Tribunal Criminal Tribunal for the Former Yugoslavia

Page 8789

1 Wednesday, 14 March 2007

2 [Open session]

3 [The accused entered court]

4 [The witness entered court]

5 --- Upon commencing at 2.23 p.m.

6 JUDGE AGIUS: Good afternoon, everybody. Madam Registrar, could

7 you call the case, please.

8 THE REGISTRAR: Good afternoon, Your Honours. This is case number

9 IT-05-88-T, the Prosecutor versus Vujadin Popovic et al.

10 JUDGE AGIUS: I thank you, ma'am.

11 I notice that for the record, that all the accused are present.

12 Same applies to the Defence teams, except that I don't see Mr. Bourgon.

13 Ms. Nikolic, will he show up later on or ...

14 MS. NIKOLIC: [Interpretation] Your Honour, Mr. Bourgon will be

15 working in the office, working on the submissions that we have announced.

16 Thank you.

17 JUDGE AGIUS: I thank you.

18 And for the Prosecution I notice Mr. McCloskey.

19 Mr. Baraybar, good afternoon to you.

20 THE WITNESS: Good afternoon, sir.

21 JUDGE AGIUS: And welcome to this Tribunal. Please proceed with

22 the solemn undertaking to testify the truth that you -- is being handed to

23 you.

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

25 whole truth, and nothing but the truth.

Page 8790


2 JUDGE AGIUS: I'll skip all preliminaries in an attempt to try to

3 finish your testimony today. Mr. McCloskey -- please make yourself

4 comfortable. Mr. McCloskey will examine you in direct, and then he will

5 be followed by cross-examinations.

6 Mr. McCloskey.

7 MR. McCLOSKEY: Thank you, Mr. President. Good afternoon

8 everyone, and this will be very brief on the part of the Prosecution.

9 Examination by Mr. McCloskey:

10 Q. Good afternoon. Can you first state your name for the record?

11 A. My name is Jose Pablo Baraybar do Carmo.

12 Q. And have you testified previously in this Srebrenica case, in the

13 case of General Krstic?

14 A. Yes, I have.

15 Q. And was your testimony there true and correct?

16 A. Yes, it was.

17 Q. And if you had been asked those same questions, would your answers

18 be the same?

19 A. Yes, they will.

20 Q. All right. And what is your profession?

21 A. I'm a forensic pathologist.

22 Q. All right. Can you briefly outline your educational background

23 that led you to that field?

24 A. My first degree is in archaeology, that -- I took it in Peru, at

25 the University of San Marcos in Lima. I took a Master's in science at the

Page 8791

1 University College of London in a combination of bioarchaeology, physical

2 anthropology, and forensics. I did one year at the Ph.D. programme at the

3 University of Champaign-Urbana, the department of anthropology, and I am

4 currently doing my Ph.D. at the University of Strasbourg, in science as

5 well as, in France.

6 Q. Champaign-Urbana is near Chicago?

7 A. South of it, yes.

8 Q. Okay. Can you outline your field work as an forensic pathologist

9 and archaeologist, given, as you know this Court has had some -- quite a

10 bit of experience and testimony on these basic subjects. So if you could

11 just outline your field work?

12 A. My work has spanned from recovery, recording, and analysis of

13 human remains in the contexts where they were found, meaning graves, mass

14 graves, multiple graves, single graves, in Haiti, Ethiopia, Sierra Leone,

15 Congo, Rwanda, Guatemala, Argentina, Peru, the Balkans, or this Tribunal

16 has understood, meaning Bosnia, Croatia, Kosovo. That is very much it, I

17 guess.

18 Q. And how many years have you been doing this kind of work?

19 A. For the UN alone, since 1995, and before the UN, since 1991,

20 specifically in forensic settings.

21 Q. Okay. And can you now briefly outline your UN work, beginning in

22 1995.

23 A. I started the United Nations mission in Haiti, back then. From

24 then I went to ICTR, to International Criminal Tribunal for Rwanda. From

25 then we were transferred along to ICTY, for six weeks that became a few

Page 8792

1 years. In 2002 I left ICTY and became the head of the office on missing

2 persons and forensics in Kosovo for UNMIK, the United Nations Mission in

3 Kosovo, where I am still based at the moment.

4 Q. All right. I want to just briefly focus your attention now on

5 when you were, as you said, I think, briefly loaned to Bosnia. Can you

6 tell us, outline your work that -- in Bosnia, when and where?

7 A. I will tell you in general terms because I cannot really recall

8 exactly how many sites we did all over the years. In Rwanda we were part

9 of what was called, if I recall correctly, the scientific support unit of

10 the Office of the Prosecutor. This unit as a whole was lent to ICTY to

11 start at the time the investigations, forensic investigation on the fall

12 of Srebrenica. That we started, if I'm not mistaken, by the end of June,

13 early July, 1996. During that year we did a number of exhumations and

14 post-mortem examinations as well, in Bosnia, as well as Croatia, because

15 in Croatia it was also the exhumation of the site at Ovcara.

16 Q. In the site at Ovcara, was that related to the Vukovar, the attack

17 on Vukovar case?

18 A. That is correct.

19 Q. All right. And your work in the Srebrenica case in 1996, what

20 position did you have on that -- during that -- on that team?

21 A. From a UN point of view, I were a junior forensic anthropologist

22 or forensic expert employed by the Tribunal. There were two people of

23 technical expertise at the Tribunal at the time, it was Dr. Bill Haglund

24 and myself.

25 Q. Okay. And then just continue your brief outline through the

Page 8793

1 years?

2 A. So 1996 was a year primarily devoted to a case, it would be

3 Srebrenica, and Ovcara or the fall of Vukovar case. 1997 we had -- if I

4 am not mistaken, Brcko, there was another case, I think -- I don't want to

5 recall exactly who the accused were, but it was another investigation.

6 1998 primarily devoted to Srebrenica again, extensively. 1999 a

7 combination of cases, Srebrenica and some other case in Croatia. Year

8 2000, I spent it in Kosovo primarily and in other investigations regarding

9 the northwest part of Bosnia, primarily crimes committed in the Prijedor

10 area. 2001, again Srebrenica, and Croatia as well; there is yet another

11 case.

12 Q. Okay. Now, I am really want to just take you to the time that you

13 had a supervisory job, and I don't want to go through each time you were a

14 supervisor, I think that's probably clear in the record and the reports.

15 But can you tell us generally the position you held as a supervisor? And

16 I think the Court has heard, I believe that -- well, I'll let you answer

17 that question. In what areas were you a supervisor in?

18 A. Primarily from 1997 on I was the chief anthropologist at the

19 mortuary dealing with a number of other contractors, anthropologists as

20 well working in the mortuary in the analysis of skeletal remains.

21 Q. Let me stop you there. And just very briefly, what in just a

22 couple of sentences, is your job in the mortuary, in the analysis of

23 remains?

24 A. Okay. I'll try to give you as short as possible.

25 Q. And not as a supervisor but as an anthropologist, what are the

Page 8794

1 anthropologists doing?

2 A. The exhumation of graves, mass graves, primary graves, secondary

3 graves in the former Yugoslavia and that is going beyond Srebrenica

4 involved recovery of a number of decomposed or heavily decomposed remains,

5 many of which were just skeletons, which is bones. In the case of

6 secondary graves, where remains have been fragmented, they have become

7 really body parts and pieces, they were primarily again bones with very

8 little flesh, just bones. Therefore, the role of the anthropologist was

9 to determine the age, sex, stature whenever pertinent, and also to

10 estimate the minimum number of individuals based on the remains they have

11 recovered. Also to assist in reconstruction of broken parts in order to

12 determine the type of injury that this person has sustained whenever

13 possible.

14 For example, if a skull was broken in many pieces, you would need

15 to ascertain whether the skull has been broken because of the pressure of

16 the earth over it or has been shot on the head, for example. And the only

17 way you can do it is by reconstructing it and then discussing the results

18 with a pathologist, that is a person who ascertains the cause of death at

19 the end of it.

20 Q. Okay. Does this include an anthropologist expertise on

21 identifying potential trauma on bones?

22 A. Most definitely. Most definitely. Forensic pathologist on a

23 daily basis confronted actually with that. The issue is not only to

24 receive bones and say that the bones are human, is to try to say as much

25 as you can from them, meaning what is the age, sex, et cetera, but also

Page 8795

1 what happened to them. So if there is any kind of fracture or something

2 that is broken, you try to establish what actually happened.

3 Q. All right. Let me just give you one example. I've seen reports

4 where anthropologist say that marks on the bones are -- appear to be from

5 scavenging animals. How can you tell the difference between teeth marks

6 of an animal and scratch marks from something else?

7 A. There is a subdiscipline of archaeology that is called

8 zooarchaeology, that is actually archaeologists working with animal or

9 fauna remains from archaeological assemblages. So there is a tremendous

10 body of information collected on what are the patterns and marks and

11 evidence of scavenging by animals. That's one level. There is a number

12 of other studies made to determine what are the patterns of scavenging by

13 different kinds of animals. So, for example, a rodent that have permanent

14 anterior teeth that grow forever, they have to keep, I mean, chewing or

15 gnawing on something in order to keep wearing these teeth down, otherwise

16 the teeth will be enormous. They are very clear differences. I do not

17 want to go into details.

18 Q. Okay. All right. And, again, now, let's go back to the morgue,

19 your job as a supervisor. Can you tell us, fundamentally, what your job

20 as a supervising anthropologist was, just very briefly. Again, I think,

21 this is in the record.

22 A. Primarily try to give some consistency to the analysis that will

23 be undertaken. In some occasions we had a lot of people, I mean over a

24 dozen experts working simultaneously in different autopsy tables and the

25 way they were recording things has to be protocolised, the types of forms

Page 8796

1 that we use has to be protocolised as well. We try to be as consistent as

2 possible in -- in recording things. Also because, based on that

3 information, we will be able later to calculate things like the minimum

4 number of individuals, for example. So primarily that, trying to ensure

5 consistency and continuity, if you wish.

6 Q. What about working with pathologists?

7 A. As well. Certainly my role as supervisor was, as they say, added

8 value. I was not literally, like, standing, supervising people from a

9 higher ground; rather working with them. It's just ...

10 Q. And whose job was it to determine cause of death?

11 A. It has always been the pathologist. The pathologist has a

12 prerogative of ascertaining the cause of death.

13 Q. Okay. And did you also lead digs or exhumations for the

14 Srebrenica case and others?

15 A. Yes, I did. Back in 1999 and 2001.

16 Q. And can you just tell us, what was your role there and in which

17 case or cases?

18 A. We assembled again a team of archaeologists to work in the field,

19 and we were tasked with a number of exhumations of a number of sites, but

20 I could mention the ones I recall on the top of my head, otherwise I have

21 the reports here. Will be the Glogova 2 sites, the Novo Kasaba sites,

22 there were some done in 1996, but we -- a number of others done later.

23 Konjevic Polje, that was very close by. Zeleni Jadar as well, that was

24 back in 2001, there were some secondary sites, among others.

25 Q. Okay. I think the record will have the complete list, so that's

Page 8797

1 fine.

2 Now, I want to take you back to a topic that you mentioned

3 briefly, and that is determining the minimal number of individuals. And

4 in particular you had written a report several years ago, it's Exhibit

5 P02477, which was accepted into evidence in the Blagojevic case, but

6 through the testimony of a an investigator, Dean Manning, and your Krstic

7 testimony came in through 92 bis. So you haven't testified about that

8 report. And it's not my intention to have you go through that report in

9 depth, but could you explain -- well, basically two -- two main points.

10 What is this calculation, minimum number of individuals, as it's relating

11 to a grave? And as I've said, the Court has heard lots of information

12 about graves, secondary graves, loose bones, that sort of thing.

13 A. Okay. In the simplest of terms, a minimal number of individuals

14 is a slightly more complicated head count. If we can just oversimplify

15 it. If you have a grave with complete bodies you are going to count them

16 and say, Okay, we have 10 people because we have 10 cadavers. If you have

17 fragmentary material, pieces of people, how would you, I mean, try to

18 estimate at least how many people were they to account for the number of

19 bones you are seeing. That is the calculation of the minimum number of

20 individuals. It consists of primarily of counting one of a pair or a

21 single type of bone to say that at least, if I have, for example, 10 right

22 legs, I've got 10 people. So it's a conservative, I mean, approach. This

23 calculation becomes more and more complicated when you try to merge sites.

24 So I'll try to --

25 Q. Before we get to merge sites, you say counting individual bones,

Page 8798

1 legs. Why not just count skulls? Everybody's only got one skull.

2 A. In an ideal world you would have a complete skulls. In other

3 experience is that, and was far from ideal, nothing was complete. You had

4 literally pieces of people, very small pieces. So you could have half a

5 person, or you would have just bits of people. Or you would have a mass

6 of flesh that contains some bones in it, but to get to the bones you have

7 to remove the flesh, and you cannot identify an organ or part of the

8 body. Therefore, you have to go for whatever bone is more commonly

9 occurring. So if the heads, as you were saying, are only 10 but I've got

10 20 legs, you're going to go for the legs.

11 Q. All right. Now, were you the person that was tasked with taking

12 all these individual bones and pieces of bones and trying to figure out

13 for all the graves a minimum number of individuals?

14 A. Yes, that is correct.

15 Q. Now, how can you do that?

16 A. Okay. I'll try to explain it in the simplest terms again.

17 Although if -- if at some point you don't understand what I'm saying,

18 please interrupt me.

19 I gave you the easiest example, okay, the leg count, for example.

20 But I mean you would be assuming that the leg would be complete. So if we

21 understand that the leg is composed by three bones, you've got the femur,

22 that is your thigh, then the shin bone that compose two other bones, the

23 tibula and fibula, if we focus on the femur to begin with, what would

24 happen if your femur is actually divided into two or three pieces? Okay?

25 You would need to choose what part of the bone you would be using to count

Page 8799

1 as a single element; the top part or the bottom part, okay? So for

2 example, in site A we have counted the proximal, the top part of the femur

3 of 50 individuals, so a MNI, minimal number of individuals is 50.

4 We have now another site, okay, for example a secondary site where

5 the femur was not the most abundant bone, it was the arm bone. The

6 humerus. And there we counted, for example, 20 top parts, proximal parts

7 of humerus. You would say, okay, the MNI is 70, 50 plus 20 is 70, that is

8 not correct. In order to do an MNI of the merged sites you need to be

9 counting the same type of bone. So it is possible that in your second

10 site, while the humerus tells you 20, the same part of the femur you

11 counted in the previous site is only 10. So you would be -- you would be

12 cutting off your calculation 10 individuals, that will become invisible.

13 The MNI of these two merged sites would become 60 and not 70. Is that

14 clear?

15 Q. Why do you subtract 10?

16 A. Because you're not counting the same type of bone. You have to

17 be -- the only condition is for you to count the same type of bone in both

18 sites. You cannot count -- you cannot just simply add the numbers, you

19 would be inflating the numbers. You would not be the minimal number of

20 individuals, it would be something else.

21 JUDGE AGIUS: Mr. McCloskey, if I read you well, why count 10 and

22 not go outright to zero because at this point in time you wouldn't be sure

23 whether any of those bones belonged to the same individuals whose humerus

24 or whose femur you -- you counted.

25 THE WITNESS: Okay. Let me rephrase what I'm trying to explain.

Page 8800

1 May I show you some -- may I show you some -- actually, this -- since we

2 exhibited already in the Krstic trial, I don't know whether I can show

3 some things.


5 Q. Yeah, and you can use the ELMO, as you have done before. I think

6 we have a P0553, and somehow Janet has figured out that that's what you've

7 got.

8 A. This is the ideal scenario we mentioned at the beginning, okay.

9 We have two -- I mean, lower leg, forearms in this case. I'm sorry. Two

10 forearms that are articulated, therefore we have two people. There are no

11 problems. We are just doing, you know, a straightforward count. There's

12 no problem there.

13 Now --

14 Q. Let me interrupt you for a second to throw in just another element

15 that it may be easier to work it in now than it is later. You oversaw

16 exhumations, this Court has heard about exhumations, and disturbed

17 exhumations, and it's very clear, as you know, that when a -- one of these

18 graves is being partially exhumed, bodies are getting cut in pieces,

19 and -- and perhaps multiple pieces, and hauled away at either the -- near

20 the same time or at other times, and therefore there's certainly I think

21 everyone understands the possibility that a person's body parts get

22 separated into more than one secondary grave. So with that in mind, how

23 do you work that into this whole calculation? If you agree with me, what

24 I said factually about a person getting hacked up into more graves than

25 just one?

Page 8801

1 A. It is completely true. So before I go to the next image, and

2 bearing in mind what you just said, the issue is the following: Let's

3 just start from the beginning maybe just to -- for clarity's sake. We

4 have a grave, people are killed and are buried in a grave, they're

5 complete. There's nothing -- no factors have influenced the finding --

6 integrity of the remains. We've got -- and we have a hundred bodies in a

7 hole. If that is the case, we just count the hundred bodies and there's

8 no problem. There is no minimal number of anything, it's just the number

9 we have, a finite number, a hundred. We get back to this site, X number

10 of time or month after, with a machine, an excavator, and we removed, I

11 mean in any blind way, I mean without any system, we just, like, start

12 excavating and getting bodies out and put them in a truck. This machine

13 will cut through bodies and will separate, will disjoint them, will cut

14 them in half on the head, on the arm, doesn't matter. It's a completely

15 haphazard way of doing it.

16 This grave with a hundred will then become five secondary sites

17 with bits and pieces of the hundred. So certainly it is highly likely

18 that you will have one person which remains which may be in the first

19 grave and then in the other five grave, okay. So in order to get the

20 minimal number of people present in all the graves, the primary and the

21 secondaries, you have -- for consistency, you need to count the same type

22 of bone. Otherwise you will be duplicating them. And this is what I was

23 saying about the 20 and the 10. If the most popular bone, for example, in

24 the primary site is the right femur, you will be counting only right femur

25 in all the other sites, because then you know you have X number of right

Page 8802

1 femur and X number of individuals.

2 Even if by chance one of the holes contain only arms and we have

3 all two arms, you have 200 arms in one -- in one single hole, you may say

4 Oh, this is more abundant, let's just count them there, you know?

5 Q. So the hole with only 200 arms and no femurs gets a minimal number

6 of what?

7 A. Obviously the 200 arms, that was an exaggeration, you may be able

8 to get your MNI, I mean, based on only that secondary site because there

9 are no arms in any other place. That is extreme and I have never seen

10 such a thing. That is an exaggeration.

11 Q. What, did you use one particular sort of bone for all of these

12 graves or how did you do that?

13 A. Well, just to make matters more complicated, the issue that we are

14 looking at is not only numbers, we are looking also at ages, okay. If you

15 have, in a previous example, a hundred right femur of adults, you know

16 that you have a hundred adult people, at least a hundred adult people

17 there. But what would happen if you find an arm bone that is this size

18 and not that size, meaning the size of an individual that may be 12 years

19 of age or maybe eight years of age. But there is no femur for that -- for

20 that child. So you have to count that individual as well, even if you are

21 using a different type of bone. Because there is a different age that is

22 not represented by the bones you have used for the calculation.

23 Q. Okay. But how -- how good are these age estimations? I don't

24 want to go into all the science of that that you talk about, but

25 they're -- from what I see, they're pretty big ranges.

Page 8803

1 A. There are two different things when you work with human remains.

2 Whether to be accurate or whether to be precise. In order to be precise,

3 you have to give an interval that is extremely short. For example any

4 technique that determines the age with a deviation, a margin on the sides

5 of the estimate of, let's say, one or two years is fantastic. You say

6 this person is 10.5 years, you know, plus, minus one, well, that's

7 excellent. But this -- I mean, doesn't really occur in reality. Because

8 age determination is multi-factoral. You have count many different things

9 in order to determine the age of one person. You begin by looking at the

10 bone and saying, Oh, this person is, you know, that age. You say, Okay,

11 it is an adult or no. It's a juvenile or whatever.

12 So the widest your range, you know, allows you to be less precise

13 but more accurate. In other words, just [indiscernible] me for a second,

14 the extreme of this is every person in this room is between zero and 100

15 years of age. I'm always accurate, I am 100 per cent accurate, but I am

16 very unprecise.

17 Q. Okay. But in your science what -- how close can you get, and

18 still would be within a reasonable range? What is the reasonable age

19 range that you in your science in this context of Bosnia could be? What

20 were the age ranges?

21 A. I --

22 Q. If that makes sense.

23 A. It doesn't to me. Excuse me, I do not understand your question.

24 I mean --

25 Q. How close can you get to the person who --

Page 8804

1 A. To the real age of the person?

2 Q. Right.

3 A. In order to verify that, we would need to compare our results with

4 people that have been identified, now identified. That's number one.

5 Number two, there is a second way to approach this problem, and

6 that is to compare the distribution of age of the bodies exhumed with the

7 distribution of age of the people reported missing from this event to

8 which these bodies belong to.

9 Q. Okay. But just -- just on the science of anthropology, I have

10 seen in the reports, in individual anthropology report, for example, age,

11 and it says 12 to 17 years old, something like that. How does -- how do

12 you come up with that?

13 A. Okay. Now I can answer your question. I understand it better

14 now. The age determination of any person below, let's say 21, 22, it is

15 much easier to be established than the age of people 20 something, let's

16 say 25 and above. Why? When you grow, you have a number of elements in

17 your body that are fusing to one another, I'm using very simple language

18 to be understood. For example, if I may use this.

19 Q. It may just be simpler just to talk.

20 A. If I may steal, I wanted to show -- I mean, can you just can point

21 something here on -- on this -- on this drawing.

22 Q. Sure.

23 A. Can I -- no, I cannot draw.

24 Q. Yeah, you can. Thank you.

25 A. You have parts of bones like this one or like this one or like

Page 8805

1 this one that are called epiphyses, that when the person -- when the

2 person is bone, actually the bone is primarily a cartilage model that has

3 only a tiny centre of ossification of bone that is located generally in

4 the middle part of the bone, the rest is cartilage. So the bone is

5 growing in this direction and in that direction. So this little parts, we

6 call epiphyses, do fuse with the remaining of the bone before age 21 in

7 general terms. In females it is faster, in males it is slower, and these

8 allow you him a high degree of accuracy and more precision, certainly to

9 determine age in people below the early 20s.

10 Q. All right. And so the age ranges in your reports above the early

11 20s, do you think they reflect, those are fair ages despite the problems

12 you talk about?

13 A. The fair age range is, for the type of material we have been

14 confronted, for example, if you have a piece of a leg, and you can just

15 identify that it is a piece of a leg, a piece of a femur bone, or you

16 have, let's say, again in this example, you have this piece of the bone,

17 well, you can say, Okay, this is a forearm, I have a radius and an ulnar

18 here, it is most likely an adult individual, but whether this person is 22

19 and a half or 35, I cannot say. Therefore, we have a very wide range of

20 25 plus of all those numbers of people that were just represented by

21 pieces.

22 Q. Okay. And your reports will reflect that wide range?

23 A. Yes.

24 Q. Okay. Let's finish up with this. If you could just initial --

25 initial this thing and date this so that we can freeze it and keep track

Page 8806

1 of it?

2 A. That or here? [Marks].

3 Q. All right. Now, I think we're okay with that for now.

4 Now, let's -- I diverted you to age or you talked about age as you

5 were explaining the minimal number and how that also helped yet

6 complicated your calculation. But I still -- well, you haven't had the

7 chance yet to really be able to explain how, with these multiple graves

8 with body parts like this, the secondary graves, how did you do it, did

9 you use one bone for all the graves or were there different graves where

10 different bones were used?

11 A. Rather the second. I mean, different graves will have different

12 bones. But the first condition, in order to merge anything, is to know

13 what are you merging. Meaning you have to be sure that a primary and a

14 secondary site are related and that will not come -- will not be bone

15 evidence, that will be soil analysis, pollen analysis, all sorts of other

16 analysis.

17 Once you have established that a primary site is linked to one or

18 multiple secondary sites, then you can go on the bone issue to see what

19 type of bone you would use and what bones may be representing ages not

20 represented by your most common bone, as I said at beginning.

21 Q. All right. And were you able to have access in this calculation

22 that we talked about in this report from the investigations as well as

23 from the sciences, such as pollen analysis or shell casing analysis?

24 A. The only access I had, and that is in my report, if I recall well,

25 are primarily data concerning a soil analysis and I think pollen as well,

Page 8807

1 that was Dr. Brown work. But I'm going through, if you allow me for a

2 second, through my reports to see that what I'm saying is totally

3 accurate. But it was primarily -- primarily that, yes.

4 Q. Okay. So the value of your minimum number is really dependent

5 on the quality of the information you get relating graves to each other.

6 If that's wrong, it's going to mess up your records -- or your

7 calculations?

8 A. That's correct.

9 Q. Okay. I think that's about as far as I want to go. If anyone

10 else would like to, I turn the witness over.

11 JUDGE AGIUS: Okay. I thank you, Mr. McCloskey.

12 I have three Defence teams that have indicated that they do not

13 wish to cross-examine the witness. That's the Nikolic, Borovcanin, and

14 Gvero teams.

15 MR. JOSSE: Confirmed on behalf of the General Gvero,

16 Your Honour.

17 JUDGE AGIUS: Mr. Lazarevic or Mr. Stojanovic?

18 MR. LAZAREVIC: Yes, I can also confirm that we have no cross for

19 this witness.

20 JUDGE AGIUS: And Madam Nikolic.

21 MS. NIKOLIC: [Interpretation] Yes, Your Honours. I can confirm

22 that we won't be needing the witness.

23 JUDGE AGIUS: Thank you. Unless there is another arrangement

24 reached between you, I would suggest that Mr. Haynes -- yes, Ms. Condon.

25 MS. CONDON: Your Honour, can I just indicate we don't have any

Page 8808

1 cross-examination for this witness either.

2 JUDGE AGIUS: Okay. So it's Mr. Haynes who has asked for two

3 hours, and Mr. Ostojic and Mr. Meek have 45 minutes, and then you,

4 Madam Fauveau, 10 minutes.

5 Mr. Haynes.

6 MR. HAYNES: Thank you, Mr. President.

7 Cross-examination by Mr. Haynes:

8 Q. Good afternoon, Mr. Baraybar.

9 A. Hi, how are you?

10 Q. I'm very well. I hope you are too. Can I just check one thing

11 before we proceed any further. I've got no difficulty with this. You've

12 got some documents in front of you. I assume they are your reports. Do

13 you have any other documents in front of you that I should know about?

14 A. Not that I plan to use.

15 Q. Don't need to know about newspapers or anything like that.

16 A. No, no. I've got some scientific articles, but, I mean, I have

17 them in my pile of papers but nothing to do with this case.

18 Q. Okay. Thank you very much. I want to see if I can help you,

19 because I've looked quite carefully at your involvement in the Srebrenica

20 case, and I thoroughly understand that when you are exhuming graves all

21 over Serbia, Bosnia, and Croatia, you don't necessarily remember them all,

22 but I want to see if I can summarise your involvement in the graves that

23 we're concerned with.

24 You will know from the tables in your report that there are 30

25 graves we're concerned with. You would agree with that, I take it?

Page 8809

1 A. 30 graves dug in general, you mean, by ICTY, not by me

2 personally.

3 Q. No, I'm going come to that?

4 A. Yes, you may be right. I don't have the table of all the graves

5 exhumed in front of me, but it may be correct, yes.

6 Q. If you want to check it, you can look at page 7 or 8 of your

7 minimum number of individuals report. I'm not going throw it up on

8 e-court. You can just check that figure.

9 A. That would be the report of 2004.

10 Q. That's the one.

11 A. Okay. Yes, I have it in front of me here. Yes, please

12 proceed.

13 Q. Now, I'll try and put it chronologically, if I can.

14 A. Sure.

15 Q. In 1996, you assisted Mr. Haglund in the exhumation of four sites.

16 They were Cerska, Nova Kasaba, Lazete 2 and Branjevo or Pilica, as we know

17 it?

18 A. Yes, I participated in the exhumations there, yes.

19 Q. In 1998 you assisted Mr. Wright in the excavation of a number of

20 sites at Hodzici Road, Cancari Road, Zeleni Jadar, the Red Dam, and

21 Liplje?

22 A. Yes, I participated in most of those exhumations too, and I say

23 most because at the time I also spent some periods in the -- in the

24 mortuary. So one of the Hodzici Road sites I participated, I think, in

25 only one of the two. I mean, I cannot really recall exactly, but I mean

Page 8810

1 most of what you are saying is correct, yes.

2 Q. Yes. I mean, one of the nice courtesies we as professional people

3 have, is we thank one another for helping the report, so we can

4 cross-reference who was working with who where. And I agree with you, you

5 assisted Mr. Wright in most but not all, A, because you are in the

6 mortuary and, B, because in 1999 when he was also working, you were in

7 control of sites yourself?

8 A. Yes, but when I took control of the sites, if I recall well,

9 Mr. Wright was not doing any exhumation. I mean, that is my

10 recollection.

11 Q. I'm not going to argue with you about that, it's not really very

12 important.

13 In 1999 you excavated several sites yourself, that's Nova Kasaba 4

14 to 8, and Konjevic Polje 1 and 2?

15 A. Mm-hmm.

16 Q. You agree with that?

17 A. Yes, I do.

18 Q. And in 2001 you excavated a number of sites at Glogova?

19 A. Yes.

20 Q. And one at Ravnice, maybe two. Do you recall whether you

21 excavated more than one site at Ravnice or not?

22 A. I did not -- I have nothing to do with Ravnice at all.

23 Q. Thank you very much. Well you have answered that particular

24 conundrum for me. You had nothing to do with the exhumation of sites by

25 Mr. Peccerelli?

Page 8811

1 A. No.

2 Q. And nothing to do with Ravnice and some of the sites excavated by

3 Mr. Wright. That's correct, isn't it?

4 A. Yes, it is.

5 Q. Now, I just want to check something with you before we go any

6 further. Have you had chance before you give evidence here to read some

7 of the reports of the other anthropologists and pathologists who have

8 given evidence in this case?

9 A. No. As a matter of fact, no. I have only mention -- or quoted

10 data extracted from a pathology report in my previous archaeology report,

11 primarily Konjevic Polje, Nova Kasaba, and so on. But I have not read all

12 the reports of all the conclusions or whatever, no, I haven't.

13 Q. Just to check the reports, I may be asking you about, have you

14 read the reports of Mr. Haglund?

15 A. From exhumations in 1996, you mean?

16 Q. Yes.

17 A. No, I have only taken the data attached to the -- I mean

18 reports, the raw data primarily, the Excel sheets and so on, for the

19 calculations.

20 Q. Mr. Wright?

21 A. No. No. No.

22 Q. What about the pathologist, Mr. Clark?

23 A. From Clark I have extracted data, yes, as it is quoted in my

24 reports. But I have not, I mean, read the report. I mean, no.

25 Q. Now, having looked at the data and having been involved in, as it

Page 8812

1 were, the anthropological investigation one way or another of most of

2 these sites, can you tell us today the total number of complete bodies

3 that were exhumed by the ICTY in relation to the Srebrenica

4 investigation?

5 A. On the top of my head, I couldn't. As a matter of fact, we have

6 certain sites that were primary sites that obviously the remains were

7 complete or almost complete, as has been indicated as well in my reports,

8 I do not have an overview of how many complete bodies and body parts we

9 collected over the years. That's why we've been working primarily with

10 minimum number of individuals.

11 The reason for this being that since there were some very large

12 sites, like Kozluk, for example, that was also robbed and part of the

13 remains went to Cancari Road and the dam with Liplje and things of other

14 kind, counting complete bodies wouldn't make much sense because you would

15 have, as I said before, complete bodies left in the primary site and then

16 pieces of the same remains in secondary sites linked to the primary sites.

17 So, I mean, no, it wouldn't make any sense. And I do not have that

18 information with me.

19 Q. Well, I am not going to push this any further at this stage. Are

20 you saying that it is not possible for anybody to determine how many

21 complete bodies were exhumed, or are you saying you just don't have the

22 information with you here today?

23 A. No, I do not have information with me here today. It is possible

24 to count how many bodies were found, if they were complete and were

25 recorded as complete by the archaeologist in the field. That is

Page 8813

1 completely possible, certainly. But I do not have that information with

2 me today.

3 Q. And just this, while we're on this topic, in accordance with the

4 protocols that you used, what was the definition of a complete body?

5 A. That is a very good point. And has been a lot of debate over

6 that. Well, a complete body was primarily a unit that may lack some --

7 let's say the hands and the feet, but that most of it, the rest of them.

8 I mean legs, I mean torso and arms, were present. And the head as well.

9 At some point in time there was some internal discussion, and I'm just,

10 like, recalling here, I cannot give you dates or anything of the kind, but

11 I mean because it was very much work in progress, whether a body would be,

12 for example, if you found a leg with a pelvis and half of the torso, would

13 that be a body or would it be a body part, or a body part would be only an

14 arm or a leg or a hand. My interpretation of complete bodies was

15 primarily, I mean, something as recognisable of the body as possible.

16 Meaning at least 75 or 80 per cent of what a body is made of would be

17 present.

18 Q. Do you know whether that's an interpretation of that description

19 that was agreed with by Mr. Haglund, for example?

20 A. I'm not aware of what -- I mean what are you quoting from

21 Mr. Haglund? If you have the quote there, you may ...

22 Q. I'm not going to quote anything from him. But did he agree with

23 your interpretation of what a complete body was?

24 A. I do not actually know. I mean, when I was recalling this issue

25 of body parts, I recall the issue of body parts being discussed maybe in

Page 8814

1 the context of -- of Mr. Wright. I mean to tell you the truth, I do

2 not -- I'm really thinking very hard, to know whether I have discussed

3 this issue of completeness of remains with -- with -- with Haglund or

4 not. It was simply a -- an assumed -- I mean thing. I do not know. I

5 don't recall, really, to tell you the truth.

6 Q. And your discussion with Mr. Wright, did that arise because

7 the two of you had a different interpretation of what complete body

8 meant?

9 A. Not really. The problem is the following, just to put things into

10 context, that would assist. Imagine that you have a number of experts

11 working together and everybody had, obviously, I mean, may have opinions

12 regarding things and that. So I -- I think that the discussion came in

13 the context of a mapping, as a matter of fact, if I may being more

14 precise. Because you may have heard, I mean, I think Mr. Wright already

15 testified, he may have mentioned this, but we had a system of mapping with

16 a total station that is a laser theodolite, anyway, for which you have to

17 take a number of points. So the whole issue was whether you take a point

18 at every -- I mean articulation like the wrist and the elbow and -- and

19 the shoulder and things of that kind. And that had an impact on what a

20 body part or a complete body was, because then where would you -- where do

21 you stop measuring this? I mean, that is the context in which it

22 happened, as I recall.

23 Q. I quite agree. And the reason I'm asking you for this is because

24 it's a phrase that appears in the reports of all the pathologists in this

25 case-, that the number of complete bodies recovered. But what I'm trying

Page 8815

1 to explore with you, having been involved in the case from 1996 to 2001,

2 is whether, during that period, it was a phrase that was used differently

3 by each of them.

4 A. That I couldn't -- I couldn't tell you. What I can tell you for

5 sure is that pathologists sometimes, and, again, I mean they didn't --

6 like a hundred of them, I could not tell you whom, would at some point in

7 time, you know, maybe say okay, well this is -- I mean they opened the bag

8 and said this is not a body part, it has to be a body because, I mean,

9 there is a lot of -- you know, limbs and things here. So it has to be a

10 body. And they may call it a body -- they change it from a BP, that was a

11 call for a body part, to a body. But, I mean, it may have happened, yes.

12 What I'm trying to say is that it was some kind of work in progress, I

13 believe. But it may have happened, yes. It is possible.

14 Q. Thank you. When you say it may have happened, you mean it may

15 have happened that each of the pathologists in this case defined a

16 complete body differently and a body part differently?

17 A. Not necessarily. I wouldn't say that each of the pathologists.

18 Remember that every --

19 Q. Did I say pathologist? I didn't mean pathologist, I meant

20 anthropology [sic]?

21 A. No, most definitely that wouldn't the case. That's why you had a

22 supervisor of the team. Not every person would be calling whatever they

23 saw in their own way. Obviously not. They could argue, give their

24 reasons for it, but, I mean, they would be under the authority of a

25 person.

Page 8816

1 Q. Now, you've given some evidence just now about, as it were, your

2 role as supervisors and the protocols and procedure that is you had to

3 oversee. Were the protocols and procedures constant throughout the period

4 of 1996 to 2001 or could they change?

5 A. No, they changed. I think that in 1996 all of this was quite new.

6 It was very -- it was very. I mean the scale of everything was --

7 everybody was new. I think a lot was learned in the subsequent years

8 after 1996 and things did change. And I would say they improved.

9 Q. That implies that they were less than perfect in 1996. Would you

10 agree with that?

11 A. I would yes, certainly.

12 Q. What about in 1998? Were they improved after 1998?

13 A. I couldn't think the improvement hand only once, I think the

14 improvement happened actually after -- every year, every season.

15 Obviously, the point at the time was not just to reinvent the wheel after

16 every season, because there would be no consistency, but there were areas

17 that could be improved, I mean the logs, the observations, the types of

18 things we were using for this and that. There was work in progress.

19 There was an improvement of things. I mean, throughout. I mean, I would

20 not just say 1998 or 1997.

21 Q. Well, we may have to bounce back to that from time to time, but I

22 want to get a rather more detailed picture, if I can, of how firstly a dig

23 site was managed, and secondly how that coordinated with those who worked

24 back at the morgue. There were a large number of staff at each of the dig

25 sites, weren't there?

Page 8817

1 A. Yes. Yes, you could say that, yes.

2 Q. Would there have been anthropologists at the dig site?

3 A. When we -- yes. Yes. But just to clarify, in the American

4 educational system people are trained as anthropologists, period. But

5 anthropology for them has four subspecialties, linguists --

6 Q. I don't want to interrupt you. I think we've heard an abundance

7 of evidence about --

8 MR. McCLOSKEY: Objection, Your Honour. The answer is yes,

9 Your Honour. I think he -- he was finishing his answer. He wasn't going

10 to be long.

11 MR. HAYNES: I really didn't mean to be rude, but I think we know

12 this.

13 JUDGE AGIUS: Let him finish the answer, and then you can direct

14 him to something different, Mr. Haynes.

15 THE WITNESS: So to answer your question is yes, but bearing in

16 mind that we should not be so rigid when we said we are the anthropologist

17 or we are the archaeologist. Of course, we are both, a combination of

18 both, but under the American educational system, for example, people would

19 be called anthropologist, but they would be archaeologists, linguists,

20 physical anthropologists or social, cultural anthropologists. So the

21 answer is, yes, they mind that. In other systems, you may have a strict

22 archaeologist trained in a department of archaeology, like in the U.K.,

23 for example, or even in Peru, for that matter. It is different in the

24 American system.

25 So the way they're referred to would be different, but in the case

Page 8818

1 of anthropologists, it can imply archaeologist or physical anthropologist

2 or forensic anthropologist.

3 Q. Thank you. The next question is rather redundant now, but -- and

4 there would be archaeologists at the site of a dig, as well, wouldn't

5 there? Or collectively archaeologists/anthropologists?

6 A. Yes, would I like the stroke, yes. The stroke element is the most

7 clarifying one.

8 Q. We will agree on that. Would you have a pathologist at a dig

9 site?

10 A. No. We wouldn't.

11 Q. Scenes of crime technicians?

12 A. Yes, we would.

13 Q. Investigators?

14 A. The investigating team -- yes.

15 Q. And a large number of assistants, some of whom had nothing do with

16 the criminal investigation, did they?

17 A. In what context, again, I mean, you're referring this? 1996?

18 Q. Yeah, in 1996 there were a large number of people who worked

19 for the Physicians for Human Rights. They were not employed by the

20 International Criminal Tribunal for the former Yugoslavia, were they?

21 A. Well, what I mean -- I mean, again, I will not comment on things I

22 do not know first-hand because, yes, I was there, I do not know all the

23 details regarding the contractual arrangements between the Tribunal and

24 PHR or anything of the kind, but when you refer a large number of people,

25 the way -- the way -- I mean, at the site, you mean? I mean, the way they

Page 8819

1 at the site, at the mortuary, where?

2 Q. Well, at the moment I'm still at the dig site. I'm coming on to

3 the mortuary. Were there people at the dig site who were not part of the

4 process of the investigation of criminal offences?

5 A. Well, there were supporting staff, I mean logistic people, the

6 backhoe driver, I mean the truck driver operating the refrigerated

7 container. Certainly those people had nothing to do with the criminal

8 investigation. But, again, I am unable to run a backhoe, or Dr. Haglund

9 or whoever was over. Therefore, the support staff to a criminal

10 investigation but not directly involved or participating in the criminal

11 investigation as such.

12 Q. What about people working for human rights organisations, were

13 they present at the dig sites?

14 A. From -- I mean, what people?

15 Q. Sorry, I should be specific. In 1996, for starters.

16 A. Such as -- I mean, whom? I don't understand your question.

17 Meaning human rights organisations from where? From Bosnia, Serbia,

18 from ...

19 Q. Well, I'll put a few names to you now, then?

20 A. Yes, please.

21 THE INTERPRETER: Could the witness and the counsel please slow

22 down for the interpreters. Thank you.

23 MR. THAYER: I apologise to the interpreters.

24 JUDGE AGIUS: Thank you. Both of you, if you cooperate a little

25 bit better.

Page 8820


2 Q. Dorothy Gallagher, a student from Louisiana?

3 A. Dorothy, as I recall, was doing data entry, if I'm not mistaken.

4 Keeping the logs of the evidence that was being collected, if I recall

5 well. Yes.

6 Q. Juereen Hoffman, a student from Arizona?

7 A. She was a forensic pathologist from Arizona.

8 Q. Clea Koff, a graduate student from Nebraska?

9 A. Forensic pathologist.

10 Q. Molly Ryan, a student from California?

11 A. She was a cultural anthropologist that was supporting, again, I

12 guess data entry or something of the kind.

13 Q. So -- and lastly, I just mention this last one, Michael Warren, a

14 graduate student from Florida?

15 A. Oh, Michael Warren. He's a forensic anthropologist. He was a

16 student of late Dr. Maples.

17 Q. And because it's not apparent, you know, were these people working

18 on site or back at the mortuary?

19 A. Okay. From -- let me read the screen here. Clea worked at the

20 site and at some point in the mortuary. Mike Warren was in the mortuary.

21 Juereen Hoffman worked at the mortuary. Dorothy Gallagher, I think she

22 worked at the mortuary with data entry, as well as Molly Ryan, as far as I

23 recall. That's my recollection, yes.

24 Q. I'm being told by counsel to slow down now. So I'll heed two

25 warnings.

Page 8821

1 Let's leave those people to one side for a moment. Starting with

2 1996 --

3 JUDGE AGIUS: One moment. Because we still haven't got a clear

4 answer whether these four or five or six individuals were ICTY staff or

5 whether they belonged to some other organisation or human rights

6 organisation or were they free-lance, I don't know. Perhaps you could

7 address this, Mr. Haynes.

8 MR. HAYNES: Yes.

9 Q. I mean, Mr. Baraybar, you can hear the inquiry. Can you help us

10 as to that?

11 A. Based on my own recollection, and not knowing, I mean the specific

12 arrangement or contractual status, it is my understanding that these

13 people were employed by a physician for human rights to support the

14 Tribunal operations. But they were not hired by ICTY itself in 1996.

15 Yes, that's correct.

16 Q. Thank you very much. Now, would you bear with me a minute, I just

17 want to check your last answer on the screen. And perhaps you can help

18 me, it would be quicker. That list of names, did you eventually agree

19 that they were all people who worked in the mortuary or were -- or was one

20 or more of them somebody who worked at a dig site?

21 A. Primarily, as far as I recall, they all worked at the mortuary,

22 but maybe Gallagher did some data entry at the site but I think she was at

23 the mortuary. That's my recollection.

24 Q. Mr. Baraybar, it's fine, it is 11 years ago.

25 A. It is indeed.

Page 8822

1 Q. Can we deal with therefore, protocol, as it were, the removal of

2 remains from the dig site to the mortuary? Could you just please describe

3 for us what protocols were in place relating to the removal of bodies or

4 body parts from a dig site to the mortuary?

5 A. You mean the transportation or the physical removal of the

6 remains -- I mean, from the grave site first into --

7 Q. Yes, I want to know about documentation, record keeping at each

8 end?

9 A. Sure. There was a -- there was a -- I recall there was a form

10 that was filled per body that would indicate how the body was lying, I

11 mean, any elements of clothing, whether they had ligatures or blindfolds

12 or whatever thing you may find there. Then the body was given a number,

13 there was one person giving the numbers, and there was the scene of crime

14 officer, and I'm recalling, at the moment, the exhumation of Cerska, that

15 was the first site we did. Only one person would give the numbers, as I

16 said, otherwise you would have duplication of numbers.

17 Then when the body has been cleaned, individualised, so to speak,

18 I mean was ready to be lifted, that was the term that was used, a picture

19 will be taken, or pictures would be taken of details of the body, and then

20 you would lift the body, put into a body bag, the body bag would be placed

21 into a refrigerated container that we had on site. Not in the site, but

22 at the site. And then would be locked in there. And then the bodies

23 would be taken to the mortuary, once the site has been finished.

24 That is what I recall was -- I mean, in general terms, it was the

25 procedure.

Page 8823

1 Q. When it arrived at the mortuary, there would have been a

2 pathologist at the mortuary?

3 A. There were many, yes.

4 Q. Did every part of a body recovered go before the pathologist?

5 A. Yes. But what would happen is that, of course, the bodies would

6 be entered, I mean a log will be done on the receiving end to see how many

7 bags are entering, what cause, and so on. Then the bodies would be

8 scanned by a fluoroscope, that is an X-ray machine. As a matter of fact,

9 at the time we had a mortuary in -- in this old, bombed out factory in the

10 place that I cannot recall at the moment. And there was an X-ray machine

11 there, so the bodies would be primarily X-rays with the fluoroscope. Then

12 I have a confusion; again, it has been many years. Anyway, the body would

13 be scan the be it by a fluoroscope or X-ray machine to look for metal

14 parts and so on, and then it would proceed to the autopsy table for

15 examination.

16 Q. It's probably my fault. What I was seeking to establish, and I'm

17 not going to make this, as it were, time specific; this could relate to

18 the whole period of the investigation.

19 A. I see.

20 Q. Was whether, for example, an arm bone would be taken to the

21 pathologist or whether that would simply bypass him?

22 A. As far as I recall, nothing would bypass the pathologist.

23 Q. Do you know what the pathologist would do with something in

24 relation to which the exercise of determining cause of death was

25 pointless?

Page 8824

1 A. Well, do remember, just to -- I mean, to give some explanation to

2 you what you just said is the following: All the remains will go through

3 the pathologist, no matter what, an arm, a hand, whatever. The

4 anthropologist will be work at the table working with the forensic

5 pathologist make the determinations that may be possible to make, and will

6 allow or not, the pathologist to ascertain, for example, cause of death.

7 In the case of an arm, certainly, or more than certainly, cause of death

8 could be ascertained, unless there was a gun-shot wound through the

9 humerus that may have, I mean, cut brachial artery and the person bled

10 to death. But, I mean, otherwise it would be cause of death,

11 unascertained.

12 Q. Did the pathologist, at least in 1996 initially keep a separate

13 record of what happened at the autopsy table from the anthropologist?

14 A. That I don't know. There was a form with part -- part of which

15 was the anthropologist's responsibility to fill in. Now, whether they

16 were keeping a separate record, I mean a separate notebook or whatever,

17 that I don't know.

18 Q. To the best of your recollection, in 1996, focusing, if you want

19 on Cerska. How many pathologists would have been working concurrently?

20 A. That's a very good question. If I -- I mean I would be lying. My

21 recollection is that there were like three tables, I think, running at the

22 same time. I think it was a three-table mortuary we set up in that

23 factory. So it would be three.

24 Q. And what level of anthropologist would be at that table with each

25 of those pathologists?

Page 8825

1 A. Level in terms of experience or?

2 Q. Yes, I mean, obviously Mr. Haglund couldn't be at every table.

3 A. No, no, no. Haglund actually -- Haglund was not -- you know,

4 participating in the examination of remains. He was primarily in the

5 field. He was dealing with exhumations. Do remember that the chief

6 pathologist at the time was a -- later Dr. Krsna [phoen], Robert Krsna.

7 So he was the chief pathologist. There would be three pathologist and at

8 least three or four anthropologists. They were experienced people, like

9 Mike Warren, for example, you mentioned, and some other.

10 Q. You say Mike Warren was experienced but he wasn't somebody so

11 nearly well qualified as you, was he, to make anthropological

12 determinations?

13 A. Well, at the time -- at the time I would not like to necessarily

14 say that I was the most qualified person in the planet, but I have

15 certainly much more experience regarding, I mean, case work than many

16 other people. But there were other people that were very qualified as

17 well. Talking about Mike Warren, he came from a laboratory in Florida

18 that dealt with a lot of case work as well, so he was a very experienced

19 person.

20 Q. So just to summarise, you are aware that in 1996 there was a

21 pathologist sheet to be filled out in relation to any body or body part,

22 but you are not aware whether there was an anthropologist sheet to be

23 filled out at the same time?

24 A. No. What I recall, and again it's been a long time, is there was

25 an autopsy form that contained the pathologist's information in it and

Page 8826

1 then some part to be filled by the anthropologist. Because for example

2 your age determination, you will not kind of write on a piece of paper and

3 give it to the pathologist. You would have filled in your information in

4 the same form.

5 Now, that is my recollection. Since I do not have any document in

6 front of me, I couldn't really tell you off the top of my head, I mean 11

7 years after, that was the case, but that is my recollection, yes.

8 Q. In relation to this aspect of the investigation, is this -- is

9 this an area where protocol changed and was improved after 1996?

10 A. Yes, yes. I would say that there was a lot of improvement

11 regarding -- I mean mortuary protocol and that, yes, after 1996, yes.

12 Q. What was wrong with the system in 1996 and how was it improved?

13 A. Yes, you see, first of all the condition that we work were less

14 than optimal. What I am telling is we were working in a bombed-out

15 factory, a textile factory or something. Close to the former

16 confrontation line. So there was no water, I mean the tables were

17 improvised. I mean, a lot of the things, I mean to the hardware was quite

18 -- wasn't really there. Electricity was a problem, again, running with

19 generators. Things could have been done better also with better hardware

20 and conditions of work. But one of the things we improved as well was

21 having a much more systematic recording of bone elements and so on in --

22 in spread sheets to allow us to later obviously calculate all these

23 minimal numbers and those things.

24 We, in the years after 1996, were much more specific in our

25 descriptions of bones that could be used, for example, the calculation of

Page 8827

1 the MNI, rather than a -- saying almost complete, I don't know, femur, we

2 would say whether we had a form where you would tick whether you have, I

3 mean, the proximal part or the middle part or the distal part of the bone,

4 and things of the kind. So there was much more of that. I think that

5 came after.

6 Q. Thank you. I've got one brief-ish topic to deal with, which may

7 just take up to a break if we're lucky, Mr. Baraybar, and you and I can

8 have a break and everybody else can.

9 I want to see if you can help us as to whose responsibility it was

10 carry out various parts of the, as it were, autopsy procedure. Starting

11 first of all with what we'll call a complete body or a nearly complete

12 body. Whose responsibility was it to make a note of and record the parts

13 that were missing from that body, if any?

14 A. Primarily, if this body was skeletonised, it would be the

15 anthropologist. If the body was fleshed, would be the pathologist in his

16 own -- I mean autopsy report.

17 Q. And dealing now with a body part, whose responsibility would it be

18 to identify what part of a body that was?

19 A. Yet again, if you are talking about flesh remains, it would be a

20 pathologist. If it would be very decomposed remains, it would be the

21 anthropologist.

22 Q. Thank you. That's very helpful. What about the measurement of

23 any bone recovered or body part recovered, if indeed that was carried

24 out?

25 A. The anthropologist. I mean, whatever measurement of bone would be

Page 8828

1 the responsibility of the anthropologist.

2 Q. The taking of any DNA samples from any body?

3 A. We have actually -- or I have unintentionally I have omitted the

4 fact that there were autopsy technicians we have forgotten about autopsy

5 technicians. There were autopsy technicians also assisting at mortuary.

6 At the time and throughout, I mean through the years. And I think that

7 they were the ones, I mean, taking the sample for DNA testing, yes.

8 Q. And can you confirm that that was routinely done in relation to

9 every body and body part exhumed?

10 A. Yes, it was.

11 Q. So there is, in effect, the potential at least for a complete DNA

12 database of -- of all the bodies and body parts exhumed in this

13 investigation?

14 A. Maybe so. Maybe so. I don't know. Were DNA samples taken, the

15 answer is yes. Were they taken from every single bone, obviously not. I

16 mean if you have a body part, let's assume you have a torso, you would

17 take a sample from the arm but not from every rib and every -- the collar

18 bone or whatever. You might just take one sample per unit. I believe you

19 have -- the hands and feet, you will not be taking DNA sample from those,

20 because normally DNA, to be extracted from those parts is -- is quite

21 difficult, I mean in every possible setting. I mean-, you will always

22 recommend to take long bones, dense bones, like femur or humerus, and

23 things of that kind.

24 Q. And that was going on from 1996 throughout the whole period to

25 2001, was it?

Page 8829

1 A. Collection of DNA, yes. Yes, yes.

2 Q. Whose responsibility would it be to determine the sex of any body

3 or body part that was recovered?

4 A. Fleshed, pathologist. Unfleshed, anthropologist.

5 Q. Thank you. And lastly, the determination of the age of any body

6 or body part, whose responsibility would that be?

7 A. Anthropologist.

8 Q. If the determination of sex and age was made by the

9 anthropologist, would that or should that have been made in the autopsy

10 room or elsewhere?

11 A. In -- no, in the autopsy room.

12 Q. And --

13 A. Sorry, excuse me.

14 Q. It was a bad question. It's my fault, and I don't -- always quick

15 to acknowledge that. What I'm aiming at is record keeping. If the

16 determination of sex and age was the responsibility of the anthropologist,

17 would it also be his responsibility to record it somewhere?

18 A. As I mentioned to you, the answers yes, but as I mentioned to you,

19 my recollection again is that you have an autopsy protocol that contains a

20 section for the pathologist, a section for the anthropologist. Now,

21 the -- if we try to picture the situation, you have a table with a body

22 on it, and you have another table next to it for the anthropologist to

23 work, otherwise everybody will be working on top of each other. And you

24 may you know need these elements to have a look at with a closer look, or

25 to wash them or even to boil them because they have some flesh on it and

Page 8830

1 you have to go down to the bone. And you take it to the other table, do

2 your determination, and then write in his report or dictate even to the

3 pathologist, say, okay, age, whatever, sex, whatever, and that's pretty

4 much it.

5 Q. And just a follow-up question from that. If it was the

6 responsibility of the anthropologist to determine sex and age, is that

7 something that the pathologist would simply wash his hands of and say,

8 over to you, you deal with it?

9 A. If -- regarding sex, as I said, if it is fleshed you have external

10 genitalia, obviously the pathologist would be the one determining sex and

11 there is no need to go further. But age, certainly, is a responsibility

12 of the anthropologist. I mean certainly. I don't know whether the

13 pathologist washes his hands or not. I hope he does, but the issue is

14 that certainly that is a responsibility of the anthropologist.

15 Q. I probably ought to clear that up. What I meant was if -- if the

16 determination of those factors was something that the pathologist was not

17 going to take part in, would it be something he would not record?

18 A. By definition, yes. I mean by definition, yes. Now, are you

19 discussing this in the context of 1996 again or throughout.

20 Q. I'm really dependent on you to tell me how things changed, whether

21 that was the position in 1996 and whether it got better in 1998 and

22 afterwards?

23 A. Right, but this is not a matter of getting better or worse. It is

24 obviously a task, a division of tasks. In other words, a pathologist is

25 somebody who deals with a cadaver, with soft tissues, and determine cause

Page 8831

1 of death based on that examinations. If you have a body part that may be

2 totally, I mean, rotten and decomposed and beyond recognition, he or she

3 cannot do much with that soft tissue besides saying well, it is human, it

4 is rotting soft tissue. Now you, anthropologist, tell me something else.

5 So clean it, get to the bone and tell me the male, female, he's young,

6 he's old, whatever, and that's pretty much it. It has nothing to do with

7 improvements. It's just a division of labour. The pathologist not deal

8 with determination of sex or age on skeletal remains.

9 Q. I will put this to you and we'll come back to it later. What I

10 suggest to you is that in 1996, the pathologist -- the records that the

11 pathologist was keeping, as to the condition of the body and what was

12 missing from it, were found to be inadequate.

13 A. I do not know. I mean I -- if you can show me some example

14 somewhere, I could give an opinion, but I mean --

15 Q. I will later. And --

16 A. Okay.

17 Q. -- that in order to perform a minimum number calculation, the

18 record had to be correlated with different records kept by the

19 anthropologist?

20 A. Yes.

21 Q. You agree with that?

22 A. Yes.

23 Q. Thank you.

24 MR. HAYNES: Well, I've finished on that topic. I can't see what

25 time it is. It think it's a little early, but it would be a convenient

Page 8832

1 time for a break.

2 JUDGE AGIUS: It is two minutes before our break time but we can

3 have our break now.

4 MR. HAYNES: If it is convenient to you.

5 JUDGE AGIUS: Certainly. Certainly, Mr. Haynes How much longer do

6 you think you will be cross-examining the witness?

7 MR. HAYNES: I think I'll be true to my two hours, actually.

8 JUDGE AGIUS: All right.

9 Madam Fauveau.

10 MS. FAUVEAU: [Interpretation] 10 minutes, Mr. President.

11 JUDGE AGIUS: And Mr. Ostojic? Mr. Meek.

12 MR. MEEK: Mr. President, certainly not as long as we said.

13 Perhaps 15 minutes. 10, maybe.

14 JUDGE AGIUS: All right. So --

15 MR. MEEK: Maybe 20.

16 JUDGE AGIUS: So we can afford a 25-minute break. Thank you.

17 --- Recess taken at 3.44 p.m.

18 --- On resuming at 4.14 p.m.

19 JUDGE AGIUS: Yes, Mr. Haynes.

20 MR. HAYNES: [Microphone not activated]

21 THE INTERPRETER: Microphone, please.

22 MR. HAYNES: That's a very good reminder. Thank you.

23 Q. I want to move on now to the question of determining the sex of

24 bodies and body parts. And I'd like to just clear one thing up with you

25 to start off with. It's right, isn't it, that your calculation of the

Page 8833

1 minimum number of individuals exhumed includes those for whom sex could

2 not be determined?

3 A. Yes, it is correct.

4 Q. And it's also correct, isn't it, and I'm taking the figure from

5 the report of Dean Manning, that the number of bodies and body parts for

6 which sex could not be determined was 253?

7 A. I have not seen the report of Dean Manning, nor do I have it in

8 front of me, so I do not know. This 253 means bodies from when? All the

9 bodies from 1996 to 2001 or --

10 Q. Yes.

11 A. I want to check with my own reports. I would say yes, conditional

12 yes, because I have not seen the reports.

13 Q. Very well. But in round terms, about 10 per cent of the minimum

14 number of individuals, or sorry the minimal minimum number of

15 individuals?

16 A. That would be, yes, I think it's correct, yes.

17 Q. Now, would you agree with me that the best way, in fact the

18 only certain way of determining the sex of any individual, is to identify

19 them?

20 A. No, I would not agree with you.

21 Q. You would not agree that if you can establish the identity of the

22 person and that person is a man or a woman, that is in the best way of

23 determining sex?

24 A. You are talking about personal identity, meaning to name one

25 person?

Page 8834

1 Q. Yes. For example if you had a -- if you took a DNA sample and you

2 could relate it to somebody from whom you had a DNA sample, and you could

3 establish that that person was a man or a woman. That's the best way of

4 ascertaining the sex of an individual, isn't it?

5 A. Well, if you -- sequencing the Y chromosome, of course, you will

6 know whether this person is a male or not, but, I mean, I would not

7 agree. I mean there are other ways to determine sex because sex is part

8 of the identity of a person.

9 So let's look at the problem in reverse. We find a set of

10 skeletal remains. In other context, let's forget for a moment this

11 specific case, you don't know who this person is. You don't have a clue

12 as to who this person may be. So you have to come up with some elements

13 as to try to draw a biological profile that could be compared with a list

14 of persons missing in that jurisdiction. So you have to be able to say

15 that this person is male or female based on some basic elements, otherwise

16 imagine in all the pre-DNA times meaning 20 years ago, how people would do

17 determine it, sex.

18 Q. With respect, Mr. Baraybar, nothing we are talking about is in

19 pre-DNA times. You were taking DNA samples from everybody throughout the

20 whole of the investigation, according to your evidence. It's a simple

21 proposition. If you don't agree with it, I'll move on. But isn't it

22 right that if you can actually identify -- you can actually establish the

23 identity of somebody, that's the only fool-proof way of determining their

24 sex?

25 A. Well, I do not agree, I'm afraid, with you. Certainly I can

Page 8835

1 provide you other arguments, but no, I do not agree with you. I mean if

2 you want, I can expand on it, otherwise we'll leave it there.

3 Q. No, it's really not necessary. We'll disagree on that.

4 As you've told us a number of the bodies and body parts that were

5 the subject of autopsies were visibly one sex or another, because they had

6 external genitalia or the like, and so that would be the next best way of

7 establishing the sex of a body or body part. Would you agree with that?

8 A. Yes, of course.

9 Q. And after that you have to rely on certain features of the body or

10 body parts to determine sex. Would you agree that the next most reliable

11 test as to what the sex of a body or body part is, is analysis of the

12 pelvis girdle?

13 A. That is correct.

14 Q. And after that, analysis of the skull?

15 A. Yes.

16 Q. Now, you've already told us that you have in front of you some

17 scientific literature. I imagine that that literature includes the

18 article in Science Direct that you provided to the Prosecution last

19 week?

20 A. Djuric et al, yes.

21 Q. That's the one.

22 A. Mm-hmm.

23 Q. And would you accept their findings that analysis of the skull to

24 determine sex is only of -- ever 70 per cent successful?

25 A. In the sample they worked with, yes. Remember, I mean this

Page 8836

1 article is based on a very specific sample. So based on the findings on

2 that sample, that is correct.

3 Q. And after analysis of the skull, as it were, the last resort for

4 determining sex is analysis of long bones, isn't it?

5 A. That's correct.

6 Q. And would you agree that that is a less certain system of analysis

7 than even analysis of the skull?

8 A. Certainly. It is in an order of priorities, would be pelvis,

9 skull, long bones. And obviously the accuracy will decrease as you go

10 along that path, yes.

11 Q. Now, in relation to the sex determinations that you have

12 knowledge of, which of those techniques would you say was most commonly

13 used?

14 A. Well, depending on what did you have. If you have, I mean, a

15 complete body, you would go first for the pelvis. And then you would have

16 a look at the skull as well. Long bones would not be necessary for that

17 matter. If you had a body part that did not have the pelvis but only

18 long bones, you would be pretty much left with whatever you could do

19 with the long bones. So you could measure certain parts of those bones

20 and apply certain formula that exist or simply you couldn't. And if you

21 couldn't, you would be -- this individual would be classified as

22 undetermined.

23 Q. Thank you. I don't want to get accused of asking the same

24 question twice, but what I was really from in the question I asked was

25 whether you could say now whether it was long bone analysis that was most

Page 8837

1 commonly used in the determination of sex or any other of those tests that

2 I have mentioned?

3 A. No. As I said, and I think I have written that in my reports, the

4 analysis of sex was carried out in the fashion I told you. Pelvis first,

5 skull after, and long bones later. If you refer to long bone analysis,

6 that's a specific testifying that I used in some of my reports or in some

7 of the forms that are a way of scoring the presence of a specific part of

8 a long bone to facilitate the calculation of the MNI. So the answer is

9 still the same. We have used the pelvis first, skull later, and long

10 bones as a last resort, if there is nothing else to determine sex.

11 Q. So -- and I'm taking this particular bone from your report, if the

12 only body part you had was a left proximal femur, how would you determine

13 the sex of that?

14 A. Most likely you would use the maximum diameter of the femural

15 head. Back in early 1900s if I am not mistaken, Pearson, if that is

16 correct as well, if my recollection doesn't fail, established a set of

17 measurements of the femural head where there is a cut-off point for males

18 and females and that was based on a Caucasian for a white, European

19 population sample. So that would be one of the ways that you would use.

20 But certainly we would not have been, let's say, relying 100 per cent on

21 this. For example, let's assume the following. The cut-off point is 42

22 millimetres or up to 42 millimetres for females and then from 47

23 millimetres up are males. So what happened between 42 and 47? Obviously

24 you would not say somebody with a 45-millimetre measurement, you could not

25 say, well, could be a male. I mean, obviously this person would be

Page 8838

1 classified as undetermined.

2 Q. I'm going to come back to that in minute, but I want to now move

3 on to the question of age determination. And I'm going to put the same

4 proposition to you and see whether you agree with it. The best and only

5 fool-proof method of age determination is actual identification of the

6 individual?

7 A. Well, it is a very tricky question, primarily because we are

8 defining two different types of data. Let me explain.

9 Identity will give you chronological age determination, right,

10 because you have somebody's name at the end of the day, full identity of

11 the this person, date of birth, et cetera, that will give you

12 chronological age. When we deal with bones we are talking about

13 biological age, so those two things cannot be compared. A bone will not

14 give you a chronological age; by definition, it is impossible. You would

15 not be able to say this person is 25 years and seven months to his or her

16 birthday. That is simply impossible. So to clarify your or answer your

17 question, it would be yes, personal identity through DNA or whatever would

18 give you chronological age determination. However, anthropology work on

19 bones will give you biological age determination. That is not

20 comparable. Because in anthropology you are creating a range where you

21 would fit this person. So, for example, you have an individual between 20

22 and 30, doesn't really matter whether the person is 21 and a half or 25.

23 The issue is that this person has to be -- has to fall within this age,

24 this biological age interval. So there are two different things. I don't

25 know whether that's clear.

Page 8839

1 Q. Yes, I understand you. Now, the techniques that you used for age

2 determine nation are set out at page 6 of your minimum number of

3 individuals report, which is, if it can be put on to e-court, P02477 at

4 page 6.

5 Sorry, we have to wait for other people to see it on the screen,

6 Mr. Baraybar; that's why I'm pausing. This is for everybody's else's

7 benefit, Mr. Baraybar, not for you.

8 The relevant paragraph is the English is the one beginning "age"

9 at the top of the page. I am guessing the relevant paragraph in the B/C/S

10 is the one beginning "Pol" towards the bottom of the page. No. No, it's

11 not. That's sex. It must be up a little bit. Maybe back a page in

12 the -- no, no. It must be back a page in the B/C/S, please. No, you've

13 gone forward. I think you really need to go backwards. Thank you.

14 "Storosna Do" [phoen] at the very bottom. In the B/C/S we're going to

15 have to give people a chance to read that paragraph and then go over to

16 the next page.

17 According to that you used two techniques for determining age in

18 bodies or body parts exhumed by you. Changes in the sternal end of the

19 fourth rib, and analysis of changes in the pubic symphysis. Is that

20 right?

21 A. For the adults, yes.

22 Q. Yes, of course. And for children, epiphyseal union in children.

23 You didn't use any other tests to determine age?

24 A. No. Primarily what is listed in this report, we will have used,

25 yes.

Page 8840

1 Q. Yes. And again, just referring you to the article you kindly

2 provided us with, the Djunic and other article, their findings would

3 indicate that analysis of age by the two techniques used by you had a 67

4 per cent accuracy?

5 A. Well, if you read carefully the article I presented to you,

6 primarily the accuracy is referred to the precision that they used in

7 determining the age intervals. And what they said is that when they use

8 for example a plus, minus 2.5 years, of a specific estimate, they were

9 having a lower, I mean an accuracy that when using a broader range. So

10 that is one thing.

11 The second thing is that the application of a specific technique

12 to a specific population will also reflect the age distribution of the

13 population that you are working with. If I may explain yet a bit more.

14 Q. I don't want to interrupt you, but I am going to come on to that

15 particular subject.

16 A. Okay, please.

17 Q. I understand what you're saying?

18 A. Yes.

19 Q. If you make a wider bracket then you are more likely to be

20 accurate, that's correct?

21 A. That's correct.

22 Q. Yeah. Now, correct me if I'm wrong, but whilst in about 10 per

23 cent of the cases that form the minimum number of individuals, it was not

24 possible to determine sex. There is no single body or body part in which

25 a determination of age was not made. That is correct, isn't it?

Page 8841

1 A. That is correct.

2 Q. And this I would welcome your explanation on. How do you

3 determine the age of, for example, the left proximal femur, if you don't

4 know what sex it is?

5 A. Well, obviously the -- in order to determine age you have to go

6 through sex first. Because you have different rates of maturation between

7 the sexes. I mean females, they age skeletally faster than males. That

8 is correct. Having said that we have to take into consideration, what

9 does it mean in terms of years or time. In other words, if I have a

10 proximal femur, as you said, and I do not know what sex it is, okay, I may

11 be saying, okay, this person is an adult. But that adult term, meaning

12 that everything is fused, there is nothing unfused, just -- is as

13 applicable to a male as it is applicable to a female. I cannot

14 differentiate whether -- I mean, this person was 25, 26, or maybe 24 and a

15 half, I cannot. So it is applicable to both.

16 Now, as per the remains of a younger -- younger people, in which

17 again you do not have the sex, that's why we have created a broader

18 bracket that could actually be applicable so much for a male as to a

19 female. As you have seen, the brackets are quite broad, so you know they

20 can tolerate, so to speak, a mixture of sexes, if you wish.

21 Q. Well, let me take this step by step. You accept that an age

22 determination was made in relation to every body or body part you

23 recovered, every body or body part that forms the minimum number of

24 individuals. Let me take it step by step.

25 How do you determine, given the criteria you used, the age of a

Page 8842

1 left proximal femur? Because that's -- you haven't got a pubic symphysis,

2 and you haven't got a sternal end to the fourth rib. So how do you

3 determine the age of that bone?

4 A. Well, in a very simple manner. You have only two options with the

5 left proximal femur. Whether that person is a mature or juvenile person,

6 whether you're going to see that the pieces are unfused, or in the process

7 of fusion, or whether anything is fused. If everything is fused you know

8 this person is an adult. An adult could be over 25, over 23 and a half.

9 Yes, it is possible, but you don't know. Therefore, it is 25 plus. The

10 reason why we have created such a, I mean, broad interval of, say, 25 to

11 infinite, so to speak, is because of that reason. Exactly that reason.

12 Now, there is another element I have to say. Regarding the body

13 parts, we have estimated in relative interpretation age of body parts

14 whenever possible. For example, you have a hand. Okay. You have a

15 hand. In which everything is fused, there is nothing unfused or in the

16 profess of fusion, so is the hand of somebody, male or female, that has

17 stopped, let's say, maturing or growing, to put it in a more popular

18 term. Therefore, this person is an adult. Whether it is a male or

19 female is another matter. And that is something you cannot really say

20 base on that hand. Of course you could, if you take every bone and apply

21 some formula and maybe you come up with some sex estimation for that

22 hand. But that hand would be going to be the 25 plus category on one

23 hand, and on the other hand, would not be used for your MNI. I mean,

24 your MNI would not be using hands, I mean, for example.

25 Q. No, but your MNI uses quite a lot of bones in relation to which

Page 8843

1 you couldn't determine sex or age with any accuracy, doesn't it?

2 A. It does. Again up to a certain extent. I don't know whether I

3 have made myself clear with this. Accuracy is dependent on what you have

4 in order to determine an age range. So we agree with that. Now, whenever

5 you have something that has stopped fusing, growing, maturing or whatever

6 we want to call it, okay, these specific parts will go on to the 25 plus

7 category. Then you tell me, the 25 plus category, you cannot do better

8 than that. Of course I can't. But what I can do better, I mean, we can

9 look at some of the other reports of the previous years, is that we have

10 broken down in some cases the 25 plus category based on more diagnostic

11 elements such as the pubic symphysis. So, for example, in one of the

12 reports that I have here from -- let me see. For example, the report of

13 1999, anthropological examination of human remains from Eastern Bosnia,

14 1998, there we have a breakdown by mean ages of all the parts that contain

15 pubic symphysis. And that is part of the 25 plus interval. But certainly

16 as you will say, we did not have pubic symphysis in every case, and in

17 some cases we are only using, let's say, proximal left femur.

18 Having said that let me just finalise my thought here, that when I

19 say that we use the proximal left femur for the MNI, it does not mean that

20 we had only broken, isolated, left proximal femur. That femur could be

21 part of a pelvis, that could be part of a complete body. But in order to

22 homogenise your calculations, we were counting in the body, the proximal

23 left femur. It is very important. I mean, these are -- by no means I'm

24 saying we have only a collection of left proximal femur and there was

25 nothing else. That is not the case.

Page 8844

1 Q. So to summarise, would you accept that necessarily age

2 determination in bodies or certainly body parts where you could not

3 determine sex, is a less exact, an even less exact science?

4 A. I wouldn't say a less exact science is a less accurate procedure.

5 But, I mean, all the procedures we are dealing with are scientific

6 procedures, I mean, so therefore, yes, it is a less accurate procedure but

7 is not -- nothing do with science. No, I'm afraid.

8 Q. Right. And secondly, where you did not have either a sternal end

9 of the fourth rib or a pubic symphysis, it seems to me, from what you're

10 saying, you just put that body part in the 25 plus category. Is that

11 right?

12 A. If there was nothing -- if we had any kind of bone other than the

13 one you just listed for the adults, very clear for the adults, and there

14 is nothing in the process of fusion, nothing maturing, nothing that would

15 indicate a person that was in the process of, let's say, quote unquote,

16 "growing," this person would be put in the 25 plus category? Yes.

17 Q. Thank you. Now, lastly?

18 THE INTERPRETER: If counsel could make pause between question and

19 answer, please.

20 MR. HAYNES: I'm very sorry.

21 Q. Lastly on this topic, was there an element of professional input

22 from the anthropologist in some cases to age determination?

23 A. I do not understand your question.

24 Q. Well, I'll show you a passage from a report, please. It's P0611

25 at page 41.

Page 8845

1 MR. McCLOSKEY: Can we get whose report.

2 MR. HAYNES: This is Bill Haglund's report. And I think it's the

3 first one. The Cerska report. I say, It's page 41, not 31.

4 THE REGISTRAR: Does counsel have the page number in the B/C/S,

5 please?

6 MR. HAYNES: [Microphone not activated]

7 THE INTERPRETER: Microphone, please. Microphone, please.

8 MR. HAYNES: Can we try with 41 and see where we go from there.

9 MR. HAYNES: It is the same page, and it's paragraph C. The

10 English has gone down too far now.

11 Q. Mr. Haglund used rather more features of the body to determine age

12 than you did, as we can see from the first paragraph. But he says in the

13 middle of the second paragraph under age estimation, "The final mean age

14 estimation is based on a combination of the aforementioned factors plus

15 the anthropologist's own judgement. The minimum and max number age are

16 equal to minus one and plus one, the standard error, respectively. The

17 final age -- range given is the anthropologist's opinion of the

18 individual's biological age and does not exclude the possibility that

19 the true calendar age is outside the range given." Do you agree with

20 that?

21 A. Yes. Yes, most definitely. But just to clarify your point, he

22 did not use more standards than we did. As a matter of fact, the medial

23 clavicle that is referred there, is part of the McClelland and Stewart

24 [phoen] standards, and also it is an epiphysis. I mean, they are

25 mentioning the medial epiphysis of the clavicle.

Page 8846

1 Q. I'm sorry. I didn't mean to. And presumably that -- what

2 Mr. Haglund is saying there is that if, for example, you have a pubic

3 symphysis which indicates that a body is, let's say for the sake of

4 argument, 14 years of age, but the bones you have indicate that he's 1.9

5 metres tall, the anthropologist might override, as it were, the finding of

6 the pubic symphysis. Is that -- is that something that would have

7 occurred?

8 A. Hold on. I'm reading your question again because I did not

9 really --

10 Q. And it's partly my fault. I'm getting too fast again,

11 Mr. Baraybar.

12 A. No, it's not the pace, actually. I did not under -- follow your

13 thought. Could you maybe rephrase your question, because I mean I'm a bit

14 confused.

15 Q. Certainly. Were there occasions when the anthropologist's opinion

16 would take precedence over the findings as determined by the sternal end

17 of the fourth rib or the pubic symphysis?

18 A. Well, no. Because I mean the anthropologist would be taking all

19 these elements into consideration. If we go back to the text that I'm

20 reading here, it's a very common sensical statement. It has nothing to do

21 with Haglund or anybody else. It is a very common anthropological

22 practice.

23 In other words, you have a standard, okay. The standard tells you

24 phase one means A, B, and C. Okay. And you have been trained to

25 understand what those standards actually mean, and when you observe a

Page 8847

1 pube, you can say, okay, this is phase whatever. Then you look at a rib

2 and combine all these elements. Now, obviously you have certain

3 parameters to establish an interval, an age interval. But, as I said, the

4 age interval, the brackets, in order to be accurate, they have to contain

5 the real age, meaning the chronological age of the individual that you do

6 not have within it. Okay.

7 So as pointed out in this paper by Djuric et al, whenever you have

8 a range that is more precise, you are losing accuracy. Because you can

9 say that this person is between 14 and 16, but maybe the person is 17.

10 And because you had only a plus minus of one, right, you have left this

11 person outside. You have excluded this person. So that is just to

12 comment, I mean, the text you show me. And I don't know whether I have

13 answered your question, but it is still -- I mean -- I don't know whether

14 I answered your question.

15 Q. I'm going to move on because we're going to come back to this in

16 another context. I'm going to now move on the subject that you were

17 anxious to talk about earlier.

18 Changes in the pubic symphysis to an extent vary according to

19 racial or regional origin, don't they?

20 A. Well, no. As a matter of fact, it is slightly more complicated

21 than that. Populations proceed -- variation is a combination of a lot of

22 factors that can go from nutrition to ancestry to sex to a number of

23 things, certainly. So, yes, what I would say, it is safer to say that

24 either there is variation across populations regarding the way that

25 certain parameters, I mean change, get -- I mean modify age, if you wish,

Page 8848

1 yes.

2 Q. And prior to 1999 the basis for comparison in relation to change

3 in the pubic symphysis was the Suchey Brooks standard, wasn't it?

4 A. Yes. And still is, as a matter of fact. As a technique, it still

5 is, yes.

6 Q. But that was based on, you will correct me if I'm wrong, a survey

7 of North American subjects, wasn't it?

8 A. That is a sample assembled at Los Angeles medical examiner's

9 office. So it is -- it is a -- yes, a contemporary North American

10 multi-racial sample. We will call it this.

11 Q. Now, when you took charge of exhumations in 1999, you immediately

12 adopted a different standard for comparison, didn't you?

13 A. What we did is we used the same standard, meaning -- the Suchey

14 Brooks technique, is a technique that -- that is made of phases, so those

15 phases, the standard itself has not changed. In 1999 what became

16 available was a different distribution of ages per phase based on a more

17 specific population for the Balkans, specifically from Bosnia.

18 Q. Was that, in your view, a better source of comparison for age

19 determination in the pubic symphysis?

20 A. Definitely at the time was the newest or more relevant, if you

21 wish, source available. Meaning it is very possible that if we were -- if

22 we kept, let's say, using Suchey brooks as per the North American

23 standards, we would be underestimating or overestimating the age of people

24 we were observing. However, having by then available a study

25 more relevant to the region, it would make sense to adopt it. Yes,

Page 8849

1 certainly.

2 Q. Were any of the age determinations prior to 1999 reevaluated after

3 1999?

4 A. I do not think so, no. Just in the cases -- the most important

5 thing to remember is the following, just for clarity: Each phase remains

6 what it is. In other words, if I observe let's in 1996 a pube that was

7 phase two, my observation at phase two will remain the same. That doesn't

8 change. But if phase two comes from -- I'm just making it up. Whether

9 some 20 to 30 years, maybe according to this new population study, a phase

10 two would mean, let's say, 40 to 50. So what we change would be the

11 construction of the age interval and not the observation I made. So

12 whenever it was possible, and again I am recalling here, we, or I, for

13 that matter, recalculated that. But I think that this has been

14 recalculated only from 1999 onwards, not for the data before. I think,

15 yes.

16 Q. I'm not sure, because I haven't got my LiveNote on screen at the

17 moment, whether you've given the name of the 1999 report. That was the

18 Simmons report?

19 A. Simmons, yes. It is in the bibliography, yes.

20 Q. Yes, I know that. I just wanted it on the record.

21 Was the Simmons report, in your view, perfectly adequate as a

22 benchmark for determining the age of the people you exhumed?

23 A. It's not the benchmark of anything. As I told you, again, it was

24 the most appropriate population sample available at the time. We could

25 engage into a discussion as to whether the statistics used for example

Page 8850

1 were appropriate or not and that's really another matter. What I would

2 say is that at the time this report, this paper, that was submitted to --

3 in a forensic meeting, was the closest in a way to what would have been

4 needed. Maybe earlier on, you know. But I mean of course these kind of

5 things are not things you do from one day to the next.

6 Q. Just two more things on this particular topic. Would it be your

7 evidence therefore that the age assessments based on Suchey Brooks prior

8 to 1999 have an additional element of inaccuracy?

9 A. Yes, it is highly likely that construction of the age intervals,

10 based on a population sample that was not from the Balkans, that as an

11 inherent error that it may be an error, but a systematic error because it

12 has been used throughout. So at least you know it has an error but a

13 systematic error.

14 Now, what do I mean by this? As I told you, since the technique

15 is the same, but the vales, if you wish, or trait you are observing, the

16 face, are different, what you would be doing is you would be

17 systematically underaging or overaging people. But systematically.

18 Okay? So this is extremely important. This is not a -- a -- half this

19 other thing that changes, I mean, let's say from year to year. As long as

20 you know that -- as long as you are consistent with your source of error,

21 in a way, you know that the error exists. And answer is yes, there is a

22 tendency either to over or underestimate age of people. By how much, or,

23 you know, by how much? Well, the data we have at the moment is that

24 according to -- I mean Simmons and some other studies done on the matter

25 on samples from the Balkans is -- in the Balkans compared to American

Page 8851

1 standards, people may be -- seem to be the older, you know, for the same

2 phases. So a phase two, again, just making it up, a phase two in the U.S.

3 sample may be, let's say, 20 to 30, while in the Balkans it would be 25 to

4 35, or 30 to 40, something of the kind. I'm just giving this to

5 illustrate what I say.

6 Q. I'm glad you used the word systematic, because, of course, it

7 would be systematic if you carried on using the same test. But you

8 changed it in 1999, didn't you?

9 A. We did not, I already told you twice, change the test. What we

10 changed were the values for the same tests. The test has not changed.

11 Suchey Brooks is Suchey Brooks. It's a six-phase system by which you

12 observe a number of characteristics per phase on the pubic symphysis.

13 What changes is what phase one means in the Balkans and what phase

14 one means in the U.S. That is what changes. So it is the same

15 technique.

16 Q. Now, you've mentioned that there has been further research. Is

17 that on a Balkan-specific population that is post-1999?

18 A. It is, yes. But it is not post- -- what is post-1999, the sample

19 or the research?

20 Q. The research.

21 A. Yeah, the research, yes. As a matter of fact, there is a series

22 of -- of papers that are under peer review at the moment in the Journal of

23 Forensic Sciences. It is 10 papers that are reformulating the Suchey

24 Brooks phases and issuing and loss of phases for the ribs in a Balkan

25 population sample. Yes, that is correct.

Page 8852

1 Q. And is any of this research, research you have carried out

2 yourself?

3 A. I could say yes, I am part of that research as a whole, yes, but

4 I have not individually carried out the research of all those things,

5 no.

6 Q. Does the research involve the analysis of some of the bones and

7 body parts we are talking about?

8 A. Yes, they do. Yes.

9 Q. And is it research that you have initiated?

10 A. It is research that I have, let's say, devised, if you -- if you

11 wish to use that term, yes.

12 Q. Yes. And what was the purpose of that?

13 A. Exactly the type of discussion we are having today. Meaning the

14 relevancy of age standards for the population we are working. In other

15 words, whenever you work in a specific place in a country in a region, you

16 will use whatever you have at hand. But you know that the best thing you

17 can have is to have standards that reflect that specific population you

18 are working with.

19 So we knew that all we had at the time, and for years, was what

20 was there, you know, set up in North America, whatever. But there was

21 something needed actually for the types of populations we were working

22 with. So these new standards hopefully will assist in the age

23 determination of, I mean, thousands of our victims of the war, yes.

24 Q. And would no doubt have assisted you, had you had it available in

25 1999 to 2001?

Page 8853

1 A. Most definitely, yes. Certainly.

2 Q. Thank you. I want to move on to age groupings now. I think I've

3 understood you correctly that no attempt was made by you or your team, and

4 I am dealing specifically with the sites that were in control of, to place

5 precise ages on body parts as opposed to placing them in an age group, was

6 it?

7 A. Every body or body part was placed in an age range. Not even a

8 complete body was placed in a specific pin-point age. That doesn't work.

9 I mean, as I said before, you will not be able, when determining

10 biological age, to say this person is 24 and a half. You can't. So

11 everything, body parts and bodies will be placed in age ranges.

12 The difference is that when you have obviously as I said a hand

13 for example, and everything is fused, you will say, well, it is an adult

14 and will be no even age attached to it, it will be, say, 25 plus. That is

15 a statement, just to say it's an adult, I cannot say more about it.

16 Obviously in another individual, you would say, this person is between 18

17 and 24 based on A, B, C, D, but this person still will be fit into an age

18 interval later because, see, we're talking about hundreds of thousands of

19 cases. I mean you have to -- you have to present them in some fashion. I

20 mean, you cannot really list every single individual, you would go through

21 years doing that.

22 Q. The age groupings used by you were rather different from those

23 used by Mr. Haglund, weren't they?

24 A. Do you have anything on Haglund's age groupings? I mean on the

25 top of my head, I cannot recall.

Page 8854

1 Q. Well, we can come to it later but I will put it to you now. If

2 you don't know the answer, I will wait until we can get it up on

3 screen.

4 A. Please.

5 Q. I suggest to you that they were and that in itself is

6 unsystematic, isn't it?

7 A. I will keep my question [sic] when you show me the paper, and then

8 I can reply.

9 Q. I perfectly respect you for that.

10 A. Thank you.

11 Q. The page that we still have on screen under age estimation,

12 Mr. Haglund suggests that each age grouping, the minimum and maximum age

13 are equal to minus one, plus one, standard error. Would you agree with

14 that?

15 A. Where are you looking sorry.

16 Q. It's the second paragraph under age estimation.

17 A. Well, yeah. I mean we can go on to -- we can elaborate this a bit

18 more.

19 Q. Well, I want to be clear.

20 A. Yes, please.

21 Q. Do you agree that the age groupings that you used are subject to a

22 minus one, plus one standard error at the minimum and maximum age

23 parameters?

24 A. No, I would say I would be using two. I would be using, I mean,

25 two standard deviations that more or less tends to be placing your result

Page 8855

1 at the 95 per cent confidence interval, more or less.

2 Q. Thank you very much. I mean, I want to be clear about this. Are

3 you saying that your age groupings are subject to a minus two/plus two

4 error?

5 A. Yes. We have much more of a -- generous intervals, if you wish,

6 yes.

7 Q. Well, I don't want to -- there to be any mystery about this,

8 perhaps you better put P0477 at page 8 into e-court, please. And the ERN

9 number at the top of the page is 0348-9051. And it certainly shouldn't be

10 a newspaper article. The Prosecution Exhibit Number is 0477, or 00477 --

11 oh, I'm sorry. Let me just check that. Sorry. It's 02477. My mistake.

12 There really is no point in having the translated version of this on the

13 screen. We might as well just have one, it's only a list. Can we go

14 forward one page? That's actually page 7, I want page 8. It's probably a

15 page ahead in B/C/S, which is what we've got on screen.

16 Mr. Baraybar, it's probably easier for you just to turn to page 8

17 of your report so you can see it in front of you. I dare say you already

18 have.

19 Now, here we see the age groupings that you employed and there are

20 four of them, aren't there? There is eight to 12, 13 to 17, 15 to 24, and

21 over 25?

22 A. Yes.

23 Q. Now, just to be clear, in your last answer, are you conceding that

24 the plus or minus error level should mean that those groups read six to

25 14, 11 to 19, 13 to 26, and 23 plus?

Page 8856

1 A. No. Because I could put it to you as well that they could read 10

2 plus minus two, or 15 plus minus two, et cetera. The point -- we have to

3 be very careful with the issue of confidence intervals and standard

4 deviation. Remember that if I -- I have given you an answer regarding

5 some deviation and using two standard deviations to be generous, in terms

6 of the interval I am making. I am not, however, calculating statistically

7 a standard deviation or a mean for a specific estimate I am -- I am doing.

8 Okay.

9 So the answer I have given you is based first on Haglund's report

10 of the plus/minus one side deviation, whatever. But I mean, that is a way

11 to put it. I mean, I would not really concentrate on standard deviation

12 as such because we are not calculating standard deviations per estimate

13 per case. So it's just a -- a type of warning because then we're talking

14 about completely two different things. I don't know if that is clear.

15 Q. Well, actually, it's not. I don't understand what you're saying.

16 I thought in answer to the question earlier, did you agree with

17 Mr. Haglund's assertion that the age groupings were subject to a plus

18 one/minus one error, at the minimum and maximum age, I thought you said

19 no, it should be two.

20 A. What I said is the following: In statistical terms, when you use

21 two standard deviations as a norm, you are approaching the 95 per cent

22 confidence interval. That is the first statement.

23 The second statement is the following: If Haglund is saying that

24 he estimating one standard deviation above and on top of a mean, my

25 interpretation of that is it -- it is more a wording because I do not see

Page 8857

1 how, okay, you will be able to estimate a standard deviation for an

2 estimate based on a range.

3 Now, what I have said is that we were using the equivalent, there

4 would be two standard deviations. What I am trying to say is, we have

5 created, and I say that, more generous ranges to be as inclusive as

6 possible, regarding the ages that have been derived from the standards we

7 are using. But we are not doing a mathematical calculation per case to

8 say, okay, you know, it is 17.5 plus minus 2.8, that is the standard

9 deviation because there is no way to do that.

10 Q. I just want to come back to you on that. You are suggesting, are

11 you, that you have created more generous ranges than Dr. Bill Haglund?

12 A. Yes.

13 Q. We might have to come back to that in minute.

14 A. Mm-hmm.

15 Q. But anyway, I want to come back to something else, and to that end

16 I would like to -- you to have a look at page 6 of your report. It's the

17 same exhibit number we just need to go back two pages in the English and

18 in the B/C/S. And I want to -- I want you to concentrate really on the

19 last paragraph under the heading "age."

20 Now, in pretty much the last sentence of that section you

21 say, "Remains of individuals falling in this category," that's the eight

22 to 12 year-old category, "are represented primarily by long bones of small

23 size with unfused epiphysis." I can't say that word. "There is bound to

24 be some overlap between those individuals at the end of the first and

25 fourth and the beginning of the second." You stand by that?

Page 8858

1 A. Yes.

2 Q. Is that another way of saying that we cannot be sure that any body

3 part assessed is being -- eight to 12 years of age is not properly placed

4 in the next group up?

5 A. That is correct. But let me interject one thing here, because I

6 understand -- I think I understand where the confusion may lie. There are

7 two different things, we are talking about two different things here. The

8 age intervals that I have used for reporting, okay, are one thing. The

9 age interval given to a specific individual in the autopsy report is

10 something else. In other words, I am not aging everybody as being eight

11 to 12 or 13 to whatever. I mean, it is not working that way. Having the

12 thousands of cases with specific ages, could be, let's say, 17 to -- to

13 21, you know, where will you put it? Okay you could put it in the 15 to

14 24. That there would be a chance that this individual was actually 16 and

15 a half, and they should be placed in the other category. That is totally

16 possible.

17 And primarily, when you talk about young people, and even if you

18 have only a long bone or whatever, that is completely possible. It is

19 definitely possible. But do remember, you can use certain standards to

20 calculate, for example, the length of a bone, that it have everything

21 fused. Okay, let's say you have the femur and everything unfused, so you

22 know that the epiphyseal is unfused and [indiscernible] fused, and you can

23 measure that bone and get an idea, this person may be between so and so

24 years. Now that -- that specific individual have a growing disorder, and

25 was really older but looked younger, yes, it is possible. It is

Page 8859

1 completely possible.

2 So to answer your question, yes. I mean, totally. I mean, I'm

3 not denying that.

4 Q. Thank you. I just want to be clear about where I'm going with

5 this. We are in a criminal court here, and I'm really asking you whether

6 we can be sure of the ages placed upon some of these bones and you seem to

7 agree with me that if a bone is aged between eight and 12 we cannot be

8 sure that it is not properly placed in the next category up. You agree

9 with that?

10 A. Yes, but -- just like leave it for the record again.

11 JUDGE AGIUS: I think the witness has explained it sufficiently.

12 THE WITNESS: Yes. Thank you, Your Honour.


14 Q. Now, even allowing for whatever your evidence is about, as it

15 were, margins for error at the edges of the groupings, the next two groups

16 up, that's 13 to 17 and 15 to 24, have an express overlap, don't they?

17 A. Yes, they do.

18 Q. And so it must necessarily be the case that we can never be sure

19 as to which of those two groups any particular body or body part falls

20 into. And in particular I'm think of body parts.

21 A. Certainly. So the safest way to put it would be that this body or

22 body parts will fall into the interval 13 to 24, because you cannot

23 differentiate whether they belong to the first segment or the second

24 segment or some interval.

25 Q. But, of course, you haven't got a 13 to 24 grouping, you've got a

Page 8860

1 13 to 17, and a 15 to 24?

2 A. That's correct. But if we go back to -- and I'm going look for

3 one -- all the reports here. Remember that the age intervals were

4 constructed to fit data into them. Doesn't mean that this interval we

5 have constructed to age people. Okay? People were aged with the

6 techniques we have already mentioned and that.

7 Now, if we have a look at for example one of the reports of 8th of

8 September -- 8th of December, 1999, called Report of Anthropologist's

9 Examination of Human Remains from Eastern Bosnia in 1999, you will see

10 there that we have a category of 13 to 24. So you would ask me now most

11 likely why I have changed it then later. Because later we were trying --

12 Q. You were the one who used the word "systematic." Yes, I would.

13 A. If you would, then, if I may just answer the question straight

14 out. Much later, meaning this last report from 2004, we have to pull out

15 all the information we had at the time. 1996 included with all the

16 differences we have seen and everything. So in order to try to fit all

17 that into some sensical order, we have created those categories. But, I

18 mean, I'm the first one to admit that, yes, there is overlap. So -- but

19 not because there is overlap, it changes -- I mean, the -- the substance

20 of it, is what I'm trying to say.

21 Q. I'm going to finish this by just asking you whether you would

22 similarly concede that there is the possibility for substantial overlap

23 between the 15 to 24 group and the 25 plus group?

24 A. I do not agree. Because the hallmark of the 25 plus is exactly to

25 be an adult. To have nothing in fusion, to have nothing in between,

Page 8861

1 nothing in sort of growing terms or whatever. It's just a complete, fully

2 ossified, fused bone. There's nothing young about it, if you wish. I'm

3 talking in very anthropological jargon at the moment, but I mean, in

4 forensic anthropology or physical anthropology, you can actually very

5 easily see if one person is, we say, is on the young end or on the adult

6 end. Now, this person could be 25 or could be 35. I mean, that's another

7 matter. I mean, many of the people in this courtroom, I mean, could look

8 younger or older. Skeletally, maybe we are all the same. And it is

9 extremely possible. I mean ...

10 Q. Thank you. Can we move on to the minimum number of individuals,

11 please. And I only want to deal, to start off with, the exhumations you

12 were in charge of. I've asked this question in a different form, but you

13 should be more able to answer it this time, which is: How many complete

14 bodies did you exhume?

15 A. Well, we can go back to my reports. I would not be able to tell

16 you off the top of my head, certainly, how many there were, but if you

17 allow me for a moment, I will look for the reports from 1999.

18 Q. Please feel free.

19 A. Okay. There are several. I have a report here from 23rd of

20 November, 2001. Report and excavation of Glogova 2, from 1999 to 2001.

21 Well, in this report when we referred to Glogova 2, I say -- I use a

22 minimum number of individuals, so I do not use the term complete bodies.

23 On -- when use GL03, we said that we have found the remains of at least 11

24 bodies, and, if I recall well, these were the bodies left behind after

25 robbing of the grave.

Page 8862

1 We move to GL05. We have 73 complete or almost complete bodies

2 and a number of body parts. GL07 was also robbed. We have 20 complete or

3 almost complete bodies and a number of body parts and so on.

4 I mean, I could add them up if you wish, but, I mean, it would

5 take me a bit of a while.

6 Q. There may be a way we can deal with that without wasting your

7 time.

8 A. Sure.

9 Q. But thus far, on my reckoning, you've got to 104?

10 A. I have not added them up now, but I mean I would take your word

11 for it.

12 Q. Of course. Now, what records do you have of which parts, if any,

13 were missing from those bodies?

14 A. Well, I don't have any I record with me here, but those who

15 carried out the anthropology examination at the mortuary would have

16 complete forms indicating a skeletal inventory form. We have very

17 complete skeletal inventory form where you count the finger bones or

18 the feet of the hand to say how many are present and missing and so on.

19 Q. What correlation was ever made between bones missing from bodies

20 at sites you exhumed with bones used to calculate the minimum number of

21 individuals?

22 A. Correlate such as what? Whether one hand found in one site will

23 fit the arm of somebody else in another grave?

24 Q. That's the -- that's the net effect of it, but yes. What records

25 were kept of what bones were missing, did it -- did it particularise or --

Page 8863

1 whether they were left or right?

2 A. Of course. Inventory forms are actually inventory. So you would

3 pin-point what bone is it, what part of the bone is missing, if it's left

4 or right, yes, you would.

5 THE INTERPRETER: Please pause between question and answer for the

6 interpreters. Thank you.


8 Q. And was that information conveyed to any anthropologist who was

9 carrying out a minimum-number-of-individuals calculation?

10 A. The anthropologist in question calculating the MNI would be me,

11 and the answer would be yes, otherwise I would not have been able to

12 calculate the MNI. I mean, that is actually the data I would use to

13 calculate the MNI. This very long and boring Excel spread sheets with

14 the information regarding what part of the bone is missing, what is the

15 bone most -- let's say, popular in that assemblage to be used for

16 counting.

17 Q. Did the pathologist's report specify whether the bones missing

18 from complete bodies were left or right bones?

19 A. The pathologist. I do not know, to tell the truth. Maybe, maybe

20 they did. But, I mean, it's like I would not -- and please do not take

21 this in any -- any bad way, but I would not be, let's say, using the

22 pathologist's report to calculate the MNI. I would be using

23 anthropologist's information.

24 Q. Now, I just want to, please, go back to P02477. And we'll have a

25 look at page 7, please. And I want to ask you what is the supporting

Page 8864

1 material, what is the evidence that underlies the figures that we see in

2 the column headed, "MNI"?

3 A. The individual -- I mean the logs, I would call them logs of data

4 collected at the mortuary. So this spread sheets, I was being mentioning,

5 meaning the same information the way that was on paper that has been put

6 into Excel spread sheets with the data. On -- sorry, on type of bone,

7 left or right, proximal, distal, et cetera.

8 Q. And in relation to the sites you didn't excavate, that is also

9 true, is it?

10 A. This represents every single piece of information we could get

11 hold of, yes. Whether I dug it or not, that is what it represents.

12 Q. I'm sorry, I want to press you on this. In relation to sites you

13 didn't personally excavate or take charge of the excavation of -- the

14 figures in there comes from -- not from other people's reports but from

15 information you derived from the mortuary. Is that right?

16 A. Yes. Whatever was done in the mortuary, according to the -- I

17 mean, ways and protocols we have already established is reflected in

18 this -- in this work, yes.

19 Q. All right. Now, you've had this opportunity once, but just so we

20 can focus on it, I'd like you just briefly, in a sentence or two, to

21 describe the basis for the calculation of the minimum number of

22 individuals.

23 A. Well, I will try my best. It would not be two phrases but

24 slightly longer. But I will try my best.

25 The minimal number of individuals, as definition is a calculation

Page 8865

1 to state how many -- at least how many people would have been necessary to

2 account for the bones we have in an assemblage. Assemblage meaning the

3 grave, in this case. If a body has 206 bones and we have five people,

4 these articulated in each bone possibly, we have, like, 1.030 bones. You

5 need to find out from all these 1.030 bones, how many people you have in

6 there. The way to calculate the MNI would be to count. And the simplest

7 way to calculate the MNI, it's more complicated than that, but I will just

8 give you the easy answer and we can go later with your questions on to

9 more sophisticated aspects of it, would be to count one of a pair or a

10 unique bone. For example, everybody has only one first cervical

11 vertebrae, the atlas, right, so if you count five at least, you have at

12 least five people. Or one bone of a pair. If you have a right and left

13 femur, you will take the right femur only. Not the right and the left,

14 but only the right.

15 Now, when bones are fragmented, you have to even be more

16 specific. If you take, for example, long bones you have to take only

17 that specific portion of the bone that cannot be repeated anywhere else.

18 So for the proximal left femur, fine.

19 But there are other additions to this, as I already said at the

20 beginning. During my examination, as a matter of fact. And things to do

21 with age. You may have in the same assemblage bones that reflect

22 something different than what has been established in your calculation.

23 So you have been counting this femur, I told you this left proximal femur,

24 but then you find a piece of -- I don't know, a tooth, okay, a tooth, that

25 is a second molar that has no roots, and you know that this person may be

Page 8866

1 somebody about 12 years of age, more or less, you know, give and take a

2 couple of years. But that person is never presented by age by the femur

3 you just counted. It happened to be adult. So you have to add that tooth

4 as another individual to your calculation. Although you count in there

5 femur and a tooth and you tell me, well, that's not the same thing. But

6 you know that the femur do not represent the individual of the tooth.

7 Because all your femur are as a matter of fact fused and adult in the way

8 I have already explained.

9 We can go on with our levels of complexity, if you wish, but, I

10 mean, you tell me if you are satisfied.

11 Q. No, no. But critical to this technique is age determination,

12 isn't it? It's -- the determination of age is the way you say you can

13 rule out the possibility of double accounting?

14 A. Most definitely. Most definitely. But what I have given you are

15 extreme examples of this. So you may indeed, I know -- I mean, I know

16 what you're trying to tell me; sure, yeah, of course. I mean, age

17 determination is paramount to this. But by the same token, the -- the MNI

18 is very -- is calculated on very clear, again, parameters. So what I told

19 you is that you would be adding individuals only in cases in which it is

20 so obvious that these people are never presented in your assemblage. So

21 morphologically obvious, so obvious to anybody. It is not, you know, it

22 has to go through your eyes. It's not something that is not only on

23 paper, it's something that -- for example, let's just take a very

24 particular example. I have an assemblage, a grave and I have in the grave

25 25 femur, whatever. According to the description, all these femur are

Page 8867

1 indeed, you know, fused, adult individuals, fine. And then I find an arm

2 bone, a humerus that happened to be a -- 15 millimetres long. I do know

3 then 100 per cent that is it is highly unlikely that somebody would have

4 an adult leg and then the arm of a child. I mean, it is simply

5 impossible. That is impossible. Therefore that would be the only way to

6 add that person there. But I would not be adding people so freely because

7 the way I did my -- or this bone here is, like, young-looking, whatever,

8 let's just it up as another individual, because then I will be

9 overestimating. It will not be a minimal number. It will be a -- I don't

10 know what name we can come up with. I mean, it would not be a minimal

11 number. Minimal number is a very conservative estimate. It is very

12 conservative. You -- it is an underestimate, not an overestimate.

13 Q. Can we go over to page 8, please, on this same document? Now,

14 you've already dealt with this. You told us we can't be sure that anybody

15 in the eight to 12 group is not properly placed in the 13 to 17 group. So

16 looking at that chart, if we go down to Cancari Road 3, do you see that?

17 A. Yes.

18 Q. It would be your evidence, wouldn't it, that the two that we see

19 in that column we cannot be sure ought not to be body parts that were

20 properly classified as 13 to 17?

21 A. The way I would phrase it is the following: Is it possible that

22 the individuals in the eight to 12 category could actually be part of the

23 13 to 17 category? Yes, it is possible. The answer is yes.

24 Q. Thank you. Now, can we go up to, say, the top entry. Cerska.

25 And we'll look at the next box. And I'm not going to go through the whole

Page 8868

1 thing but let's have a look. We've got nine people there aged 13 to 17.

2 It's equally possible, isn't it, that all nine of those are aged 15 -- are

3 aged 14 and 15?

4 A. Well, you -- in this example, I think it is reverse because in

5 Cerska and like in all the other sites they were complete bodies. So in

6 Cerska we were able to do an age determination with much more informed

7 than in -- in Cancari Road which is a secondary site with body parts and

8 all the rest of it. So I would say in the specific case of Cerska, it is

9 more unlikely that that would be the case.

10 Now, is it possible? Yeah. Everything is possible. 50/50, you

11 know. Possibility is different.

12 Q. So again your evidence would be that we can't be sure that those

13 placed in the 13 to 17 category were not properly placed in the 15 to 24

14 category?

15 A. Regarding Cerska?

16 Q. Well, I'll pick another site if we're going to get site

17 specific.

18 A. Please do so, because. I mean, it is a site-specific matter

19 here.

20 Q. Okay. Let's go to Cancari Road 12.

21 A. Well, as I told you already for that site, it's a secondary site,

22 therefore the answer is yes. I mean, the more fragmentary the remains

23 are, you have the possibility, yes, that the one individual from the eight

24 to 12 could be placed in the 13 to 17 or the 13 to 17 to the 15 to 24.

25 Yes, it is possible.

Page 8869

1 Q. But Mr. Baraybar, there is an express overlap between those.

2 You've made a group of 15 to 24 which includes 15, 16, and 17-year-olds,

3 all of whom appear in the lower group. You must admit of the possibility

4 that in every single site there is possibility of double accounting of

5 these body parts?

6 A. Not double accounting.

7 Q. I'm sorry, that's my phrase.

8 A. Right, but it is -- it is incorrect. I am correcting it. It is a

9 matter of accounting. Accounting is counting things. That -- this is

10 attribution, this is distribution. It is whether this individual is on

11 this age range or the other. It is possible? Yes, it is possible. But

12 why the overlap? Because we are talking about biological age and it

13 doesn't exist, for example, a bone that fuses with the other at age 16.5

14 in every possible individual. Of course not. That doesn't happen.

15 So the overlap is express. So in answer to your question, yes,

16 there is bound to be overlap. Yes, there is bound to be swapping, let's

17 say, between categories, you know. This is primarily a way to express a

18 distribution. But what is something completely different is the issue of

19 accounting. I mean, accounting is not the distribution of individuals

20 with a given age range. For example, I give you a list of people. What

21 age range is it? Okay. Show me in the best possible way you can. You

22 will come up with a graph, with a column chart, with a -- whatever.

23 But the accounting is another matter. We can go on the

24 accounting. And I understand that your fear is that because the age tends

25 to be overlapped, you may be counting twice bones. No. That is not the

Page 8870

1 case. Because counting bones is another matter.

2 Q. I'm simply sorry, I don't understand that. How, if you can't be

3 sure whether one bone is not the bone of a 16-year-old, can you be sure

4 that that bone is not placed -- is not -- as it were, not married up with

5 another bone in another category? You simply can't be sure of that, can

6 you?

7 A. No, I do not agree with you. Because the fact of the matter is

8 the following: You use first the most common bone you have in the

9 assemblage, okay. That is your first -- I mean assumption. You're going

10 to take the left proximal femur, fine. Within the left proximal femur,

11 the easiest group you will get to, say, rid of would be the adults, okay,

12 the non-fusing, non-growing, nothing. I mean, you know these people are

13 full adult bones with nothing missing. That is what you have. So you've

14 got 25 cases.

15 Then comes the more -- the finer, I mean, things. In other words,

16 any bone, any single bone be the same type of bone or another bone that

17 show an express juvenile trait that cannot be covered by the bones you

18 have already counted, is one to be added. But there is no double counting

19 there. It is not possible to double count. How would you? I mean, I

20 still -- I mean, maybe it's me who doesn't understand, but it is not

21 possible.

22 Q. Well, let's leave aside your site-specific observations about

23 Cerska. It's perfectly possible, isn't it, that at Nova Kasaba 99 all

24 five of the people listed under the 13 to 17-year-old category were aged

25 15, 16, or 17?

Page 8871

1 JUDGE AGIUS: Just one moment.

2 Yes, Mr. McCloskey.

3 MR. McCLOSKEY: Objection to the form of the question.

4 "Possible," in this context because so much is possible that I don't think

5 that that moves the ball ahead.

6 MR. HAYNES: Well, with the greatest of respect, this is a

7 criminal court where the burden of proof is on the Prosecution to prove

8 matters beyond a reasonable doubt. And a possibility shifts that

9 burden.

10 JUDGE AGIUS: Yes, Mr. McCloskey.

11 MR. McCLOSKEY: I have been in criminal courts my whole life and

12 this question of possibilities is -- is rarely allowed because most judges

13 will say that most anything is possible. We don't do that objection here

14 because it is a freer atmosphere, but I think at this point, at this time

15 of the day, this is not moving the ball ahead.

16 MR. HAYNES: I'll move on --

17 JUDGE AGIUS: All right. Okay. Thank you.

18 MR. HAYNES: -- because we're running out of time.

19 Q. Now, let's move on. The site where the age-specific figures are

20 entered it's probably refreshed your memory, are all the sites which you

21 yourself exhumed.

22 A. Are you referring to page 8?

23 Q. Yes, page 8.

24 A. Well, no, these were sited exhumed by ICTY. Some of them by me,

25 some of them by Wright, some of them about Haglund, some of them about

Page 8872

1 Peccerelli, I guess. Yeah, as well. By everybody, pretty much.

2 Q. No, you haven't understood the question.

3 A. I did not. Please rephrase it.

4 Q. There is a list of all the sites exhumed by the ICTY. Some of

5 them have a MMNI number in the -- next to one left-hand column?

6 A. Yes.

7 Q. But not all of them have entries in the columns eight to 12, 13 to

8 17, 15 to 24, and 25 plus.

9 A. Right. But maybe it is the time to explain what the MMNI is.

10 Since we have --

11 Q. I don't think so. But, please, we've got five minutes to the

12 break or a few minutes to the break. I want to carry on.

13 MR. McCLOSKEY: Objection, it is arguing with the witness who is

14 trying to explain.

15 JUDGE AGIUS: You are perfectly -- perfectly right. I know that

16 we are running out of time. It's true. But on the other hand he was

17 pointing to something that, in his mind, obviously, is very much relevant

18 in trying to answer your question. So please let him. I know that it is

19 defined in his report. We have an explanation what it is, but he is

20 referring to a particular chart and I think he needs to go there.

21 So go ahead.

22 THE WITNESS: Thank you, Your Honour.

23 We have not touched upon what the MMNI is, and I think it is

24 extremely relevant because otherwise we are going to cause a lot of

25 confusion in this discussion. The point is that when I try to merge, to

Page 8873

1 come up with an estimate, say -- okay. Since -- 1996 to 2001, how many

2 people more or less have been, I mean, accounted for or remains have been

3 dug. The issue becomes extremely complicated because, as I said, it is

4 not a matter of just counting the MNI of each site. Then we would have a

5 very charge number. It would be very easy, as a matter of fact, to count

6 the MNI of each site, and we can say, okay this plus that plus that, and

7 then we have X number. It doesn't make any sense. What we need to do

8 first was to merge primary sites and secondary sites together. And then

9 it was to calculate a minimal number of individuals based on all those

10 sites to find a common element to all of those sites. By doing this, we

11 would be making a lot of people invisible. Why invisible? Because, as I

12 said before, some sites would combine, for example, the femur and would

13 combine all the bones of other ages. Okay. But if we were looking for a

14 common denominator to all the sites, we need to almost try to limit that

15 to a maximum.

16 And that is why we come up with this figure that you can see in

17 page 7 of the same report. And that is that if we were to simply

18 accounting the MNI of each site, we would come with a number of 2.691. As

19 a matter of fact, by eliminating these possible, let's say, duplicates

20 that would inflate the figure, we could come with the number of 2.541. So

21 2.541 is an ultraconservative approach to explain how many bodies or

22 people - bodies should not be the term - people are accounted for by the

23 remains recovered in all the exhumations between 1999 -- 1996 and 2001.

24 I mean, I don't know whether that is clear, but that is extremely

25 important.

Page 8874

1 And that is why you will find a lot of missing slots in specific

2 age categories. Not all the age categories were represented there. And

3 what you have in page 8, as a matter of fact, is already we already

4 merging existing data, the data that exists of course is not in the

5 report, or the report will be a thousand pages with all the spread sheets.

6 We are merging sites that are linked together, primary and secondary

7 sites. So all the Glogova sites and Zeleni Jadar were all the same

8 thing. People were put in a hole, then taken to another hole, but it is

9 all the same bodies. So you -- you are not counting the bodies taken from

10 the primary site on top of the ones of the primary site. Then you would

11 be making up numbers.

12 So what you have here is just a condensed merging of all the

13 possible sites that are related. And by doing that I have omitted to put

14 the specific figures per site. They do exist, of course. They are in the

15 logs in the raw data I have used for the calculation. It does exist; it

16 is not -- I have not made it up.

17 Q. I'm sorry, how many --

18 THE INTERPRETER: Could you please slow down? Thank you. For the

19 interpreters.

20 MR. HAYNES: Yes.

21 Q. How many individuals were, in fact, exhumed at Hodzici Road 5?

22 A. I do not have a data with me here. I mean --

23 Q. You do. It's on page 7.

24 A. Oh, sorry. Sorry. That was my mistake. Yes, I do have it. 57.

25 But Hodzici Road has 57 complete bodies, if I am not mistaken. Is a site

Page 8875

1 that have almost complete bodies or complete bodies. 57, yes.

2 Q. How many of them are age eight to 12?

3 A. That data I would not have here. I mean, that data does exist

4 again but it is not -- hold on a second. Maybe I do have it in one of the

5 previous reports. Then we can go back to the reports of 1999 and so on.

6 Should be there. If you give me a moment, I will look for it.

7 Q. Perhaps you can explain to me --

8 MR. MEEK: Excuse me. I apologise. I hate to intervene but we've

9 two English speakers and I keep seeing the interpreters asking to slow

10 down a little bit. I'm having a hard time following.

11 JUDGE AGIUS: I agree with you, Mr. Meek.

12 What I suggest, Mr. Haynes, if you agree, is to have the break

13 now. If we have the time -- the chance to refer to the other previous

14 report that he has just hinted at. And we will reconvene in 25 minutes'

15 time.

16 MR. HAYNES: Thank you.

17 JUDGE AGIUS: Thank you.

18 --- Recess taken at 5.45 p.m.

19 --- On resuming at 6.12 p.m.

20 JUDGE AGIUS: Yes, Mr. Haynes.


22 Q. Mr. Baraybar, I'm really I'm going to do my level best to make

23 sure we finish with you today so that you can leave. So I've shortened

24 things a little bit in that endeavour.

25 But I'm going to look at this from a different angle, if I may.

Page 8876

1 Is it your understanding that Dr. Haglund carried out a similar

2 calculation to the minimum number of individuals to the one you have

3 described, namely one which depends upon the counting of unique bones or

4 one bone of a pair?

5 A. Yes, it is.

6 Q. Well, I'm going to ask you, please, to have a look at our P00622.

7 And it's page 62 of that document, and this is a report of Mr. Haglund

8 about the exhumations at Branjevo military farm or Pilica.

9 MR. McCLOSKEY: Excuse me, usher, could I provide the witness a

10 hard copy.

11 JUDGE AGIUS: I think that will speed up matters.

12 MR. McCLOSKEY: I can't read that. I don't know about the

13 witness.

14 THE WITNESS: Thank you.


16 Q. Perhaps the easiest way is if I read it aloud slowly in English so

17 that it be translated. It says, "The following section explains the

18 methodology followed to estimate the minimum number of missing and/or

19 unmatched body parts recovered from the Pilica grave site. For this

20 purpose the presence of the following body parts was documented for all

21 collection units: Crania, mandibles, necks, right and left denominant

22 bones, upper and lower trunks, right and left arms, forearms and hands,

23 and right and left legs, lower legs and feet.

24 "In order to make this estimate it was necessary to standardise

25 the data to the category of body part or limb. This process has

Page 8877

1 introduced a factor of error in the final estimate of limbs with more than

2 one bone, potentially inflating representation of forearms and lower

3 legs. For example, one right radius and one right ulna were each

4 considered to be two right forearms, although they could have been from

5 the same individual. The estimate of crania, upper and lower thoraxes,

6 mandibles, upper arms and legs, however, reflects the actual number of

7 body parts at the site."

8 "This method of calculation was necessary since body part

9 inventories from two different sources were used. The first source was

10 the list of missing body parts recorded by the pathologists in the autopsy

11 report; the second from inventories of unassociated remains done by the

12 anthropologists. In the former, there were different degrees of

13 specification as to what bones were missing. The pathologists'

14 description often referred to missing limbs without indicating side of the

15 limb or whether the remains of at least one bone in that limb were present

16 or not. Inventories of skeletal elements or body parts upon which these

17 calculations of the minimum number --" could we move it up, please?

18 "-- of individuals were based or presented in appendix E. The results of

19 this analysis are now shown in table 8."

20 Can we go over the page?

21 THE INTERPRETER: Please slow down when reading for the sake of

22 the interpreters. Thank you.

23 MR. HAYNES: I'm very sorry.

24 Q. There is table 8 indicating, as it were, a count of cranium,

25 mandible, neck, upper trunk, lower trunk, right innominate, left

Page 8878

1 innominate, right arm, left arm, right forearm, left forearm, right hand,

2 left hand, and right leg. And he goes on then to make a summary of body

3 parts missing.

4 That's not the same system you've described, is it?

5 A. Well, when reading it like this, no.

6 Q. And it's not age specific, is it?

7 A. It does not mention age, no. It's just counting -- counting

8 parts, that's correct.

9 Q. So would you agree that that's not the same method of calculating

10 the minimum number of individuals that you employed?

11 A. Yes, you are completely right. I would say it is not.

12 Q. Thank you very much. Now, I'm going to leave that there for just

13 a moment to address just a small mathematical matter on your page 8 table,

14 please, which is 02477. And I just want to look at the site listed at the

15 very top line, Cerska.

16 A. Mm-hmm.

17 Q. I wonder if you would be so good, please, as to total for me 9,

18 20, and 118?

19 A. It's like 148, isn't it?

20 Q. I think it's 147. So how is it that 150 appears?

21 A. If you see the little number 4 next to the Cerska, there is a

22 footnote that says, "Age data for three individuals missing."

23 Q. Right.

24 A. And this means that all these calculations here as they are

25 concerned the MNI or the MMNI, are not using Haglund's, the same

Page 8879

1 methodology, as I have just read it now, because, as I have told you, I

2 have not read his reports, I just used the raw data. So I have

3 recalculated, based on the raw data, these figures. That's why if there

4 is data missing, I cannot, I mean, explain why or how, but there is data

5 missing.

6 Q. I will give an opportunity to explain to us. Why, in relation to

7 I think 20 of the 30 sites, that are the subject of this investigation, we

8 have no data as to the ages of the body parts used to calculate the

9 minimum number of individuals?

10 A. What do you mean there is no data on the ages of body parts?

11 Q. [Microphone not activated]

12 THE INTERPRETER: Microphone, please.


14 Q. Why are the columns blank for the age groupings for Orahovac

15 Lazete 2A, Orahovac Lazete 2C, Orahovac Lazete 1, Hodzici Road 3, Hodzici

16 Road 5, et cetera.

17 A. Because, as I told I already, the data does exist, but this table

18 is only merging things. So, for example, to answer your question, we can

19 refer to a report of the 18th of June of 1999, okay. Where you can find

20 it's called anthropological examination of human remains from Eastern

21 Bosnia in 1998, where you will find the type of data you are referring to

22 per site. But per site. In this other table we have merged those sites.

23 So the data does exist, it is not simply depicted, not to have far too

24 many numbers in the table and make it more difficult to read. That's

25 simply why.

Page 8880

1 Q. That's your answer, is it?

2 A. Yes, it is.

3 Q. All right. Now, I just want to ask you a couple more things,

4 please, about Dr. Haglund. And I wonder if we could put into e-court,

5 please, P0611. And could we have page 43 of that document.

6 I don't expect you to remember this, but this is a report in

7 relation to the Cerska site which was exhumed between the 31st of July and

8 the 22nd of August of 1996. And really, all I want to focus your

9 attention on are the age groupings at figure 13.

10 A. Yes.

11 Q. And we can see that Mr. Haglund's age groupings are less than 20,

12 people in their 30s -- sorry, people in their 20s, people in their 30s,

13 people in their 40s. Could we just go down a bit on the English, please.

14 And people over the age of 50. Would you have said that they were wider

15 or narrower groupings than you used?

16 A. I would say that the 25 plus that I have is -- is more detailed in

17 this case. 26 to 35, for example. 36 to 45, 45 plus. But if I may just

18 comment, this -- but when seeing this I have -- I mean, I have an

19 explanation, I mean obviously Dr. Haglund will be the one explaining his

20 own report, but, I mean, my understanding is also very context based.

21 Let's just for a moment go back to 1996, from what I recall. When we

22 started the first site, Cerska, all the bodies were complete, 150 of them,

23 you know? Complete cadavers. With complete cadavers you can be as

24 complete and detailed as you can be. Having a whole cadaver you can have

25 different indicators and you can have different ways of separating,

Page 8881

1 creating age ranges. You know. But again don't lose sight of one thing.

2 When you see this pie chart, this is the way that Haglund is presenting

3 data that does exist in each autopsy report. This doesn't mean that all

4 the cases, I mean case-by-case where aged 16 to 25, maybe it was one

5 person 16 to 19, or 16 to 20s. It was fitted into that interval. So,

6 yes, it is a different way to present it, but maybe, you know, I'm

7 speculating there, it is also based on the fact that when we started work

8 in 1996, we were dealing with complete corpses and having that you can,

9 you know, have different degrees of accuracy in your age intervals, how

10 you present it. It's a possible. I mean, I don't know.

11 Q. I think you ought to have the opportunity to look at pages 34 and

12 35 of this report, please. [Microphone not activated].

13 These are remains covered -- recovered from Cerska. They're not

14 complete bodies, are they?

15 A. Well, what I see here, can I see the femur down there, figure 9?

16 No. I mean, I don't think that these -- the interpretation I think it

17 incorrect. I think that this is a case of somebody who has been shot

18 through the leg and maybe through the mandible. I mean, they are aspects

19 of the same body. Why they have taken pictures separately or not, I mean,

20 there is nothing I can answer, I mean, on behalf of anybody, but what I

21 see here is the case code is the same, CSK-52, and that we have a

22 fractured mandible and we have a fractured -- I mean, right femur. You

23 know, that's pretty much it. I mean, whether -- I mean, that's it. I

24 mean, just fractured bones from the same person.

25 Q. Now, I just want to move on to one last thing, and I need into

Page 8882

1 e-court, please, P00616 at page 41. Now, this is the report relating to

2 Lazete 2, which was excavated in September of 1996, going into October.

3 So commenced, as it were, immediately after Cerska, the report of which

4 we've just been looking at. And we can see now Mr. Haglund's age

5 groupings are 11 to 15, 16 to 25, 26 to 35, 36 to 45, 45 plus. And these

6 are the age groupings he says should be subject to a plus one/minus one

7 error count, as it were.

8 Again, would you say they were more specific groups than you used

9 or less specific?

10 A. Hold on a second. We are confusing two things here. Again, these

11 are the age groupings to fit data into. This is not the individual

12 estimates to which this plus minus one standard deviation as he mentioned

13 in the report are presented. I mean, they are two different things.

14 Okay. I mean, let's be very clear. I already explained you that, but

15 I'm repeating it here.

16 The issue of the standard deviation he mentioned whatever

17 regarding one -- the individual estimate is one thing. This is the

18 distribution of ages meaning the individual ages put into some kind of

19 thing to be -- to be -- to picture it, you know, to have like a normal

20 distribution, whatsoever. That's simply completely different.

21 This age ranges are -- yes, they are different. But at the same

22 time they are at -- at the same time they are comparable. By the same

23 token I would tell you that the -- the 25 below compares to the A to 25

24 category, we merge them all together. And the 25 plus encompasses the 26

25 to 45 plus. They are just different ways of expressing very much the same

Page 8883

1 thing, with a different degree of, let's say, accuracy or precision, in

2 this case. This looks more precise. But maybe depended also on the type

3 of body parts we are dealing with, in the completeness of the remains, a

4 number of factors.

5 What I do know is that from 1998 onwards, without -- specifically

6 1998, with such a volume, such an amount of body parts that, if I'm not

7 mistaken, at the mortuary at one point in time we had like over 5.000

8 cases, I mean cases, it could be a hand, a foot, a whatever. I mean,

9 therefore your level of accuracy and precision would be completely

10 different than this. That is, I mean, an educated opinion, what I'm

11 giving you, after the clarification I made.

12 Q. I really am doing my best to finish quickly and I've just got a

13 couple more questions about this.

14 This, of course, is a completely different set of age groupings

15 from that used by Mr. Haglund in the report he wrote in relation to

16 Cerska, isn't it, where he had under 20, 20s, 30s, 40s, and over 50s?

17 MR. McCLOSKEY: Objection, Your Honour. At this point we're

18 getting into reports he's not read and apples and oranges, and I think

19 Haglund is here for that. And I don't know where we're going with

20 questions like this.

21 MR. HAYNES: I can finish it off very quickly.

22 Q. Would you regard a change in the basis of, as it were, the

23 groupings you placed on bodies and body parts as being systematic?

24 A. I don't think I follow your question. I mean, could you rephrase

25 it, please?

Page 8884

1 Q. Yes. Wouldn't it be a good system for Mr. Haglund to have adopted

2 a consistent base of age groupings?

3 A. Well, I mean I can give you -- I can give you a personal opinion,

4 but that's just a matter of speculation. I mean, yes, everything -- I

5 mean would have been done, I mean, better, would have been good. But if

6 it's -- we really in the area of speculation. It is very conditional. I

7 mean, if so many other factors would be taken into account. That is --

8 yet again is a question you may pose to Dr. Haglund in person.

9 Q. Well, I'm posing it to you because, as you've agreed with me, age

10 determination and grouping of ages is very important for the whole

11 calculation. But I'm going leave it there. Thank you very much for

12 answering all my questions and I do hope you have a safe journey home.

13 A. Thank you.

14 JUDGE AGIUS: I thank you, Mr. Haynes.

15 Mr. Meek.

16 MR. MEEK: Thank you, Your Honour.

17 Cross-examination by Mr. Meek:

18 Q. Good afternoon, sir.

19 A. Good afternoon.

20 Q. Point of clarification. Earlier today you testified, and I can

21 get it real quick, that during your work in Srebrenica case in 1996 they

22 asked you what position you held, your answer was, "from a UN point of

23 view, I was a junior forensic anthropologist or forensic expert employed

24 by the Tribunal. There were two people of technical expertise at the

25 Tribunal at the time. It was Dr. Bill Haglund and myself.

Page 8885

1 Now, who -- both you and Haglund were junior forensic

2 anthropologists?

3 A. No, the seniority, I would say -- the seniority is reflected by

4 the type of post, I would say, that each of us had. Certainly I had a

5 junior post as concerned my -- my UN status, my -- my professional level,

6 if I be more precise. But to be even more precise, remember that in 1996,

7 technically, and I can speak for myself, again, I do not know the

8 contractual details of anything. I was employed by ICTR. I was on loan

9 to ICTY. So I was part of the ICTE [sic], the Arusha, the international

10 tribunal -- the other -- on the African side. There was -- paid by them

11 while working in the Balkans.

12 Q. So, sir, would it be a fair statement then that Haglund was the

13 senior advisor in the Srebrenica case?

14 A. Yes, he was the senior, yes.

15 Q. Okay. Now, after the end of 1997 or 1998, isn't it a fact that

16 the ICTY severed their connections with the group called Physicians for

17 Human Rights, which Haglund was a member of, and was -- when he was doing

18 this work as a senior forensic anthropologists?

19 A. It is my understanding that from 1997 onwards, the decision was

20 taken by the Tribunal to run its own operations, say, in-house, so that

21 would recruiting directly people, setting up the teams directly and not

22 through -- I mean, third parties like Physicians for Human Rights at that

23 time.

24 Q. Right. That was my next question: Once that relationship was

25 severed with the PHR, the ICTY did form their own in-house forensic team

Page 8886

1 and it was directed by you, correct?

2 A. I was a person who assembled the teams, but already in 1997 the --

3 Richard Wright at the time was employed under the same, I mean,

4 arrangement with a direct contract with the Tribunal as being the senior

5 archaeologist for the site, and there was also a chief pathologist

6 employed and I, as being the in-house forensic person, undertook the

7 position of chief anthropologist, I mean, at the mortuary at that time,

8 although I was working in the field or mortuary, depending where I was

9 needed pretty much, yes.

10 Q. Are you a member or have you ever been a member of the group PHR,

11 Physicians for Human Rights?

12 A. No, I have not.

13 Q. Are you a member of ABFA, I think -- I believe you know who --

14 what that is?

15 A. The American Board of Physical Anthropology of the American

16 Academy of Forensic Sciences?

17 Q. That's correct.

18 A. No, I'm not. I'm not -- I'm not American.

19 Q. And are you aware, sir, that the highest degree of accreditation

20 from that ABFA would be to be a diplomat?

21 A. Meaning -- rephrase the thing. In order to --

22 Q. You want me to rephrase it, sir?

23 A. I think I can answer your question, but let me rephrase the answer

24 I was thinking to give you. The American Academy of Forensic Sciences

25 have a board, the forensic anthropology board, the people take a board

Page 8887

1 exam for which you need to have a Ph.D. That's number one. It is a

2 qualification that is - I am not mistaken on a -- that one - taken by

3 North Americans, so for time being that I may be wrong, there is like 50

4 diplomats or maybe less, of which one is Canadian and the other ones are

5 of -- I mean U.S. nationality. So, yes, those are the requisites for --

6 for -- yes, for -- yes, you have to be pretty much from the ...

7 Q. And Mr. Baraybar, are you ware that Mr. Haglund is not a diplomat

8 of the American Board of Forensic Anthropology?

9 A. I am aware of that, yes.

10 Q. I noticed that -- I'm going to ask you a few questions about

11 colleagues of yours: But he is an American, correct, Haglund?

12 A. I guess so, yes.

13 Q. Sir, I just want to ask you a few questions. Do you know or have

14 you worked with a Tom -- Tom Grow, G-r-o-w, MD?

15 A. Now, we are getting to -- an orthopaedic surgeon, maybe? 1996,

16 you're talking about?

17 Q. Yes.

18 A. Yes.

19 Q. Practicing as an radiologist?

20 A. Yes, yes, yes.

21 Q. Do you know him very well?

22 A. No, I mean, I'm -- that's my own pre-history, in a way. That's 11

23 years back.

24 Q. We're going to have to slow down.

25 A. I guess so, yes.

Page 8888

1 Q. How about Patrick Myers, an archaeologist?

2 A. Patrick Myers, yes, I do remember very well. He was an

3 archaeologist, an American archaeologist, yes.

4 Q. Is he competent, sir?

5 A. He is very competent. I lost track of him long time ago.

6 Q. Okay. How about Dorothy Gallagher, another anthropologist?

7 A. Dorothy Gallagher was an anthropologist at Baton Rouge, could that

8 be? LSU maybe, Louisiana State University? I think she was a student of

9 Mary Mannheim. I mean, I -- that I don't recall. However she went there

10 as data -- as a data entry person. That is what I do recall. Yes. She

11 was not doing cases.

12 Q. And do you recall working with her back then in 1996?

13 A. She was a very nice person, but she was not doing cases. She was

14 there to type things.

15 Q. Thank you. Let me ask you about David del Pino, a Chilean

16 anthropologist?

17 A. Yes, David Pino, yes, I remember. I lost sight of him also in

18 those days, 1996 or something.

19 Q. Okay. And was he a competent anthropologist, sir?

20 A. He was all right.

21 Q. Did you have occasion to work with a John Gerns, G-e-r-n-s, he was

22 an administrator?

23 A. Yes.

24 Q. Was he competent, sir?

25 A. He is -- yes, I mean he -- again he was not an archaeologist or

Page 8889

1 anthropologist or anything of the kind. I think he is a former air force

2 medical examiner or something of the kind. I mean, I --

3 Q. Okay. Thank you, sir.

4 A. Thank you.

5 Q. Now, you wouldn't consider these people that I have just

6 mentioned to you to be like junior helpers in this project in 1996, would

7 you, sir?

8 A. Well, it all depends how -- I mean how we define them, really.

9 Helpers. Patrick Myers, for example, was a person that was not really

10 helping in the way I would understand it. Meaning helping would be an

11 assistant, somebody, you know, carrying things without any

12 responsibility. Patrick Myers was somebody who was actually working in

13 the hole, in the grave, and who was extremely competent, and I would not

14 see him as a helper. I would see Dorothy Gallagher as a helper, maybe, as

15 somebody typing things.

16 Q. I thank you, sir, and I appreciate that. So besides -- besides

17 Dorothy Gallagher, the rest you would categorise just like you did Patrick

18 Myers, correct?

19 A. Yes. I mean, remember there were people coming from different

20 backgrounds but they had different experience back in their own countries

21 but I think they were relevant, in a way, to -- to what was happening.

22 Q. Okay. Now, you know Fredy Peccerelli, do you not?

23 A. Yes, I do.

24 Q. Okay. And you know Fredy testified here yesterday?

25 A. Yes, yes.

Page 8890

1 Q. And I asked Fredy Peccerelli a question, in your field -- in his

2 field and your field as a forensic anthropologist who he believed to be

3 the foremost pioneer in that area in the world, and I'm going to ask you

4 the same thing.

5 A. Well, we all have a -- I think that -- I mean, I'm doing mind

6 reading here but we all have a common -- I mean, a common denominator, I

7 think for us pose [sic], that would be Clyde Snow. As you know, Clyde

8 Snow is an American anthropologist and -- who is very much one of the

9 people who pioneered the application of forensic anthropologist to human

10 rights violation cases starting in Argentina, and he fathered teams all

11 over, including the Guatemalans, of course, and lately the Peruvian team

12 that I am part of as well. So, I mean, Clyde is kind of like father

13 figure, I mean, field -- in this field.

14 Q. I notice in your CV that in 1997 you presented a paper in a

15 conference and it was on Haiti, Rwanda, and the Balkans at the crossroads

16 of Science and Experience. You did that at the department of anthropology

17 University of Oklahoma in Norman, on March 6th. Do you recall that, sir?

18 A. Yes, do I.

19 Q. And did you do that with Clyde Snow?

20 A. No, but I did other things with Clyde Snow I mean, regarding case

21 work for example, that I do not even know. That I did not know. I mean,

22 this CV is very old. We actually did a case, yeah.

23 Q. Sir, I don't want to interrupt you. I really -- I apologise but I

24 know you that you need to get home for personal reasons, and I just want

25 to get this finished as quickly as possible.

Page 8891

1 Yesterday we heard from -- frankly, let me just ask you this

2 question. Wasn't it Clyde Snow who recommended you to the United Nations

3 for the in-house job, if you know?

4 A. Well, that I do not know. As far -- and as far as I know,

5 remember I was in Haiti, I mean, before that, so I came from Haiti to

6 Rwanda. So not as far -- not that I know.

7 Q. Okay. We heard yesterday from your colleague Fredy Peccerelli

8 that in his opinion the finalisation of the cause and manner of death is

9 something that only experts have to determine. Experts in your area would

10 be the pathologist and forensic anthropologist. Am I correct? Would you

11 agree with that?

12 A. Yes, I would.

13 Q. And would you also agree that it would be improper to have a

14 defence lawyer or any lawyer participate in the finalisation of the manner

15 and cause of death?

16 A. I would, yes.

17 Q. Yes. And could you tell me why, sir?

18 A. Well, primarily because, I mean, I do not know -- I mean --

19 MR. McCLOSKEY: I am going to object to this. Unless there is a

20 factual showing of what he is talking about and the relevance to this,

21 this is -- this question is just a complete vacuum. But -- I mean, how

22 does a defence lawyer get involved -- these -- I mean, I'll stipulate the

23 defence lawyers are not experts and --

24 JUDGE AGIUS: I think --

25 MR. OSTOJIC: He said all lawyers.

Page 8892

1 MR. MEEK: I said all lawyers, judge. Any lawyer is what I said.

2 JUDGE AGIUS: Okay. Go ahead. Let him answer the question

3 because I think -- yeah, but he was being asked to specify why.

4 THE WITNESS: Primarily because a lawyer is not a specialist in

5 those kind of -- of matters. I mean, it is set -- likewise it would be

6 the reverse. I mean, a pathologist, anthropologist discussing on the

7 verdicts or legal things for which we have no competence.


9 Q. Thank you very much. Now, very quickly, I would ask you, what

10 role, if any, did the Office of the Prosecutor or any of his team of

11 investigators play in determining age, if any, that you know of?

12 A. I don't know. I mean, like a ...

13 Q. Thank you. And Jose, let me ask you this: Can you remember, did

14 at any time you -- were you ever given a briefing or a background by the

15 OTP such as that, when you go to look for these graves, you are going to

16 find mostly men, mostly military-aged men, most of them will be civilians,

17 anything like that?

18 A. No. No, no, no. We were just pointed at -- as stated in the

19 reports, for example, shown an aerial photograph with a stain of dirt, as

20 seen from above and with a date on it and we have to just try to see the

21 grave or not. I mean, who is there, how, no, no.

22 Q. Jose, one last question. I understand that -- Mr. Baraybar,

23 excuse me. I understand that at one point during your work in the

24 Srebrenica grave sites that you became ill. Is that correct?

25 A. Back in 1996, if I'm not mistaken. I had surgery, yes.

Page 8893

1 Q. And isn't it a fact, sir, that you had some abdominal pains and

2 that you told Bill Haglund about these abdominal pains? Yes or no. I'm

3 just -- I'm trying to finish this.

4 MR. McCLOSKEY: Objection to the relevancy of this. This is --

5 what's -- we're gearing up for this witch hunt, which will happen

6 tomorrow, but I think we can stop it right now.

7 JUDGE AGIUS: Yes, Mr. Meek. What's the relevance of this

8 question?

9 MR. MEEK: Well, the relevance is, Judge -- is obviously as to the

10 competence of -- of Mr. Haglund.

11 Q. And the way he supervised, because I think Mr. Baraybar has

12 already testified that he was the main supervisor in this group, correct?

13 A. Yes, he was the supervisor, yes.

14 Q. The very simple question is, didn't he tell you were gold bricking

15 and wouldn't even give you a ride? You had to talk several miles to even

16 get to a hospital where you had surgery?

17 A. I did not walk to the hospital, but I cannot recall the exact -- I

18 mean, there was some argument of some kind. I couldn't really tell you

19 what he told me or whatever, but there was a bit of an argument there, I

20 mean -- or something of the kind. That's what I recall. I mean, I'm not

21 lying to you, I would not -- I do not recall exactly, you know, what he

22 told me or told him or whatever. But the fact is, yes, I did have

23 surgery; yes, I had abdominal pain; yes, I ended up in a military hospital

24 or whatever for a while.

25 Q. And, yes, you had to walk some ways to get there?

Page 8894

1 A. No, no, I did not walk to the hospital, but, I mean, that I

2 don't -- that I don't recall.

3 MR. McCLOSKEY: Objection. I think we --

4 JUDGE AGIUS: I think we have to --

5 MR. McCLOSKEY: Enough of this.

6 JUDGE AGIUS: Mr. Meek, if you have further questions on any other

7 subject, any other topic, please.

8 [Defence counsel confer]

9 MR. MEEK: Mr. Baraybar, thank you very much. I have no further

10 questions.

11 THE WITNESS: Thank you.

12 JUDGE AGIUS: I thank you.

13 Madam Fauveau.

14 MS. FAUVEAU: [Interpretation] Thank you, Mr. President.

15 Cross-examination by Ms. Fauveau:

16 Q. [Interpretation] Sir, would you agree that the residue of earth or

17 the material that we find on the bodies could indicate the location at

18 which the victim actually died?

19 A. If we are referring to soil found with the bodies, meaning in

20 secondary sites, what the soil coming -- associated to the bodies will

21 tell you is the provenance of the bodies, not the place where they died.

22 I mean that -- I -- no. I mean, is -- where they were buried but not when

23 they died. I mean, that's two different things. An interruption,

24 please. Can I -- since she speaks French, can I actually listen to her

25 question in French because the -- the -- sorry. I mean, and I respond in

Page 8895

1 French with --

2 JUDGE AGIUS: No problems with that. You're --

3 THE WITNESS: It's only because of the translation.

4 JUDGE AGIUS: Okay, you can follow in French, but preferably if

5 you can answer in English --

6 THE WITNESS: Fine. I will, I will. Okay, so I will listen in

7 French and answer in English.

8 JUDGE AGIUS: Yes, Madam Fauveau.

9 MS. FAUVEAU: [Interpretation]

10 Q. Isn't it correct that at one of the sites that you located, the

11 soil samples were taken and analysed and showed that the victims were in a

12 place where cereals had been cultivated before they died.

13 A. I mean, yes -- I mean, that is -- that is correct. I mean, are

14 you referring to this meadow, I think it's Sandici meadow, because the

15 meadow have been cultivation of maize and other cereals, and the inference

16 is if people did die in this specific case, I mean, of course it is

17 correct. I mean, with an example I can answer. Since people, I mean,

18 die there and the bodies were taken, mechanically lifted from there, they

19 were taken with the soil as well. And buried in a place with that soil.

20 So in that specific case, and there will be a relationship between, let's

21 say, the place of death and -- and the soil of that place going to the

22 place where they were buried.

23 Q. And there was also the site where you discovered that victims had

24 been killed. That was in the vicinity of -- of a tree?

25 A. That is correct. And you are referring to one of the Nova Kasaba

Page 8896

1 sites. Now, a reconstruction is the most probable scenario that can

2 explain why and how some of these branches and leaves from this willow

3 tree ended up in the grave intermixed with bodies, considering that the

4 tree itself was like 200 metres away from the location. They were not

5 just leaves taken by the wind, but actually branches. So we did a bit of

6 an experiment that is explained in one of reports and we concluded that

7 the most probable -- probable explanation for those leaves and branches in

8 the grave was that the bodies were collected from a location close to the

9 tree and -- and the tree was shaken, the branches and leaves fell on the

10 bodies and then they were taken to the grave.

11 Q. And you also worked on a site where the bodies were bodies for

12 which you established a link with the warehouse in Kravica?

13 A. Yes, that is correct.

14 Q. I'll go back to my question, my initial question about the

15 examples that I've just provided you with. Would you agree that in fact

16 one could establish on the basis of the samples found in the mass graves

17 the sites where the victims were before their deaths or the sites where

18 they may have been killed?

19 A. Yes, it is correct. I mean in -- in that context and with those

20 explanations, yes. The answer is yes.

21 Q. As far as you know, was a link ever established between the

22 victims who had been found at the sites that you worked on and the

23 UNPROFOR base at Potocari?

24 A. That I do not know.

25 Q. And as far as you know, was such a link ever established between

Page 8897

1 the sites that you worked at and the places that were apparently within

2 the town of Bratunac? I'm referring to the town of Bratunac itself. I'm

3 not referring to the municipality of Bratunac.

4 A. I do not know.

5 Q. Thank you.

6 MS. FAUVEAU: [Interpretation] I have no other questions.

7 JUDGE AGIUS: Okay. I thank you. On behalf of the Tribunal.

8 Yes, I wouldn't imagine there is a redirect.

9 MR. McCLOSKEY: No, Mr. President. You're correct.

10 JUDGE AGIUS: I assure you there wouldn't be any questions from

11 our side. So, Witness, that brings your testimony to an end. On behalf

12 of the Tribunal, I wish to thank you for having come over to give

13 testimony and I wish you a safe journey back home.

14 THE WITNESS: Thank you, Your Honour.

15 JUDGE AGIUS: We have three minutes. Are we to anticipate any

16 major objections to the list of exhibits that the Prosecution is proposing

17 to tender? No. Okay. So that now we can go through this list.

18 Yes, Mr. McCloskey.

19 MR. McCLOSKEY: Yes. It's my understanding that there's just a

20 couple of details, three items that have not been previously entered. The

21 first one is P01606, and that was something that -- well, it was -- I

22 won't get into -- that was referred to a -- oh, in another -- I believe it

23 was in his previous testimony. So we wanted to put that in.

24 [The witness withdrew]

25 MR. McCLOSKEY: And then P02477, that's the minimal number of

Page 8898

1 individuals which I had referred to, came in in the last trial through

2 Dean Manning. And so that wasn't the subject of the 92 bis motion.

3 And then finally PIC 00076, the little drawing that he did.

4 JUDGE AGIUS: Okay. Are there any objections to any of the

5 documents appearing in the list that has been circulated? None. So they

6 are so admitted.

7 Any one of the Defence teams, particularly you, Mr. Haynes, wish

8 to tender any documents?

9 MR. HAYNES: The only documents that I put to the witness will

10 come into evidence through other witnesses anyway, so I'm not going to

11 tender them as Defence exhibits.

12 JUDGE AGIUS: Okay. I thank you so much. So tomorrow we start

13 with Dr. Haglund.

14 MR. McCLOSKEY: Yes, and he is our last -- we don't have another

15 witness based on the estimates, but we -- so that's where we are.

16 JUDGE AGIUS: All right. And we'll try to finish with his

17 testimony tomorrow. I think we have a revised estimate of three hours on

18 the part of the Defence.

19 So have a nice evening. We stand adjourned until tomorrow

20 afternoon at 2.15.

21 --- Whereupon the hearing adjourned at 7.00 p.m.,

22 to be reconvened on Thursday, the 15th day of

23 March, 2007, at 2.15 p.m.