or whether
5 it was protracted, you as Judges know that all these circumstances have
6 an influence on sentencing. In a case like this, no one has the right
7 and nowhere in the textbooks does it say that someone can describe a body
8 as Mr. Markwalder says that it is entire up to the head. What about the
9 head? What is this about? How can he describe this in just two and a
10 half lines? This is impermissible.
11 JUDGE BONOMY: Mr. --
12 THE WITNESS: [Interpretation] That is my main objection, and
13 in --
14 JUDGE BONOMY: Professor, the head was missing. He can't do
15 anything about the head.
16 THE WITNESS: [Interpretation] I didn't say that he should
17 describe the head or bring it back; he should say that the mortal remains
18 were of such and such a length, of such and such a mass. There is a
19 protocol as to how mortal remains should be described in such cases. I
20 don't even know, in spite of all my experience, and I've done over 5 or
21 6.000 autopsies. I don't understand what this colleague of mine was
22 trying to say in these two sentences.
23 JUDGE BONOMY: Well, what he seems to have said is that there
24 were signs of superficial injury on the body. I mean, what more is he
25 saying than that? He's not saying the body was shot. All he's seen is
1 marks on the corpse and superficial skin lesions.
2 THE WITNESS: [Interpretation] But why didn't he examine the body
3 in full? That's what he should have done.
4 JUDGE BONOMY: Well, we'll have to decide whether he was being
5 realistic or not and acting properly or not when we hear all the
7 There are some things, you know, in life that you have to take
8 decisions about how you deal with, and perhaps he made a decision. We'll
9 need to review that in the light of all that you say and all that he and
10 others have said.
11 Mr. Ivetic.
12 MR. IVETIC: For the record, Your Honour, the record does report
13 that the OTP's investigator was the one making the decisions for this
14 investigation and all the exhumations at several --
15 JUDGE BONOMY: And for all we know, budgets were involved. I
16 don't know, but to -- I'm concerned that a professional would dismiss all
17 the work of another person on the basis of a finding he made on one case.
18 MR. IVETIC: I believe the comments of the Professor are related
19 to this particular report and the findings in this report that are being
20 presented as positive evidence in this case, Your Honour. He's attacking
21 the methodology of reporting, and as we'll go through this for -- as
22 you'll see, he talks about the methodology of exhumation, et cetera. As
23 a forensic science professional, he's questioning the value of this
24 report, which is of critical importance to these proceedings, I think,
25 and it's highly relevant and probative.
1 JUDGE BONOMY: The person -- yes, he says the person who did
2 this, in this particular case Dr. Markwalder, is disqualifying himself in
3 the case of every finding he made.
4 MR. IVETIC: Because he's the autopsy physician who does the
5 findings in this report. Every forensic section of this report, I
6 believe, says Christopher Markwalder in P361, at least.
7 JUDGE BONOMY: Yes. That -- I find it difficult. It's like
8 saying if a mistake is made or a witness tells a lie on one thing, then
9 we shouldn't believe him on anything. I mean, that doesn't seem to me to
10 be a reasonable way of going about things. You look at each individual
11 case on its own merits. However, let's proceed.
12 MR. IVETIC: Thank you.
13 JUDGE BONOMY: Please, just hold on a second.
14 [Trial Chamber confers]
15 JUDGE CHOWHAN: I'm sorry to bother you with this question,
16 Professor. Now, we've examined this and your critique, as well, but the
17 flaw is that you have missed this in your own report. It's because of
18 too much of reports there, and you wanted to give a brief report from
19 your side. Could you please refer us to any similar example which is
20 embodied in your report to suggest a similar circumstance and a similar
21 critique on Dr. Walder so that we know that you took that in your report
22 and displayed it. Could you kindly give us one more example of such a
23 situation, please. Thank you very much.
24 THE WITNESS: [Interpretation] By your leave, I will give you two
25 such examples. I will demonstrate how a finding can make a situation
1 more complex.
2 If we take body number 7, Rexha Neshat, Mr. Markwalder says in
3 his description or autopsy finding the following:
4 "Traces of explosive fire were found on the body. The skull was
5 broken by a blow from a blunt object. Due to the advanced putrefaction,
6 it was not possible to establish whether the wound was inflicted during
7 the victim's life or after his death" --
8 JUDGE BONOMY: Just a moment, Professor. Which paragraph in your
9 report are you referring to?
10 THE WITNESS: [Interpretation] That's paragraph 10.
11 JUDGE BONOMY: Thank you. Sorry, paragraph 10 of your report?
12 THE WITNESS: [Interpretation] Yes, paragraph 10 of my report, and
13 the Serbian, it's page 16 and 17.
14 JUDGE BONOMY: Well, paragraph number should be good enough.
15 This is the one which begins: "The fractures of the skull sustained when
16 the body fell 6 metres ..."?
17 THE WITNESS: [Interpretation] Yes.
18 JUDGE BONOMY: And that refers to body 7, does it?
19 MR. IVETIC: -- 23, Your Honour.
20 THE WITNESS: [Interpretation] Yes.
21 JUDGE BONOMY: I'm sorry, Mr. Ivetic?
22 MR. IVETIC: Footnote 23, Your Honour. It identifies the bodies
23 that are being analysed there.
24 JUDGE BONOMY: Yes.
25 Please continue.
1 THE WITNESS: [Interpretation] In the conclusion, it says that the
2 skull was fractured by a blow from a blunt object, which means that
3 somebody else inflicted the injury by using a blunt, hard object such as
4 a rifle-butt or a plank, that somebody inflicted a blow on the victim on
5 the head. And unfortunately, and this is part of my critique, we don't
6 have a description of the appearance of the skull fracture. And such a
7 skull fracture could have been caused, for example, if the victim had
8 fallen 6 metres into the well when the body was thrown into the well. It
9 could also have been inflicted by shrapnel, by an explosion. It could
10 have been caused if the body was thrown to one side and hit something
11 hard with the head. So there are several possibilities, several ways, in
12 which this injury could have been caused. But here, only one possibility
13 is given, indicating that somebody inflicted this serious injury on
14 purpose, and this is not acceptable.
15 JUDGE CHOWHAN: I'm sorry, Professor. I just thought I should
16 have it clarified. Now, obviously he was dead. Now, he died because of
17 some cause, and that causes the broken skull. He was not coming alive
18 for purposes of his medical examination --
19 JUDGE BONOMY: Well, just -- no. I think -- I'm afraid I
20 disagree with my colleague because it's clear they acknowledge that the
21 skull could have been fractured after death. So --
22 JUDGE CHOWHAN: How did he die then?
23 JUDGE BONOMY: So what does it matter? He's not suggesting for
24 one minute that there's positive evidence that this man was killed by a
25 fracture of the skull. I think we should just proceed with the
1 examination. We'll continue any further questions after the prosecution
2 cross-examination if there's any other areas to be explored. It does at
3 the moment, though, seem that very significant criticisms are being based
4 on an interpretation of P361. That's not necessarily the interpretation
5 that the Bench would place on it.
6 MR. IVETIC: I'm glad to hear that the relevance of P361 that the
7 Bench might have is not the same as the parties represent to it that as
8 positive evidence might have of it, but we're trying to present a full
9 overview of the various methodological and factual matters pertaining to
10 the same that go towards what findings were either overlooked or not --
11 JUDGE BONOMY: Yes, but it's a great pity if such a dramatic
12 criticism as the one made in relation to body number 4 is not in the
13 report. The whole point about an expert report is to give full details
14 to the Bench and the other parties of the really significant things that
15 an expert witness is going to say, and that's as significant as anything
16 else in that report. In fact, it might be more significant than most of
17 the stuff that's in it. And it's difficult -- still difficult to
18 understand why that wasn't dealt with in the report itself.
19 MR. IVETIC:
20 Q. Dr. Stankovic, we've been dealing with for the most part
21 paragraph 1 of your report where you talk about the various
22 methodological differences -- deficiencies, I should say, of the Austrian
23 team's report with respect to Kotlina. Let me ask you a follow-up
24 question. Could you please tell us whether in your opinion the
25 reasonable and commonly accepted standards of the forensic medical
1 community were complied with in the processing of the corpses from
2 Kotlina by the Austrian and the Swiss team as recorded in P361?
3 A. I said that standards were not observed. My objections consist
4 of the following: It is impermissible to take that attitude when
5 examining mortal remains during autopsy. I saw this several times, that
6 the post mortem record consists of two and a half lines or a maximum of
7 four lines describing the injuries and explaining the cause of death of
8 certain individuals. That is why I placed this objection. If necessary,
9 I am prepared to interrupt this testimony of mine and in a short period
10 of time, say a month, I can provide you with all the inconsistencies
11 contained not only by these findings but the other ones that I dealt
12 with. I'm afraid that this way we are going to spend a long period of
13 time dealing with this, and these are very clear things. I will be
14 examined on things that are very clear. I don't think that in any
15 country there can be such sparse descriptions provided by the autopsy
16 experts involved.
17 Q. Thank you, sir. Now if we can move on, I'd like to move on to
18 paragraph 2 of your report, the next in the sequence --
19 A. I do apologise. I have an objection to the findings and
20 conclusions in relation to Izbica as well as Mr. Baccard's conclusions.
21 Should I present that now or at some other moment? I think that these
22 objections are also fully justified and very important.
23 Q. I think I would save those for later for the sake of trying to
24 get through as much as this material as possible, since we do have, as
25 you know, Doctor, lots of other very important points that I know you
1 want to make about this other material. So right now, I would like to
2 stay with Klina for the moment, and with regards to item 2 of your
3 analysis or report, what is the -- do you have anything to add, and what
4 is the precise nature of the parallel point that you're drawing based
5 upon the material that you reviewed?
6 A. In this specific case, as I looked at the material that had been
7 provided to me, I noticed that the Urosevac MUP, that is to say the
8 Ministry of the Interior in Urosevac, on the 24th of March, 2008, carried
9 out an examination of the terrain where the corpses had been found around
10 the well in the village of Kotlina. And on the basis of that, on the
11 basis of these photographs that were made on that occasion, I tried to
12 see whether any of the described corpses, or rather, the described
13 clothes on the bodies that were examined and that were taken out of the
14 wells correspond to the description of the clothes that can be seen on
15 the photographs of the members of the Urosevac MUP taken when examining
16 this locality. I established that there are reasonable grounds to
17 believe that body number 7 that can be seen in the trench close to one of
18 the wells is actually the body whose clothing was described in L7, so
19 that is Rexha Neshat's body. I allowed for the possibility that during
20 the time of inspection, this well was whole, the bodies hadn't been
21 thrown into it, and that can be seen on the basis of the documentation
22 collected at the time. And that is the conclusion I reached on the basis
23 of the autopsy and the description of the clothing and what can be
24 derived from the documentation of the MUP of Urosevac.
25 Q. For purposes of the transcript, at page 24, line 21, the witness
1 was talking about the 24th of March, 1999; 2008 is in the transcript.
2 THE INTERPRETER: Interpreter's note: The witness himself said
4 MR. IVETIC:
5 Q. Okay. Now, if we could move on to paragraph 3 of your report, I
6 believe this is another observation about the items reported in P361, the
7 Austrian report on Kotlina. Could you describe for us the significance
8 of the fail -- or the lack of a finding of traces of projectile or
9 fragments of mines or explosives on the vegetation surrounding the upper
10 and lower wells?
11 A. When we were the -- when we were searching the terrain looking
12 for mass graves, we did that together with members of the Ministry of the
13 Interior or people who are involved in investigations and inquiries. In
14 all these cases when we could not locate the graves, on the basis of the
15 damage sustained by trees, vegetation, the bark on the trees, we
16 registered the places that were execution sites or where these persons
17 had lost their lives. In this specific case, bearing in mind that it is
18 claimed that these persons were found in a well and executed in the
19 vicinity of a well, the photo documentation of the MUP of Urosevac and
20 the examination that was carried out by the Austrian investigators do not
21 show any damage whatsoever on the vegetation there, or rather, it wasn't
22 described; and if it wasn't described, it doesn't exist. There is no
23 damage described sustained from projectiles or shells and explosives and
24 explosive devices on the vegetation there, the trees, in the surroundings
25 of the well, which indicates either that there was no execution on that
1 site or these investigators did not register that. However, this is not
2 contained in the report of the Austrian investigators.
3 JUDGE BONOMY: Can I just take you back briefly to what you said
4 about the Ministry of the Interior report. That's the Urosevac MUP
5 report. They examined the terrain, and you've seen photographs of
6 corpses in their report; is that correct?
7 THE WITNESS: [Interpretation] Yes.
8 JUDGE BONOMY: What was done to carry out post mortem
9 examinations at that stage?
10 THE WITNESS: [Interpretation] I cannot tell you that. I just
11 looked at the material that was provided to me by the Prosecution and
12 that was submitted to me for my examination. I cannot say what happened
13 after that. I'm just speaking on the basis of the material I have and
14 the material that I had.
15 JUDGE BONOMY: Thank you.
16 Mr. Ivetic.
17 MR. IVETIC: Thank you.
18 Q. Now, staying with this finding at item 3, Professor, based upon
19 your knowledge, experience, and expertise in the forensic community, is
20 the finding or the lack of a finding of traces of projectile or fragments
21 of mines or explosives in the vegetation indicative of a primary or a
22 secondary grave-site?
23 A. A lack of damage on trees and vegetation indicates that persons
24 probably did not die at that location but elsewhere, that there was no
25 execution there at that particular place, and that some of the bodies
1 that were found there were most probably victims of armed struggle or
2 something like that, that they were brought from somewhere else,
3 especially those that had serious destruction sustained, like missing
4 lower limbs, which indicates that that is an effect of shells and
6 Q. Thank you, sir. Now --
7 JUDGE BONOMY: Well, are these two separate possibilities that
8 are being presented, that they were killed elsewhere and brought to that
9 scene or that they died in an armed conflict? Are these two separate
10 possibilities that you're posing?
11 THE WITNESS: [Interpretation] Two separate possibilities. The
12 photographs of the Urosevac MUP show I think three bodies that are in the
13 area surrounding the grave-site, and most probably these bodies died
14 there within armed struggle or in some other way. I cannot say that.
15 However, what is evident is the lack of a large number of bodies on that
16 location, especially bodies on which wounds derived from shells and
17 explosives were registered. So the 20 or so bodies that were described
18 in the autopsy report, that's what I mean. Some were brought from
19 elsewhere, some of the bodies, and buried there.
20 JUDGE BONOMY: Mr. Ivetic.
21 MR. IVETIC: Thank you, Your Honours.
22 Q. Now, Professor, in item 4 you give a very concrete analysis of
23 the manner in which the Austrian report records the findings of
24 soot-covered clothing fragments. I would like to ask you as a follow-up,
25 what about biological and other traces? Did the site of the well exhibit
1 any of these types of traces according to the reports reviewed by you,
2 and what does that tell you according to your expertise and the commonly
3 accepted principles of forensic medicine?
4 A. In the area around these wells, there were no biological traces
5 registered like blood, body parts, other biological traces that I could
6 speak of. They were not found, they were not described, and they
7 constitute a major problem in terms of where it was that death had
8 occurred. The bodies found in the well, where did these people actually
9 die? On the basis of this, it seems that death happened elsewhere, not
10 in these wells. The traces of clothing that were registered, but it was
11 not noted how far away they were from the well. These carbonised or
12 charred remains were found in the well itself. Does that mean on the
13 basis of what is described here that the bodies were brought in from some
14 other territory and thrown into the well? This is supported by the fact
15 that there are traces of charred or carbonised parts of clothing that
16 were found in the well. There are statements to the effect that they
17 were thrown in the well and that explosive devices were thrown in, too,
18 that caused these injuries that were described on the bodies from the
19 well. However, bearing in mind the location where these parts of
20 clothing were found, they could not have gotten out from deep down, 6
21 metres down, where the bodies were found as described in the
22 investigator's report.
23 Q. And a follow-up question for that, Professor. Had the victims,
24 had they met their end in the well, their -- had the fatalities occurred
25 in the well according to explosives where there are missing body parts,
1 would there still be some biological traces of those body parts within
2 the well that would have been discovered by a properly -- by a forensic
3 review of the site? That is to say, is it possible for all biological
4 evidence of a head to disappear in an enclosed area such as a well
5 subject to an explosion without leaving any biological traces?
6 A. Bearing in mind the depth at which the first mortal remains were
7 found of the bodies that were found in the well, it is impossible to
8 expect, in view of the breadth of the well, that they could have been
9 ejected out of the well to other areas outside of the well.
10 Q. Sir, looking at item 5 of your report, could you please explain
11 for us what you specifically mean when you say that an inexpert method of
12 exhuming the bodies indisputedly led to destruction of many important
13 traces of evidence in the Kotlina investigation. What precise procedural
14 deficiencies were there in this regard, and what are the consequences
15 upon -- of the same in your opinion upon the reliability of the findings
16 contained in this investigative report?
17 A. When work started in the territory of the former Yugoslavia, we
18 started doing those autopsies, but when first the commission was
19 established followed by this Tribunal, then the methodology was
20 prescribed, how to process mass graves. The methodology that was
21 accepted by Professor Wright, Australian Professor Wright, set out the
22 acceptable manner in which mass graves need to be processed and the way
23 in which this archaeological work has to be done. At that time, the
24 teams from The Hague Tribunal were already doing field work, processing a
25 large number of mass graves, and it is not clear to me how this
1 methodology for processing mass graves could be departed from. And the
2 most unorthodox error was to use the manual workers who actually do --
3 who actually dig out the graves can do that not in the presence of an
4 expert. How can these people know what bullets look like, what
5 projectiles are, whether we're dealing with body parts of humans or
6 animals? And now the investigators themselves at pages 7, 17, and 70
7 describe that when they reached the area, the wells had already been
8 exhumed up to the depth of 6 metres and that the workers continued doing
9 the exhumations in the absence of expert personnel even when they were
10 already there. So I can make this objection to the way in which this
11 mass grave was exhumed, but as a lay person, not as an expert, I find it
12 hard to accept a fact. In the soil that was dug out of the one of the
13 wells, a bullet was found, and it was analysed in the forensic or
14 ballistic laboratory in Austria, and it turned out that this bullet was
15 made in China, made in 1964. That's at page 4 of the report --
16 THE INTERPRETER: Interpreter's correction: Page 104 of the
18 THE WITNESS: [Interpretation] It is very important when we're
19 describing the manner in which these people were killed, were these
20 people killed in the fighting because it is very well known that the FRY
21 army and the Serbian Ministry of the Interior did not have this kind of
22 ammunition. This ammunition was used by Albanians. Albania had this
23 ammunition, and its use was recorded in Kosovo. So perhaps it was
24 possible that in an exchange of fire or in cross-fire of sort, a person
25 could have been hit by mistake and then buried in the well. So this is
1 the basic remark one has to make, to say that the procedure that is
2 stipulated by the Tribunal itself for the way in which mass graves are to
3 be processed was not adhered to.
4 JUDGE BONOMY: Please help us to be specific. When was that
5 procedure stipulated?
6 THE WITNESS: [Interpretation] Well, this procedure was in place
7 when in 2001 I appeared before this Tribunal. At that time, Mr. Wright
8 was already working on mass graves in Srebrenica, and this is when this
9 methodology was stipulated.
10 JUDGE BONOMY: [Previous translation continues]... investigation
11 was in 1999, was it not?
12 THE WITNESS: [Interpretation] Yes, but investigations --
13 JUDGE BONOMY: Was the Kotlina investigation in 1999?
14 THE WITNESS: [Interpretation] Yes, the Kotlina investigation was
15 carried out in 1999, but the mass graves around Srebrenica were done in
16 other sites before 1999.
17 JUDGE BONOMY: And was there a methodology established for them?
18 THE WITNESS: [Interpretation] Well, all of us who worked on those
19 mass graves did it in accordance to our training. We all devised our own
20 methodology, but at the point when the Tribunal in The Hague accepted
21 this methodology such as processing mass graves and archaeological
22 exhumations that were first proposed by Australian Professor Wright, we
23 accepted that, and we applied the same methodology to any further work on
24 mass graves. So it is quite incomprehensible --
25 JUDGE BONOMY: So when did Professor Wright devise his
2 THE WITNESS: [Interpretation] I think it was in 1996, 1997,
3 something like that, but that was at any rate prior to this year.
4 JUDGE BONOMY: So that -- was that the recognised method that
5 ought to have been used at that time by those exhuming bodies in
6 connection with Tribunal investigations?
7 THE WITNESS: [Interpretation] Well, at any rate it was an
8 experienced expert who based on his authority, his knowledge, his
9 previous work determined the way that all of us worked, and at the same
10 time an institution such as the Tribunal in The Hague has to have if not
11 identical then at least similar methodology in place for crime scene
13 I have to say that although I have --
14 JUDGE BONOMY: No, just try to answer my questions, please. And
15 where in your report do you deal with this failure to apply accepted,
16 recognised methodology devised by Professor Wright?
17 THE WITNESS: [Interpretation] Well, I'm not saying that the
18 methodology devised by Professor Wright was not used because there are
19 other methodologies, but in paragraph 5 of my opinion I state that
20 unprofessional procedure was used in the exhumation of the bodies in
21 Kotlina. I find it hard to believe that somebody may not notice or if
22 somebody is working on the exhumation of bodies --
23 JUDGE BONOMY: Please try to answer the questions I'm asking you.
24 You've been giving us very, very long answers on matters when you've been
25 asked fairly specific questions at times, and it doesn't help. You see,
1 we've got this very long answer about methodology, and it's been
2 necessary for me to ask a number of questions to try to find out where
3 this standard is set down if there is such a standard and whether we
4 should be recognising it and applying it to our own investigations here.
5 Now, Mr. Ivetic, are you intending to go through this report
6 paragraph by paragraph in the way that you've started?
7 MR. IVETIC: Not all but most of them, yes.
8 JUDGE BONOMY: Well, you've only got a half an hour left, I
9 think, on your estimated time --
10 MR. IVETIC: With all due respect --
11 JUDGE BONOMY: -- so you will have to devise a way of focusing
12 the issue.
13 The questions the Bench have asked in this case are as a result
14 of the report not dealing with matters which are fundamental. So
15 please -- you're obviously going to take longer than that. I -- it's
16 easy to see that, but you have to focus the issues. The -- we know that
17 there are hundreds of pages on this topic and that we could spend our
18 lifetimes analysing forensic science investigations in the case alone,
19 but we have to bring reality to bear.
20 Professor, we have to have a break at this stage. It's routine.
21 Could you please leave the courtroom with the usher while we have the
22 break, and we'll resume again at five minutes to 11.00.
23 [The witness stands down]
24 --- Recess taken at 10.36 a.m.
25 --- On resuming at 10.59 a.m.
1 MR. CEPIC: [Interpretation] Your Honour, by your leave ...
2 [Trial Chamber and legal officer confer]
3 [The witness takes the stand]
4 JUDGE BONOMY: Mr. Ivetic.
5 MR. IVETIC: Yes, Your Honours, my colleagues are pointing out a
6 transcript situation. Page 30 of today's transcript, line 16, the doctor
7 referenced page 7, 17, and 70, and the 7 and 17 were co-joined to make it
8 717. So the correct citation should be pages 7, page 17, and page 70.
9 JUDGE BONOMY: Thank you.
10 MR. IVETIC:
11 Q. Hello again, Professor. If we can continue. Moving along to
12 item 6 of your analysis of the Kotlina site. You give findings about the
13 number of bullet cartridges that were found as opposed to the number of
14 bullet wound entries recorded by the forensic professionals at the site.
15 In your opinion, based upon this material evidence, is this indicative of
16 an execution site or of some kind of secondary grave-site?
17 A. In the area around the well, 12 spent shell cases were found, and
18 in the bodies of the persons who were killed and exhumed from the well,
19 at least 26 gun-shot wounds were found, which indicates that the gun-shot
20 wounds were inflicted somewhere else. And after that, the bodies were
21 brought to the well and thrown in.
22 Q. And, Professor, item 7 is a follow-up to that where you talk
23 about the positioning of body parts and carbonised clothing. Could you
24 tell us what these -- what these factual circumstances lead you to
25 believe -- how they lead you to believe that the explosive entries
1 occurred outside of the premises of the well?
2 A. If the parts of the body that have been destroyed are in the
3 deepest layer and then in the central layer most preserved bodies are
4 found and then bodies that -- body parts that were destroyed are again
5 found on the surface level, that indicates that the explosive injuries
6 were -- came into existence somewhere else. Otherwise, the worst
7 injuries would be in the surface layer followed by those in the central
8 layer and only then in the deepest layer. Those would be the least
9 serious injuries, but in this case, this was not verified, which shows,
10 which indicates that the bodies were brought from somewhere else and
11 thrown into the well.
12 Q. Does the positioning of -- does the positioning of the small body
13 parts lead you to any conclusion as to whether this is a primary or a
14 secondary grave-site?
15 A. The position of the bodies that were found in the well and bodies
16 6, 12, and 13 in particular indicate that during the exhumation the
17 corpses were leaning with the front part of the body against the ground.
18 Explosive injuries were described in the front of the body. If the
19 bodies had been in the well and then an explosive device thrown in, it
20 would have been logical for the injuries to be in the back, not the
21 front, of the bodies, bearing in mind the position in which the bodies
22 were found.
23 Q. You have reviewed the statement of Hazbi Loku as to how he said
24 these victims met their end. Does the forensic evidence as recorded in
25 the reports of the team, the Austrian team, support Mr. Loku's account of
1 how these persons met their end in the well?
2 A. As for Loku's statement, what I can say is that much of it is
3 untrue or does not correspond to what was registered by the forensics
4 experts of the Austrian team or to what can be seen in the photographic
5 documentation of the Urosevac MUP, nor does it correspond to the manner
6 in which the persons found in the well were killed.
7 Q. And item 9 of your report appears to be referring again to your
8 finding that the injuries could not have been inflicted by a bomb in the
9 well. The question I have for you, sir, is relating again to the nature
10 of the grave-site at item 11 of your report. You explain how you
11 interpret the evidence of a hand being found at a depth of 8.2 metres in
12 the well and leg and stump found at 9.3 metres of the well. In your
13 opinion, does the investigative team undertake appropriate forensic
14 analysis to consider or exclude the significance of these findings as to
15 regards -- as regards to whether this is a site of execution, a primary
16 or secondary grave?
17 A. In this particular case, if a body part such as a fist was found
18 at 8.2 metres in depth and the other parts of the bodies such as the
19 right leg and another part were found at 9.3 metres and between the body
20 parts that were found there is 1.1-metre layer of soil, this shows that
21 the mortal remains were buried in different time-periods as they were
22 found in the locations where they were located previously.
23 Q. Now, with respect to the paragraph 13 where the medical examiners
24 were unable to ascertain whether the injuries were inflicted by a
25 fire-arm or as a result of the explosion, although they had a metal
1 detector at their disposal, what is the -- strike that.
2 Based upon your knowledge and experience, would it be able to use
3 common forensic techniques to determine the existence of either shrapnel
4 or projectiles, and to what do you attribute the reported failure to find
5 those on such a closed -- enclosed location such as a well?
6 A. This remark is contained in the superficial processing of the
7 mortal remains. If the person who conducted the autopsy of this body had
8 made an incision with a scalpel in the area where wounds were registered
9 in the front part of the stomach, if the wound had been caused by
10 shrapnel, they would have found pieces of shrapnel there. If the wound
11 had been caused by projectiles, they would have found the projectiles, or
12 they could have established that there was an entry/exit wound. They
13 could also have made X-rays because it's not the same whether an injury
14 was caused by a fire-arm projectile or an explosive device or a shell.
15 JUDGE BONOMY: Mr. Ivetic, your questions so far since the break
16 have all simply resulted in repetition more or less of what's in the
17 report. That's not an appropriate way to deal with this. It's striking
18 that this is a witness who's being very critical of the brevity of the
19 reports of others, and he himself has - for reasons which may not be
20 entirely his fault - presented a report, which is fairly brief, it would
21 appear, when it comes to looking more closely. But that's something
22 you're going to have to live with and try to get through this now within
23 a realistic time-scale. But the Chamber's not willing to listen to
24 constant repetition of what's already in the report.
25 MR. IVETIC: And yet when we go to something outside the report,
1 Your Honours, you want to know where it is in the report. I'm at a loss
2 to understand --
3 JUDGE BONOMY: Yeah, indeed, because significant things are not
4 dealt with -- this should all have been dealt with in the report in a way
5 that would enable you to stand up, ask a few questions, sit down, allow
6 cross-examination, and then re-examine on the things that have been
7 focused as real issues in the cross-examination. But to go through a
8 report like this chapter by -- paragraph by paragraph and get most of
9 the -- and find that most of the evidence is repetition of what's in here
10 is not acceptable.
11 MR. IVETIC: I apologise, Your Honours. I was guided by Your
12 Honour's own comments with respect to what I'm --
13 JUDGE BONOMY: No, you're in difficulty because of the inadequacy
14 of the report, but please do your best to try and make the most of it.
15 MR. IVETIC:
16 Q. If we can then go to something that's not in the report,
17 Professor. P361, page 17 in the B/C/S, pages 16 through 17 in the
18 English. The --
19 JUDGE BONOMY: Chapter numbers are good enough or paragraph
21 MR. IVETIC: Unfortunately, the report --
22 JUDGE BONOMY: Oh, they're not. Right. Sorry.
23 MR. IVETIC: -- paragraphs, so I have to do it this way. It's
24 the crime scene XX -- 21-1, upper well, 11th September 1999.
25 Q. We see here, sir, that when the team arrived at the site, the
1 builders reported that the workers exhumed further body parts, three
2 hands, decayed flesh and bones. After the site team stopped work on 10
3 September 1999, these hands were no longer at the site, and their exact
4 location could not be traced at the site. Do you have any opinion as to
5 what this indicates of the method or matter in which the exhumations were
6 performed at the site, Professor Dr. Stankovic?
7 A. 17, right?
8 Q. [Interpretation] Yes, in Serbian it's page 17, and it's
9 Prosecution Exhibit 361.
10 A. I said that my remarks concerned primarily the methods used here,
11 the methodology used during the exhumation, and the autopsies, the
12 examination of the bodies. The main summary of my report is to the
13 effect that the victims were not executed near the well and that the
14 explosive injuries were not created inside the well. To prove this, each
15 of these paragraphs contains a fact in support of this view, and that is
16 the purpot of my whole report.
17 JUDGE BONOMY: The question that you've been asked is whether the
18 fact that body parts initially discovered were later no longer there and
19 could not be traced indicates something about the method of exhumation.
20 Now, could you deal with that question?
21 THE WITNESS: [Interpretation] Excuse me, could you please repeat
22 your question.
23 JUDGE BONOMY: Well, Mr. Ivetic will repeat his question, but you
24 were answering something that wasn't asked.
25 THE WITNESS: [Interpretation] Can you please just repeat your
2 MR. IVETIC: As soon as I find my place in the transcript, I will
3 repeat it. I want to make sure -- okay.
4 Q. Looking at page 17 in the Serbian of the Austrian report, it is
5 indicated that when the team arrived at the site, the villagers reported
6 that the workers exhumed further body parts, three hands, decayed flesh,
7 and bones. After the site team stopped work on 10 September 1999, these
8 hands were no longer at the site, and their exact location could not be
9 traced at the site.
10 What -- do you have any opinion as to what this specific fact
11 indicates on whether -- on the question of whether the exhumations were
12 performed in a manner that was in compliance with applicable forensic
13 examination standards?
14 A. I've already said that this does not comply with the standards of
15 forensic medicine and the processing of a mass grave for exhumation of
16 mortal remains to be done by labourers without the presence of experts
17 such as investigators, forensic experts, doctors, and others who should
18 be present.
19 Q. Okay. If we can now turn to your examination of the reports
20 relating to Izbica. I believe sections 1, 2, and 3 of your analysis in
21 that regard are quite detailed and don't need to go -- don't need to be
22 further developed here. Now, with regards to item 4 -- excuse me, with
23 regard to -- first of all, with regard to the Izbica site, you earlier
24 explained to us relative to Kotlina the significance of the number of
25 recovered bullet casings and the number of entry wounds on the bodies.
1 Do you have the same conclusion and analysis with regards to Izbica based
2 upon the number of bullet wounds in the material and the number of
3 recovered bullet -- recovered projectiles or bullet casings? Would the
4 same forensic analysis apply?
5 A. In any case, the same conclusion can be drawn. In the places
6 marked as places where executions were carried out for persons from the
7 village of Izbica, of those persons, 84 spent shell casings were found -
8 one was from a sniper rifle - and the number of persons killed or buried
9 was about 137, as mentioned in the report. Therefore, evidently there is
10 a discrepancy between the number of spent shell casings and the number of
11 persons who were killed and buried in the mass grave in Izbica.
12 Q. Okay. If I could just finish up with the report before going on
13 to other matters. In paragraphs 7 and 8 of your report relating to
14 Izbica and your analysis of the forensic materials compared to the
15 testimony of Mr. Thaqi, do you have any additional analyses to add to the
16 discussion relating to Mr. Milazim Thaqi and his account of how events
17 occurred based upon the forensic evidence available?
18 A. I deliberately mentioned these three statements that I dealt
19 with. In addition to this, I have to say that it's not possible for the
20 statements of Milazim Thaqi to be covered by the data done by Dr.
21 Tomasevic and Dr. Strbac, the autopsy they did. This statement does not
22 correspond with the statement. So when we are dealing with spent shell
23 casings, if there had been a shower of bullets, if the machine-gun had
24 fired constantly, if there had been too many projectiles, we can see
25 whether this is true or not by the number of spent shell casings and the
1 number of injuries on the bodies. And Thaqi's statement as to how he
2 escaped and how he had damage on the -- on his pullover, well, if this
3 had happened then his tissue would also have been injured. There would
4 have been an entry wound, a gun-shot wound, and you cannot find any
5 traces of blood on the pullover. So there's nothing to support his claim
6 that the damage to the pullover was caused in the manner he described.
7 Q. Thank you. Now, sir, you spent a great deal of time analysing
8 the video of Liri Loshi, identified as exhibit P232, purporting to show
9 the discovery of bodies at three alleged killing sites, Izbica. You have
10 selected and gone through with me the following video images from that
11 exhibit, which I would now as for you to review, and then if you can
12 explain for us what is the forensic significance of what we are seeing,
13 the forensic medical significance of what we are seeing, and what
14 opinions or conclusions you draw from the same, and if you need to stop
15 or rewind the video, if you could please just make the instructions by
16 speaking aloud, and I believe my colleague will be able to accommodate
18 MR. IVETIC: For purposes of the record, this is Exhibit P232.
19 In line with what we have done with previous witnesses, this is
20 identifying the exact minute and second locations of that video, and this
21 particular excerpt, which perhaps we might give a separate exhibit
22 number, I don't know, it's up to Your Honours, are just the images -- for
23 sake of time, not going through the whole video, but just the images that
24 the doctor selected during proofing that he thought illustrated important
25 points with respect to whether or not these are -- whether or not these
1 are corpses in their original positions at original killing sites or
2 something other. So at the conclusion, if you feel we need to introduce
3 this as a separate exhibit, it can be done. It's a stand-alone video
5 JUDGE BONOMY: Thank you.
6 MR. IVETIC:
7 Q. Okay. If we can begin, Doctor, with the first clip and if you
8 can begin your commentary and discussion as to what is medically shown to
9 us and what that can lead you to conclude based upon a reasonable degree
10 of forensic medical certainty.
11 [Videotape played]
12 THE WITNESS: [Interpretation] You can see a group of corpses here
13 in a wood surrounded by vegetation, and the appearance of the bodies in
14 the lower part is characteristic. The last body down in the valley, you
15 can see that it's lying on its back and that post mortem rigidity has set
16 in, and this shows that the body was moved because of the poor quality.
17 You cannot see any traces of blood or of spent shell casings, but because
18 the legs are rigid and they are raised up into the air, as is the arm,
19 this shows that the body was moved. It could not have been in this
20 position after the inflicting of the wounds and after -- before rigidity
21 set in.
22 MR. IVETIC:
23 Q. Thank you. If we can --
24 JUDGE BONOMY: And that was the section at 1120.
25 MR. IVETIC: Correct. The second clip goes from 1333 to 1342, if
1 we can play that.
2 Q. And, Doctor, again, if you advise us what we are seeing from a
3 medical standpoint and what that leads you to conclude based upon your --
4 JUDGE CHOWHAN: I have just a technical question. Now, you talk
5 of the body rigidity or rigor mortis, as we call it. Does it stay
6 permanently? I don't think so. Will it stay permanently, the stiffness?
7 THE WITNESS: [Interpretation] No. Rigor mortis sets in first in
8 the heart 30 seconds after death starts, and then two hours after death
9 it starts, and it lasts up to four hours; the body is stiff. Now, the
10 rigidity depends on whether the body is moved and what the weather
11 conditions are like, but again, it depends on the temperature and -- the
12 outside temperature. But after 24 hours or 38 hours, there is no more
13 stiffness. The body is flaccid -- well, it is a dead body that is no
14 longer rigid.
15 JUDGE CHOWHAN: No, but then the posture we saw of the legs, how
16 will that stay because ...
17 THE WITNESS: [Interpretation] Well, it is possible because the
18 front part of the body was turned on the surface. It was lying on the
19 surface, and after that the body was moved. The body was moved from a
20 particular position or from a particular locality or perhaps from the
21 same place where it was then. But that is why there is this kind of
22 rigidity. What I'm saying is that the body had been moved after death
23 had set in.
24 JUDGE BONOMY: Do I gather that that might simply have been to
25 turn the body over?
1 THE WITNESS: [Interpretation] Yes.
2 MR. IVETIC: If we could play the next clip.
3 [Videotape played]
4 THE WITNESS: [Interpretation] This is a male corpse as well. On
5 the front right-hand side of the face, we can see that there are dry
6 leaves sticking to it, which means that the body had been moved from its
7 original position and that beforehand the front right-hand side of the
8 body had been lying on a surface. It can also be seen on the basis of
9 rigor mortis and the way the -- in which the right hand looks as well as
10 the lower right arm.
11 MR. IVETIC: Thank you. If we can go to the third clip, 1836 to
13 [Videotape played]
14 THE WITNESS: [Interpretation] Again, it's a male body, and in the
15 right-hand half of the face we can see liver mortis. The body is again
16 in a position that shows that it had been moved. Before this picture was
17 taken, the front part of the body was lying on a surface. So this is
18 liver mortis, what -- the stains on the face that can be seen. I can
19 give an additional explanation. It was described as blows to the front
20 right side of the face.
21 MR. IVETIC: [Previous translation continues]... two or three
22 more clips.
23 [Videotape played]
24 THE WITNESS: [Interpretation] Again, a body on which we see a
25 glove. A stiff male body, and we see some damage on the clothing,
1 probably due to a wound that was bleeding. And above the left hand we
2 can see a glove, probably belonging to the person who had manipulated the
3 body. Probably beforehand, the body was reclining on a surface on the
4 front side.
5 MR. IVETIC:
6 Q. [Previous translation continues]... Doctor, thus far have we
7 seen any evidence of biological remains, blood, et cetera, bullet
8 casings, et cetera, around these corpses to indicate to you that this is
9 the actual site where they met their end?
10 A. On the photographs we've seen so far, we did not see any
11 biological remains as far as I could notice in this short span of time,
12 and we didn't see any casings or any other weapons that may have
13 inflicted the wounds or implements that may have inflicted the wounds.
14 JUDGE BONOMY: What was the timing of that one, Mr. Ivetic?
15 MR. IVETIC: I missed it. If we could move back, we could find
16 it. Just a little bit more. 1953 -- there it is, Your Honour, 1953 to
17 20 minutes. I believe we have a fifth and a sixth clip, if we can
18 perhaps play those side by side. I believe they're a continuation of the
19 same location -- the location -- the fifth and sixth clip, I believe, are
20 in the same grouping.
21 JUDGE BONOMY: This is -- well, 812 and 813.
22 MR. IVETIC: Right, and then 813 to 824.
23 [Videotape played]
24 MR. IVETIC:
25 Q. What do we see here, doctor?
1 MR. IVETIC: If we could play it through to the end, I think that
2 would be the end of this clip, and that's --
3 A. What we see here -- well, underneath these bodies that can be
4 seen on the video footage, what is noticeable are the blankets on which
5 the bodies had been carried. So this can be evidence that the bodies
6 were brought from a different area and placed here where the pictures
7 were taken. You can see here by the body itself, you can see a blanket.
8 Again, there are no biological remains there; there is no blood on the
9 ground; there are no casings or anything else that would indicate what it
10 was that inflicted the wounds.
11 MR. IVETIC:
12 Q. And does the state of the bodies in rigor mortis coincide with
13 their physical location as depicted in the video -- that is to say, is
14 their actual depth position accurately shown by the video based upon the
15 evidence of rigor mortis and positioning of this body on the left? If we
16 can go back, the legs --
17 A. It is a fact that in this particular case rigor mortis shows that
18 the body was lying on a surface, the front part of the body was, and it
19 means that the body had been moved from a different location or from this
20 area where the picture had been taken.
21 Q. [Previous translation continues]... thank you very much, Doctor,
22 and I know you looked at a lot -- the entire video multiple times to find
23 the easiest way to highlight your points, and I thank you for taking that
24 effort with me to shorten the time that we have to spend -- of the
25 Trial Chamber's time that we have to spend. Now --
1 JUDGE BONOMY: I think it would be helpful, Mr. Ivetic --
2 MR. IVETIC: Separate exhibit.
3 JUDGE BONOMY: -- to have that presented as a separate exhibit,
4 which you can upload later today, or it's already uploaded, so we just
5 need to give it a number.
6 MR. IVETIC: Yeah, I believe so. As soon as my colleague gets
7 back, maybe we can get the next 6D number for that -- or we'll advise the
8 Court of the 6D number for that and make a filing just to identify that
9 for the record so it gets properly tracked.
10 JUDGE BONOMY: All right. Thank you. A filing's unnecessary if
11 you just tell us at an appropriate stage in the proceedings here.
12 MR. IVETIC: If I get that information while I'm on my feet, I
13 can do that.
14 JUDGE BONOMY: Or even tomorrow.
15 MR. IVETIC: I believe it's 6D 1663, Your Honours, is the next
16 available 6D number, and that will be applied.
17 JUDGE BONOMY: Thank you. It will have that number.
18 MR. IVETIC:
19 Q. Professor Dr. Stankovic, earlier today you indicated today that
20 you still had some criticisms or objections about some of the other
21 forensic work done in the Prosecution exhibits, and I told you we wanted
22 to get through some of the material as much as possible. Now, I ask you
23 if you could, please, briefly highlight for us your concerns, the basis
24 for the concerns, and what they mean to you from a medical forensic
1 A. My basic premise and the fundamental conclusion I drew here is
2 primarily that the mass grave in the village of Kotlina was not processed
3 in the right way. A series of omissions were registered that I referred
4 to in my report. During the post mortem, the description goes against
5 all the generally accepted methods of carrying out post mortems and
6 describing wounds on dead bodies. It is a fact that the conclusion that
7 there had been an execution is based on non-material evidence; rather,
8 the statements of certain witnesses who say inter alia, as in the case of
9 corpse 24, that they saw when a bullet was fired into his head, and the
10 post mortem establishes that there is only one wound in the left-hand
11 side of the chest at that, so somebody is not telling the truth. Is it
12 the people who were working on this locality, on processing this
13 locality, or is it the witnesses? That is something that should be
14 assessed on the basis of all the information that exists in the case
15 file. It would be best if the colleagues who worked on this and those
16 who are challenging their findings would establish direct contact at a
17 venue like this one and resolve all dilemmas.
18 As for the locality of Izbica, again, there is material evidence
19 that was presented, and there were conclusions that can be seen in the
20 material of the OTP, and that is unacceptable. For example, the
21 conclusion of the French investigating team describing the mortal remains
22 of 28 persons. And in the conclusion -- or rather, they draw the
23 conclusion that in the grave there were 137 bodies, I think, out of which
24 135 men and two women. On the basis of what material evidence, or are
25 these conclusions based on what somebody said or what the person actually
2 Secondly, there is something that cannot be understood, namely,
3 that in these findings what is described in the report of the French
4 experts that on the basis of the changes on the decaying wounds, the
5 projectile calibre is established. I have never come across anything
6 like that, but if a body is decaying and there is a wound on that body
7 and the putrefaction leads to changes in the wound itself, so how can you
8 establish on the basis of that what the calibre of the projectile was?
9 And thirdly, if on the basis of video-clip somebody provides
10 exclusive descriptions or descriptions of causes of death and assesses,
11 like Dr. Baccard, on the basis of reports or on the basis of this footage
12 that is of a low quality - I'm not denying its authenticity, though - and
13 if on the basis of that they conclude that a person was mentally
14 retarded, and we know what kind of forms and shapes a face can assume
15 once rigor mortis sets in, we really wonder whether this can be taken as
16 evidence or not.
17 So this leads to the question of the responsibility of the person
18 who wrote this, the person who assesses this, and the person who accepts
19 this. In this specific case, I cannot accept that, and that is why I
20 presented my own position before this Trial Chamber, and I am prepared to
21 defend that position in all discussions with any experts anywhere. Thank
23 Q. Thank you, Professor and Doctor, not only for your time today,
24 but I know the extensive time that you've spent with myself and others
25 preparing for this testimony.
1 MR. IVETIC: Your Honours, at this time I would tender the report
2 6D 670 of Dr. Zoran Stankovic and would pass the witness for
4 JUDGE BONOMY: Thank you, Mr. Ivetic.
5 Professor, you'll now be cross-examined by the Prosecutor,
6 Mr. Hannis.
7 Mr. Hannis.
8 JUDGE CHOWHAN: I have just a question, Professor. Now, one of
9 the flaws -- one of the flaws you have pointed out in the report is that
10 the eye-witness account differed with the autopsy. Now, that's no fault
11 of the author of the autopsy because autopsy will be believed more than
12 the witness if there is a dichotomy, isn't it?
13 THE WITNESS: [Interpretation] Judge, sir, you're quite right
14 because if Witness Hazbi Loku says that the person on page 40 - that was
15 corpse 24, in Serbian - if he says that this person was hit by a bullet
16 in the area of the head, and if the person conducting the post mortem
17 does not establish that, then that proves that this witness should be
18 ruled out and that his evidence should not be taken into account. I am
19 not going to interfere. It is for you to decide whether you are going to
20 reject witness testimony or the report of the expert, but it's obvious
21 that somebody is not telling the truth. If somebody fires a bullet into
22 somebody's head, that is a terrible crime; and if there is no such thing,
23 I don't see why somebody would make a statement to that effect.
24 JUDGE CHOWHAN: Do you think, Professor, because of your expert
25 knowledge, these reports ought to have also mentioned about whether the
1 corpses were undergoing putrification and whether they had the
2 colouration like blue and all staining on the body, and therefore would
3 have -- should have determined the timings of the death possible, timings
4 of the death? Do you think that was necessary?
5 THE WITNESS: [Interpretation] Well, among other omissions is the
6 thing that you noted. At the same time, witness statements indicate that
7 these people had been mistreated, hit with planks, that they were -- had
8 been beaten by those people who later executed them; yet, in descriptions
9 you don't have a single injury that would correspond with that. There
10 are no haematomas described. Quite the opposite. Lividity is mistaken
11 for haematomas. Had the person carrying out the autopsy made a cut in
12 this tissue, that person would have been able to ascertain whether this
13 was simple liver mortis or a haematoma caused by injury with a blunt
14 instrument, and I am simply noting those omissions and the difficult
15 situation that you're in where you have to draw your conclusions on the
16 basis of this defective procedure, and I don't want to interfere with
17 your conclusion-making.
18 JUDGE CHOWHAN: Thank you.
19 JUDGE BONOMY: Mr. Hannis.
20 MR. HANNIS: Thank you, Your Honour.
21 Cross-examination by Mr. Hannis:
22 Q. Good morning, Doctor. I just want to follow-up on the last
23 answer you gave while it's still on my screen. You talked about witness
24 statements indicating that some of these people had been --
25 JUDGE BONOMY: Sorry, Mr. Hannis, could you just give us a
2 MR. HANNIS: Yes.
3 [Trial Chamber confers]
4 JUDGE BONOMY: Sorry, Mr. Hannis. Please continue.
5 MR. HANNIS: Thank you, Your Honour.
6 Q. Doctor, I was asking you about your last answer. You mentioned
7 that regarding the Kotlina well bodies that witness statements indicated
8 that some of these people had been mistreated, hit with planks, and
9 beaten before they were executed. And you say: "Yet in descriptions you
10 don't have a single injury that would correspond with that."
11 Now, I thought you told us on body number 7 you have a skull
12 fracture or a skull injury that appears to have been done with a blunt
13 instrument. Wouldn't that be consistent with beating someone with a
14 plank and hitting them on the head?
15 A. Mr. Prosecutor, in his statement, Hazbi Loku - that's at page 6
16 in the Serbian language - says when they reached the edge of the pit the
17 Serbs started pulling apart a wooden fence around it. That fence was
18 made of wooden planks that were nailed together. If I look at that, if
19 we look for that at the footage made by the Urosevac MUP, you cannot see
20 any planks, any slats or anything. There are just branches --
21 Q. No, no, no, stop there. That's not my question. My question is:
22 That skull injury identified by Dr. Markwalder, you said that there was
23 no injury that could be consistent with beating with planks. Isn't that
24 skull injury being described as having been caused by a blunt instrument,
25 something that could have been caused by beating with planks? Yes or no?
1 A. But there were no planks there. That's what I'm talking about --
2 Q. That's not my question --
3 JUDGE BONOMY: Professor, Professor, let me -- you obviously do
4 not understand our system, and I thought you would since you had been
5 here before to assist. But under the system we operate, the counsel,
6 whether for accused or for the Prosecution, are the ones who principally
7 determine what questions will be asked. Now, that's rather different
8 from the system with which you are no doubt more familiar in domestic
9 proceedings in your own country. The question you've been asked is a
10 very specific question, whether that injury is consistent with being hit
11 with a plank. You're not being asked whether there's evidence of planks
12 around or not, and we're capable of assessing that aspect of the evidence
13 when we come to look at the whole picture. But your job here today is to
14 answer the specific questions that you are given, and I will be grateful
15 to you if you will continue to do that, please.
16 Mr. Hannis.
17 MR. HANNIS: Thank you.
18 Q. Doctor, can you tell me if the injury described --
19 A. [No interpretation]
20 Q. I'm sorry. I didn't see your answer.
21 A. If I may ask you to explain to me when I'm supposed to talk about
22 general things and when I'm supposed to talk about specific things. In
23 general terms this injury could [Realtime transcript read in error
24 "would"] have been caused by somebody striking this person with a plank.
25 Q. Okay. So --
1 MR. IVETIC: If I could intervene for the translation. He said
2 [B/C/S spoken] could, not would.
3 THE INTERPRETER: Interpreter's note: We did say could.
4 MR. HANNIS:
5 Q. And that's all I'm asking, if it could. So, Doctor, there is at
6 least one example of an injury that would correspond with that
7 eye-witness report, right?
8 A. No, because the eye-witness said that the injury had been caused
9 with planks that were removed from an area around the well. These are
10 branches or sticks, as we call them, from the low vegetation around it,
11 not planks. Planks could have been present at some other area but not at
12 the well as could be ascertained on the basis of the footage made by the
13 Urosevac MUP.
14 Q. What footage are you talking about, the nine or 12 photographs
15 that are attached to that report in Exhibit 6D 501?
16 A. That's the photo file that I was given for my use that was made
17 by the Urosevac MUP on the 24th of March, 1999.
18 Q. And could that skull injury have been caused by one of the
19 branches or sticks, as you referred to them, in the low vegetation around
20 the well?
21 A. Yes.
22 Q. Thank you. Now, at the beginning of your testimony today
23 Mr. Ivetic had you go through all the materials you reviewed in preparing
24 your report. I take it that you weren't provided or you didn't see any
25 videotapes or transcripts of the testimonies of Dr. Baccard,
1 Dr. Tomasevic, or Liri Loshi from this case or the Milosevic case; is
2 that correct?
3 A. That's correct.
4 Q. And the same, I think, you saw witness statements of Liri -- of
5 Hazbi Loku and I think Milazim Thaqi, but you did not have a chance to
6 review their testimonies in this trial or the Milosevic trial, right?
7 A. Yes.
8 Q. With regard to the autopsy findings in the Austrian forensic
9 report concerning body 4, you mentioned that there seemed to be a problem
10 in that there's an initial description of what someone describes as a
11 possible bullet-hole. Let me find my English translation to make sure
12 I'm stating it accurately because I'm worried --
13 MR. IVETIC: Page 12, counsel, if it helps.
14 MR. HANNIS: Page 12 of the English.
15 Q. I'm not sure what page it is for you, Doctor. It's probably 12
16 or 13. Body number 4, Xhemajl Kuqi.
17 "A hole, presumably a bullet wound, was visible in the torso on
18 the right -- or on the back to the right of the spinal column."
19 And then on the next page in English, page 13, under the autopsy
20 remarks, Dr. Markwalder doesn't make reference to a bullet-hole, but he
21 talks about "marks of an explosion and fire were present on the corpse
22 with superficial skin lesions were visible on the back, possibly splinter
24 I note, Doctor, on page 5 of this report in the English, there's
25 a description of it. Report on the crime scene. I don't know if you can
1 find that page. It says: "Evidence is recovered by the crime scene
2 group Austria 2/1999," and it names five individuals. Do you find that
3 page? I think that's it that you have now.
4 A. 7, if that's what you mean.
5 Q. Well, if you could go back two pages. I think you have this
6 page. There were -- yeah, on that page do you see in the left column the
7 third block up: "Evidence recovered by," and it names five individuals,
8 and then right below that it says: "Autopsies conducted by," and it
9 names Dr. Markwalder and Dr. Wyler, right? The page you have on top now
10 looks like the one I'm looking at in English. Is that what it says?
11 Yeah. Did I state that correctly? Five persons are listed as being the
12 ones, evidence recovered by, and then Dr. Markwalder and Dr. Wyler are
13 the ones who conducted the autopsies, correct?
14 A. Yes.
15 Q. And immediately below that, we see the time-period: The
16 collection of evidence at the crime scene occurred between -- well, the
17 7th of September and the 9th and 15th of September, and autopsies were
18 done at Kacanik cemetery between the 13th and the 16th. From that, it
19 seems like it might be a reasonable conclusion that that description we
20 have of the bullet-hole for body number 4 is a description that was
21 probably done by someone gathering the evidence at the site where the
22 bodies were as opposed to the autopsy remarks by Dr. Markwalder at the
23 Kacanik cemetery. Would you agree with me that that's reasonable?
24 MR. IVETIC: I object to the question. Prosecution ought to
25 know. It's their exhibit. They should be able to present us with that
1 information without having us to guess. As Your Honour may recall, we
2 objected to some of these exhibits based upon the fact that some of the
3 evidence appeared to be -- some of the material appeared to be hearsay
4 collected from other persons as opposed to professional opinions by the
5 people involved. If we're going to revisit that issue, I mean, I think
6 the Prosecution is not asking us to hypothesise as to what exactly this
7 exhibit means, and it's ridiculous.
8 MR. HANNIS: I move to strike that last comment.
9 JUDGE BONOMY: That objection is repelled. This witness has
10 proceeded on a basis -- on the basis of a conclusion he himself has
11 appeared to made that both these statements are the responsibility of the
12 one person, and the Prosecution are plainly entitled to challenge his
13 understanding of the situation by relevant questions. The question
14 that's been asked is in our opinion relevant and may be answered.
15 MR. HANNIS:
16 Q. Doctor, do you need me to repeat my question, or do you recall
18 A. Yes, I recall the question that you asked me. I did my analysis
19 on the basis of the materials that I had here in front of me. This
20 possibility that you put to me is possible, but it is unacceptable to put
21 side by side such two assessments in such a report. When the person --
22 the person that described the injury on removing the body from the well
23 should have indicated that there is an injury to the right side of the
24 spinal column, and persons that will carry out the autopsy would describe
25 this injury in detail. They will make the final determination as to the
1 nature of this injury.
2 Q. Okay. I have a question about your report, Exhibit 6D 670.
3 Judge Bonomy made a comment that he thought that your report was a
4 thorough review of the work of the other team, and you seem to be telling
5 us that these were the only examples of your criticisms. But you said
6 you had a lot more criticisms than what were in your report. My question
7 is: What was your criteria for selecting those items that you put in
8 your report? Did you pick the worst examples you found, or did you just
9 take a random sample? What was your methodology in choosing examples for
10 your report?
11 A. First of all, in the course of my analysis of these cases, I
12 applied the methodology that is applied in my country, and as a rule it
13 is applied, in fact, throughout the world. I applied the methodology
14 that the investigators from the Tribunal applied. I mentioned the
15 methodology used by Hagland and Wright and other people who did those
16 analyses and processed mass graves in the former Yugoslavia. At the same
17 time, in this specific case I presented a striking finding and an
18 omission that is inadmissible when a doctor is performing an autopsy.
19 Perhaps I was too harsh in my words, but knowing this institution and
20 having high regard for this institution, this Tribunal, and also for the
21 persons who were involved in this autopsy and the victims, I wanted to
22 use this example to show the contradictions inherent in one such report
23 and to say that this is really incomprehensible. Because I hold you,
24 Prosecutors, and the Trial Chamber in high regard, but I don't know in
25 which country it would be possible to pass a judgement on the basis of
1 such scant information and such perfunctory word and inconsistencies.
2 Q. I'm not --
3 MR. IVETIC: If I can intervene. I don't know. I haven't
4 thought about whether this translation fits, as well, but at line 59, 10,
5 the witness said [B/C/S spoken] in Serbian if it's presented as striking.
6 Perhaps I can have the assistance of the translators what [B/C/S spoken]
7 is in English.
8 JUDGE BONOMY: Well, when you referred there to this specific
9 case and presenting a finding and an omission that is inadmissible, were
10 you talking about body number 4? Because you didn't appear to be
11 answering the question that Mr. Hannis asked you.
12 THE WITNESS: [Interpretation] I was talking about body number 4.
13 JUDGE BONOMY: Yeah, but the question Mr. Hannis was asking you
14 was what criterion led to you including certain examples in your report
15 but not including others, including body 4?
16 THE WITNESS: [Interpretation] I said that I picked a typical
17 example that would be typical of the kind of examples that can be found
18 in those cases. So after a full analysis, I presented a typical example
19 of inconsistencies in an autopsy report if that is how one can put it.
20 JUDGE BONOMY: I still don't understand what you're saying I'm
21 afraid. The striking -- well, the -- if it's typical rather than
22 striking. The typical example of body 4, if it is the best example, why
23 is it not in your report, and what is the criterion you were applying
24 that led you to choose some examples in the report and not to refer to
1 THE WITNESS: [Interpretation] I didn't provide all the examples
2 in light of the limitations that were set to me in -- for the
3 presentation in this particular case.
4 JUDGE BONOMY: What were these limitations?
5 THE WITNESS: [Interpretation] Well, I was told that I was going
6 to too great lengths, that I was providing examples that you couldn't
7 look at, and that I would have one hour and a half for my examination,
8 and I wanted to be as brief as possible.
9 JUDGE BONOMY: I'm afraid I don't understand any of that.
10 To enable you to be as brief as possible in court, then you
11 should provide as full as possible a written report. We've got expert
12 reports in this case that extend to over a hundred pages.
13 THE WITNESS: [Interpretation] I wanted to write up a report of a
14 hundred pages, but I was told it was not necessary, which is why I didn't
15 include all the details.
16 JUDGE BONOMY: Thank you.
17 Mr. Hannis.
18 MR. HANNIS: Thank you.
19 Q. Doctor, in noting these shortcomings in the Austrian forensic
20 report, did you personally make any effort to try to contact
21 Dr. Markwalder to ask him about his findings?
22 A. No, for the simple reason that I felt that after my remarks he
23 would respond to everything I said and that we could discuss all my
24 objections and his findings.
25 Q. Well, wouldn't that have been helpful to you in understanding his
1 report, to have a conversation with him, before finalising your report?
2 He might have been able to clarify some of the things that were ambiguous
3 to you in his report, right?
4 A. I don't know what is clear to you from this autopsy finding. I
5 apologise for having to be -- to speak in such terms, but nothing is
6 clear to me from this. If someone can conclude on the basis of one and a
7 half lines of an autopsy report on the causes of death, the injuries on
8 the body, the weapons used to cause the injuries, the cause-and-effect
9 relationship between the injuries and the death, the mutual positions of
10 the attacker and the victim, and other things - I won't list them all so
11 as not to waste your time - I don't know what I can discuss with someone
12 concerning all of this. I don't know what there is here that is clear to
13 everybody but me. I would like to have it put to me.
14 Q. Well, Doctor, let me ask you. You say nothing was clear to you
15 from this report. You would agree with me that regarding some of the
16 bodies there was literally very little to work with, right?
17 A. Yes.
18 Q. For example, body number 8, page 18 going on to page 19 of the
19 English, the autopsy, Dr. Markwalder notes: "Explosion and fire marks
20 were found on the body. Most of the body was missing. Only remains of
21 the legs, both feet, and various remnants of clothing can be accounted
22 for. No bullet entry wounds were found."
23 What more would you want or expect him to say in those
25 A. Well, let's take it in turn. First of all, on what parts of the
1 body traces of explosives and gun-fire were found. If this is on the
2 whole body --
3 Q. Given the fact that the only remains are legs and both feet, I
4 assume that explosion and fire marks were found on the legs and/or the
5 feet, right?
6 MR. IVETIC: Your Honours, these -- right now he's asking the
7 doctor to say whether his assumption -- whether Mr. Hannis has made an
8 assumption or not. That question is not proper. The doctor was
9 appropriately answering the prior question, and I think Mr. Hannis's
10 intervention is uncalled for. Let the doctor finish his analysis of what
11 the question was, not asking him, Am I assuming this, Doctor? It's not a
12 proper question for cross-examination, Your Honours, I submit.
13 JUDGE BONOMY: It's impossible to tell at the moment whether the
14 witness was, in fact, going to answer your question, Mr. Hannis; and
15 therefore, he should be allowed to continue with his answer.
16 So please continue, Professor.
17 THE WITNESS: [Interpretation] Based on the description when the
18 remains of the legs, both soles of both feet and various pieces of
19 clothing, it's necessary to describe what was left. Feet, are there
20 injuries on the feet or not? Based on the disposition and localisation
21 of injuries on the other parts of the body, one can say with a great
22 degree of certainty what sort of explosive device was used, whether these
23 were shells or bombs or dynamite or other explosive material, what pieces
24 of clothing were found, what they looked like. We describe all of that,
25 and we register all of that in our autopsy findings. I don't know about
1 others, but I know that this is something that is prescribed in all of
2 our rules. This is something that has to be done. I've looked at other
3 autopsy reports that have to do with The Hague Tribunal, and I saw that
4 all this is described in a great many of them by the forensics who did
5 the report. So why was it not done in this case? That's my objection.
6 JUDGE BONOMY: Professor, have you ever been a member of an
7 international forensic medicine team conducting autopsies abroad?
8 THE WITNESS: [Interpretation] No, but I can tell you that when I
9 did autopsies in Vukovar where I was the chief of the forensics team, my
10 work was evaluated by a UN team headed by Antonio Pegail [phoen], and
11 they evaluated my work very highly, and it was done under extremely
12 difficult circumstances while fighting was still going on. There was no
13 electricity, no water. The temperature was below 20 degrees centigrade.
14 After that and after all these examinations of mass graves, they were all
15 attended by representatives of the international community, but the war
16 that was going on in the territory of the former Yugoslavia made it
17 impossible for me to be part of an international forensic team conducting
18 such work on the territory of the former Yugoslavia. And the joint
19 activities in dealing with mass graves and corpses on the territory of my
20 former state is something I was not in -- did not have the opportunity to
21 participate in.
22 JUDGE BONOMY: Yes. Thank you.
23 Professor, there is no need to expand in that way, and indeed,
24 it's very easy to understand that your work would be commended by others,
25 but what we are trying to do is establish the correct approach to be
1 taken to a situation. The situation you describe and your own work is
2 some guide to us, but I was concerned to know whether you had been
3 involved in any other similar operation elsewhere. We recognise the
4 depth of your experience from the very fact, as I think you indicated at
5 the beginning, you carried out more than 5.000 autopsies yourself.
6 Mr. Hannis.
7 MR. HANNIS: Thank you.
8 Q. Doctor, I apologise for jumping the gun when you were trying to
9 answer my last question. In your report, Exhibit 6D 670, paragraph
10 number 10 on the Kotlina report, you talk about: "The fractures of the
11 skull sustained when the body fell 6 metres which occurred as the injured
12 part of the head hit objects in the well such as stone could equally have
13 been inflicted if the body smashed into hard body parts of bodies thrown
14 in the well earlier, such as a knee, elbow, head, or similar."
15 And then there's a footnote 23, which refers us to body number 7
16 on page 16 of the English, which is that injury we've talked about
17 before, the skull was broken by the force of an adult blow. And it also
18 refers us to body 17, page 30. Now, I'm looking at body number 17 on
19 page 30, and that's referred to as the autopsy of Agim Loku.
20 Dr. Markwalder did this one. He says: "There were marks of an explosion
21 and fire on the body. Most of the body was missing. Only the remains of
22 the head, throat, right shoulder, and upper right arm survived. There
23 was a gun-shot wound on the upper right arm."
24 I don't see any reference to a skull injury. Is that a mistake
25 in your report? Is there a typo? Should it be a different body number,
1 a different page number? What's happened there? I don't have the B/C/S
2 in front of me. Maybe there's a translation error on body numbers or
3 page numbers.
4 A. Body number 16, that's body number 16. There's an error here, a
5 typographical error. It says 17. That's a typographical error. It
6 should say 16, where it says the skull was fractured due to a blow with a
7 blunt object inter alia.
8 Q. Okay.
9 JUDGE BONOMY: Mr. Hannis, is this a suitable time to interrupt?
10 MR. HANNIS: It is, Your Honour. Thank you.
11 JUDGE BONOMY: Professor, we have to have another break at this
12 stage for half an hour, so could you again please leave the court with
13 the usher.
14 [The witness stands down]
15 --- Recess taken at 12.21 p.m.
16 --- On resuming at 12.55 p.m.
17 [The witness takes the stand]
18 JUDGE BONOMY: Mr. Hannis.
19 MR. HANNIS: Thank you, Your Honour.
20 Q. Doctor, in paragraph 2 of your expert report, 6D 670, you say:
21 The clothes described on body number 7 -- in Exhibit P361, the Austrian
22 forensic report, you say: The clothes described on that body number 7
23 and the head injury correspond to the body in photographs number 11 and
24 12 of the photographic documentation of the Urosevac SUP, which is
25 Exhibit 6D 501. How can you tell us that the head injury described in
1 the Austrian forensic report matches what you see in the photographs
2 number 11 and 12 of the MUP Urosevac SUP?
3 A. I have to say that this is a typographical error because I found
4 the correspondence in clothing described in body number 7 compared to the
5 documentation in the Urosevac SUP, and this is a typographical error,
6 which I now wish to correct.
7 Q. So the phrase "and the head injury" should not be in there?
8 A. No, it shouldn't be in there. That's correct.
9 Q. So that's the second typographical error we've discovered in your
10 report, correct?
11 A. Yes.
12 Q. And how were you able to determine that the clothing in those
13 photographs from the Urosevac SUP report correspond to the description of
14 the body number 7 in the Austrian forensic report? I mean, in the
15 photograph you're only able to see basically the outer layers of
16 clothing, correct?
17 A. Yes, and based on the external appearance of the clothing, that
18 is trousers made of blue cloth, a reddish item of clothing,
19 reddish-brown, a reddish-brown denim jacket on the upper part of the
20 body, this indicates that this might be body number 7. That's why I
21 allowed for this possibility, that it was body number 7.
22 Q. As I understand it, the Urosevac photos are from late March 1999,
24 A. 24th of March, 1999.
25 Q. And in doing -- are you familiar with the process, the
1 procedures, of an on-site investigation like this by the Urosevac SUP?
2 What would be done with the bodies after the evidence was gathered and
3 the photographs were taken? Do you know?
4 A. No, I don't know. I conducted my expertise based on the
5 materials in the case.
6 Q. But you don't have any particular expertise in clothing, do you?
7 A. No, but I can register with my eyesight the colour of the
8 clothing that the corpse had on because we describe this whenever we
9 conduct an autopsy.
10 Q. But wouldn't it be unusual for MUP to leave the body there so
11 that it's discovered in the well almost six months later when the
12 Austrian forensic team is doing its exhumation?
13 MR. HANNIS: I see Mr. Ivetic on his feet.
14 JUDGE BONOMY: Mr. Ivetic.
15 MR. IVETIC: The answer at line 67, 20, said he has no knowledge
16 of on-site investigations, so this question is without foundation and
17 calls for speculation.
18 JUDGE BONOMY: Mr. Hannis.
19 MR. HANNIS: Well, I would expect, given the work he's done and
20 the positions he's held, he might be in a position to opine whether a
21 body that's the subject of an on-site investigation is left where it's
23 JUDGE BONOMY: Don't you think it might be a better question to
24 ask if he doesn't find it strange.
25 MR. HANNIS: Well, I could ask if it's standard procedure to
1 leave bodies out at murder scenes after an investigation is done.
2 Q. Do you know that?
3 A. No. Standard procedure implies that the bodies in wartime
4 conditions -- well, the clothing should be described, all the parameters
5 that would later be needed for identification should be recorded, and
6 then the bodies should be buried in the closest possible spot, and the
7 spot should be marked.
8 Q. There's really no way you can say to a reasonable certainty on
9 medical or scientific grounds that the body you see in the photograph
10 from the Urosevac SUP is the same body that's described as body number 7
11 in the Austrian forensic report, is there?
12 A. I can't say that with a hundred per cent certainty, but only with
13 a certain degree of certainty.
14 Q. Okay. And you mentioned that the photo documentation of the
15 Urosevac MUP doesn't show any damage to the vegetation around the well
16 and that there was none described in the Austrian investigator's report.
17 At page 26, line 10, you said: "And if it wasn't described, it doesn't
19 Isn't another possibility that there may have been some damage
20 but it was not portrayed in the limited number of photographs that were
21 taken by the Urosevac SUP? Isn't that a possibility?
22 A. I think I said in my first statement either it didn't exist or it
23 was not recorded by those who conducted the on-site investigation.
24 Q. Okay. Another possibility is that the -- any explosions and
25 damage to surrounding vegetation might have occurred after the
1 photographs were taken and before mid-September when the exhumations took
2 place, right?
3 JUDGE BONOMY: Mr. Ivetic.
4 MR. IVETIC: I'm a little confused. The doctor testified that
5 the Austrians did not note any either, so is counsel saying that the
6 explosions occurred after the Austrians did the exhumation?
7 JUDGE BONOMY: Mr. Hannis.
8 MR. HANNIS: Visible damage may have transpired and passed in six
10 JUDGE BONOMY: Well, Doctor, with all these provisos, can you
11 assist us further on the question whether, bearing in mind both the
12 photographs and what is in the Austrian investigation report, explosion
13 and damage to surrounding vegetation might have occurred between March
14 and September?
15 MR. IVETIC: But, Your Honours, there's no basis for that
16 question. There's no evidence that there is any damage to vegetation.
17 That's the doctor's point that he testified to. Unless counsel has got
18 something to point to, the Austrians sure don't do it.
19 JUDGE BONOMY: Well, Mr. Ivetic, were you listening to what
20 Mr. Hannis said in response, that this damage may have occurred in past,
21 and I prefaced my question by making it clear that subject to all the
22 provisos that have arisen in this discussion, can the witness help us any
24 Can you assist us any further, Professor?
25 THE WITNESS: [Interpretation] Yes, something like that is
1 possible; however, what is not possible is for damages on the vegetation
2 to disappear. If bark on the trees was damaged by shrapnel or gun-shots,
3 that could not have disappeared over six months more or less.
4 MR. HANNIS:
5 Q. Doctor, you're not an expert on vegetation, are you?
6 A. Yes. I mentioned that as a side finding as I was working with my
7 team on mass graves, the team from my country.
8 Q. And trees may have been cut down during the intervening six
9 months, right?
10 A. Yes, but --
11 Q. No, no, let me ask you another question --
12 A. That is not based on the description -- well, yes. At any rate,
13 it is a possibility.
14 Q. Another possibility to explain some of these differences is the
15 possibility that the site depicted in the photographs from the Urosevac
16 SUP is not the same site from which the bodies were exhumed by the
17 Austrian forensic team. That's a possibility, isn't it?
18 A. There are many assumptions that can be made, but I wouldn't like
19 to engage in guess-work. I just spoke about the material evidence that I
20 observed and assessed.
21 Q. But you would agree with me, wouldn't you, that that is a
22 possible explanation because you haven't seen a photograph of the site of
23 the Austrian examination to compare it and determine that it's one and
24 the same place, have you?
25 A. But I didn't see any descriptions to the effect that there were
1 damages on the vegetation or that there were not, as I said.
2 Q. Exhibit 6D 501 is the Urosevac report accompanying those
3 photographs that we've been talking about, and page number 2 in the
4 B/C/S -- I don't know if you have a copy of that. We can bring it up for
5 you. Did you have a chance to read that whole report?
6 A. I just looked at the photo documentation. I did not read the
7 entire report.
8 Q. Okay. Well, that page, the second page in B/C/S, describes the
9 case as an act of terrorism in the municipality of Kacanik, the village
10 of Kotlina. And in handwriting is the word "Ivaja," I-v-a-j-a, with a
11 question mark. You don't know who put that on there, do you?
12 MR. IVETIC: Your Honours, I have to intervene. In the Serbian,
13 there's no question mark.
14 MR. HANNIS: I withdraw that. That's my mistake. There's a
15 question mark in the English.
16 Q. "Ivaja" is handwritten. You see that?
17 A. Yes.
18 Q. And looking at my map of Kosovo and that municipality, it appears
19 there is a village named Ivaja a couple of kilometres south of Kotlina.
20 Were you aware of that?
21 A. No, I was not in the area.
22 Q. Having seen that, does it make it more easy for you to agree with
23 me that the possibility is what's depicted in that Urosevac SUP report is
24 a different site than the one from which the bodies were recovered by the
25 Austrian forensic team? Yes or no?
1 A. Yes, but ...
2 Q. Okay. At page 29, line 18 today, you were answering a question
3 about whether or not an explosion in the well with these bodies would
4 occur without leaving any biological traces, and you said: "Bearing in
5 mind the depth at which the first mortal remains were found of the bodies
6 that were found in the well, it is impossible to expect in view of the
7 breadth of the well that they could have been ejected out of the well to
8 other areas outside of the well."
9 I know -- I understand your answer that you wouldn't expect it,
10 but you can't tell us with 100 per cent certainty that it's not possible,
11 can you? You've never done any testing for the kind of results that you
12 would get when you had 20 bodies in a well this size and these
13 proportions because you don't know how many and what type of explosives
14 were used and where they were placed, right?
15 A. Well, no one gains experience in that way. I'm speaking on the
16 basis of what can be derived on the basis of the depth and breadth of the
17 well, on the basis of the descriptions of the bodies, and as I mentioned
18 in all these paragraphs. However, had body parts had been ejected from
19 the well into the surrounding area, then that would have to be verified
20 by the investigators in different ways. For example, biological remains
21 that could have been washed away. I'm not challenging that, but then
22 would have to be blood-stains on the charred clothing or parts of tissue.
23 Q. Doctor, you agree with me you're not an expert on explosions and
24 explosives, right?
25 A. Yes, but for wounds coming from explosives, yes.
1 Q. And you don't know whether there were single or multiple
2 explosions in this case, do you?
3 A. No.
4 Q. Or indeed what kind of explosives were used, whether it was a
5 grenade or multiple grenades or a mine or a home-made device. You have
6 no way of knowing that, do you?
7 A. Investigators found only a few metal parts in the area
8 surrounding the well, which means that grenades, explosive devices,
9 things like that, had that been thrown, the investigators would have
10 found many more metal parts. The only logical conclusion is that there
11 weren't any such explosions in the well.
12 Q. Well, now you're assuming that the investigators made a thorough
13 search for metal parts and used metal detectors, and based on your
14 earlier complaints I'm not sure that you can feel comfortable that they
15 did that, can you?
16 A. Well, I've just been saying that the investigators worked in a
17 superficial and inadequate way when searching the area of the well and
18 dealing with the victims who were found in these wells.
19 Q. Okay. In -- at page 30, line 22, today you noted the fact that
20 out of one of the wells a bullet was found that was determined to have
21 been made in China in 1964. And you went on to say that this was
22 ammunition used by the Albanians, and they had this ammunition, and its
23 use was recorded in Kosovo, so perhaps it's possible that in an exchange
24 of fire or in a cross-fire of sort a person could have been hit by
25 mistake and then buried in the well. That's a fair bit of speculation,
1 isn't it?
2 A. That is a fact that implies that the man who had been hit with
3 this Chinese bullet manufactured in 1964 and the members of the police
4 did not have such ammunition and such weapons. When that kind of bullet
5 is found near the body and when it caused an injury, I can base my
6 conclusion on that. That is not speculation. It is based on physical
7 evidence, like the projectile we're talking about.
8 Q. Okay. Let me clear that up because I wasn't certain where that
9 came from. Is this bullet an entire unfired bullet, or are you talking
10 about the bullet that has been fired and ejected from its casing and gone
11 through something or at least out of the rifle? Which are you talking
13 A. I'm talking about the projectile that was analysed in the
14 laboratory, the ballistics laboratory of the Austrian investigating team.
15 That is on page 101 in Serbian, where reference is made to physical
16 evidence that was found in the well, and then it says: "Bullet found in
17 the dug well, in the wall of the well."
18 Then it says: "Documentation shows that this bullet was made in
19 China and manufactured in 1964."
20 Q. Can you tell me what material evidence item that is? I wasn't
21 able --
22 A. That is material evidence 1, material evidence 1.
23 Q. Okay. Yes. And I see on page 75 of the English that that's
24 described as a 7.62 by 39-millimetre calibre with a full-jacket bullet,
1 A. But it also says inter alia on it is a triangular trace of
2 ejection as well as a trace --
3 THE INTERPRETER: Interpreter's note: We do not have the text.
4 MR. HANNIS:
5 Q. You said that the MUP didn't have any ammunition like that.
6 Isn't it true that in 1998 and 1999 through Albanian civilians turning in
7 weapons and from the seizure and capture of weapons and ammunition that
8 the MUP in March 1999 had hundreds of such weapons and thousands of
9 rounds of such ammunition? Did you know that?
10 A. No, I didn't know that.
11 Q. Okay. And you read the Austrian report finding about the other
12 bullets and casings that were found during their exhumations, right?
13 A. Yes.
14 Q. You make the point that there were only 12 spent shell cases
15 found and in the bodies examined there were at least 26 gun-shot wounds,
16 and from that you get to the conclusion that this was probably a
17 secondary grave-site instead of an execution site; is that right?
18 A. On the basis of that, I conclude that the gun-shot wounds were
19 sustained elsewhere as far as a number of these bodies are concerned and
20 that after that the bodies were thrown into the well.
21 Q. And your conclusion is based merely on the absence of a number of
22 shell casings?
23 A. Yes.
24 Q. You would agree with me that there are several other alternative
25 explanations for the absence of additional shell casings, right?
1 A. Yes.
2 Q. Because some six -- almost six months passed between the time of
3 these alleged killings and the exhumations in September, so some shooters
4 could have carried out shell casings, for example. That's one
5 possibility, right?
6 A. That is one of the possibilities, yes, but I don't see why.
7 Q. Well, you don't see any reason why? Really?
8 A. In an area where tens of thousands of projectiles are spent, if
9 someone has the time to collect casings, then that is another assumption.
10 No one would do that.
11 JUDGE BONOMY: Well, it might be easier than moving the bodies.
12 THE WITNESS: [Interpretation] Bearing in mind the terrain and the
13 circumstances under which the war conflicts in Kosovo took place, I doubt
14 that the people who took part in armed conflicts had enough time for that
15 in view of the possible consequences.
16 MR. HANNIS:
17 Q. On the other hand, if you had managed to disarm a group and line
18 them up and execute them, you might find it advisable to pick up your
19 shell casings to reduce the evidence that might connect you with such an
20 unlawful act, right?
21 A. It's possible in theory, but if one bears in mind the fact that
22 after a round is fired from a handgun, the casings are ejected in a
23 radius of over 10 metres, then it would take a long time to gather all
24 the casings and to remove them; in particular, if we're talking about the
25 circumstances where the terrain is overgrown with deciduous trees and
1 lush vegetation.
2 Q. One of the things you said at page 35 was that based on the
3 injuries described to the bodies in the well, you did not think that this
4 could have happened from explosions within the well based on the number
5 of such injuries and the location of injuries and the locations of those
6 bodies within the well. Does that allow for the possibility of multiple
7 explosions at different time-periods? For example, five or six bodies
8 were thrown into the well, then there was a grenade tossed in, then other
9 bodies were thrown in, and then there was another grenade. Would that
10 change your opinion?
11 A. It is possible to throw a couple of bodies and then -- into the
12 well and then to throw an explosive device in and that the injuries would
13 be such that smaller or larger body parts would be destroyed. I said
14 that at the deepest level only body parts were found; in the medium level
15 the bodies were better preserved; whereas on the surface area, again, we
16 encountered extensive destruction to body parts. Some were at the depth
17 of 8 metres; others were found at the depth of 9 metres. So there is a
18 stratum of soil that was a metre deep, and that's virtually impossible.
19 I said that some bodies were found lying prone and there were explosive
20 injuries to the front of the body, and that is impossible. If you throw
21 any explosive device on bodies, it is realistic to expect that any
22 injuries would be to the back because the front of the body was lying
23 against the surface.
24 Q. Okay. Let me move on to Izbica and your comments on that report.
25 Would you agree with me that many of the wounds that you can see on the
1 dead bodies depicted in that video are consistent with witness accounts
2 that those men were killed by gun-shot?
3 A. I did not deny that. I said that where injuries were visible in
4 all those bodies, gun-shot wounds were visible on some or even most of
5 them, and that is not controversial at all.
6 Q. Okay. One of the things you mentioned -- well, let me ask you
7 this: Did you ever speak or attempt to speak with Dr. Tomasevic about
8 her findings concerning the bodies from Izbica?
9 A. No. I didn't talk to Dr. Tomasevic because she was there in a
10 different capacity. I am not familiar with it. She worked in Kosovo,
11 although nominally I was her chief. But if she accepted to work under
12 those conditions, I had no reason to talk to her. On the other hand, I
13 read a transcript where she told some untruths about me. She said that I
14 was promoted by four ranks after Vukovar. That's a complete fabrication,
15 and I don't want to communicate with people who are able to come up with
16 something like that.
17 Q. What transcript was that? Not one from this case, right?
18 A. No, that's not the case -- or rather, I think it is. Yes, I
19 think it is a transcript from this case. Yes, from this case when she
20 spoke about her findings from Izbica where she also made some
21 observations about me.
22 Q. Well, Doctor, I think near the beginning of my questioning of you
23 I asked you if you had read or seen any of the transcripts or videotapes
24 of the testimonies of certain people in this case, including
25 Dr. Tomasevic, and you told me no. But now your memory is that you did
1 see hers; is that right?
2 A. No, you did not ask me about Dr. Tomasevic, not a single
4 MR. HANNIS: May I have a moment --
5 JUDGE BONOMY: Mr. Visnjic.
6 MR. VISNJIC: [Interpretation] Your Honour, if I may, to assist
7 this is the statement by Dr. Tomasevic, not the transcript, so as to not
8 waste any time.
9 JUDGE BONOMY: Thank you.
10 MR. HANNIS: Okay.
11 Q. So it's her statement not her testimony here; is that right, her
12 written statement? You'll have to answer out loud.
13 A. Yes.
14 Q. Thank you. Paragraph 5 of your comments about Izbica, at the
15 very end you mention: "This video recording does not show grouped
16 bodies, contrary to the statement given by Witness Mustafa Draga: 'The
17 group I was in numbered about 70 men.' Also, in order for him to be
18 protected and shielded from intensive machine-gun and automatic fire,
19 there had to be more bodies around him, as opposed to what the witness
20 said: 'Hajriz fell on top of me... I was saved by Hajriz and God.'"
21 Doctor, that depends on many variables that you simply don't
22 know, right? You don't know how him and Mr. Draga and the other men were
23 lined up, how many gun men were shooting at them, at what angles they
24 fired, how many bullets they fired, how long that lasted, how soon
25 Mr. Draga went to the ground, et cetera. You don't know enough to form
1 that opinion, do you?
2 A. I had in mind -- or rather, I took into account Draga Mustafa's
3 statement, and I also took into account what could be seen on the
4 footage. I don't deny that these people are victims, that they are dead,
5 but I could not see anywhere in the statement -- or rather, I could not
6 see the execution site, the 70 bodies that are mentioned in the
7 statement. I saw less people, up to 30, as far as I was able to count in
8 the little forested area and in the meadow in front of it. I didn't see
9 70 of them. At the same time, next to these people whose bodies had been
10 moved, I did not see any biological traces, blood and so on. I was able
11 to see that they had been moved, and I did not see the number of casings.
12 I'm talking about only this thing, the footage that shows the dead bodies
13 from the point of view of the person recording it, the way he thought
14 that they should be recorded. I have nothing against the footage, but
15 I'm just talking about physical evidence. I'm saying that this was not
16 present at the scene, and this could be seen on the footage.
17 Q. No, but you're doing more than that. You're challenging Mustafa
18 Draga's account of how he came to survive that shooting when so many
19 others around him were shot and killed, and I'm saying you don't have
20 enough information to dispute that, do you?
21 A. If injuries are inflicted by bursts of machine-gun fire and if
22 the bullet causes injury to one body going through that body, it is a
23 certain fact that they would hit another body. If we look at the force
24 of impact of those bullets, during the war we analysed, we looked at the
25 people killed in this manner, people killed when a bullet entered one
1 body, exited, and then entered the other body causing death.
2 Q. Thank you, Doctor. That's also one reason why you could have 26
3 bullet wounds from 14 shell casings, right?
4 A. It is impossible to have 84 rounds to cause the death of more
5 than a hundred people.
6 Q. You didn't answer my question.
7 A. When you have a through-and-through wound, if we were to have the
8 descriptions of injuries as they were done by the Austrians, if they had
9 described them properly, we would have been able to ascertain with a high
10 degree of certainty whether a bullet had passed through the body of one
11 victim and entered the body of another, and that would have been an
13 Q. But your assumption regarding Mr. Thaqi or Mr. Draga, I'm sorry,
14 Mr. Mustafa Draga, appears to be that he and all 70 men remained standing
15 until they were hit by a bullet and fell down and died. Isn't it
16 possible that Mr. Mustafa managed to fall or dive to the ground before a
17 bullet passed in his direction and passed over him when fired at waist
18 height or higher. That's possible, isn't it?
19 A. Possible.
20 Q. And lastly, item number 7 and 8, you're talking about Mr. Thaqi's
21 account of what happened with him and the men he was with. And you think
22 his description is impossible, that his jersey and jacket couldn't have
23 gotten bullet-holes in them as he describes. But I think there's a
24 fallacy in your analysis because you seem to read his statement as saying
25 that he noticed the bullet-holes while he was standing up, and that's not
1 what he says. In paragraph 8, you quote him: "Bullets were flying all
2 around me, and some came close to my head, but I wasn't hit. I
3 discovered three bullet-holes in the back of my jacket, my jersey, and
4 also my shirt."
5 So he didn't discover the holes until afterwards. You didn't
6 have a chance to analyse his clothing to see if there were any trace
7 elements of bullet metal on those holes in his jacket or his jersey or
8 his shirt, did you?
9 A. In the statement, there are --
10 Q. No, my question is: You didn't have a chance to analyse his
11 clothing for trace elements of bullets?
12 A. On the footage, yes, because in his statement -- there are
13 actually photographs of the clothing.
14 Q. So your analysis consists of looking at a photograph of some
15 clothing with what appear to be holes in them; that's the extent of your
17 A. Yes.
18 Q. Okay. All right. In that case, Doctor, I don't have any more
19 questions for you. Thank you.
20 JUDGE BONOMY: Thank you, Mr. Hannis.
21 Mr. Ivetic --
22 MR. IVETIC: Just a few questions, yes. I should be able to
23 finish within the time-period.
24 Re-examination by Mr. Ivetic:
25 Q. Doctor, first of all I would like to go back to Kotlina. If you
1 can look at 6D 501, pages 11 -- or 10 -- let's go to page 11 in the
2 Serbian since unfortunately the English translation does not have the
3 captions, I don't think, of all the pictures translated. And if we look
4 at -- if we can -- if we could zoom in on the text beneath the first
5 photograph as much as possible, and if the doctor could perhaps read for
6 us if this identifies the location where this is in front of which
7 village. Doctor, are you in a position to be able to read this caption
8 or at least the part that comes after "Selo," or village?
9 A. "Bodies found further up from the village of Kotlina near the
10 second shelter in the form of a well."
11 Q. Thank you, Doctor. Now, the Prosecutor asked you if, in fact,
12 there was a possibility that this was in Ivaja rather than in Kotlina
13 based upon the handwritten note. Does this picture leave you with the
14 possibility more so than Ivaja that this is actually Kotlina based upon
15 the caption of the photo that you examined?
16 A. I always said that wells could be seen at those sites on the
17 photographs. I don't know where in the villages they're located. I'm
18 not familiar with the area, but I can say that on the basis of the
19 documentation, the file, the bodies are located next to the wells.
20 Q. Thank you, Doctor. The document speaks for the rest of the
21 material contained therein. Mr. Hannis also asked you about body number
22 8, the one that had little to work with. Does the fact that most of the
23 body of body number 8 in Kotlina, does the fact that most of the body is
24 missing lead you to make any conclusion as to whether, in fact, the well
25 was the locale or the locus of the death or whether that locus was some
1 site elsewhere?
2 A. The description of the body states that only remains of the legs,
3 both feet, and parts of clothing were found. No gun-shot wounds were
4 found, and that meant that most probably the body was destroyed by an
5 explosive device, and that's logical in terms of the explosive wounds and
6 fire marks found on the body. But if this body had been blown apart in
7 the well, then it would be logical to expect that other body parts would
8 be found in the well, the thorax, parts of the skull, the upper limbs,
9 but this is not contained in the description, which means that the injury
10 was caused elsewhere.
11 Q. Thank you, Professor. And to clear up one other issue that was
12 raised twice by Mr. Hannis, if you could please enlighten those of us
13 here who are not from the Yugoslav or Serbian legal system, what is the
14 procedure and practice in the Serbian or Yugoslav legal system regarding
15 completing experts in legal cases? Are they to have contact outside of
16 court, such competing experts? According to the ZKP or the Law on
17 Criminal Acts or Criminal Procedure --
18 JUDGE BONOMY: Well, Mr. Ivetic, I'm afraid we're going to have
19 to stop for the day at this stage. The case that follows this one is a
20 sensitive one --
21 MR. IVETIC: This is my last question.
22 JUDGE BONOMY: -- and I don't have authority to -- yeah, but your
23 question doesn't really have a foundation because we're not talking about
24 competing experts, are we? We're talking about an expert witness here
25 commenting on the work done by people actively engaged in a job. They're
1 not working as experts when they do that. They're working as
3 MR. IVETIC: And in the Yugoslav system that's covered by ZKP,
4 which is P1824, Articles 250 and 251 --
5 JUDGE BONOMY: Well, it's for tomorrow, I'm afraid, because we
6 just have to stop today, regrettably.
7 I'm sorry about this, Professor, but we have to leave this court
8 to allow another case to take place here this afternoon, and you will
9 have to come back briefly tomorrow morning to complete your evidence. I
10 do deeply regret that, but it's the way things have turned out today
11 because of a lack of focus in the way in which this whole evidence has
12 been presented. As I said before, that does not appear to be your
13 responsibility entirely.
14 So I have to ask you now to leave the courtroom but return to
15 continue your evidence tomorrow at 9.00.
16 [The witness stands down]
17 --- Whereupon the hearing adjourned at 1.47
18 to be reconvened on Thursday, the 15th day of
19 May, 2008, at 9:00 a.m.