1 Thursday, 24 July 2008
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 9.04 a.m.
6 JUDGE AGIUS: So good morning, Madam Registrar. Could you call
7 the case, please.
8 THE REGISTRAR: Good morning, Your Honours. This is the case
9 number IT-05-88-T, The Prosecutor versus Vujadin Popovic, et al.
10 JUDGE AGIUS: I thank you, ma'am. For the record, the accused
11 are present. Prosecution, we have Mr. McCloskey and Mr. Vanderpuye.
12 Amongst the Defence teams, I notice the absence of Mr. Nikolic for the
13 Beara Defence team, Ms. Nikolic, Mr. Josse, and that's about it. Witness
14 is already present in the courtroom.
15 Good morning, Doctor. How are you?
16 THE WITNESS: Fine, thank you.
17 JUDGE AGIUS: Did you have a good rest after yesterday's ordeal?
18 THE WITNESS: Yes, thank you.
19 JUDGE AGIUS: Good. We can therefore proceed. Hopefully we
20 should finish with your testimony today. Yes, Mr. Ostojic.
21 MR. OSTOJIC: Thank you, Mr. President.
22 JUDGE AGIUS: Yes. Judge Kwon is reminding me we are sitting
23 pursuant to Rule 15 bis. Judge Stole will be with us later on. At the
24 moment, he is occupied with other official business of the Tribunal.
25 MR. OSTOJIC: Thank you, Mr. President. Good morning, Your
1 Honours. Mr. President, before I begin, if I may just introduce my
2 colleague from the United States, Leah Erickson who's assisting us here,
3 and she was here as well yesterday.
4 JUDGE AGIUS: She was trying to point find out how to enter into
5 the courtroom, and we helped her.
6 MR. OSTOJIC: Thank you very much for that as well,
7 Mr. President.
8 JUDGE AGIUS: You are most welcome, madam.
9 WITNESS: DEBRA KOMAR [Resumed]
10 Examination by Mr. Ostojic [Continued]
11 Q. Good morning, Doctor.
12 A. Good morning.
13 Q. I have a couple of hours or so left. I'm going to try to shorten
14 it, and thank you for your patience in that regard. Yesterday, we left
15 off discussing matching rates and collection rates, and I want to know
16 from you if you can share with us what constitutes a match according to
17 the ICMP?
18 A. That's actually a slightly different issue than a matching rate,
19 and this goes to how a positive or personal identification is
20 established. A match, the term "match" in the notion of comparison,
21 suggests that there are two separate objects, one being known and one
22 being unknown, and that you are comparing class characteristics to
23 establish whether the two are identical. So in a case involving DNA such
24 as is typically referred to as a match, there would be a biological
25 sample left at a scene, there would be a known sample taken from an
1 accused, and the two would be compared to each other to a degree of
2 scientific certainty. What ICMP is referring to when it does its DNA
3 identifications is actually a statement of statistical probability, so
5 Q. I'm sorry, and I don't mean to -- just so that we can follow
6 along with you, and the ICMP actually does have that match definition or
7 -- under their standard operating procedures, correct?
8 A. There are a number of SOPs or protocols that deal with how
9 exactly they go about establishing it. It's a multistep process.
10 Q. And if you don't mind, if we can just turn our attention to
11 Exhibit P3224, which is the SOP statistical calculation of DNA-based
12 identifications, and specifically once we see that document P3224, if we
13 could turn to page 06248601. And I apologize that -- but I just wanted
14 us to be able to follow along with you. As you were saying, using that
15 nomenclature listed on that page, how does the ICMP create a match
16 between a DNA sample and an individual?
17 A. There would be -- there are two profiles generated. One is of
18 the known provided by the family member who -- or family members who are
19 serving as the reference sample, so that is your known. They are
20 comparing those against the samples or profiles being created from the
21 bones and/or human remains that are being exhumed and analysed, but it
22 isn't the same sort of match as a comparison of the two. Essentially,
23 what happens is that the ICMP is using a series of family members of
24 varying degrees of relatedness as their known, and it produces a
25 statistical statement as to the probability that the unknown, the bone
1 sample profile, whether it is related in some form to the individuals
2 that are providing the reference sample.
3 Q. Can you tell me, how many people would they need in order to
4 create a match as even defined by the ICMP?
5 A. In an ideal situation, what we are talking about is autosomal
6 DNA, so it's your nuclear DNA that recombines -- it's a combination of
7 each of your parents. It recombines and it forms your unique profile.
8 In an ideal world, that forms a triangle, and you need all three pieces
9 of the triangle to make the identification. Because given the high death
10 rate that occurs in this circumstance, they are obligated to go outside
11 of that triangle and use relationships and relatives in addition or to
12 supplement those that are available. According to the protocol,
13 essentially what they are looking for is three relatives to form the
14 basis for the identification or to provide a sample against which bone
15 samples are compared.
16 Q. And as you've just said in your previous answer on page 3, lines
17 13 through 14, you say that they are comparing those against the samples
18 of other profiles -- I'm sorry. It was line 16 and 17. You say, "family
19 members of varying degrees of relatedness as they are known, and it
20 produces a statistical statement." When we say "relatedness," what does
21 ICMP to the best of your experience and knowledge, what individuals do
22 they use if they utilize those three? Can you give us a description --
23 is it a spouse? You've identified "other." I would imagine spouse is
25 A. There -- well, spouse has no biological relationship to the
1 individual, although they are included on the list of potential donors
2 that ICMP uses as their protocol. When a spouse would play into the
3 equation is if what must be also present is a biological child of those
4 two, so you would have the decedent who is the unknown, you would have
5 the spouse who is known, but to use the spouse you would have to have a
6 child known to be a biological product of the spouse and the decedent.
7 Q. When you speak of relatedness, are you speaking in terms of,
8 like, a half-sibling or a sibling?
9 A. That's true. If you look at the Exhibit page 14 of 16 in the SOP
10 that you called our attention to, it gives the list of what ICMP
11 identified as potential donors. Many of those include others, some
12 include half-siblings, they do include spouses, and so on. So cousins,
13 grandparents, anybody with a biological blood relationship to the missing
14 in addition to spouses can contribute and be used in the equation.
15 Q. Have you formulated an opinion as to whether or not within
16 acceptable anthropological certainty to use a spouse, a half-sibling and
17 let's say a cousin, for example, in order to generate a positive match?
18 A. Obviously the closer you are to a triangle, the parents and the
19 sibling is your best statement of probability. The farther or the more
20 distant the relationship, obviously because you are talking about
21 complete recombination with each generation, you lose the specificity
22 that is involved for this particular event. So obviously, a parent or
23 two sets of parents would be infinitely preferable to grandparents or
24 cousins or half-siblings or a spouse, which absent a child has absolutely
25 no relationship and shouldn't be used.
1 Q. Well, from your review of the SOPs of ICMP, have you seen whether
2 or not they require or mandate that if they are using a spouse as one of
3 the three for purposes of identification, that they also -- or were
4 required or mandated to use an individual such as the child's couple?
5 Did they do that?
6 A. I haven't seen that stated in the SOP, but I -- you know, just
7 because something isn't written down doesn't inherently make it not
8 practice. I would -- there would be no relationship absent that, and I
9 can't imagine anybody that knows even fundamentals about DNA would allow
10 that to occur.
11 Q. Okay. Now, just going back briefly to some articles, and I know
12 that you've spent sometime working with ICMP and you are familiar,
13 obviously, with their protocols having reviewed them and their SOPs here.
14 There is, as you would know, in your academic world other employees or
15 former employees of ICMP who have written quite extensively about their
16 experience with ICMP. Are you familiar with those articles?
17 A. I am aware of three of them.
18 Q. Okay. And is one of them -- just if we can go through it, if I
19 can show it to you, 2D538. And I think just for the record, I think you
20 identified that in Section 1.4 of your report. And if I may just
21 continue while we are getting this up on the screen, now, some of these
22 articles, although we are looking at one specifically, 2D538, it really
23 seems from my review of that after having read it from the citation in
24 your report; or tell us, what's the view of the former employees in
25 general, if you can share that, from ICMP in connection with the
1 practices within ICMP?
2 A. The most consistent message in all of three of those is that DNA
3 alone cannot and should not be used as the sole basis for an
4 identification, and all three make note of the fact that it is the
5 obligation of the forensic community to dispel the widely held miss
6 conception that DNA forms a basis of an identification.
7 Q. Well, what other than DNA should be utilized, in your opinion, in
8 connection with that for purposes of identification?
9 A. To scientifically establish identity beyond a reasonable doubt or
10 to a degree of medical certainty, there has to be what is called
11 individualisation or a unique identifier. There has to be something
12 which distinguishes that individual beyond exclusion and beyond the
13 inclusion of others, so it can't simply be everything matches, nothing
14 doesn't. There has to be compelling evidence that the identity has been
15 established absent any other possibility.
16 Q. And also, would I be correct, and -- does that include also the
17 anthropological process, reliance on that?
18 A. That's another portion of it. Essentially, what several of these
19 articles describe and the third in particular are specific cases in which
20 the DNA said there was a match, but even cursory examination of the
21 remains showed that either multiple individuals were present or that the
22 element that was being sampled and provided the DNA sample was not
23 consistent, and ultimately, further DNA test proved that it did not match
24 the rest of the remains. So essentially, because of the way the
25 exhumation process happened, you do have co-mingling there's multiple
1 individuals represented in bags, and that's understood. When it comes to
2 the repatriation process, identifying the people and giving them back to
3 their families, there is obviously a professional moral obligation to
4 ensure that what you are returning represents solely the individual that
5 has been identified and is purported to be, and what these particular
6 papers and specifically the third paper reference is very specific
7 examples within the ICMP of when that does not occur.
8 Q. And Doctor, let's briefly look at this third article by -- I
9 think it's Professor Yazedjian, which is 2D540. Again, just 2D540. And
10 there, I believe, they discuss the -- as the title I think indicates the
11 importance of using traditional anthropological methods in DNA-led
12 identification system, and in fact, I think if you read, as I'm sure you
13 have, the article, they cite four specific examples which they
14 categorized as mistakes that occurred by reliance on solely DNA. Is that
16 A. They highlight four particular examples that they use as
17 illustrative purposes that reliance solely on DNA leads to problems, and
18 in fact, they have identified cases where significant problems would have
20 Q. And it's that position from the former employees of ICMP that
21 there seems to be some urgency or at least some -- a request that ICMP
22 start to rely on more of the anthropological process as we've discussed
23 in addition to what you stated just moments ago?
24 A. The overall purpose of the paper is that the focus of this -- and
25 these essentially represent abstracts of papers that were presented at
1 professional conferences, specifically the American Academy
2 Sciences, that was it a express and a plea over three years from the
3 employees of the ICMP that -- to dispel the notion both in the community,
4 in lay people and within the ICMP that DNA alone is answering this
5 question, that there has to be additional review of the remains; there
6 has to be the anthropological and pathological component to the
7 identification process, not solely to the analysis for purposes of
8 determining cause of death, but that it must continue through the
9 identification phase so that we begin to deal with this issue of
10 co-mingling and resolve multiple individuals who have essentially been
11 lumped in falsely or inaccurately into representing one individual.
12 Q. Now, I know in this article by Professor Yazedjian, they discuss
13 the mistake of identification with a partial body and then the aging
14 process -- not the aging process but the age estimate being 45 to 55, and
15 then upon further review it was noted that it was 23-year-old after
16 examining the femur. What my question to you in connection with that is,
17 and we've had an opportunity to review the article, is why are these
18 mistakes in identification significant when -- in calculating MNI?
19 A. The problem that begins in the field, goes through the analysis,
20 and ultimately is revealed in the identification phase is that when
21 co-mingling is present and re-association is not consistently attempted
22 and acknowledged, that what you have is a system that samples DNA from
23 selected elements only. What these cases and these articles highlight is
24 that because we know there is co-mingling, if all you do is sample the
25 arm and the leg, all the DNA profile shows is that that arm and that leg
1 belongs to whoever it is ultimately identified to. The remainder of the
2 elements, the skeletal elements contained in the bag or with the
3 individual have not yet been established as belonging to that person
4 because we are not talking about a fleshed body. We are talking about a
5 collection of elements that even by Richard Wright and others who are in
6 the field are admitted that, you know, this is a collection of people and
7 we will continue the process of dividing them further down the line,
8 unless that occurs, then what you hand back to families is a collection
9 of bones in a bag of which all that can be established is whatever bone
10 the DNA is cut from is the only bone that can be conclusively shown to
11 belong to that person.
12 Q. Now, if we can -- thank you. If we can move on to another topic
13 which is, I think, highlighted somewhat in your report under paragraph
14 1.2. My question in relating to that, although it seems plain but I need
15 it for the record, have you had it the opportunity to analyse and review
16 the Excel database entitled "ICMP Data on the Identified Persons and DNA
17 Matches Related to Srebrenica 1995"?
18 A. Yes.
19 Q. Okay. Is that the material, if you could -- to the best of your
20 recollection, that Dean Manning is relying upon in his latest report,
21 which is, I think, 30th of November, 2007? Is that that raw data that we
22 were referring to yesterday?
23 A. No. There's some lack of clarity. Some of it might be my fault;
24 some of it might be in other places, but if I can take one minute of the
25 Court's time to clarify something. The first Manning report occurs in
1 June 2007 in which he begins to cite as his source of MNI ICMP reports.
2 I have not seen nor has it been provided what the source of that data is.
3 The first and only report that is issued from ICMP occurs in 2006, and it
4 is a methodology report only. There is no statement of number within
5 that report. The only databases, raw information, or other source of
6 numbers doesn't occur until October 8th of 2007, several months after
7 Dean Manning's first report. So the information that Manning is relying
8 on in that first June 2007
9 have -- that I have seen that information. I don't know where he is
10 getting that from. It has not been made available for us to review. It
11 would appear that he is introducing scientific evidence absent a
12 scientific report he is citing.
13 When the databases are available as of October 8th, 2007, it does
14 appear, and in addition to the Parsons memo from November 2007, it does
15 appear that Manning's second report in November does include some of that
17 Q. Thank you for clarifying that. Can we now discuss --
18 JUDGE AGIUS: Yes, Mr. Vanderpuye.
19 MR. VANDERPUYE: If I could, Mr. President, there is no report
20 that Mr. Manning refers to in the 2007 June summary. He refers to ICMP
21 records, and in particular, as I stated yesterday, it is in the
22 transcript that what he refers to is the raw data, and I think that is
23 sufficiently clear. I know my colleague is well aware of that, so it's
24 not a question of some report that exists independently of anything
25 that's described in Mr. Manning's work.
1 JUDGE AGIUS: Thank you. Yes, Mr. Ostojic.
2 MR. OSTOJIC: I think -- Dr. Komar I think clarified that on her
3 own, but I think after yesterday's discussion we agreed that he did not
4 have a report, formal or otherwise, that he examined. We're just not
5 sure if a report existed, and I believe the doctor is suggesting that it
6 seems from his analysis and summary that he is relying on a report that
7 we've never been in the possession of. We are not saying there is a
8 report. We believe that there was not one because I'm sure they would
9 have produced it. We think it might be some of the raw data, and I think
10 Dr. Komar, and I'll allow her to answer that with your permission, she
11 believes that he was seemingly suggestively relying on a report that
12 we've never seen, so she was, I think, clarifying the record on that.
13 THE WITNESS: If I can, I'm not suggesting there is a report. He
14 is relying on a source of data that we cannot analyse. He is
15 introducing, and by the testimony that the Prosecution read yesterday,
16 he's analysed some source of data himself, come to a conclusion, and
17 written it into his report. This is the first introduction in any source
18 I've seen of the use of DNA as establishing the MNI absent a scientific
19 source from which it is coming. If there is a database, raw or
20 otherwise, from ICMP in June of 2007 that he is using, it has not been
21 made available to anybody else for review.
22 JUDGE AGIUS: Yes, Mr. Vanderpuye.
23 MR. VANDERPUYE: Mr. President, I'll repeat to some extent what I
24 said, but I will add that in the record as I mentioned, at page 19.003,
25 there is a very clear reference as to what Mr. Manning was relying on.
1 Specifically, it is referred to as Exhibit 3002. That is a page that is
2 derived from a CD that is denominated under ERN D0002146. That is the
3 information that was provided to the Defence, and that is the information
4 that is provided to this expert.
5 JUDGE AGIUS: I think you can actually deal with this on
7 MR. VANDERPUYE: Thank you, Mr. President.
8 JUDGE AGIUS: Yes. Go ahead, Mr. Ostojic. I don't think you
9 need to dwell on this any further. Thank you.
10 MR. OSTOJIC: I wasn't -- I think the Doctor was just clarifying.
11 Q. Doctor, we were going to move on to the raw data, and just so the
12 Court knows, this is evidence that is under seal, so it should not be
13 broadcast to the public. And specifically, if we can first examine
14 P3002. And then, Doctor, just for the record, if you could help us
15 identify that so we know that we have the proper document before us, and
16 it's quite a large document, I believe. It may take awhile.
17 As the document is coming up, I think -- I know we don't. As the
18 document -- if I may just continue to ask, and then I'm sure we'll be
19 able to catch up in the interest of time. Thank you. Dr. Komar, you've
20 had an opportunity to review the ICMP raw database as we've identified
21 it. Is that correct?
22 A. I've identified one that to my records is from October of 2007.
23 Q. Now, with respect to that, did you analyse it as well?
24 A. Yes.
25 Q. And can you tell us if you yourself did anything to -- and I
1 don't want to use the word "reconfigure," but to examine it as you are
2 analyzing it and reviewing it. Did you reconstruct it in any fashion
3 internally for your purposes?
4 A. With any Excel spreadsheet, you can query it. It doesn't alter
5 the information. It simply re-orders the appearance in which it is
6 presented to you on the screen.
7 Q. And did you do such a process in reviewing this material?
8 A. Yes.
9 Q. Okay. And your specific re-organisation using the commands that
10 you placed in without obviously changing the data, you developed and
11 provided us with a copy of the report for us to be able to understand
12 your explanation of the analysis that you had based upon the ICMP raw
13 database, and that's reflected, I believe, in our Exhibit 2D543. I know
14 you don't have the number, but you've provided us with the spreadsheet,
16 A. Is that what we've referred to as the redacted spreadsheet?
17 Q. You referred to it as the redacted. It would just be the -- it
18 would just be the one that you kind of reconfigured or readjusted for
19 purposes of your analysis.
20 A. Yes.
21 MR. OSTOJIC: I have an original here of Dr. Komar's and because
22 -- I misspoke. I have the raw data from ICMP here, and I think Dr. Komar
23 has her report after looking at this where she reconfigured it in order
24 to be able to analyse it with more clarity. If the Court would like, I
25 can have this tendered to the Prosecution so that he can examine it, and
1 this, also, is under seal under P3002.
2 Q. And Doctor, just so that I'm clear, the data that I have here in
3 front of me, which we've identified with this court number P3002, this is
4 a raw data, and just explain the process or methodology that you utilised
5 once you received this data so that we can have a better understanding of
6 it. I'll just show it to my learned friend, please.
7 A. Within the Excel spreadsheet, there's a series of columns that
8 represent different variabilities or pieces of information. In Column A,
9 it's known as MP or the missing person, and it's a list of the surname
10 and given name along with the father's name of the individuals who are
11 missing and purported to be ultimately identified. By -- the simple
12 query I did was to -- there's a tool search within the Excel programme
13 that allows you to sort data by a series of parameters, and I simply have
14 isolated a number of individuals that fall into a specific class together
15 for the purposes of illustration counting an analysis.
16 Q. And did you -- the process -- the first step that you took, did
17 you delete any duplicated matches of the same individual represented by
18 multiple samples?
19 A. It's not a process of deleting them so much as hiding them from
20 view. You can simply take them out of the visual representation of the
21 view. So the information is not lost. It's simply resorted in another
23 Q. What is a putative match?
24 A. A putative match is the first step in the identification process.
25 Essentially, what you have -- it could also be known as a tentative
1 match. You have either circumstantial evidence, witness statement, or
2 some other source that suggests that a specific unidentified body might
3 potentially be represented by a missing person; and therefore, you go
4 through the process of confirming or scientifically verifying whether
5 that person is or is not represented by those remains.
6 Q. And did you under your review and analysis accomplish that task?
7 A. I don't do that in this forum. Essentially what that database
8 represents is the end result of that process.
9 Q. Okay. And what do you find once you do your reconfiguration of
10 this document in order to better analyse it for clarity?
11 A. There is contained in this list of individuals a number -- large
12 number of individuals for which the putative match or the missing person
13 contains, not one, but between two and four individuals.
14 Q. Just tell me, what's the significance of that so that we can
15 better understand that.
16 A. Again, if we go to this idea of the DNA profile, what you have is
17 a profile that is then compared to the very large database that contains
18 all of the information from the references, the family members who have
19 given their DNA as reference samples. There's a process by which the 15
20 alleles or gene parts that represent the part of the entire DNA structure
21 they're looking at. It's compared to those individuals. When matches
22 around found -- not matches. When similarities are found, you then go
23 through progressive steps to determine whether or not there -- a
24 statistical probability that that profile from the unknown bone is in
25 fact related to a degree of statistical probability to the reference
1 samples given by the family.
2 Q. Well, are they able to -- utilizing these two to four putative
3 matches or individuals, are they able to determine or differentiate
4 between one individual or another?
5 A. What this database suggests and what the information contains, if
6 I can show it to the Court - I don't know if I can; it's on my computer -
7 what is listed under the missing person, so the identified individual is
8 in fact not one person but a series of either two or four people. So
9 essentially and where this becomes relevant to this statement of MNI,
10 included in the statement of MNI as produced in both of Manning's reports
11 and discussed somewhat in Parsons' memo, they argue for the inclusion of
12 what is known as unique DNA profiles. And what they are arguing with
13 that is that they have a series of profiles, DNA fingerprints, if you
14 will, taken from bones that cannot and have not been associated with
15 specific individuals. They argue that because these unique profiles
16 exist but yet have not been matched, that number, which at the second
17 report I believe is the 758 individuals, should be included in the
18 ultimate collection or calculation of the MNI raising the number by 758
19 of the total number of people associated with Srebrenica.
20 Q. Go ahead, please.
21 A. Why this information is relevant is if you look at their own
22 database and their own results, you have a very, high in the hundreds,
23 number of individuals for which DNA profiles have been extracted from
24 bone, and by their own calculation, that DNA profile, supposedly unique,
25 matches between two and four people. So it's impossible to argue that
1 something is unique if, in fact, it matches four people.
2 Now, the 758 number they are arguing doesn't include those
3 individuals, and let me be clear about that. What those individuals
4 raise is the -- is evidence of the fact that what they call DNA profiles
5 as being unique can't be unique. If it matches four, two, three, four
6 people, that isn't a unique profile. And so the argument for including
7 758 of those profiles unassociated with actual identifications or named
8 decedents is not a valid argument. It's not a valid conclusion.
9 Q. Thank you. And Doctor, we do have now on e-court, I believe, the
10 data that you reconfigured under number 2D543. So if we can just back up
11 a little bit and, thank you, and we're getting to some of the final
12 analysis in connection with the 500 and -- what are 758 purported unique
13 DNA samples, but I'd like to just stick for a moment, and if you could
14 just tell us as we have the one page on the document how you did it and
15 you did it with respect to the putative matches, and if you could tell me
16 whether the database includes the putative matches for individuals which
17 were positively identified, and if you can tell me the number, and I
18 think we've discussed it, so we should have it readily available. Or I
19 could help you --
20 A. Sorry, I'm not clear what you are asking.
21 Q. The next -- the database includes a total of 473 putative matches
22 for which individuals are listed as positively identified. Is that
24 A. Absent a specific report that details how ICMP is interpreting
25 the database, all we can do is examine the raw database as I assume Mr.
1 Manning did as well. The missing people and the title of the database is
2 that these are individuals who have been identified and matches have been
3 made. So one -- it's an assumption, I don't know if it's a safe
4 assumption, is the argument, and given that there are case numbers, ICMP
5 numbers, protocol numbers, et cetera, it suggests that these people have
6 gone through the process and have been identified and that this is what
7 they are -- these are the individuals they are including in that list of
8 identified people. Included in that list are these individuals for which
9 there are multiple people recognised as the identification.
10 Q. And this is this group of 473 putative matches, correct?
11 A. Yes.
12 Q. Just so I understand. So to distinguish it from what you were
13 discussing earlier as reflected in Dean Manning's report of the 758?
14 A. It is my understanding that those people are separate, and in
15 fact, there is a separate ICMP database that includes 816 "unique
16 biological profiles." So I'm not quite sure where the 753 number comes
17 from if Mr. Manning is using the same in the November report, the same
18 raw source of data. Essentially, ICMP is saying there's 816 of them. I
19 don't know under what process or by what set of criteria a number of
20 those would be removed to get to the 753 number, but essentially that's
21 what we are talking about. The 400 people included in this list is in no
22 way relevant to those 8 -- to that number of unique unidentified people.
23 Q. And just so I'm clear, Doctor, do you have an opinion based on a
24 reasonable degree of scientific certainty as to whether or not it's
25 acceptable for the ICMP to consider a putative match of two to four
1 individuals as a "positive identification." ?
2 A. No, that would not be standard or acceptable practice. I guess
3 the question I would like answered is, what is the next step that ICMP
4 takes to attempt to resolve this? So to be completely fair to ICMP at
5 this point, absent a report that expressly states how they would go about
6 interpreting this raw data, what could be done to resolve these
7 identifications? If you actually look at the identifications, and I
8 apologise to the Court; I hope you can see this at some point.
9 Q. If you can - and I don't mean to interrupt - just kindly direct
10 us to the page that you'd like us to look at. We have it in front of us
11 on the e-court system -- we don't?
12 A. It isn't a page. It's a database. You have to be able to scroll
13 through it. I've got it up on my computer if we can switch -- if we can
14 switch to your system.
15 Q. You can do it. Apparently we're interconnected.
16 A. How do I do it?
17 JUDGE AGIUS: Can Madam Usher please help.
18 MR. OSTOJIC: I'm sorry, Mr. President. I just think it's
19 important to just --
20 JUDGE AGIUS: No, no, no. Of course, Mr. Ostojic. Yes.
21 THE WITNESS: I'm looking at it, and I can't see it, so -- it's
22 right -- it's right --
23 MR. OSTOJIC:
24 Q. We have it in front of us, Doctor, so --
25 A. I can't see it. I can't see what you see.
1 Q. Fair enough.
2 A. That's me. Okay. There we go. Okay.
3 Q. And if you could just, then, lead us through so we could have a
4 better appreciate appreciation for what you are saying.
5 A. If you look -- it's this Column A marked missing person or the
6 identified person, so you can see a list. It begins with surname. The
7 father's name is parenthesized, and then the individual's given name
8 occurs in the first list.
9 Q. Or column?
10 A. First column. The first 16 are locked or frozen within the
11 programme. That's simply an artifact of the programme, but if you look
12 at the lower section where my cursor is, we are into the 5.000 numbers,
13 50.56, 5.057. If you look at the missing persons' names, you can see
14 that in fact the surname is there, the father's name is there, but you
15 have multiple first names or multiple individuals that are listed as
16 "identified individuals." So they are essentially saying that the DNA
17 profile extracted from a series of bones match to the same degree of
18 statistical probability and statistical significance one, two, three,
19 four people. And that's what I'm attempting to show with this particular
20 database sorted as it is, that rather than filter these throughout as you
21 look at 7.000 individuals until your eyes cross, if you separate them out
22 you can see that there are hundreds of individuals or hundreds of
23 "identifications" that in fact have only been reduced to family groups,
24 so two, three, four related individuals. And that's not a positive
25 identification in any sense of the word.
1 Q. Now, if we were to just take these 473 multiple identification
2 matches, could we and have you analysed to determine whether they
3 represent a minimum number of individuals?
4 A. It's not possible to do that. Essentially what you have is a DNA
5 profile that matches multiple individuals. So the profile is
6 representing a bone. It's that the profile then matches not one person,
7 but two, three, or four people. So it doesn't effect MNI in terms of
8 that. How this relates to MNI is it illustrates an argument against
9 simply relying on the presence of a DNA profile alone, absent any kind of
10 conclusionary identification at somehow being admissible as evidence of
11 an MNI or as a number of individuals to count unidentified DNA profiles
12 as evidence of people, missing people, to elevate the MNI number is not
13 appropriate since it shows that in fact no DNA sample -- or no DNA
14 profile at the level they're looking at it is in fact unique.
15 Q. Now, would it be -- and it was -- you stated that it was
16 unacceptable, but is it also in your opinion that it's misleading?
17 A. Again --
18 JUDGE AGIUS: Yes, Mr. Vanderpuye.
19 MR. VANDERPUYE: It's unclear what my colleague's referring to as
20 to what's misleading.
21 JUDGE AGIUS: Yes, Mr. Ostojic. I think you need to clarify
23 MR. OSTOJIC: Okay.
24 Q. Doctor, it's -- at least from a layperson when you look at it,
25 and I think we've discussed it, and I want your opinion as to whether or
1 not it's misleading for the ICMP to consider a putative match of two to
2 four individuals as a positive identification. I know you said that it
3 was unacceptable. Now I'm just asking you if it is misleading or not.
4 A. I can't state that ICMP is representing these as individuals.
5 What the -- where there is a problem is that the interpretation of these
6 numbers, the presentation of these numbers, is in fact not being done by
7 ICMP; it's being done by Dean Manning. And so if he counts these
8 individuals, it is possible that someone who is not familiar enough with
9 DNA technology and how identifications are done that they would simply
10 include all of these individuals in a calculation of MNI, whereas someone
11 with sufficient knowledge as to how identifications are done would
12 recognise that these people should not be included as yet being
13 definitively and positively identified. So because the presentation of
14 the number of MNI based solely on DNA data is in fact coming from Dean
15 Manning and not ICMP with the absent of that Parsons memo which states a
16 different number, I'm not saying the ICMP is saying these are identified
17 people. The title of the database suggests that they are, but I would
18 open that up to ICMP to confirm that that's in fact what they're saying.
19 Q. Okay. Now, we are talking about a Dean Manning a little bit.
20 Let's just look at his 27th of October, 2007, report which is in evidence
21 as P2993, I believe, and if I can direct your attention to page number
22 06148657. And I think this is where you started discussing the 758
23 unique DNA samples that are not matched that you were referring to
24 moments earlier in your testimony, and just correct me if I'm wrong on
25 that or verify that I was correct.
1 A. If --
2 Q. We're getting it.
3 A. Okay.
4 Q. Again, it's 06148657 is the ERN number. Would you like it --
5 A. Okay. There it is. So if you can look in the second section
6 below the highlighted thing that says -- below the highlighted title that
7 says "All Srebrenica Victims Identified Via DNA Analysis By ICMP," and
8 there's a total number of 5.021. In the second paragraph -- or, sorry,
9 in the third line of that paragraph, "In addition, ICMP records indicate
10 that there are 758 unique Srebrenica-related DNA records which have not
11 yet been matched to a missing person but that he includes in his
12 calculation of MNI."
13 Q. He being Dean Manning, correct?
14 A. Dean Manning. Sorry.
15 Q. Okay. Sorry. That's okay. What's the significance of that, if
17 A. Including profile alone absent an identification is not
18 scientifically sound. It's included as -- that there are profiles
19 removed from the DNA or removed from bone elements is not being contested
20 that they've done this, but by ICMP's own admission, they haven't matched
21 them to any particular individual. The problem with including them based
22 solely on profile is that, again, this notion of uniqueness is not
23 correct. A statement of statistical probability that such as they are
24 calculating from ICMP is solely reliant on the database against which you
25 are comparing. So you -- essentially the technicians and the
1 statisticians are at the mercy of the database which they are trying to
3 The notion of uniqueness can in fact be manipulated simply by the
4 size of the database. So if what they have for the sake of argument is
5 8.000 individuals represented by family members who have contributed DNA,
6 then all they can compare it to is those 8.000. Even within the context
7 of this list, it shows that even using that small subset as your database
8 or as your standard, any particular DNA profile can in fact match
9 multiple people. If you increased the sample size of your reference, if
10 you took it from those 8.000 family members to 20.000 family members, it
11 doesn't mean that you are inherently going to get more identifications.
12 It potentially represents that what you will get is people who otherwise
13 would have only matched one individual or -- sorry, DNA profiles that
14 only would have matched one individual could potentially begin to match
15 more. It's not a unique process. The DNA, the 15 alleles that they are
16 looking at, should not be mistaken as equivalent to a fingerprint, and
17 they are not unique to every individual. All of these identifications
18 are based solely on a statement of statistical probability that says,
19 what is the likelihood that those 15 codes match the codes of the 8.000
20 or 7.000 family members represented in the database? That's all it is.
21 It is not an identification, and even those papers that we reference,
22 those of us who have worked for ICMP and continue to work for ICMP have
23 always recognised that to be true.
24 Q. Thank you, Dr. Komar. Now, if I can just for the moment, and I
25 know we were discussing Dean Manning, direct your attention at the SOP
1 from ICMP, specifically P3191. And as you are looking at that and as
2 that's being brought up through e-court for all of us to examine, I note
3 that -- and we used -- or you've used the word "DNAView." Can you just
4 tell me what that means when you say -- what is a DNAView? Is that a
5 machine or a mechanism in which the analysis is being performed?
6 A. It's the computer programme used to calculate and match -- let me
7 rephrase that. Once a DNA profile has been established, it is the
8 computer programme that matches that profile against the database of the
9 family members who have offered their DNA to attempt to make putative
11 Q. Now, we have before us the exhibit P3191, and just briefly -- and
12 I -- we see the date, obviously. It's rather conspicuous, the 15th of
13 October, 2002, on the right-hand corner. Now, can you just tell us what
14 it is?
15 A. This SOP?
16 Q. Correct.
17 A. It's a statement -- an SOP is a standard operating procedure, so
18 ICMP has essentially said that for this step of the DNA identification
19 process, here is the protocol we are going to follow.
20 Q. And -- go ahead, please.
21 A. All it is is essentially an argument or their justification for
22 the use of DNAView, which is a statistical programme, that calculates the
23 probability that that DNA profile matches other individuals.
24 Q. And I think you've highlighted, and we'd like to look at the ERN
25 number on this page, which of this document is page 5 of 11, but ERN
1 number is R0637646. And if you can help us with that, it's a discussion
2 under a highlighted caption of "Prior Probability." And help us
3 understand this if you don't mind.
4 A. In order to generate the statistical statement of probability to
5 any one individual identification, the person running the analysis has to
6 set a series of parameters for the computer to follow. So essentially,
7 in some respect you have to tell it what it is you want to do and how you
8 want to calculate it. Prior probability is a statement of what are the
9 chances that one individual belongs to a specific defined population.
10 It's not a statement of who they might be in entirety. It is a statement
11 that says, if I have these 8.000 people what is the probability that this
12 individual is one of those 8.000, not what is the probability of this
13 individual being anyone; simply a statement of the probability of that
14 one individual being part of the subset you have identified.
15 Q. Now, have you in your analysis and experience both in ICMP and in
16 the scientific community seen that there was a subsequent SOP with
17 respect to this theme by ICMP?
18 A. There is a revised protocol. I believe it's either 2006, 2007.
19 Q. Yeah, it's the 3rd of August, 2006, Doctor, and we're going to
20 put it up with, if we may, on the screen. It has the identification or
21 the court number P3224. So if we could take a look at that, and again,
22 I'm going to -- and just because we have the front page, if you could
23 just describe it again, and if you see a date on it just for the record
24 so it isn't that I identified it as being the -- August of 2006. I think
25 you can see it, but I'd like to hear it from you.
1 A. Can we scroll down, please. I believe the date might actually be
2 on the last page. I'm not sure.
3 Q. Actually, I thought it was on the first page as well.
4 A. I only saw the upper half of the first page.
5 Q. On the bottom right-hand corner. How about if we do this,
6 Doctor. If you don't mind, if I can just -- there it is. It's on the
7 first page. I wasn't sure if they were following -- looking for the last
8 page or the first. Thank you for that, and this is obviously an SOP from
9 ICMP, which is the 6th -- or 3rd of August 2006, correct?
10 A. Yes.
11 Q. Is that the one you were just referencing?
12 A. That is the second -- that is the revised version of this SOP.
13 Q. Okay. If I can direct our attention to page 6 of 16 of this
14 revised SOP, and it bears the ERN number 06248603, and it's under Roman
15 numeral VI in the second paragraph, same caption, "Prior Probability."
16 If you could just enlighten us as to what, if anything, this relates to
17 this paragraph, SOP.
18 A. The underlined -- the second underlined sentence highlights that
19 the calculation that is used to establish prior probability has dropped
20 from 8.000 to 7.000.
21 Q. Okay. So from 2002 through 2006, we see a drop of 1.000,
22 essentially. Is that correct?
23 A. They've altered the denominator for prior probability, yes.
24 Q. Okay. Now, what would you do that if you alter that denominator
25 and just place a different number? Would all the numbers ultimately be
1 skewed, like 5.000 or 4.000 or 3.000? What significance, if any, would
3 A. Essentially, what the prior probability statement does is it
4 gives the computer the basis -- or it gives the programme the basis by
5 which to calculate the probability. When you change the prior
6 probability, you change the outcome. This is a statement reflecting that
7 they no longer believe that 8.000 is the subset of population that they
8 are looking at. They acknowledge that it now stands at 7.000.
9 Q. And it's that denomination or that -- these protocols, I believe,
10 or you could help me with that, that Dr. Parsons in his one-page report
11 utilizes in calculating this statistical or arithmetic equation or
12 percentages, does he not?
13 A. I wouldn't argue that it's --
14 Q. Well, help us understand it. If it's not, it's not.
15 A. Well, essentially what the number stands for is the -- is a
16 belief in a total number of population that might be represented by
17 victim number or MNI. So it's the number of missing people. Whether you
18 believe that to be 8.000, whether it you believe it to be 7.000 is -- it
19 is essentially what you are telling the computer to use as your basis.
20 The question -- there is a shift within ICMP that occurs
21 approximately about 2006 that the number of 8.000 may not be
22 representative of the total number of victims, and so they have altered
23 how they are calculating the statistical probability for matches down to
24 7.000. So essentially, it's an argument -- it represents an argument
25 from ICMP that they believe the total number of victims relating to
1 Srebrenica will be 7.000.
2 Q. Now, if we examine as we did in part yesterday Parsons' report,
3 which is P3005, and we'll wait for that to come up to the screen, what's
4 the relevance of Dr. Parsons utilizing the 8.000 number given the
5 amendment and revision from the 2002 to the 2006 SOP at ICMP?
6 A. The 2006, I --
7 Q. And if you don't mind, we'll wait until we get that on the screen
8 so we can see. Oh, that's also under seal. Sorry, thank you. And we
9 have it now. Thank you, Doctor. Please proceed.
10 A. How you set the denominator for your prior probability will
11 determine ultimately the statistical result you receive for your
12 identification. In 2002 by setting it at 8.000, ICMP makes the statement
13 that they believe there will be 8.000 individuals missing.
14 Q. That's an assumption? Sorry to interrupt.
15 A. It's an assumption based on -- that you would have to make in
16 order to establish that as your parameter. That number isn't given to
17 them by the computer. That number has to be given by the analyst doing
18 the analysis of the DNA in order to make the calculation.
19 Q. And Dr. Komar, forgive me, but just so the record's clear, that's
20 not an assumption that you're making. That's an assumption that ICMP is
21 making, correct?
22 A. Yes. That represents ICMP's best determination of what the total
23 number of victims will be in order to get statistically meaningful
24 results from the calculation.
25 In 2006, ICMP modifies that number to 7.000. They feel that it's
1 -- there's sufficient proof that the number will actually be closer to
2 7.000, and so they begin to do statistical calculations of identity using
3 that number; completely appropriate, it's not uncommon to revise. It
4 would -- the question whether they went back to the identifications that
5 were done in between and recalculated, I can't speak to. That would be
6 best practice. Whether they did it, I don't know.
7 In 2007, Parsons issues a statement that once again suggests he
8 wants to put the number back to 8.100, to be specific.
9 Q. Okay. And did you find in the evidence or materials that you
10 reviewed any justification for Parsons amending it to 8.100?
11 JUDGE AGIUS: Yes, Mr. Vanderpuye.
12 MR. VANDERPUYE: A, there is no suggestion that he's amending
13 anything in the letter because the letter, one, speaks for itself;
14 secondly, the question calls for speculation as to what -- this witness
15 to speculate what is in Dr. Parsons' mind and his motivation for writing
16 the letter, which cannot be gleaned from the face of the letter and,
17 rather, should have been appropriately put to Dr. Parsons. I believe it
19 MR. OSTOJIC: Mr. President, I think my learned friend
20 misunderstood my question. I wasn't asking her to speculate. I asked if
21 there was any evidence that she's seen from reviewing it as to having a
22 basis for Dr. Parsons increasing it. I's not asking her to speculate,
23 and I hope that's clear, but there is in this material, obviously, a
24 change from their very own protocol, and I'm simply asking her if she's
25 found that in the documents that were provided by the OTP for her review.
1 JUDGE AGIUS: Yes, Mr. Vanderpuye. Thank you, Mr. Ostojic.
2 MR. VANDERPUYE: Mr. President, the document in question reads in
3 relevant part that "ICMP does not represent that they are strictly true
4 or that the degree of uncertainty can be empirically estimated with
5 accuracy," and that's with respect to the number of 8.100. I think that
6 amply speaks for itself, and to put at that to the witness to interpret
7 what that means I think is completely inappropriate.
8 JUDGE AGIUS: Thank you. That's enough. Thank you.
9 [Trial Chamber confers]
10 JUDGE AGIUS: Our position is that it's a perfectly legitimate
11 question, provided the witness has understood that there is no room for
12 speculation evidence. She can answer the question.
13 MR. OSTOJIC:
14 Q. Dr. Komar, we're waiting.
15 A. At the risk of inciting a riot, can it be restated to me, please?
16 Q. I'll try to find it and restate it so that I don't draw another
18 JUDGE AGIUS: Reading it from the transcript isn't going to help
19 you much. You need to remember what you asked.
20 MR. OSTOJIC: I do. I just didn't want to misstate it, and I
21 would state it verbatim just so I don't draw an objection.
22 Q. Doctor, did you find in the evidence, in the materials that you
23 reviewed, any evidence to support Dr. Parsons in amending or revising the
24 number up to 8.100 as he does in his 2007, November 30th, letter?
25 A. Yes.
1 Q. Okay. Where?
2 A. This is where we had this conversation or began a conversation
3 yesterday about the difference between matching rate, representation, and
4 collection rate. The argument he puts forth and the Prosecution is
5 absolutely right that is he very cautious in his language in stating
6 that, you know, they are not trying to come up with a number. The reason
7 this is relevant is the 8.100 would go to how they are calculating their
8 probability. He makes the argument that because there is a matching rate
9 of 95.7 plus or minus .54 percent, that there would be a collection --
10 that - I'll read the language - "and that the total number of missing
11 can" -- I'm sorry. Let me go up. It's hard to read this.
12 Q. Would you like a hard copy?
13 A. Can we amplify it, please, or can we just blow it up? Thank you.
14 Thank you very much. Okay. In the third paragraph, "Then a simple
15 extrapolation would suggest we have collected reference samples from 95.7
16 percent of the missing. That's not a fair assumption." He is equating
17 matching rate to collection rate, and that's not -- I would suggest, in
18 my opinion, that's not appropriate.
19 Q. Can you just tell us why it's not appropriate in your opinion?
20 A. Matching rate goes to a statement of -- a statement of
21 observation, frankly, that says if we have 100 red balloons in one sample
22 and 97 red balloons in another, we have a matching rate of 97 percent.
23 There is a concurrence between the two samples of 97 percent. That's
24 matching rate. Collection rate is a different statement. If you have a
25 population, however you define your population - so for the sake of this
1 particular proceeding, let's say it's the purported victims of Srebrenica
2 - matching rate has nothing to do with collection rate. Collection rate
3 is a statement of how many of the family members relating to potential
4 victims of Srebrenica you have collected data from, and that isn't 95.7
5 percent. 95.7 percent is a statement of how many bone samples you have
6 matched the database as you've established it to that time from the
7 family members, so it's not a statement of collection rate. Collection
8 rate is how many of the family members have you sampled from, not how
9 many matches have subsequently been made from the DNA profiles extracted
10 from the bones.
11 Q. And is it fair, and help me understand this, Dr. Parsons' method
12 of doing this, is it -- and I don't want to use the word "flawed" because
13 I don't know Dr. Parsons that well, but is it misleading in any way or is
14 it problematic? I know you said it's inappropriate, but I still don't
15 have an appreciation as to the significance of that inappropriateness.
16 A. He is very clear, and he uses the word "assumption" multiple
17 times. So he is very clear that he is making an assumptive argument.
18 He's not -- he's not arguing a fact. He is saying that, you know, how do
19 we come up with this lower half of the number to make this prior
20 probability? He makes the argument that if they are getting a matching
21 rate of 95.7 percent when you take the bones and you compare them to the
22 family, he argues that he is making the assumption that, therefore,
23 they're getting a collection rate of 95.7 percent. In my opinion, that's
24 a false assumption and an assumption that would invalidate the
25 conclusion. Ask two experts; get two opinions.
1 Q. Doctor, is there -- in your review of these materials including
2 the 2002 and 2006 SOP by the ICMP and this letter from Dr. Parsons, did
3 you find any other areas of concern or problematic areas that you'd like
4 to share your opinion on?
5 A. State that again. Sorry.
6 Q. Sorry. We're examining Dr. Parsons' 30th November 2007 letter,
7 and I'm trying to draw from you if you have any other opinions other than
8 those which you've shared with us in connection with the number of 8.100
9 and the matching and representation issues that you've discussed. Is
10 there anything else that you see with the statistical calculations that
11 in your opinion may be problematic?
12 A. Off the top of my head, no.
13 Q. Fair enough. I'm going to direct your attention to your report,
14 which is in the first section where you discuss it. I'd like to ask you
15 before that, what happens to ICMP's matches if 7.000 is incorrect, if the
16 number 7.000 is incorrect?
17 A. It's not a matter of the number 7.000 being incorrect.
18 Q. Okay.
19 A. By changing the denominator, by changing your fundamental prior
20 probability, you change the end result, the statistical assessment of
21 what the possibility may be because they have set a line. There's
22 threshold that each identification must meet. There has to be a -- the
23 number has to be bigger than 99.8 in some cases, 99.5 in others. By
24 changing that statement of prior probability, you change the outcome; you
25 change the statistical outcome. And so that denominator is quite
1 important. It literally determines who gets called a positive
2 identification and who doesn't.
3 Q. Well, having worked with ICMP and based on your experience, we've
4 seen the protocols, the SOPs, from 2002 and from 2006. Have we seen any
5 -- or have you been able to review any since 2006 which alters or changes
6 that prior probability that we were discussing in these instances?
7 A. Can I have a moment to review the list? Off the top of my head,
8 I honestly don't remember. If there is a protocol beyond the second
9 protocol for the calculation, I don't know it, if there is one that --
10 Q. I don't think it exists, but I just wanted to be sure, and maybe
11 you've done a more thorough job, and I'm sure you have, of reviewing it.
12 So you have not been able to either review it or you have not been given
13 that document to review, correct?
14 A. I don't know that there is a document.
15 Q. Now, over all, if we look at Dean Manning's conclusions and
16 ICMP's conclusions, do you have an opinion based upon a reasonable degree
17 of certainty as to whether there is a necessity for peer review within
18 the system?
19 A. Yes.
20 Q. And what -- first, tell me what it is, peer review.
21 A. Peer review?
22 Q. I think we are familiar with it, but just so we could have a
23 clear understanding.
24 A. The foundation of forensic science, academia science, is that
25 work that is produced is reviewed by what are considered your peers or
1 your colleagues. No paper can be printed in a journal that hasn't gone
2 through peer review, no grant application is awarded money absent peer
3 review, and one of the better outcomes of the learning process we went --
4 that we as a forensic community went through in dealing with these
5 large-scale, large-death investigations is the need for peer review
6 within the process. And that brings up the -- sort of the duelling or
7 conflicting issues of transparency and -- transparency and
8 confidentiality, that essentially you're dealing with restricted
9 material. You're dealing with material that needs to be kept secret or
10 not released from the public versus transparency, which argues that those
11 in the communities and those who -- with a related interest should be
12 able to evaluate how you do things in order to be comfortable with the
13 fact that the process itself is correct. So peer review serves a purpose
14 so that others the community are looking at what you are doing, looking
15 at the reports you write, looking at the conclusions you come to, and
16 saying that there's a collective agreement that the work and the
17 methodology and the analysis and the conclusions are appropriate.
18 Q. And can you cite us an example that may come to mind?
19 A. Having gone through this process in Bosnia from 1999, 2000, 2001,
20 when we set up the protocols for Iraq
21 autopsy reports, the conclusions, and so on. I can also say that JPAC,
22 the US
23 peer review of its reports and its identifications and its analysis as
24 part of their protocols as well.
25 Q. How about the World Trade Centre? Would that also serve as an
2 A. Yes. They go through peer review in a different manner, but they
3 are certainly a very -- the identification process there can very much be
4 described as a transparent situation. The community at large is very
5 aware of how that is playing out.
6 Q. And were you, Doctor, involved in at all in any capacity with the
8 A. I was at -- yeah, I went to the World Trade Centre within 38
9 hours of the occurrence.
10 Q. Okay. And just tell us briefly, what was your role while you
11 were there?
12 A. I volunteered to be part of the recovery effort.
13 Q. Now, let's go back to your report, specifically Section 1.1,
14 where -- and I was trying to draw this from you, and I apologize for not
15 being able to. In the middle portion of that, you continue in discussing
16 Dr. Parsons' assumptions and analysis. You go on to say that the number
17 of DNA profiles in (5280), then you go on to make the calculation. Can
18 you explain that portion to us again, and what's the significance of it?
19 A. It's essentially the difference between matching rate and
20 collection rate. So he argues that the matching rate should serve as the
21 assumption for how he calculates what the total potential missing would
22 be. I -- this essentially presents how I would argue or make that
23 calculation. So rather than using matching rate, we have to look at --
24 sorry, if I can pull this in front of me. I'm arguing or suggesting that
25 the -- another way of calculating this would be the number of DNA
1 profiles out of the total reported people. So rather than saying we've
2 managed to match 95.7 percent of the bones to the purported sample, I
3 would argue we should look at how we are looking at our ultimate big
4 number as the percentage of DNA profiles from the total number of
5 reported people.
6 Q. And is the approach that you are suggesting, and it's a little --
7 is that a reasonable approach?
8 A. It's how -- if you invoke the World Trade Centre as an example,
9 that's how that calculation is being done.
10 Q. Okay. And so it's obviously used elsewhere, so it's accepted in
11 the scientific world, correct?
12 A. There is a precedent for doing it.
13 Q. Fair enough. And when calculating it the way you calculated it,
14 you come up with a percent of approximately 68 percent, correct, or 67.9
15 percent, to be fair, I guess.
16 A. No, that's statement of the number of profiles as of this letter
17 versus the number of individuals reported missing.
18 Q. Now, you go on to list that -- with the assumptions that were
19 made, you list out five, I think, or four reasons for having this equal
20 chance. Can you just explain that so we can understand that a little
21 better and the significance of it?
22 A. His second assumption presented in the letter is, and I'll quote,
23 "That the reason for failing to make a DNA match on a given bone profile
24 is that there is no reference sample present in the database." So it's
25 an argument that says, if we -- if ICMP is not able to make a match, it
1 isn't that the DNA can't be extracted from a bone, it isn't that the
2 individual isn't represented in what's being exhumed, or a variety of
3 other variables. He makes the assumption that the only reason the match
4 would fail to occur is because a family member hasn't given a DNA sample,
5 and I simply wish to highlight the other very reasonable assumptions that
6 should be listed there, that there are other very viable reasons why that
7 match would not occur.
8 Q. And then you proceed in your report to give us in the last
9 sentence there, that -- as you can see it, "Finally, the assumption that
10 there is no existing reference profile presupposes that every single
11 sample produce a viable DNA" - I'm just trying to slow down, Doctor,
12 because they've been very patient with, I think, me at the very least -
13 "which is extremely unlikely given conditions of the remains and other
14 factors impacting DNA preservation." Help me understand that, although
15 I've read it a couple of times and we have discussed it. What are you
16 saying there?
17 A. If I can, again, invoke the World Trade Centre as an example,
18 there are believed to be just less than 3.000 people reported missing, so
19 very much like circumstances like we have here. We have the number of
20 people reported missing. Of that number, only 57 percent have actually
21 been identified and accounted for, so just over 1.500. The same sort of
22 example happens here. You only have a portion identified of what is
23 believed to be the ultimate number, and for me I would be more
24 comfortable using the 7.772 that have been reported missing much as was
25 done in World Trade. So you have family members who have stepped forward
1 and said, we can account for 7.772 people that are reported missing.
2 To assume that you're going to get an identification rate of 95.7
3 at least of those individuals is not necessarily a realistic assumption
4 because it presupposes that your -- the materials that you are examining
5 are so pristine and producing DNA at a level that has simply never been
6 experienced in any other similar circumstance. It is more realistic to
7 simply look at the results you are getting and accept here are the ones
8 we actually can identify, whatever that number is. There essentially
9 would be two numbers: One is the number of people reported missing by
10 their families; the other would ultimately be the number identified.
11 It's not a moral distinction; it's not a judgement call; it's not a
12 failing of ICMP or any forensic community if the two numbers can't match
13 each other. An identification rate in these circumstances of 100 percent
14 or even 90 percent is not realistic. It's not -- it's not expected, and
15 to try and set an unrealistic goal for oneself isn't necessarily
16 productive in this environment. We should simply be going through the
17 process, identify -- finding as many as possible, identifying as many as
18 possible, and then whatever that number of identifications are, accept it
19 as what it is rather than try and reach a goal of getting every missing
20 person. That hasn't happened in other circumstances, and it's not a
21 realistic goal.
22 Q. Thank you, Doctor. In the couple minutes that we have left
23 before our break, I believe, I wanted to go back to this peer review
24 issue that we discussed. From your review of the records, have you seen
25 that there's been any of this peer review in connection with Manning and
1 Parsons and their overall conclusions?
2 A. In many of the ICMP SOPs, there are multiple signatures, which is
3 appropriate, and that's the way an SOP should be written. For all of the
4 reports that I've read, I can see no indication -- essentially when peer
5 review occurs, those who are reviewing it add their signature, not in any
6 way suggesting authorship or otherwise, but there is a record of those
7 who peer review. It's a way of controlling the information, if nothing
8 else. I see no indication that that's occurred. Now, I can't speak to
9 whether every single one of these is an original document that would
10 contain those signatures. There's no reference in the SOPs for sending
11 anything out for peer review, which there should be if it's a standard
12 practice. There should be noted in the SOPs. So based on what has been
13 made available to me, I can see no indication that that has occurred.
14 Q. And thank you. Let me go to another topic, which is a prelude, I
15 think, to my final area that I'd like to discuss with you after the
16 break, and that is, are you familiar with the term "fact shopping"?
17 A. Yes.
18 Q. Okay. Tell me what it means, if you know.
19 A. What fact shopping is?
20 Q. Yes.
21 A. It's a euphemism employed in the scientific community, the
22 forensic community, for only focusing on those features that support your
23 argument and discarding or disregarding those that do not support your
25 Q. And Doctor, having been in the field in Srebrenica and also
1 knowing and I'm sure speaking with your colleagues who have also been
2 involved in the exhumations, did you formulate an opinion as to whether
3 or not the OTP at any time was directing or being involved in the
4 exhumation process? And what I'm getting at is this, and to be honest
5 and fair to my learned friends, was it allowed that the anthropologists
6 and the scientists would be able to look at the evidence and then reach
7 their own conclusion, or was it more conclusion-driven?
8 JUDGE AGIUS: Yes, Mr. Vanderpuye.
9 MR. VANDERPUYE: Mr. President, I object on the ground that it's
10 leading; and secondly, I object also on the basis that it's unclear. It
11 is also vague with respect to whom my learned colleague is referring to
12 when he talks about what's allowed and what's not allowed.
13 [Trial Chamber confers]
14 JUDGE AGIUS: Doctor, have you understood Mr. Ostojic's question,
15 or do you wish him to clarify it better?
16 THE WITNESS: I would ask that it be restated.
17 MR. OSTOJIC:
18 Q. All right. Thank you, Dr. Komar.
19 JUDGE AGIUS: Then he will clarify it. In principle, we agree
20 that it's put and that it could be answered. The witness is perfectly
21 capable of answering that question, and then you can deal with the rest
22 on cross-examination if you so wish. Yes, Mr. Ostojic, if you could
23 rephrase your question in an intelligible way. I'm not saying it wasn't
24 before, but ...
25 MR. OSTOJIC: No, of course. Thank you, Mr. President.
1 Q. Thank you, Doctor. I will try to restate the question.
2 Doctor, have you seen through your experience in discussions with
3 colleagues or in articles that were published in connection with the
4 Srebrenica exhumations whether or not the scientists were driven to look
5 at end results as opposed to allowing the evidence to lead them to that
6 end result?
7 JUDGE AGIUS: Yes, Mr. Vanderpuye.
8 MR. VANDERPUYE: Thank you, Mr. President. Again, I object.
9 This is an area that this witness has not spoken about. It's not the
10 subject of the 65 ter summary, it's not the be subject of her report, and
11 we've received no notice with respect to this area of examination from my
12 learned colleague Mr. Ostojic.
13 JUDGE AGIUS: Yes, Mr. Ostojic.
14 MR. OSTOJIC: I'll have to look at that, but this witness is a
15 fact witness. I mean, she is a doctor who was at the scene, and she can
16 provide her impressions and opinion in connection with that if she has
17 one, and I'm not sure why it's so difficult for them to understand the
18 question, and it's basically -- she used the euphemism in the scientific
19 world this they use fact shopping. It's very analogous in my view at the
20 very least that it's the end justifying the means, so I think it's
21 appropriate for me to ask her that.
22 THE WITNESS: I would ask when I used that term in this court.
23 JUDGE AGIUS: Well, actually, it was Mr. Ostojic who used it, not
24 you, but he did ask you whether you understood it.
25 [Trial Chamber confers]
1 JUDGE AGIUS: Yes, Doctor, as you see we have been discussing.
2 One conclusion we definitely come to is that the question and the subject
3 matter of the question itself clearly fall outside the area of expertise
4 that -- your expertise, which is what you came here for actually. To
5 give us your expert advice. Assuming that you would agree with us, that
6 this is so.
7 THE WITNESS: I would be perfectly comfortable not answering the
9 JUDGE AGIUS: This is precisely what we were going to asking you.
10 So you move to your next question, please. But we will have the break
11 now. Thank you.
12 Mr. Vanderpuye, do you wish to --
13 MR. VANDERPUYE: Nothing to add, Mr. President.
14 --- Recess taken at 10.33 a.m.
15 --- On resuming at 11.00 a.m.
16 JUDGE AGIUS: Yes, Mr. Ostojic, how much longer do you have
17 because you have already taken 3 hours and 15, almost 20 minutes.
18 MR. OSTOJIC: I have approximately 15 to 30 minutes. It's just
19 one last topic that I'd like to discuss.
20 JUDGE AGIUS: Please start to wind it up.
21 MR. OSTOJIC: Thank you, Mr. President.
22 Q. Good morning still, Doctor, and thank you. I'm going to turn to
23 another topic if I may with you and that's a topic classified as social
24 group identity. Are you familiar with that general categorization?
25 A. Yes.
1 Q. And describe to us what that is.
2 A. If personal identification is putting a name back to a decedent,
3 social group identity is the use of class characteristics to define a
4 population. From an anthropological standpoint that could be a culture
5 group, a national group, a religious group; it is how people are united
6 as a community.
7 Q. In your review and analysis of the materials as well as your
8 experience and involvement in some of this, have you been able to examine
9 that material and evidence in connection with social group identity?
10 A. I have identified the few times it appears in the reports that I
11 have seen.
12 Q. And in your report I think it's reflected in section 5, just so
13 that everyone can follow along with us. And what you've done is look at
14 that topic and then looked at the evidence or the scientific or the
15 investigative evidence from Manning to view how they have applied it in
16 formulating some of your opinions, I believe. So let's look first at
17 Dr. Wright's report of the 12th of May, 1999, which is again -- and we
18 looked at it yesterday, P666. And given the time interests, if I can
19 just direct your attention quickly to page 00848216, which is again the
20 summary of findings. I think there's reference there to Muslim affinity.
21 Do you have that?
22 A. Yes.
23 Q. Now, can you share with us, what is the significance of social
24 group identity?
25 A. Specific to the charge of genocide it contains, to my
1 understanding which is, you know, perhaps better than a laypersons but
2 certainly not from a legal perspective, it seems that the definition
3 includes this notion of social group identity, that the victims must
4 constitute a group and it must be one of the protected groups.
5 Q. Have you seen through this material that you reviewed whether or
6 not that issue was analysed and reviewed in connection with the
7 exhumations that were conducted?
8 A. There are several comments to the effect of the affinity of the
9 victims, that's all I've seen.
10 Q. Now, if we look at the next page of Dr. Wright's report which is
11 00848217, I think that's where Dr. Wright discusses that they are not
12 going to study the bodies in the associated artifacts, do you see that?
13 A. There is a statement that said it is not the primary purpose of
14 the exhumation programme to study the bodies and the associated evidence.
15 Q. Do they proceed to do that, in fact?
16 A. To some degree. In isolated instances.
17 Q. Now, in analyzing Baraybar's report of the 8th of December, 1999
18 and I apologise that we are moving a little fast, which is identified as
19 P560, again specifically directing your attention to page number
20 00911867, does he summarize, if at all, as to what should be done in
21 connection with this social group identity?
22 A. If I can answer as I understand, essentially, he takes a
23 different approach, a more cautious approach, in my mind a more
24 appropriate approach. He notes the presence of what he defines as
25 religious artifacts but he doesn't ascribe a particular religious
1 affinity to what is found.
2 Q. You say he takes a different approach from whom?
3 A. Richard Wright's prior approach.
4 Q. And why is that, to the extent you would know scientifically
5 speaking, of course. I'm not asking you to speculate as to why Baraybar
6 has taken a different approach but is there any significance as to
7 Baraybar taking a different approach from Dr. Wright's approach?
8 A. Yes.
9 Q. What is the significance of that, if any?
10 A. What Mr. Baraybar does is essentially he simply describes what is
11 being found. They both follow the same essential SOP or protocol in the
12 field in that they both recognise that given the circumstance, the time
13 constraint and the need to examine the material in more detail, it's
14 appropriate not to be making determinations or assessments in the field.
15 So what Mr. Baraybar does in his report is simply note the presence of
16 objects without defining what it is he interprets them to mean. What
17 Mr. Wright does in his report is he ascribes a meaning, he interprets
18 what he sees and ascribes a meaning to it, he assigns them a category.
19 Q. Have you found through the evidence that you reviewed that
20 actually there was an effort to identify the social group?
21 A. Can you rephrase that, please.
22 Q. Sure, I'll try. From your review of the documents and materials
23 in connection with examining and providing evidence in this case, have
24 you found that the scientific evidence supports that they have found
25 concretely a social group identity for the bodies that were exhumed?
1 A. My opinion is that there hasn't been sufficient work on this area
2 to make any kind of definitive conclusion.
3 Q. Now, if we look at Manning's witness statement, Mr. Manning's
4 witness statement of the 24th of October, 2003, and just so the record's
5 clear and we can follow it, yesterday I think we identified it as 1D357,
6 however, the correct number in e-court is P551. I just wanted to carry
7 it so that when we review it later we would be able to follow it. Thank
8 you for that. So it's P551. And specifically I'll direct your attention
9 to X -- page X0169261.
10 THE REGISTRAR: The exhibit number is incorrect, I'm afraid.
11 MR. OSTOJIC: I didn't quite get that. Which number is
13 THE REGISTRAR: P551.
14 MR. OSTOJIC: Would we be able to get some assistance as to what
15 the correct number is? It's specifically previously identified as 1D357.
16 Again just so that we are clear which document it is, it's a witness
17 statement of Dean Manning --
18 JUDGE AGIUS: Yes, Mr. Vanderpuye.
19 MR. VANDERPUYE: I understand it's P3551.
20 JUDGE AGIUS: Thank you.
21 MR. OSTOJIC: Thank you very much, sir.
22 MR. VANDERPUYE: 24th November.
23 MR. OSTOJIC:
24 Q. Of 2003. Thank you. 24th of November, 2003. Again it's P3551.
25 And Dr. Komar, quickly I'd like to direct your attention to page 23 of
1 his report, which has the ERN number X0169261, and specifically
2 paragraphs 83, which is simply a caption, and then 84 is what I'd like to
3 ask you about. Have you been able to review this document in connection
4 with your review of the materials in this case?
5 A. Yes.
6 Q. And what is the significance, if any, that you may have with
7 respect to paragraph number 84, and the section obviously captioned
8 "Evidence of Muslim religious affiliation"?
9 A. It is a very brief summary of the source of -- or what he cites
10 as his source for making a determination of evidence of Muslim
12 Q. And do you have an opinion based upon a reasonable degree of
13 certainty if that was thorough or is it acceptable to merely make this
14 conclusion based on some of the material that he cites, given the
15 scientific evidence that you reviewed?
16 JUDGE AGIUS: Mr. Vanderpuye.
17 MR. VANDERPUYE: That is a completely speculative question.
18 There's no indication that this is represented to be exclusive
19 information that Mr. Manning relied upon.
20 JUDGE AGIUS: Yes, do you wish to comment.
21 MR. OSTOJIC: I could walk through it, I don't agree with my
22 learned friend but I'll walk, if I may, through --
23 JUDGE AGIUS: Then do that. Okay.
24 MR. OSTOJIC:
25 Q. My learned friend suggests that this isn't the exclusive evidence
1 that Mr. Manning relied upon. Have you, Doctor, been able in the course
2 of your review of the materials in this case been able to find any other
3 sources identified by Dean Manning to support anything other than that
4 which he is saying in the limited fashion that he does in this report?
5 A. I can't comment to what he has reviewed. Of the material I've
6 reviewed, the sections that have been pointed out in the Wright report
7 and in the Baraybar report and similar statements in their subsequent
8 reports with no more detail represents what I have found from the
9 scientific reports that expressly directly address this area. I have no
10 knowledge of what Mr. Manning had or reviewed.
11 Q. Does he in any of his reports or his statements or testimony,
12 does he give a basis as to what it is that he reviewed or can reach that
14 A. I would have to go through and review everything that he
15 submitted. I can't answer that.
16 Q. Fair enough. Now, does Mr. Manning, with respect to the evidence
17 of Muslim religious affiliation, follow the methodology that was outlined
18 by Mr. Baraybar?
19 A. The methodology?
20 Q. The way in which or the example and how Dr. Baraybar summarizes
21 this social group identity, that -- does Manning, is he consistent with
22 that or inconsistent, in the approach that Manning has -- that Baraybar
23 has suggested as we saw on P560 just recently?
24 A. I don't know that Mr. Baraybar suggests a methodology. He adopts
25 an appropriate and conservative approach to simply describing what he
1 sees rather than attempting to analyse what he sees. The statement
2 that's before me here appears to be a conclusion of an analysis.
3 Q. Do you have an opinion with respect to this conclusion of an
4 analysis by Dean Manning as to the appropriateness of it or not?
5 A. Given the significance of the question of religious affiliation
6 to the issues, specifically of genocide, overall what I see I don't feel
7 there's compelling evidence that this question has been adequately
8 addressed from a scientific perspective. Again, because the references
9 to it are so brief and so cursory, it feels to me as though this
10 particular topic given the weight it carries has not received sufficient
11 scientific scrutiny given that there are methods of determining religious
12 affiliation even in a decedent group.
13 Q. What are some of those methods, if you can enlighten us?
14 A. There are different methods. Essentially what you are looking
15 for are the class characteristics that define how you are defining your
16 population. So say for the purposes of this examination, we are looking
17 at the idea of who gets called a Muslim. A Muslim is a religious
18 affiliation; it's adherence to the Islamic faith. There are several
19 methods that one can go about defining that or recognizing whether or not
20 someone would be included in that particular population that include to
21 some extent what is vaguely alluded to here what would be called the
22 analysis of material culture. So material culture are those artifacts
23 and items that are associated with an individual, the clothing you wear,
24 the materials you carry, the jewellery, your documents and so on. So a
25 proper and complete analysis of material culture would be one means of
1 establishing that -- a religious affiliation.
2 A second means would be through the positive identification of
3 individuals provided there were sufficient anti-mortem social data
4 available that what then allow to track those individuals back and see
5 if, in fact, there is any social data, membership within a mosque, even
6 family reported data to support what religious affiliation those
7 individuals might have claimed in life.
8 Q. And these are reasonable approaches or reasonable methodologies
9 that could and should be utilized in determining social group identity?
10 A. They have been adopted elsewhere, yes.
11 Q. In this case, Doctor, or in the materials that you reviewed, have
12 you found that they as you said, I think in the Wright report that they
13 mention it but in a cursory fashion and they basically don't follow up
14 and apply this approach or methodology that's widely accepted or accepted
16 A. Of the materials I've reviewed essentially what there is is two
17 statements from the field, one by Mr. Baraybar that is cautious and
18 simply describes what he has been found; the other is by Richard Wright
19 who makes an assessment, who actually categorizes the victims based on
20 what he has seen. Both of those individuals are following a protocol
21 that says analysis is not being conducted in the field particularly of
22 the material culture. So one would have to few those statement as
23 cursory and preliminary at best and not based on a full assessment of the
25 If there is any subsequent report generated at autopsy or in any
1 other form that expressly looks at the material culture and evaluates in
2 terms of the question of religious affiliation, I have not seen it.
3 Q. You mentioned in your answer just now following a protocol that
4 says analysis is not being conducted in the field particularly of the
5 material culture, what protocol are you referring to? First, who set the
6 protocol to the extent you know and where can we find it?
7 A. It occurs first in Richard Wright's first report, his first field
8 exhumation report which talks about the standard operating procedure and
9 mentions on several occasions that analysis cannot and would not be done
10 in the field because the clothes are dirty, they are not going through
11 the pockets, they prefer - and it's completely appropriate - that
12 subsequent analysis occur at autopsy in the lab later on.
13 JUDGE AGIUS: Yes, Mr. Vanderpuye.
14 MR. VANDERPUYE: Thank you, Mr. President. I would just like to
15 know whether or not my colleague Mr. Ostojic is actually contesting the
16 question of the victim group affiliation in this case because otherwise,
17 I don't see that this is a relevant line of inquiry.
18 MR. OSTOJIC: Mr. President, just briefly to address that. The
19 Defence does not carry the burden of proof on any one element. This is a
20 specific element that the Prosecution carries the burden of proof on at
21 all times. To ask me that question would be unfair, and it would permit
22 me to testify which I, if the counsel wants, would be willing to on a
23 number of different topics, but I suggest that it wouldn't be prudent. I
24 think they care carry the burden of proof, and they should ask this
25 question to themselves and not direct it towards me, respectfully.
1 JUDGE AGIUS: Thank you.
2 [Trial Chamber confers]
3 JUDGE AGIUS: All right. For the time being, and we reserve our
4 position on this for later depending on what we get in return, we are
5 going to ask the witness, the expert witness to answer the question if
6 you can and if you wish to, and then we take it up from there.
7 THE WITNESS: Can the question be repeated, please.
8 MR. OSTOJIC: Would you like me to do it, Mr. President?
9 JUDGE AGIUS: No, no. We weren't addressing you. We were
10 addressing the witness.
11 MR. OSTOJIC: Sorry.
12 JUDGE AGIUS: Yeah, yeah. If you wish to repeat the question,
13 yes, of course, by all means.
14 MR. OSTOJIC: Thank you, Mr. President.
15 Q. And I think you were starting to answer. That specific element
16 as we've identified it, and I'm sure during cross, if they have it,
17 they'll produce it. With respect to social group identity, have you
18 found evidence to support that that's been scientifically and reasonably
19 identified and conducted?
20 A. Based on what I've reviewed, I don't feel that the issue has
21 received sufficient attention.
22 Q. To the extent -- other than the extent that we've discussed here,
23 and that would be Wright's report of the 12th of May, 1999, where he sets
24 out the protocol and what not to do as you've suggested and Baraybar's
25 report of the 8th of December, 1999, and given Manning's statement that
1 we've just looked at, the 24th of November, 2003, specifically Exhibit
2 P3551, any other evidence that that's not only been significantly
3 established but established at all?
4 A. I know of no other source. Based on the protocol that's
5 established in the field, it would suggest that any subsequent analysis
6 would have been done at autopsy and that, therefore, any additional
7 comments would come from that source. If anything other than that was
8 done, I have not seen it.
9 Q. And certainly, Dr. Komar, having met you recently and engaging
10 with you here this last day and so, if they had that material you'd be
11 happy to look for it and you'd be happy to give an opinion in connection
12 with that. Would that be a fair statement?
13 JUDGE AGIUS: That's -- I think we can move to your next
14 question. Don't answer that question, Madam, please.
15 MR. OSTOJIC: Fair enough.
16 Q. Doctor, with respect to some of the exhumations that you've done
17 - and I'm almost nearing the end and trying to be as fair as possible
18 with you - so I showed you a document which is on our exhibit list, which
19 has previously been identified as 1D374. It's a document from the United
20 Nations dated the 17th of July, 1995. And just so the Court understands
21 and my learned friend, I'm not going back to this issue of fact shopping
22 and the ends justifying the means, but I'd like to just have you look at
23 the second page of that document, if you will, and again, it's 1D374. We
24 are just waiting for it to come up on the screen.
25 Doctor, I think you may have seen this document before starting
1 your testimony. Is that correct?
2 A. Can I see the first page of it? Is it possible? I'm sorry.
3 Q. Yes, I'm sorry.
4 A. You presented this to me a few days ago.
5 Q. And just if we can -- I can direct your attention to the second
6 page of that document. The first full paragraph immediately before the
7 second paragraph number 2, there's a small indentation that I'd like to
8 focus our attention on. But before I put the question to you, I'll allow
9 my learned friend to address the Court.
10 JUDGE AGIUS: Yes, Mr. Vanderpuye.
11 MR. VANDERPUYE: Thank you, Mr. President. This is -- goes back
12 to the same objection I made previously. This is not the subject of this
13 witness's expert report. It has not been previously referred to, and
14 we've been on -- not put on any notice of this issue, and I think this is
15 a fundamental problem with respect to this issue. We additionally
16 weren't provided with a proofing note with respect to this matter, even
17 though the witness apparently has been presented with it and has had an
18 opportunity to evaluate it.
19 MR. OSTOJIC: It's certainly on our exhibit list that we've
20 tendered to my learned friend. I don't need the document, perhaps, to
21 ask this question, but I'm going allow the Court to rule on it. I
22 disagree with --
23 JUDGE AGIUS: That make it worse because if you eliminate the
24 document, then Mr. Vanderpuye's argument becomes stronger in the sense
25 that you did not give an indication of this in the proofing notes.
1 MR. OSTOJIC: We gave -- obviously, we gave the report of
2 Dr. Komar --
3 JUDGE AGIUS: Let's move to your next area because it is
4 definitely not in the area of expertise of the witness.
5 MR. OSTOJIC:
6 Q. Okay. Doctor in conducting the exhumations that you've
7 conducted, were you able to notice when you actually physically do that
8 exhumation as to whether or not some bodies sustained any shrapnel
10 A. I personally don't do that analysis in the field. I would do
11 that analysis in autopsy. I have in autopsy in -- just to answer a
12 question in a general form.
13 Q. Have you done it?
14 A. Have I done it at autopsy?
15 Q. Correct.
16 A. Yes.
17 Q. Okay. Have you done it in connection with the fieldwork that
18 you'd done -- that you'd performed in the Srebrenica graves that you
19 participated in?
20 A. The structure of how these exhumations and autopsies work are
21 such that when you are doing the field season you do your field season,
22 and then the material is leased to a morgue. The times I've spent in the
23 morgue were not directly associated with the material that I did in the
24 field, so I can't speak to -- specifically to Srebrenica because while I
25 may have conducted field exhumations in Srebrenica, I cannot be sure that
1 I then examined those bodies at autopsy. I've worked at the PIP morgue,
2 which is associated with Srebrenica remains, but I cannot be positive
3 that any one particular set of remains is associated with the specific
4 events of Srebrenica.
5 Q. You also -- just in this area, and this is nearing the end here.
6 With respect to the social group identity, you've identified in some --
7 in your report the bibliographies which establish such identities. I
8 just want to get this document in. I think it's 2D544, and if you can
9 just confirm to us or inform us of what this document is. It's, again,
11 A. Upon my arrival here, I was asked if the question of social group
12 identity has not been adequately addressed, what methods have been
13 adopted in the past and what are the protocols and standards that have
14 been set. This is by no means an exhaustive bibliography. It is simply
15 a -- what -- some of the references I had available at my disposal in
16 terms of how we go about addressing, how we would establish independently
17 and scientifically what the social group identity of a collection of
18 individuals would be.
19 Q. If I may just try to put it in a little more legalese, if you --
20 I think you'll understand me, and it's scientific as well. If this
21 bibliography highlights for us acceptable methods in which to determine
22 the social group identity, it's not an exhaustive list, we understand,
23 but it provides that methodology that you find in a scientific world as
24 being acceptable, correct?
25 A. It represents how this has been established in the past. This
1 question of acceptability is a Court question.
2 Q. Fair enough. Dr. Komar, thank you very much.
3 MR. OSTOJIC: And thank you, Your Honours, for your patience. I
4 just have to say one thing if I'm allowed. It's really more on a
5 personal matter, so I don't know if I should say it in public or in
6 private, but I've been -- I have a personal crisis that I have to tend
7 to, so I just want to apologise to the Court. I'm going to leaving at
8 12.30 to go back to Chicago, and I want to I apologise to Dr. Komar and
9 just so the Court knows as to why I won't be here later this afternoon.
10 And my colleague Mr. Nikolic is more than capable to address any issues
11 that may arise during cross-examination.
12 Thank you, Dr. Komar.
13 JUDGE AGIUS: Thank you. That puts Mr. Nikolic on stand by. He
14 will need to be present all the time.
15 MR. OSTOJIC: I should be back on Monday. That's my
17 JUDGE AGIUS: Oh, you'll -- okay. That makes it easier. Okay.
18 Thank you, Mr. Ostojic. Now, Mr. Zivanovic, do you have a
20 MR. ZIVANOVIC: No, Your Honours.
21 JUDGE AGIUS: Mr. Bourgon?
22 MR. BOURGON: Likewise, Mr. President, no questions for this
23 witness. Thank you.
24 JUDGE AGIUS: Thank you. Mr. Lazarevic?
25 MR. LAZAREVIC: Nor do we Your Honours.
1 JUDGE AGIUS: Thank you. Ms. Fauveau?
2 MS. FAUVEAU: [Interpretation] No question, thank you.
3 JUDGE AGIUS: Thank you, Madam. Mr. Krgovic?
4 MR. KRGOVIC: No question, Your Honour.
5 JUDGE AGIUS: Mr. Haynes?
6 MR. HAYNES: Two or three.
7 JUDGE AGIUS: Okay. Go ahead, please.
8 Cross-examination by Mr. Haynes:
9 Q. Well, good morning, Dr. Komar. I'd like to start off really
10 where Mr. Ostojic left off by thanking you for your evidence, it's been
11 interesting, informative and very succinct, if I may say so. But I'd
12 just like to pick up on two or three points relating to some of the
13 matters you've covered with Mr. Ostojic.
14 And the first is really the question of the calculation of the
15 MNI. Now, you told us yesterday that you first observed the use of that
16 term in the various reports you've read in the report of Mr. Wright
17 composed, I think, in 1999?
18 A. I'm not sure of the date, it's whatever the first Wright report
19 is when I have seen the first statement of a scientific calculation MNI,
21 Q. Yes. And then you went on to explain in some detail the rather
22 different method of calculation employed by Mr. Baraybar. Do you recall
24 A. Yes.
25 Q. I'd like, as it were, to throw into the melting pot a third
1 variant and to do that I would ask, please, that P00622 be placed into
2 e-court and the witness will need to see pages 75 to 76, and those who
3 speak Serbian will need to see pages 76 to 77.
4 Just so there's no mystery about this, Dr. Komar, this is the
5 report of Dr. Hagland which I think you have considered.
6 A. I don't know if I've read the specific report. I've certainly
7 read many of Mr. Hagland's reports.
8 Q. All right. Do you now have in front of you, Dr. Komar, a page
9 which should have in its top right-hand corner the number 62?
10 A. Yes.
11 Q. Is it sufficiently blown-up for to you read it?
12 A. On this version, yes.
13 Q. I wonder if you just take the trouble to read the paragraphs
14 under the heading "Determination of Minimum Number of Individuals and
15 Missing Body Parts." And when you've got to the bottom of the page, ask
16 the usher to flick it over and you can have a look at the next bit.
17 A. If I can see the next page, please.
18 Q. Can you see that?
19 A. Yes. Is it possible to scroll down past the -- thank you. Keep
20 going, please. Does it extend beyond the bottom of this page?
21 Q. I think so.
22 A. If we could keep going, please. Do I need to extend beyond
23 "Summary of plausible scenarios"?
24 Q. I don't believe so, Dr. Komar. I'll put the question to you and
25 if you need to read any more then we'll give you that opportunity.
1 Firstly, I ought to just check, had you seen that document or that part
2 of that document before?
3 A. No.
4 Q. And were you aware that prior to, as it were, Mr. Baraybar
5 overseeing the exhumations in relation to the Srebrenica investigation,
6 Mr. Hagland had overseen a series of exhumations himself?
7 A. I was aware of that, yes.
8 Q. Right. The substance of the question I want to put to you is
9 this: That is a method of calculating MNI, isn't it, that Mr. Hagland
10 there describes?
11 A. Yes.
12 Q. But it is a rather different method from that employed by
13 Mr. Baraybar, isn't it?
14 A. Yes.
15 Q. So when we come to look at, as it were, the calculation of MNI by
16 the Prosecution, we are not just looking at the method employed by
17 Mr. Wright and the method employed by Mr. Baraybar, we are looking at
18 three different methods, that employed by Mr. Wright, that employed by
19 Mr. Hagland and that employed by Mr. Baraybar?
20 A. I would also suggest that a fourth is introduced with the DNA
22 Q. Yes, thank you very much. While we are with that document, I
23 just want to head out into some rather dangerous water and ask that you
24 look at page 82 in the English, and for the Serbian speakers that's page
25 83. Don't worry about the numbers on your page, the page numbers I'm
1 giving relate to the computerized document. And if you would, I'd just
2 like it if you read to yourself, please, the top paragraph headed
4 A. Okay.
5 Q. And in particular, the penultimate sentence which reads:
6 "Finalisation of cause and manner of death as well as editing of autopsy
7 reports occurred under the direction of ICTY legal advisor
8 Peter McCloskey." You've been asked about, as it were, fact shopping and
9 the drivers behind the work on the ground, in your experience on the
10 ground, was that level of prosecutorial involvement common?
11 JUDGE AGIUS: Yes, Mr. Vanderpuye.
12 MR. VANDERPUYE: I object to the question. I think there's
13 nothing in the document that even suggests what level my colleague is
14 referring to and if he could specifically make that clear, I would have
15 no objection to the question.
16 JUDGE AGIUS: Right, Mr. Haynes, can you restrict your question
17 to the exact wording of the paragraph or that part of the paragraph that
18 you read, please.
19 MR. HAYNES: Yes.
20 Q. In your experience, were reports finalized under the direction of
21 ICTY Prosecutors?
22 A. Reports of investigators and ICTY members contributed to final
23 reports, reviewed final reports, I personally have never had a report
24 amended by a legal advisor. I have certainly had them revised by
1 Q. Would that include, as this document suggests, autopsy reports?
2 A. I -- I have not had an autopsy report revised by an ICTY member.
3 Q. Well, let's not be naive, you didn't work in a vacuum. Were you
4 ever aware of that being done to any report prepared by any of your
6 A. Am I allowed to discuss -- that strikes me as gossip or hearsay.
7 JUDGE AGIUS: No, no, we don't need gossip. From your personal
8 knowledge, I think. As far as your personal knowledge goes, are you in a
9 position to answer that question?
10 THE WITNESS: I have seen it done, yes.
11 MR. HAYNES: Thank you, Dr. Komar. I have no further questions.
12 JUDGE AGIUS: Thank you. Which brings us to you, Mr. Vanderpuye.
13 MR. VANDERPUYE: Thank you, Mr. President.
14 Cross-examination by Mr. Vanderpuye:
15 Q. Good morning, Dr. Komar. My name is a Kweku Vanderpuye. On
16 behalf of the Prosecution I'll put some questions to you in relation to
17 your direct testimony. I hope it won't be too long but I can't guarantee
18 anything. If I say anything or I ask you question that's not clear to
19 you, just, please, let me know and I'll try to rephrase it in a manner
20 that we can both understand each other. As you've been testifying, you
21 know to try to speak a little slowly so that these matters can be
22 interpreted to all the other members here.
23 Now, you are obviously a very experienced forensic
24 anthropologist; that's right, isn't it?
25 A. I would suggest that I have experience in this area, yes.
1 Q. Okay. And as I understand it, the contributions of forensic
2 anthropologists such as yourself to the identification systems with
3 respect to the investigation of mass fatalities are to help locate and
4 recover human remains; is that fair to say?
5 A. That's a part of it.
6 Q. Okay. And it's also to examine the biological characteristics
7 that potentially bear on the process of individual identification?
8 A. Yes.
9 Q. Or personal identification?
10 A. Yes.
11 Q. So you look at things like age at death?
12 A. Yes.
13 Q. Sex?
14 A. Yes.
15 Q. Stature?
16 A. Yes.
17 Q. And a host of other osteo-biological information?
18 A. Yes.
19 Q. And part of your job is to interpret skeletal evidence of trauma?
20 A. Yes.
21 Q. And it's also part of your job to identify the presence or
22 absence of trauma?
23 A. Yes.
24 Q. And to differentiate between ante-mortem and postmortem and peri
25 mortem trauma?
1 A. Yes.
2 Q. Now, with respect to the remains that are located, it would also
3 be part of your function to separate or re-individualise remains,
4 reassociate them?
5 A. Those are two different ideas, but yes.
6 Q. You would do both?
7 A. Yes.
8 Q. And in general, the contribution of forensic anthropologist
9 through identification process also depends on what the object of that
10 process is; that is, to identify particular individuals in whole or to
11 identify whether or not a particular individual is represented in a given
13 A. Yes.
14 THE INTERPRETER: The speakers are kindly requested to slow down
15 and to make pauses. Thank you very much.
16 JUDGE AGIUS: You hear that?
17 MR. VANDERPUYE: Thank you very much. I do hear it and I'll try
18 to slow down.
19 JUDGE AGIUS: Thank you.
20 MR. VANDERPUYE:
21 Q. So there could be a process that's undertaken in order to, for
22 example, return all of the skeletal remains or remains of an individual
23 who is identified in a mass fatality situation or case to a family
25 A. Yes.
1 Q. And in that particular circumstance you would evaluate all these
2 osteobiological information in order to establish that when you return
3 those remains, you are not returning somebody else's remains to the wrong
4 family, for instance?
5 A. That should be a portion of the process, yes.
6 Q. And that's typically involved in a humanitarian effort such as
7 identifying and returning the remains of missing people?
8 A. Yes.
9 Q. Okay. Now, where the object of a given undertaking is to
10 identify whether or not somebody is simply represented in the pool of
11 remains that are located, forensic anthropology also has a contribution
12 to make with respect to that?
13 A. Yes.
14 Q. And that has to do with basically the same thing, trying to
15 establish, reassociate as many bones as you can under the circumstances?
16 A. That would be a portion of it, yes.
17 Q. Okay. So in a situation, for example, like the World
18 Trade Centre events of September 11th, where you have highly fragmented
19 remains, that would be a situation where it would be possible but perhaps
20 difficult to evaluate certain osteobiographical information in order for
21 the --
22 THE INTERPRETER: Counsel and witness are kindly asked to slow
23 down for the interpretation. Thank you.
24 MR. VANDERPUYE:
25 Q. -- for the purpose of establishing a personal identity with
1 respect to those remains?
2 A. The beginning of the question asked whether the fragmentation
3 confounds that effort, is that a fair --
4 Q. Makes it more difficult?
5 A. Yes.
6 Q. Okay. Now, you, of course, recognise that DNA testing in general
7 is quite well-established technology?
8 A. Yes.
9 Q. And you recognise, of course, that it's widely used in the
10 context of both criminal and civil proceedings?
11 A. Yes.
12 Q. And it's used in the systems of identification in the context of
13 mass fatalities?
14 A. Yes.
15 Q. Such as natural disasters?
16 A. Yes.
17 Q. Acts of terrorism, conflicts?
18 A. Yes.
19 Q. And it's used in that capacity because DNA is unique to a given
20 individual, isn't it?
21 A. With the exception of identical twins, yes.
22 Q. Yes, with the exception of identical twins.
23 A. The complete DNA code is, yes.
24 Q. Now, in the case of mass fatalities, DNA analysis can, A, assist
25 in ongoing medical and legal evaluations?
1 A. Yes.
2 Q. Okay. It can also be used to associate fragmented remains?
3 A. Yes.
4 Q. And it can also actually identify individual victims?
5 A. It can form the basis of an opinion as to identification, yes.
6 Q. So for example, where you have a pre-existing sample of a given
7 person's DNA, their own DNA, as it were - toothbrush, comb, something -
8 and a sample is recovered from the site of a mass fatality. You can
9 establish that person's individual identity through matching their
10 respective samples?
11 A. You are comparing self to self. That is a match. That is
12 absolutely true.
13 Q. Okay. Do you accept at least in principle that the DNA analysis
14 can establish in the case of mass fatalities that a person is dead and
15 that a person is represented or persons -- part of a person is
16 represented in the remains that are found at a given location?
17 A. I would suggest that a DNA profile consistent with the individual
18 -- again, are we matching self to self or matching to other things?
19 Q. We'll do it first self to self.
20 A. Self to self, yes.
21 Q. Okay. And then with respect to what's called a kinship analysis,
22 that is, comparing blood relatives to the sample in question, do you
23 accept that DNA analysis can establish, A, that the person is at the
24 location where the DNA is ostensibly gathered and that they match that
25 person familially?
1 A. I'm uncomfortable with the term "match." What you're talking
2 about there is a statement of statistical probability that would form the
3 basis of an opinion as to whether that relationship is true.
4 Q. Okay. And in your experience, to the extent that you are
5 familiar with matches in the context of kinship DNA analysis, are you
6 aware of what the statistical thresholds are with respect to declaring a
7 kinship match?
8 A. That would be established by the SOP or protocol for the
9 organisation responsible for conducting that.
10 Q. And with respect to the ICMP in particular, having familiarized
11 yourself with the standard operating procedure, are you aware of what the
12 statistical threshold is with respect to establishing a match?
13 A. It is contained in their SOP, yes.
14 Q. Okay. Are you aware that the statistical level of surety with
15 respect to declaring a match that is followed in the ICMP is a threshold
16 level of 99.95 percent?
17 A. For non-tentative matches, that's correct.
18 Q. And are you aware that it is 99.0 percent with respect to
19 presumptive -- where there is, I should say, presumptive evidence of a
21 A. Yes.
22 Q. And you spoke earlier on your direct testimony about the
23 significance of what are called prior odds or prior probability?
24 A. Yes.
25 Q. In terms -- okay. And that is a number that is used to calculate
1 the end reliability of a putative match?
2 A. Yes.
3 Q. All right. If I could have in 65 -- could I have 65 ter 3479,
4 please, in e-court. I should say that this is -- it's under seal, so we
5 should avoid broadcasting it. What I'd like to show you, what is
6 depicted here in e-court, is an example of a match report that is issued
7 by the ICMP, and I just want to focus your attention, if I could, first
8 in the area where you see it says "donors," and what it indicates there
9 are who the donors are: wife, son, daughter, mother. Okay. If we
10 proceed further down the page, you can see where it says "results of
11 matching." Now, with respect to the results of matching, you can see
12 here in this particular example that the DNA results obtained from the
13 bone sample are 29.5e9 times more likely if the bone sample originated
14 from an individual related to the blood references in a manner as
15 described on this report than to another unrelated individual in the
16 general population." It then says, "The probability of relatedness as
17 described on this report is 99.999976 percent when using prior odds of
19 First, if you could tell us, 29.5e9: What is that?
20 A. That's what is known as a likelihood ratio.
21 Q. And what does that express in terms of numbers because...
22 A. Essentially, it's a statement of likelihood that if this sample
23 were drawn from another source - and we'll define what they mean by
24 "general population," I assume, in a moment - that there is a likelihood
25 that the individual is more closely related to the sample than to the
1 general population.
2 Q. All right. Now, 25.5e9 stands for what? Is that a million,
3 billion, trillion?
4 A. E to the 9th.
5 Q. What is that?
6 A. It's an extrapolation of the number, so yes, it's a huge number.
7 Q. It's 29.5 trillion, isn't it?
8 A. Yeah.
9 Q. So this report basically reads that the bone sample that was
10 obtained was 29.5 trillion times more likely if it originated from the
11 individual related to the blood references in the manner described in
12 this report, these references, than it would to be another individual in
13 a general population?
14 A. As general population is defined by ICMP, yes.
15 Q. Okay. And this would denote an extremely high level of
17 A. A likelihood ratio is not a level of assurance. It's a statement
18 of probability.
19 Q. All right. Then it would be an extremely high statement of
21 A. Yes.
22 Q. Now, with respect to the prior odds of 1 in 7.000, how does that
23 influence that number of 29.5 trillion?
24 A. It doesn't effect that number. It affects the statement of the
1 Q. Okay. And what if that number were to change to 1 in 6.000? How
2 does that effect 99.9999?
3 A. The last few digits would shift slightly.
4 Q. When you say "last few digits" --
5 A. After the comma, 9999.
6 Q. Okay. So 76 might change?
7 A. Potentially.
8 Q. Okay. And how does that influence the statement of probability
9 as is indicated in this report?
10 A. The statement of probability? What do you mean by that?
11 Q. The 29.5 trillion.
12 A. The likelihood ratio?
13 Q. Yes, the likelihood ratio.
14 A. I don't quite understand what you are asking me. I'm sorry.
15 Q. Well --
16 JUDGE AGIUS: Would that affect it significantly, in any
17 significant manner or not, in other words.
18 THE WITNESS: Given the size of the number, I would not argue
19 it's a significant change, no.
20 MR. VANDERPUYE:
21 Q. And what if that -- all right. I'll leave that alone. Well, the
22 probability of relatedness is a different question than the level of
24 A. Absolutely, yes.
25 Q. Okay. And the threshold for the level of surety in order for the
1 ICMP to issue this report is what?
2 A. The threshold of surety?
3 Q. Yes, of surety?
4 A. Are you referring to the 99.95 number? I don't know if this is a
5 tentative or putative match or not. It's whatever is in their ICM --
6 their protocol for --
7 Q. Okay.
8 A. I don't know if this was a putative match or not -- or tentative
9 match or presumptive.
10 Q. All right. Well, assuming that it's -- assuming that it -- there
11 is a -- it is not a presumptive match --
12 A. Okay.
13 Q. -- the threshold would be -- for the probability of relatedness
14 would be 99.95 percent?
15 A. I'm not sure you're not confusing likelihood statement and
16 probability, so we'll stick to that 99.9 --
17 Q. Yes.
18 A. That's correct. If that's what is in their protocol, then that's
19 their standard, yeah.
20 Q. All right. Now, I may have misunderstood you, but you seem to
21 have indicated that when it comes to the question of unique DNA, that
22 there is a possibility that a unique DNA as designated by ICMP is not
24 A. There is a possibility, yes.
25 Q. Now, in your estimation, what is that possibility, if you can
1 state it as a ratio?
2 A. I wouldn't attempt to qualify it unless I was sure of what the
3 sample size you were referring to was.
4 Q. Okay. Well, you specifically referenced a number of 816 unique
5 DNA profiles.
6 A. That number was drawn from a database that I was given from the
7 ICMP as of October, I believe it was 8th, 2007, which was their list of
8 what they were calling unique biological.
9 Q. Okay. Now, with respect to their calling these unique biological
10 profiles, am I correct to say that your position is that they don't --
11 they are not unique?
12 A. The possibility exists that they may not be because what
13 determines uniqueness in this particular case is a comparison of that to
14 a defined reference sample.
15 Q. Okay. So if you have a situation where you have siblings, and
16 you are seeking to establish whether or not those siblings' DNA exist in
17 a given pool, you can do that by conducting a kinship analysis?
18 A. If I understand your question, yes.
19 Q. Okay. And you can -- you can establish that each one of those
20 siblings is related to the donor. That is the familial reference sample.
21 A. Only if evidence of both is found.
22 Q. Only if evidence of both is found?
23 A. Yes.
24 Q. That is, you can establish in the same way that a given
25 individual is related to a given set of parents, for example, family, for
1 either one of those siblings?
2 A. Are you talking a reverse paternity test?
3 Q. No, I'm talking about making a kinship analysis for Brother A to
4 Parent A and Brother B to Parent A.
5 A. Yes.
6 Q. You can do that?
7 A. In -- with the proper circumstances, yes.
8 Q. And in doing so, in making these types of full sibling
9 comparisons, it may be the case that you cannot determine which profile
10 corresponds to which sibling?
11 A. Absolutely true, yes.
12 Q. Although you can determine that both profiles correspond to
13 Parent A.
14 A. You are assuming there are two separate profiles?
15 Q. Assuming that they are two separate profiles.
16 A. Yes.
17 Q. Okay. In the case where there's one profile, you can establish
18 that the one profile relates to Parent A, right?
19 A. There would be a statement of probability that that relation
20 happens, yes.
21 Q. Yeah, such as a match report?
22 A. Yes.
23 Q. Okay. But it's not possible to know unless you have two profiles
24 whether or not that individual profile corresponds to Brother A or
25 Brother B?
1 A. Even in the presence of two profiles, you would not be able to
2 differentiate them based solely on the DNA.
3 Q. That's right.
4 A. Yes.
5 Q. All right. So it's possible to have a DNA match wherein you do
6 not know within a limited group of individuals to whom the particular
7 profile corresponds?
8 A. I would not use the term "match" in that circumstance.
9 Q. Okay. But it is possible to have a DNA profile where you know
10 that it is related to a particular family or particular blood donors
11 without knowing whom in a given -- or a limited class of individuals that
12 DNA profile corresponds to?
13 A. Can you rephrase that question, please.
14 Q. Yeah, I'll try.
15 A. Yeah.
16 Q. Well, I'll use myself as an example. My DNA is recovered from a
17 given location, but my mother reports my brother and I missing. It's
18 possible to know that the DNA profile is one that relates to my mother's
19 children, but it's not possible necessarily to know if it relates to me
20 or my brother. That's true, isn't it?
21 A. That can technically be true, yes.
22 Q. And so in the case where you have an individual DNA profile, that
23 would certainly correspond to an individual, although it's not clear to
24 whom it corresponds?
25 A. It could correspond to several individuals in your scenario. So
1 if you took the example of you and your brother, just because a DNA
2 sample exists doesn't mean we know the number of people that it
3 potentially could match.
4 Q. All right. Assuming that the reporting is accurate, that is that
5 there are only two of us that could be in those graves, then in that case
6 you can make that determination?
7 A. It would depend on the reference sample you are comparing that
8 DNA profile to.
9 Q. Okay. Well, let's make it more specific then. Let's make it
10 that we are talking about a sample that is compared to both parents of
11 the subject.
12 A. That's not what I'm saying. It's not about who you are taking
13 the reference back to. It is the comparison -- not only are you
14 comparing child to family. In order to create these statements that you
15 are referencing here, you then have to go the next step and compare that
16 degree of relationship to an outside source. So if you do it in a small
17 scale, you would compare it to other reference individuals related to
18 Srebrenica. If you do it in a larger scale, what they are calling
19 general population, they are actually comparing it to 423 supposedly or
20 assumed to be unrelated individuals from the Balkans. If you took it to
21 the general population as a whole, if you compared it to the US database
22 of sex offenders and opened it up to a completely unrelated -- or
23 presumed unrelated population, you would end up with a different number.
24 Q. All right. Well, is there something that you found that is
25 methodologically improper when comparing a given sample to the general
1 population that's based upon that sample of that population, in terms of
2 DNA analysis, is there something methodologically problematic with that
3 process from that your point of view?
4 A. Not that chunk of it, no.
5 Q. And in fact, that particular process is employed in establishing
6 -- establishing DNA databases and in comparing DNA information across all
7 kinds of populations. Isn't that true?
8 A. In certain circumstances, yes.
9 Q. Well, you have a given sample of DNA that is taken in order to
10 establish certain classifications among different groups of people such
11 as people from a particular race, people from a particular region, isn't
12 that true?
13 A. That gets into haplogroup analysis, and that's a different aspect
14 of DNA.
15 Q. Okay. Well, when you say that they're comparing it against group
16 of 423 group of individuals in terms of establishing what the frequency
17 of a particular characteristic is within that population group, that is
18 how DNA is normally compared, isn't it?
19 A. The frequency of an allele to -- within that population, yes,
20 that's absolutely right.
21 Q. And there's nothing methodologically improper -- there's nothing
22 methodologically --
23 THE INTERPRETER: The speakers are kindly asked to slow down both
24 for the record and for the sake of the interpreters. Thank you very
1 JUDGE AGIUS: Please, especially you, Mr. Vanderpuye.
2 MR. VANDERPUYE: Thank you, Mr. President.
3 Q. There's nothing methodologically improper about making that
4 comparison based upon a sample of the population?
5 A. As I understand you've said it up to this point, yes.
6 Q. Yes, there is, or yes, there isn't?
7 A. Is there anything wrong -- there is nothing wrong with doing
9 Q. All right. Now, I don't have the access to the database that you
10 have in front of you, but I'd ask if I could have that up in e-court
11 somehow. Great. Now, you've indicated that you've seen --
12 JUDGE AGIUS: Mr. Ostojic.
13 MR. OSTOJIC: I truly apologise for interrupting, but we did send
14 that to the OTP a couple of days ago, actually, in an attachment, so I
15 think they should have it. We did clearly send that material to them
16 when Dr. Komar was here, so...
17 MR. VANDERPUYE: Yeah.
18 MR. OSTOJIC: Oh, okay.
19 MR. VANDERPUYE: I acknowledge that I have it. I'm not saying
20 that I don't. I just want to refer to it for a moment.
21 JUDGE AGIUS: Thank you.
22 MR. VANDERPUYE:
23 Q. You've indicated that you've found certain instances in which a
24 DNA profile is attributed to more than one person.
25 A. Yes.
1 Q. And could you just indicate where you see that on the screen just
3 A. I'm pointing to -- my cursor to a number of them, so I've
4 essentially grouped them together, and they run on for some time, so this
5 -- all of this section for quite some time.
6 Q. All right. Now, I believe the names in this circumstance are --
7 well, there's confidentiality issue with respect to this.
8 MR. VANDERPUYE: I think maybe it would be wise to go into
9 private session, if I could.
10 JUDGE AGIUS: That's easily done. Let's go into private session
11 for short while, please.
12 [Private session]
11 Pages 24019-24027 redacted. Private session.
13 [Open Session]
14 MR. HAYNES: Do you want me to start again so that...
15 JUDGE AGIUS: No, I don't think it's necessary.
16 MR. HAYNES: There certainly has been, so far as those who defend
17 are concerned, since January the 23rd been a standing request for
18 disclosure of information establishing the identity of exhumed persons,
19 and I do make the observation because I'm specifically asked to that it
20 does, rather, seem to us in any event that under the rules of the
21 Tribunal that material ought to have been disclosed anyway but -- without
22 the need for a request. But there has been a standing request for that
23 since January, which appears to have gone into abeyance for a number of
24 months until there was a meeting at the end of last month and a further
25 series of specific requests by e-mail, which ultimately were refused by
1 the Prosecution on the 5th of July.
2 I'm conscious of the fact that the precise intent behind what was
3 sought is likely to be the subject of debate, but in any event, I do
4 wonder where we are going with this witness being asked about it.
5 Plainly, she would have liked to have seen it. Plainly she hasn't seen
6 it, and I do invite the Prosecution and the Trial Chamber to consider
7 whether this line of prosecution -- this line of cross-examination is
8 fruitful or relevant. And I would invite you to say that it should stop
9 now and that the material which has undoubtedly been requested should be
11 JUDGE AGIUS: Yes, Mr. McCloskey. Thank you, Mr. Haynes.
12 MR. McCLOSKEY: Mr. President, if I could briefly speak to the
13 matter of the requests of -- that were related to the Popovic witness
14 that we most -- we may most recall -- we can call it the pherograms
15 issue, and I think -- you clearly recall from Your Honours' question,
16 Mr. President's question, that it -- this -- that Mr. Pherograms - sorry,
17 I can't remember his name - never asked his own counsel for it and
18 counsel never asked us for it. Now, and I believe they did that
19 strategically as they did the same thing with their exhumation expert who
20 wanted more documents but couldn't provide a full opinion because he
21 wasn't provided all the pathological reports, and we were never asked
22 about that, either. We see the same thing happening with pherograms,
23 that I can't give you my opinion because I don't have the reports. Now,
24 factually, since then they have asked us for massive numbers of these
25 things that we considered and we refused because we don't think it's been
1 done in good faith, and it's a massive amount of material. The witness
2 has already testified. We don't want to go back into time. I don't
3 think it was good faith. I think it was a strategy they made, and so
4 that's why we've refused that.
5 That doesn't have anything do with this witness. This witness
6 clearly asked the -- I'll let Mr. Kweku get into this witness, but just
7 to remind you of the situation with the Popovic witnesses, that's where
8 we are there. It's clear to me that we were not asked for anything for
9 this witness. We are checking to see if ICMP was asked. I could also
10 ask the Court whether you were asked to provide a subpoena for such
11 materials. Everyone knows that that is something that's available if
12 that can be said. It's, of course, a critical issue to this expert that
13 she has questions. She's making significant critical comments of her
14 former colleagues in a very important case. She has questions. She
15 needs them answered. I want her to have those -- that material if she --
16 if it's reasonable. It didn't come to us. We just got word from talking
17 to ICMP's people. They were never asked, as far as they can see from the
18 record. So this goes, of course, to a very important question as you can
19 tell from Mr. Vanderpuye's last question. It was the first time she
20 tended to evade in her answer where she was asked, Well, shouldn't you
21 have reviewed this material before making a critical comment about
22 colleagues, and she was evasive. So this is an important area of
23 cross-examination. I will stop there because it's Mr. Vanderpuye's
24 cross-examination, but to suggest it's not an appropriate area of
25 cross-examination is not correct.
1 JUDGE AGIUS: Mr. Vanderpuye, just one question before we can
2 discuss -- just one moment. Have you finished with your line of
3 questions on this issue, or do you have further questions? Especially
4 considering that Mr. Ostojic is no longer with us now.
5 MR. VANDERPUYE: Thank you, Mr. President. I'm sorry, I haven't
6 had an opportunity to look to see where I wound up before the break. I
7 think I'm practically finished with it, but I'm just not certain because
8 I can't remember now exactly where I left off.
9 JUDGE AGIUS: Fair enough. We'll give you time by giving the
10 floor to Ms. Tapuskovic, and in the meantime, please check.
11 MR. VANDERPUYE: Thank you, Mr. President.
12 JUDGE AGIUS: Thank you. Yes, Ms. Tapuskovic.
13 MS. TAPUSKOVIC: [Interpretation] Thank you, Your Honour. Just in
14 order to clarify certain things in this discussion about disclosure on
15 the part of the Prosecution, we can say that the issue of
16 electropherograms was raised only when Mr. Parsons testified. However,
17 it arises from the testimony of Mrs. Komar and Mr. Stojkovic, that the
18 electropherogram is not enough for anybody to establish whether the
19 procedure of identification was carried out correctly. That is why
20 before Parsons', Stojkovic's, and Komar's testimony, we requested from
21 the Prosecution to submit identification records for all the exhumed.
22 The three Defence teams have comprised the entire documentation, whatever
23 you may call it, which concerns the establishment of the identity of all
24 the exhumed persons. Therefore, I believe that the Popovic team and the
25 Nikolic team and the Beara team have in due time, far before the
1 beginning of Defence case and before Mr. Parsons' testimony, has put a
2 very well defined request, and that was on the 23rd of January.
3 JUDGE AGIUS: Yes. Mr. McCloskey. And please, keep it short.
4 MR. McCLOSKEY: As -- Mr. President, no, we've -- this has not
5 been a trial of -- so far where the Defence have been concerned about
6 discovery issues. We have done our best to provide everything, and if
7 there were any issues they would have come back to us. There's never
8 been an issue that she's talking about. I don't know what she is talking
9 about. If they needed more, we got more. The only time we've ever come
10 across a situation where we've said no was with the pherogram issue
11 because we did not -- we thought it was overly burdensome. That train
12 was gone from the station, and I didn't think it was in good faith. This
13 thing she just said is absolutely not founded. If we'd had an issue with
14 them, it would have been raised. Mr. Bourgon, Mr. Zivanovic, they'll
15 take me on when they don't think they are getting something they need,
16 and we know that, but they never took us on on this, and -- so I don't
17 know what they are talking about, and it's frankly probably a side issue
18 at this point.
19 JUDGE AGIUS: Okay. Thank you. I think we --
20 MS. TAPUSKOVIC: [Interpretation] Just one more sentence, Your
21 Honour, if I may.
22 JUDGE AGIUS: Go ahead.
23 MS. TAPUSKOVIC: [Interpretation] After the testimony of expert
24 Stojkovic on the 30th of June this year, we had a meeting both with the
25 expert Stojkovic, Mrs. [as interpreted] Vanderpuye, and Mrs. Nikola
1 Osevic [phoen], and we considered options as to what should be disclosed
2 to the Defence, and he was requested to specify at that meeting that we
3 held in the afternoon hours what should be disclosed. Mr. McCloskey
4 should be absolutely clear what we are talking about. We had a meeting
5 regarding the additional disclosure after that particular testimony, and
6 that was all confirmed in a subsequent e-mail, and the e-mail provides
7 the list of documents that were requested.
8 MR. McCLOSKEY: I can clarify that, and I agree with that.
9 That's post the testimony of the pherogram witness.
10 [Trial Chamber confers]
11 JUDGE AGIUS: Yes, Mr. McCloskey.
12 MR. McCLOSKEY: Just -- the person I've been referring to as Mr.
13 Pherograms is Mr. Stojkovic, just for the record. I apologise for not
15 JUDGE AGIUS: Thank you. Yes, Mr. Vanderpuye, had you exhausted
16 your line of questions on that?
17 MR. VANDERPUYE: Yes. I've had a chance to review it, and I
18 think -- I don't see any reason to continue in that --
19 JUDGE AGIUS: All right. Then we can proceed with your next line
20 of questions. Let's get the witness back in.
21 MR. HAYNES: I'd just like to say, we could have achieved all
22 that without troubling you. That's what I asked Mr. Vanderpuye to do at
24 JUDGE AGIUS: Thank you, but he needed to check.
25 MR. HAYNES: I accept that.
1 [The witness entered court]
2 JUDGE AGIUS: Yes, Mr. Vanderpuye.
3 MR. VANDERPUYE: Thank you, Mr. President.
4 Q. All right. Good afternoon, Dr. Komar. I just want to clarify
5 one other thing with you, if I could, with respect to the data that you
6 had on your computer there. In the section of the data where I referred
7 to you -- where I referred you to the protocol ID number, is it right to
8 say that that protocol ID number represents a match made with respect to
9 DNA from a particular individual?
10 A. It would be more accurate to say that it represents a DNA profile
11 extracted from an element, a skeletal element. The use of individual --
12 unless I'm not understanding you. If you are saying, does a DNA profile
13 equal an individual, I can concede you that, but what we are talking
14 about here is a representation of whatever it was cut from. So I'm not
15 -- if I've answered your question, I don't know.
16 Q. I think so. Whatever it was cut from comes from one person as
17 opposed to another person; in other words, it's discrete?
18 A. Yes.
19 Q. All right. Now, you had referred to Dean Manning's reports, I
20 think, in a number of areas on your direct -- in your direct testimony.
21 In particular, you talked about his characterization of certain
22 information as reflecting victim group affiliation or identifying the
23 group as Muslims?
24 A. I believe that's primarily from his witness statement.
25 Q. Now, are you suggesting that the identification of the group that
1 Dean Manning is referring to as being Muslim is based solely upon an
2 examination of -- I believe it was a Koran and some prayer beads?
3 A. Base on the very short extract that's included, it's actually
4 difficult to tell. He references specific items, and all of the items he
5 references reflect material culture. If there is another source of
6 information at that time, I don't know what it is.
7 Q. Now, when you talk about material culture, that reflects a
8 certain information in order to determine to what group a particular
9 individual may belong, such as an ethnic group or a religious group,
10 et cetera. Is that right?
11 A. I'm not sure I understand your question. Can you -- could you
12 ask it again -- a different way? I'm --
13 Q. Well, let me just ask you this: When you say material culture,
14 what do you mean by that?
15 A. Once -- as you have defined a group, so if you are looking at an
16 ethnic group, a national group, a religious group, once defined the
17 culture, there is what's known as a suite of material culture that is
18 associated with that group. So if, potentially, some of the defining
19 characteristics of how that group is defined is reflected in the material
20 culture, then what you wear, what you have, what you use reflects to some
21 extent your identity.
22 Q. What about, for example, a name? Could that reflect the person's
23 ethnicity, religion, et cetera?
24 A. In some instances, yes.
25 Q. Okay. All right. Now, you had an opportunity to review Richard
1 Wright's report of 12th May, 1999, right?
2 A. Yes.
3 Q. Okay. If I could have 65 ter 666 in evidence -- in e-court,
4 please. All right. Okay, great. Thank you.
5 If I could go to -- first, if I could go to just page -- ERN
6 ending 240. That would be page 27 in English, 29 in B/C/S, please. All
7 right. If you could just page forward on the English version, I think
8 page 28. That should be ERN 240 ending. Okay. If we could just refer
9 to the bottom of that. I'm told it's page 30 in B/C/S. I'll just refer
10 you to the last paragraph on what should -- what indicates page 27 in
11 front of you there, and what it talks about is certain information that
12 might signify a Muslim affinity from the people in the graves, and he
13 talks about that in reference to the items that are identified on the
14 previous page. There's list of paper, tobacco, tin, et cetera. You had
15 an opportunity to review this, right?
16 A. Yes.
17 Q. Okay. And you know that on the following page, if we could go to
18 page -- it would be 29 and then probably 31 in the B/C/S. All right.
19 And you can see here that's what's -- what is listed is Arabic extracts
20 of the Koran, extracts of the Koran, prayer beads, other prayers on
21 paper, other extracts. You see that on there, right?
22 A. I see one, two, three sections of -- referencing Koran, one with
23 a question mark, one referencing prayer beads, and one referencing Muslim
24 paper -- or prayers on paper.
25 Q. Okay. Now, certainly that would suggest a Muslim affiliation
1 with respect to the remains that were recovered, wouldn't it?
2 A. I would not agree with that statement.
3 Q. Okay. Can we go on to 65 ter 642, please, and on that one I'd
4 like to go to page 34 in English and 40 in B/C/S, please. All right. I
5 just want to -- if we can enlarge the -- yes, that's fine.
6 Now, this is the report on autopsies of human remains from
7 Cancari Road
8 this refers to, also, items that were recovered with respect to
9 identification. You see that in front of you?
10 A. Yes.
11 Q. Okay. And with respect to the information that's contained
12 there, you can see the names as they are reflected, right?
13 A. Yes.
14 Q. And to your knowledge or in your experience, do you know whether
15 or not these particular names have any Muslim affiliation?
16 A. That would be one of the points I objected to.
17 Q. Okay.
18 A. I've completed a study recently regarding this question, whether
19 or not there is that which can be defined as a Serbian name, that which
20 can be defined as a Muslim name, that which can be defined as others.
21 That was literally completed in the last -- certainly since I've been
22 involved in this case. I would question prior to that what somebody else
23 would use as a point of reference to determine what constitutes a Muslim
25 Q. Okay. So in your view, you cannot make that determination based
1 on an examination of this document which contains names like Husein,
2 Adem, Serif, Salko, and so on?
3 A. I understand your point, and I agree with the use in some
4 instances of name and surname as a way of determining this. What I would
5 question would be, what is the references that this investigation used to
6 support that.
7 Q. Okay. Now, I'm not going take you through all of these reports,
8 but you did have an opportunity to examine them all?
9 A. Which reports?
10 Q. I'm sorry. These are the autopsy reports.
11 A. I've examined the ones that are listed in that appendix.
12 Q. Okay. All right. So let me describe this one, then. It's a
13 report on autopsies of human remains, Cancari Road Site 12. This one is
14 by Dr. Lawrence. Did you have an opportunity to review that?
15 A. If it's in my list, then yes.
16 Q. Okay. That -- 65 ter 641. If I could have that in e-court for a
17 moment. Page 44 in the English, 44 in the B/C/S. Great. Thank you.
18 Well, this also lists a number of attempts that are under the
19 heading "Provisional Identification By Documents," and it also contains a
20 list of names. And these names include names like Ibrahim, Moradif,
21 Bramo, Mujo, Salko, Saban, Semsudin. Would you regard these names as
22 indicative of affiliation, Muslim affiliation? Same reason?
23 A. My ability to do that would differ from others' ability to do
24 that. I would challenge -- I would ask for the protocol others would
25 have used to establish that.
1 Q. Okay. As a matter of science?
2 A. Yes. Yeah.
3 Q. Okay. And there are just a few others, but I'm not going to go
4 through them in e-court. One is a report on autopsies that's listed in
5 your appendix. That is by Dr. Lawrence, and it relates to Hogici [phoen]
6 Road Site 5. That's 65 ter 645 for the record, which also contains
7 similar information with respect to the names of the individuals as
8 represented on ID cards that were recovered, names like Halija, Suliman,
9 Husef, Avdija, Meho; and it also contains information relating to prayer
10 beads, glasses -- several prayer beads, I should say, at least three
11 separate instances of that. You had an opportunity to review that, as
12 well, did you?
13 A. Yes.
14 Q. Okay.
15 A. Can I ask what protocol they were using to differentiate or
16 identify prayer beads and the meaning to prayer beads? I'm not -- please
17 don't misunderstand me. I understand who these people are. What I'm
18 saying is that there are means to scientifically and independently assess
19 this, and I would challenge that that was not done. I would also ask
20 where their points of reference are when interpreting symbols of
21 religious affiliation and others to counter or look at other groups that
22 are represented in this area. In other words, were the people looking at
23 the evidence capable and having sufficient reference to distinguish the
24 different symbolisms of religious affiliation in this group? It's very
25 easy to list very selected items and say this represents something. It
1 is not necessarily the same thing as saying, here are all the items and
2 let's assess the different suites.
3 Q. Okay. Do you have some reason to believe these items were
4 selectively listed as opposed to being listed in their entirety?
5 A. Yes.
6 Q. Okay. And what's the basis for that?
7 A. Particularly with the exhumation reports, Wright and Baraybar
8 both make clear that they are not doing analysis in the field, yet they
9 do what could be euphemistically referred to as cherry-picking these very
10 specific items out, so they are not listing every newspaper that might be
11 found in every pocket. They simply choose to designate when a Dutch one
12 was found. They are not listing every cigarette package. They simply
13 list those that have some sort of affiliation. They choose to make that
14 assessment. So unless you can provide a list of all material culture and
15 it can be evaluated independently and weighed appropriately, then this is
16 simply a very selected group -- or a very selected thing that, you know,
17 represents a point that's trying to be made in the absence of the
18 evaluation of all evidence.
19 Q. Okay. In reaching that conclusion, did you yourself have an
20 opportunity to examine the testimony, perhaps, of witnesses in this case
21 to executions?
22 A. I was not provided any information other than the scientific
24 Q. Other than the scientific information. Okay.
25 A. Yes.
1 Q. All right. You do concede, though, that this is a relevant
2 consideration in determining group affiliation, that is, the names of the
3 individuals, the items of information that are recovered from the scene.
4 A. I would argue that material culture and surname in certain
5 circumstances can be used. As an example of the alternative, in Rwanda
6 surname means nothing. All groups are so closely related that the
7 surname has no identification power. In the study I did of Muslim,
8 Croat, and Serbian names, the ability to differentiate them
9 scientifically only occurred with 81-percent accuracy.
10 Q. All right. Is that statistically insignificant?
11 A. No, but I would not argue it's exclusive and conclusive, and that
12 had only been done very recently. I would ask where the references and
13 support are for the determinations that were being made here.
14 Q. Okay. So you dispute the conclusions that are made here
15 scientifically but not necessarily factually; is that what you are
17 A. That would be very accurate.
18 Q. Okay. And that's because you have information specifically as to
19 the group identity involved in Srebrenica based on your own experience?
20 A. I examined the question specifically.
21 Q. All right. Oh, I'm sorry. Just for the record, with respect to
22 the other reports that I had indicated contained such information, that
23 would be 65 ter 644 and 65 ter 643. I'll leave it at that for this -- at
24 this moment. All right.
25 Now, with respect to the question of data that's relied upon by
1 Dean Manning in his reports, is it your testimony that it's unclear to
2 you what information he was relying on in representing the records from
4 A. I have not seen or can identify information representing
5 identifications and MNI number from ICMP prior to his June 2007 report.
6 So essentially, he is looking at analyzing and representing material that
7 is not available for review to others.
8 Q. Okay. Now, with respect to the information that you analysed
9 from ICMP, that is a spreadsheet of data that was provided to you by the
10 Defence. Isn't that right?
11 A. That's the spreadsheet that I'm showing here, yes.
12 Q. Okay.
13 THE INTERPRETER: The speakers are reminded to slow down and not
14 to overlap. Thank you very much.
15 JUDGE AGIUS: Yes, please.
16 MR. VANDERPUYE: Thank you, and I apologize.
17 JUDGE AGIUS: You've got ample time. We've sent the next witness
18 home, to his hotel, actually.
19 MR. VANDERPUYE: Thank you, Mr. President.
20 Q. You received that information from the Defence, in this case, to
22 A. The Defence would be the sole source of my information, yes.
23 Q. And did you query either Mr. Meek or Mr. Ostojic with respect to
24 the nature of that information, that is, what it represented?
25 A. Yes.
1 Q. Okay. And with respect to your question concerning the source of
2 the information that is contained in Mr. Manning's 8 June summary, did
3 you query them, that is, Mr. Ostojic or Mr. Meek, or anybody from the
4 Defence team with respect to what the basis of that information or the
5 reference to ICMP was?
6 A. Yes.
7 Q. Okay. And what, if anything, were you informed?
8 A. I was given copies of the reports. I was given copies of Mr.
9 Manning's testimony. I asked for additional information on a number of
10 fronts; specifically, was there any information provided from ICMP prior
11 to June of 2007 that would represent where those numbers are coming from?
12 One of the issues I have raised in this is I understand this is an
13 ever-evolving number. The ICMP continues to do analysis. The problem
14 is, it becomes very difficult to evaluate the work of others if everybody
15 is seeing a different slice of the pie and a different list at different
16 times. So if the data that was provided in October of 2007 represents
17 what we are given to evaluate, then I don't know how to compare that or
18 look at what he has -- Mr. Manning has produced in June of 2007 predating
19 that information in terms of its validity. And so I would simply say --
20 maybe this is, you know, a purely scientific thing, but I would ask that
21 everybody gets to see the same evidence so that we can evaluate it, and I
22 don't know where he's getting those numbers from in June of 2007.
23 Q. All right. But you did have a chance to review his testimony?
24 A. Yes.
25 Q. And so you are aware that his testimony addresses the nature of
1 the information that he relied on?
2 A. It is my understanding reading that that he is not relying on a
3 statement from ICMP, that he himself is analyzing the raw data. That's
4 what I took to mean from what he states in his testimony.
5 Q. Okay. Well, just so you are aware, on page 19, that is 19.003,
6 lines 1 through 6, of his testimony on 11 December 2007, Mr. Manning
7 identifies the information that he relied on as the Excel spreadsheets,
8 which he was provided by the ICMP, and he remarks that it's the data,
9 that is, the data relied on. And did you receive Excel files, I would
10 say, Excel files or spreadsheets?
11 A. The ones I've received are dated at the top October 8th, 2007
12 Q. All right. Now, with respect to Mr. Manning's assessment of that
13 data, do you have any particular complaint?
14 A. Yes.
15 Q. All right. And one of your complaints is that you are uncertain
16 as to how it is he arrived at the numbers that he did?
17 A. Yes.
18 Q. Okay. But it is clear from his report that what he did was he
19 looked at the data and culled the data for information concerning
20 ICTY-accepted graves?
21 A. I understand that's what he said, yes.
22 Q. And that data is listed in the back of his report; that's his
23 November report.
24 A. What are you referring to?
25 Q. All right. Just give me a moment. Bear with me one moment while
1 I track it down.
2 A. Is it --
3 Q. Okay. It's 3551. 65 ter 3551. Could I have that in e-court,
4 please. If we could go to the end of it, please. Sorry, it's 2993.
5 It's November -- yeah, 27 November 2007
6 opportunity to review this report?
7 A. Yes.
8 Q. Okay. All right. Now, with respect to your review of this
9 report, were you able to ascertain what the information was that Mr.
10 Manning was relying on in terms of the ICMP data?
11 A. I could only make an assumption that it was the same database
12 that I was seeing after October -- the one dated October 8th, 2007. This
13 report is after that data is released. The June report is obviously well
14 before that data is released.
15 Q. Now, in reviewing the report -- I'm sorry. In reviewing his
16 testimony, were you provided with copies of the exhibits that he referred
17 to in his testimony?
18 A. No.
19 Q. Okay. Did you request them by any chance?
20 A. Yes.
21 Q. And what were you told with respect to that request?
22 A. I did not receive the information.
23 Q. All right.
24 A. Some of it, I believe, was under seal.
25 Q. All right.
1 A. And much of things relating to ICMP, I believe, was declared to
2 be under seal.
3 Q. Was that what you -- that's not what you were told, though, is
5 A. Yes.
6 Q. Oh, it is. Okay. And that's the reason why you were unable to
7 determine what information Mr. Manning was talking about in his testimony
8 as compared to the information you received?
9 A. Yeah.
10 Q. All right. Not having seen it, you'd have no reason to believe
11 that he reviewed something that you didn't?
12 A. I can't answer that.
13 Q. All right. You just don't know?
14 A. I don't know.
15 Q. All right.
16 A. I know the June report is based on things I have not seen. The
17 November report might potentially be the same databases that I was given.
18 Q. Okay. What in the June report was based on something that you
19 haven't seen?
20 A. All of the numbers relating to MNI and DNA identification.
21 Q. That are derived from where?
22 A. Material that he has -- he was looking at that I have not seen.
23 Q. Okay. But you did have an opportunity to review his testimony?
24 A. What I was given, yes, whatever is listed in my appendix.
25 Q. Okay. Well, you list in your appendix his testimony from the
1 10th and 11th of December of 2007?
2 A. Yes.
3 Q. All right. And with respect to that testimony, you did have a
4 chance to review it, and so you are aware that he was in contact with
5 ICMP and specifically with respect to their DNA data?
6 A. I'm not contesting that he got his information from ICMP. What
7 I'm suggesting is that my understanding of fair rules of evidence is we
8 should both get to look at that.
9 Q. Your understanding of what, I'm sorry?
10 A. Evidence and how we should both be allowed to examine the same
11 material to see if we achieve the same numbers.
12 Q. Oh, I see. Okay. Is that what you were told by Defence?
13 A. No, I -- that's my understanding. I asked for the original
14 material to see that if I -- and analysed it the same way would I reach
15 the same numbers, and I can't assess that because I wasn't given the
16 original material.
17 Q. Okay. Well, had you seen that material, you would have known
18 that it was the same?
19 A. The same as what?
20 Q. Same as the material that you reviewed?
21 A. How could numbers as of October 8th, 2007, be available in June?
22 Q. Because it's based on the same data that the October numbers were
23 based on, which is contained in the December testimony.
24 A. The top of the reports indicate that they are counting
25 individuals up until October 8th, 2007
1 Q. That's correct.
2 A. So no one was added between June and October?
3 Q. Even if someone were added between June and October, Doctor, the
4 information that he reviewed in June would be contained in the
5 information that you reviewed, which was contained in the information in
7 A. And I'm arguing that if we are talking numbers and the numbers
8 keep going up, that we are not looking at the same information.
9 Q. All right. The same result, you mean?
10 A. Yes.
11 Q. But you are looking at the same information?
12 JUDGE AGIUS: Please slow down, both of you, please. We've got
13 about a minute left, Mr. Vanderpuye. Are you going to finish today?
14 MR. VANDERPUYE: Yes, I'm going to finish. I'm sorry,
15 Mr. President.
16 JUDGE AGIUS: Then go ahead.
17 MR. VANDERPUYE:
18 Q. With respect to Dr. Parsons' letter, you indicated that he made
20 A. Yes.
21 Q. The assumptions that he made are clear on the face of the letter;
22 that's true?
23 A. Yes.
24 Q. The letter itself is not a report in a scientific sense?
25 A. It is a written document representing his ideas.
1 Q. All right. And it represents certain clear assumptions?
2 A. Yes.
3 Q. And it also warrants that it does not make an explicit
4 representation as to the accuracy or the ability to assess with any
5 degree of accuracy the numbers that are reflected in it, right?
6 A. That statement is contained in the letter, yes.
7 Q. And if you accept the assumptions as they are given, the
8 statement is true?
9 A. If you accept the assumptions, yes.
10 Q. Your issue is that you don't accept them?
11 A. True.
12 Q. Okay. Now, with respect to establishing those assumptions, it's
13 fair to say that Dr. Parsons has a certain expertise with relation to the
14 practices of the ICMP and the ability of the ICMP to conduct DNA analysis
15 that you don't have?
16 A. Within the internal workings of his organisation, yes.
17 Q. Okay. Well, it would be fair to say that at least you are not
18 qualified here today as an expert in DNA analysis, right?
19 A. True.
20 Q. And you don't consider yourself an expert in DNA analysis, do
22 A. [Indiscernible]
23 Q. All right. You're not familiar, for example, the success rates
24 of STR repeat -- STR typing from different skeletal remains, right?
25 A. I am familiar with that, yes.
1 Q. Have you published an article in that area?
2 A. No.
3 Q. Are you aware that Dr. Parsons has published an article in that
5 A. Oh, yes.
6 Q. And have you read it?
7 A. Yes.
8 THE INTERPRETER: Speakers are kindly asked to slow down. Thank
10 MR. VANDERPUYE:
11 Q. You are not suggesting that Dr. Parsons' ability to make an
12 assertion as the one he's made in the letter with the qualifications that
13 he has made that you're in a better position to make those assumptions
14 than he?
15 A. I am suggesting that if we are dealing with assumptions, one can
16 have different assumptions, and it would be inaccurate to assume that his
17 assumptions are inherently more accurate than my assumptions.
18 Q. All right. But he hasn't said that his assumptions are
19 inherently accurate, has he?
20 A. He's -- qualifies his statement, yes.
21 Q. All right.
22 MR. VANDERPUYE: I have nothing further. Thank you.
23 JUDGE AGIUS: Thank you. Is there re-examination, Mr. Nikolic?
24 MR. NIKOLIC: [Interpretation] No, Your Honour. We don't have
25 any re-examination, but I would like to take this opportunity before our
1 time has run out to deal with another issue if you allow me. It has to
2 do with our witness Spiro Pereula. May I continue?
3 JUDGE AGIUS: Let's finish with the witness first. I mean, let's
4 finish with the witness.
5 MR. NIKOLIC: [Interpretation] Thank you, yes.
6 JUDGE AGIUS: Judge Kwon, do you have any questions? Judge
7 Stole? Judge Prost?
8 All right. Doctor, we are finished with you. You can go to
9 wherever you intend going. On behalf of the Trial Chamber, I wish to
10 thank you for having come over to enlighten us on these matters, and on
11 behalf of everyone I wish you a safe journey back to wherever you are
13 THE WITNESS: Thank you.
14 [The witness withdrew]
15 JUDGE AGIUS: Yes, Mr. Nikolic.
16 MR. NIKOLIC: [Interpretation] Thank you. Your Honours, the
17 problem that we now face is witness Spiro Pereula who because of problems
18 involving in getting a passport arrived here late last night, and we
19 managed to set up a proofing session for today. We have very little time
20 to be able to prepare properly for his testimony tomorrow, and we don't
21 have much time to submit the report to the Prosecution. That is why we
22 would like you to ask -- we would like to ask you to move his testimony
23 for Monday, all the more so because our next witness that is planned for
24 after that, Kerkez, would require us to work really hard tomorrow. It
25 would take a great deal of our time tomorrow.
1 JUDGE AGIUS: Yes, Mr. McCloskey.
2 MR. McCLOSKEY: It's my understanding that Kerkez was next in
4 JUDGE AGIUS: Yeah, that's my understanding too. I may be wrong,
5 but to my knowledge Kerkez is the next up.
6 MR. McCLOSKEY: That's right, and this is highlighting a
7 significant problem. I -- we received exhibits for Mr. Kerkez an hour or
8 two ago. We received his proofing notes this morning. This is -- we
9 have been working as hard as we can with Mr. Ostojic and the team, and we
10 are just not getting information, and it's -- for example, you all recall
11 the witness -- I think it was Mr. Grulovic. We learned that he was
12 providing an alibi for Mr. Beara when he testified. There was a
13 suggestion to it in the proofing note received a day or two before that
14 but nothing in the 65 ter.
15 Mr. Kerkez have a very brief 65 ter and a very brief proofing
16 note, none -- very little of which, if any, is of contested matters. And
17 it's hard for me to imagine that that's -- he's going to testify as a
18 colonel from the VRS Main Staff to non-contested matters. I just don't
19 know what is he going to testify to. And now, they're getting behind
20 with this witness. We are trying talking with them, but I -- Your
21 Honour, they need a court order from you, in my view, to get these
22 witnesses together, to get the information to the Prosecution. We just
23 reached the end of our rope, and we have tried working with them, but it
24 is prejudicing us. You could see, I could not get Reuters information
25 from that last witness from Grulovic because I learned about it the day
1 he testified. Otherwise, I would have had Reuters information for you.
2 You would have been able to see the value of that -- potential value of
3 that alibi. I did not have it. I think this is something that is more
4 than just being behind the 8-ball. This happened in the last case Mr.
5 Ostojic was in. It took a court order in the Stokic case for him to get
6 these things on board. It's reached the point where it's also affecting
7 other Defence counsel and their ability to prepare. So I know you don't
8 want us to go there with this. I do this as only a last gas effort
9 because it's happening before my eyes as we go, and it's affecting each
10 one of us.
11 JUDGE AGIUS: Let's sleep on it and return to it tomorrow. In
12 the meantime, Mr. Nikolic, the whole idea of having a co-counsel is
13 precisely to ensure that in the inability of lead counsel to do his work
14 at any given moment and for whatever reason. There wouldn't be any
15 stoppages any gaps, and the co-counsel would be in a position to
17 So subject to what we'll discuss at the outcome of our
18 discussions after the sitting, I call upon you as co-counsel to do your
19 utmost. To my understanding, we are not talking of too complicated
20 witnesses. I think we can move ahead and move ahead, also, in the manner
21 that the Trial Chamber has indicated to you and which hopefully will be
22 observed. So we stand adjourned now -- one moment. One moment.
23 [Trial Chamber confers]
24 JUDGE AGIUS: As I understand you, Mr. Nikolic, witness Pereula
25 hasn't been interviewed by you as yet, hasn't been proofed -- but has
1 Kerkez been proofed?
2 MR. NIKOLIC: [Interpretation] Yes, yes. Kerkez is ready.
3 That's not a problem. Perhaps there has been a little bit of a
4 misunderstanding. Spiro Pereula was supposed to testify after Kerkez,
5 and that's why I asked for some time given to this witness. And if you
6 allow me to respond, it is true what my colleague Prosecutor said about
7 the later disclosure of the Kerkez report, but he will agree with me and
8 you will agree with me that we've had problems with telephones, so that
9 was part of the reason. Thank you very much for your understanding.
10 JUDGE AGIUS: All right. Tomorrow we start with Kerkez, in any
11 case, 9.00 in the morning. And then in the meantime, we'll think about
12 what will be done.
13 --- Whereupon the hearing adjourned at 1.56 p.m.
14 to be reconvened on Friday, the 25th day of July,
15 2008, at 9.00 a.m.