Tribunal Criminal Tribunal for the Former Yugoslavia

Page 16000

 1                           Monday, 2 September 2013

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 10.01 a.m.

 5             JUDGE ORIE:  Good morning to everyone in and around this

 6     courtroom.

 7             Mr. Registrar, would you please call the case.

 8             THE REGISTRAR:  Thank you and good morning, Your Honours.  This

 9     is case IT-09-92-T, the Prosecutor versus Ratko Mladic.

10             JUDGE ORIE:  Thank you, Mr. Registrar.  We had a late start

11     because Mr. Baraybar had not yet arrived.  But he's now available, I do

12     understand, and there was no specific reason for his absence.

13             MS. LEE:  Yes, Your Honour.

14                           [Trial Chamber and registrar confer]

15             JUDGE ORIE:  I do understand that there was something of a

16     malcommunication.  Then no protective measures.  Could the witness be

17     escorted into the courtroom?  Because there are no preliminaries.

18             Meanwhile, I'll briefly deal with one matter primarily important

19     for the Defence, because I'd like to turn to the issue of Defence request

20     for CLSS translations of evidence into B/C/S, which issue has been raised

21     periodically during the trial and was recently discussed at the

22     housekeeping session of 25 July.

23             The Chamber notes that it is the policy of CLSS to decide on such

24     translation requests in consultation with CMSS.  Given this policy, the

25     Chamber believes that the best approach going forward is for the Defence

Page 16001

 1     to first make its requests for translation to CLSS, and then to seek the

 2     Chamber's intervention only if the request has been denied.  Once the

 3     Defence has submitted its request and corresponding denial to the

 4     Chamber, the Chamber will then consider whether and to what extent its

 5     intervention is warranted in the matter.  I leave it at that.

 6                           [The witness entered court]

 7             JUDGE ORIE:  Good morning, Mr. Baraybar.

 8             THE WITNESS:  Good morning, Your Honour.

 9             JUDGE ORIE:  Before you give evidence, the rules require that you

10     make a solemn declaration of which the text is now handed out to you by

11     the usher.  May I invite you to make that solemn declaration.

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

13     whole truth, and nothing but the truth.

14                           WITNESS:  JOSE BARAYBAR

15             JUDGE ORIE:  Thank you.  Please be seated, Mr. Baraybar.

16             THE WITNESS:  Thank you.

17             JUDGE ORIE:  Mr. Baraybar, you'll first be examined by Ms. Lee.

18     Ms. Lee is counsel for the Prosecution and you'll find her to your right.

19     Ms. Lee you may proceed.

20             MS. LEE:  Thank you, Your Honours, and good morning to everyone

21     in this room.

22                           Examination by Ms. Lee:

23        Q.   Good morning, Mr. Baraybar.

24        A.   Good morning.

25        Q.   Could you please state your name for the record?

Page 16002

 1        A.   I will first say it in Spanish and then I will spell it for you.

 2     It's Jose Pablo Baraybar Docarmo.  My first name would be J-O-S-E, the

 3     second name will be P-A-B-L-O, my paternal last name will be

 4     B-A-R-A-Y-B-A-R.  And my maternal name would be D-O-C-A-R-M-O.

 5        Q.   And what is your current occupation?

 6        A.   I'm a forensic anthropologist.

 7             MS. LEE:  May I please have 65 ter number 30178.

 8        Q.   And, Mr. Baraybar, because you and I speak the same language

 9     I would ask that you pause between questions and answers and just to wait

10     for the translation.

11        A.   Sure.

12        Q.   Mr. Baraybar, do you recall testifying in the Krstic case before

13     this Tribunal?

14        A.   Yes, I do.

15        Q.   And have you had the opportunity to review your testimony in that

16     case?

17        A.   Yes, I have.

18        Q.   And I understand that you would like to make one change to your

19     transcript in the Krstic case.

20             MS. LEE:  And if I may have page 25 in e-court.  And focus on

21     line 22.

22        Q.   Now, here it reads the variation was between 866 in the original

23     report to 180 -- 1.883, and my understanding is that the variation was

24     between 1.886 in the original report to 1.883.  Is this correction

25     correct?

Page 16003

 1        A.   Yes, that is correct.

 2        Q.   And was the -- this testimony true to the best of your knowledge

 3     when you gave it in the Krstic case?

 4        A.   Yes, it is.

 5        Q.   And noting this correction, if you were asked the same questions

 6     today, would you provide the same answers in substance?

 7        A.   Yes, I would.

 8             MS. LEE:  Your Honours, I would like to tender 65 ter number

 9     30178 into evidence along with its associated exhibits.

10             JUDGE ORIE:  Mr. Stojanovic?

11             MR. STOJANOVIC: [Interpretation] We have no objections,

12     Your Honour.

13             JUDGE ORIE:  Then we will go through the associated exhibits one

14     by one but perhaps first admit the previous testimony of Mr. Baraybar in

15     Krstic case.

16             That would receive, Mr. Registrar, number?

17             THE REGISTRAR:  Your Honour, 65 ter number 3017 will be

18     Exhibit P2070 [realtime transcript read in error "D2070"].

19             JUDGE ORIE:  It appears a D number, but I take it that it's

20     P2070.

21             THE REGISTRAR:  That's correct.

22             JUDGE ORIE:  It's admitted into evidence.

23             Associated exhibits.

24             MS. LEE:  Yes, the next is 04489 which is the CV of Mr. Baraybar.

25             JUDGE ORIE:  Yes, that would receive number.

Page 16004

 1             THE REGISTRAR:  Exhibit P2071, Your Honours.

 2             JUDGE ORIE:  Admitted.

 3             Next one, Ms. Lee?

 4             MS. LEE:  It's 4490 and it's the photo of a pelvic -- of a male

 5     pelvic bone.

 6             JUDGE ORIE:  Would receive, Mr. Registrar?

 7             THE REGISTRAR:  Exhibit P2072, Your Honours.

 8             MS. LEE:  Next is 044 --

 9             JUDGE ORIE:  Is admitted into evidence.

10             MS. LEE:  I apologise, Your Honour.

11             JUDGE ORIE:  Yes.  Next one.

12             MS. LEE:  04491.

13             JUDGE ORIE:  Mr. Registrar?

14             THE REGISTRAR:  Exhibit P2073, Your Honours.

15             JUDGE ORIE:  Admitted.

16             MS. LEE:  Next is 04492.

17             THE REGISTRAR:  Exhibit P2074.

18             JUDGE ORIE:  Admitted into evidence.

19             MS. LEE:  Next is 04493.

20             THE REGISTRAR:  Exhibit P2075, Your Honours.

21             JUDGE ORIE:  Admitted.

22             MS. LEE:  Next is 04494.

23             JUDGE ORIE:  Mr. Registrar.

24             THE REGISTRAR:  Exhibit P2076.

25             MS. LEE:  Then we have --

Page 16005

 1             JUDGE ORIE:  Admitted.

 2             MS. LEE:  I apologise, Your Honours.  04495.

 3             THE REGISTRAR:  Exhibit P2077.

 4             JUDGE ORIE:  Admitted.

 5             MS. LEE:  Then we have 04496.

 6             THE REGISTRAR:  P2078.

 7             JUDGE ORIE:  Admitted.

 8             MS. LEE:  04872.

 9             THE REGISTRAR:  Exhibit P2079.

10             JUDGE ORIE:  Admitted.

11             MS. LEE:  04873.

12             THE REGISTRAR:  Exhibit P2080.

13             JUDGE ORIE:  Admitted.

14             MS. LEE:  04876.

15             THE REGISTRAR:  Exhibit P2081.

16             JUDGE ORIE:  Admitted.

17             MS. LEE:  And we have 04888.

18             THE REGISTRAR:  Exhibit P2082, Your Honours.

19             JUDGE ORIE:  Admitted into evidence.

20             Ms. Lee, if you have any further questions for the witness.

21             MS. LEE:  I would like to read a short summary for the witness.

22             JUDGE ORIE:  Please do so.

23             MS. LEE:  The witness's 92 ter evidence and the purpose of it

24     I'll explain to the witness.

25             JUDGE ORIE:  Please do so.

Page 16006

 1             MS. LEE:  Thank you.

 2             Jose Pablo Baraybar is a forensic anthropologist.  He has worked

 3     on forensic investigations since 1991 including for the United Nations

 4     missions in Haiti and Kosovo, for the ICTR in Rwanda and for the ICTY.

 5     Mr. Baraybar testified in the Krstic case about the anthropological

 6     [realtime transcript read in error "political"] examination of human

 7     remains that were exhumed from Srebrenica-related graves between 1996 and

 8     1999.  He describes the role of the anthropologists at the mortuary to

 9     determine the age, sex, and the stature of victim and to estimate the

10     minimal number of individuals, or as we will refer to as MNI, based on

11     the remains recovered and to assist in reconstruction of broken parts in

12     order to determine the type of injuries sustained by the victims.

13             First he would determine the gender of an individual, and if this

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

15     would be done by examining the pelvic bone, the skull, and the long

16     bones, and in that order.  Secondly, he would establish the age range of

17     each individual by examining changes in certain bones by relying on

18     Bosnian population-specific standards.

19             The relevant age ranges were 8 to 12, 13 to 24, and over 25 years

20     of age.  Then he would calculate the minimum number of individuals at the

21     site in question and this was done by adding together the total of the

22     most commonly occurring bone in each age range.  Only a unique bone or

23     one of a pair of bones would be used for this calculation; for example,

24     if there were 38 left proximal femurs in the 13 to 24 age range, and 48

25     right proximal tibia in the 25 and over age range, that would give a

Page 16007

 1     minimum number of 86 individuals for that total site.

 2             To avoid overcounting, the human remains from a primary and any

 3     known secondary sites were examined together using the same bone as a

 4     basis of the calculations.

 5             Mr. Baraybar concluded that between 1996 and 1999, a minimum

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

 7     Srebrenica-related graves.

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

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

10     known as Glogova 2.  And this continues -- this completes my summary of

11     the witness.

12             JUDGE ORIE:  Thank you, Ms. Lee.

13             MS. LEE:  And with your leave I would now ask a few questions of

14     the witness.

15             JUDGE ORIE:  Please do so.

16             MS. LEE:

17        Q.   Mr. Baraybar, before I begin my questions, I see that you have a

18     binder with documents in front of it -- in front of you.  Could you

19     please explain to us what they are?

20        A.   Before I answer your question, I see in line written at 10, 12,

21     08, it says "political examination of human remains" and it should be

22     "anthropological examination."  Thank you.

23             In this binder I have copies of my testimony in the Krstic trial

24     as well as copies of the reports you have mentioned.

25        Q.   And if you wish to refer to your reports, please do so.  And if

Page 16008

 1     you're referring to them, let us know what you're referring to.

 2        A.   Will do.

 3        Q.   Mr. Baraybar, since leaving the ICTY in 2002, have you worked in

 4     a similar line of work?

 5        A.   Yes.  As a matter of fact, after leaving ICTY I was appointed as

 6     head of the office of missing persons and forensics for the United

 7     Nations mission in Kosovo.  I terminated my work with the United Nations

 8     in 2007 and went back to Peru, my home country.  I -- I am currently the

 9     executive director of the Peruvian forensic anthropology team and since

10     leaving the ICTY in 2002, I have worked as a forensic anthropologist in

11     various countries across the globe, as part of or directing

12     investigations on human rights abuses across South-East Asia, Africa, and

13     the Americas.

14        Q.   And now you've just mentioned a few minutes ago that you've

15     testified in the Krstic case as an expert.  Have you testified as an

16     expert before this Tribunal in any other cases?

17        A.   Yes.  As a matter of fact in several cases since the year 2000.

18     I could not recall exactly how many but in many cases.

19        Q.   If I were to tell you there were -- you testified in Popovic

20     case?

21        A.   Yes, I did.

22        Q.   In Milutinovic?

23        A.   Yes.

24        Q.   Tolimir?

25        A.   I believe so, yes.

Page 16009

 1        Q.   Djordjevic?

 2        A.   Yes.

 3        Q.   And Karadzic?

 4        A.   That's correct.

 5        Q.   And can you tell us briefly about the work that you were tasked

 6     to do when you were first hired by the ICTY?

 7        A.   My -- my role was that of a forensic anthropologist and

 8     archaeologist, meaning I've been involved with the analysis of remains,

 9     extracted or exhumed from mass graves or any kind of grave, as well as

10     the recovery of those remains.  So during my tenure in the Tribunal

11     I was -- or I shifted, rather, between one task and the other depending

12     on the needs, so I could be for a season working in the field or then

13     working in the mortuary.

14        Q.   And did your responsibility change during the course of your

15     employment at the ICTY in terms of the title that you had?

16        A.   Yeah, well, it was an exchangeable title as a matter of fact.  I

17     mean, at some point I was chief forensic anthropologist, at some of the

18     time I was chief archeologist.  It pretty much that.  I mean, my

19     functional title as for the UN system was forensic anthropologist.

20        Q.   Now I understand that you wrote several reports during your

21     employment at the ICTY?

22        A.   Yes, I did.

23        Q.   And a lot of them were Srebrenica-related?

24        A.   Many were, yes.

25        Q.   Did you also write reports for non-Srebrenica related?

Page 16010

 1        A.   Yes, I did.

 2        Q.   Okay.

 3                 MS. LEE:  Now, if I could have 65 ter number 04499.

 4        Q.   And this is the report on the anthropology examination on human

 5     remains from Eastern Bosnia 1999, and it's dated December 8 of 1999, and

 6     I believe you discuss this report in your Krstic testimony?

 7        A.   Yes, I did.

 8        Q.   And I understand that it has two addenda that should be read

 9     together with that report?

10        A.   Yes, that is correct.

11        Q.   And first of all, did you draft this report?

12        A.   Yes.

13             MS. LEE:  And may I please have 65 ter number 04497.

14        Q.   Do you recognise this document, Mr. Baraybar?

15        A.   Yes, I do.

16        Q.   And is this the addendum that should be read with the report that

17     we just saw?

18        A.   Yes.

19             MS. LEE:  May I please have 65 ter number 04498.

20             THE INTERPRETER:  The speakers are kindly asked to pause between

21     question and answer for the interpretation.  Thank you.

22             MS. LEE:

23        Q.   Do you recognise this document, Mr. Baraybar?

24        A.   Yes, I do.

25        Q.   And is this a revised graph that should be read with the report

Page 16011

 1     that we just saw?

 2        A.   Yes.

 3             MS. LEE:  Your Honours, I would like to tender these reports, the

 4     original report, 65 ter number 04499, along with the two addenda, 04497

 5     and 04498 into evidence.

 6             MR. STOJANOVIC: [Interpretation] No objection to the admission.

 7             JUDGE ORIE:  Mr. Registrar, 04499 would receive?

 8             THE REGISTRAR:  Exhibit P2083, Your Honours.

 9             JUDGE ORIE:  P2083 is admitted.

10             04497.

11             THE REGISTRAR:  Exhibit P2084.

12             JUDGE ORIE:  P2084 is admitted.

13             04498.

14             THE REGISTRAR:  Exhibit P2085.

15             JUDGE ORIE:  P2085 is admitted into evidence.

16             MS. LEE:  May I please have 65 ter number 04500.

17        Q.   Mr. Baraybar, do you recognise the document before you?

18        A.   Yes.

19        Q.   And I believe this is the report that you testified about during

20     your Krstic case -- during your testimony in the Krstic case?

21        A.   Yes.

22             MS. LEE:  Your Honours, I would like to tender this document as

23     the next exhibit.

24             JUDGE ORIE:  No objections.  I do understand 04500 would receive,

25     Mr. Registrar, number?

Page 16012

 1             THE REGISTRAR:  Exhibit P2086, Your Honours.

 2             JUDGE ORIE:  P2086 is admitted.

 3             MS. LEE:  May I please have 65 ter number 04947.  And could the

 4     witness have the assistance?  He will be using the smart screen.

 5        Q.   Mr. Baraybar, in this report and during your testimony in the

 6     Krstic case, you referred to mass graves in the Nova Kasaba area.

 7        A.   Yes, I did.

 8        Q.   And you see annotation NK-4, 6, 7 and 8.  But you also talk about

 9     Nova Kasaba 5.  Do you -- do you see the location of Nova Kasaba 5?

10        A.   Yes, I do.

11        Q.   Could you please mark that area?

12        A.   [Marks]

13        Q.   And could you please put NK-5 beside it?

14        A.   [Marks]

15        Q.   Thank you.

16             MS. LEE:  May I please tender this document?

17             JUDGE ORIE:  No objections.

18             Aerial photograph marked by the witness would receive,

19     Mr. Registrar?

20             THE REGISTRAR:  Exhibit P2087.

21             JUDGE ORIE:  P2087 is admitted into evidence.

22             MS. LEE:  May I please have 65 ter number 04501.

23        Q.   Mr. Baraybar, do you recognise this document?  It's not -- the

24     English version is not on the screen yet.

25        A.   Yes, I do.

Page 16013

 1        Q.   And may I please tender this document?

 2             JUDGE FLUEGGE:  I see now the right B/C/S version is on the

 3     screen.  That was still another one --

 4             MS. LEE:  [Overlapping speakers].

 5             JUDGE FLUEGGE:  -- and now it's corrected.

 6             JUDGE ORIE:  Yes.  Report on the anthropological examination of

 7     human remains from Eastern Bosnia in 2000 dated the 2nd of February,

 8     2001, receives, Mr. Registrar, number?

 9             THE REGISTRAR:  Exhibit P2088, Your Honours.

10             JUDGE ORIE:  And is admitted into evidence.

11             MS. LEE:  Thank you, Your Honour.  May I please have the next

12     document, 05344?  And it is a report on excavations at Glogova 2 in

13     Bosnia-Herzegovina from 1999 to 2001.

14        Q.   Mr. Baraybar, do you recognise this document?

15        A.   Yes, I do.

16        Q.   And did you -- were you present during the excavation of the

17     Glogova 2 site?

18        A.   Yes, I was.

19        Q.   And do you recall the number of minimal -- minimum number of

20     individuals found at that site?

21        A.   If I read the report, I would.  I mean, not by heart.  But, yes.

22             MS. LEE:  I would tender this document.  I would -- into

23     evidence.

24             JUDGE ORIE:  Yes.  I'm a bit puzzled why you asked the number

25     which then turned out to be -- we find it in the report.

Page 16014

 1             MS. LEE:  In the report.

 2             JUDGE ORIE:  And that's, Mr. Registrar, 05344 would receive

 3     number?

 4             THE REGISTRAR:  Exhibit P2089, Your Honours.

 5             JUDGE ORIE:  P2089 is admitted.

 6             MS. LEE:  May I please have 65 ter number 05345.  And this is a

 7     report on excavation site Zeleni Jadar 6 in Bosnia-Herzegovina in 2001.

 8        Q.   Mr. Baraybar, do you recognise this document as a report that you

 9     drafted?

10        A.   Yes, I do.

11             MS. LEE:  May I please tender this document as the next exhibit?

12             JUDGE ORIE:  No objections.

13             05345 receives, Mr. Registrar, number?

14             THE REGISTRAR:  Exhibit P2090, Your Honours.

15             JUDGE ORIE:  P2090 is admitted.

16             MS. LEE:  May I please have 65 ter number 05346.  This is a

17     calculation of the minimal number of individuals exhumed by the ICTY

18     between 1996 and 2001 and it's dated January of 2004.

19        Q.   Mr. Baraybar, do you recognise this document?

20        A.   Yes, I do.

21        Q.   And this report -- in this report, you use a new terminology.

22     You use a term that's called the minimum minimal number of individuals

23     exhumed by the ICTY forensic team.  Can you briefly explain to us the

24     difference between the minimum number of individuals and the minimum

25     minimal number of individuals?

Page 16015

 1        A.   Sure.  Let me start from the beginning.  Whenever you -- whenever

 2     you exhume a grave with people inside, the logical way to account for the

 3     number of bodies in a grave would be a head count typically.  But what

 4     would happen if you do not have complete bodies but bits and pieces of

 5     people?  Then things would be slightly more complicated.  You may be

 6     counting the heads but perhaps the legs will be more common than the

 7     heads.  So you have to find another way.

 8             The other way is called the minimal number of individuals, also

 9     known as MNI.  And this means from whatever has been found, how many

10     people at least represented.  So let's take an example.  Imagine that a

11     human skeleton contains 206 bones and if you have a body that is decayed

12     and is cut into pieces, so you will have plenty of possibilities to count

13     elements.  So what you have to do is to choose one of a pair, if you got

14     two legs, you will choose the right or the left, or single bones are not

15     duplicated, for example, the first cervical vertebra, there is only one

16     in each individual and you will count it.  Based on that, you will

17     basically count the most popular bone of that kind.  As a matter of fact,

18     you will count all the bones, I will define which one is the most common,

19     and that will be your minimal number of individuals for that site.

20             But just let's add another layer of confusion that actually

21     happens in reality.  We have been assuming that I can count the most

22     popular bone or element in that assemblage, but that is that we are

23     assuming that all individuals are of the same age, so if I have 25

24     adults, I may count 25 right legs and I will know that at least I have 25

25     people.  But what happened if to those 25 I have to add children of

Page 16016

 1     different ages that may not be represented by those right legs?  What

 2     about if the children between 0 and 3 years are represented by a left

 3     arm, and those coming after that are represented by a left leg?  So I

 4     cannot simply use in that case the right leg because I will be

 5     misrepresenting or excluding people that exist, that I can see, so I will

 6     need to combine.

 7             So this minimal number of individuals will become slightly more

 8     complicated because I will need to count the right legs of the adults,

 9     the left leg of the children, and whatever arms of the other children as

10     well, and the addition of those three criteria will give me still a

11     number.  That will be the minimal number of individuals found in that

12     grave, in that specific grave.

13             Now, what actually happened when we calculated this minimal

14     minimum number, that is pretty much a play with words because there isn't

15     a term for that, would be how to merge into a single number all the

16     bodies that the Tribunal was excavating from 1996 to 2001.  The minimal

17     number of individuals per site was not necessarily the same for all the

18     cases.  In one site I would have legs, in another one I would have arms,

19     so I cannot simply just add the numbers obtained for each of the sites

20     because I will have an overrepresentation of bodies.

21             So in order to be very conservative it is better to do an

22     underestimate rather than an overestimate.  So we have to find the common

23     body part to all sites and to use the same one per age and add it

24     together.  And based on that we got a figure of 2.541 individuals

25     represented by all those sites, that is at least 2.541, at least.  So it

Page 16017

 1     is a very low number because if I add them -- add all the minimal number

 2     of individuals I would have over 3.000 people, but that would not be

 3     correct because I would know I would be swelling up the numbers.  So we

 4     have erred on the side of being conservative rather than overestimating.

 5     Would that be clear, Ms. Lee?

 6        Q.   Yes.  Thank you, Witness.

 7             MS. LEE:  May I please tender this document 65 ter number 05346

 8     into evidence?

 9             JUDGE ORIE:  No objections.

10             Mr. Registrar, the number will be?

11             THE REGISTRAR:  Exhibit P2091, Your Honours.

12             JUDGE ORIE:  P2091 is admitted into evidence.

13             Could I ask one question in relation to this.  You divided the

14     bodies you found in age groups.  Let's just assume that in one age group

15     the left leg is the most common one which you used.  Whereas for the next

16     age group it would be the right.  Now, how precise is your determination

17     of the age group?  Is it possible, well, let's say that for someone of 25

18     years, whether that will be 24 and a half or 25 and a half, that you

19     nevertheless would have a double representation once the leg defined as

20     belonging to the category 25 and over and their right leg and the other

21     leg, the left leg, estimated as to belong to the group of up to 25 years,

22     and that left leg being counted as well?

23             THE WITNESS:  Extremely good point and the answer is yes.

24     Remember that age estimation is most accurate when you have a complete

25     body because you're not looking at one single, I mean, segment of the

Page 16018

 1     body.  For example, if I had a complete body, I would be combining

 2     different indicators that are found in different parts of the body, but

 3     if I have a leg I'm very limited to how much I can say about that leg.  I

 4     can say, well, it is an adult that is why the plus 25 category.  I do not

 5     know if this person is 27, 28 and a half, or 45.  It is impossible to

 6     say.  Obviously by looking at it we could go into other type of

 7     techniques that could be used but that have a number of problems as well,

 8     but that is not the case at the moment.

 9             So it is definitely true that there can be an overlap between age

10     categories and that is a total fact and that is why our calculations are

11     so conservative, but so conservative taking into account that we have

12     that possibility of, I mean, double counting, so in order not to double

13     count we rather say we will exclude -- for example, we have two sites.

14     In one site - I don't know - the left leg is more popular and the other

15     one -- is that the right leg is more popular, we would use still the left

16     leg of the other site; that is, undercounting a number of people in order

17     not to overcount because the problem you pointed out is a fact.

18             JUDGE ORIE:  Yes.  And you say that's limited to one site where

19     this can happen but is then eliminated --

20             THE WITNESS:  Exactly.

21             JUDGE ORIE:  -- by using this same common feature for all sites

22     together.

23             THE WITNESS:  That is correct, Your Honour, yes.

24             JUDGE ORIE:  But did I understand you well that you would still

25     work on the basis of age groups.

Page 16019

 1             THE WITNESS:  Yes.

 2             JUDGE ORIE:  So for all the sites possibly for 25 and older,

 3     using the left leg and for up to 25 using the right leg, which would then

 4     still have not eliminated perfectly the possible overlap between the age

 5     groups?

 6             THE WITNESS:  Yes and no.  Let me just be precise here.  Age

 7     estimation of younger people, meaning below age 25, is much more precise

 8     than age determination on the group 25 and plus because since young

 9     people is -- I mean are growing, you have a number of elements that you

10     can still distinguish.  So it is less likely that we have overlap or

11     overcounting on younger people than on older people.  Older people would

12     be a much more generic group in which case the correction comes from

13     excluding the most popular -- I mean elements per site.  I do not believe

14     we have much overlap on the younger ages because they can be separated

15     much more clearly, you know.  In the older ones there could be, but

16     I mean we are excluding by using the same common denominator to all the

17     sites.

18             JUDGE ORIE:  Yes.  But there still is a small risk that you have

19     qualified one left bone as under 25 --

20             THE WITNESS:  Yes.

21             JUDGE ORIE:  -- perhaps 24 and a half, and the -- another leg be

22     qualified as 25 and older.

23             THE WITNESS:  Totally.  I mean, we admit -- we admit -- I mean,

24     this is not a perfect -- that was not the perfect conditions, I mean, to

25     work because of the level of fragmentation of the remains, and age

Page 16020

 1     estimation certainly is better done when you have multiple indicators

 2     than you have one single indicator, and finally we got also biological

 3     variation meaning that within a normal range or known range we got

 4     somebody maturing earlier, maturing later.  There could be one individual

 5     within a population so it is true, yes.

 6             JUDGE ORIE:  Thank you for those answers.

 7             Ms. Lee.

 8             MS. LEE:  May I please have 65 ter number 11016, and this is a

 9     preliminary report on the anthropology examination of human remains from

10     the graves at Kevljani in Western Bosnia, and it is dated 8 December

11     1999.

12        Q.   And Mr. Baraybar, do you recognise this document as one that you

13     drafted?

14        A.   Yes, I do.

15             MS. LEE:  And may I also please have 65 ter number 11017.

16        Q.   And this is a summary of findings at the secondary mass

17     grave-site of Jakarina Kosa in Western Bosnia, and it is dated the 12th

18     of June, 2002.  Mr. Baraybar, do you recognise this document as one that

19     you drafted?

20        A.   Yes, I do.

21             MS. LEE:  Your Honours, I would like to tender these both

22     documents 11016 and 11017 into evidence.

23             JUDGE ORIE:  I see that there are no objections.

24             Mr. Registrar, 65 ter 11016.

25             THE REGISTRAR:  Will be Exhibit P2092, Your Honours.

Page 16021

 1             JUDGE ORIE:  And is admitted.

 2             65 ter 11017.

 3             THE REGISTRAR:  Will be Exhibit P2093.

 4             JUDGE ORIE:  P2093 is admitted into evidence.

 5             MS. LEE:

 6        Q.   Mr. Baraybar, we have looked at several reports today.  Do you

 7     stand by the analysis and conclusion of all of these reports today?

 8        A.   Yes, I do.

 9        Q.   And was the same methodology used in calculating the minimal

10     number of individuals, minimum minimal number of individuals, and in

11     determining the sex and age of the bones in all of these reports?

12        A.   Yes.

13        Q.   And from your examination of human remains, bodies in Bosnia,

14     were you able to determine the time of death of the victims?  Just

15     looking at the bones.

16        A.   No.  The time of death -- or rather than the time, the date of

17     death was not determined on a cursory look at the remains.

18        Q.   And what were they determined -- what were the factors that would

19     determine them?

20        A.   We have an indirect way of dating death based on indicators found

21     in the graves or on the bodies such as ID cards with names on it, they

22     were in turn checked with the International Committee of the Red Cross

23     book on the missing that determined that that person would have been last

24     seen at a specific date.  In addition to that, the way all the documents

25     such as ICRC letters, and in one case, as far as I remember, an ID card

Page 16022

 1     from the Dutch Battalion with a laundry -- identification of somebody as

 2     working in the laundry of the Dutch Battalion.  So there were a number of

 3     elements associated to the remains that could tell us about dates, more

 4     than time, of course, I mean dates.

 5             MS. LEE:  Your Honours, I see that it is past the time for a

 6     break.  I have very -- two very brief questions.

 7             JUDGE ORIE:  Well, we are not there yet because we have sessions

 8     of one hour and we started late at 10.00.

 9             MS. LEE:  Okay.  Then I have -- I'm almost done.  I have few

10     brief questions, if I may put them.

11             JUDGE ORIE:  Yes.

12             MS. LEE:

13        Q.   Mr. Baraybar, at the time of your work on the Srebrenica-related

14     graves and the non-Srebrenica-related graves, was it possible to conduct

15     a high volume of DNA analysis to identify the individuals?

16        A.   Not really.  In those dates, I mean, I wouldn't say DNA was at

17     its infancy compared to what DNA or the use of DNA is now, but obviously

18     no.  Much progress has been done on -- on DNA testing very much in the

19     last few years.  In those days it was not possible.

20        Q.   And my final question to you is, then:  The anthropological

21     analysis of remains or the anthropological calculation of the minimum

22     number of individuals or the minimum minimal number of individuals, were

23     they -- are they still relevant in light of the DNA technology today?

24        A.   Most definitely.  Do remember DNA is - what would be the way to

25     call it? - an additional or complementary technique that will be applied

Page 16023

 1     on the remains that will be used to calculate the minimal number of

 2     individuals, such as in this case.  Just to clarify that, let's go back

 3     to the example I explained previously.  We have a grave and we got lots

 4     of remains that are totally fragmented and we may have 50 right legs.  My

 5     first idea would be to do DNA testing on those 50 right legs, so I will

 6     take a piece of each of them, pretty much as in a plane crash, for

 7     example, to establish that I got 50 DNA profiles with a specific sex as

 8     well, because as you do know now, unlike in previous occasions, the kits

 9     for DNA, to call them simply, contain a sex marker, amelogenin, the sex

10     marker, and it will tell you whether it's an XX or an XY - a female or a

11     male.  So at least you know I have, I don't know, 49 males and one

12     female.  That is your base line.  You will start working from then on.

13             Another matter would be to reassociate the fragments, so you may

14     say I do have at least 50 people, now the issue will be to reassociate

15     the 50 and maybe I will find number 51, 52, 53 based on other fragments

16     because the body, whatever, exploded or was burned beyond recognition or

17     there were children and most of the bones burned down, and I will extract

18     DNA from other bits and pieces.

19             But definitely it's a complement.  So the calculation of minimal

20     number of individuals is totally -- it's a basic step, it's your first,

21     I mean, step in any investigation of this nature.  With or without DNA.

22             MS. LEE:  This concludes my examination, Your Honours.

23             JUDGE ORIE:  Thank you, Ms. Lee.

24             Mr. Stojanovic, are you ready to cross-examine the witness?

25             MR. STOJANOVIC: [Interpretation] Yes, Your Honour.

Page 16024

 1             JUDGE ORIE:  Mr. Baraybar, you'll now be cross-examined by

 2     Mr. Stojanovic.  Mr. Stojanovic is counsel for Mr. Mladic.  You'll find

 3     him to your left.

 4             You may proceed, Mr. Stojanovic.

 5                           Cross-examination by Mr. Stojanovic:

 6        Q.   [Interpretation] Good morning, Professor.

 7        A.   Good morning.

 8        Q.   I will go back to the last questions, trying to gain an

 9     explanation from you.  The first thing I wanted to ask you is the

10     methodology of calculation of MNI, of minimum number of individuals --

11             JUDGE ORIE:  There seems to be a problem with the audio.

12             THE WITNESS:  [Overlapping speakers] Can you increase the volume

13     of this?  Thank you very much.  Thank you.

14             MR. STOJANOVIC:  [Interpretation]

15        Q.   I'll repeat my question.

16             JUDGE ORIE:  Were you able to follow what Mr. Stojanovic said

17     until now, Mr. Baraybar?

18             THE WITNESS:  Yes.

19             JUDGE ORIE:  Yes.

20             So you may then continue, Mr. Stojanovic.

21             MR. STOJANOVIC: [Interpretation]

22        Q.   Doctor, the methodology you relied on to calculate the minimum

23     number of individuals which you have discussed a moment ago is a

24     generally accepted method, or did you adopt that method in the course of

25     your work carried out for the ICTY?

Page 16025

 1        A.   It is -- it is a common or commonly accepted methodology.  The

 2     specifics of the recording of all these body parts was obviously adapted

 3     to the type of case we were working.  So the methodology as a whole is

 4     totally standard.  The specifics of how you were encoding this or that

 5     and the type of forms you used were adapted to the case.

 6        Q.   The methodology of calculation, as you present it here, of

 7     calculating the minimum number of individuals, is it a scientifically

 8     accepted method or was it something that you derived in the course of

 9     your work for the ICTY due to the specificities of the cases you

10     encountered in the field?

11        A.   It is scientifically accepted.  As I just repeat this to be very

12     clear.  The scientific method has been applied to all these calculations

13     and therefore it is scientifically accepted.  The specificity of

14     recording is adapted to this but yet again following a scientific method.

15     So the answer is yes, it is scientifically accepted.

16        Q.   Between 1996 and 1999, were you conducting your work under the

17     supervision of Dr. Wright and Dr. Haglund?  Am I correct in assuming

18     that?

19        A.   In 1996, I was working with Dr. Haglund, yes, and under

20     supervision of Dr. Haglund in 1996, yes.  After 1996 it depend pretty

21     much because when I was in the field I was under Dr. Wright, and when

22     I was in the morgue I was working with the chief pathologist as the chief

23     anthropologist.

24        Q.   Were there any discussions and different approaches with regard

25     to the method that was applied by Dr. Haglund, Dr. Wright, or other

Page 16026

 1     members of the team?

 2        A.   There was always discussions.  One of the most important things

 3     when looking back at those years is that there was a possibility of

 4     actually discussing and putting forward opinions and different

 5     experiences.  Do remember that the teams were multi-national so there

 6     were people coming from other parts of the world with other experiences,

 7     and all the time there were discussions in that respect on how best to do

 8     things.  Having said that, the final word was in the hand of the person

 9     who directed, I mean, the exhumation, be Professor Wright or Dr. Haglund

10     at that time.

11        Q.   Did Dr. Haglund exhibit any lack of understanding in that regard

12     concerning the methodology you've discussed today?

13        A.   Well, he had ideas regarding how to do things best.  I would

14     be -- I would say that, as the most important thing.  As I said, every

15     person has their own prerogatives.  I mean, when I was in charge of an

16     exhumation I had my own prerogative irrespective of what other people may

17     think, so perhaps some people could think I was doing things in the wrong

18     way but yet again I took my risk of doing them in that way because

19     I thought I was right.  So in that respect I would say that everybody

20     has, I mean, their own ideas of how to do things.

21        Q.   Such differences between your approach and that of

22     Professor Haglund is something that I wanted to ask you further.  Did it

23     have any impact on the final outcome of choice of method in terms of

24     calculating the minimum number of individuals and the lowest possible

25     number of individuals?

Page 16027

 1        A.   No, it didn't.

 2        Q.   Doctor, in terms of the methodology you applied to ascertain the

 3     age of the bodies, were there also different approaches or positions

 4     taken by you and Dr. Haglund?

 5        A.   Well, if I can recall, and I'm using only my memory here, in

 6     1996, the -- there was a less standardised way of estimating age and

 7     grouping individuals into age classes.  From 1997 onwards, and you have

 8     seen that on the various reports, we were using either four or three age

 9     groups to cluster people in.

10             I -- as far as I recall in 1996, there was less of a grouping,

11     and people were more, let's say, free to provide individual age

12     intervals.  So, for example, let me just explain this.  While after 1997

13     we cluster individual examinations of bodies into groups, in 1996 there

14     was no such grouping.  So, for example, you say you got people between, I

15     don't know, 13 and 16, and you got people from 15 to 18, and so on rather

16     than saying this group of people would belong to the group 13 to 24, for

17     example.  But it's just a matter of order, of the way the data was

18     arranged so, from 1997 onwards there was much more of a standard

19     operating procedure, if you wish, in the way we reported the cases, also

20     for those reading these reports, such as yourselves, as to be able to

21     find information more quickly.  In 1996 it was less order in that

22     respect.  It doesn't mean that it was badly done.  It is just -- it means

23     that it was a different way of doing things and there was no perspective

24     of what would come in the future of course.  I mean, there will be so

25     many sites being dug up and so on.

Page 16028

 1             JUDGE ORIE:  I'm looking at the clock, Mr. Stojanovic.  I think

 2     it would be time for a break.

 3             Could the witness be escorted out of the courtroom?  We take a

 4     break of 20 minutes, Mr. Baraybar.

 5             THE WITNESS:  Thank you.

 6                           [The witness stands down]

 7             JUDGE ORIE:  Mr. McCloskey, you're on your feet.

 8             MR. McCLOSKEY:  Thank you, Mr. President, good morning.  If

 9     I could take an advantage of the interpreters briefly, Mr. Butler is

10     ready but based on the time estimate, we shouldn't get to him today, and

11     I don't -- so if we could -- if I could confirm with Mr. Stojanovic that

12     we can give Mr. Butler a firm date for tomorrow, that would be very

13     helpful.

14             JUDGE ORIE:  Yes.  Apart from that, I do understand that

15     Mr. Ivetic will cross-examine Mr. Butler and Mr. Ivetic will not arrive

16     until tomorrow morning, is that well understood, Mr. Stojanovic?

17             MR. STOJANOVIC: [Interpretation] Yes, that is correct, Your

18     Honour.  I will do my best to conclude with Mr. Baraybar today so that we

19     can start with Mr. Butler tomorrow.

20             JUDGE ORIE:  Yes.  If Mr. Butler would be on stand-by tomorrow

21     morning, that would be okay.

22             We take a break and we resume at 25 minutes past 11.00.

23                           --- Recess taken at 11.02 a.m.

24                           --- On resuming at 11.26 a.m.

25             JUDGE ORIE:  Could the witness be escorted into the courtroom.

Page 16029

 1                           [The witness takes the stand]

 2             JUDGE ORIE:  Please be seated.

 3             Mr. Stojanovic, you may continue.

 4             MR. STOJANOVIC: [Interpretation]

 5        Q.   Doctor, we were discussing the method applied to determining the

 6     age of bodies.  You told us that another age cluster or group was

 7     introduced in the reports following 1996.  I wanted to ask you who it was

 8     that decided for an additional age group to be introduced in your tables

 9     in the reports?

10        A.   Do remember that every individual, every set of remains that were

11     ever analysed, be it 1996 or any other year afterwards, has its own age

12     estimate.  So you will prepare an age estimate for the remains you are

13     analysing.  After 1996, so beginning in 1997, for the sake of clarity for

14     the Court, we clustered all those individual ages into age groups.

15             So let's just distinguish the two things.  I mean, one thing is

16     individual age estimation on the remains, and something else is the way

17     in which we presented information.  So from 1997 onwards, it was my

18     responsibility to present the reports with clustering of ages.  It's just

19     a matter of classification.  So it's not something that is new, it's just

20     the way in which information was presented.

21        Q.   That extra information, in terms of age, did it in any way

22     correspond to the indictments which included boys and adults?  Did such a

23     change in methodology have anything to do with the texts of indictments

24     in the Krstic or any other case?

25        A.   To tell you the truth, at the time, I hadn't read indictment so

Page 16030

 1     the answer is no.  I mean, most definitely not.  The cluster of ages has

 2     a logic within itself, and the logic is on the transition between boys or

 3     girls for that matter, I mean, young individuals from eight years of age

 4     up to age 12 or 13, then prepuberal, prepuberal individuals, meaning up

 5     to age more or less 15, and then teenagers as such, and then adults, that

 6     it would be a logical classification of that, that has nothing to do with

 7     any, I mean, indictment.  I would do that in this case or any other case.

 8     It's just a biological transition so to speak.

 9        Q.   Thank you.  I would also like to ask you about the methodological

10     approach you advocated in terms of defining the term "complete body."

11     What in your view is the benchmark, the standard to be applied in that

12     definition of a complete body?

13        A.   I have to say that there was a debate regarding that and it is a

14     very good question.  In my opinion, a complete body would be at least one

15     that had the head, had the thorax or the torso, and the legs.  This body

16     may be missing, for example, hands and feet may be missing, lower legs,

17     and forearms, but the rest of it should be there to call it a complete

18     body.  Also because on such a quote/unquote complete body, you would be

19     able to use multiple elements to estimate the age of the person.  So, for

20     example, it is highly unlikely you would be using the hands or the feet

21     to estimate age according to the protocols that have been presented in

22     the -- in the report, so at least you need the bulk of the body for it to

23     be called a complete body.

24        Q.   Was a uniform methodology adopted in defining complete bodies by

25     those who worked on the exhumations between 1996 and 2001?

Page 16031

 1        A.   I would say that from 1997 onwards, there was a uniform or

 2     uniform criteria for the determination of a complete and incomplete

 3     bodies.  In 1996 we are still working the making, so to speak.  Do

 4     remember that was the first time in 1996 we were dealing with highly

 5     fragmented remains.  Therefore, there was a bit of discussion regarding

 6     what would be a complete body or what would be a body part.  But

 7     obviously body parts primarily refer to a leg, a foot, I mean, half a --

 8     half a body, or things of the kind.

 9        Q.   Before we move to the reports themselves, I wanted to ask you

10     this:  Having in mind your answer, Doctor, that to some extent you worked

11     as an anthropologist whilst in another part of the exhumations as an

12     archeologist, partly in the field as well as in the morgue as a

13     professional, as an expert, were you present during the exhumations at

14     Kasaba, Konjevic Polje, and Glogova?

15        A.   Yes, I was.  I mean, in the specific -- let's see, in 1996, do

16     remember there were some exhumations at Nova Kasaba and I was there, yes.

17     Then in 1999 if I'm not mistaken - but yet again I'm using my memory

18     here, not looking at the reports - there were the exhumations I conducted

19     at Nova Kasaba again as well as Konjevic Polje and Glogova, but remember

20     that Glogova, for example, has -- there is two Glogovas, 1 and 2.  So

21     Glogova 1, for example, I did not participate in that exhumation.  I did

22     actually on the other Glogovas that were across the road.

23        Q.   Did you take part in the analysis of the Ravnice 1 grave-site on

24     location?

25        A.   Hmm, that's a tricky question.  I do not recall.  I believe I did

Page 16032

 1     not participate in the Ravnice 1 grave-site analysis, but I may --

 2     I mean, I would need to check the documents, but I do not recall it

 3     frankly.  What year was that?  If you could be more precise with the year

 4     I could maybe tell you where I was then because I may have been at

 5     another site while the examination of the remains were taking place.

 6        Q.   According to the report that was produced, the exhumation or,

 7     rather, analysis of the grave-site took place in 2000, in the course of

 8     2000.  That's what I find in your report.  It was done on 2 February

 9     2001.

10        A.   Is the report signed by me?

11        Q.   I believe so, Professor.

12        A.   If it is signed by me, I did it.  But, I mean, since I don't have

13     it in front of me, I'm just using my memory here.  So if I signed it,

14     I did it of course.

15        Q.   My goal is not to have it verified and confirmed.  I believe

16     I would be able to locate that piece of information.  But let me be more

17     specific:  Can you recall which analyses of remains from primary and

18     secondary graves did you carry out in the morgue rather than in the

19     field?

20        A.   I would rather refer to the reports.  If you give me the chance

21     to look at the reports, I would be able to tell you.  But out of my own

22     memory, I mean, I couldn't answer that question.

23             JUDGE ORIE:  Mr. Stojanovic, the 2nd of February 2001 report,

24     I think, is in evidence as P2088.

25             MR. STOJANOVIC: [Interpretation] That's right, Your Honour.  And

Page 16033

 1     I will rely on the part referring to Ravnice, so we will deal with it

 2     that way.  There is no need for me to explore it further.

 3        Q.   Let me ask you about the two grave-sites in Western Bosnia,

 4     Kevljani and Jakarina Kosa.  Professor, do you recall having been present

 5     at the two locations?

 6        A.   Yes.  In the specific case of Kevljani, I was at the site perhaps

 7     during the first week of the exhumation.  Then when bodies became

 8     available, I moved with them to the mortuary and I remained there for the

 9     duration of the time.  And in the specific case of Jakarina Kosa,

10     Jakarina Kosa was a site, if I'm not mistaken - yet again I'm using my

11     memory here - that at the initial recovery of remains were started by the

12     Bosnian Commission on Missing Persons and then the Tribunal took over the

13     remains for them to be analysed.  And, yes, I -- I took over and I pretty

14     much conducted the analysis of those remains in Sanski Most.  So I was

15     present during the duration.  I did visit the site of Jakarina Kosa, so

16     I was shown the site where the remains were found by the investigators at

17     the time.

18        Q.   Tell me this, Professor:  Who specifically, according to the

19     distribution of work, and I refer primarily to Eastern Bosnia

20     exhumations, was in charge of securing the artefacts located in the

21     graves or extracted from the graves?

22        A.   Every team, be it field team or mortuary team, had a crime of

23     scene officer.  That was the person responsible for securing and

24     maintaining the chain of custody of artefacts that were found outside the

25     bodies, meaning in the grave fill.  So, for example, if in a grave you

Page 16034

 1     found a number of bodies, maybe you would find elements within the grave

 2     fill, I mean in the dirt, I mean the shell casings, an ID card or

 3     something, not necessarily related to a specific body.  In that case, we

 4     will request a number to that person and then a point would be taken to

 5     insert the location of that artifact within the map being prepared of the

 6     site.  Then a picture would be taken, and then it would be handed over,

 7     this artefact would be handed over to a scene-of-crime-officer who would

 8     seal it in a bag, log it in a form, and then put it in a secure box to be

 9     transported later on to the Tribunal in that respect.

10        Q.   Was a portion of those artefacts at some point destroyed as

11     unnecessary?

12        A.   That's something that should be asked to the evidence unit.

13     I mean, I -- I do not know how many artefacts were kept or destroyed

14     or -- or anything.  I mean, that escapes me.  That is nothing to do with

15     my responsibility, not at the time or later.

16        Q.   You did at no time make a decision or suggest which of the

17     artefacts was to be deemed unnecessary and thus destroyed; is that

18     correct?

19        A.   Well, let me expand in this answer to be very clear.  Let's start

20     with the exhumation.  At the exhumation site, you may find, for example,

21     a shell casing, that would be deemed necessary since there is a number of

22     things that can be done with a shell casing in terms of analysis.

23     However, you would find a plastic bottle of water that contained no

24     label, no brand, no evidentiary value in that respect, and those kind of

25     things could be discarded.  Or you would find, for example, a rusty can

Page 16035

 1     without any content, no label, whatsoever, so you would make just a note

 2     and you would just discard it.

 3             Now, once evidence was collected and was logged and stored, then

 4     it became the responsibility of the scene-of-crime officer and

 5     I personally or anybody else would have anything to say regarding what

 6     would happen to that evidence.  Now, the second part of the -- of the

 7     answer would be, and that's something I did not mention in the previous

 8     question, is that bodies or body parts sometimes were clothed, I mean

 9     they have clothes on them, and within the clothes you would find still a

10     number of artefacts, and those artefacts yet again will go through the

11     same process.  Meaning, they would be taken out of a pocket, for example,

12     indicating from where they came from, so, for example, the upper left

13     coat pocket, they would be photographed, they would be logged and stored.

14             But also, for example, you would find things such as a small

15     package with tobacco on it or an empty plastic bag, and those kind of

16     things would be discarded making a note, of course, saying we found an

17     empty bag in a pocket, but it has no evidentiary value.  But remember,

18     all decisions regarding evidence once it was in the hands of the evidence

19     custodian was the prerogative of them.  I mean, we had nothing to do

20     then.  We could only intervene at the recovery level.  Making always a

21     note, I mean not just simply discarding things but just saying I found a

22     plastic bottle that says nothing so we will discard it.  That's pretty

23     much it.

24        Q.   I'm asking you this because I would like to complete this topic.

25     Did you ever hear objections voiced by many victims associations with

Page 16036

 1     regard to the fact that many of the artefacts that had been discovered in

 2     those graves had in the meantime been destroyed?  Have you heard any such

 3     objections with regard to your work?

 4        A.   Well, I haven't, and as a matter of fact the only allegation that

 5     comes to my memory is not related to this case, not to a case being dealt

 6     with formally by the Tribunal, and it regards actually an investigation

 7     in Albania we carried out while heading the office of missing persons

 8     regarding some medical elements or medicines that were found on a site in

 9     Albania that were then destroyed.  I mean, as far as I know that was all

10     over the press at some point in time.  That is what I do know.  But

11     I mean regarding this other case or this specific case, I haven't heard

12     about it.  Also I confess that I have not been following the news very

13     carefully to see what allegations were made.

14        Q.   Thank you, Professor.  Let's look at P2086.  I'm interested in

15     page 3, both in English and B/C/S.  Professor, this is your report.  If

16     the Prosecutor agrees, I don't have a problem if you want to look at it

17     in the hard copy because I know that you have it with you.  So this is

18     your report from August and October 1999.  This has already been

19     admitted.  Please help us and explain some things for the benefit of the

20     Trial Chamber, and we are talking about Nova Kasaba 4.

21             I hope you were able to locate the page.  We are still talking

22     about the methodology with regard to determining the age of the bodies

23     that were exhumed.  Can we continue, Professor?  Are you okay?

24             In paragraph 2 --

25             MR. STOJANOVIC: [Interpretation] Which would be, Your Honours,

Page 16037

 1     Nova Kasaba 4, the second paragraph from the bottom, both in English and

 2     B/C/S.

 3        Q.   In that paragraph, you say that the bodies of 19 adult males were

 4     found in the grave, two of them had a mean age of 17 years at the time of

 5     death.  Now, we are talking about two bodies with the average age of 17.

 6     Could one then say that one of them was 14 and that the other one was 20?

 7     Could you please try and explain, based on the methodology that you used

 8     and that you have already addressed during your testimony?

 9        A.   I believe that it is much more a matter of the way it is written.

10     I mean, the report has been written in a manner to make it easy to

11     understand.  The specific ages would need to be traced back to the

12     specific forms, autopsy forms of each one of the cases to see what was

13     the specific age range given to them.  Obviously, it would be too

14     cumbersome to include information of that kind into a report like this

15     one, but it is just a matter of form more than of content, I would say.

16        Q.   However, was the age of those individuals determined

17     individually?  How did you arrive at that mean age?  If I look at the

18     method that you used when it comes to determining the age, and I'm

19     referring to the table that we subsequently received, and there are age

20     groups, there is an age group distribution there.

21        A.   Okay.  Let's just be more detailed regarding this.  Whenever you

22     estimate age on a set of remains, whether they be complete or incomplete,

23     you would have an interval between two numbers, a range, okay?  Because

24     we estimate biological age, not chronological age.  I mean, all of us

25     have a chronological age since we were born on a specific date, and if

Page 16038

 1     you have an ID card you would say you're 48 or almost 49 years or

 2     whatever or 48 and 11 months.  But when you have remains, you have to

 3     establish two parameters, so saying this person cannot be younger than so

 4     much nor older than so much.  And between these two numbers you can

 5     establish the mean, an arithmetic mean, and say, for example, you are 17

 6     years of age plus/minus, right, a given amount to tell you you are, for

 7     example, between, I don't know, 14 and 20.  Your mean would be 17.  But

 8     it means in reality that you could be 14, 15, 16, 17, 18, 19, 20.  That

 9     is -- that is the way it is -- it is done.

10             So, yes, every individual has been aged individually, if even I'm

11     being redundant here, but then when reporting the ages as a whole, as a

12     group, we have been placing those individual ages into groups just to

13     simplify reading or understanding the distribution of the ages.  But, for

14     example, let's assume that this clustering or distribution of ages, it is

15     complicated to understand, we do not like it or whatever, we can always

16     refer back to the specific autopsy reports.  The problem is if I reported

17     that in such a way, it would be impossible to read.  It would say, for

18     example, we found 19 people.  Individual number 1 was between 14 and 20.

19     Individual number 2 was between 15 and 23.  Individual number 3 and so

20     on.  So it would be very cumbersome to read.

21             So it's two different things:  One is the individual assessment

22     of age that exists for every single case we have done from 1996 onwards,

23     and the way you use that estimate to present it in a cluster.  They are

24     two different things.

25             So to answer your question, yes, the age has been estimated

Page 16039

 1     individually.  The way it has been reported on the reports is different

 2     but that's just a matter of -- of presentation, not of content.  I don't

 3     know if I have explained myself, Counsellor.

 4        Q.   Thank you.  Just for my benefit, can you expand on the table?

 5     When it comes to such an approach in the method of entering data into the

 6     tables, was that approach generally accepted?  Or let me put it the other

 7     way:  There are tables where we find the remains of the bodies of 12 year

 8     old boys.  Would it be possible for such tables to contain data on the

 9     bodies of individuals aged 12 and aged 20, for example, so they do not

10     fit into the mean that you presented in your report separately?

11        A.   Actually, no.  All it means is that the category, for example,

12     between 8 and 12, it means that the person most definitely is not younger

13     than eight, okay?  However, it is very possible that somebody that was

14     classified in the next category, okay?  13 to 17 or 15 or whatever, could

15     be part of this younger age and vice versa.  Having said that, there is

16     another -- another element that is very important.  The age categories to

17     cluster individuals in these groups, okay, have been defined using some

18     specific markers, meaning, for example, in the category 8 to 12, the

19     pelvis, the pelvic bones, were still separated into pieces meaning they

20     have not fused, and we know that it is normal that across populations,

21     about -- about age 12, they are fused.  But if you find it in two pieces,

22     you knew that this person was not 12 because normally it is typical that

23     somebody who is much younger than 12 would have these pieces separated.

24     By the same token, we could say, for example, that if the second molar

25     bone, you know that adults have three molar bone, the second molar bones,

Page 16040

 1     if you look at the crown of the -- of the tooth, the crown was completed

 2     by the root because you know that teeth grow from above to below.  First

 3     you have the crown and then you have the root.  It is in reverse of what

 4     we really think.  I mean it's not coming from below to above but above to

 5     below.

 6             So when you have the root, for example, to one-quarter, if you

 7     get one-quarter of the root, you do know that this person is about, yet

 8     again, 12 years of age.  But if the root would be, let's say, smaller,

 9     and in addition to that, if the case is complete, you would have the

10     pelvic bone in two pieces, you would know this person is not 12.  It is

11     younger than 12.  So yet again, every -- every age cluster or group is

12     categorised by markers.

13             So it was not only an issue of saying I have this individual here

14     between whatever, 9 and 12, and then because I want so I will put it into

15     the category 8 to 12.  I would need to check as well that that age

16     estimation is in accordance --

17        Q.   Professor, please.  I apologise for interrupting.  I'm -- it may

18     be my mistake for asking such complicated questions, but let's finish

19     this.  In this report you say that there were two bodies in Nova Kasaba 4

20     grave whose mean age is 17.  Would I be right or would you be right to

21     say that these two bodies belonged to individuals who were aged between

22     12 and 20 because I am attaching that information to those age clusters

23     that you presented in your tables, i.e. it cannot happen that one body

24     from one age group entered that mean of 17 years of age, actually skipped

25     the table or went from one table group to another table group and found

Page 16041

 1     himself in a wrong table group, "yes" or "no"?

 2        A.   The possibility of classifying one individual that had the border

 3     or the transition between groups to one side or the other is always

 4     possible.  So the answer in that respect will be yes.  However, having

 5     said that, regard to your specific question that I'm reading here, you

 6     asked me whether these individuals that have a mean age of 17 could be in

 7     the range between 12 and 20, yes, they could, but to see that and to tell

 8     you yes to that, I would need to see the specific autopsy reports of

 9     those cases that I do not have in front of me.

10        Q.   Very well, Professor.  And now look at the last sentence on this

11     page.  According to the pathologists report, two of them died of multiple

12     gunshot wounds other than the dressed ones, whereas the cause of death

13     was not established for eight of them.  Within the context of this

14     report, what are firearms?  Are we talking about gunshot wounds, blast

15     wounds, wounds inflicted by explosives or mines, or are we talking only

16     about small weapons or infantry weapons?

17        A.   Okay.  Just to make sure that we are looking at the same page, if

18     it's Nova Kasaba 4, it says here:

19             "According to the pathologist's report, 11 died of gunshot wounds

20     while the cause of death of the eight others was unascertained."

21             You mentioned --

22             JUDGE FLUEGGE:  You should look at the last two lines.

23             THE WITNESS:  My apologies.  Right.  But that refers to something

24     very specific.  So let's see.  It refers to individuals that have

25     dressings.  It says here:

Page 16042

 1             "Three individuals showed dressings and a splint and may have

 2     been injured prior to the disposal to the grave because they had

 3     dressings," and normally would you dress a wound of somebody that was

 4     alive, I mean, in principle.  "According to the pathologist's report, two

 5     of them, two of the three that had dressings, died of multiple gunshot

 6     wounds other than the dressed ones."

 7             So I do recall, for example, there was one individual that have a

 8     dressing on the lower leg, if I'm not mistaken where there was a

 9     perforating -- or a through-and-through, rather, wound through the tibia

10     to the shin bone, but this person sustained gunshot injuries to the head

11     and the cause of death was determined as gunshot wound to the head.

12     Obviously it means that this person survived the injury to the lower leg

13     because it had a dressing and the death came after.  I mean, how long

14     after we do not know.  Obviously it was not years after because, I mean,

15     there was still a dressing.

16             When we refer to gunshot wounds, primarily most -- in most of the

17     cases with very few exceptions, and I cannot recall any exception at this

18     moment, when we refer to gunshot wounds they were caused primarily by the

19     same type of ammunition, and we found in many cases, I mean, the shells

20     and the -- and the bullets themselves that were 7.62 by 51 millimetres,

21     pretty much AK 47 family ammunition.  Whenever we found shrapnel, it was

22     indicated that the injuries were caused which shrapnel.  They were not

23     indicated as gunshot wounds.  So gunshot wounds primarily referred to

24     wounds caused by in this case by generally 7.62 by 51 millimetres

25     ammunition, so a rifle ammunition.

Page 16043

 1             MR. STOJANOVIC: [Interpretation]

 2        Q.   Thank you.  I was waiting for the interpretation to finish.

 3     I apologise.  Your answer to my question was only partial.  When you say

 4     in the report that the injuries were caused by firearms, that they were

 5     gunshot wounds, do you imply only infantry weapons or rifles or do you

 6     also imply other types of weaponry and artillery weapons?

 7        A.   Remember that in bones, the characteristics of gunshot wounds are

 8     very well known and there is a correlation that between certain calibres

 9     of weapon and the gunshot wounds in bone, okay, so you would have -- you

10     could classify roughly the relationship between the gunshot wound, I mean

11     the hole on the bone and the calibre of the weapon, into three groups.

12             Very low calibres, like 0.22, for example, that would leave a

13     very small hole, that would be similar, slightly below the 0.22 of an

14     inch in this case.  You got another group where you can classify handguns

15     of the group 0.38 and 9 millimetres that yet again will create a slightly

16     bigger hole, that it would be between 0.38 of an inch and 9 millimetres

17     approximately, and then you have also the group of the high velocity

18     rounds that yet again divides itself into two because you have the 5.56

19     and the 7.62 millimetres for those two.  But in those cases, it depends

20     pretty much to know whether the bullet entered in this case the bone

21     perpendicular, so to leave a round hole, or it entered in a different

22     way.

23             So, for example, we have a number of cases that we have reported,

24     as a matter of fact, where bullets entered the body sideways, and by

25     doing that they left a hole, they punched a hole that is the equivalent

Page 16044

 1     of the bullet on a side view.  So you could actually measure, I mean, a

 2     triangular hole and you could take the bullet and put it there and it is

 3     the same.  So in those cases you could say this individual was shot by a

 4     rifle or this individual was likely shot by a handgun.  So that is the

 5     way it has been done.

 6             Now, I wouldn't like to go into details of whether it's infantry

 7     ammunition or not because I mean I'm not a military expert on that

 8     respect, but whenever it was possible to say this individual was shot by

 9     a rifle or by a handgun, it was definitely said.  In the majority of

10     cases, the ammunition found in some cases under the body where people

11     were shot in the grave, for example, you have the body, you got, for

12     example, a gunshot wound to the head, and then you lifted the head and

13     underneath a bit of soil you could find a slug of the ammunition that

14     shot him was a rifle ammunition.

15        Q.   Thank you.  Taking into account your answer, and bearing in mind

16     that this is a pathologist's report, and I asked you about the places

17     that you were present at yourself and the others where you wrote reports

18     in the morgue, are you able to answer as to what weapons were used to

19     inflict those mortal wounds in these individuals?  Are you able to answer

20     that question or not?

21        A.   I -- I believe you refer to specific case Nova Kasaba.

22        Q.   Nova Kasaba 4.  Professor, I will go from one place to the next,

23     and we will deal about the very specific location of all the bullets.

24     When it comes to Kasaba 4, would it be correct that as an anthropologist

25     you cannot tell us what weapons were used to inflict mortal wounds in

Page 16045

 1     these 11 individuals, "yes" or "no"?

 2        A.   As I said before, I have been using the information provided to

 3     me by the pathologists since I worked on the recovery of those remains

 4     and not on the analysis of the remains, so the answer in that context

 5     would be no.  But you should refer for that matter to the pathologist's

 6     report.

 7        Q.   Thank you.  And now I'm going to ask you something else.  Let's

 8     move on to the following page, both in B/C/S -- no, no, let's stick to

 9     the B/C/S page that is on the screen, but we need the following page in

10     English.  Professor, you've already commented on this page, and you

11     mentioned some specific cases in Nova Kasaba 4, you told us that there

12     were traces of dressings and other medical material used on those wounds.

13             MR. STOJANOVIC: [Interpretation] And now, Your Honours, in the

14     same document I would like to look at page 11 in English and this is the

15     last paragraph.

16        Q.   And after saying or rather commenting upon Nova Kasaba 4 report,

17     you say in the last paragraph a possible cloth ligature was found loose

18     in the grave fill.  However, no evidence of individuals tied or

19     blindfolded was found.

20             Based on your experience with ligatures and their existence, and

21     based on your specific experience with the graveyards in Nova Kasaba and

22     Konjevic Polje that are dealt with in this report, did you deal with that

23     in your analysis and did you refer to that in your report?

24        A.   I do not understand the question.  I mean, if I dealt with what

25     exactly?  With the ligatures?  Meaning, did I analyse the ligatures?

Page 16046

 1     Or -- if you could clarify, I would appreciate it.

 2        Q.   In very specific terms, maybe I was too general in my previous

 3     question so I'll try to rephrase it.  Was your task at any point in time

 4     to analyse the existence of ligatures and blindfolds, if you were to find

 5     those in the graveyards, were you supposed to analyse them in any way?

 6        A.   Not -- not the anthropologist --

 7             JUDGE ORIE:  One second, please.

 8             Ms. Lee.

 9             MS. LEE:  Just for the record, Your Honour, the evidence in this

10     case has been that these were mass graves, and perhaps it's a translation

11     issue, but these mass graves have been identified as graveyards, and

12     those are two separate words.  And this is just to clarify for the

13     record, because that has not been the evidence in this case.

14             JUDGE ORIE:  Yes.  I think we are talking in this context about

15     graves which contained a large number of bodily remains which is usually

16     not referred to as a graveyard.  Maybe a translation issue.  May I take

17     it that you understood the question to be about the graves and could you

18     answer the question if you would find ligatures and blindfolds whether

19     you were supposed to analyse them in any way?  I think you answered that

20     question that you were not supposed to do that.

21             THE WITNESS:  Yes, Your Honour.

22             JUDGE ORIE:  Yes.

23             Next question, please.

24             MR. STOJANOVIC: [Interpretation] Thank you.

25        Q.   I have moved a step ahead based on Judge Orie's question.  Would

Page 16047

 1     I be correct in saying that according to the report, in the grave-sites

 2     of Nova Kasaba, Konjevic Polje, and Glogova 2, you did not come across

 3     ligatures and blindfolds or anything that would have any association with

 4     those?

 5        A.   Since your question referred only to one site, Nova Kasaba 4 if I

 6     am not mistaken, I answered that we found the ligatures, as it said in

 7     the report, loose in the grave, and I also answered that the

 8     anthropologist was not in charge of analysing the ligature itself.  That

 9     was the prerogative of the scene-of-crime officer that would collect and

10     photograph and describe that element.  However, in the other sites, you

11     know, I could not tell you if I found that "yes" or "no" unless, of

12     course, I went through every report and tell you what's in the reports.

13     I do not remember by heart whether I found ligatures or not in all the

14     other sites.

15        Q.   Professor, we'll go through most of those you worked on.  Now

16     that you mentioned the bandaging that was found, would that bandage

17     correspond to something you referred to in your report on page 12, where

18     you say that something that reminds of ligature was found, a piece of

19     cloth?

20        A.   The dressing -- I mean, let's see if I understand you correctly.

21     In that report, and there is a picture on it, there is a leg with a

22     dressing, meaning a patch of cloth secured with some bandages, if you

23     wish to call it, or bandaged leg, with a square padded piece of cloth and

24     with some pieces of branches, of tree branches that were running parallel

25     to the leg and were also fixed to this compound of cloth and everything,

Page 16048

 1     and that for me is a dressing.

 2             Now, when I refer to possible ligatures, and I'm using the word

 3     "possible," I'm not affirming it, is some piece of cloth that has or is

 4     shaped as a number 8 where you got two round elements as those used to

 5     put the wrist of somebody.  Since we have seen so many proper ligatures

 6     on the bodies of many cases, I could infer that this piece of cloth

 7     shaped in such a way was a ligature.  But since I did not find a ligature

 8     on a body, I say it's possible ligature.

 9        Q.   Professor, did you --

10             THE INTERPRETER:  Interpreter's correction:

11        Q.   Were you at any time informed of the route taken by the

12     28th Division column on their attempt of breakthrough from Srebrenica to

13     Tuzla?  And can you tell us whether you estimated the distance between

14     the breakthrough route and the specific grave-site location Nova Kasaba

15     4?

16        A.   No.  I was not informed of those specifics.  I do know in general

17     terms that that area was a crossing area based pretty much on the

18     literature I read at the time regarding what had happened in those -- in

19     those days, at least as interpreted by the people writing the books, but

20     I have never been given specific information regarding people, you know,

21     were I don't know how many metres away and this and that.  We were never

22     let's say fed the very specifics of the -- of the case.

23        Q.   As you said during examination-in-chief, you could not establish

24     the time of death of the 19th persons found in the Nova Kasaba 4 grave;

25     is that correct?

Page 16049

 1        A.   Yes, yes, it is correct.

 2        Q.   Also, based on the information you have, specifically concerning

 3     Nova Kasaba 4, you could not tell whether they were killed in the grave,

 4     on the grave-site, or if they were killed elsewhere and then buried at

 5     that location.

 6        A.   Let me please check the report to see whether that is correct or

 7     not.  I mean, I would need to go through the pages.  One second, please.

 8        Q.   Page 3 and 4 in the English version of the document, Professor.

 9     The explanation pertaining to the image can be found on page 11 and 12.

10        A.   If there is no mention in the report of slugs found under the

11     bodies, we cannot affirm specifically that people may have been shot

12     while in the grave.  So any time that we found the slugs of the bullets

13     under the bodies, under some soil, of course, we could say these people

14     were shot while in the grave.  If that information is not specified in

15     the report, it means we have not been able to determine such a thing.

16        Q.   Thank you.  That was my presumption as well.  We will come across

17     some similar situations still.  For the time being, let's look at page 4

18     in the B/C/S and page --

19             JUDGE ORIE:  Mr. Stojanovic, before you continue, I'm a bit

20     confused.  I think your question was about people being killed in the

21     grave and then you said on the grave-site.  Or if they were killed

22     elsewhere and then buried at that location.  I understood that question

23     to be whether they were killed in the -- in or in the immediate vicinity

24     of where they were buried or that they were transported over a longer

25     distance to that grave.  I don't know where you draw the line, but

Page 16050

 1     I would consider that to be more than, well, let's say 100 or 200 metres,

 2     so further away from the grave-site.

 3             Now, the answer of the witness very much focused on being shot in

 4     the grave itself.  So therefore, your question does not fully match with

 5     the answer.  And when you then said that was my presumption as well,

 6     I was confused whether it was the presumption or what you dealt with in

 7     your question, or whether it was what the witness dealt with in his

 8     answer, which, again, was not fully congruent.

 9             I am looking at the clock.  We will take a break and the witness

10     could already be escorted out of the courtroom, but I would also like to

11     read a decision when the witness is -- has left the courtroom.

12                           [The witness stands down]

13             JUDGE ORIE:  The decision I would like to deliver on behalf of

14     the Chamber is the Chamber's decision with regard to the Defence notice

15     objection and motion to bar Witness Richard Higgs from testifying as an

16     expert, a motion which was filed on 19th of December, 2012.  The

17     Prosecution responded on the 31st of December.

18             As for the applicable law concerning expert evidence, the Chamber

19     refers to its decision concerning Richard Butler, filed on the 19th of

20     October, 2012.

21             The Defence argue that is Witness Higgs is not an expert and

22     should therefore not be allowed to present expert evidence before the

23     Chamber.  The witness's CV and the submissions by the Prosecution

24     indicate that the witness has completed relevant training and has

25     extensive working experience in the field of mortar weaponry.

Page 16051

 1             In particular, the witness worked as a mortar operations and

 2     project manager in the British army for 15 years.  The witness also acted

 3     as a United Nations mortar consultant for two years.

 4             On this basis, the Chamber is satisfied that the witness is a

 5     mortar weaponry expert who can assist the Chamber on matters related to

 6     the shelling incidents charged in the indictment.

 7             As for any arguments related to the methodology of the Higgs

 8     report, the Chamber considers that these are matters that can be and

 9     should be addressed during the examination of the witness.

10             Finally, with regards to the Defence request to cross-examine the

11     witness, the Chamber notes that the witness will be called to testify and

12     the Defence will therefore have the opportunity to cross-examine him.

13             Based on the foregoing, the Chamber decides that Witness Higgs

14     may testify as an expert witness and denies the Defence request to bar

15     the Prosecution from presenting his evidence.

16             And this concludes the Chamber's decision.

17             Before we take the break, I would take a bit of a longer break

18     than usual and then continue for another 75 minutes after the break.

19     That would be to take a break of half an hour to resume at 1.00 and then

20     to finish at quarter past 2.00, if this would not be objected to, and

21     I see Mr. Stojanovic you are not objecting to such a schedule.  We take a

22     break and we'll resume at 1.00.

23                           --- Recess taken at 12.30 p.m.

24                           --- On resuming at 1.00 p.m.

25             JUDGE ORIE:  The witness will be escorted into the courtroom.  As

Page 16052

 1     matters stand now, Ms. Lee, do you know how much time you would need for

 2     re-examination?

 3             MS. LEE:  I have none so far.

 4             JUDGE ORIE:  None so far.

 5                           [The witness takes the stand]

 6             JUDGE ORIE:  Please be seated, Mr. Baraybar.

 7             Mr. Stojanovic will now continue his cross-examination.

 8             You may proceed, Mr. Stojanovic.

 9             MR. STOJANOVIC: [Interpretation]

10        Q.   Professor, we have dealt with a dilemma concerning the place of

11     death of those found in Nova Kasaba 4.  It concerns the 19th bodies of

12     adult males.  I wanted to ask you something with regard to your last

13     answer.  You cannot state, based on the scientific analysis and rules of

14     your profession, whether it was possible that the bodies had been

15     collected elsewhere and then buried in that grave, and also that before

16     the bodies were buried they had spent a certain amount of time on the

17     ground as surface remains?

18        A.   The second part of your question is something I cannot affirm

19     primarily because we did not find any indication of advanced

20     decomposition prior to the bodies being buried.  Normally, a body left on

21     the surface would be infested by fly eggs, they would become maggots and

22     then in turn they would become pupae of flies and then the flies would

23     come from there.  So we did not find any such body as we did find in some

24     other cases, though, where they were pretty much infested with larvae

25     indicating that it had been sometime or they were sometimes left on the

Page 16053

 1     surface.  That's one issue.

 2             As a second issue, that is the first part of your question, I

 3     have only stated in the reports whenever I found slugs under the bodies

 4     that were matching with injuries that the person was likely shot on the

 5     grave.  This does not exclude, however, that people could have been shot

 6     next to the grave or 2 metres away from it or whatever.  That's something

 7     I cannot affirm.

 8        Q.   Thank you.  Could we together look at P2086 again, page 4 in both

 9     versions.  We are still -- or actually we are discussing the grave-site

10     Nova Kasaba 7.  In this example you are referring to cartridges found in

11     the grave.  Let me clear something up first.  According to the report,

12     the remains of one person were found there, the person being an adult

13     male between 31 and 65 years of age.  Would it be correct to say that if

14     there was only one body, it could not be seen as a mass grave according

15     to the standards you adopted?

16        A.   Yes, that is correct.  It was not a mass grave.

17        Q.   And in your view, what is to be understood under the term "mass

18     grave"?

19        A.   Technically, it's a grave that contains more than one person.

20     I mean, there have been some classifications, most of them useless, as a

21     matter of fact, between individual multiple and mass, but that is totally

22     arbitrary.  What you do have as a matter of fact is individual graves is

23     one person, and then mass graves or multiple graves, whatever definition

24     you want to choose, that contain more than one individual.  There is no

25     fact to establish that if you have five people, seven people, it becomes

Page 16054

 1     something else.  I mean, whether you have one person or whether you have

 2     many people, so, for me at least to my standard, you have a mass grave as

 3     one having more than one person.  Another one would be a grave, a single

 4     grave, as in this case.

 5        Q.   In this case, it is stated that evidence confirms that the person

 6     was shot in the grave itself.  You go on to say that large calibre

 7     ammunition shell casings were found of 30 millimetre calibre.  That,

 8     together with the fact that only one body was disposed therein suggested

 9     that the trench was originally used as a gun emplacement.  Let me ask you

10     this:  Such 30-millimetre shell casings as found in this grave, were they

11     the basis of your conclusion that the person was fired at whilst in the

12     grave?

13        A.   Most definitely not.  Actually, if we look at the -- I mean, this

14     is a summary of the report, so if you look at the report itself, there

15     are a few pages after, you can see that this grave was kind of an

16     opportunistic grave-site, meaning the body was lying on some sediment or

17     some dirt that has been used to backfill this hole, and then the body was

18     added to that.  In addition to this 30-millimetre ammunition, that

19     obviously is something with which you would not shoot somebody, I mean at

20     least at close range because there would not be any body left, is what

21     made us assume or interpret this hole as a gun emplacement.  However,

22     there was a rifle ammunition that was found also next to the body,

23     meaning shell casings in this case, and perhaps a slug if I'm not

24     mistaken, and even -- I mean, I would need to check the report again,

25     I was reading the report during the break, I think there is small hand

Page 16055

 1     gun ammunition as well, perhaps 7.65 millimetres, if I'm not mistaken.

 2        Q.   We can look together at page 17, or, rather, page 17 in the

 3     English version, where you refer to it.  It is the last paragraph.  As

 4     well as the penultimate paragraph of page 16 in the English.  Since we

 5     are on that topic, I wanted to discuss some details with you.  Let us

 6     wait first.  Thank you.

 7             Your Honours, I would like to direct your attention to the

 8     penultimate and ultimate paragraph.  There you say the following:

 9             "At the feet of the body, a number of bullets and shell casings

10     were found.  There were three 7.62-millimetre shell casings, two

11     7.62-millimetre bullets, one bullet jacket fragment, and a

12     7.65-millimetre pistol bullet."

13             Let me ask you this first:  Three 7.62-millimetre shell casings

14     were found in the grave.  There were no slugs in the grave itself

15     corresponding to the casings calibre, correct?

16        A.   Well, there were two slugs.  I mean two 7.62 millimetre bullets,

17     meaning the slugs.  So you got three shell casings, two slugs, and one

18     jacket fragment, according to what the report says.

19        Q.   Professor, perhaps I needn't go into the field of ballistics but

20     maybe it is a matter of translation.  In my understanding a casing is the

21     part of a bullet containing the primer, powder charge, and the bullet

22     itself, the slug.  In my understanding, you found three such casings,

23     i.e., jacket fragments, and then you say bullets.  Is it a bullet which

24     had not been spent, including both a slug, a primer, and a gunpowder, or

25     are all these just parts of something that we refer to as slugs?

Page 16056

 1        A.   Your question is totally pertinent.  I believe, and I'm doubting

 2     myself now, we got three casings, meaning the shell case, right, the area

 3     where the powder would go and the primer, what I'm doubting now, and

 4     that's something I cannot confirm yet again, whether it's an issue of the

 5     way I've written it, but you may be right that we are talking about two

 6     bullets - meaning complete bullets, meaning the slug and the casing -

 7     meaning unspent cartridges, that would be another way to put it, and one

 8     jacket fragment.  So you may be right in what I'm saying, but I cannot

 9     affirm or deny it, I mean, at the moment based on this report, but you my

10     be right.  I would need to see whether I have used the term "bullet" and

11     when I've used the term "slug" in previous cases.  But it says bullet, it

12     is very likely, as you said, that they're unfired ammunition.

13             JUDGE ORIE:  The question and the answer raise an issue of what

14     exactly a slug means and what exactly a bullet means, whether the bullet

15     is just the projectile which leaves the cartridge after the cartridge

16     being ignited or whether it means cartridge plus bullet still in place.

17             THE WITNESS:  I'm just checking, Your Honour, further on the

18     report, to see whether it's a matter of semantics or to what I'm

19     referring exactly.  If you give me one second, I will confirm it to you

20     in a second.  As a matter of fact, across the report, I have been using

21     the term "bullet."  In this case I do refer to "slug," but technically it

22     is totally right to affirm that a bullet would need to be referred as an

23     unspent cartridge or an unfired cartridge in this case containing the

24     shell case and the bullet itself.

25             However, in other parts of the report I've been referring to

Page 16057

 1     bullets as being found under the bodies and matching the injuries that

 2     the body sustained by gunshot; i.e., meaning, that I'm referring to it to

 3     a slug.  But I would -- I would concur that looking at this now, it is an

 4     incorrect use of the term.  However, in some other parts of the report

 5     I've been using unspent ammunition as referring to the whole bullet

 6     meaning that it has not been fired, as if the bullet itself with the

 7     shell casing and the slug was simply found in association to remains.

 8             MR. STOJANOVIC: [Interpretation]

 9        Q.   Thank you, Professor.  I will continue with the last paragraph of

10     page 17.  In this specific case, you say that no -- well, casing or slug,

11     whatever it may be, correspond with the position of the body itself, and

12     that it was not found underneath the body itself.  Would I be correct,

13     then, in concluding that the assertion of this person being fired at in

14     the grave was merely an assumption, not an assertion?

15        A.   Yes.  If you read the language in which the report has been

16     written, it's all in conditional.  Obviously, the body was found in a

17     part of the grave.  I can't remember what corner it was found but it was

18     found on a -- on part of the grave.  And unlike previous cases, the slugs

19     in this case, not the case in the slugs, were not directly under the

20     body, okay, as we have found before.  This does not, however, exclude the

21     fact that the person could have been shot while in the grave and then

22     pushed, for example, but everything is put in conditional because we do

23     not know.

24        Q.   Thank you.  Would you confirm that in this specific case, based

25     on the rules of your profession, you could not ascertain the time of

Page 16058

 1     death of this person?

 2        A.   Yes.  That is correct.

 3        Q.   Thank you, Professor.  Let us go back to page 4 again, please, in

 4     both versions.  I'd like to discuss the Nova Kasaba 8 grave-site.

 5             JUDGE ORIE:  Before we do so, could I ask clarification on one

 6     issue.

 7             You say you conclude that someone is shot in a grave when a

 8     bullet, I mean the projectile or the slug, as you call it, is found under

 9     the body.  Would you agree with me that if you shoot someone who is

10     already in a grave but still alive, that there is a fair chance that the

11     bullet by which you kill that person may well be found next to the body

12     or not necessarily to be under the body itself?

13             THE WITNESS:  It depends.  For example, if I shoot somebody

14     through the chest considering that the chest is quite large as compared

15     to the arm, for example, it is likely the slug would be under the body.

16     Now, in some instances, and it is also written in the report, you have

17     migration of slugs, meaning that the slug remain in the soft tissues, the

18     soft tissues decay, and the slug was found a bit further, you know, away

19     from the body.  That is totally possible.  Primarily when you have bodies

20     superimposed to one another, so you've got many bodies one on top of the

21     other, the slug of one on top could end up on the bottom.  That is

22     totally possible.  But in areas of the body that are quite large, you

23     actually do find the slug underneath it.

24             JUDGE ORIE:  Yes.  But if someone is killed by being hit by a

25     bullet which hit but, well, for example let's say an artery in the arm or

Page 16059

 1     something like that leading to bleeding to death, you might well find the

 2     bullet at a distance of 2 metres from that body.

 3             THE WITNESS:  The cartridge, not the slug, meaning --

 4             JUDGE ORIE:  I mean, if a -- if the projectile itself --

 5             THE WITNESS:  Yes.

 6             JUDGE ORIE:  -- the thing that flies and that pierces the body

 7     part, for example, an arm, which is still possible, it would exit the

 8     body with still some energy and may move or travel until the edge of the

 9     grave.

10             THE WITNESS:  If you're not lying down against the floor.  If

11     you're standing, of course, or sitting --

12             JUDGE ORIE:  Yes.

13             THE WITNESS:  -- or whatever, certainly in that context, yes.

14     When I refer people being shot, it is that lying.  Obviously lying.

15             JUDGE ORIE:  Yes.  Now I understand you better.

16             THE WITNESS:  Thank you, Your Honour.

17             JUDGE ORIE:  Because being in a grave and lying in a grave may

18     not be the same.

19             THE WITNESS:  You're right.

20             JUDGE ORIE:  Thank you.  Please proceed, Mr. Stojanovic.

21             MR. STOJANOVIC: [Interpretation]

22        Q.   Let us now look the part that refers to the Nova Kasaba 8

23     graveyard, Professor.  In the summary you say that a total of 33 persons

24     were found there and for one person it was impossible to establish the

25     gender.  Bearing in mind everything that you've already said with regard

Page 16060

 1     to the way a person's sex may be determined, how come that you couldn't

 2     determine the sex of that particular person?  Why?

 3        A.   We would need to refer to the specific autopsy report of that

 4     case.  I mean, yet again I cannot answer the question without having the

 5     report.  It could be that the remains were in very poor preservation or

 6     state of preservation, that none of the elements used for sex

 7     determination would be found, but I would need to have the report in

 8     front of me to answer that question.

 9        Q.   Help us, please, and try and remember who was the pathologist who

10     worked on the Nova Kasaba grave sites?

11        A.   I couldn't tell you frankly.  I mean, those specifics, I mean,

12     escape me completely.  I mean, I do -- I would need to know who was the

13     person who looked at the remains, who was the anthropologist, what is

14     present in the anthropological forms, and then be able to tell you the

15     explanation is because, I don't know, the body was broken or was very

16     decomposed and the bones were decomposed as well.  I mean, I do not know.

17             JUDGE ORIE:  Mr. Stojanovic, those last questions, what are they

18     telling us?  I mean, what should the Chamber understand from not knowing

19     exactly why the gender could not be determined?  I mean, what -- what

20     could we learn from it, relevance?

21             MR. STOJANOVIC: [Interpretation] Your Honour, as I was preparing

22     to cross-examine Mr. Baraybar, I could see that the methodology that was

23     used in determining the gender was not reliable at the time, and this is

24     precisely one of the arguments that we already discussed, hence my

25     question.

Page 16061

 1             JUDGE ORIE:  I don't remember that reliability of the methodology

 2     was questioned.  I mean I would be very much interested to hear questions

 3     about that, but none of those questions was put to the witness, as far as

 4     I remember.  At least not today.  And I really would be interested,

 5     rather than to have a kind of vague question about would you know why it

 6     could not be established.  If it's unreliable, put questions to the

 7     witness.  Put to him what makes the method used unreliable, whether the

 8     pelvic bone is not an indication whatsoever or whatever it is.

 9             MR. STOJANOVIC: [Interpretation] I will, Your Honour.  Thank you,

10     Judge.

11        Q.   Professor, during the examination-in-chief, you did talk about

12     the criteria used to determine gender.  In your written report and

13     earlier today you said that it was relatively easy if there was still

14     some soft tissue left.  If however there was no soft tissue but only

15     skeletal remains, you also mentioned what the criteria were.  Would it be

16     right to conclude that for that reason when there was no soft tissue

17     left, the body is so fragmented that you cannot ascertain the person's

18     gender with any degree of certainty?

19        A.   Not really.  I mean, the answer will be not always.  Obviously we

20     have a foot or if you have a hand, your reliability in sex determination

21     will be very low.  But if you have for example a leg, you will be much

22     better off than if you have a hand or a foot alone.  Needless to say, if

23     you have a complete body or half a body.  So reliability decreases with

24     the amount, so to speak, and the key areas of the body that are normally

25     used to sex a skeleton.  We understand that in an ideal world, having a

Page 16062

 1     complete body, you would look at the pelvis first, there's a number of

 2     characteristics in the pelvis.  Then you would use a skull, and then you

 3     would use the long bones.  But remember as well that you have two options

 4     to go around this:  I mean, one of them is morphological, so you're going

 5     to look at the shape and proportions of various areas of those bones; and

 6     the other one is metrical, so you can always measure certain bones or

 7     certain bone parts and either apply some charts that may have been

 8     derived from that or other populations that will give you some idea as to

 9     whether to ascribe these remains or not.

10             And this is very important because as you indicated, whenever a

11     body had soft tissue and had external genitalia, obviously you would

12     establish the sex as being male or female because you're looking at it.

13     When not having soft tissues, you would need to look at whatever was

14     present, but one may say that sexing of body parts has been very

15     unreliable, but I can tell you that that was not the case, because in one

16     of the Konjevic Polje sites, we did find a female and this is a bit of an

17     anecdote -- an anecdote, but it's important to say it, is that we were so

18     used to finding males, skeletally speaking, that when there was this

19     female found, I had to pull the body out of the freezer to be convinced

20     that it was actually a female because I remember that I step out of the

21     excavation for a moment and this body was pulled out, and one of my staff

22     told me, by the way, we just found a female.  And I said, "No, it's not

23     possible.  There is no females here.  We've been seeing men all

24     throughout.  Just take the body out."  The body was taken out and with a

25     cursory examination on the spot, I said, "You're right.  It is a female."

Page 16063

 1             So all I'm trying to say is that by no means I think we been or

 2     the sex estimation in this case has been lets say unreliable.  Obviously

 3     there is a large percentage of cases that have been sexed as undetermined

 4     because we didn't have any elements to provide I mean, you know, sex

 5     estimation on those cases.  So no -- nor we have been sexing everybody as

 6     males nor as females nor as undetermined, and obviously the number of

 7     undetermined is quite large as you can imagine because there were body

 8     parts that could not be examined towards a sex estimation because there

 9     were hands, feet, or very fragmented pieces of bodies that didn't yield

10     any kind of information of such kind.

11        Q.   And now let's look at data for Nova Kasaba 8.  In the summary you

12     say that a total of 33 persons were found there.  You also say that they

13     were buried in three different groups.  What I would like to know is

14     this:  If we are looking at the appearance of the Nova Kasaba 8 grave,

15     right, were you -- were they buried next to each other or on top of each

16     other?

17        A.   It may be -- it may be good to look at the picture of this grave

18     of Nova Kasaba 8 to answer the question on page 20 of the English report.

19     In Nova Kasaba 8, what you see are three groups of people that are

20     superimposed on one another.  The way we excavated the grave and take the

21     pictures you have on the report shows like steps, like three steps.

22     These three steps represents three groups of people that have been buried

23     in different moments.  By moments I mean I cannot calculate whether it

24     was a matter of hours, days, I mean I obviously cannot estimate that, but

25     it's a time or relative time difference between one group and the other.

Page 16064

 1     So group number 1 is the one that's pretty much at the bottom, the first

 2     one to have been placed, these are a group of people that have been just

 3     thrown in there, and then group number 2, as I come, the step of the

 4     middle, and group number 3 is the last group of bodies to have been

 5     placed on this -- on this grave, so the body have been pretty much, yes,

 6     thrown in -- in clusters, together.

 7        Q.   Please pay attention to the last paragraph where you say, leaves

 8     and branches of willow trees found on the bodies in group 1 could link

 9     them to Nova Kasaba 05, I can't call this a grave for understandable

10     reason, as a possible place of execution.  How did you identify

11     Nova Kasaba 5 if no buried bodies were found there?  What made you

12     identify it as a possible execution or burial site?

13        A.   Yes.  In the photograph that was shown to us by the

14     Prosecution --

15             MR. STOJANOVIC: [Interpretation] Your Honour, just for clarity,

16     P2087 is what we should perhaps look at at this moment.  Maybe we would

17     get a clearer picture on the whole area.

18             THE WITNESS:  In that photograph, there is an aerial -- an aerial

19     image.  What you see -- ah, there you go.  What you can see from above,

20     so to speak, are some white or lighter areas with various shapes.  Some

21     of them have no specific shapes and some of them are like rectangular and

22     so on.  The area of the circle of NAK-05 was seen from above, yet again,

23     as a lighter area.  The assumption at the time was that it was a grave

24     because it is shaped as a rectangle and we thought that was a grave.  And

25     we went to dig it up.  And we opened some trenches across.  It was not a

Page 16065

 1     grave.  It was literally a scrape of the surface with a machine,

 2     obviously, with the blade of a machine like, for example, a front end

 3     loader.  You know, a scrape.  So from the air what you see it's the same

 4     thing as the other areas that were proven to be graves.

 5             Now, if you look at the picture very closely, to the left of the

 6     picture, you would see on an oblique angle a small roundish or elongated

 7     area of also lighter soil.  Well, that is a small mound of dirt next to a

 8     willow tree or, rather, in the middle of the mound there is a willow

 9     tree.  And you see also that the rectangular area -- and this little

10     mound is connected by two tracks, what proved there was a mechanised

11     machine that actually was doing something there.  Now, that willow tree

12     was the only willow tree of the whole area you are seeing on the

13     photograph.  We took the time to walk around the whole area looking for

14     willow trees and there was no other willow trees.

15             So branches of willow were found in cluster 1 at the site at

16     Nova Kasaba 8, and in the mound in Nova Kasaba 5 - that is, next to the

17     willow tree - there were some shell casings, okay?  So the assumption or,

18     rather, the interpretation of these facts is the following:  If people

19     could have been shot on that spot, the bodies would have been collected

20     or taken by a bladed machine such as a front end loader, the front end

21     loader in the path of collecting and pushing would have gone all the way

22     to the willow tree as the tracks are indicating, shaking the willow

23     trees, and having some willow branches on the bodies that would have been

24     transported to the first cluster of Nova Kasaba 8.  In other words, there

25     is no other logical explanation to explain why branches of willow tree,

Page 16066

 1     not leaves but branches, would have ended up among the bodies of cluster

 2     number 1 in Nova Kasaba 8.  So the interpretation of these findings was

 3     that one.  There is a plausible and a logical interpretation based on

 4     these findings.  Of course, if there were willow trees all over the

 5     place, I could not affirm such a thing.

 6        Q.   Could you tell the Trial Chamber in view of the fact that you

 7     were there on the spot, what is the distance between Nova Kasaba 5 and

 8     the Nova Kasaba 8 graveyard?

 9        A.   Hmm, that's a tricky question.  I wouldn't know.  My guess, but

10     it's just a guess, would be perhaps 100 metres, considering the width of

11     the road, perhaps 100 metres, approximately.

12        Q.   Is there a single explanation which arises from the rules of your

13     profession for the fact that a hole was dug at the Nova Kasaba 5 locality

14     for the people to be executed there and driven a distance of 100 metres

15     to the place where they would be buried in the place that we later on

16     marked as Nova Kasaba 8?

17        A.   There may be some confusion here.  Nova Kasaba 5 is not a grave.

18     There's no hole.  It is not a hole.  It's just a scraping of the surface.

19     What you see from above is just an area of light -- light soil, but it is

20     not a hole.  It is just a scrape of the turf of the grass of the surface.

21     Obviously from below what we thought when we saw the picture is you have

22     another grave there, but in order to prove that it was not a grave, we

23     trenched it, we opened some trenches across, some excavations across, and

24     could you see that it was natural soil.  So there has never been a hole

25     there, it was just a scrape of the surface.

Page 16067

 1             Now, why would people use that area and then move the bodies

 2     elsewhere, I do not know.  What I can infer based on pure logic of the

 3     findings is that the only willow tree was found in that area and some

 4     willow branches, that I'm not affirming, are the specific willow branches

 5     from that willow tree, because I haven't done DNA for that, were found in

 6     the cluster 1 on Nova Kasaba 8.  So it is a logical inference is what I'm

 7     trying to say.  The reason why, I mean, that's obviously escapes me and

 8     it would not be in my realm of interpretation.

 9             JUDGE MOLOTO:  If I may just ask a question, Mr. Baraybar.  You

10     explained a few minutes ago that between the big white area on NK-05 and

11     the willow tree, there are tracks which you explained a few minutes ago

12     as possibly the blade of a front end loader.  I see when I look at the

13     top part of that same big white area of NK-05, something similar to those

14     tracks coming round on the right side of that white, going right down

15     NK-08.  Can you see that.

16             THE WITNESS:  Yes.  Yes, Your Honour.

17             JUDGE MOLOTO:  Are you able to comments on that?

18             THE WITNESS:  It is definitely possible that those tracks leading

19     from NK-05 to NK-06 are definitely related to the event that we are

20     looking at as NK-05.

21             JUDGE MOLOTO:  But they go past down to NK-08.

22             THE WITNESS:  Yes.  Yes, that is correct.  I mean, remember as

23     well that there is a number of tracks in that -- in that area, because we

24     have already established that some of the graves, including NK-08, were

25     created by a front end loader, so obviously a front end loader was

Page 16068

 1     operating in the area.  That's something we can -- we can infer.  There

 2     is no doubt, for example, in the area of NK-08 that there was a machine

 3     excavated grave that the bucket of the machine, of the front end loader

 4     in this case has some teeth because the teeth marks were found in the

 5     soil, so could -- I mean, there is a machine operating in the area and

 6     those tracks could be the link -- could be the link as well between NK-05

 7     and NK-08.

 8             JUDGE MOLOTO:  In relation to the question by Mr. Stojanovic that

 9     is it possible or is it possible that bodies could be transported 100

10     metres down from NK-05 to NK-08 for burial after being killed there, what

11     would that indicate to you?

12             THE WITNESS:  Obviously my opinion would be slightly beyond the

13     scope of my own profession, but I could say that NK-05 is a site that the

14     is literally next to the road.  Next -- I mean, a couple of metres away

15     from the road, while the other sites are -- that are the proper graves,

16     NK-06, 8, and 4 are proper graves.  NK-07 is just an opportunistic grave

17     in my opinion, was being used as something else and they just put a body

18     inside.  Obviously, the idea would be to move bodies away from the road.

19     You could -- you could -- you could for the sake of argument you could

20     say that the issue of concealing bodies in this case would be to conceal

21     them away from the road or to dispose them away from the road if the word

22     "concealment" sounds too interpretive in this -- in this case, but

23     definitely NK-05 is next to the road, and if you had bodies next to the

24     road, perhaps you wanted to move them away from there.

25             JUDGE MOLOTO:  Thank you so much.  Thank you, Mr. Stojanovic.

Page 16069

 1             MR. STOJANOVIC: [Interpretation] Thank you, Your Honour.

 2        Q.   And now another question about Nova Kasaba 8.  The road that we

 3     see depicted in the photo, is that the asphalt road leading from Bratunac

 4     to Nova Kasaba and Vlasenica, and is this the same road that the

 5     28th Division column had to cut across in order to link up with the

 6     2nd Corps?

 7        A.   I can answer only the first part of your question and it is yes,

 8     it is the road that goes from Vlasenica to -- I mean,

 9     Nova Kasaba-Bratunac.  I do not know about -- I mean, much about the 28th

10     Division and whether they were crossing or something.  I mean, as I told

11     you, I do know in general terms that people were crossing that road, but

12     I mean I'm by no means an expert on the matter.  I mean, I know as much

13     as I know based on reading books and having general information.

14        Q.   And now something that has caused confusion.  Now that you have

15     answered Judge Moloto's question, the leaves and branches of the willow

16     tree that were found on the bodies among group 1, are they linked up with

17     Nova Kasaba 5 as a possible execution site?  If you can't see it, maybe

18     we should go back to page 4 in B/C/S and in English.  This is where you

19     speak about that.  Let us look at that.  Thank you.  Let's look at the

20     last sentence before Konjevic Polje 1.  This is where you say the

21     presence of willow leaves and branches in close association to the bodies

22     of cluster 1 could link them to Nova Kasaba 5 as a possible execution

23     site.

24             In your report further on when you elaborate on this issue on

25     page 20, you also mention the possibility that some of these people were

Page 16070

 1     actually executed in the Nova Kasaba 8 grave.  Would that be correct and

 2     would that correspond with -- correspond to the findings?

 3             MR. STOJANOVIC: [Interpretation] Your Honours, this is on page 20

 4     in English, to help you find your bearings in the report.  Paragraph 4

 5     where there is a reference to three deformed cartridges at the bottom of

 6     Nova Kasaba 8.  And then it says that those persons were actually

 7     executed while they were lying in the grave.

 8        Q.   Does this part correspond to your opinion that we find on page 4?

 9        A.   Yes, but we have to distinguish two different things here.  We

10     have a factual link between Nova Kasaba 5 and cluster 1 of Nova Kasaba 8.

11     The factual link are the willow trees, so that's issue number 1, meaning

12     that since that tree is the only tree in the area and you got a scraping

13     area, two tracks, a small mound that contains shell casings, the bodies

14     could have been shot there, collected with a machine, pushed the tree,

15     get some branches, and then taken back to the grave to cluster 1.  That's

16     issue number 1.

17             Issue number 2 is whether or not, and the answer is yes, we found

18     slugs under some of the bodies of cluster 1 in Nova Kasaba 8.  What does

19     it mean or what is my interpretation of it?  That people could have been

20     shot in this case, again why not, while in the grave.  There is no -- not

21     too many explanations.

22             I am not speculating here whether the people died or didn't die

23     at Nova Kasaba 5.  All I have is shell casings, an area of scraping,

24     tracks, and all the rest of it, and then I got bodies, not all of them

25     but some of them had slugs under them in cluster 1.  So there are two

Page 16071

 1     separate, I mean, facts, and I have not used the word "execution" in --

 2     in this page 20.  I said just shot while lying in the grave.  That is

 3     the -- the question I was asked a moment ago.  I mean, you got the body

 4     lying and underneath the body you do find the slug, and this indicates

 5     that the person was most likely lying while being shot.

 6             So two separate, I mean, facts that have to be taken into

 7     consideration here, and I'm not implicating yet again by any means that

 8     people were killed.  I mean, you can shoot somebody, it doesn't need to

 9     be that you are killing the person.  But if the person was shot in NK-05,

10     this person ended up in NK-08, and I found slugs underneath it, meaning

11     most likely that the person was shot while in the grave.  We could

12     speculate why they did that.  That is something totally different.

13     That's another -- another story in itself.

14             JUDGE MOLOTO:  If I might just ask again, Mr. Baraybar, is the

15     possibility not there that if the people were shot and killed at NK-05

16     and then taken by front load payer -- front end loader to NK-08, that

17     they could have been scooped together with the slugs and the bullets?

18             THE WITNESS:  It is possible, Your Honour.  Unlikely in this case

19     because you've got matching injuries.  Whenever I refer to slugs on the

20     bodies, you have matching injuries on the body and the slug below.  That

21     is why it was affirmed that people may have been shot while in the grave.

22     There is one instance in one of the Nova Kasaba sites, I cannot recall

23     which but it is in the report, where you can actually see the excavation

24     and you can see the wall or the profile of the excavation and you can see

25     a body that is lying, and you're looking at the head and the arms

Page 16072

 1     extended, and you can see the slugs how they went through the body and

 2     they match with injuries on the arms, on the torso, and on the head, so

 3     it is rather this than scooping elements that were there.

 4             JUDGE MOLOTO:  Thank you so much.

 5             THE WITNESS:  Thank you.

 6             JUDGE ORIE:  Could I again ask you something about the use of the

 7     words "bullets" or "slugs"?  I see in the portion we looked at that --

 8     let me see -- and I'm looking at page 20, it reads:

 9             "Three deformed 7.62-millimetre bullets and one jacket."

10             Now, is my understanding correct that bullets usually deform

11     after the projectile has been shot and hit something rather than that it

12     deforms without having been fired?  And would that be an indication that

13     the word "bullet" might well be used here for the projectile itself which

14     has left the cartridge when fired?

15             THE WITNESS:  You're right, Your Honour.  I think that the whole

16     confusion starts with the use bullet.  If I had to redo this now, I would

17     use "slugs" and not "bullets," and I would use bullets as unspent

18     cartridges.  Elsewhere in the reports, whenever I refer to bullets in

19     that sense, meaning an unfired ammunition, I would have used unspent

20     cartridge as that, but by "bullets" here and "deformed bullets" I mean a

21     deformed slug, something has impacted something.

22             JUDGE ORIE:  Yes, thank you.

23             Please proceed, Mr. Stojanovic.

24             And when I was reading on page 20 -- I was reading from P2086.

25             MR. STOJANOVIC: [Interpretation] Thank you.

Page 16073

 1        Q.   Let's look at the summary for Konjevic Polje 1 together,

 2     Professor.  In B/C/S it's page 5 as well as in English, the first

 3     paragraph, as well as the last two lines on page 4 of the same exhibit.

 4             MR. STOJANOVIC: [Interpretation] For the record, it is T2086.

 5        Q.   Briefly, Professor, I will try to deal with something that was

 6     unclear to me while preparing for your testimony.

 7             There, you say that the bodies of nine persons were found.

 8             MR. STOJANOVIC: [Interpretation] Can we go to the next page in

 9     English?  Thank you.

10        Q.   The bodies of nine individuals buried in two clusters were found.

11     Then in the following paragraph, you say a Seiko wrist watch that stopped

12     at 12.35 on Friday, 15, suggests that the person stopped moving

13     (i.e. died) between 32 and 36 hours before.  That is on the 13th.  And

14     you refer to Mr. Mills's report of 1999.  I would like to ask you the

15     following, and I would kindly ask to you bear in mind page 24 of your

16     report where you comment upon the photograph.  I am confused by this.

17     You say a Seiko wrist watch stopped at 12.35 on Friday, the 15th.  Did

18     you have in mind the 15th of July 1995 as the day indicated by the wrist

19     watch and the day being Friday?  Why do I ask this?

20             MR. STOJANOVIC: [Interpretation] Let me cut it short, Your

21     Honours.

22        Q.   According to our checks, the Friday was the 14th of July.  And

23     then if we went back and calculate the time, as determining when the

24     person died and stopped moving would be different.  If we place this in

25     the context of events it poses a completely new background.

Page 16074

 1             Professor, where did you get this information?

 2        A.   The information was, I'm quoting here, Mr. Mills who did the

 3     examination of the watches.  Now, you are right, you are totally right.

 4     In some watches, I mean wrist watches, you have this combinations of

 5     sometimes Saturday, 15th or Friday, 15th, and that inconsistency has been

 6     noticed.  The majority of the -- of the watches, though, indicated as far

 7     as I remember Saturday, the 15th, but in some occasions we did find

 8     Friday the 15th.  Obviously, it has been borrowed from Mr. Mills.  The

 9     issue of the calculation of the -- of the hours.  Understanding as well

10     that after examining -- I mean, he examined a number watches, the real

11     day and date combination were Saturday the 15th and not Friday the 15th,

12     so I am pretty much borrowing the testimony of Mr. Mills in this regard.

13     But it is true that some watches, and perhaps that report will refer to

14     the specifics of how many watches, had this Friday 15th.  But it is an

15     inconsistency if we are looking at July 1995.

16        Q.   Let us arrive at some kind of conclusion based on all of this.

17     My reasoning is the following:  Based on that piece of information

18     obtained from the wrist watch, the moment when the person stopped moving

19     could become quite relative, in terms of whether it was 36 hours starting

20     from Friday and going back or is it 36 hours starting from the 15th of

21     July and back.  Could we agree that my reasoning, in terms of uncertainty

22     as to when the person stopped moving, is correct?

23        A.   Well, I would not really give you an opinion because it pertains

24     to watches and I'm not really a specialist in watches.  I would refer to

25     Mr. Mills' report in that regard.  However, what is very clear is that --

Page 16075

 1     and that's what I learned about it from Mr. Mills -- is that wrist

 2     watches operate by the movement of the wrist.  Therefore, your wrists

 3     have to stop moving.

 4             If you look at the picture on page 28 in the English report, you

 5     can see the body with the watch on his wrist.  So definitely there is a

 6     causal relationship between the body or the wrist stop moving and the

 7     watch stopping.  I mean, the watch was on somebody's wrist.  However,

 8     I may want to remind you that irrespective of this piece of evidence, in

 9     that grave we found ID cards that linked to people last seen at a

10     specific date and those individuals related to Srebrenica, of course in

11     this case, by the book of the missing of the ICRC, so the dating, if you

12     wish, of the grave have not been based solely on the watch with

13     inconsistency you have already pointed out.

14        Q.   Let us look together at the English page 23 which I believe is in

15     front of you.  In the B/C/S it is page 24.  It discusses Konjevic Polje 1

16     where you say -- Your Honours, the 5th paragraph -- that the turf found

17     under the bodies suggests that some, if not all, of the bodies were

18     scooped (i.e. with a front end loading) from a different location and

19     then put in the grave.  Could you at any point in time conclude whether

20     these bodies had spent a certain amount of time on the surface before

21     having been buried in the Konjevic Polje 1 site?

22        A.   We did not find any evidence of advanced decomposition yet again

23     as -- as speaking of maggots, the mass, for example, on the bodies are

24     present.  I mean, there was nothing obvious regarding that.

25        Q.   Professor, just briefly, I'm interested in one sentence.  Are you

Page 16076

 1     familiar with Professor Lawrence's position who addresses the fact that

 2     the presence of traces of insects after a body had spent three years in

 3     the ground is completely unreliable and something that cannot be checked

 4     whatsoever?  I believe you also mentioned that in some of your previous

 5     testimony.

 6        A.   I am not familiar with Professor Lawrence's statement regarding

 7     this matter, but I mean let's be very clear about one thing:  Anybody

 8     left outdoors, even for five minutes, could have fly eggs being

 9     positioned in body orifices, nose, mouth, ears, whatever.  And depending

10     on the place where this body could be disposed, these eggs will turn into

11     larvae and so on, so it is not true that you need to have bodies lying on

12     the ground for hours, for days in order to be attacked in this case or

13     being seeded by flies.  Flies will operate very fast, and if it's

14     outdoors, unless you are in a very cold climate, very extremely cold

15     climate, I mean, they will just put their eggs, and from the eggs come

16     the larvae.  So I am not using at any point in time here this as an

17     element of timing or dating, but it would be obvious if we had found, for

18     example, bodies that were full of fly pupae; that is, the transition from

19     larvae to pupae and then to flies again on a body to tell me, well, this

20     body has been colonised and the -- the -- the area where this body has

21     been buried would have allowed these larvae to turn pupae, for example,

22     and that was not the case.

23             So obviously it's not an exact science in that respect, but, I

24     mean, I did not find a body that was in such a state that I would have

25     said, okay, this person has been lying for, I mean, for weeks outside and

Page 16077

 1     then buried.  We did not find such a thing.  Bodies were quite complete

 2     and there were larvae, of course, as expected in any -- pretty much in

 3     any -- in any body that had been outdoors, but I mean nothing specific.

 4             JUDGE ORIE:  Mr. Stojanovic, in your question reference was made

 5     to some of your previous testimony.  Could you assist me in where exactly

 6     I would find what you referred to?

 7             MR. STOJANOVIC: [Interpretation] Your Honour, I do not have a

 8     reference off the cuff.  I will be able to provide it to you.  But based

 9     on the questions we put to Professor Wright, we discussed the very same

10     topic, and if you recall, we referenced it through the Popovic

11     transcript, although I do not have that precise reference at this point.

12     Perhaps I could find it, but it would be time consuming.

13             JUDGE ORIE:  But so when you were referring to the witness's

14     previous testimony, would that not then be in the Krstic case?  Because

15     we have no other evidence from the witness than the evidence in the

16     Krstic case.

17             MR. STOJANOVIC: [Interpretation] By circumstance, I happened to

18     listen to Professor's testimony in the Popovic case and this is why

19     I asked.  I believe Professor --

20             JUDGE ORIE:  But then, of course, the Chamber is unable to follow

21     that line of questioning or unable to verify.  Now, I'm asking you

22     because there may well be a -- some confusion.  Did you intend to refer

23     to the possibility that even if flies or maggots or pupae would have been

24     there, that you might not find them any more after three years?  Is that

25     what you're referring to?  And that therefore not finding it after three

Page 16078

 1     years doesn't say that much about whether the bodies had been at the

 2     surface "yes" or "no."  Is that what you were hinting at?

 3             If so, then from the answer, it seems to me that the witness has

 4     totally misunderstood your question.  But again, that's the risk of

 5     unclear references, because the witness did not express himself in any

 6     way on the question as I just now rephrased it and if that is the

 7     question you wanted to put to the witness.  And that's unclear to me as

 8     well.

 9             Ms. Lee.

10             MS. LEE:  Also, Your Honours, if today's temporary transcript

11     page 73, starting at line 5, the question was put to the witness and it

12     says:

13             "Are you familiar with Professor Lawrence's position who

14     addresses the fact that the presence of traces of insects after a body

15     had spent three years in the ground is completely unreliable and

16     something that cannot be checked whatsoever?"

17             I think this is misrepresenting Dr. Lawrence's evidence and

18     I could -- and if Mr. Stojanovic could give me a transcript reference to

19     that, because the transcript reference that I have is at line --

20     transcript page 14800 and the question was put to him:

21             "Entomology being the study of insects having..." --

22             JUDGE ORIE:  Yes, but --

23             MS. LEE:  It's at -- but this is not what --

24             JUDGE ORIE:  We are talking about our transcript.

25             MS. LEE:  And this is Dr. Lawrence's transcript in this case.

Page 16079

 1             JUDGE ORIE:  Yes.

 2             MS. LEE:  And that's -- I'm just saying we should be fair to the

 3     witness.  When you're putting Dr. Lawrence's evidence, you should be

 4     accurate and Dr. Lawrence was asked if the bodies were in the ground for

 5     several years, would you expect such entomological evidence to even still

 6     be there, and the answer given --

 7             THE INTERPRETER:  Kindly slow down.

 8             MS. LEE:  The answer given was:  "I don't know."  And that was at

 9     line 14 at transcript page 14800, and this is from the 19th of July,

10     2013, which is a misrepresentation of Dr. Lawrence's evidence.  He did

11     not -- unless I'm missing the -- the transcript reference that

12     Mr. Stojanovic is referring to, Dr. Lawrence did not articulate any of

13     the words that were used in Mr. Stojanovic's question at line -- starting

14     at line 5 at today's temporary transcript 73, and that's -- I just wanted

15     to put that on the record.

16             JUDGE ORIE:  Mr. Stojanovic?

17             JUDGE MOLOTO:  Maybe Mr. Stojanovic, as you answer that question

18     you might as well answer what you mean by completely unreliable and

19     something that cannot be checked whatsoever, because I didn't understand

20     this question when you posed it.  Unreliable in doing what?  Unreliable

21     for what purposes?

22             MR. STOJANOVIC: [Interpretation] Thank you for your assistance.

23     I will try to clarify it with a few questions and you're quite right.

24        Q.   The theory of our case, Professor, is --

25             MR. STOJANOVIC: [Interpretation] Let me ask the question.

Page 16080

 1             JUDGE MOLOTO:  Sorry, just first of all Madam Lee has raised an

 2     objection to your question, and I just sort of tagged along that question

 3     because it relates to the same passage, so maybe you would like to

 4     respond to her objection first.

 5             MR. STOJANOVIC: [Interpretation] Yes.  Mr. Lawrence did discuss

 6     it, as was quoted in the transcript.  It was on the 19th of July when my

 7     learned friend was examining them.  This is how he answered although the

 8     answer was broader encompassing the part I wanted to ask the Professor

 9     about.  For the time being, since I don't have the reference, I will

10     focus only on that part, and I readily acknowledge that I do not have

11     that reference.

12        Q.   Professor, after a set of remains has spent three years in the

13     ground, are any traces of insects lost, such as ones which would indicate

14     that the body had spent a certain amount of time on the ground before

15     being buried?

16        A.   I do not know how to answer the question because let me -- let me

17     paraphrase, and if you could tell me whether what I'm asking is right in

18     order to answer the question:  I believe that what you're trying to ask

19     me is whether we have evidence that the bodies were lying outdoors for a

20     while and then buried and see whether the findings in the grave or in the

21     examination would prove or disprove the fact that there was a long

22     interval of time in which bodies were lying on the ground before being

23     buried.  Is that what you're asking me?

24        Q.   Yes, although my correction would stand in terms of a longer

25     period of time.  I have in mind any period of time because in the context

Page 16081

 1     of this case, it is a relative matter.

 2        A.   Well, the answer would be no, but let me explain you why.

 3     Whenever death occurs, okay, I mean, whenever death occurs you have

 4     various waves of insects invading the body and this depends on humidity,

 5     depends on weather, depends on vegetation.  It would be totally different

 6     to have a body left outdoors in Norway during the winter and a body left

 7     in a tropical place in the summer, and it would be totally different

 8     because it will have various waves of insects.  However, it is normally

 9     accepted that flies are the first insects to arrive.  That's the usual

10     thing.  There are different kinds of flies and they arrive at any moment

11     in time in which the body is dead and it is outdoors, okay?  So it is not

12     whether it was five minutes or ten minutes or something.  It was much

13     more time.  Of course, they are going to come in loads and colonise it.

14     But short time is enough for them to leave their eggs, lay their eggs,

15     and the eggs will become maggots.

16             Now, all the remains we have found, as far as I remember, were

17     colonised by maggots, implying primarily that they were at some point

18     colonised by flies that left their eggs.  We have not been using, though,

19     the existence of maggots to try to estimate the post-mortem interval as

20     you would do in a body found in a forensic context nowadays because they

21     were buried.  And what we do know is that some of these development to

22     maggots took place while buried, so they went from eggs to maggots

23     because the environment in which they were found, I mean these graves,

24     could have all the conditions of humidity, temperature and so on, and

25     food, for these maggots to feed.  But we have never attempted to do a

Page 16082

 1     post-mortem interval based on those findings.  All we can say is that the

 2     bodies were dead, outdoors, and therefore colonised by flies.  Whether

 3     they were colonised in the first five minutes or two hours or two days or

 4     something is -- would be a speculation because there is no point in

 5     trying to elaborate on that, as Professor Lawrence may have said.

 6     I mean, there is no point in dealing with that.  But that you have the

 7     maggots in -- while the bodies were in the grave, yes, I mean, they were

 8     there, they were full of maggots.

 9             JUDGE ORIE:  Well, there seems to be a bit of a -- I see on that

10     same page 14800, he was asked:

11             "Did you see any evidence of things like pupal cases or other

12     entomological evidence in the remains that you looked at that would be of

13     assistance assessing the time of death?"

14             The answer was:

15             "The short answer to that is no.  In Cancari Road 12 we did find

16     some small maggots, but I suspect that they are a consequence of

17     reinfestation of the body once they'd been exhumed and that they would

18     not be of any use in assessing the time since death."

19             So there seems to be a difference in factual observation on what

20     was found.

21             I'm looking at the clock and I should have done that already four

22     minutes ago.

23             Mr. Stojanovic, where are you?  You said you hoped that you could

24     finish today.  Have you finished or how much time would you still need?

25             MR. STOJANOVIC: [Interpretation] Yes, Your Honour, but I believe

Page 16083

 1     we still need to address Glogova 2 which will require another half an

 2     hour tomorrow, I believe.

 3             JUDGE ORIE:  Half an hour you would still need.

 4             As matters stand now, Ms. Lee, any need for re-examination?

 5             MS. LEE:  Not at the moment, or if there is, it's not going to be

 6     long.

 7             JUDGE ORIE:  Yes.  Then, Mr. Baraybar, we cannot finish

 8     unfortunately today.  You've heard that we might not need much time

 9     tomorrow to conclude your testimony.  I'd like to instruct you not to

10     speak or communicate in whatever way with whomever about your testimony,

11     whether that is testimony you've given today or whether it's testimony

12     still to be given tomorrow.

13             We would like to see you back tomorrow morning at 9.30 in this

14     same courtroom, I.  You may now follow the usher.

15             THE WITNESS:  Thank you.

16                           [The witness stands down]

17             MR. STOJANOVIC: [Interpretation] Your Honours, with your leave,

18     for the transcript, I wanted to inform you that in the meantime we have

19     D00353.  Its translation was uploaded into e-court under 060656.  Also, a

20     translation for D00349 has also been uploaded into e-court as 1D060691.

21             JUDGE ORIE:  Could the parties assist me?  Was the only reason

22     why D353 and D349 were not admitted yet is because there was no

23     translation or were there any other objections?  If could you revisit the

24     matter tomorrow morning first when the witness enters the courtroom, and

25     could you also have a look at the translation as it has been uploaded.

Page 16084

 1             We will then decide on D353 and D349 first thing in the morning.

 2     We adjourn for the day with apologies to all those who are assisting us

 3     for going beyond the time.  And we will resume tomorrow, Tuesday, the 3rd

 4     of September at 9.30 in the morning.

 5                           --- Whereupon the hearing adjourned at 2.23 p.m.,

 6                           to be reconvened on Tuesday, the 3rd day of

 7                           September, 2013, at 9.30 a.m.