1 Thursday, 2 July 2015
2 [Open session]
3 [The accused entered court]
4 --- Upon commencing at 9.32 a.m.
5 JUDGE ORIE: Good morning to everyone.
6 Madam Registrar, could you please call the case.
7 THE REGISTRAR: Good morning, Your Honours. This is case
8 IT-09-92-T, the Prosecutor versus Ratko Mladic.
9 JUDGE ORIE: Thank you, Madam Registrar.
10 Could the witness be escorted in the courtroom.
11 [The witness takes the stand]
12 JUDGE ORIE: Good morning, Mr. Clark.
13 THE WITNESS: Good morning.
14 JUDGE ORIE: Before we continue, I'd-like to remind you that
15 you're still bound by the solemn declaration you've given at the -- a
16 long time ago, at the beginning of your testimony and which you have
18 THE WITNESS: Thank you.
19 JUDGE ORIE: No, you haven't repeated it but I've reminded you.
20 Let's be precise.
21 Mr. Lukic, you may proceed.
22 MR. LUKIC: Thank you, Your Honour.
23 I would kindly ask to have our transcript from yesterday, if it's
24 possible to have in e-court, because I think I have to make one
1 JUDGE ORIE: Do you have page and line numbers?
2 MR. LUKIC: Yes, I do, Your Honour. It's page 36651, lines 12
3 and 13.
4 [Trial Chamber and Registrar confer]
5 JUDGE ORIE: It is not easy to get it on our screen, Mr. Lukic,
6 but we could just perhaps read. And you said 36651.
7 MS. D'ASCOLI: Your Honours, if that can assist, Ms. Janet can do
8 it on Sanction, can bring up --
9 JUDGE ORIE: If that's possible, then ...
10 MS. D'ASCOLI: Yes.
11 JUDGE ORIE: It's there. If I'm not -- no. There we are.
13 Please proceed, Mr. Lukic.
14 WITNESS: JOHN CLARK [Resumed]
15 Cross-examination by Mr. Lukic: [Continued]
16 Q. Dr. Clark, I will read from yesterday's transcript what is
17 entered as a question, and it is recorded that I asked you:
18 "Is it correct that, as a scientist, you cannot exclude the
19 possibility that any or some of these people were killed in combat?"
20 I would like that ask you today, actually, is it correct that, as
21 a scientist, you cannot exclude the possibility that none of these people
22 were killed in combat?
23 A. Yes, that equally applies. I'm not entirely sure what the
24 definition of "combat" is, but if I said it about some, it would equally
25 apply for them all.
1 Q. Thank you, sir.
2 MR. LUKIC: I would kindly ask to have now on our screens P7443,
3 MFI. And we need page 7 in English, paragraph 3, and page 8 in B/C/S,
4 also paragraph 3.
5 Q. I'll continue in B/C/S, Doctor.
6 [Interpretation] Doctor, yesterday at one point in time, you told
7 us that as far as boots were concerned, the victims were not wearing any.
8 Do you remember that?
9 A. I don't recall ever saying that. It's not what I've said in my
10 report either. I've said that the bulk of these individuals had -- were
11 wearing ordinary shoes. A few of them did have boots, but that's
12 different to what you put to me.
13 Q. Yesterday, page 16, line 11 of the transcript said that. That is
14 what was entered. So I just wanted to clarify the matter.
15 So I accept what you're saying now. That is what I find in your
16 report, precisely what you said just now. So, in the report it says that
17 15 per cent -- or, rather, 26 persons wore boots. Is that right? We see
18 that in paragraph 3 on page 8.
19 A. Yes, I've recorded that 26 individuals -- of those that had
20 footwear, of those that had footwear had boots of some sort, although
21 boots extends from a Wellington boot to a kind of fairly heavy training
22 boot, a sort of -- it's difficult to describe. But a sort of a heavier
23 shoe than, say, a training shoe.
24 Q. I would just like to dwell on this part of your report briefly,
25 the one that has to do with clothing.
1 JUDGE FLUEGGE: Mr. Lukic, are you certain that the B/C/S version
2 is the right one on the screen?
3 MR. LUKIC: I was watching English. Yeah, we need page 8 in
4 B/C/S as well, and we need to go to --
5 JUDGE FLUEGGE: Are you sure that it's really page 8? Because we
6 have page 8 on the screen.
7 MR. LUKIC: It seems that there are several versions of this
8 document uploaded. We need the next page in -- anyway. Thank you,
9 Your Honour.
10 Q. [Interpretation] Doctor, I would just like to ask you something
11 briefly. Is it correct that you did not deal with the following
12 question, whether any of the Muslim forces in 1992 wore uniforms?
13 A. I have no knowledge about that at -- whatsoever.
14 Q. Thank you.
15 JUDGE ORIE: Mr. Lukic, what is not in the report, at least for
16 this Chamber, is not dealt with by the witness. Whatever he may have
17 done and not written down in his report, we do not know, but if the
18 witness did not express himself on that, then, for us, he has not
19 delegate with it.
20 If you have a reason to believe that he did deal with some
21 matters, of course, you can ask him, but let's avoid that we have to ask
22 the witness all the things he did not deal with.
23 Please proceed.
24 MR. LUKIC: Your Honour, if I may, there were [Overlapping
25 speakers] ...
1 JUDGE ORIE: Let's proceed, Mr. -- unless there's something
2 which -- not a debate, but if there's something unfair in what I said,
3 please address me; if not, let's move on.
4 MR. LUKIC: I'll move on.
5 Q. [Interpretation] Doctor, were there any examples in your
6 practice - you did work on Srebrenica after all - were combatants buried
7 with weapons?
8 A. I don't recall anybody being buried with a weapon, no.
9 Q. Thank you. In the information that you gathered and that you
10 spoke of in the beginning of your report, did you deal with combat
11 between the Serb and Muslim forces in the area of Prijedor at that time,
12 especially in the area of Brdo? And have you heard of the Kurevo forest?
13 A. I had no specific information about Muslim forces at that time.
14 I may have -- I think I've heard of the word "Kurevo forest," but I know
15 nothing about it.
16 Q. This is what you were asked in Mr. Karadzic's trial:
17 "Did you know that there was a legal requirement to sanitize the
19 In Mr. Karadzic's transcript, that is page 22708, lines 15 to 21.
20 You said that you were not aware of that legal requirement.
21 Afterwards, did you deal with that requirement, namely, to
22 sanitize the area?
23 A. I'm not sure what you mean by deal with that requirement. Did I
24 consider it or research it or ...
25 Q. [In English] Both.
1 JUDGE MOLOTO: Before we get -- sanitize which area?
2 MR. LUKIC: It's legal obligation for any area after the combat
3 operations, Your Honour.
4 JUDGE MOLOTO: Sure. Now which area are you talking about that
5 the witness is supposed to have considered?
6 MR. LUKIC: I'm talking about Brdo area in Prijedor municipality
7 where --
8 JUDGE MOLOTO: Thank you.
9 THE WITNESS: Well, the answer is I did not make any further
10 detailed inquiry of that.
11 MR. LUKIC:
12 Q. Okay. Thank you, Doctor.
13 [Interpretation] We'll stay on the same page. We need the
14 paragraph at the bottom of the page, below the photograph. You said the
16 "In terms of personal possession, many of the men - 83, rather,
17 28 per cent - were carrying identification cards."
18 Then you say 45 of the men had watches, 44 had money "and smaller
19 numbers had wallets and jewellery."
20 In your view, is that characteristic of a situation when people
21 were not searched?
22 A. In -- certainly in terms of identification documents, this was a
23 site that we saw them more often than previous circumstances -- previous
24 occasions. So it was quite a regular feature to see the ID documents.
25 In terms of perhaps watches, cigarettes, et cetera, they were
1 frequently found in other sites as well, but certainly ID documents
2 were -- seemed to be a quite an unusual number.
3 JUDGE ORIE: You mean higher or lower?
4 THE WITNESS: A higher number, yes.
5 JUDGE ORIE: Thank you.
6 MR. LUKIC: [Interpretation]
7 Q. During the course of your work, did you come upon the obligation
8 of the forces that take a certain area to search individuals there and
9 take away certain possessions?
10 A. I have no knowledge of that procedure.
11 Q. Thank you.
12 MR. LUKIC: [Interpretation] Now we need page 8 in the English
13 version; 9 in B/C/S.
14 Q. You are referring to numbers of gun-shot injuries. At the very
15 outset, you say that gun-shot injuries were found in all but ten cases.
16 A. Yes.
17 Q. First of all, do you have any idea as to how these other people
18 had lost their lives, namely, those who had not sustained gun-shot
20 A. These are dealt with at the end of the report with the
21 unascertained cases. Some of these cases at least had no obvious
22 gun-shot injuries in the parts of the bodies which were still present,
23 but some of them had major parts missing, perhaps the head or a leg, in
24 which there could well have been gun-shot injuries. So that could
25 account for some of them. One or two of them were complete bodies and we
1 could not find any gun-shot injury. They may have died in some other
2 way, not related to gun-shot.
3 JUDGE ORIE: Mr. Lukic, details to be found on page 15, bottom
4 part. 13 no convincing cause of death could be found. That's where the
5 answers are.
6 MR. LUKIC: But still I want to ask if doctor can exclude natural
8 JUDGE ORIE: Of course, you can't exclude. And it says here
9 clearly: There's possible gun-shot injury of the face, 051T. That means
10 as long as that is not ascertained, this witness, as he clearly says,
11 couldn't tell us how that person died and that includes natural causes of
12 death. Because if you don't know, you can't exclude anything. I mean,
13 that's so logic. Let's not spend time on the things that are obvious,
14 that are clearly -- perhaps not literally, but common sense, normal
15 reasoning brings to us these answers and that is true for many of the
16 questions you have put to the witness. You may now proceed --
17 MR. LUKIC: What do you mean "many," Your Honour?
18 JUDGE ORIE: Many -- do I have to give a number, Mr. Lukic. I
19 said you could proceed. Yes?
20 MR. LUKIC: So in this trial we can lean on common sense, we
21 don't have to have evidence --
22 JUDGE ORIE: No. We need to have evidence but we should not --
23 when you're talking about excluding, you should not exclude common sense;
24 that is, normal reasoning, logical reasoning. And if the witness has for
25 13 persons given exact details of why they couldn't ascertain the cause
1 of death, then, of course, it's not of any use to ask whether it could
2 have been natural causes. Because that is simple logic. And the witness
3 referred to that.
4 Please proceed.
5 MR. LUKIC: I would remind Your Honour again --
6 JUDGE ORIE: Let's move on. Mr. Lukic, we now move on.
7 MR. LUKIC: Thank you.
8 Q. [Interpretation] Doctor, in this part that starts with estimated
9 number of injuries -- [In English] assessing numbers of injuries, yes,
10 thank you, this is what you say. For example --
11 THE INTERPRETER: Interpreter's note: Could we please have a
12 specific reference as to where Mr. Lukic is reading from. Thank you.
13 JUDGE FLUEGGE: Could you give an indication where you are
14 reading from? The interpreters can't follow.
15 MR. LUKIC: Yes. It's number of gun-shot injuries. It's part
16 after the first paragraph.
17 JUDGE FLUEGGE: Thank you.
18 MR. LUKIC: [Interpretation]
19 Q. So, line 4:
20 "Where there is a clear single shot to the head with no injury
21 anywhere else, then the number of shots can be stated with some
22 confidence. But, where, for instance, there are shots passing through
23 the trunk, where damage to more than one area could represent the track
24 of a single bullet travelling in a certain direction, or instead could be
25 two or more separate shots to different areas, then numbers are less
2 So, Doctor, that number, 710 -- no, 709, sorry, 709 injuries that
3 you found, could it be changed in view of this?
4 A. It could be higher. I don't think it would be lower because
5 we've -- I'm working on a minimum number. Yes, it could certainly be
6 higher, yes.
7 Q. Thank you. Likewise, you say in the same paragraph, in line 7
8 there's a sentence that starts with the word "equally."
9 This is what you say:
10 "When considering gun-shot injuries to the arms when there are
11 also injuries to the trunk or even the head, consideration would have to
12 be given to these all being part of the same track."
13 Would you agree, Doctor, that this could also be a separate
14 injury, that is to say, caused by a different bullet or a different
15 shrapnel, and that that could also increase the number of 709?
16 A. Yes, it very much --
17 JUDGE ORIE: I intervene again.
18 The witness has explained this in detail. He has explained
19 yesterday exactly that -- what traces he found. He has even explained as
20 to the position from where to where the bullet trajectory in the body
21 would lead him to say, Well, it could be two, but let's keep on the safe
22 side and let's take it one. Only where this witness was convinced that
23 these were two separate bullets, that the witness counted them as two.
24 It is fully explained, it's repetitious, unless, Witness, you
25 consider the question to be anything else. If not, Mr. Lukic will put
1 his next question to you.
2 MR. LUKIC: [Interpretation]
3 Q. Doctor, you worked on different calculations here and we're going
4 to get to that right now.
5 On this page, we have the first table that is at the bottom of
6 the page, and that is Table 3. Would you agree, then, that all of these
7 figures stated here are relative, that they were not stated with full
9 A. To some extent that's true. I think they are reasonably
10 accurate. I quite agree that if we have underestimated injuries, some of
11 the -- some of these figures would rise. It's -- I think it's a fairly
12 reasonably accurate assumption, though, or analysis. I think
13 particularly with the single shots. I think that has to be an accurate
14 number. And particularly -- really confusion comes or the difficulty
15 comes if -- of injuries below the head. Where there's injuries to the
16 head it's usually very clear to say it's one shot or at most two shots.
17 So the single gun-shot injuries, I think that's an accurate figure.
18 The -- whether it's two, three, for the trunk is -- yes, it's a little
19 less certain.
20 Q. Thank you.
21 JUDGE FLUEGGE: Mr. Clark, could it be lower or higher?
22 THE WITNESS: I suppose conceivably they could be very slightly
23 lower. I think only a matter of one or two. There may be occasions in
24 which I have worked out or to my satisfaction that there are two
25 injuries. In fact it was one. But really only a very small number. And
1 I kind of bent over backwards to try and associate injuries, so I'd -- I
2 think, if anything, the number will go up rather than down.
3 JUDGE FLUEGGE: Thank you.
4 MR. LUKIC: [Interpretation]
5 Q. Please tell us if these mathematical comparisons form part of
6 your regular tasks as pathologist.
7 A. Well, as a regular pathologist, one is dealing with just a
8 single -- a single case, usually a fresh body. Gun-shot injuries are
9 much easier to assess in these situations. This is a completely
10 different context. I try and apply similar principles but I have to make
11 allowances for the fact that these are not fresh bodies and they're
12 distorted, et cetera. So estimating in individuals from a mass grave is
13 a completely different context from a routine case in a fresh body in a
15 JUDGE ORIE: Mr. Lukic, just for my understanding, what did you
16 exactly refer to when you said "mathematical comparisons"? What kind of
17 comparisons did you have in mind?
18 MR. LUKIC: I have in mind Table 3, Table 4, Figure 3, Table 5.
19 JUDE ORIE: Yes. That's -- I don't see the comparison. What I
20 see is numbers, at least in 3, but I'll have a look at 4, 5, or 6,
21 whether there were any comparisons there.
22 MR. LUKIC: There is even one comparison in Table 5 with other
24 JUDGE ORIE: Yes, that's a comparison.
25 MR. LUKIC: [Interpretation]
1 Q. Doctor, did you receive that task from someone else or did you do
2 this of your own initiative, to produce these comparisons?
3 A. It was entirely my own initiative. As was the style of the
4 report and the analysis was entirely my initiative. I just thought it
5 would be a helpful way to analyse or portray the information.
6 MR. LUKIC: [Interpretation] We will need the following page in
7 both versions. Actually, I apologise. Let's stay with page 8 for the
8 time being.
9 Q. There you discuss the distribution of gun-shot injuries.
10 MR. LUKIC: [Interpretation] Thank you.
11 Q. You say that in Table 4 we have the list of 709 gun-shot
13 JUDGE MOLOTO: We don't have Table 4 on the page.
14 MR. LUKIC: We'll have it in a second, Your Honour. It's on the
15 next page, so we have to start from this page, from the bottom of this
17 JUDGE MOLOTO: Then let's deal with this page.
18 MR. LUKIC: Yes.
19 Q. [Interpretation] As we can see under item 2, distribution of the
20 gun-shot injuries, you say the following:
21 "In terms of what injuries were caused by these 709 bullets,
22 Table 4 below lists them according to body region."
23 Doctor, first of all, yesterday I asked you whether we were
24 dealing with 709 bullets or wounds, injuries. You said that did you not
25 count the bullets but the injuries themselves.
1 A. Yes --
2 Q. Yet here we see this reference to 709 bullets. Was this simply
4 A. No, it's a different context. 709 gun-shot injuries must -- each
5 one must have been caused by a bullet. So this reference here is to
6 these projectiles which caused these 709 gun-shot injuries, that is not
7 to say that I found 709 bullets but they had to be caused by a bullet.
8 That was my interpretation that this was a gun-shot injury, nothing else
9 could have caused it. So I think it's fair enough to imply that if there
10 are 709 gun-shot injuries, there must have been 709 bullets to cause each
11 one. Or one of 709 to cause each one.
12 Q. We heard today that the figure was at least 709, possibly higher;
14 A. Yes.
15 Q. Thank you.
16 MR. LUKIC: [Interpretation] Let us go to the next page in the
17 English version, please.
18 JUDGE ORIE: Could I ask a follow-up question.
19 Mr. Clark, you have explained to us that sometimes by the --
20 something visible in -- well, let's say, the lower part of the body and
21 in the head, that you sometimes concluded that it wasn't certain that
22 there were two bullets and for that reason you counted those two markings
23 on the body for one injury, one bullet.
24 THE WITNESS: Yes.
25 JUDGE ORIE: Now, if, well, let's say, you find something on the
1 chest and on the head, how did you categorise them as body region, head
2 or trunk?
3 THE WITNESS: By recollection, it would be the first part of the
4 body which was struck. So if it had gone through the head and then ended
5 up in the chest, I would count that as a gun-shot injury to the head.
6 JUDGE ORIE: Yes. And you were always sufficiently able to see
7 where the bullet would have entered and where it would have left other
8 marks so as to be sufficiently certain that you could qualify the injury
9 as inflicted on the head or the chest?
10 THE WITNESS: There may be the occasional case in which I got the
11 direction wrong but this was my best -- best estimate of the figures.
12 JUDGE ORIE: Thank you for that. And if you compare them then
13 later in Table 5, did you make similar assessments for the other sides?
14 THE WITNESS: Yes, and this is where it is valid to -- because we
15 do have a similar population, if you like, similar situations of mass
16 graves, and I think it's -- this is a reasonable place to compare these,
17 and the figures are there.
18 JUDGE ORIE: Thank you.
19 Please proceed.
20 THE WITNESS: The same difficulties in interpretation occurred in
21 each of these other grave-sites and my same -- I adopted the same
22 approach to the analysis.
23 JUDGE ORIE: Yes. So if I understand you well, you allow for
24 minor -- minor mistakes here, but overall, you are confident that you
25 were sufficiently able to establish where the bullet entered the body so
1 as to qualify the injury as you did.
2 THE WITNESS: Yes. I mean, I did spend a lot of time looking at
3 these, the reports, the photographs, and -- so it's not just a quick
4 analysis. There is -- this is actually quite detailed thought behind it.
5 JUDGE ORIE: Thank you.
6 Please proceed.
7 MR. LUKIC: Thank you.
8 Q. [Interpretation] Here you provide the distribution of injuries on
9 the victims found in the Tomasica mass grave. You say you compared to
10 some other mass graves. Did you compare it in terms of number of
11 injuries that would be customary for combat? Did you ever refer or write
12 about that?
13 A. No. Presumably you're talking about combat situations elsewhere
14 in the world or --
15 Q. [In English] Anywhere.
16 A. Anywhere. I have not specifically compared that. I have to say
17 these figures for combat situations elsewhere are sometimes quite
18 difficult to get hold of. But, yes, I have not compared them.
19 Q. [Interpretation] You said that it was surprising to find so many
20 injuries to the head and neck. Yesterday, Judge Orie asked you what
21 position you had in mind, whether it was the standing position that you
22 considered, and I wanted to ask you today if you would agree that the
23 distribution of injuries is different, depending on whether the person is
24 standing, kneeling, or lying down?
25 A. Indeed. I've used the word "random" here and I'm envisaging a
1 standard situation of a person standing upright, and that is the -- if
2 that is the case, then it seems to me that the head -- there was an
3 excess number of shots to the head.
4 Entirely correct, you could -- it depends entirely on the
5 position of the body. If only the head is exposed, then naturally there
6 would be a preponderance of injuries to the head. So I'm happy to
7 consider any scenario, but this is based on a a kind of random standard
8 situation of somebody who is upright.
9 MR. LUKIC: Thank you.
10 JUDGE MOLOTO: Can I just clarification on an earlier question,
11 Dr. Clark.
12 You were asked at page 16, line 5, you know -- you said you were
13 being asked about situations elsewhere in the world, combat figures, and
14 whether you consider these combat figures in other situations.
15 How would a comparison of your -- of combat figures in -- figures
16 in combat assist you as a pathologist in the work you were doing like the
17 work for purposes of determining the cause of death in the Tomasica
19 THE WITNESS: Well, it would show to me that perhaps in genuine
20 combat situations, most gun-shot injuries, most soldiers sustain injuries
21 to the head or to the trunk. That may be the position. I don't know. I
22 don't have these figures. What I do know, however --
23 JUDGE MOLOTO: But would that be part of your brief?
24 THE WITNESS: It would be part of my interest rather than --
25 rather than brief. I do know, however, that in a combat situation, the
1 injury that predominates in soldiers are explosive injuries, so shrapnel
2 injuries, rather than gun-shots. More soldiers will die from explosive
3 injuries than gun-shot injuries. That I do know. That has been well
4 established and repeated. But I don't have figures for the specific
5 parts of the body which are most commonly damaged. And, of course,
6 combat situations will vary themselves anyway, from people who are on the
7 ground or kneeling or standing upright, et cetera.
8 JUDGE MOLOTO: Thank you very much.
9 THE WITNESS: Okay.
10 MR. LUKIC: [Interpretation]
11 Q. Let us look at the distribution of injuries that you have shown
12 here on the body; so Figure 3.
13 We see that in some cases, you mention as the cause of death the
14 injuries to the lower extremities; gun-shot injuries, that is.
15 A. Yes. Not very many but ... maybe four cases, perhaps.
16 Q. In any case, there was only a small number of such injuries to
17 the legs; correct?
18 A. Yes, whether fatal [Realtime transcript read in error "facial"]
19 or otherwise, a small number.
20 Q. Could this indication that such a small number of legs --
21 injuries to the legs tell you anything about the position those people
22 were in, that they may have perhaps been lying down?
23 A. Yes, that's entirely possible that the legs were, in some way,
24 covered or protected either from kneeling or lying down. Yes, that's
1 JUDGE ORIE: Mr. Clark, I read as one of your answers. The
2 question being:
3 "In any case, there was only a small number of such injuries to
4 the legs; correct?
5 Your answer was:
6 "Yes, whether facial or otherwise ..."
7 I may not fully understand --
8 THE WITNESS: I meant -- I meant fatal.
9 JUDGE ORIE: Fatal.
10 THE WITNESS: Fatal.
11 JUDGE ORIE: Yes, now I do understand.
12 THE WITNESS: I'm sorry.
13 MR. LUKIC: [Interpretation] Let us look at the table at the
14 bottom of the page in English and it is on the next page in the B/C/S
16 Q. There you compare different locations. The locations being
17 Tomasica, Kozluk, Ravnice, Slap, and Knin, in Croatia. The table is
18 titled: "Comparison of gun-shot injury distribution amongst different
20 In this table, what is it that you are trying to indicate? For
21 example, let's take Kozluk in Srebrenica. When you say distribution of
22 gun-shot injuries, head and neck, in Tomasica it was 35 and in Kozluk,
23 23 per cent, does it mean that there were fewer executions in Kozluk than
24 in Tomasica or more? What is the point of this comparison?
25 A. The point is that the three pathologists who were in this
1 mortuary felt there was an unusual number of cases that we were seeing
2 with a gun-shot wound particularly to the back of the head. So I mean,
3 that was natural observation. I thought it would be useful to try and
4 quantify that and say were we justified in thinking that by comparing it
5 with other grave-sites. So that's all I have done, and it does justify
6 that to some extent. It does say that, yes, in this particular
7 grave-site, the injuries to the head were more common than we saw in
8 other sites.
9 That's about as much as I would go. It's just simply a
10 comparison to highlight the fact it was a recurring feature of the
11 Tomasica cases to find a gun-shot injury to the head and particularly to
12 the back of the head.
13 JUDGE FLUEGGE: Mr. Lukic, that was explained in detail
15 MR. LUKIC: But I needed it for the next question, Your Honour.
16 JUDGE ORIE: Well, I think we all remember it, but then put your
17 next question to the witness. And let me already indicate now that this
18 witness, I think where he established facts and made comparisons based on
19 his experience, that he -- unless I misunderstood you, Mr. Clark, you
20 refrained from explaining why this would have been the case and what
21 conclusions you could draw from that because your expertise does not
22 allow to do that, and it would be others, including a court, which
23 finally would have to consider whether or not any conclusions can be
24 drawn from it.
25 THE WITNESS: That's entirely correct. That's my approach to it.
1 JUDGE ORIE: Please proceed, Mr. Lukic, with your next question.
2 MR. LUKIC: I think there is no need now since the -- you said
3 that there is no -- I want -- my next question was whether the doctor had
4 drawn any conclusions based on this.
5 JUDGE ORIE: He has not, as he explained several times and as
6 what I said earlier, if he would have drawn any relevant conclusions, we
7 would have found them in the report. And I think that the witness, as he
8 confirmed a minute ago, stayed well within the realm of his expertise.
9 Please proceed.
10 MR. LUKIC: Thank you, Your Honour.
11 [Interpretation] Next we need page 11 in the English and 13 in
12 the B/C/S.
13 Q. Doctor, we see the table referring to the site of impact of
14 bullets, head and neck, to the back of, 45 per cent. In order to avoid
15 confusion, and you also specify that it refers to 246 shots to the head
16 and neck, so we see that 45 per cent of those went to the back. However,
17 if we take into account the number of 709 injuries, by my calculation it
18 amounts to 15.6 per cent with regard to the number of injuries caused on
19 slightly less than 300 bodies found in Tomasica.
20 Would you agree with that?
21 A. Yes, I think that's a reasonable -- I haven't actually worked it
22 out, but that would fit.
23 Q. Thank you.
24 JUDGE ORIE: Mr. Lukic, I'm looking at the clock. I see that
25 it's approximately time for a break. Your -- first of all, Mr. Clark, we
1 take a break of 20 minutes. We'd like to see you back after that, and
2 you may now follow the usher.
3 THE WITNESS: Thank you.
4 [The witness stands down]
5 JUDGE ORIE: And, Mr. Lukic, in view of how the cross-examination
6 developed, you're encouraged to review whether you could shorten your
7 cross-examination and focus on matters which are -- really need
8 explanation, have not been explained yet and are relevant.
9 We take a break, and we resume at ten minutes to 11.00.
10 --- Recess taken at 10.30 a.m.
11 --- On resuming at 10.52 a.m.
12 [Trial Chamber and Registrar confer]
13 JUDGE ORIE: Mr. Lukic, could you give us an indication as to how
14 much time you would still need?
15 MR. LUKIC: I drastically shortened my questions. I should
16 finish in the next 15 minutes.
17 JUDGE ORIE: Thank you, Mr. Lukic.
18 [The witness takes the stand]
19 JUDGE ORIE: Mr. Lukic, you may proceed.
20 MR. LUKIC: Thank you, Your Honour.
21 Q. [Interpretation] Doctor, I've told the Trial Chamber, and we are
22 supposed to finish within the next ten to 15 minutes. I started the day
23 today trying to correct something. However, thanks to my imperfect
24 English, I actually made a mistake, so now I will have to read something
25 out to you yet again and ask you about it yet again. I do apologise for
1 going back to the same topic for the third time. Now I'm going to ask in
2 B/C/S so that can you get the right interpretation.
3 Doctor, is it correct that you, as a scientist, cannot exclude
4 the possibility of all of those people who were found in Tomasica were
5 killed in combat?
6 A. That is correct, I cannot exclude that.
7 Q. Thank you. And I do apologise for having gone back to this
8 several times.
9 Now I'm just going to ask you a few general questions about your
10 work. Is it correct that pathologists use protocols in order to reach
11 standardized reports?
12 A. There are a variety of standardized reports, and every
13 pathologist will have their own style of report, but it's certainly
14 common to all pathologists to -- the process of examining a body is to do
15 it in different stages, starting from outside and then coming to
16 conclusions. So it's standard in that respect.
17 Q. Thank you. Is it correct when -- that when the cause of death is
18 formulated, different pathologists can reach different conclusions?
19 A. Yes, I think -- I think you're probably implying two things
20 there. The cause of death can be agreed. Different pathologists will
21 have different wordings of it, perhaps, will word it slightly
22 differently. But you're also correct in saying that with given findings,
23 different pathologists will interpret these findings perhaps slightly
24 differently. Put more emphasis on one finding than another. That would
25 only to -- be what's expected.
1 Q. Thank you. People do not die of bone damage but, rather, tissue
2 damage, heart, artery, and so on and so forth?
3 A. Yes, that's true, and it's something that I have always
4 emphasised in my reports, that all we're looking at, all the evidence we
5 have in most of these cases is the damage to the bone. But as a
6 pathologist who has done many, many thousands of ordinary cases, shall we
7 say, I know that what lies beside that bone and what that damage to the
8 bone -- what other damage it will cause, and I think -- I'm allowed
9 professionally to then judge what would have -- the significance of
10 damage to a particular bone.
11 Q. Is it correct that anthropologists have a greater role to play in
12 such cases, say the case of mass graves, as compared to your everyday
13 work when you deal with persons who are recently deceased?
14 A. The role of the anthropologist, their expertise, is in the
15 examination of bones, assessing physical features of that person from the
16 bone, and also in looking at the trauma of -- to the bone. What they
17 lack, however, is the ability to translate that damage to the likely
18 medical consequences, and that is very much the role of the pathologist.
19 But I think the pathologists increasingly also have an increasingly
20 expertise in interpreting bone injury as well. But only the medical
21 people can really assess the significance of injuries which have occurred
22 with what they'll do and likely survival and ability to do anything.
23 JUDGE ORIE: Mr. Clark, I think that you may have missed the gist
24 of the question, which I think was whether the role of the anthropologist
25 in larger in this kind of situation, mass graves, et cetera, compared to
1 someone who was stabbed in a bar or someone who was everyday
2 pathologist's practice.
3 THE WITNESS: Very much so. In a case like that, a stabbing or
4 natural death, the anthropologist would not be involved. The
5 anthropologist's main involvement is in cases of mass graves, where the
6 remains are largely quite often reduced to a skeleton, so they can
7 examine the bones.
8 JUDGE ORIE: And often unidentified, does that play a role as
10 THE WITNESS: Yes, they have a role to play in identification.
11 Actually probably less nowadays than in the past with the onset of DNA
13 JUDGE ORIE: Yes. Mr. Lukic --
14 JUDGE FLUEGGE: May I --
15 JUDGE ORIE: -- is that what you were --
16 MR. LUKIC: Yes. Yes, Your Honour.
17 JUDGE FLUEGGE: May I seek clarification with respect to one of
18 your answers. Perhaps it's just a slip of the tongue.
19 Page 24, line 6, you are recorded as having said:
20 "But I think the pathologists increasingly also have an
21 increasingly expertise in interpreting," and then there is a word
22 missing, "injury as well. But only the medical people can really assess
23 the significance of injuries ..."
24 Are you saying the pathologists increasingly have the ability and
25 the expertise or the -- or the anthropologists?
1 THE WITNESS: I mean the pathologist. For instance, in this work
2 in Tomasica, the main people looking at the bodies were the pathologists.
3 And in many parts of the world, there are no anthropologists, as such,
4 and the pathologist has to do that -- that exercise.
5 JUDGE FLUEGGE: Thank you.
6 JUDGE MOLOTO: If I may just follow up on this very sentence.
7 You're talking about the pathologists on the one hand and medical
8 people on the other.
9 THE WITNESS: I'm meaning the same --
10 JUDGE MOLOTO: The same people.
11 THE WITNESS: Yes, yes.
12 JUDGE MOLOTO: Thank you.
13 THE WITNESS: Pathologists are always medically trained.
14 JUDGE MOLOTO: That's what I thought.
15 THE WITNESS: Yes.
16 JUDGE ORIE: Please proceed, Mr. Lukic.
17 MR. LUKIC: Thank you, Your Honour.
18 Q. [Interpretation] Finally, Doctor, may I ask you to tell us the
19 difference between a decomposed body and skeletonised remains.
20 A. To some extent skeletonised remains is decomposed but it's
21 reached the ultimate stage of it. Decomposition starts almost very
22 shortly after death as the body tissues degenerate and the end point will
23 be a skeleton. So anything in between effectively is decomposition.
24 Q. Would you agree that it is very difficult to establish cause of
25 death on a decomposed body? So we're taking into account the bodies that
1 were found in Tomasica.
2 A. I wouldn't say it's very difficult. It is more difficult because
3 we -- as a pathologist, in fresh bodies we rely on blood and swelling and
4 bruising, et cetera, to interpret that which are not present in
5 decomposed bodies, even these well-preserved Tomasica ones. It is
6 certainly more difficult but we can -- when, you know, we see bullet
7 injuries, I think that's still a fairly certain cause of death. We can
8 still see these injuries.
9 But in terms of natural disease or poisoning, et cetera, yes, it
10 becomes much more difficult in decomposed bodies.
11 JUDGE ORIE: Could I ask you the following question in this
12 context. If the decomposition of the body would be such that you would
13 be hesitant to draw conclusions because of that state of the body, would
14 you always clearly state that in your report?
15 THE WITNESS: Yes. I would give a cause of death as
16 unascertained, yes.
17 JUDGE ORIE: Thank you.
18 Please proceed.
19 MR. LUKIC: And can we have 1D5774 on our screens, please.
21 I don't know if there could be a mistake. We should have
22 transcript in front of us. 1D05774, yes. In e-court we need page 48.
23 And it's page -- we're on the right page. It's number 7388, transcript
24 page from Popovic trial. We need line 21 and further.
25 Q. I will read in English, Doctor. The question was:
1 "Is it fair that doing an autopsy as a pathologist, it's very
2 difficult, nearly impossible, to assess the cause of death on a
3 decomposed body?"
4 And your answer was:
5 "A. It's very difficult, yes."
6 In the last line, the question was - and we'll need to go to the
7 next page when I finish this line - so line 25, I quote:
8 "Q. And is it also true that with a skeletonised body, it is
9 virtually impossible to determine the cause of death?
10 "A. That's fair, yes."
11 [Interpretation] So, Doctor, do you stand by your last statement
12 today as well; namely, that it is almost impossible to determine the
13 cause of death on skeletonised remains?
14 A. I think the context is slightly different. I can only imagine
15 that the question I was being asked, that from a theoretical point of
16 view, if all you have is a skeleton or a very decomposed body, can you
17 100 per cent say, tell the cause of death. And in that situation, yes,
18 from a bone I cannot -- even with the damage there, I cannot say
19 100 per cent that that is the cause of death because the other tissues
20 are missing. That, I imagine, is the context that I gave these answers.
21 I would still stand to what I said this morning, that in the
22 totality of dealing with these cases that it becomes -- is difficult but
23 not impossible if you allow us to interpret what damage to a bone will
24 cause in a normal body. That's perhaps not very clear, but I think the
25 context is slightly different in these two statements. Whatever I was --
1 I would stick to what I said to you this morning.
2 JUDGE MOLOTO: And in addition, Dr. Clark, I thought you said a
3 few minutes ago that for a skeletonised body where the cause of death
4 could have been through poisoning or natural causes, that would be
5 impossible to determine. You would say that that is unascertained, isn't
7 THE WITNESS: Indeed, yes.
8 JUDGE MOLOTO: That's fine. So that would be the difference.
9 But if it was through injury, you may be able to tell.
10 THE WITNESS: Yes, that's much easier.
11 JUDGE MOLOTO: Thank you.
12 JUDGE ORIE: Could I ask you in this respect the following: If
13 you have a fully skeletonised body but, for example, a clear hole in
14 the -- in the head where you can see where a projectile had entered head,
15 would you under those circumstances draw conclusions as to whether such
16 an injury would have caused death?
17 THE WITNESS: I would strongly imply that the -- the cause of
18 death there. In theory, because, as we've already agreed, people don't
19 die of damage to the bone but to what's around about it, in theory I
20 could say no, but I think you've got to make professional allowance for
21 the context of the case and allow us to interpret a gun-shot injury to
22 the skull in the particular context that person has died from a gun-shot
23 injury to the head.
24 JUDGE ORIE: Whereas theoretically you couldn't exclude that the
25 person died from natural causes, then was dead and was shot with a bullet
1 through the head.
2 THE WITNESS: Exactly. And I've explored these arguments
3 previously in my previous reports, et cetera, very fully. Again we come
4 back to common sense as to what is likely, particularly with large
5 numbers of people who have been shot. The reverse would be that these
6 people have all died of natural causes or poisoning and then been all
7 shot after death. Now is that a reasonable suggestion to put? So I
8 think Your Honour has got it correct, that in pure pathological theory,
9 from a bone I cannot say the cause of death, but I think we can think
10 wider than that.
11 JUDGE ORIE: Mr. Lukic.
12 MR. LUKIC: Thank you, Your Honour.
13 Q. And thank you, Doctor, for answering our questions. That was all
14 we had for you at this moment. Thank you very much.
15 A. Thank you very much.
16 JUDGE ORIE: Ms. D'Ascoli, any further questions?
17 MS. D'ASCOLI: No, Your Honours.
18 [Trial Chamber confers]
19 JUDGE ORIE: Mr. Clark -- and I know that you've been addressed
20 as Dr. Clark, and when I say "Mr. Clark" it has got nothing do with any
21 depreciation of your authority, it's just my way of expressing myself.
22 THE WITNESS: I know. You've explained that before so, yes --
23 JUDGE ORIE: And you remember that?
24 THE WITNESS: I do.
25 JUDGE ORIE: Mr. Clark, this concludes your testimony, but I hope
1 that it really concludes your testimony and that we don't see you back in
2 a couple of months. Not because it wouldn't be a pleasure but because we
3 want to proceed with this case.
4 Mr. Clark, I'd like to thank you very much for coming again and
5 for having answered all the questions that were put to you by the
6 parties, were put to you by the Judges, and I wish you a safe return home
8 THE WITNESS: Thank you very much.
9 JUDGE ORIE: You may follow the usher.
10 THE WITNESS: Thank you.
11 JUDGE ORIE: And if the usher could prepare the next witness to
12 remain on standby, but meanwhile I will deliver a decision in the --
13 [The witness withdrew]
14 JUDGE ORIE: And that is a ... one second, please.
15 [Trial Chamber and Registrar confer]
16 JUDGE ORIE: The Chamber will now deliver its decision on
17 expertise of Mile Poparic and Zorica Subotic with regard to their four
18 reports on mortar attacks and small-arms fire in the Sarajevo area
19 between 1992 and 1995 and the use of modified aircraft bombs in the
20 Sarajevo area between 1994 and 1995.
21 On the 13th of April of this year, the Defence filed a notice of
22 disclosure of four expert reports, co-authored by Poparic and Subotic,
23 pursuant to Rule 94 bis of the Rules of Procedure and Evidence. The
24 Prosecution filed its notice pursuant to Rule 94 bis on the 13th of May,
25 submitting that it does not challenge the expert status of Poparic and
1 Subotic or the relevance of the "Report on Mortar Attacks on the Sarajevo
2 Area - Incidents at the Markale Market," and of the majority of the
3 remaining three reports. It requests the exclusion of portions of these
4 three reports due to lack of relevance. To the extent that the reports
5 are admitted, the Prosecution does not accept their conclusions and
6 therefore wishes to cross-examine the witnesses.
7 With respect to the applicable law concerning expert evidence,
8 the Chamber recalls and refers to its 19th of October, 2012, decision
9 concerning Richard Butler.
10 On the basis of Poparic's and Subotic's curricula vitae, and
11 considering that the Prosecution does not dispute their qualifications as
12 a weapons and military equipment expert and a ballistics, fire-arms and
13 cold weapons expert, respectively, the Chamber is satisfied that they
14 have specialised knowledge and expertise, and that such knowledge and
15 expertise may be of assistance to the Chamber in assessing the evidence
16 presented by the Prosecution during its case in-chief.
17 With regard to the Prosecution's request to cross-examine the
18 witnesses, the Chamber notes that the Defence plans to call Poparic and
19 Subotic to give evidence. The Prosecution will therefore have the
20 opportunity to cross-examine them.
21 Based on the forgoing, the Chamber decides, pursuant to Rule 94
22 bis of the Rules, that the Defence may call Mile Poparic and
23 Zorica Subotic to testify as expert witnesses and that they shall be made
24 available for cross-examination by the Prosecution.
25 The Chamber also instructs the Defence to review the reports and
1 respond to the Prosecution's submission that portions of the reports
2 should be excluded because these portions relate to unscheduled or
3 dropped incidents from the indictment, address areas outside the scope of
4 the reports, and challenge the evidence of witnesses who did not provide
5 evidence in this case, and do that within two weeks of the date of this
7 The Chamber defers its decision on the admission of the expert
8 reports to the time of the witnesses' testimony.
9 And this concludes the Chamber's decision.
10 [The witness entered court]
11 [Trial Chamber confers]
12 JUDGE ORIE: Mr. Tieger, you're on your feet.
13 MR. TIEGER: I was reminded by the Court's ruling just now that
14 the Defence requested on the 30th of June to add 21 documents to its
15 Rule 65 ter exhibit list for use with Witness Misic who will be coming up
16 shortly, and I wanted to note for the benefit of the Bench and the
17 parties that the Prosecution has no objection to this request.
18 JUDGE ORIE: That's hereby on the record.
19 And, Ms. Tabeau, you are suffering from administrative matters
20 still to be dealt with.
21 Ms. Tabeau, before you give evidence -- no.
22 [Trial Chamber confers]
23 JUDGE ORIE: You've made a solemn declaration already in this
24 case. Therefore, there's no need to give that solemn declaration again.
25 But I'd like to remind you that you're still bound by it, and the solemn
1 declaration was that you would speak the truth, the whole truth, and
2 nothing but the truth. Please be seated.
3 THE WITNESS: Thank you.
4 WITNESS: EWA TABEAU [Recalled]
5 JUDGE ORIE: Ms. Tabeau, you will first be examined by
6 Ms. D'Ascoli. You find her to your right, and you may know it already
7 but Ms. D'Ascoli is counsel for the Prosecution.
8 THE WITNESS: Thank you.
9 JUDGE ORIE: Please proceed.
10 MS. D'ASCOLI: Thank you, Your Honours.
11 Examination by Ms. D'Ascoli:
12 Q. And good morning, Ms. Tabeau.
13 A. Good morning.
14 Q. Could you please state your full name for the record.
15 A. Ewa Tabeau.
16 Q. And can I ask you to describe the folder that I see you have with
18 A. This is a folder containing a few documents that are related to
19 my speaking today here in this courtroom. I have my report, Tomasica
20 report, clean copy. I have the annexes to the report, clean copy again.
21 I have the short notes I made in relation to the victims from
22 Jakarina Kosa, again some tables related to Jakarina Kosa victims, a
23 sample of the ICMP data based on which I made the analysis for
24 Jakarina Kosa, and a short annex I prepared for these victims.
25 JUDGE ORIE: Ms. Tabeau --
1 THE WITNESS: I think that's all.
2 JUDGE ORIE: -- could you always make clear to this Chamber when
3 you're consulting any material which is not part of your report so that
4 we know that you're using other sources as known to us at that point in
6 THE WITNESS: Of course.
7 JUDGE ORIE: Please proceed.
8 MR. IVETIC: Your Honours, if I may intervene. If I could just
9 ask for some clarification. When she says "short notes," I don't know
10 what that is and I don't see it on the list, so I don't know if that is a
11 document I already have or if it's an additional document that I would be
12 entitled to.
13 THE WITNESS: This is -- actually this short note, as I called
14 it, is -- are a few pages, six pages, as far as I remember, consisting of
15 actually only some statistics in some tables and no text whatsoever. And
16 as far as I remember, I -- this note should have been disclosed to the
17 Defence as part of my proofing notes. So there is no text, no research
18 discussion, anything like that. Just a set of results of my analysis.
19 JUDGE ORIE: Ms. D'Ascoli, can you confirm that --
20 MS. D'ASCOLI: Yes, I can clarify that.
21 JUDGE ORIE: Yes, please.
22 MS. D'ASCOLI: Ms. Tabeau is referring to document marked with 65
23 ter 32738.
24 JUDGE ORIE: Which has been --
25 MS. D'ASCOLI: Which has been disclosed to the Defence.
1 Mr. Ivetic can confirm. Thank you.
2 JUDGE ORIE: Then let's proceed.
3 JUDGE FLUEGGE: May I put just one additional question for
5 The tables you are referring to contained in this note, are
6 they are also contained in your report and the annexes?
7 THE WITNESS: The notes and the annexes to the notes are not
8 contained in my Tomasica report. It is separate and additional to the
10 JUDGE FLUEGGE: Thank you.
11 JUDGE ORIE: Please proceed, Ms. D'Ascoli.
12 MS. D'ASCOLI: Yes, Your Honours, and I will go into that later
13 during the course of the examination.
14 Can I please have 65 ter 31100 on the screens.
15 Q. You have been a demographer for more than 30 years; correct?
16 A. Correct.
17 Q. Did you recently provide the OTP with an updated curriculum
19 A. Yes, I did.
20 Q. Once the document is on the screen, I would ask you whether you
21 recognise it.
22 A. Yes. This is the document.
23 Q. It is your updated CV?
24 A. That's correct.
25 Q. Can you tell us what your current profession is.
1 A. I am working at the ICTY in the Office of the Prosecutor of the
2 ICTY as a demographer and a senior research officer. I am working on
3 research into victims and victimisation patterns.
4 Q. And you were employed in the past as well in the Demographics
5 Unit of the Office of the Prosecutor of this Tribunal; correct?
6 A. Yes, I started my employment with the OTP in September the year
7 2000 and recently had a break of two and a half years, after which I
8 returned in March 2014 to resume the same responsibilities as I had
9 before. In that break of two and a half years, I was coming to the ICTY
10 each year, first to testify and prepare for the testimony in Karadzic,
11 and, second time, to do the same for the Mladic case.
12 Q. Yes, and, in fact, you testified as an expert before this
13 Tribunal and, yes, including the Karadzic case that you mentioned and
14 including this very case before this Trial Chamber.
15 A. Yes, that is correct.
16 MS. D'ASCOLI: Your Honours, the Prosecution tenders 65 ter 31100
17 into evidence as the next Prosecution Exhibit.
18 JUDGE ORIE: Mr. Ivetic.
19 MR. IVETIC: No objection.
20 JUDGE ORIE: Madam Registrar.
21 THE REGISTRAR: Document 31100 receives number P7448,
22 Your Honours.
23 JUDGE ORIE: Admitted.
24 MS. D'ASCOLI: Can we please have 65 ter 31097 on the screens.
25 Q. Dr. Tabeau, did you prepare an expert report at the request of
1 the Office of the Prosecutor of this Tribunal to analyse the information
2 available on identified individuals exhumed in the Tomasica mass grave?
3 A. Yes, I prepared such a report.
4 Q. And do you recognise the document now on the screens? Is that
5 your report?
6 A. Yes, this is the front page of this report.
7 Q. Did you have an opportunity to review this report before
8 testifying today?
9 A. Yes, I recently reviewed the report and its annexes, so I did
10 have the opportunity, indeed.
11 Q. Did you have any corrections to make to your report?
12 A. Yes. During my re-reading of the report, I noticed that a few
13 tables were incomplete, that a group of cases were excluded from these
14 tables. Therefore, I remade these tables and prepared a short
15 corrigendum about that.
16 MS. D'ASCOLI: I would call that up. Can I please call up 65 ter
18 Q. And I will ask to you have a look at the document on the screen
19 and tell us whether that is the corrigendum that you prepared and
20 reflecting the connections that you had.
21 A. Yes. This is the corrigendum. It relates to Tables 35 and 36.
22 The second part of Table 36 is on next page.
23 Q. Maybe I can summarise that for you.
24 So is it correct that Table 35 had a wrong total, while the
25 correct one is 1376 that we now see in the table?
1 A. That is correct. So there was a group of records or cases
2 excluded from the table previously which I included in the new version of
3 the table. And the same is with Table 36, actually.
4 JUDGE FLUEGGE: Can you repeat the sum?
5 MS. D'ASCOLI: Yes. Former Table 35 had a wrong total, that is,
6 1320. While the correct total is 1367 as it is now displayed and as it
7 was also reflected in Table 32, at page 35 of the report.
8 JUDGE FLUEGGE: I only ask because earlier you referred to a
9 wrong number. Now it's corrected. Thank you.
10 MS. D'ASCOLI: Thank you, Your Honour.
11 THE WITNESS: The totals are correct, I made sure that they are.
12 MS. D'ASCOLI:
13 Q. Then Table 36, A, B, and C, were missing a row regarding the
14 non-available, NA, information which is now provided; correct?
15 A. Correct. And they are consistent, the subtotals from these
16 tables, with the numbers in Table 35.
17 Q. And this additional row provided is the penultimate one now on
18 the tables.
19 A. That's correct.
20 Q. Then if we could move to page 2 of this document, a correction
21 was also made to Table 41, which is on page 43 of your report, where one
22 victim was inadvertently associated with Scheduled Incident B5.1, while
23 being in fact a victim of Scheduled Incident A6.6 as it is reflected now
24 in the corrected version of Table 41. Is that accurate?
25 A. Yes, it is accurate. The incident number was mistakenly -- B13
1 incident was mistakenly allocated to one victim and now this has been
3 Q. Therefore, does this document accurately reflect the corrections
4 you wanted to make to your report and are you satisfied with its
6 A. Yes, it is a correct table. I am satisfied with it.
7 MS. D'ASCOLI: I will ask later that this document be marked for
8 identification together with the report and the annexes, so I will
10 Q. We will go -- Dr. Tabeau, we'll go into the substance of your
11 report later.
12 Did you also prepared four annexes to your report?
13 MS. D'ASCOLI: And can I call up 65 ter 31098.
14 THE WITNESS: Yes, I prepared four annexes. And I'm waiting for
15 the document to appear on the screen. I guess it will be one of the
17 MS. D'ASCOLI:
18 Q. Yes. Just a second, and -- yes, can you confirm, is this the
19 document containing the fours annexes that you produced together with
20 your expert report?
21 A. Yes, it is the front page of the four annexes which are available
22 jointly from one document.
23 Q. And in respect of these four annexes, did you have an opportunity
24 to review them before testifying?
25 A. Yes, I also reviewed the annexes.
1 Q. And I understand you had some additional information to provide
2 in respect of one of the annexes; correct?
3 A. Yes, it was the annex 2 that I noticed was incomplete from the
4 point of view of the overall number of reassociations available for the
5 Tomasica victims.
6 Q. Just a second.
7 MS. D'ASCOLI: I would call up document 65 ter 31098A.
8 Q. And, Dr. Tabeau, I would also ask you to pause between questions
9 and answers to allow for the transcript.
10 Dr. Tabeau, do you recognise this document? Was this addendum
11 prepared for you?
12 A. Yes, I recognise the Annex 2.
13 Q. Does this reflect the additional information you wished to
14 provide to the Court?
15 A. Yes. I want to explain that the original version of Annex 2
16 covered only reassociations between Tomasica and Jakarina Kosa cases.
17 But, of course, there were also a number of reassociations within the
18 Tomasica site. That means Tomasica case, main case, was associated to a
19 bone that was found within the Tomasica grave. So that part was missing
20 from Annex 2, and I made additional few pages that are covering the
21 within Tomasica site reassociations. So now the annex is complete.
22 MS. D'ASCOLI: Can we please remove the document from the screen.
23 JUDGE ORIE: Could I -- one second. The title reads:
24 Reassociation, then the number 81, of the 46 cases split within the
25 Tomasica grave. Split is with a -- is a -- how do you call? -- a
1 character -- a capital S. Does that have any meaning or did you intend
2 to say cases that were split within the Tomasica grave, so as to refer to
3 what actually happened to those cases, and then later reassociated?
4 THE WITNESS: There is no particular meaning of the term "split."
5 It just expresses the fact that bodies were fragmented within the
6 Tomasica and there were more than one DNA match report for this given
7 person so ...
8 JUDGE ORIE: Yes. So the -- the capital has no meaning at all.
9 THE WITNESS: Not at all.
10 JUDGE ORIE: Thank you.
11 THE WITNESS: Sorry for this.
12 JUDGE ORIE: Please proceed.
13 MS. D'ASCOLI: Your Honours, can -- okay.
14 Q. Dr. Tabeau, did you prepare the report, the four annexes, the
15 addendum independently and reached your conclusions free of any
17 A. Yes, I did.
18 Q. And do you stand by the analysis and conclusions reached therein?
19 A. Yes, I stand by these conclusions and findings.
20 MS. D'ASCOLI: Your Honours, at this stage I would ask that these
21 documents be marked for identification pending completion of the
22 cross-examination, and I can read out the relevance 65 ter numbers.
23 JUDGE ORIE: Yes, if you would please do so.
24 MS. D'ASCOLI: 65 ter 31097 is Dr. Tabeau's expert report.
25 JUDGE ORIE: Madam Registrar.
1 THE REGISTRAR: Document 31097 receives number P7449
2 Your Honours.
3 JUDGE ORIE: Marked for identification.
4 MS. D'ASCOLI: The next document is the corrigendum to the report
5 marked with 65 ter number 31097A.
6 JUDGE ORIE: Madam Registrar.
7 THE REGISTRAR: Document 31097A receives number P7450,
8 Your Honours.
9 JUDGE ORIE: MFI'd.
10 MS. D'ASCOLI: The next document is the document containing the
11 four annexes, 65 ter 31098, and this should be under seal.
12 JUDGE ORIE: Madam Registrar.
13 THE REGISTRAR: Document 31098 receives number P7451,
14 Your Honours.
15 JUDGE ORIE: Marked for identification, under seal.
16 MS. D'ASCOLI: And the last document should be the addendum,
17 65 ter 31098A, also under seal, and -- yeah.
18 JUDGE ORIE: Madam Registrar.
19 THE REGISTRAR: Document 31098A receives number P7452,
20 Your Honours.
21 JUDGE ORIE: Marked for identification, under seal.
22 [Trial Chamber and Registrar confer]
23 MS. D'ASCOLI: Your Honours ...
24 [Trial Chamber confers]
25 JUDGE ORIE: Please proceed, Ms. D'Ascoli.
1 MS. D'ASCOLI: Thank you, Your Honours.
2 Q. Dr. Tabeau, moving now to discuss your report, I understand you
3 have prepared a PowerPoint presentation to facilitate the presentation of
4 your evidence today; correct?
5 A. Yes, correct.
6 MS. D'ASCOLI: Your Honours, we have added this presentation to
7 the list of exhibits for this witness and it is uploaded in e-court with
8 65 ter 32753. This presentation, these slides are explanatory in nature,
9 demonstrative rather than evidentiary. However, I do plan to tender it
10 into evidence to facilitate also the review of Ms. Tabeau's evidence, and
11 therefore I would ask that also this document be marked for
12 identification pending cross-examination.
13 JUDGE ORIE: Then, Madam Registrar, 65 ter number 32753 receives
15 THE REGISTRAR: Number P7453, Your Honours.
16 JUDGE ORIE: Marked for identification.
17 I take it, Ms. D'Ascoli, that we don't need to have that one
18 under seal.
19 MS. D'ASCOLI: No, Your Honours. We don't.
20 JUDGE ORIE: Thank you. Please proceed.
21 MS. D'ASCOLI: Can I call up P7453, marked for identification,
23 Q. Ms. Tabeau, looking now at your screen, is this the PowerPoint
24 present you prepared?
25 A. Yes, it is.
1 MS. D'ASCOLI: Can we go to slide 2, please, in both languages.
2 Q. Before I ask you to comment on these slides, I note that you have
3 written "page 2" in parenthesis after the title of the slide. Can you
4 tell us what this page number refers to?
5 A. Page numbers are from the English version of my report. They
6 indicate the exact page where this issue shown on the slide is discussed
7 in the report.
8 Q. So every time we see a similar indication, that is a reference to
9 the page number of the English version of your report where we can find
10 the information discussed in the slide; correct?
11 A. Yes, correct. Moreover, there will be tables, numbered tables,
12 on the slides. All the numbers come from the English version of the
13 report as well, which is also the same in the B/C/S version, of course.
14 Q. Thank you. Now going to the content of this slide, can you
15 please tell us about the main objectives of your Tomasica expert report.
16 A. The main objective I was tasked with was to provide numbers of
17 victims exhumed from the Tomasica mine and, at the same time, provide
18 their DNA identification details, the causes of death analysis or
19 overview, and disappearance information.
20 That was the major objective of the report. So the focus was on
21 the victims from the Tomasica mine. But more broadly, I was also looking
22 into a group of missing persons. I call these missing persons
23 Tomasica-related missing persons, and it is not necessarily so that by
24 this term I exclusively understand the persons exhumed from the Tomasica
25 mine. This group, Tomasica-related missing, is a broader group, as I
1 will show later during this testimony.
2 Of course, a related question is whether there were any
3 connections between the Tomasica-related missing persons and Tomasica
4 identified persons with the names of victims already listed in the
5 so-called POD annex. I testified about this annex in November 2013. It
6 is an annex to the proof of death report I prepared at that time,
7 together with Mr. Zwierzchowski. The victims are those from the
8 Scheduled Incidents from the fourth Mladic indictment.
9 JUDGE ORIE: Mr. Ivetic.
10 MR. IVETIC: If I may for the record. As we are now hearing,
11 this witness intends to provide evidence beyond persons exhumed from the
12 Tomasica grave. She calls it a broader group. Your Honours will recall
13 the Prosecution rested its case. Your Honours re-opened the case solely
14 for the purposes of leading evidence as to the Tomasica grave and
15 evidence of those exhumed from it. The Defence therefore believes that
16 anything broader than that, especially revisiting issues that would have
17 been the subject of prior -- of the prior Prosecution case in-chief, is
18 inappropriate at this time and is a violation of Your Honours' order.
19 We would ask that all such evidence from this witness be stricken
20 and not considered. Thank you.
21 JUDGE ORIE: Ms. D'Ascoli.
22 MS. D'ASCOLI: Yes, Your Honours. I want to clarify the scope of
23 the -- of the report by putting a couple of questions to Ms. Tabeau,
24 rather than summarising it myself.
25 JUDGE ORIE: Yes. There's an objection. You shouldn't do that.
1 That's what Mr. Ivetic tells us. Let me just confirm with my colleagues
2 for a second.
3 [Trial Chamber confers]
4 JUDGE ORIE: The Chamber has considered your objection,
5 Mr. Ivetic, and thinks that it would be wise for us to re-read our own
6 decision, our re-opening decision, to see exactly how we defined the
7 limits of the re-opening of the case. Once we've done that, Ms. D'Ascoli
8 is invited to, first, before she starts eliciting any evidence on the
9 substance, first to explore exactly what the relation with Tomasica is,
10 because it is said that it's Tomasica-related. And then with a fresh
11 recollection of the details of our decision, the Chamber will then
12 rule on whether Ms. D'Ascoli is remaining within the limits of our
13 decision and we'll then rule on whether she, therefore, may proceed or
15 We re-read our decision during the next break, which will be in a
16 couple of minutes from now.
17 Ms. D'Ascoli.
18 MS. D'ASCOLI: So I'll continue with the rest of the presentation
19 and after --
20 JUDGE ORIE: Yes, the --
21 MS. D'ASCOLI: [Overlapping speakers] --
22 JUDGE ORIE: -- Tomasica-related matters, not dealing with bodily
23 remains found in Tomasica or -- you leave that for a second until we have
24 re-read our own decision and then later introduce it for us, first, to
25 establish what the relation is and whether it falls within or outside the
1 limits we've drawn in that decision. So, meanwhile, proceed with other
3 MS. D'ASCOLI: Absolutely, Your Honours. I will move then to the
4 next slide which addresses the sources of the report. And this is
5 slide 3.
6 Q. And, Ms. Tabeau, I would ask you to comment on this slide and to
7 discuss the sources of your report.
8 A. Before I will go through the slide, I would like to make a
9 reference to my presentation in November 2013 in which I explained that
10 the POD project then presented to the Chamber, the main idea was to look
11 into three groups of sources and to cross-reference these three groups,
12 to see in what extent they corroborate each other, to what extent they
13 overlap with each other.
14 I am speaking about the universe of missing persons as the first
15 group; the universe of exhumed persons as the second; and the final one,
16 the universe of the identified persons. So the same concept has been
17 applied in my work on Tomasica victims. We therefore have three groups
18 of sources on this slide. This is slide number 3, as far as I can say.
20 JUDGE ORIE: That's what it says at the bottom, yes.
21 THE WITNESS: Yes. The first group are sources on missing
22 persons, the major one being the ICRC list of missing persons for
23 Bosnia-Herzegovina, 2009 edition. The second being Prijedor Book of
24 Missing, in B/C/S "Knjiga Nestalih Prijedor," that is why the
25 abbreviation KNP in the parentheses. This source is a source made
1 locally by the Prijedor Association of Victims and is used because for
2 the 92 victims in the Prijedor area, ICRC does not possess a complete
3 overview of all victims. And the Prijedor Book of Missing is an
4 important addition to the ICRC list.
5 I also showed in the report that the two are greatly consistent,
6 largely overlap with each other, so there is no harm to work with a
7 combination, with a merger, integration, of the two.
8 The second group is the group which represents both the sources
9 on the exhumation, on the exhumed remains, and, at the same time, on the
10 DNA identification of the victims. I'm speaking of the ICMP records of
11 DNA match notifications that I used for this report. We had two separate
12 submissions focused on Tomasica. The latest one from June 2014 was used
13 for this report. This list includes both main cases and reassociations
14 of the victims from the 2013 excavation in Tomasica but also includes
15 cases from Jakarina Kosa, the cases overlapping with those from Tomasica,
16 and cases from the earlier excavations in Tomasica, 2004 and 2006
18 This is a complete list that was the subject of my analysis in
19 this report.
20 And, finally, there is a group that is focused - the third
21 group - on causes of death of the victims. On the first place, I used
22 the materials compiled by John Clark and submitted as part of his expert
23 report in the form of two additional lists or annexes. I used these
24 annexes as a source of information for the cause of death of the Tomasica
25 victims. As Clark's report and his annexes only cover the 2013
1 excavation, I also had to look for additional sources for the victims
2 from Jakarina Kosa, which excavation took place in 2001, and victims
3 exhumed in earlier Tomasica excavations, 2004 and 2006.
4 So all these sources were in the form of autopsies or post-mortem
5 investigative reports and were all focused on this one particular aspect
6 on the cause of death of these victims.
7 JUDGE ORIE: Ms. Tabeau, we'll take a break. We'd like to see
8 you back in 20 minutes from now. You may follow the usher.
9 [The witness stands down]
10 JUDGE ORIE: We'll resume at quarter past 12.00.
11 --- Recess taken at 11.56 a.m.
12 --- On resuming at 12.23 p.m.
13 JUDGE ORIE: Just to briefly inform the parties, the decision on
14 the Prosecution motion to re-open its case in-chief, in the disposition
15 we find that the Chamber grants the motion. Therefore, we would have to
16 look in what exactly was asked in the motion. In the motion --
17 [The witness takes the stand]
18 JUDGE ORIE: -- the relief requested is Prosecution requests
19 leave to re-open its case in-chief in order to present the proposed
20 evidence set out in confidential annexes A and B concerning the Tomasica
21 mass grave. So we'll very much focus on what we find in that respect.
22 MR. IVETIC: Your Honour, also paragraphs 15 and 16 of the
23 Prosecution motion lists the proposed evidence, and in relation to
24 Madam Tabeau, I believe it's paragraphs 27 and 28 which highlight that
25 her evidence will be in relation to the victims exhumed from the Tomasica
1 mass grave.
2 JUDGE ORIE: Yes, and --
3 JUDGE FLUEGGE: And in addition you should refer also to
4 paragraph 30.
5 JUDGE ORIE: Yes. We'll consider that in its context and the
6 relief requested is clear and perhaps even more detailed.
7 Ms. D'Ascoli, we expect you whenever you -- there's any --
8 whether that could be doubt as whether you went beyond what the
9 Prosecution was allowed to present during the re-opening of its case, you
10 should clearly first find out and explore what exactly it is and how it
11 fits into our previous decision and in your previous request. Only then
12 we are able to further decide on any objections, and Mr. Ivetic may then
13 also -- because he objected in a rather general way, but the Chamber
14 doesn't know yet exactly what you intend to do, so we'll wait and see
15 what happens.
16 Please proceed.
17 MS. D'ASCOLI: Thank you, Your Honours. Therefore I will just
19 JUDGE ORIE: Yes. Please do so.
20 MS. D'ASCOLI: Thank you.
21 Q. Dr. Tabeau, we were on slide 3 discussing the main sources that
22 you used for your report. Now, in particular, can you explain how you
23 used the ICMP DNA identification records in your analysis?
24 MS. D'ASCOLI: And, Your Honours, for the record, when
25 Tomasica -- the Tomasica and Jakarina Kosa DNA identification records of
1 ICMP June 2014 is P7437. That was tendered as part of Dr. Parson's
3 Q. Dr. Tabeau, can you explain how used the ICMP DNA identification
4 records in your analysis.
5 A. The ICMP list of DNA match notifications was the most essential
6 source I used for my report. As I explained earlier today, it is a list
7 that includes the records of identification of the victims exhumed in
8 2013 but also in earlier years, in 2004 and 2006, and including a number
9 of records, or cases, from another mass grave, Jakarina Kosa. The list
10 includes as well two types of reports. One type is the main case reports
11 that represent the actual match between -- match reports for victims as
12 represented by the bone samples with the DNA profiles obtained from the
13 blood samples provided by the families. So main cases are match reports,
14 main cases represent different individuals.
15 In addition to main cases, there is a second type of report in
16 the ICMP list. This is the so-called reassociation report. The
17 reassociation reports are also match reports which basically duplicate
18 the information in terms of the different individuals, the information
19 contained in the main case reports. So associated reports,
20 reassociations represent matches obtained for various bone samples of the
21 same individuals that are linked with the main match report for this
22 given individual.
23 Q. And --
24 A. Yes, I want also to add there is a small number of cases in the
25 ICMP list that are actually representing just DNA profiles of victims and
1 are not yet match reports, so there is no match with the familial DNA
2 profiles, but this short list of seven cases is known to the ICMP, that
3 each of them represents a different person who, in addition, is not
4 included in the main case reports.
5 So all together, main cases plus the so-called uniques are the
6 two components of the -- of the number that I produced -- the number of
7 different individual victims from Tomasica mine.
8 Q. And to clarify, you speak about main cases and reassociation.
9 Can you tell us, can you explain what you refer to when discussing
10 reassociation? It is within one site? It is across two sites? And I'm
11 talking -- I'm referring to Tomasica and Jakarina Kosa.
12 A. We know, and it is in my report and probably also in other
13 reports, that Jakarina Kosa contained a number of cases that are linked
14 to the cases from Tomasica. So the reassociations I analysed cover both.
15 The reassociations between the two sites, Tomasica and Jakarina Kosa, and
16 reassociations within the Tomasica site itself. So it is a complete
17 overview of all reassociations that were produced so far or were produced
18 then until June 2014 by ICMP.
19 Q. Okay. So what about --
20 A. If I may just add that my task was to analyse these records and
21 study the reassociations as they link with the main cases to determine
22 the overall number of persons, individuals, that were buried originally
23 in Tomasica and many of them are -- were still buried until the
24 excavation 2013, but some were moved to a different site at some moment
25 of time.
1 Q. Okay. And how about the ICRC list of missing and the Prijedor
2 Book of Missing? Can you explain how you used these two sources.
3 A. These two sources were used on the first place to provide the
4 information about the disappearance of the victims exhumed from Tomasica.
5 I will call them -- not only from Tomasica but also Jakarina Kosa. So
6 when I will say "Tomasica victims," I will mean both those who were
7 exclusively in Tomasica but also those who bodies or remains were split
8 between the two sites, Tomasica, Jakarina Kosa. So records of missing
9 persons were used to extract disappearance information for these
10 particular persons, for the Tomasica victims. And, of course, I could
11 have done it in all kinds of ways. I could have started with the overall
12 list of missing persons for Bosnia and Herzegovina, which I did, but then
13 I narrowed it down first to the area that was relevant to the events in
14 question, well, we -- I expected that the victims were from the area
15 probably close somewhere to the location of the site. So it was better
16 to look at the narrower list, the one for the Prijedor itself, the
17 municipality of Prijedor, and also it was necessary to look into the area
18 around Prijedor, a larger area called the Autonomous Region of Krajina
19 list of missing persons.
20 Q. So to summarise, you analysed the information available about the
21 remains exhumed from Tomasica within the context of the information on
22 the missing persons from the Prijedor municipality available from these
24 A. Yes, that is correct. So the Prijedor list of missing was just a
25 direct universe of missing persons where I expected to find links between
1 the Tomasica identified and their disappearance information.
2 So as I am saying, the use was basically to be able to link
3 sources with each other, so it was not that a separate list of missing
4 persons was compiled in the context of Tomasica identified persons.
5 Q. And one follow-up question about the links between your analysis
6 and the ICRC and Prijedor lists of missing persons. So if people were
7 killed but no missing person report was ever filed for them, they would
8 not appear in your data or in the statistics of your report even if their
9 bodies were exhumed at some point; correct?
10 A. Yes, if there is a record of a person being killed, this person
11 is normally not reported to organisations like ICRC or other
12 organisations of this type and it's not included among the records of the
13 missing. So known deaths is a separate category.
14 Q. Okay.
15 MS. D'ASCOLI: Can I please have slide 4 on the screen.
16 Q. Dr. Tabeau, I will ask you to explain this slide. What do you
17 mean by reference sources?
18 A. The reference sources shown on this slide are the 1991 population
19 census for Bosnia-Herzegovina and the integrated mortality database which
20 is an integration of a large number of sources on both known deaths and
21 missing persons again for Bosnia and Herzegovina, entire country.
22 These sources are part of the usual methodology that my unit and
23 myself have been using in compiling our reports. So the methodology
24 involves linking a list of victims, say, Tomasica identified persons,
25 back with the 1991 population census to confirm their personal details
1 and whereabouts at the outbreak of the war, like place of residence, and
2 to study the ethnicity, et cetera. And the integrated database is a list
3 of victims that have been also exposed additionally to checks in the
4 sources on survivors, like records of internally displaced persons,
5 refugees, and voters registered for 1997, 1998, and 2000 elections in
6 Bosnia, country-wide elections in Bosnia. This is to exclude potential
7 survivors or actual real survivors who should not appear on the lists of
8 victims. So it is -- this reference sources are part of the usual proof
9 of death routine of my unit and myself, so the abbreviation POD on this
10 slide stands for the proof of death review routine.
11 Q. Yes, and when previously testifying before this Chamber in
12 November 2013, you already explained the methodology underlying the
13 creation of the integrated database, what this database is, and the
14 sources included in it. And these are described in your report and in
15 your proof of death report previously admitted as Exhibit P2797.
16 Therefore, I take it that these methodology sources and process described
17 therein apply to your Tomasica report as well; correct?
18 A. Correct.
19 MS. D'ASCOLI: Can I please have slide 5 now on the screen.
20 Q. And, Dr. Tabeau, I would briefly ask you to describe the
21 different steps that you undertook for the completion of your expert
23 A. The step number one is actually listed on this slide in the
24 second bullet point --
25 Q. And just for the record, you're referring to the step as numbered
1 in page 10 of your report; correct?
2 A. Yes, that is correct.
3 Well, as a matter of fact, there were two parallel steps that I
4 completed. So step number one listed here as the second bullet point was
5 the compilation of the Tomasica identified persons list based on the ICMP
6 submission of DNA match notifications in June 2014. But parallel I was
7 also working on the compilation on the Tomasica-related missing persons
8 list. This list served as a universe from which links were expected to
9 be found for the Tomasica identified and the disappeared persons.
10 JUDGE ORIE: Mr. Ivetic.
11 MR. IVETIC: Your Honours, as we see, we're moving beyond those
12 that are Tomasica identified persons to a realm of -- that is thus far
13 described as Tomasica-related and missing persons which is beyond the
14 scope of the reopening, beyond the scope of what Prosecution asked for in
15 reopening, and therefore beyond the scope of what your October 2014
16 decision granted the Prosecution.
17 JUDGE ORIE: First of all, this is in your report as well, what
18 you're describing now?
19 THE WITNESS: Yes, it is.
20 JUDGE ORIE: Yes.
21 Ms. D'Ascoli, was the report disclosed to the Defence when you
22 requested the re-opening?
23 MS. D'ASCOLI: Yes, Your Honours. That was disclosed together
24 with the motion for reopening and our submission on 94 bis in
25 August 2014. And also I would like to point Your Honours' attention to
1 the fact that paragraph 3 of Dr. Tabeau's witness summary which is
2 attached to our motion to reopen explicitly stated that her report placed
3 the Tomasica victims in the context of the Prijedor missing and we also
4 stated that she would place the Prijedor missing in the context of the
5 ARK missing, Autonomous Region of Krajina. And this evidence was clearly
6 part of the material as which the Prosecution sought to reopen its case
7 and as to which the Chamber granted its motion.
8 JUDGE ORIE: Well, you started argument rather than just limit
9 yourself to answering my question. Then you are referring to Annex A and
10 then specifically on page Roman XII in which specifically reference is
11 made to the report which -- of which the content was known to the Defence
12 at that time.
13 MS. D'ASCOLI: Yes, precisely.
14 JUDGE ORIE: Then let me also re-read for a second your questions
15 before Mr. Ivetic ...
16 Mr. Ivetic, further submissions in relation to what Ms. D'Ascoli
17 told us.
18 MR. IVETIC: Yes, Your Honours. Your decision was in October.
19 You'll recall we had until December to respond to Ms. Ewa Tabeau's report
20 and our 94 bis response asked for the report to be stricken. And
21 Your Honours have deferred, I believe, ruling on that until hearing the
23 JUDGE ORIE: Yes. But I'm focusing at this moment on the
24 reopening. In the reopening, the report in itself is specifically
25 mentioned as evidence which the Prosecution would want to present and you
1 were there and -- but please assist me when my memory doesn't serve me
2 well, that no objection, even if it would be a subsidiary objection, was
3 made that the report went beyond what is so related to Tomasica that it
4 should be excluded. But I may have missed it --
5 MR. IVETIC: Are we talking about the objections to the
7 JUDGE ORIE: Yes. And the evidence to be presented in that.
8 MR. IVETIC: Well, Your Honours, again I point to -- there's a
9 very thin line, I believe, between Tomasica-related evidence that is
10 linked to the Tomasica identified individuals. Locating in ARK-wide
11 universe the identities of Tomasica identificated [sic] victims, finding
12 them in other sources, linking them to other incidents, I don't have a
13 problem with that. That's what Your Honours have allowed them to do.
14 And that's what they sought to do in paragraphs 27 and 28, and, as -- as
15 Judge Fluegge mentioned, also 30, so I would say 27 through 30, where
16 they specifically talk about Ms. Tabeau's findings. And in that section
17 there's nothing talking about any analysis of missing persons that are
18 not Tomasica identified. So linking Tomasica identified people to other
19 evidence, that's the purpose of the reopening. But now doing additional
20 evidence about other people that were not identified in the Tomasica mass
21 grave, that was known to them at that time, at the time that the
22 Prosecution case was ongoing. They closed their case. They chose not
23 lead that evidence. They now cannot have a second bite of the apple in
24 the midst of the Defence case to present additional evidence that they
25 now think bolsters their case, that they chose not to at the time of
1 their original case.
2 [Trial Chamber confers]
3 JUDGE ORIE: Ms. D'Ascoli, Mr. Ivetic said that you are trying to
4 link -- that you are trying to present "additional evidence about other
5 people that were not identified in the Tomasica mass grave, that was
6 known to them at the time ..."
7 I must say that I'm slightly lost, and I'm also inviting the
8 witness very carefully to listen. I do understand that you need to look
9 at missing persons in order to have a starting point for even trying to
10 identify those found in such a grave, and that you'd then look around and
11 see where persons are reported being missing.
12 It is not entirely clear to me, Mr. Ivetic, what you think is
13 additionally sought as evidence. But perhaps we first ask Ms. D'Ascoli
14 how she understands this additional evidence about other people that were
15 not identified in the Tomasica mass grave, how you understood that. If
16 you have a clear understanding, then we'll verify whether that's also
17 what Mr. Ivetic meant.
18 MS. D'ASCOLI: Yes, Your Honours. Our position is that it is not
19 additional evidence because what Ms. Tabeau does is to -- in her report
20 is to contextualise the information related to the victims exhumed from
21 the Tomasica mass grave and reassociated case to Jakarina Kosa within
22 the -- I'll slow down -- within the context of the information available
23 on the missing persons. And this is very much part of her methodology.
24 This is part of what -- a methodology that she has already employed in
25 her previous reports. And therefore, in order to understand place and
1 dates of disappearance of the universe that she is analysing, she needs
2 to refer to the larger universe as terms of reference, as part of her
3 methodology. So it is our position that it is contextualising the
4 information, it is not adding information.
5 JUDGE ORIE: Yes, well, contextualising --
6 MR. IVETIC: If I could assist --
7 JUDGE ORIE: -- is an abstract concept. I'd very much like to
8 know concretely what we are talking about --
9 MR. IVETIC: I can do that. I can do that, Your Honours.
10 JUDGE ORIE: Mr. Ivetic.
11 MR. IVETIC: In the conclusions of Ms. Tabeau's report, that's
12 page 45 in the English, this is the part I have a problem with, and it
13 says as follows:
14 "I used the Prijedor missing persons list to produce an
15 indicative count of all those who likely were part of the same events in
16 which Tomasica victims died. I established that many persons went
17 missing on exactly the same dates from the identical places as the
18 Tomasica victims and, thus, these persons likely died in the same events.
19 Many of them have not been found" -- pardon me, "have not yet been found
20 and their fate is still unknown."
21 So what we're doing now is the Prosecution is creating evidence
22 as to additional people apart from persons that were exhumed from
23 Tomasica, additional people who would have been in their databases as
24 missing on a certain date with all the data and was available to be
25 presented in the Prosecution cases, and now we're adding conclusions
1 about the fates of these people that were not part of the Prosecution's
2 case. That is the new evidence that I'm objecting to, that it goes
3 beyond the scope of your order.
4 JUDGE MOLOTO: You're talking about the fates of those people,
5 Mr. Ivetic. If I understood what you read of Ms. Tabeau's report, she
6 says the fate of those people is still unknown. Am I right?
7 MR. IVETIC: No, Your Honour. She says:
8 "... thus, these persons likely died in the same events."
9 JUDGE ORIE: Likely died. That's not a fact.
10 MR. IVETIC: Well -- as -- my goal is make sure that no one can
11 misread it as a fact and conclude otherwise. So if Your Honour is
12 satisfied --
13 JUDGE MOLOTO: We --
14 MR. IVETIC: -- that we cannot rely upon her report, that might
15 resolve the issue. But --
16 JUDGE MOLOTO: Not a [overlapping speakers] --
17 MR. IVETIC: -- we need to make sure that a majority of Judges
19 JUDGE MOLOTO: You've heard me.
20 [Trial Chamber confers]
21 JUDGE ORIE: This Chamber considers that "likely" presents a
22 probability and not an established fact.
23 Mr. Ivetic, is that ...
24 MR. IVETIC: For the time being, unless we come to any additional
25 specific evidence, because, again, we've been dealing mainly with the
1 abstract. I thought it was useful to get to a precise point of
2 contention so we could know exactly what's on the table instead of
3 talking theoretically.
4 JUDGE ORIE: Yes. You wanted the majority of Judges to agree.
5 We have agreed.
6 Please proceed, Ms. D'Ascoli.
7 MS. D'ASCOLI: Yes, Your Honours. So we are looking at slide 5.
8 Can we -- yes, can we now move to the next slide, 6.
9 THE WITNESS: But perhaps I can comment briefly on what I did
10 actually. We didn't finish this slide.
11 JUDGE ORIE: Indeed, Mr. Ivetic raised an objection while you
12 were still giving your testimony. If you would like to add anything to
13 what you've said until now in this context, please do so.
14 THE WITNESS: I was saying, I started by compiling the list of
15 Tomasica identified persons, and parallel the universe of missing persons
16 where I expected to confirm the Tomasica identified. And from the
17 missing persons records, I wanted to acquire information about the
18 disappearance of the Tomasica identified.
19 I also have done other things. I worked with the Tomasica
20 identified persons by inserting cause of death information into their
21 records, from Clark's reports and other sources. I integrated
22 disappearance information from the missing persons lists into the records
23 of the Tomasica identified. I further checked how many of the
24 individuals reported generally as missing persons in especially Prijedor
25 municipality, how many of those, as we discussed -- as Mr. Ivetic
1 discussed sometime -- some minutes ago, disappeared on exact same dates
2 from exact same places as Tomasica identified. And this number is much
3 higher than the Tomasica identified. Roughly 1200 individuals, mainly
4 Prijedor missing persons, almost exclusively Prijedor missing, were those
5 who disappeared from the exact same places and on the exact same dates.
6 Through cross-referencing of this list with the records of the
7 Tomasica identified, I was -- and POD records from the -- related to
8 Scheduled Incidents, I was able to establish how many of those are in the
9 Prosecution lists and how many are not. And roughly it is about
10 50 per cent of the 1200 that are not yet -- not -- sorry, just not. Not
11 yet. Didn't say this. Are not on the Prosecution list.
12 I think that part of the analysis in which I produced links
13 between the Tomasica identified and the POD victims from the
14 Scheduled Incidents is the last step and last part of my analysis, but
15 it's important to mention it, that I did this as well.
16 JUDGE ORIE: Mr. Ivetic.
17 MR. IVETIC: Your Honours, given your ruling, as I understand it,
18 I don't know why we're not talking about those 1200 persons that are not
19 anymore of relevance given the Chamber's finding that we cannot rely upon
20 any kind of finding as to their fates.
21 JUDGE ORIE: I think Ms. Tabeau just gave us the numbers, nothing
22 more, and we established already that "likely" doesn't present a fact.
23 Please proceed.
24 MS. D'ASCOLI: Thank you, Your Honours.
25 Q. Dr. Tabeau, you finished discussing the different steps
1 undertaken when preparing your report. Can we now look at the next slide
2 and can you briefly tell us what the four annexes to your Tomasica expert
3 report are.
4 A. I produced four annexes. None of these annexes is a list of
5 missing persons. It is all lists related to the Tomasica identified
7 Annex 1 is the major annex. It is the list of the Tomasica
8 identified, which also includes, next to the identification information,
9 the cause of death of every person, almost every person, and their
10 disappearance information. So that is the Annex 1.
11 Annex 2 gives an overview of the links between the Tomasica main
12 match reports, main cases, and their associated cases called also
13 reassociations. This also includes list causes of death of these
15 Annex 3 is a simple index of victim identification documents
16 collected parallel to the main sources. Main sources, I mean the ICMP
17 list of the match reports, lists of missing persons, other autopsies
18 related to 2004 and 2006 excavations in Tomasica and 2001 excavation in
19 Jakarina Kosa. These other documents were the documents provided to the
20 Office of the Prosecutor by the State Prosecutor of Bosnia and
21 Herzegovina. They included autopsies of the Tomasica victims. They
22 included the actual DNA match reports and other identification documents
23 of the victims, and investigative reports, on-site investigative reports.
24 That also included disappearance information of the victims.
25 As of the present, there is approximately 600 documents that were
1 provided. They were not used for the analysis in the report, but I
2 studied them frequently to reconfirm my findings from the report and see
3 if the results corroborate each other.
4 Finally, Annex 4 is a list of the Tomasica identified persons
5 that were confirmed among the victims of Scheduled Incidents from the
6 fourth example -- indictment. This list contains 123 cases. That means
7 different persons.
8 So throughout the report, I work with main cases representing
9 individuals which is not the same as the bodies used in other -- by other
10 experts, predominantly by Clark who is referring by body number and case
11 number in the context of a set of remains. Set of remains may contain
12 mixed remains, so does not always represent one individual.
13 Q. Yes, Dr. Tabeau, we will focus on the -- let's focus now on the
14 findings of your report and then we will return to discuss the annexes
15 more in details later on.
16 So if we can move to the next slide, slide 7, and starting the
17 discussion on the specific findings, can you tell us how many unique main
18 cases you identified in total?
19 A. In total, there were unique main cases -- the total of unique
20 main cases is 378. And on the top of this, there are seven cases of
21 unique profiles, no match reports yet. So the overall total of Tomasica
22 victims is 385.
23 Q. You mean of DNA identified?
24 A. Yes. All these victims are -- have been identified through the
25 DNA methodology.
1 JUDGE ORIE: But for the seven which were not matched yet, the
2 identification is limited to establishing that they are separate persons,
3 not knowing who they are. Is that well understood?
4 THE WITNESS: That is correct. However, the DNA methodology was
5 applied to obtain the unique profiles, DNA profiles. So to all 385, DNA
6 methodology was applied.
7 JUDGE ORIE: And that's --
8 THE WITNESS: Of which seven are not yet matched with the
9 familial profiles.
10 JUDGE ORIE: And that allowed us to establish or allowed you to
11 establish that the seven are separate individuals although we have not
12 matched them in any way to DNA profiles obtained from other sources.
13 THE WITNESS: Yes, that is correct. This is actually not my
14 decision that these are additional individuals. They are unique,
15 different -- unique individuals in terms of DNA profiles and different
16 from all other individuals with certain DNA profiles under the main
17 cases. So that is the methodology the ICMP has been using. And in this
18 meaning, using over the years, also in the context of Srebrenica
19 analysis, the uniques were always considered by ICMP, and we followed, as
20 additional individuals.
21 JUDGE ORIE: Thank you.
22 MS. D'ASCOLI:
23 Q. And therefore the overall number which we see in the bottom part
24 of the slide, 385, would be the 378 matched individuals and these seven
25 unmatched report; correct?
1 A. Correct.
2 Q. And the total 712 of your report -- sorry, 712, yes, so does this
3 total tell us that there have been 712 DNA match notifications produced?
4 A. Yes, this is the number of notifications produced.
5 Q. Okay.
6 MS. D'ASCOLI: Can we please move to the next slide.
7 Q. And these details, the total that you were discussing of 378
8 matched identified individuals, can you discuss this slide, please, and
9 the break down of the total?
10 A. I just want to explain that I -- although I accepted the Seven
11 uniques as part of the overall total number of the victims, for the
12 analysis in the report I only included the actual match reports. So
13 you -- you will see in the tables, instead of 385, the number 378, which
14 doesn't change the overall total. The overall total means 385 and
15 remains 385.
16 This table is an overview of where the main cases were located.
17 Actually the best way to read this table is from the bottom, from
18 Jakarina Kosa, which was chronologically the first instance when DNA
19 match reports were issued for the Tomasica victims. Even though at the
20 time of 2001 excavation, it was not yet known that these were the
21 profiles of victims from Tomasica.
22 This is related to the way the ICMP is issuing the main case
23 reports. When the first time a match is obtained between the remains and
24 the family blood samples, the main report is issued. So chronologically,
25 for a number of individuals in this table, 94, as I have shown in my
1 report, 94 cases from Jakarina Kosa had the main reports issued in
2 Jakarina Kosa but were representing already at that time individuals from
3 the Tomasica mine.
4 So in the next exhumations, 2004 and 2006, ICMP issued match
5 reports for 68 individuals. However, a large number of those already
6 overlapped with the existing match reports from Jakarina Kosa. Only 16
7 were new at that time and this is how they are listed here. Tomasica
8 2004 and 2006 is reported with 16 new match -- main case reports of
9 Tomasica victims.
10 And finally, there was the excavation in 2013 that followed, and
11 from this excavation, there were 268 new main case reports for the
12 Tomasica victims.
13 So that is the distribution of the number 378, according to the
14 location of the main case.
15 Q. Therefore, a follow-up question: If a body part, regardless
16 whether this was representing a small or a more substantial part of a
17 body, if this body part was for the first time identified by DNA when
18 recovered from the Jakarina Kosa grave-site in 2001, then we would have a
19 main case in Jakarina Kosa; correct?
20 A. Yes, that is correct.
21 Q. And then --
22 A. So -- then if more a less a complete body of the same person was
23 exhumed in 2013 from the actual Tomasica mine, this complete body would
24 be considered a reassociation to the report issued for Jakarina Kosa
25 victim in 2001.
1 Q. Yes. Therefore, if the rest of the body completing that body
2 part found in Jakarina Kosa was then found in Tomasica, this would
3 constitute a Tomasica reassociation to the Jakarina Kosa main case;
5 A. Yes, it's correct. One more comment --
6 Q. And --
7 A. -- on this slide. The 94 for Jakarina Kosa cases is the number
8 of different individuals that were split, whose remains were split
9 between two sites, Jakarina Kosa and Tomasica. However, I also found, by
10 studying the recent submission of the ICMP, that four cases from 2013
11 excavation had their associated cases in Jakarina Kosa and were not
12 included among the 94.
13 So these four must be added to the 94 in order to obtain the
14 overall number of individuals whose bodies were split between the two
15 sides. So it is either main case in Jakarina Kosa and reassociation in
16 Tomasica or the other way around, the main case in Tomasica and
17 reassociation in Jakarina Kosa.
18 Although the Tomasica-Jakarina Kosa model was only found in four
19 cases, which really makes sense because it is like the last cases not yet
20 matched with familial profiles from Jakarina Kosa could now be declared
21 as the actual DNA matches.
22 Q. Yes, I wanted to ask you to explain in the -- the bottom part of
23 the slide where you present the total of 94 plus four and therefore
24 explain what the additional four cases were. And we found the details of
25 this information in Table 3, page 12 of your report; correct?
1 A. Yes. Once again, the overall number of individuals whose remains
2 were split between the two sites is 98 and that total includes 94
3 individuals already identified as a familial match with the victim bone
4 sample match from the 2001 excavation in Jakarina Kosa, plus four
5 cases -- matches obtained from the latest excavation in 2013.
6 Q. I would move to the next slide, but maybe we -- I see that it is
7 time for the break so before I do that ...
8 JUDGE ORIE: It certainly is. We'll take a break of 20 minutes
9 again. We'd like to see you back, Ms. Tabeau. You may follow the usher.
10 [The witness stands down]
11 JUDGE ORIE: We will resume at 25 minutes to 2.00.
12 --- Recess taken at 1.16 p.m.
13 --- On resuming at 1.38 p.m.
14 MS. D'ASCOLI: Your Honours, as Mr. Lukic is here, and I'm not
15 sure about Tuesday, I note that I still have to tender Dr. Clark's
16 material that has been MFI'd.
17 JUDGE ORIE: Yes, the Chamber had noticed that.
18 MS. D'ASCOLI: I didn't want to interrupt because the witness was
19 in the courtroom already. Thank you.
20 JUDGE ORIE: Okay. Then we might deal with it the last one or
21 two minutes today.
22 MS. D'ASCOLI: Thank you, Your Honours.
23 [The witness takes the stand]
24 JUDGE ORIE: Please proceed, meanwhile.
25 MS. D'ASCOLI: Thank you, Your Honours.
1 Q. Dr. Tabeau, let's move to the next slide which is number 9, and
2 if can you briefly tell us about your findings on gender, age, and
3 ethnicity of these 378 identified individuals object of your report and
5 A. The slide shows for Tomasica identified that 320 individuals were
6 confirmed through the 1991 census to have Muslim ethnicity. This is
7 equivalent to about 96 per cent of the victims, exactly 95.8. There were
8 some other non-Serbs, one Croat and 12 persons of other ethnicities,
9 jointly approximately 13 persons or 4 per cent, approximately. There was
10 one Serb victim, which amounted to 0.3 per cent. That distribution is
11 shown for Tomasica identified.
12 Next to it there is a similar table for the Prijedor missing
13 persons. There were in total 2580 missing persons from the Prijedor
14 municipality. Of this overall number, 1953 were Muslims. This was
15 approximately 95 per cent. And there is a small group of other
16 non-Serbs, jointly approximately 5 per cent, and one Serb.
17 Q. And these are ICRC-based --
18 A. Yes.
19 Q. -- information or results; correct?
20 A. This is the compilation based on the Prijedor list of missing in
21 which the ICRC component is the core component, and I call it therefore
22 ICRC-based. But there is a number of cases from the Prijedor Book of
23 Missing but they come second as sort of filling in the gaps, adding to
24 the reports of ICRC. So --
25 Q. Can we have --
1 JUDGE ORIE: Could I ask one --
2 JUDGE MOLOTO: Madam Tabeau, before we go on, could you tell us
3 what in the context "unavailable" means?
4 THE WITNESS: Yes. As I mentioned, this distribution, ethnicity
5 distribution was compiled on the basis of linkage of the records with the
6 1991 census. So the unavailable are records that, first of all, were not
7 matched with the census and for which no ethnicity information is
8 available, and there are a few cases matched for whom ethnicity was not
9 reported in the census. That's the meaning of unavailable.
10 JUDGE ORIE: Yes. Could I ask you, in splitting up in
11 percentages, in the left column for Tomasica you included the unavailable
12 13 per cent in the total split-up; whereas for the Prijedor missing in
13 1992 you did not. Do you have an explanation as why you treated them
15 THE WITNESS: Thank you for pinpointing my omission. I actually
16 should have done both in the same way. The right way is in the right
17 table for the Prijedor missing. I should have excluded unavailable from
18 the calculation of the percentage distribution.
19 So, in fact, the percentages in Table 5 for Tomasica missing, for
20 Muslims and others, should have been higher than what is shown in the
21 table. That is my mistake. I'm sorry for this.
22 JUDGE FLUEGGE: But the sum of 100 per cent, there is not the
23 13.2 percentage included.
24 JUDGE ORIE: Yes --
25 THE WITNESS: Yes --
1 JUDGE ORIE: -- you would have come to 130.2 per cent, which
2 is --
3 THE WITNESS: Excellent point, indeed. So after all the
4 percentages are good. So what is not needed is the 13.2. It has to be
6 JUDGE FLUEGGE: Indeed.
7 JUDGE ORIE: There we are.
8 Please proceed.
9 MS. D'ASCOLI: Thank you, Your Honours.
10 Can we move to the next slide and I ask you -- slide number 10.
11 Q. I will ask you, Dr. Tabeau, to comment on place of disappearances
12 of the 378 Tomasica identified individuals.
13 A. This is, again, on this slide excerpts from my report. Only the
14 major places of disappearance are shown, for places -- like 15 places
15 where the largest numbers of disappeared persons were reported. So the
16 left table is for the Tomasica identified. We can see from the table
17 that these places are all within the Prijedor municipality, including the
18 three camps, Keraterm, Trnopolje and Omarska, bolded. They were reported
19 in the list of missing persons in exact same way. The other places,
20 Biscani, Rizvanovici, Carakovo, and so on, are small villages in the area
21 of Prijedor located relatively closely, nearby, to the location of the
22 Tomasica mine. The places are sorted according to the number of the
23 missing persons reported from a given place. But if we go to the Table
24 33 for Prijedor missing, the order will be different, slightly, but most
25 places will be the same, including the three camps. Again, for the
1 Prijedor missing, as the places of disappearance we see the small
2 villages from the Prijedor municipality. The number of these villages
3 can also be seen from the Scheduled Incidents, the location of the
4 incidents were exactly the same as several of the villages listed in
5 these tables. There is a large degree of similarity between Tomasica
6 identified disappearance places and Prijedor missing.
7 Q. And, again, this is ICRC records based?
8 A. Yes, it's again the same approach.
9 Q. Now, the next slide, number 11, you also examined the last
10 available place of residence for the same individuals. If you can
11 summarise your results for us.
12 A. Here, on the right side, there is the table for the Tomasica
13 identified, Table number 6. So the places of residence in 1991, again,
14 were obtained through linkage of the cases of the Tomasica identified
15 with the 1991 census. As we see, except for six cases at the bottom of
16 the table, one from Sanski Most and one from Bosanski Novi, all remaining
17 cases were from within the Prijedor municipality. And, again, many of
18 the places of residence in 1991 are the same as the places that we have
19 just seen as the places of disappearance of these victims.
20 Q. Yes. And that explains the relevance of this slide, right?
21 Because my next question was if could you explain the relevance of this
23 A. Yes, that is the relevance of this analysis. There is a high
24 degree of consistency between the places where the people lived at the
25 outbreak of the war in 1991 and the places from which they were reported
1 as missing.
2 A similar table in this same degree of detail can be made for the
3 Prijedor missing but it is a rather longer table, so what I'm presenting
4 as Table 31 is just the municipality of residence for the Prijedor
5 missing. As we see, 2023 missing persons from Prijedor were residing
6 before the war in the Prijedor municipality itself.
7 MR. IVETIC: Your Honours, if I may intervene. I'm not sure if
8 I'm following the wrong table or what, but in the transcript it's
9 recorded that there's from one Sanski Most and one from Bosanski Novi,
10 but I see for Bosanski Novi nine on that table that's before us on the
11 screen. So I -- I'm just lost where that information is coming from.
12 JUDGE ORIE: Let's ask Ms. Tabeau, but I think when she said she
13 was referring to Table 6 where at the bottom we find for Sanski Most one,
14 and for Bosanski Novi, five persons. Whereas in the left table, of
15 course, we have for Sanski Most and Bosanski Novi five and nine, and
16 that's Table 31.
17 THE WITNESS: And I think here -- I've just checked with the
18 report. These are correct tables, and it is all correct. There is no
19 contradiction or inconsistency between the two.
20 JUDGE ORIE: Mr. Ivetic, does that --
21 MR. IVETIC: It assists me. Thank you.
22 JUDGE ORIE: Thank you.
23 Please proceed.
24 MS. D'ASCOLI:
25 Q. And, Dr. Tabeau, did you also analyse the time of disappearance?
1 MS. D'ASCOLI: And if we can have slide number 12, please.
2 THE WITNESS: Yes, I analysed time of disappearance.
3 MS. D'ASCOLI:
4 Q. And can you tell us about your findings and the figures that
5 we're looking at in this slide.
6 A. On slide 12, there are two charts: Figure 1 for Tomasica
7 identified; and Figure 5, for the Prijedor missing persons. On these
8 charts, of course, in both cases it is the year of disappearance, 1992,
9 and disappearances are shown graphically by the month of disappearance.
10 JUDGE MOLOTO: Is this Figure 6 or Figure 5?
11 THE WITNESS: It is Figure 6 on the right and Figure 1 on the
13 JUDGE MOLOTO: Yes, it said 5 earlier.
14 THE WITNESS: Yes -- well, I would have to go to the previous
15 slide --
16 JUDGE MOLOTO: Page 74, line 9, you said 5, Madam. That's all.
17 THE WITNESS: Oh, I'm sorry.
18 JUDGE MOLOTO: That's fine.
19 THE WITNESS: Then, yes, I misspoke. Yes, sorry.
20 MS. D'ASCOLI:
21 Q. Can you tell us what was the month with the highest number of
22 missing persons reported?
23 A. In both cases --
24 MR. IVETIC: I would object. This is now going back to material
25 that was available to the Prosecution at the time of their Prosecution
1 case. It is not related to the Tomasica exhumations.
2 JUDGE ORIE: Ms. D'Ascoli, I must first admit that I may have
3 missed some of what was said because there were overlapping speakers.
4 Could we do the following: Could you please again put your question.
5 Ms. Tabeau is invited not to answer it yet. And then we'll consider the
6 objection by Mr. Ivetic.
7 MS. D'ASCOLI: Yes, my question was whether -- what was the month
8 with the highest number of missing persons reports and I left it to that.
9 That was my question. But clearly we are looking at Figure 1, with the
10 Tomasica identified compared with the Prijedor missing. So my question
11 was in the context of the two figures that we're looking at in slide
12 number 12.
13 JUDGE ORIE: Mr. Ivetic.
14 MR. IVETIC: It is the Defence position they can ask all they
15 want about Figure 1, the Tomasica identified individuals, but in terms of
16 trying to now talk about - and this at page 35 of report - dates as to
17 Prijedor, that would have been as to other persons, not those exhumed
18 from Tomasica, that is out with the reopening and is an attempt to
19 rehabilitate a failing of their evidence in their Prosecution case
20 in-chief, which is, I believe, unpermissible [sic] at this stage.
21 [Trial Chamber confers]
22 JUDGE ORIE: As with the previous tables, which did exactly the
23 same and where there was no objection raised, this -- these figures, 1,
24 and 6, assist in interpreting the data for the Tomasica identified and
25 are, for that reason, so directly related to the analysis of what was
1 found in Tomasica that the question is permissible.
2 MR. IVETIC: But, Your Honours, for the record, I don't believe
3 that we've talked about dates of disappearance in the prior graphs that
4 were related to places' names --
5 JUDGE ORIE: Yes, well -- yes, places --
6 MR. IVETIC: That's a totally different topic.
7 JUDGE ORIE: Well, I gave the ruling and you apparently disagree
8 with the reasons I gave. The ruling is there.
9 Ms. D'Ascoli.
10 MS. D'ASCOLI:
11 Q. Shall I repeat my question, Dr. Tabeau?
12 JUDGE ORIE: Yes, perhaps that would be best.
13 MS. D'ASCOLI: Yes.
14 Q. I was asking what was the month with the highest number of
15 missing persons reported within the context of the two figures we're
16 looking at, the Tomasica identified, the 375 of persons of your report,
17 within the universe of the Prijedor missing.
18 A. The month with the highest number of disappearances is in both
19 cases July. All three sources, ICMP, ICRC, and the Prijedor Book of
20 Missing, are highly consistent and corroborate each other's numbers.
21 The other months, in the order of the size of the disappearances,
22 is May and June, and the last, perhaps, considerably lower disappearance
23 numbers, is August 1992.
24 Q. And then on the basis of this information you -- you did a
25 breakdown of this information, and if we move to the next slide, you
1 focused on this particular month in the year 1992; correct?
2 A. Correct.
3 MS. D'ASCOLI: Slide number 13, please.
4 Q. And I'll ask you to explain again the two figures. This is --
5 this focuses only on July 1992.
6 A. This is the further distribution by day of disappearance within
7 the month of July 1992. The left figure, Figure 4, relates to Tomasica
8 identified, and there is a table, 35, that describes the same for the
9 Prijedor missing persons.
10 From the chart, from Figure 4, it is clear that most people were
11 reported as missing on the 20th of July, to be followed subsequently by
12 those who disappeared on the 23rd, 24th, and the 25th of July. That is
13 observed for the Tomasica identified persons.
14 Q. And I --
15 A. Again, three sources, ICRC, ICMP and Prijedor Book of Missing,
16 fully agree on that.
17 Q. Yes, that was my -- I was going to -- a follow-up question
18 whether there is consistency across these sources consulted for these
19 dates but you pre-empted my question.
20 A. So if we move to the right part of the slide, Table 35, some
21 figures are bolded in these tables, and these figures relate to the exact
22 same dates, 20th of July, 23rd, 24th, and the 25th. And, by all means,
23 these are the highest numbers of missing persons, much higher than on any
24 other day.
25 MS. D'ASCOLI: And I just note that Table 35 was one of the
1 tables for which Dr. Tabeau had corrections. But the version, of course,
2 on the slides is the correct one.
3 We can move to the next slide, please, slide 14.
4 Q. Can you please describe the information in here.
5 A. It is Table --
6 MR. IVETIC: Your Honours, I have to object. I believe now again
7 we're talking about persons missing for which there is no other evidence,
8 that are being linked solely because of the date and place of
9 disappearance, so I think we're again talking about people beyond the
10 Tomasica exhumed persons --
11 THE WITNESS: If I may add something. The Tomasica identified
12 are in this table included in the records of Prijedor missing persons. I
13 just included one table --
14 JUDGE ORIE: As a matter of fact, you are responding to an
15 objection --
16 THE WITNESS: Oh, sorry, sorry.
17 JUDGE ORIE: -- at this moment to some extent. I think we'd
18 leave that to Ms. D'Ascoli.
19 THE WITNESS: Sorry.
20 MS. D'ASCOLI: Your Honours, again, this information is essential
21 for analysing the Tomasica identified, the 378, within the context of the
22 Prijedor missing as Dr. Tabeau has done across all the previous tables.
23 And the three days taken are the three days that for the figure reporting
24 the Tomasica missing were the three with the highest number of missing
25 persons reported. So again, this is part of her methodology and was part
1 of the report previously notified.
2 MR. IVETIC: And I just don't remember having cross-examined
3 Dr. Tabeau in the Prosecution's case in-chief, I don't remember this
4 being part of their case during that point in time.
5 [Trial Chamber confers]
6 JUDGE ORIE: The objection is denied. It is a detail following
7 from the previous matters on which we gave a ruling.
8 Please proceed.
9 MS. D'ASCOLI:
10 Q. Yes, Dr. Tabeau, I'd ask you to please describe the information
11 in this table. Briefly, please.
12 A. This table gives places of disappearance for each given date, the
13 20th, 23rd, and the next slide will show the 24th and 25th of July, 1992,
14 for the Prijedor missing. The Tomasica identified, a large group of
15 them, are included here as part of this table. But in Table 38 in the
16 report, the same type of distribution is available for the Tomasica
18 The point I am making, yes, that under each of these days, we see
19 again villages from the Prijedor municipality and the camps, Keraterm,
20 Omarska, and Trnopolje, listed as the places of disappearance. The
21 disappearance was taking place, again is confirmed here, within the
22 villages, small villages, Prijedor municipality, and it was like a
23 pattern coming back and back in whatever perspective was taken. Was it
24 Prijedor missing? Was it Tomasica identified? Or other groups of
1 Q. This table --
2 JUDGE FLUEGGE: Just one question.
3 You referred to -- something is wrong with the ...
4 Can you hear me?
5 THE WITNESS: Yes.
6 JUDGE FLUEGGE: You referred to the three camps, but in the right
7 column I don't see Trnopolje. I only see Omarska and Keraterm.
8 THE WITNESS: Yes, that's correct. I was referring to the left
9 column, to the 20th of July.
10 JUDGE FLUEGGE: Thank you.
11 JUDGE ORIE: I have one follow-up question as well.
12 The numbers reported for the camps, Keraterm, Trnopolje, and
13 Omarska are, if I could say, relatively low compared to some of the
14 villages. Is my understanding correct that when the place of
15 disappearance is reported as being in a village, that that doesn't say
16 anything yet as to whether that person may have been in one of those
17 camps but not reported as having disappeared from there?
18 THE WITNESS: Yes, it is exactly the case. The numbers for
19 Keraterm, Omarska, Trnopolje are not complete in the sense that many
20 people were saw last time in their own places of residence.
21 JUDGE ORIE: Yes. But if you say they're not complete, there's
22 an implicit suggestion that at least some of those would have gone
23 through Keraterm, Trnopolje, and Omarska, which, on the basis of your
24 expertise, could not easily be established, I think. Or am I wrong?
25 THE WITNESS: I can only establish what is reported in the
1 underlying source. If a person is reported missing from a village and
2 later was transferred to a camp, like Omarska, Keraterm, and then the
3 trace of this person is no more known, I still have to report this person
4 as disappeared from this village.
5 JUDGE ORIE: Yes, and you wouldn't know. So when you said the
6 number for Keraterm, Omarska, Trnopolje are not complete, they may be
7 complete. They may not be complete. Is that ...
8 THE WITNESS: That is my understanding too. They may be, but
9 more likely are incomplete.
10 JUDGE ORIE: Please proceed.
11 MS. D'ASCOLI:
12 Q. Yes, Table 36 is composed of four parts, A, B, C, and D, all
13 related to different days in July 1992. So the next slide, slide 14
14 shows -- slide 15 shows the other two component of the same table and I
15 take it your observations apply to these two subtables, C and D? Unless
16 you want to add something --
17 A. No, it is just an illustration of the same thing.
18 Q. Okay.
19 MS. D'ASCOLI: So if we now move to slide 16, please.
20 Q. Can you comment upon this slide, please.
21 MR. IVETIC: And, Your Honours, I note that bullet point 3
22 relates to the people that you have already ruled are not sufficiently
23 linked to be a certainty persons who have disappeared on the same date
24 and place as Tomasica identified persons.
25 JUDGE ORIE: Yes, if we ruled on it, then that's on the record.
1 Please proceed.
2 MS. D'ASCOLI:
3 Q. Dr. Tabeau, I was waiting for your comment on this slide.
4 A. Yes. This slide summarizes the findings for the Tomasica
5 identified in the context of the Prijedor persons -- missing persons from
6 Prijedor. So the group of Tomasica identified is part of a larger group
7 of missing persons reported predominantly from the Prijedor municipality.
8 There were, in total, 2580 such persons, all disappeared in 1992. I was
9 able to directly link 339 cases of the Tomasica identified with the cases
10 of missing persons, 339 out of 378. The 378 includes 15 records for whom
11 ICMP did not report their names yet. Now some of these names are
12 available, as I checked in ICMP records. I couldn't match the 15 records
13 for the lack of personal information. So the 339 is a high number. It
14 gives a matching rate of more than 90 per cent.
15 The third bullet point is about those who went missing from the
16 exact same places and dates --
17 MR. IVETIC: Your Honours, I object and intervene again.
18 Your Honours have ruled and we keep repeating this evidence that Your
19 Honours have ruled upon. I don't see what the point of repeating
20 evidence that you have ruled upon is unless it's to prejudice the
21 proceedings and introduce evidence that you've already ruled upon.
22 JUDGE MOLOTO: I thought the ruling was that there are not -- the
23 Chamber is not considering that, but the witness has testified and the
24 witness is not a lawyer, doesn't know what is ruled and what is not ruled
25 on. So the evidence is there, but for purposes of the consideration of
1 the whole report, the Chamber did rule that it would not look at that.
2 MR. IVETIC: And that's why I'm raising not as an objection but
3 to bring on the record the fact that we're now talking again about
4 evidence that Your Honours have ruled upon --
5 JUDGE MOLOTO: The record is -- the Chamber is aware of that.
6 JUDGE ORIE: It's on the record. And Mr. Mladic is invited not
7 to speak aloud.
8 JUDGE MOLOTO: Can I ask a question, Madam Tabeau, and I know you
9 still have to come to this bullet. You say of all -- the last bullet.
10 Of all these 547 persons who are still unaccounted for, does it mean that
11 this 547 should be added to each of the three bullets if we are to look
12 at the total of people including those unaccounted for?
13 THE WITNESS: The 547 are already on the missing persons list.
14 So these are missing persons from Prijedor who, at the same time, don't
15 overlap with other records like Tomasica identified persons or victims
16 listed in the POD annex that would be victims related to
17 Scheduled Incidents from the indictment. So they are just missing
18 persons from Prijedor, part of the universe that I have just discussed
19 who are still missing, reported as still missing persons, so we don't
20 know what happened to these persons, and for whom we don't have proof of
21 death evidence on our Prosecution lists.
22 JUDGE MOLOTO: Thank you.
23 JUDGE ORIE: Please proceed.
24 MS. D'ASCOLI:
25 Q. Yes. A follow-up question that I raised earlier and that refers
1 to the data -- the numbers that you are looking at. So you give minimum
2 numbers of missing persons, and these are not reflective of the total
3 numbers of killed persons if these weren't first reported as missing.
4 A. Yes, I said earlier in my testimony that killed persons, known
5 deaths, are not part of this report. So there is a group of missing
6 persons, those who have been recently exhumed from Tomasica mine and have
7 been identified, so they became known deaths at this point, but initially
8 they were on the missing persons lists. Other known deaths, known being
9 known for longer time, are not on the missing persons records.
10 JUDGE ORIE: Having been removed from that.
11 THE WITNESS: Yes.
12 JUDGE ORIE: Ms. D'Ascoli, there was a small matter we have to
13 deal with anyhow. It's quarter past 2.00 already.
14 MS. D'ASCOLI: Yes, I wanted to stop at this point, Your Honours.
15 Thank you.
16 JUDGE ORIE: Yes. Ms. Tabeau, we'll adjourn for the day and we'd
17 like to see you back on Tuesday, the 7th of July - we'll not sit on the
18 6th of July - in this same courtroom, 9.30 in the morning. And I again
19 instruct you that you should not speak or communicate with whomever about
20 your testimony, whether given already or still to be given.
21 THE WITNESS: Of course. Thank you very much.
22 JUDGE ORIE: You may follow the usher.
23 [The witness stands down]
24 JUDGE ORIE: Ms. D'Ascoli.
25 MS. D'ASCOLI: Yes, Your Honours. First I -- the Prosecution
1 intends to tender into evidence the MFI material with Dr. Clark -- the
2 material that was MFI'd with Dr. Clark and that is his report, table of
3 corrections, annexes --
4 JUDGE ORIE: If you take them --
5 MS. D'ASCOLI: And I can list -- yes --
6 JUDGE ORIE: If you'd take them one by one.
7 MS. D'ASCOLI: Yes. So the report is P7443, MFI.
8 JUDGE ORIE: Madam Registrar -- I mean, Mr. Lukic.
9 MR. LUKIC: Sorry. We have the same objections as we raised in
10 our motion from 22nd December 2014. And during the cross-examination we
11 learned from Dr. Clark that at that time he did not -- when he
12 participated in this work he did not have any task given either by the
13 OTP of this Tribunal or prosecutor's office from Sarajevo. So that
14 would -- we would just add that on our objections. And I can say
15 specifically from that motion, that's paragraphs 18A and C, 19, 20, 22C,
16 23, 25, and 26.
17 JUDGE ORIE: Yes. Mr. Lukic, could you give us some legal
18 authority as to a witness prohibited from testifying as an expert if at
19 the time he observed matters, studied matters, had not been given a
20 specific task?
21 MR. LUKIC: I'm afraid I cannot give you because --
22 JUDGE ORIE: Would you like to have time for that?
23 MR. LUKIC: I don't think I could find anything like that.
24 Because it's --
25 JUDGE ORIE: You think it doesn't exist. Is that what you --
1 MR. LUKIC: Yeah, that's what -- that's my understanding, but
2 still we would raise that. Because it is not clear for us how he
3 actually took part in those and when and -- and what he got as his tasks.
4 JUDGE ORIE: Yes, that comes back to the same question as to
5 whether you need to be tasked with something in order to legitimately
6 testify as an expert.
7 MR. LUKIC: Your Honour, at the time of his participation in
8 those activities, but we are not clear when he got and what kind of task
9 from the Prosecution at all at a later stage.
10 JUDGE ORIE: Well, you could have asked him.
11 [Trial Chamber confers]
12 JUDGE ORIE: Mr. Lukic, especially also because you referred to
13 other objections raised in the motion, and you'll understand that we do
14 not have them on the top of our head and then you added one, that the
15 Chamber would give its decision in due course. First, however, again,
16 reading what the scope of the objections were in the motion.
17 MR. LUKIC: Only I think that it is common knowledge that the
18 expert has to have tasks given by somebody.
19 JUDGE ORIE: Well, that's common knowledge is -- for facts is a
20 well-known matter but for the law is -- well --
21 MS. D'ASCOLI: Your Honours --
22 MR. LUKIC: I can give you from local jurisprudence that expert
23 has to have tasks --
24 JUDGE ORIE: I asked him -- I'm not saying that experts do not
25 often receive tasks. My question -- and I asked you whether you would
1 need more time and you said you wouldn't need that and now you come with
2 case law apparently. If you want more time --
3 MR. LUKIC: Local -- local case law, yeah.
4 JUDGE ORIE: Local case law is law as well.
5 MR. LUKIC: Okay. Then I would need a couple of more days.
6 JUDGE ORIE: Then you'll be given one week to --
7 MR. LUKIC: Thank you, Your Honours.
8 JUDGE ORIE: -- make further submissions on it.
9 MS. D'ASCOLI: Your Honours --
10 JUDGE ORIE: Meanwhile the matter -- I think it would be best,
11 Ms. D'Ascoli, that you then respond to what Mr. Lukic further raises and
12 then we'll decide after that.
13 MS. D'ASCOLI: Yes, Your Honours, I wanted to note that on the
14 basis of the paragraphs that Mr. Lukic cited, there is no such objection
15 of the same nature that he just raised in his previous response to the
16 94 bis motion.
17 JUDGE ORIE: That's the reason why we want to reread it and to be
18 sure as to what was raised and what was not raised before we give a
20 MS. D'ASCOLI: Okay.
21 MR. LUKIC: [Overlapping speakers] -- said it's something new.
22 JUDGE ORIE: There was -- you said you added one thing and that
23 you earlier said that you would repeat all objections you made in your
24 response to the notice. So we'll carefully consider everything and then
25 come with a ruling.
1 Ms. D'Ascoli, now may I take it that the others are dependent on
2 this one as well?
3 MS. D'ASCOLI: I think that would be the case for the two tables,
4 the two annexes marked with P7446 and P7444 -- oh, no, sorry. The table
5 of corrections, I guess that -- that's P7446, that would apply to that as
6 well because it relates to the report in the annexes and the two annexes
7 would be, yes, covered by the objection. So, yes, that applies to all of
8 the material.
9 JUDGE ORIE: Okay. We understand, Mr. Lukic, that your
10 objection, of course, also follows for those documents which are directly
11 linked to the expert report.
12 MR. LUKIC: Yes, Your Honour.
13 JUDGE ORIE: Then they all remain marked for identification.
14 We adjourn --
15 MS. D'ASCOLI: Your Honours --
16 JUDGE ORIE: Yes.
17 MS. D'ASCOLI: Yes, I'm sorry. Before we conclude, as a matter
18 for scheduling purposes, I estimate that -- I will check with the Court
19 Officer the time that I've used already in direct with Dr. Tabeau. I
20 probably estimate I will need a little over two hours, but that would
21 still be within the nine hours we had asked for the re-opening. So, of
22 course, I welcome Your Honours' view on that, but I wanted to raise it so
23 that I can reorganise in the best way the remaining parts of the direct
25 JUDGE ORIE: Mr. Lukic.
1 MR. LUKIC: We would not object.
2 JUDGE ORIE: You would not object. Then the Chamber allows you,
3 if you remain within the nine hours, to go a little bit over the
4 two hours. But please try to --
5 MS. D'ASCOLI: Thank you very much.
6 JUDGE ORIE: -- be as focused as possible.
7 MS. D'ASCOLI: Yes, I will.
8 JUDGE ORIE: We adjourn for the day, and we'll resume on Tuesday,
9 the 7th day of July, 9.30 in the morning, courtroom I.
10 --- Whereupon the hearing adjourned at 2.22 p.m.,
11 to be reconvened on Tuesday, the 7th day of July,
12 2015, at 9.30 a.m.