Tribunal Criminal Tribunal for the Former Yugoslavia

Page 22836

 1                           Thursday, 26 June 2008

 2                           [Open session]

 3                           [The accused entered court]

 4                           [Accused Nikolic not present]

 5                           [The witness entered court]

 6                           --- Upon commencing at 2.22 p.m.

 7             JUDGE AGIUS:  Good afternoon, Madam Registrar.  If you could call

 8     the case, please.

 9             THE REGISTRAR:  Good afternoon, Your Honours.  Good afternoon,

10     everyone.  This is case number IT-05-88-T, the Prosecutor versus Vujadin

11     Popovic et al.

12             JUDGE AGIUS:  Thank you, ma'am.

13             Amongst the accused, Drago Nikolic is not present and we have had

14     a filing, Mr. Bourgon.

15             MR. BOURGON:  Indeed, Mr. President.  Mr. Nikolic will not attend

16     proceedings today and we will do everything that he will attend as of

17     Monday.  Thank you, Mr. President.

18             JUDGE AGIUS:  Thank you.  And we have a waiver just for the

19     record.

20             The other accused are present.

21             From the Defence teams I notice the absence of Madam Nikolic,

22     Mr. Lazarevic, Mr. Krgovic, Mr. Haynes.

23             Prosecution, today it's Mr. McCloskey and Mr. Mitchell.

24             The witness is present.

25             Mr. Zivanovic -- I take it that there are no preliminaries.  I'm

Page 22837

 1     not asking for any.  Mr. Zivanovic.

 2                           WITNESS:  DUSAN DUNJIC [Resumed]

 3                           [Witness answered through interpreter]

 4                           Examination by Mr. Zivanovic: [Continued]

 5             MR. ZIVANOVIC: [Interpretation]

 6        Q.   Good afternoon, Professor Dunjic.

 7        A.   Good afternoon.

 8        Q.   Yesterday we left it off with the mass graves of Nova Kasaba 6, 7

 9     and 8.  I will go immediately to the grave number 8, since I saw that in

10     the previous two there were only one or two bodies.  I went through the

11     findings of your report, between the pages 51 and 71 in the B/C/S, or 44

12     to 65 in English.

13             THE INTERPRETER:  Interpreter's correction:  To 67.

14             MR. ZIVANOVIC: [Interpretation]

15        Q.   That would be 1D1070.  I saw that in those findings, I believe

16     there were precisely 24, you mentioned therein that the injury may have

17     been caused by a shot from a distance as a part of the combat.  I will

18     cite an example from one of the findings, which is page -- I think you

19     have that in B/C/S.  We only have it in English here.  This is page 57 of

20     your report.

21             There is a comment of yours that the description of injuries is a

22     correct one and that it corresponds with the finding.  However, you say

23     that the cause of death can be discussed and you conclude by saying that

24     the injury could have been caused from a shot from afar, as part of

25     combat.  What did you base that conclusion on?

Page 22838

 1        A.   This conclusion or comment I provided contains two parts.  The

 2     first part refers to the principal injuries and we go back to the autopsy

 3     report where the injuries were described in detail.  It is an example of

 4     a proper explanation of the injuries as required by the profession.

 5        Q.   Could you please slow down for the sake of the interpreters?

 6             JUDGE AGIUS:  Actually, I anticipated the interpreters making an

 7     indication to you.  Please slow down and do not overlap.  Thank you.

 8             THE WITNESS: [Interpretation] We have the injuries precisely

 9     described therein, and hence my comment that this was a proper

10     description of injuries.  However, what prompted me to make the

11     conclusion that it may have been as part of combat from afar was the fact

12     that the projectile was stuck in the scapula and in the upper thorax.

13     This indication, that is the projectile being left in the body, is the

14     proof telling us that it arrived from afar or with reduced energy.

15             A projectile fired from a firearm, for example a rifle, and

16     yesterday I mentioned what the speeds are, slows down the greater the

17     distance.  A projectile fired from up close would have gone through the

18     body for sure.  A projectile could be slowed down when encountering an

19     obstacle along the way before hitting the body.  It can be slowed down by

20     any means and then it remains in the body.  For that reason, I said that

21     may have been an injury caused by the war as part of combat.  I mentioned

22     that as a possibility given that it arrived at a somewhat reduced speed

23     and it remained in the body.

24             MR. ZIVANOVIC: [Interpretation]

25        Q.   If I understood you well, when one says as part of the war

Page 22839

 1     conflict, that would mean that it was fired from a certain distance?

 2        A.   Yes.  When we are discussing the distance, as I mentioned

 3     yesterday, it was not determined here.  No analysis was conducted.  As

 4     the reporters themselves say in the collective report, they say that they

 5     did not analyse the distance of firing pursuant to some standard forensic

 6     elements used to establish the distance between the rifle barrel and the

 7     body itself.  That is why I commented a part of the final report by

 8     Mr. Haglund when he said that the projectile could have been fired point

 9     blank.

10        Q.   If there was a possibility that the projectile was fired from a

11     distance, can you tell us approximately what the distance could have

12     been?

13        A.   I have to rely on theory now.  For a firearm or rifle, anything

14     beyond three or five metres with such weapons is considered a distance,

15     given that there are no gunpowder traces left on the body.  For side

16     arms, hand guns, with a short barrel, that distance is over 100

17     centimetres.  That is the distance between the barrel and the body.  If

18     less than that, one can find gunpowder traces.  The research conducted by

19     Professor Popov from St. Petersburg, and I contacted him personally, as

20     part of the research he managed to detect gunpowder traces at distances

21     greater than 40 metres.  This surprised me greatly.  I wasn't aware of

22     such a possibility.  And he explained to us that a projectile travelling

23     through space and the part towards the bottom of the bullet sucks in a

24     certain amount of gunpowder which then arrives at the body itself as

25     well.  To be precise, any distance greater than the range of gunpowder

Page 22840

 1     particles fired from a rifle is considered a distance which probably

 2     would not leave any trace on the body.

 3        Q.   Now you're discussing distances from the point of view of

 4     gunpowder particles and traces.  However, I'm interested in the other

 5     type of distance you've been talking about, which has to do with the fact

 6     whether the wound is only an entry wound or an entry/exit wound.  In

 7     other words, whether the bullet had left the body.

 8        A.   This type is quite important as well and it depends on numerous

 9     factors.  If one finds a bullet in a body, without the bullet having hit

10     an important bone, such as the femur or pelvis, one of the greater bones,

11     as well as some other bones, which can slow it down ... for example we

12     have an example here of the bullet hitting the scapula, which has the

13     ribs on one side and the soft tissue on the other, projectiles fired from

14     a rifle usually go through the scapula.  The fact that it remained inside

15     the scapula points to the fact that it had lost sufficient energy for it

16     to remain there.

17        Q.   In relation to this answer of yours, can one estimate the

18     distance of the firing of a bullet which failed to penetrate the scapula?

19        A.   Speaking from the point of forensic medicine, it is very

20     difficult.  One would need to carry out additional analyses that have to

21     do with gunpowder particles and we could have to know some other elements

22     which I, as a forensic medical expert, can take into account, say at the

23     place where the cartridge was found, et cetera, and in that context, one

24     can try and assess the damage that could have been caused by such a

25     bullet if there were obstacles in between or to try and come up with

Page 22841

 1     another explanation as to why the bullet had slowed down.  What I know

 2     from my practice is that projectiles fired from the same firearm had

 3     different ranges and which very much depended on the humidity of the

 4     gunpowder, the type of charge, et cetera.

 5        Q.   I said that there were some 24 reports there.  They are all

 6     similar in terms of contents and with the same conclusion.  I suppose

 7     that your explanation regarding all of those reports concerning the

 8     possibility of the injuries being caused by -- as part of combat, would

 9     be approximately the same.  Of course, I can cite the pages precisely and

10     we can have a look at all those reports, if needed.

11             JUDGE AGIUS:  Yes, Mr. Mitchell?

12             MR. MITCHELL:  Objection, leading, Your Honour.

13             JUDGE AGIUS:  Yes, Mr. Zivanovic?

14             MR. ZIVANOVIC:  I'll go through these reports.  Thank you.

15        Q.   [Interpretation] Let us have a look at the next report.  Let us

16     have a look at the report which is at your page 58, and we are about to

17     see it on the screen.  We also have an injury to the chest.  Could we

18     please have a look at the main injuries?

19             MR. ZIVANOVIC:  [In English] the report said the display is

20     disclosed to us yesterday.  It is at our -- on our exhibit list, just a

21     moment.  It is CD -- CD from 25th of June 2008.  It was wrongly marked as

22     24th of June 2008.  And all these documents are from this CD we got from

23     the Prosecution yesterday.

24             Yes.  ERN number is X0046006.

25             JUDGE AGIUS:  Yes.

Page 22842

 1             MR. McCLOSKEY:  If I could just clear the record.  This was

 2     material that was given to the Defence years ago that we assisted them in

 3     finding in the record so we have just given it to them.  This isn't some

 4     sort of late disclosure, just so you're clear on that.

 5             MR. ZIVANOVIC:  Yes, that's correct, sorry.

 6             JUDGE AGIUS:  Thank you, thank you both.

 7             MR. ZIVANOVIC:  We just got the English translation of these

 8     reports.

 9             JUDGE AGIUS:  All right.  Thank you.

10             MR. ZIVANOVIC: [Interpretation]

11        Q.   Professor, we only have the English version on the screen, but

12     you have already explained the main injuries and that is what I wanted to

13     focus on.  In your comment at page 58 of your report, it says that it

14     also could have been caused by combat, especially with a view of the

15     projectile's remaining in the body.

16        A.   Yes.

17        Q.   What is your explanation for the position you took regarding this

18     autopsy report?

19        A.   We have an injury to the thorax and a part of the projectile, we

20     have three bullet fragments in the lower and upper arm.  We have a

21     characteristic injury to the thorax and in the arm.  The direction of the

22     projectile was from the front to the back.  The fact that the fragments

23     remained in the soft tissue mean that the projectile had defragmented

24     either when hitting the bone or by hitting an obstacle before reaching

25     the body.  In any case, it is characteristic of the injury, and taking

Page 22843

 1     into account the nature of the injury to the thorax, we have certain

 2     indications as concerns the distance, and that is what made me conclude

 3     that it could have been caused by an armed conflict.

 4        Q.   Let us go to the next report, X 0046021, page 3.  That is the

 5     next report, the next autopsy report in your report.  Page 59.

 6        A.   I can see it.

 7        Q.   And on the next page, it is also stated that the injury may have

 8     been caused during an armed conflict.

 9        A.   Yes.  We have again injuries to the thorax and the limbs, as well

10     as the hip bone.  There is also a bullet fragment in the chest and in the

11     pelvis, as well as in the lower right leg and the left femur, the left

12     thigh.  We have projectile fragments here, which means --

13        Q.   Let me interrupt you.  I was told that there was a technical

14     difficulty in the documents being brought up to the screen.  I hope a

15     couple of minutes will suffice to deal with it.

16             JUDGE AGIUS:  Is this a problem that is going to be solved soon,

17     Madam Registrar?  All right.

18             MR. ZIVANOVIC: [Interpretation].

19        Q.   The problem has been solved, it seems, Professor, so may we

20     continue or rather could you continue with your answer.  I apologise, I

21     interrupted you.  Perhaps you don't remember where you left off.

22        A.   That's all right, thank you.  This is a properly described

23     injuries in the autopsy report and how they are defined and described.

24     And from these descriptions obviously they are injuries of the

25     extremities, limbs, and the thorax, caused by firearms and projectiles

Page 22844

 1     or, rather, elements of the -- of injuries that can be caused when firing

 2     is from a distance, in view of the fact as in previous cases that in the

 3     tissues and fractures, parts of the projectiles were found.

 4        Q.   Let's now move on to the next page, 6040, I think the number is.

 5     That is also to be found on page 59.

 6        A.   May I have the Serbian version, please?  It is case number 50, so

 7     next page, please.

 8        Q.   No.  You don't have it on your screen, or rather you might have

 9     the English version on your screen.  But I think that is to be found in

10     your own report.

11        A.   All right.  Thank you.  I see.

12        Q.   It's page 59 of your own report, body number 50.

13        A.   The explanation is the same as in the previous case.  The

14     injuries have been correctly defined and described, the head, the trunk

15     or chest, and the limbs, and here we are dealing with a number of

16     radiographically established fragments, bullet fragments, and casing

17     fragments, which indicate that fragmentation occurred either when the

18     bullet hit a bone or through previous fragmentation, but in any case, in

19     these bodies or the bodily remains or remains of the tissues, these

20     elements were detected which can indicate that the bullet came from a

21     distance, that the projectile came from a distance.

22        Q.   Would you look at the next report straight away, please?  It's on

23     that same page, and that's 6068.  Can you explain your conclusions here,

24     please, as far as distance is concerned?

25        A.   Yes.  What was found here was a number of fragments, although the

Page 22845

 1     radiography findings shows a bullet near the rights shoulder.  Now, when

 2     it says, "Bullet," I assume he means projectile but when you actually say

 3     bullet that is the whole thing with the casing, but what is interesting

 4     to note here is a fragment of the bullet in the soft tissue of the left

 5     leg in the vicinity of the left femur and a bullet fragment within the

 6     skull itself.  This fragment within the skull itself is interesting for

 7     the following reasons.  Bullets very rarely are found in the cavity of

 8     the skull you, unless they are lodged in the skull bone itself and the

 9     thicker structures of the bone, and it doesn't say that here.  However,

10     part of the bullet in the skull also indicates that the injury was caused

11     or that that part of the projectile was very slow or had fragmented

12     beforehand, which once again leads to the conclusion that we are dealing

13     with an injury from a distance.

14        Q.   Just an explanation.  When you say a fragment, do you mean a

15     bullet fragment, a metal fragment, or do you mean something else?

16        A.   It says here, "A bullet fragment," whereas I assume that it's the

17     casing or the metal part, because with the word "fragment," that means

18     that it was completely separated and that that is why it lodged there.

19     So all these elements can indicate distance again and an obstacle within

20     that distance.

21        Q.   The next case also relates to your conclusion that this injury

22     was possibly caused during a conflict, X0046085, 46085, on page 4.  Main

23     injuries described, the cause of death and so on.

24        A.   Yes, I can see this.  It is case number 65.  There are several

25     things that need to be stressed here.  First of all, that the remains of

Page 22846

 1     the skull are almost stripped, that is the outer description, and there

 2     is saponification or putrefaction of the lower extremities.  The skull

 3     was shattered.  That's the general description.  And radiographically it

 4     was established that there was a metal fragment of the bullet in the left

 5     femur.

 6             The injuries are described and the conclusion made is that in the

 7     area of the skull, that there was no reconstruction, it was later

 8     reconstructed, and that there were evident fractures linked up with

 9     injuries caused by buck-shot, gunshot.  In addition to this injury in the

10     skull area described in this way, there is the -- another fracture of the

11     pelvis and the left thigh bone.

12        Q.   [No interpretation].

13        A.   In conclusion it says that there are multiple fractures to the

14     trunk and extremities caused by firearms.  They are injuries caused by

15     firearms but most probably there are two possibilities, injuries in the

16     head area, the skull, and that some of the shot or parts of the

17     projectile injured the pelvis.

18             Yes, I'd like to apologise for speaking a little fast.  The

19     observation that a bullet fragment was found in the left femur tells us

20     that the bullet was fired most probably from a rifle or that kind of

21     firearm.  So it's one projectile.  Whereas the injuries described in the

22     head area, in the area of the skull, and the elements found, indicate

23     gunshot.

24             So that this injury, or these injuries, and the different types

25     of injuries, can indicate, may indicate, injuries caused during combat,

Page 22847

 1     and the fact that the projectile has lodged there means that it was an

 2     injury from a distance.

 3             And the third point that I'd like to stress here in this

 4     particular case is that the remains of the skeleton were almost bared and

 5     that on the lower extremities, the limbs, there was a certain type of

 6     putrefaction which is known as saponification.  Now, in correlation with

 7     the skeletisation and saponification, if we look at one of the bodies and

 8     see that a complete skeletisation has taken place and that on the other

 9     there is saponification, this might mean that the body was exposed to

10     different environments, a normal environment, in a grave, or in the air,

11     and saponification, whereby the lower extremities where the

12     saponification was noted, that those limbs might have been in a humid

13     environment where humidity was dominant which once again can indicate the

14     fact that the body was exposed to humidity in one area and then later on

15     that the body might have been buried with decay and putrefaction taking

16     place, although saponification is also found in humid grave sites.

17        Q.   You mentioned gunshot, buck-shot.  Can you tell me, on the basis

18     of your experience as a forensic expert, whether perhaps that indicates

19     any specific type of weapon having been used?

20        A.   Yes.  Buck-shot -- well, it wasn't described in detail, that is

21     to say the injuries caused here, and buck-shot is used in weapons where

22     the casing has a charge with metal balls.  Usually they are circular

23     balls, round balls, and they can differ in size, small, minute ones and

24     big ones, and calibration according to the size of the pellets, so

25     whether the, as the small pellets or larger pellets, they cause similar

Page 22848

 1     injuries to the bones such as the skull.  So if you reconstruct the whole

 2     situation, then you can see that there are regular circular holes with a

 3     broader areas, broader channels, on the internal wall of the flat bone

 4     which is what the bones of the skull are.  So we are able to determine

 5     localisation with great precision and this is done through

 6     reconstruction, which they did in this particular case, and this was done

 7     very pedantically but not described in the same way because the number of

 8     injuries are observed, but here, in this case, no fragments of gunshot

 9     were found in the skull, although the observation and conclusion made is

10     that the injuries were caused by buck-shot.

11        Q.   Let's move on to X 0046119, the next case.  That's on page 61,

12     104 -- body number 155.  Not 155.  55.  You also observed that this could

13     be an injury caused during combat.  Can you explain why?  Can you explain

14     that to us?

15        A.   The injuries are in the head area, they are divided into the head

16     area, the trunk or thorax and the limbs or extremities, the left -- or

17     rather right arm and right leg.  X-rays find fragments in the left knee,

18     in the pelvis and left foot, and like in the previous cases, the

19     possibility exists that these injuries were caused by firing from a

20     distance and that these parts of the body were hit.

21        Q.   I can't find the next case, although it's similar but let's go on

22     to body number 57, 616 -- 6156.

23        A.   In this case, it was concluded that the whole body was

24     skeletised, or practically the whole body, and at the joint -- there was

25     a lot of soft tissue in certain parts of the body and the joints were

Page 22849

 1     separated.  It doesn't say which areas soft tissue remains.  This

 2     indicates that certain parts of the body had decayed more than others and

 3     that the lack of soft tissue means that external factors, in this case

 4     animals, had affected the body.  There are fragments of the bullet casing

 5     in the chest and head, left elbow and in the region of the leg.

 6             Now, the injuries to the trunk or chest were found in the left

 7     third rib in the mid-clavicular line and a deformed sharp-pointed bullet

 8     jacket in soft tissues attached to the trunk.  That's what the

 9     description says.  The limbs, probable gunshot injury to the left

10     forearm, fragmenting the upper thirds of the radius and ulna and with

11     bullet metal fragments found adjacent, which means that this particular

12     fragmentation is just an observation that was made, and I can accept that

13     because if it was found in the soft tissue, that that's -- that a

14     projectile caused the bone fragmentation.  And now this speaks of

15     injuries to the trunk, without observation -- observing the fragmentation

16     of the arms.

17             So this description is partially correct but once again indicates

18     the possibility of the injury being caused from a distance, especially

19     where we come to the trunk where the projectile was lodged in the region

20     of the third rib.

21        Q.   We can now move on to the next body, which is body 58.  6153 is

22     the number.

23             Can you explain this, the grounds for your conclusions that -- of

24     the possibility that the injury was sustained in combat?

25        A.   Well, in any case, we have the jacket or a small fragment in the

Page 22850

 1     left part of the chest, a small fragment in the area of the left leg, and

 2     a small fracture on the lower part of the leg which can indicate the

 3     distance, or that the projectile lost its force or velocity because it

 4     passed through an obstacle prior to hitting the body, and then it is

 5     noted here, something which I don't actually understand, that the skull

 6     is intact while the pelvis is much better preserved.  I don't know what

 7     that exactly means.  I don't know if it's a mistake in the translation or

 8     something but that's what it states.

 9             In any case, my answer would be in relation to this question that

10     you put, that a fragment of the projectile remained in the tissue.

11        Q.   We are going to move immediately to body 62.  61 is a similar

12     description but it's not in the system so we will move to 62.  Fragment

13     bullets or shrapnel is mentioned here, so I would like you to comment on

14     that and of course comment on the conclusion that the injuries were

15     caused from a distance.

16        A.   What we have here are the remains of a practically bare skeleton

17     with saponified tissues.  It means that these several cases were in

18     similar conditions when these putrefactory changes occurred.  There were

19     some metal fragments of bullets in the chest area.  That's what it says,

20     and that there was a bullet in the skull.  However --

21             THE INTERPRETER:  This was too fast for the interpreter.

22             JUDGE AGIUS:  The interpreter is encountering difficulties,

23     Mr. Dunjic.  If you could slowly repeat what you have just said, please?

24             THE WITNESS: [Interpretation] I apologise to the Trial Chamber

25     and to the interpreter.  I began to reed the text and I don't believe

Page 22851

 1     that I don't need to bother you with that but I'm just going to give you

 2     a direct answer.

 3             We have multiple metal fragments in the trunk.  Description of

 4     the main injuries refers to a projectile fractures and damage in the

 5     skull area.

 6             MR. ZIVANOVIC: [Interpretation]

 7        Q.   And did that lead you to the conclusion that is given here in the

 8     finding?

 9        A.   Yes.  This led to the conclusion that the injury was inflicted

10     during combat possibly and that it was inflicted during combat and that

11     projectile remained in the body, but the found metal fragments, as

12     described in the chest were not noted anywhere except in the radiographic

13     part.  Actually this is not recorded in the autopsy report, the content

14     found in the body indicating distance and the possibility that the

15     shrapnel fragmented even more due to the action of some explosive device.

16        Q.   Can we move to the next report, please?  This is body 63.  In

17     your report it's 6227.

18             Can you tell us what led you to conclude that the injury was

19     sustained in combat?

20        A.   We have it here that in the radiographical findings two pellets

21     were found at the right foot and around the right knee and small metal

22     fragments near the right femur or in the soft tissue remains of the right

23     thigh.  It means that the projectile remained in the body.  It indicates

24     the type of weapon, and the injuries that were described in the skull

25     probably indicate that it is quite likely that the irregular opening at

Page 22852

 1     the back of the skull is probably an entrance hole caused by a bullet.  A

 2     specific hole of exit cannot be recognised.  So based on that analysis I

 3     made my own comment.

 4        Q.   Can we move to body marked 64?  This is 6241 in our documents.

 5        A.   In this case, we have a completely bare skeleton, and the skull

 6     was shattered and there was an oval hole in the mid-region and a large

 7     part of the parietal region was missing and there were also injuries to

 8     the pelvis.

 9        Q.   Can we look at 5910 now, please?  This is actually body number

10     42.  In your findings, it is on page 55.

11        A.   This case, number 42, also indicates that the skeletal remains

12     were saponified and the tissues were saponified.  The body was better

13     preserved in the pelvic region where there is some disintegrating muscle

14     tissue left.  There are multiple small perforations on the shirt from

15     undefined buck-shot.  The fluoroscopy indicates that there was a fragment

16     close to the right and the left forearm, a small fragment and pellet

17     close to the skull, a pellet in the trunk area, two smaller fragments in

18     the pelvic area, the left thigh -- and the left thigh close to the pelvis

19     and a deformed bullet in the body.

20             As for the injuries, there is a fracture of the 7th rib, where

21     there is a clear bullet hole to be seen.  And as for the limbs, there is

22     a fracture with multiple bone splinters in the lower third of the left

23     humerus, above the elbow, close to the elbow, and there is nothing more

24     of a detailed description there.  These injuries are obviously buck-shot

25     injuries, with a broad dispersion.  When I say "broad dispersion," this

Page 22853

 1     is a significant fact for us indicating that when we establish the range

 2     of fire with buck-shot wounds on the basis of the pellet dispersion, so

 3     the pellet dispersion by their direction and the way they are shaped at

 4     the ultimate point, because it is a reverse cone shape, the top of the

 5     cone is the barrel mouth and then the pellets disperse in the shape of

 6     the bottom of the cone, and that can affect a larger area.

 7             So on the basis of that pattern, you can calculate the distance

 8     between the rifle barrel and the target.  Sometimes you can have more

 9     pellets deep in the wound and less on the periphery.

10        Q.   We are going to move now to body 67, which is on page 68 of your

11     findings, and that is 6298 in our documents.

12        A.   This is case 67.

13        Q.   Yes, case 67.  I would like you to tell us the basis for your

14     conclusion that the injury was sustained during combat.

15        A.   Well, look, there is a skull damage here.

16             JUDGE AGIUS:  Yes, Mr. Mitchell?

17             MR. MITCHELL:  Objection, Your Honour, that's a misstatement of

18     Professor Dunjic's report.  He says it's a possible injury in armed

19     conflict.

20             JUDGE AGIUS:  Thank you, yes.

21             MR. ZIVANOVIC:  [In English] I told it it is possible injury.

22             JUDGE AGIUS:  Let's move.  Anyway, it's clear enough now.  So

23     let's move ahead.

24             MR. ZIVANOVIC:

25        Q.   Possible injury were in confrontation.

Page 22854

 1        A.   Yes, yes, the injury is possible in that way, that's what it

 2     says.

 3        Q.   [Interpretation] All right.  Well, it's a small misunderstanding.

 4     Can you please tell us what your conclusion is based on that this is a

 5     possible injury sustained in conflict?

 6        A.   Besides the fact that there are two metal fragments, a large

 7     skull fracture could have been caused by a fragment or small fragments of

 8     metal projectiles which had lost their penetration force and that at the

 9     same time they could not -- they were stopped by the body, so again you

10     have the possible distance and extensive injuries.  I explained yesterday

11     how it was possible to cause a minor injury at a small velocity with a

12     small projectile and that after the body decomposes and is found, it

13     looks like major damage to the skull or a large fracture because of the

14     state of the body.

15        Q.   Thank you.  We are now going to move to body 71, and that is on

16     6334 in our documents.

17        A.   There are remains of a practically bare body.  The skull was

18     shattered.  There is a metal fragment in the lower jaw.

19        Q.   Can you please tell us what led you to the conclusion in this

20     case that this was possibly a combat injury?

21        A.   This is a head injury by a projectile, which was stopped in the

22     mandible, the lower jaw, meaning that this can indirectly indicate

23     distance and as well an injury that we encounter in armed conflict.

24        Q.   Mr. Dunjic, now we are going to move to other autopsy reports.

25     They are no longer possibly combat-caused -- refer to possible

Page 22855

 1     combat-caused injuries.  We are now going to look at body 73.  Our number

 2     is 6367.

 3             This is on page 70 of your findings in the B/C/S version.

 4             Can we please look at the cause of death?  It's noted here that

 5     the cause of death is unknown.  Can you please tell us if this

 6     description and the conclusions from the autopsy could lead to this

 7     finding?

 8        A.   What is said in the case of 73, which is from Nova Kasaba number

 9     8, confirms that the conclusion, where it says the cause of death has

10     been correctly derived in terms of what was noted in the report, and

11     there is no description of the injuries in the report.  It just states no

12     fractures, no skull perforations, no neck injuries, and only on the trunk

13     it is noted that one rib was fractured, which means that this conclusion

14     had to be what it is.  There were no obvious injuries.  They were not

15     noted in the soft tissue, and I underline that again we have a body that

16     was in the stages of saponification and, as I said yesterday,

17     saponification is a process that indicates that the body was in a humid

18     environment.

19             What is missing here, other than the description, they said that

20     the head was intact, is that the fist or hand was missing and then it

21     would have been proper to describe the putrefaction changes in more

22     detail and to describe more in detail if there were any soft tissue

23     damages or damage in the part of the body where the hand was missing or

24     if there was any damage in the area of the rib fracture.  In either case.

25             So when we are talking about the hand, we would need to see the

Page 22856

 1     edges of the tissue because then we could determine whether this was

 2     caused by animals or some other type of trauma, just as we can see in

 3     saponified flesh, if there is an injury or if there are discolourations

 4     in the soft tissue which could then indicate that the injuries were

 5     inflicted post-mortem.  The way it is written here, the conclusion about

 6     the cause of death is quite accurate in relation to the report of that --

 7     about that particular body.

 8        Q.   Let us move on to the last autopsy report from this group.  It is

 9     body 74.  It follows in your report.  In our document it is 6382.

10        A.   A bullet core and jacket fragments found in the right upper arm.

11     As for the main injuries, we have comminuted fracture of right temporal

12     bone with pieces pushed inwards.  Then pelvis fracture of right pubic

13     symphysis.  There is no left pubic symphysis as probably meant was the

14     right pelvic bone.  It is a wrong description.  Then we have a gunshot

15     injury to the left upper arm, fragmenting the middle third of the

16     humerus.

17             However, the conclusion based on the findings is that it was

18     impossible to prove what the cause of death was.  They stated what the

19     injuries are.  However, they did not say whether they were pre or

20     post-mortem.  And there is a gunshot injury mentioned to the left upper

21     arm and based on that the pathologist was unable to conclude what the

22     cause of death was.

23             My conclusion is that the cause of death is correctly described

24     compared to the findings, although the findings in a segment are

25     imprecise and insufficient.

Page 22857

 1        Q.   Can you explain your comment provided at page 71, which has to do

 2     with the entire location of Nova Kasaba?

 3        A.   Having studied the entire location of Nova Kasaba 1, 2 and 3, and

 4     the single case of Nova Kasaba 4, as well as 6, 7 and 8, I analysed this

 5     individually, I underlined the correct portions.

 6        Q.   Just a moment.  [In English] 621, English page 65.  Sorry, it is

 7     not P621 but it is number of page 65 of his report in English.  And

 8     number of his report is 1D1070.

 9        A.   May I continue?

10             JUDGE AGIUS:  Yes, please go ahead.

11             THE WITNESS: [Interpretation] Looking at the entire location of

12     Nova Kasaba 1, 2, 3, the single case of Nova Kasaba 4, and the remaining

13     locations, 6, 7 and 8, there are differences in the forensic approach of

14     those who did the autopsies and provided descriptions, as I've already

15     stated.  In the individual analyses.  What is a prevailing characteristic

16     is that there is no consistency between the conclusions and Mr. Haglund's

17     comment.  We saw in the individual cases what the inconsistency is

18     between the conclusion and the trauma reports, as well as the

19     relationship between the cause of death and type of injuries.

20             I have to state here that -- that the conclusions concerning the

21     manner of death were arbitrary.

22             May I go on?

23             The conclusions about the cause of death were arbitrary.  Here,

24     and in the introductory part I explained that the cause of death could

25     have -- and the manner of death could vary in terms of types when

Page 22858

 1     discussing violent deaths and non-violent deaths.  In all the cases here,

 2     it was mentioned that they met a violent death.  The injury itself, if

 3     described properly, can be acceptable, but to claim that the death was a

 4     violent one, I need to provide precise parameters that point in that

 5     direction.  In the absence of that, I cannot make any conclusions on the

 6     cause and manner of death unless I am required to state my position once

 7     I have seen all the facts.  It is frequently done in individual analysis

 8     when one deals with several aspects of suspicion.

 9             Therefore, I stated that the conclusions were arbitrary

10     concerning the cause and manner of death.  In particular, in the cases

11     where we have multiple injuries by shrapnel, et cetera.  The description

12     of injuries in the case of Nova Kasaba 1, 2 and 3 is disastrous.  It is

13     somewhat more precise with the remaining locations, these being 6, 7 and

14     8.  The established number of cases is correct.  The methodology of

15     exhumation and record keeping is fairly accurate.  As for the documenting

16     the autopsies, this was carried out properly and according to the

17     protocol.

18             Another thing one has to say about the three locations has to do

19     with the time of death.  Based on the given descriptions of putrefaction

20     and changes caused by putrefaction, I provided my comments concerning

21     external and internal examinations and based on all that it is not

22     possible to establish the exact time of death.

23             Certain explanations provided by Mr. Haglund are more or less

24     acceptable, but they have to tally with the other data arrived at once

25     DNA identification is complete and once we have personal identification.

Page 22859

 1     We need to compare all the information we have with the date of

 2     disappearance, the identity needs to be confirmed, and then all that

 3     needs to be cross-referenced with the data contained in the autopsy

 4     reports, the putrefaction changes, anthropological characteristics.  It

 5     is only then that we can arrive at a precise time of death.  We cannot do

 6     that given the descriptions in the autopsy reports alone.  Based on that,

 7     it is impossible to establish a time of death, in particular, since we

 8     had different degrees of putrefaction in different cases.

 9             As regards the cause of death, I've already commented that in the

10     introductory part, I explained what cause of death is, and irrespective

11     of an injury to a head or thorax or a leg, the skull trauma in itself is

12     but a mere fact.  However, because of the skull trauma, the cause of

13     death can only be ascertained after it was ascertained that the skull

14     injury was -- occurred in life.  Pre-mortem, that is.

15             As regards the mechanism of injury, it is difficult to establish

16     it, even when we have evidently good descriptions, primarily because of

17     the putrefaction we encounter and because we cannot establish the entire

18     length of trajectory.  When talking about the issue of whether the

19     person -- a person was killed from afar or point blank, it also has to do

20     with ballistics, forensic analysis of weapons, traces found on the body,

21     direction of firing, as well as based on the noted injuries.

22        Q.   In this part of your report, inter alia you mentioned the

23     international classification of ...  Could you please explain in detail

24     what sort of classification it is?  It is Exhibit 1073.  It is a Defence

25     Exhibit.

Page 22860

 1             I think we only have it in English.  Could you please tell us

 2     what it is?

 3        A.   According to the international classification of diseases and

 4     injuries, there is also a classification in chapter 20.  There is a

 5     classification of injuries concerning armed conflict.  Anyway, they are

 6     specified quite precisely.  In this forensic description of injuries, one

 7     should ascribe every particular injury the exact code from this

 8     classification.  It is up to the Court to determine the cause of death.

 9     The only thing we can do as forensic expert is to classify the injuries

10     precisely according to the standard.  We are there to determine whether

11     the injuries we encounter are, for example the injuries contained here

12     under Y35.

13             THE INTERPRETER:  Interpreter's correction:  Y36.

14             THE WITNESS: [Interpretation] They begin with Y36 and the

15     subitems.

16             MR. ZIVANOVIC: [Interpretation]

17        Q.   These are the type of injuries in armed conflict?

18        A.   Yes.

19        Q.   That is Y36 to Y36.9.

20        A.   Yes.  For example, Y36.2, we have war operations and types of

21     injuries.  This continues in Y36.3 and .4.  It would have been far better

22     to have used this international classification of injuries.

23        Q.   While on the topic of the international classification of

24     injuries, can you tell us who drafted it, who created that

25     classification?

Page 22861

 1        A.   Well, it's an international standard, accepted by all countries,

 2     all physicians irrespective of whether they work with living patients or

 3     whether they are pathologists or forensic experts like myself, we are all

 4     obliged to abide by the classification in terms of types of injuries,

 5     cause of death and the morbidity.  The classification exists as to have

 6     the same criteria and that anyone can monitor given types of injuries and

 7     causes of death across the board, in all -- on all continents.  This was

 8     drafted so that we could monitor statistically the occurrence of

 9     different types of injuries and diseases.

10             JUDGE AGIUS:  Mr. Mitchell?

11             MR. MITCHELL:  Your Honour, I don't think that actually answered

12     the question, which was who drafted it.

13             JUDGE AGIUS:  Yes.  I think you're right.

14             Mr. Zivanovic, please, if you could bring the -- go ahead.

15             MR. ZIVANOVIC: [Interpretation]

16        Q.   Professor, do you know precisely what the name of the

17     organisation is that drafted this?

18        A.   I truly don't.

19        Q.   Do you know -- excuse me, let me finish.  Do you know for how

20     long these rules have been in existence?  For example, in your domain?

21     Had they existed before you started working or after that?  Is that

22     something you encountered when you began your career?

23        A.   When I started working -- well, I don't know what edition or what

24     revision there was at the time, but it existed already.  I believe I

25     began with the 7th or 8th.  I believe this is the 10th.  There is an

Page 22862

 1     entire book in existence with the explanations on how to fill in the data

 2     required.  I really don't know who published it.  All doctors got the

 3     same book.  And we need to use it to assign codes so as to have level

 4     criteria when making diagnoses.

 5        Q.   I can tell you that we downloaded this from the web site of the

 6     World Health Organisation, as indicated on our 65 ter list or rather the

 7     list we forwarded.

 8             MR. ZIVANOVIC:  [In English] Your Honours, if we can stop here.

 9             JUDGE AGIUS:  You mean temporarily?

10             MR. ZIVANOVIC:  Temporarily, yes.

11             JUDGE AGIUS:  I was quite sure of that, Mr. Zivanovic.  We will

12     have a 25-minute break now.  Thank you.

13                           --- Recess taken at 3.43 p.m.

14                           --- On resuming at 4.15 p.m.

15             JUDGE AGIUS:  Yes, Mr. Zivanovic.  I heard you're going to try

16     and finish in the next 30 minutes.

17             MR. ZIVANOVIC:  I'll do my best.

18             JUDGE AGIUS:  Yes, okay, thank you.

19             MR. ZIVANOVIC:  Thank you.

20        Q.   [Interpretation] Professor, tell me, please, or rather let's move

21     on to the Pilica locality, which is incorporated in your report, and in

22     the English version it is from page 66 to 92.  And in the B/C/S, from 72

23     to 93.  It is Defence Exhibit 10701.  Or, rather, 10701 D.

24             Could you tell me, please, whether in this locality, of the

25     autopsy reports that you received from this locality, whether you studied

Page 22863

 1     all the findings, all the reports, or not?

 2        A.   No.  No, I didn't study all the autopsy reports.  I looked at 52

 3     cases.

 4        Q.   Can you briefly tell us which cases you looked at and which you

 5     didn't?

 6        A.   I did not study cases where the conclusion made was that

 7     ligatures existed, and that for the simple reason that I considered, and

 8     that's what I wrote in my report, that persons with ligatures can be

 9     considered from the forensic aspect with documented injuries as having

10     been executed in one way or another.  And that is why I took the cases

11     where this was not concluded.  And the reason why I selected the cases I

12     looked at is the same as the ones before.  I looked at the forensic

13     aspects, the ways in which the injuries were observed, dealt with and

14     verified, and so for that reason, I analysed those cases in greater

15     detail, in order to establish whether there are any differences,

16     similarities and so on and so forth.

17             As you were able to note in what I said so far, I was very

18     precise in analysing the individual cases to show where the forensic

19     report was -- autopsy report was done forensically correctly, where the

20     description was forensically correct, and where any other pathologist of

21     my type would be able to conclude what type of injury was sustained.

22             Now, at Pilica which was a primary grave site, as I say I

23     selected those cases and looked at them, and generally speaking, for all

24     of them, there is a common denominator or common conclusion, if I can put

25     it that way, and that is that the pathologists working on these cases and

Page 22864

 1     in describing the traumas sustained, in fact just set a diagnosis of the

 2     injuries, just like in Nova Kasaba 1, 2 and 3, so when the injuries

 3     are -- when it is injuries caused by projectiles, and every forensic

 4     expert would not be able, from those descriptions, to test and ascertain

 5     whether they really were injuries sustained by projectiles.  So that is

 6     my overall general conclusion.

 7             They deal with skull fractures, for example, as well, and

 8     describe them, without more specific diagnostics and descriptions.

 9             A separate case that I'd like to set aside here is the

10     description or rather under inconsistencies of the conclusion made based

11     on those descriptions is the case number 38, Pilica 38.

12             It is on page 78 of my report, 01493296, the ERN number.

13             [In English] It's page 147.

14        A.   Here all, all I can do is read it out once again so that we can

15     all hear.  The head is missing, the body is incomplete, but the base of

16     the skull is present, putrefaction and saponification.  And in the

17     description of the injury, it says, fracture of the skull and fracture of

18     the right part of the pelvis, and the cause is inflicted by firearms.

19             So you can't test the cause of death through the description

20     provided.  So this is the inconsistency that I mentioned earlier on.

21             Furthermore, in the entire analysis of this particular case, and

22     this primary grave site, which I conducted, I quoted, at the end of the

23     individual analyses, the report of Mr. William Haglund, and I'd like to

24     dwell on just two points in that report.

25        Q.   It's P642, 624, sorry.

Page 22865

 1        A.   In his report, he states the following:  "The distribution number

 2     and angle of hits as well as the other characteristics of the wounds

 3     indicate that it could be a burst of gunfire that caused the injuries.

 4     There is additional injuries from bullets to the heads of a number of

 5     victims indicate that fire was opened from the absolute vicinity or point

 6     blank."

 7             From this quotation it we can conclude that there was a burst of

 8     gunfire and that there were -- that there was additional wounding.  From

 9     the forensic aspects I cannot -- I'm not able to confirm that.

10             A burst of gunfire implies the firing of a large number of

11     projectiles into a body and this observation is then checked out and

12     verified through an autopsy.

13             What Professor Lawrence in one of his reports did, and I'll be

14     quoting this later on, well, he said very precisely the concentration of

15     injuries and wounds on a -- one body can indicate that the injuries were

16     caused by bursts of gunfire so a forensic expert knows what a burst of

17     gunfire means and how it can inflict injuries.  On the other hand, if you

18     have a burst of gunfire, continuous shooting, this implies that the

19     injuries and the projectiles that were found are identical or similar,

20     and this brings us to one thing here.  We have one conclusion made by

21     anthropologists, I'd like to stress that, whereas the autopsy finding is

22     unable to verify that.

23             The second point is this, and I'd like to underline that from the

24     forensic aspect, and it is -- he states that very decisively and

25     resolutely, and this cannot be accepted from a forensic aspects, and

Page 22866

 1     that's his observation that additional wounds from bullets to the head in

 2     many victims indicate that a fire was opened either from a close range or

 3     point blank.  This observation is incorrect in two ways.  The first is

 4     that it was up close or point blank, injuries sustained point blank or

 5     from absolute -- an absolutely close vicinity, are not described and it

 6     implies that traces should be found, that is to say gunpowder particles,

 7     whereas the observation that these -- this was a case of additional

 8     wounding by bullets implies that the anthropologist, the forensic expert,

 9     had established the order in which the injuries were sustained, which is

10     absolutely impossible on decayed, skeletised, decomposed bodies, so as a

11     forensic expert myself, forensic pathologist, I'm not able to determine

12     the order of injuries sustained, especially if there were a number of

13     injuries.  I cannot establish their order on the body.  I must have

14     precise parameters for me to be able to tell the Court that one injury

15     was first as opposed to the others and which was the last injury and all

16     the injuries in between.

17             That means that the last injury in the series can have the

18     character of being an executive fatal injury, it could be a slit to the

19     neck or it could be firing at point-blank range, but you can't prove

20     that, and you especially cannot prove it with material like this, that is

21     to say autopsy reports and descriptions of the kind that I looked at

22     here.

23             JUDGE KWON:  Mr. Zivanovic, could you check whether we are

24     following the correct document?

25             MR. ZIVANOVIC:  [In English] Sorry.  Yes, we didn't say the page

Page 22867

 1     of this document, but the witness explained the part of his report.  It

 2     is 1D1070.  It is English page 91 of his report, 91, as far as I know.

 3     It is -- just a moment.  It is from page 89 to page 92.

 4             JUDGE KWON:  In B/C/S.

 5             MR. ZIVANOVIC:  No, in English, we have from page -- it is almost

 6     the same, from page 89, I believe, to page 92.

 7             JUDGE KWON:  Let's proceed.

 8             MR. ZIVANOVIC: [Interpretation]

 9        Q.   Professor, in your report here, I found three cases in which the

10     cause of death was unknown.  Would you look at those reports?  It's now

11     document 624, Prosecution document 624, and the page is 35, 36 and 37.

12     Or rather 38.  And refers to corpse number 9.  In your report, it is on

13     page -- your page 74.

14        A.   Yes, I can see that.  This is an incomplete body with the head,

15     trunk and upper extremities and spine missing, and decay and

16     saponification had set in, and the skeleton was partially bare.  The

17     injuries weren't identified on the other parts so the cause of death was

18     not established, so that can be accepted.

19        Q.   Now let us take a look at page 131 to 133 of that same document.

20     And it relates to body 33, and it's on your page 78.  Or 77.

21        A.   This particular case, we had the entire body with putrefaction,

22     saponification and decay taking place and a partially bare skeleton,

23     without any precise description of the putrefaction that had occurred.

24     Of the injuries, it is noted that the left pubic bone was shattered when

25     a projectile, high-velocity projectile hit the body.  I'm not going to

Page 22868

 1     comment on that injury because that's the diagnosis there but the cause

 2     of death is undetermined, which would be in keeping with the findings as

 3     they have been set out.

 4        Q.   And the last case from that series is page 279 to 281.  It is

 5     body number 74, and on page 84 of your report is where we can find it.

 6        A.   This is a case where the body was incomplete, no missing --

 7     missing skull, left clavicle, bilateral upper and lower extremities,

 8     pelvic bone, left scapula, all cervical and lumbar vertebrae and 11

 9     thoracic vertebrae.  Putrefaction and saponification had occurred and

10     cause of death undetermined and that is in keeping with the findings.

11        Q.   Professor, we are now going to take a look at bodies 83 and 84

12     from your report.  They are not on e-court, although the fourth volume of

13     this report by Dr. Haglund, they are there but I don't know whether we

14     have them, we don't seem to have them in e-court, but we do have it on a

15     CD, so that's what we are going to show.  Page 3462 and body 83.  It

16     starts on page 85 and continues on page 86.

17             Let's take a look at page 33 now of the English version.  [In

18     English] "Recovered evidence bullet from right side of jacket."

19     [Interpretation] Can you explain to us what this means?

20        A.   The bullet on the right-hand side of the jacket.

21        Q.   Tell me now, what -- what does it mean, bullet from right side of

22     jacket?  What does that signify?  How do you interpret that?  Bullet from

23     right side of jacket.

24        A.   All I can say is -- interpret it the way it's written, meaning

25     that it's the entire bullet, the jacket and the projectile, in the pocket

Page 22869

 1     of the jacket or in some part of the jacket.  Nothing more than that.

 2        Q.   Can we now look at the next body?  This is body 84.  It's on the

 3     following page, and I would like us also to look at page 37.

 4        A.   Again, we have the presence of projectiles and it says bullet in

 5     the left side of pocket of trousers.  It's the same thing.  The bullet is

 6     in the trousers, in the clothing.

 7        Q.   In the pocket of the clothing?

 8        A.   In the left side pocket of the trousers, which means that the

 9     entire bullet, which has not been fired, was in the pocket of the

10     trousers.  Usually when you describe the bullet you would say a

11     projectile, a jacket or the projectile, so here the way it's described

12     would indicate that it was a complete bullet.

13        Q.   All right, Professor.  Thank you very much.

14             I'm now going to ask you to move to the Zeleni Jadar locality,

15     Zeleni Jadar 05.  That is also in your report, 1D1070, English pages 93

16     to 104, B/C/S pages are from page 94 to 104.

17             Generally, can you tell us anything that has to do with -- can

18     you please tell us generally about Zeleni Jadar 5?  Your remarks

19     generally, what you have to say about that locality?

20        A.   Well, I have to say first, just like I said yesterday, Zeleni

21     Jadar 5 is a secondary grave.  I did not have enough time in order to

22     completely process all the cases, so I just arbitrarily picked 20 cases

23     which I analysed here in order to be able to get a forensic impression

24     about the process and methodology of work generally, since this is a

25     secondary grave, that is linked with Glogova 2.  150 corpses in total

Page 22870

 1     were found and I analysed 20 of the autopsies out of that number.

 2     According to the report, one body was found at this location with

 3     ligatures.  No bodies were found with blindfolds.

 4             This location, and the remains found there that were examined,

 5     there were cases where shell fragments and shrapnel was found in the

 6     bodies.  What is important for a forensics man is that there was a kind

 7     of discontinuity in the development of the putrefaction on these bodies,

 8     or, rather, there are bodies that are in advanced stages of

 9     decomposition, there are practically skeletonised and there are some

10     corpses that have preserved soft tissues with only a degree of

11     putrefaction.

12             Again, I would like to note that the degree of putrefaction was

13     not described in detail in the autopsy reports, but if you find two

14     groups of corpses with such evidently different stages of preservation,

15     then you have to put this together with the fact or realistic assumption

16     that what is happening here is that we have two groups of bodies,

17     skeletonised bodies, which probably reached that phase earlier, before

18     they were buried in this particular grave, or that the condition in the

19     grave were drastically different.

20             Since this is a secondary grave, we have to take this into

21     account, that the skeletonised bodies, without soft tissues, could have

22     been dead earlier and exposed to conditions that speed up the process of

23     putrefaction, and then later, when this grave was formed as such were in

24     the grave itself as such, because if there are decomposing bodies in the

25     grave already, then we can draw the conclusion that the Zeleni Jadar 5

Page 22871

 1     graveyard already contained some bodies which went through the usual

 2     process of decomposition.  This is something that I can say about that.

 3             Another thing that I can note, which was also noted by Professor

 4     Lawrence or Dr. Lawrence, is that some bones show marks of burning or

 5     scorch marks in the sacks and also there is charring of the clothing

 6     which would indicate that the bodies that were charred and where the

 7     bones were also -- seemed to be charred were exposed to a high

 8     temperature that can be seen or that is created during an explosion of

 9     explosive devices such as shells and other weapons, hand grenades, which

10     is then consistent with the finding that grenade and shrapnel materials

11     were found to a large degree at this location.

12        Q.   For purposes of illustration, I would like us to look at a couple

13     of reports from this location.  We would now look at 33428 on -- in your

14     report, it's on page 96.

15        A.   Yes.  This is case 189 if I'm not mistaken.  And here we have the

16     presence of shrapnel and grenade so the injuries could have possibly been

17     caused by shells and shrapnel, possible shells, the injuries described,

18     even though they are not described in detail, are such that they could

19     have been caused by such objects.  Thus, in spite of the brief

20     description, we could come to the conclusion that those are injuries of

21     that nature.  In other cases, I described that in such situation it's

22     possible to create the conditions for the development of a high

23     temperature.

24        Q.   Can we look at 3451 now, please?  In your comment you said here,

25     and this is on page 97, that it is possible that this injury was caused

Page 22872

 1     during combat.  Generally, can you tell us what you base your conclusion

 2     on about it being a possible combat-inflicted injury?

 3        A.   Just in previous cases, I said that shrapnel discovered in the

 4     area of the left hip, where there is a large surface that can hold back

 5     or stop shrapnel or metal fragments would indicate the distance, and thus

 6     can be then connected with actions resulting from combat because shrapnel

 7     can be a large object that is created when larger lethal means are fired.

 8        Q.   Can we look at your report on the previous page, page 96 of your

 9     report?  At the bottom of the page --

10        A.   Yes, yes, yes, main injuries.

11        Q.   [In English] That's trauma related to death in English version,

12     after second paragraph, it reads, "following discussion, these were

13     concluded to be post-mortem injuries."  [Interpretation] I would now like

14     to ask you to explain to me how you understand this sentence, in

15     following this discussion you could come to the conclusion that these

16     were post-mortem injuries.  I did not actually point this out in some

17     other autopsy reports.

18        A.   Well, look, this remark that is written here also causes dilemmas

19     for me and it makes me begin to think, and I can possibly provide a very

20     broad answer here.  What I mean to say is this:  When you determine main

21     injuries, and this is how they are noted in the way that they are noted,

22     then this sentence can say that what occurred was a conversation among a

23     number of persons, the pathologist, the anthropologist and so on, and

24     that the conclusion was reached that these are post-mortem injuries.

25             However, the cause of death indicating injuries caused by

Page 22873

 1     shrapnel and gunshot wounds would then not be consistent with such a

 2     conclusion because then that cannot be the cause of death.  It would mean

 3     that the injuries were -- occurred after death.

 4        Q.   Professor, thank you very much.

 5             Now I would like to move to the last grave that you analysed.

 6     It's Ravnice 2.  So also can you please tell us if you analysed all the

 7     autopsy reports of the bodies found in this grave or not?

 8        A.   In this case as well, I had to, because of the time

 9     considerations, analyse just a number of cases.  In this case, that is 20

10     cases.  But I took this locality into account in my analysis for specific

11     reasons.  These bodies were actually found on the surface, so throughout

12     the whole time until they were discovered and until the autopsy was

13     carried out, the bodies were on the surface, which would then indicate a

14     different way of putrefaction and the changes that occurred.

15        Q.   I just did not yet mention the page of your report that this can

16     be found in.  This is 1D1070 of your report -- actually, that's your

17     report.  And the page in the B/C/S version is 105 to 121, and in the

18     English version it's 105 to 122.

19        A.   The general remark that can apply in this particular case is the

20     following:  That the description of the trauma is insufficient and

21     inadequate and that the cause of death was established on the basis of

22     such a description.  This would be a general remark.

23             The second thing that can be said about this particular case is

24     that because of this inconsistency, the description of the putrefactory

25     changes, in most cases this is skeletisation or remains without any soft

Page 22874

 1     tissue, so in the majority of cases that I quoted we are talking about

 2     diagnoses given as descriptions of the trauma, so it is not possible to

 3     check if these are actually injuries that occurred.

 4             The third thing that needs to be said is the remark that there

 5     was shell material that was found there, shell fragments, in certain

 6     cases, although there is also a very accurate description of wounds or

 7     injuries, which would then correspond to the conclusion that these were

 8     actually, in fact, gunshot wounds.

 9        Q.   I would like us now to look at a part of the report of 1D1203.

10        A.   And that is the case?

11        Q.   That is the first case on page 105.  This is body number 287.  I

12     apologise, I didn't mention that.

13        A.   Yes.  This is a completely skeletonised body.  It was exposed for

14     a long time to putrefaction, which is -- which corresponds to the place

15     where the body was found.  Fluorographically tiny fragments of metal were

16     found in the remains, these are head and neck injuries here, with only

17     two pieces remaining.  And there are no obvious bullet defects on the

18     frontal and left parietal sections of the skull.  There are fractures of

19     the single rib present at the angle and then further wounds are

20     described.  The cause of death is unascertained.  It was not possible to

21     ascertain the cause of death.  So this is an accurate conclusion in terms

22     of the elements on which it was based.

23        Q.   Can you please now look at Exhibit 1214?  1D1214.  This is body

24     number 319, on page 106 of your report.  It's at the bottom of that page.

25     It is said here that diagnosis -- cut and dried diagnoses were given?

Page 22875

 1        A.   Yes, incomplete description of injuries and a superficial report

 2     on gunshot injuries, with the conclusion that there was -- the injuries

 3     were sustained by firearms, so cut and dry diagnoses are provided without

 4     describing them first.

 5        Q.   Let's have a look at another autopsy report, 1207.  It is page

 6     109, body 92.

 7        A.   We have skeletal remains without any tissue left, which tallies

 8     with the place and time of finding of the body.  Radiographically

 9     speaking two bullets were found as well as shell material with an

10     addition of multiple metallic fragments in the rest of the body.

11     Description of injuries, as such, points to the injuries which would

12     correspond with the found shell material, although the cause of death

13     only mentions gunshot injury of the chest.

14        Q.   [In English] Next page, radiography report.  Sorry.

15        A.   That's the first page of the summary portion of the report.

16        Q.   [Interpretation] Yes.  It looks like it's on the first page.  I

17     apologise.

18        A.   Radiography, please.  We can see it.

19        Q.   Yes, the last paragraph of the summary, the last sentence.  That

20     is what you were referring to?

21        A.   Yes.

22        Q.   Your conclusion was?

23        A.   My conclusion was that the injuries as provided, with an

24     incomplete description, could have been caused by shell material and in

25     the way described.  However, in order to verify any gunshot wounds in the

Page 22876

 1     sense of a projectile being existent, it is simply not there in the

 2     autopsy report.

 3        Q.   Professor Dunjic, concerning the conclusion you made, I believe

 4     you've clarified that sufficiently.  Therefore, I won't ask you about

 5     that.  But I wanted to ask you the following or perhaps a colleague of

 6     mine will ask you about it.  I would like to go to one part of your

 7     comment, at page 126 of your report.  It is 128 in the English.

 8             You mention a report from San Antonio, which contains certain

 9     conclusions and recommendations.  It was drafted by a professional body

10     that deals with forensic medicine and it took place between the 14th and

11     the 19th of November, although I'm not sure we can see the month in the

12     English translation.

13             First of all, generally speaking, what was your source?

14        A.   The report quoted in my report is something I received from a

15     colleague of mine who is also a forensic pathologist who also provided

16     opinions in certain case, Mr. Zoran Stankovic.  At the time he was the

17     head of the military medical academy and also testified here in a case.

18     I quoted that report in my report, so as to provide an illustration of

19     the type of work when they began working in the locations concerning

20     Srebrenica.  You can see for yourself that these are statements of

21     certain participants, for example Mr. Gallagher, Yvonne Milewski, David

22     DelPino, commenting upon the work of Mr. Haglund, Kirschner and the rest.

23        Q.   You talked about numerous omissions, professionally speaking, in

24     the work they performed.  The statements of the people you've just

25     mentioned, do they corroborate your assertions?  Could such omissions

Page 22877

 1     have resulted in the inconsistencies you have been addressing?

 2        A.   One can conclude that from my entire testimony.  The superficial

 3     way of describing obviously points to several things, one of them being

 4     the experience of the pathologists doing the autopsies, provided that

 5     these were indeed forensic pathologists, many of them were young save for

 6     the few who managed the task, who were indeed professional pathologists.

 7     And this tallies with what I've been presenting here yesterday and today.

 8        Q.   Let us see the integral part of the report, which is 2D70, page

 9     5.

10        A.   Yes, that is the report.

11        Q.   I see a complaint in item 12.  I don't think we have that in

12     B/C/S.  It is only in English.  In any case, it reads that she is

13     complaining that she was instructed how to list the cause of death by

14     Dr. Kirschner.  Is that method allowed, to instruct someone carrying out

15     an autopsy, even if the instructor is a forensic expert, is it correct to

16     tell another person what should be the listed cause of death?

17        A.   Everyone is responsible for their work individually, irrespective

18     of who the head of the team is.  Only the person doing the autopsy is the

19     person responsible for what they write, and I will illustrate that with

20     the following.  Mrs. Helena Ranta, who worked with my team on the cases

21     from Racak, she did not meddle whatsoever with the work of Ante Pintila

22     [phoen], who was a forensic pathologist.  His conclusions can be found in

23     the autopsy report.  Therefore, recommendations of that nature to change

24     a finding or a conclusion is impermissible for the person signing the

25     autopsy report.  To exert such influence is unprofessional.  One can

Page 22878

 1     provide advice, explanations by senior to junior colleagues, and

 2     professional explanations and proof can be given, but to change something

 3     that is already written is unprofessional.

 4        Q.   In item 13, it says that anthropologist Dorothy Gallagher saw

 5     problems in the field and in the lab and that she stated that

 6     Dr. Kirschner changed autopsy reports and instructed her what to do while

 7     processing them.

 8             Is something of that nature allowed, permissible?

 9        A.   If I may have a moment.  First of all, it is impermissible.  I am

10     pausing because there is an assertion which I quoted in my report.

11        Q.   Perhaps you can tell it in your own words?

12        A.   It confirms, I believe it was in a collective report, and I

13     believe it was Mr. Haglund that I quoted, he himself confirms that, that

14     they worked in agreement and under Kirschner's management, or, rather,

15     according to his directives.

16        Q.   My question is not whether it is so or not but whether it is

17     permissible.  Could you perhaps address it from that point of view?  From

18     the point of view of professional work, when doing an autopsy.

19        A.   No, absolutely not.

20        Q.   Another thing concerning exhumations.  In item 13 as well, Ms.

21     Dorothy Gallagher says that Dr. Haglund dictated too much speed in

22     exhumation, and because of that there were shortcomings.  Is there a rule

23     in existence when doing exhumations at what rate, speed that should be

24     done, in what way?

25        A.   Standards are set according to the circumstances in the field.

Page 22879

 1     The pace can have an impact on the evidence, parts of bodies exposed to

 2     putrefaction that could be lost in the field.  Documentation following

 3     from that is also highly suspect -- can also be suspected in terms of its

 4     accuracy.

 5        Q.   Item 14 has to do with David DelPino, a Chilean anthropologist.

 6     He says that operations were halted when Dr. Haglund was away.  What sort

 7     of an impact could that have had on the exhumations and autopsies, since

 8     the work was halted due to an absence of a member of the team?

 9        A.   It can have an impact if it's an open-air location, if there is

10     no soil covering the bodies, one only enhances decomposition, changing

11     the pathological substrate substance that needs to be recorded.  The

12     bodies that are being exhumed and put in body bags used to transport them

13     to a refrigerator, even during that short interval, one greatly enhances

14     the rate of decomposition.  In such cases, later on, you may establish

15     skeletonisation which may not have existed at the place and moment of

16     exhumation, and they halted the entire operation while the bodies were on

17     the surface.

18        Q.   Another matter concerning item 14 and something David DelPino

19     discusses therein.  He says that clothing was discarded at Haglund's

20     command, even though some contained identification.  I'm not precisely

21     sure what it means, but tell me this:  According to the rules of your

22     profession, is it permissible to discard clothes found during

23     exhumations?

24        A.   No, not a single piece or item of clothing found at a location

25     can be discarded.  That is to say, if such clothing is on the body, it

Page 22880

 1     goes with the body.  If something is found next to the body, say a hat,

 2     it can be joined with the body, but if we find pieces of clothing further

 3     away or torn, they are still taken and marked separately so that later on

 4     we can provide material for additional identification.  Say there are

 5     trousers.  You can't find ten male trousers and then later on suspect

 6     that there was a woman among the corpses.  If you find clothes,

 7     irrespective of where and how it was found, without it you won't have all

 8     the indicators and parameters that should and must help you in the

 9     process of identification.  The DNA analysis carried out is not -- are

10     not the only parameters used to identify the persons found.

11        Q.   One of my last questions has to do with this document as well.

12     It's page 12.  This is the one.

13             Page 12, and let's look at point 9.

14             Let's look at the title first.  It says, "Recommendations,

15     committee recommendations."  That is the professional body that looked

16     into all the complaints.  So let's focus on point 9 and could you comment

17     on that point, please?  It says, "There was too much subjectivity and not

18     enough objectivity when the exhumation and post-mortem examinations were

19     carried out."  No, I'm sorry, that doesn't seem to be it.  I do

20     apologise.  It's page 11.  We need page 11.  That's right.

21             And it says, "There was mutual agreement on management problems

22     on the part of the supervisors."  Now the points are set out and I was

23     quoting from point 9.  [In English] "There was too much subjectivity and

24     not enough objectivity in the performance of the exhumation and

25     post-mortem examinations."

Page 22881

 1             [Interpretation] Tell me, please, looking through samples, look

 2     at these findings at random, do you share that opinion?

 3        A.   From what I said, it follows it would appear that I'm in

 4     agreement with the conclusions made by this professional body.  I've just

 5     found it.  And I have to say that this is linked to what was previously

 6     stated about changing conclusions and findings in one way or another, and

 7     Haglund in his document for Cerska, the 15th of June 1998 on page 11 of

 8     the translation in Serbian precisely noted that point.

 9        Q.   I think that you incorporated that.

10        A.   Yes.  It says the autopsy examinations were conducted under the

11     supervision of Robert Kirschner.

12        Q.   Could you just give us a page reference, please?  I apologise.

13        A.   It is on page 122 of my report, where I state my opinions.

14        Q.   [In English] 122, I believe.

15        A.   Yes.

16        Q.   [Interpretation] General conclusion on page 122.

17        A.   That's the right page.

18        Q.   Here it is now.  Next page, please, in English.

19        A.   Paragraph 3 is the relevant paragraph.  I'm going to read it out.

20     "In that report, Mr. Haglund states the following, among other things.

21     Autopsy examinations were carried out under the supervision of Dr. Robert

22     Kirschner, director of the international forensic programme of Physicians

23     for Human Rights, and in brackets, [PHR].  Finalisation of cause and

24     manner of death, as well as editing of final autopsy reports was

25     facilitated by ICTY legal adviser Peter McCloskey, the pathology summary

Page 22882

 1     was authored by Page Hudson, MD.  So from this we can see that certain

 2     corrections were made, adjustments.

 3        Q.   Thank you, Professor.  I have no further questions.

 4             JUDGE AGIUS:  Thank you, Mr. Zivanovic.

 5             Now, I have first on my list as a co-defendant summoning this

 6     witness the Beara Defence team.  Mr. Ostojic, do you wish to examine this

 7     witness?

 8             MR. OSTOJIC:  I do, Mr. President.

 9             JUDGE AGIUS:  Go ahead, please.

10                           Examination by Mr. Ostojic:

11        Q.   Good afternoon, Dr. Dunjic, and as you know my name is John

12     Ostojic and I represent Mr. Ljubisa Beara in this case.  I've had the

13     pleasure to meet you but good afternoon to you again.  Sir, I'd like to

14     follow up on a couple of questions my learned friend asked on direct.

15     First and foremost, can you tell us, when you said that it was

16     impermissible to do certain things, why would it be impermissible from a

17     forensic pathologist's standpoint to discard for example clothing or

18     items such as identification found on a corpse?

19        A.   Well, that's just proof and evidence that that forensic

20     pathologist is working very unprofessionally and superficially and I've

21     already said what finding even one item of clothing or fragment of

22     clothing means with respect to the identification of a corpse, of a

23     victim.

24        Q.   Can you share with us under what circumstances, if any, would a

25     reasonably prudent independent forensic pathologist permit or allow a

Page 22883

 1     Prosecutor or a Defence attorney for that matter to participate in

 2     formulating the cause or manner of death?

 3             MR. McCLOSKEY:  Objection.  There is no evidence whatsoever in

 4     the record that any Prosecutor took part in the formulating the cause of

 5     death.  This is this absurd fantasy that they try to spin off on last

 6     time.

 7             JUDGE AGIUS:  Yes.  Do you wish to comment on that or do you wish

 8     to move to your next question?

 9             MR. OSTOJIC:  I think it's a misstatement of the facts and I

10     think my learned, friend with the most respect, is inaccurate.

11             JUDGE AGIUS:  Stop.  If we are going to discuss this I don't want

12     it discussed in the presence of the witness.

13             MR. OSTOJIC:  Instead of -- because time is always of the

14     essence, I would like to get back to it but I'd like to turn to an

15     exhibit first with the Court's permission.

16             JUDGE AGIUS:  Let's see what you have to say.

17             MR. OSTOJIC:  And I'll restate the question perhaps after this

18     exhibit.

19             JUDGE AGIUS:  All right.  Let's see the exhibit.

20             MR. OSTOJIC:  Can we have 2D70, please?

21        Q.   And it's page 11, the one that you were just looking at,

22     Dr. Dunjic, you were asked specifically about paragraph number 9, and

23     what I'd like to ask you about is paragraph number 6.  Let me know when

24     you've had that in front of you.  And I'm not sure the extent of your

25     English, but I'll try to read it for you here verbatim.  Okay.  Paragraph

Page 22884

 1     6 in this report, it says, "Universal agreement on the alteration of

 2     reports and final opinion as to the cause and manner of death without

 3     consulting the prosecutor who had performed the post-mortem examination,

 4     this should not have been done."

 5             JUDGE AGIUS:  Are you capable of understanding this paragraph,

 6     Mr. Ostojic?

 7             MR. OSTOJIC:  I am, Your Honour.

 8             JUDGE AGIUS:  Okay.  Let's see what your question is.

 9             MR. OSTOJIC:

10        Q.   Under what circumstances, if any, would a reasonably prudent

11     independent forensic pathologist allow or permit, if it occurred, for a

12     prosecutor to participate in formulating the cause or manner of death?

13             MR. McCLOSKEY:  Objection, there is no indication whatsoever that

14     any prosecutor in this case ever took part in any form or manner of death

15     or took part in any autopsy or anything like that, and that's -- it's

16     absurd.

17                           [Trial Chamber confers]

18             JUDGE AGIUS:  Our decision by majority is to proceed with your

19     next question, Mr. Ostojic.

20             MR. OSTOJIC:  Thank you, Mr. President.

21        Q.   Sir, what effect, if any in your opinion, does it have on the

22     report if someone other than the forensic pathologist was formulating an

23     opinion as to cause or effect of death?

24        A.   From what I said yesterday and indeed from what I said today too,

25     it is obvious that in all cases, that the observation exists that the

Page 22885

 1     cause of death was linked to the injuries, which were either incompletely

 2     described or not described at all as having been caused by firearms, and

 3     in the manner of death, that what is mentioned is killing.  So if

 4     somebody keeps insisting upon the fact that we are dealing with killings,

 5     with murder, and if somebody keeps insisting but is inconsistent in their

 6     findings with respect to the cause of death, then that's quite clear.

 7             So a forensic pathologist cannot allow his findings and his

 8     reports, particularly in the conclusions about the cause of death, should

 9     be altered in any way, just as we must not allow any arbitrary

10     conclusions as to the cause of death, because forensic pathology is very

11     pragmatic in that area.  And Mr. Clark in his report indeed addresses

12     this and Mr. Lawrence here too.  They were very resolute in stating that

13     you need proof and evidence of the injuries to be able to establish the

14     cause of death.  So unless you establish all this, you can't do that, you

15     can't alter something as you go along and then make your own conclusions.

16     So as a forensic pathologist myself, that would be impermissible.  I

17     would not accept anything like that.

18        Q.   And, Dr. Dunjic, that's just not your standard, that's actually

19     the universally accepted standards for forensic pathologists, isn't it?

20        A.   That -- it should be a universally -- it should be a universally

21     accepted standards but quite obviously people have accepted the

22     guidelines and advice, and that is why at the big conference in San

23     Antonio where the leading pathologists and forensic experts and

24     anthropologists meet to debate and discuss matters, they discuss this

25     too.  In our own circles, our own professional circles, not linked to

Page 22886

 1     these events in Srebrenica or anything like that, our chambers, chamber

 2     of forensic pathologists and so on, we discussed that and my information

 3     tells me that they discussed it in England, in London, the professionals

 4     in their professional circles, discussed this too, how these reports

 5     should be written, what you should include and so on.

 6             Because as a forensic pathologist, in order to provide you, the

 7     Court and lawyers a precise and objective findings and report, that is my

 8     duty, and then if you put together all the other parts of the puzzle and

 9     all the other elements on the basis of witness testimony and so on, you

10     can create your own picture.  I can't lead you to a conclusion which is

11     not substantiated by my report.  If somebody was killed by a projectile,

12     then that projectile and everything surrounding the event must be

13     described, and I gave you examples of how we worked.  I worked on a large

14     number of cases, an enormous number of cases, of bodies, corpses, which

15     had been putrefied, and then you list everything, you say the corpse has

16     been decomposed, that there were such and such injuries.  You don't go

17     and write the cause of death straight away.  You have to make those

18     conclusions on the basis of objectively observed facts and recorded

19     facts, and not to say what you assume happened, and then ultimately it's

20     up to the Court to weigh all the evidence and make their decisions

21     accordingly.

22        Q.   Okay.  And those findings, I think as you stated to us yesterday,

23     are both -- they come from the external and internal findings that a

24     pathologist conducts during autopsy, correct?

25        A.   Absolutely correct.  You must have the external and internal

Page 22887

 1     findings, detailed ones, and this refers not only to trauma but to the

 2     entire findings and report in which you can describe and see post-mortem

 3     changes on the corpse, their degree and all the other processes that can

 4     be observed and described on a corpse.

 5        Q.   Help us understand this, sir.  I know there is obviously a

 6     difference between cause of death and then manner of death, as you've

 7     described and isolated for us today and yesterday specifically on page

 8     62, but when you discuss cause of death and you find that it was "not

 9     established," under what circumstances can a reasonably prudent forensic

10     pathologist come to any conclusion as to the manner of death if again,

11     just so you know, the cause of death is "not established"?

12        A.   That is a subjective position, then, absolutely subjective,

13     because without -- if you cannot determine the cause of death, and this

14     is confirmed by an autopsy report or the descriptions given, and then

15     that you go ahead and conclude that it was a killing, so that's your own

16     personal attitude, subjective, or suggested, a suggested position.

17        Q.   Now, help me understand this.  Are there different criteria or

18     words that a forensic pathologist such as yourself and those universally

19     would use if they are uncertain as to what the findings results should

20     be?  And for example if I may assist you, do pathologists, forensic

21     pathologists use words such as unascertainable or uncertain or

22     questionable in their field of specialty when it comes to both cause of

23     death and/or manner of death?

24        A.   In rare situations, when you have a fresh corpse and when no

25     clear cause of death is found, whereas you have the corpse, the body, as

Page 22888

 1     a fact, then the pathologist can write and state that the cause of death

 2     was not ascertained and possibly to explain why, to give reasons why,

 3     because there is no evidence of trauma, of disease, laboratory findings

 4     are such that they cannot confirm whether there was a metabolic

 5     disturbance or whatever, that's one type of situation.

 6             And another type of situation is this:  When you don't have

 7     elements which would indicate that the injury was sustained during life.

 8     For example on various organs, the brain, the heart, the abdomen, that

 9     would be then linked to the cause of death later on.  So we write down

10     that the cause of death in such cases cannot be ascertained because there

11     were changes that took place during the life of the person.  And all this

12     has to be written down.

13             Now, if I understood you correctly and your question correctly, I

14     said what the origins or cause of death means and how the person was

15     killed and the injuries that were observed, whether they could be linked

16     to violent death or sudden death or suicide, so this notion of killing is

17     a legal concept.

18             Forensically you have to have certain elements present which

19     emanate from an autopsy and autopsy report, which to a greater or lesser

20     degree of probability indicate to the Court that it was one or another

21     type of injury.  And when you say that it is a killing, that a killing

22     has taken place, then you need to substantiate that very well with your

23     arguments for the Court to accept that.

24        Q.   Well, I was just trying to focus on words such as

25     unascertainable, unquestionable, and uncertain, but what about words --

Page 22889

 1     do pathologists, forensic pathologists, such as yourself in their either

 2     cause of death or manner of death use words such as inconsistent with,

 3     for example, homicide?  Or consistent with homicide?  Is that in essence

 4     what you're saying, that the pathologists should have noted where they

 5     felt the factors were supportive of any one or another conclusion?  Isn't

 6     that the essence of your work?

 7        A.   In all cases, well, autopsy and an autopsy report, must be very

 8     precise and exact.  Somebody can have a large number of injuries, for

 9     example, and nobody can challenge that, of the head, the trunk, the limbs

10     and so on.  This large number of injuries must be substantiated and

11     documents and then linked up to the cause of death.

12             Now, the manner of death, the manner of death, is something that

13     the pathologist -- it is not up to the pathologist to determine, or he

14     must use an international classification that we saw a moment ago on the

15     manner of injury.  Now, it's up to the Court, let me state this again, on

16     the basis of all the evidence presented, to determine what ultimately

17     caused the death of the individual.

18        Q.   Now, we will talk about those classifications since you brought

19     it up.  When we discussed the classifications that you've looked at, are

20     you familiar with, and we have used the word interchangeably

21     unfortunately throughout this trial, words such as ambush, but I think

22     one of the OTP witnesses, Richard Butler, identified that ambush as we've

23     have called it as a legitimate military engagement and I think in using

24     the classifications that you did, did you find that those classifications

25     when talking about operations in a war theatre are actually, as you've so

Page 22890

 1     identified, legitimate military combat engagements?

 2        A.   I cannot answer that question, because when it comes to

 3     legitimacy and whether something is legitimate, that must be established

 4     by lawyers and courts.  All I can talk to you about is injuries, the

 5     injuries sustained in one way or another.

 6        Q.   Help me with this since you have a classification in front of

 7     you.  Doesn't it use the word "legal" when it does those classifications

 8     in war operations?

 9             MR. MITCHELL:  Objection, leading, Your Honour.

10             JUDGE AGIUS:  Yes.  Thank you, Mr. Mitchell.  Do you wish to

11     explain further or shall we hear Mr. Ostojic?  Do you agree that it is

12     leading, Mr. Ostojic?

13             MR. OSTOJIC:  It's really directing him to that specific area but

14     I think we saw it on the ELMO but I could do it obviously without

15     leading, if we could have that exhibit, please, now, pleased on the ELMO.

16             JUDGE AGIUS:  Yes, Mr. Mitchell?

17             MR. MITCHELL:  Your Honour, this is also going well beyond this

18     witness's expertise as well.

19             JUDGE AGIUS:  That is what I actually had in mind when he put the

20     first question, which the witness made clear already that he couldn't

21     answer.  But he beat me on time.  So now it's my turn.  I think you need

22     to move on to your next question.  And leave this subject matter aside

23     because this is not his expertise.

24             MR. OSTOJIC:  I think if I may, with the highest of respect to

25     Your Honours, this is specifically identified in his opinion and the

Page 22891

 1     expert witness has relied specifically on these classifications, he's

 2     noted them, the Prosecution has had them, all I want to do is because

 3     he's a pathologist and he may believe that he's not rendering an opinion

 4     based on any legal issue but it's clear that these classifications given

 5     to pathologists universally they do denote specifically that which I

 6     asked the witness, utilising that very word, "Legal".

 7                           [Trial Chamber confers]

 8             JUDGE AGIUS:  Now we are unanimous on this, Mr. Ostojic.  Let's

 9     move to the next subject, please.

10             MR. OSTOJIC:  Thank you, Mr. President.

11        Q.   Doctor, when we talk about the cause of death and manner of death

12     as two distinct items, I think yesterday in your testimony you said that

13     basically the two go hand in hand and I think it's in -- on page 51, line

14     7 through 12, but I wasn't sure on your answer, and if you could clarify

15     it for me, could you have a cause of death that is known but a manner of

16     death that is undetermined or unknown?

17        A.   Yes.  There are such cases.  For instance, when you have the

18     cause of death, I don't know what example to take.

19        Q.   I'll give you one.  Let's say there is a gunshot wound to the

20     head and you're not certain from the evidence that you've seen whether it

21     would have been as a result of a homicide, a suicide or justification in

22     self defence, for example, or for that matter, a legitimate military

23     engagement.  Under those, circumstances, for example, could you determine

24     as a forensic pathologist what the cause of death was but not know what

25     the manner of death was?

Page 22892

 1             MR. McCLOSKEY:  Excuse me, I'm going to object to that for

 2     foundation, manner of death --

 3             JUDGE AGIUS:  Mr. McCloskey, I think you need to have a

 4     consultation between you and Mr. Mitchell as to who is going to continue

 5     the role of Prosecutor with this witness.  So I suggest we have a break

 6     now.

 7             You know what the practice has been.  We allow one, unless there

 8     are certain circumstances.  If you wish to sit near Mr. Mitchell and --

 9     but we prefer if it's only one counsel that --

10             MR. McCLOSKEY:  I understand, Mr. President, and it will be

11     Mr. Mitchell and we can go on.

12             JUDGE AGIUS:  Thank you.  Then let's have the break now, 25

13     minutes.

14                           --- Recess taken at 5.44 p.m.

15                           --- On resuming at 6.14 p.m.

16             JUDGE AGIUS:  I see that Mr. McCloskey liked my idea or

17     suggestion.

18             Let's continue, Mr. Ostojic.

19             MR. OSTOJIC:  Thank you, Mr. President, Your Honours.

20             JUDGE AGIUS:  I suggest you repeat your question so that we'll

21     hear the objection again.

22             MR. OSTOJIC:  Okay.

23        Q.   There has been quite a few but I'll repeat the last one before

24     the break and then maybe we'll deal with that.  Sir, before the break I

25     asked you to in essence describe the difference between cause and effect

Page 22893

 1     and manner of death and I stated on page 56 as follows, because you had

 2     stated you didn't have an example to clarify, could you have a cause of

 3     death that is known but a manner of death that is undetermined or

 4     unknown, let's say there is a gunshot wound to the head and you're not

 5     certain from the evidence that you've seen whether it would have been as

 6     a result of a homicide, a suicide or justification in self defence, for

 7     example, or for that matter a legitimate military engagement, under those

 8     circumstances for example could you determine as a forensic pathologist

 9     what the cause of death was but not know what the manner of death was?

10             JUDGE AGIUS:  Yes, Mr. Mitchell?

11             MR. MITCHELL:  Objection, Your Honour, he needs to define the

12     term.

13             JUDGE AGIUS:  Define the term in what sense?

14             MR. MITCHELL:  It's a legal term, Your Honour.

15             JUDGE AGIUS:  As I understand it, it is basically he's asking the

16     witness to confirm that as a pathologist, as such, he's not interested in

17     the -- in whether it was a justification in self defence or military

18     engagement, et cetera, but then he adds also suicide and homicide.  To my

19     knowledge, forensic pathologist will go into that and that's one of the

20     most fundamental tasks that he has to carry in, short of other evidence,

21     he would need to confirm --

22             MR. OSTOJIC:  And I think, with all due respect, we can stipulate

23     if the pathologist can't reach a legal confusion then for that matter if

24     that's what my learned friend is saying, I think the pathologist reports

25     that are in evidence should be stricken if that's what he's saying, but I

Page 22894

 1     think a forensic pathologist can indeed reach a conclusion based upon

 2     reasonableness and specifically those external and internal factors that

 3     Dr. Dunjic has testified to in the last two days, but I'd be happy to

 4     stipulate to that if they wish.

 5             JUDGE AGIUS:  If I were in the witness's place, I know how I

 6     would answer that question.

 7             But, Professor, would you -- one moment, yes?  Why don't you let

 8     him answer it?  I think he's a perfectly qualified person, coming from a

 9     country that in medicine has had a reputation of excellence for decades

10     and decades.  We are not talking with someone who doesn't know his

11     subject.

12             MR. MITCHELL:  Yes, Your Honour.

13             JUDGE AGIUS:  Mr. Dunjic, if you could please illuminate us on

14     this complicated, seemingly complicated issue?

15             THE WITNESS: [Interpretation] Thank you, Your Honour, and I'm

16     glad that you've noted that I come from the country but from a country

17     with an institute with a very high reputation and we have a long

18     tradition and unfortunately experience in matters like this, so my

19     specific answer to your question is that we forensic experts establish

20     the cause of death so we note everything.  As for the manner of death, is

21     the wound that is seen, is it quite legal?  Actually not that term, not

22     that term legal.  Did it happen accidentally, was it a suicide, was it a

23     killing, was the source of that wound that?

24             Then the Court defines the problem for us and says, "Based on

25     these elements that you have noted in your autopsy report, can we talk

Page 22895

 1     about a specific manner of death?"  I cannot directly answer that

 2     question because such an injury can be caused in three different ways,

 3     accidentally, it can be a suicide or a killing.  In order to be able to

 4     give a more specific answer, we can do that and then the Court can draw

 5     the conclusion about the manner of death, whether it was accidental, a

 6     suicide or a killing.

 7             I need to make a very good autopsy report.  I need to note or

 8     report all the traces which would point to the first, second or third

 9     element.  I would need to have testimony of witnesses which could

10     indirectly confirm that line.  I would need to have the complete records.

11     And then finally my conclusion would note that elements, for example, in

12     the right temple, perhaps that would be an entry wound and an exit wound

13     would be at the left temple, then this would need to be absolutely

14     documented with gunpowder traces but still that would not be reliable

15     evidence that this was perhaps a suicide.  It could also be an accidental

16     killing or a murder.

17             I need to provide the Court information based on which they, on

18     the basis of the entire body of evidence, could determine whether it was

19     this or that.  I can note that the person was right-handed, that there

20     were traces of blood or gunpowder, that on the entrance wound, there are

21     traces of blood and I could say most probably in the right hand, it was

22     touching the right temple, that's where the entry wound was, et cetera,

23     et cetera, based on which the Court would then draw the conclusion that

24     this could then amount to a suicide, an accidental killing or a killing.

25             As forensic experts, we cannot give final decision on the -- we

Page 22896

 1     can provide information about the manner of wounding, but we cannot say

 2     whether this was a self-inflicted wound, as an accident, as a consequence

 3     of an accident or as a consequence of something else.  I cannot say that.

 4     So I cannot speak about the legitimacy of something.  It's absolutely out

 5     of the question that we state opinions on any legal points or whether

 6     something is a legal point or not.

 7             MR. OSTOJIC:

 8        Q.   And I recognise that, thank you very much, Dr. Dunjic, for that.

 9     And so that's why we would use such classifications as you've seen

10     because that lists out specifically what instances you as a forensic

11     pathologist may or may not rely upon in determining whether or not

12     certain deaths that were caused resulted from certain circumstances;

13     isn't that correct?

14        A.   Yes.

15        Q.   And, doctor, we have talked about two specific things here and I

16     just want to separate them for a moment.  We are talking about cause of

17     death and manner of death and I started out by asking you if you have a

18     cause of death that is unknown or unascertainable, I think it was your

19     opinion that you could never then make a conclusion as to the manner of

20     death.  Now I'd like to look at the opposite.  If you do know the cause

21     of death, can you also have the manner of death to be unknown,

22     unascertainable?

23        A.   The opposite situation would be the same as the one before.  I'm

24     never going to say anything about the manner of death, even if I do or do

25     not have the cause of death.  The cause of death, when we are speaking in

Page 22897

 1     principle, means whether it's an accidental death, a suicide, or a

 2     killing.  But I'm not going to speak about that if I don't know what the

 3     cause of death is.  The cause of death could be natural or violent.  What

 4     are the elements pointing to a violent death?  So that I could then

 5     determine the manner of death, whether it was a killing, suicide or an

 6     accidental death.  I would not go into that at all, especially if I'm not

 7     aware of the cause of death.

 8        Q.   And I understand that but I don't know if you're following me and

 9     I apologise to you and the Court for that.  What I'm suggesting to you,

10     sir, is that we can have -- if we have an unknown or unascertainable

11     cause of death, in all instances, when the cause of death is unknown, the

12     manner of death should also be unknown or unascertainable, in 100 per

13     cent of the cases?

14             JUDGE AGIUS:  Yes.

15             MR. MITCHELL:  Objection, leading, Your Honour.

16             MR. OSTOJIC:  Okay.  I'll restate it.

17        Q.   Under what circumstances, Dr. Dunjic, could you possibly have, as

18     a reasonably prudent forensic pathologist, under what circumstances can

19     you have cause of death to be known or unknown and manner of death to be

20     known?

21        A.   If I understood you correctly, the manner of death, whether it's

22     accidental, a suicide or a killing, I can just give my opinion on the

23     basis of precisely established findings only on condition that this is

24     something that the Court requests us to do.  The Court could say, "You

25     have the established wounds that are such and such, the cause of death is

Page 22898

 1     established.  Could this injury be caused by point blank or fire at a

 2     distance and would this indicate this kind of wound infliction or a

 3     different kind of wound infliction?"  So perhaps I can give my opinion to

 4     the Court, but it could not be the only opinion of an expert.

 5        Q.   But can you in any circumstances conclude or give an opinion, and

 6     I respect that, that you are giving an opinion, can you give an opinion

 7     as to manner of death under any circumstances if you don't know or have

 8     already determined that the cause of death in -- is unascertainable or

 9     unknown?

10        A.   No, I couldn't really give an opinion.

11        Q.   There is no such circumstance, because none exists, it's an

12     impossibility, both in fact and in law, that a reasonably prudent

13     forensic pathologist --

14             JUDGE AGIUS:  Why are you asking him?  Yes, Mr. Mitchell?

15             MR. MITCHELL:  Objection, again, Your Honour, leading.

16             JUDGE AGIUS:  Yes.  Yes, it's so obvious, Mr. Ostojic.  It's the

17     way you phrased it, Mr. Ostojic.

18             MR. OSTOJIC:  I'll restate it.

19        Q.   Dr. Dunjic, remind us how many years of forensic pathological

20     experience you have, sir.

21             JUDGE AGIUS:  You can look at his grey hair.  Let's move.

22             MR. OSTOJIC:  It's okay, fair enough.

23             JUDGE AGIUS:  You should have read his CV.

24             MR. OSTOJIC:  I did but it would have been leading if I said he

25     had X amount of years, Your Honour.

Page 22899

 1        Q.   In any event, in any event, Dr. Dunjic, in all seriousness, have

 2     you ever seen a forensic pathology report where the cause of death was

 3     unknown or unascertainable and yet the manner of death was cited by the

 4     pathologist other than in these documents that you've reviewed here?

 5        A.   I've never seen one.

 6        Q.   Thank you.  Let's talk about two other concepts which is --

 7        A.   I must admit.

 8        Q.   Sorry.  Thank you.  Dr. Dunjic, let's talk about two other

 9     concepts, and that is exhumation and relative or compared to post-mortem

10     examination.  Yesterday, early in your testimony on approximately or on

11     page 30, specifically, you said that at first blush, when you look at

12     those reports, they seem essentially acceptable, and then you went on to

13     say that you had "a major objection and that there was omissions by the

14     examiners in the absence of a detailed description".

15             Do you -- and there's more, all observed changes on the corpses

16     in the body.

17             Do you, as a forensic pathologist, when we talk about exhumations

18     and I think it's on page 127 of your report under Roman numeral number 5,

19     you initially state, I'll just -- it's 127, roman numeral 6, actually,

20     and you state, "The standard methods were generally used and the graves

21     were analysed in detail."  Do you see that?  It's in paragraph 5 in your

22     opinion section, just toward the end of your report.  Where it starts,

23     sir, if I can just help a little bit, where it states "the applied

24     methodology of the evacuation and exhumation."  Roman numeral 6.

25        A.   Yes.  I stated that in that report and I think I mentioned that

Page 22900

 1     yesterday, meaning the applied methodology of exhumations as described

 2     actually what is done in an exhumation, how the bodies are transported,

 3     marked, where they are kept and so on, as well as the process from taking

 4     them out from the cold rooms to the actual autopsy itself and then the

 5     description of the procedure that is carried out, this is absolutely

 6     accurate, and there are no remarks or objections there.  This is as far

 7     as the procedure goes.  Then the reports on the autopsies that I examined

 8     are of a certain -- have a certain template.  It's a form where all the

 9     things that need to be looked at are listed as well as there is a space

10     where the description should be given, so all that I have mentioned so

11     far is standard procedure, and it's all accurate.  There are no remarks

12     on that.

13             The remarks are in another part that relate to the pathologist

14     himself, who has taken this particular form and has inspected the body

15     and noted down whatever he noted down.  What is actually noted down, what

16     is written down.  As I said, as for external and internal and

17     traumatological findings are all separate things.  We have a standard

18     that we need to stick to in these collective reports, how this procedure

19     should be carried out, and in these collective reports, the way that was

20     put, you can see that everything was done properly, but the individual

21     reports, and what is said in the individual reports, which is why I asked

22     to see these autopsy reports, there, you can see the points which I

23     remarked on, my objections to these autopsy reports, and this is

24     objective that diagnoses are used, that they are superficial, there are

25     no detailed descriptions and there is a conclusion about the cause of

Page 22901

 1     death and death -- the fact of the death itself.

 2        Q.   And we do see that obviously, Dr. Dunjic, on the next page of

 3     your report.  Under that same subsection, on page 128, after you comment

 4     on the San Antonio report you find that as you just said it was

 5     insufficiently precise or imprecise, there was superficial and that there

 6     were arbitrary conclusions made.  My question to you is this:  What if

 7     any effect does this have on the totality in your opinion on the

 8     exhumation process that was conducted?

 9        A.   This is evident in the autopsy reports and in the things that I

10     mentioned yesterday and today.  What I noted is not related to the

11     objections.  I just put them there as an illustration to confirm what I

12     said yesterday and the day before and what I said before in my analysis

13     of the individual reports.

14        Q.   Well, let me ask you a more precise question.  You as a forensic

15     pathologist, when you're looking at that knowing that the exhumations

16     were insufficiently precise, arbitrary and, as you put it superficial, do

17     you have an opinion --

18             MR. MITCHELL:  Objection, Your Honour, that's extremely leading.

19             JUDGE AGIUS:  Yes, Mr. Ostojic.

20             MR. OSTOJIC:  Your Honour, I respectfully disagree.  First, I

21     didn't even state the question.  Second, I can ask this witness on direct

22     if he has an opinion based on factors that he's concluded and whether --

23     I just don't see how it's leading at all, Mr. President.

24             JUDGE AGIUS:  Yes.  Go ahead with your question.  Mr. Ostojic is

25     referring to the witness's report, specifically two parts where the same

Page 22902

 1     words are used so please go ahead.

 2             MR. OSTOJIC:  Thank you, Mr. President.

 3        Q.   Dr. Dunjic, I was starting to ask you this specific question.  As

 4     a forensic pathologist, based on a reasonable degree of certainty, when

 5     you look at exhumation reports which are insufficiently precise,

 6     arbitrary and superficial, what does that cause you as a forensic

 7     pathologist to do, if anything?

 8        A.   Objectively, one of the reactions from positions that I'm in, as

 9     a professor of forensic medicine is that this was carried out with

10     younger colleagues with not enough experience.  This is one of the

11     possible explanations why this was so.  Or when I say insufficient

12     experience, what I mean is that people who are not specialised in this

13     work conducting the autopsies.  I'm not sure of that, but actually the

14     way the findings are put can lead one to such a conclusion.

15        Q.   Well, based on your experience, doctor, do you have an opinion

16     whether you would find those reports to be reliable or not, given that

17     you found that they are imprecise, superficial and arbitrary, among other

18     things?

19        A.   I cannot answer specifically and I cannot say that this applies

20     to all the locations.  I said very precisely in the analysis and pointed

21     out the autopsy reports that were very precise, according to the forensic

22     medicine standards.  I did not say that this applied to each one.  But I

23     found a large number of such protocols as such and cited them, but for a

24     number of them you can see that they were very precisely done which

25     indicates that they were done by a pathologist with a broad and

Page 22903

 1     specialised knowledge and experience.

 2        Q.   I'm sorry, doctor, and forgive me, I wasn't implying that each

 3     and every one of the exhumations were done arbitrarily, superficially or

 4     without precision, but those that you've identified, my question was just

 5     those that you made that conclusion with respect to those exhumation

 6     sites, would you find them to be reliable or unreliable, the results or

 7     conclusions from those exhumations that you criticised, found deviations,

 8     in your opinion?

 9        A.   I pointed that out, that these were reports that a person could

10     not rely on or comment on them in a particular way without exceeding

11     one's area of expertise.  You can actually give an opinion but the

12     opinion must be based on a fact which as such is very precisely defined

13     and stated.

14        Q.   Let me move now to that second subject.  We covered a bit here,

15     exhumations, the post-mortem examinations, and I've noticed in your

16     report specifically on pages 35, 36 and peppered throughout the report,

17     where you use the term such as impossible to establish, absolutely

18     arbitrary, incorrect, incomplete and superficial description and you go

19     on on page 37, unclear, incomplete, superficial again, and then

20     ultimately, unprofessional description.  End quote.  I think if you just

21     look on page 35, 36 and 37 you'll find that just for the sake of time.

22             When you say, sir, it was an unprofessional description, are you

23     saying that your opinion based on a reasonable degree of forensic

24     pathology is that the professionals who rendered these opinions failed to

25     meet the standard of care required of a reasonably prudent forensic

Page 22904

 1     pathologist?

 2             JUDGE AGIUS:  Yes, Mr. Mitchell?

 3             MR. MITCHELL:  Objection, leading, Your Honour.

 4             MR. OSTOJIC:  Okay.  I'll restate it, Your Honour because --

 5             JUDGE AGIUS:  It is leading.

 6             MR. OSTOJIC:  It is, there is no doubt.

 7        Q.   What is your -- what do you mean when you make these conclusions?

 8     We can go through each one but let's just try to short circuit a little

 9     bit.  When you reach the conclusion that it's impossible to establish,

10     absolutely arbitrary, et cetera, what are you saying?

11        A.   I am indicating to you that that report, such as it is, the way

12     it's defined and written, is not checkable and it's impossible to prove,

13     meaning if somebody claims that it's a gunshot wound but has not

14     described it as a gunshot wound then it's impossible to confirm that,

15     just as when we are talking about the cause of death, we are talking

16     about forensic medicine, we cannot perhaps establish if the wound was

17     inflicted before or after death so in that case we can talk about lack of

18     experience or lack of professionalism, when the forensic medicine method

19     of work was not adhered to and then we come to perhaps subjective

20     opinions.

21             So these are some examples that I used to illustrate the

22     objections or remarks I came out with in relation to specific cases.  For

23     example, when we are talking about places where we have head injuries

24     that were caused on the scene of death or at point-blank range.  This is

25     something where it would be very difficult to state because there would

Page 22905

 1     be no finding indicating such a fact.  So in some cases, it could -- this

 2     could be a personal position, unless the person who drafted the report

 3     actually saw for himself when the person who died actually sustained a

 4     wound or an injury in such a way.

 5        Q.   And therefore can you give us an opinion, doctor, as to whether

 6     or not that would be considered by you or any other forensic pathologist

 7     as being reliable or unreliable?

 8             JUDGE AGIUS:  Yes, Mr. Mitchell?

 9             MR. MITCHELL:  Objection, Your Honour, the question is rather

10     vague.

11             MR. OSTOJIC:  Okay.  Well, I don't think it is, but I'll restate

12     it just so that we could pass and the Court doesn't have to rule.

13        Q.   Sir, we are talking about post-mortem examination, and you've

14     given us in your report and your testimony these last two days certain

15     opinions that you found that the pathologists who conducted these

16     post-mortem examinations conducted them with certain deviations or

17     defects, if you will, with all due respect to them, that you've

18     highlighted for us, such as impossible to establish, meaning the

19     external, internal and traumatological findings, that you also find that

20     they are absolutely arbitrary, also arbitrary, also incorrect, et cetera,

21     et cetera.  With respect to those findings, sir, you as a reasonably

22     prudent forensic pathologist, do you consider these post-mortem

23     examinations to be reliable or unreliable?

24        A.   In short, according to my criteria, they should be considered

25     unreliable.  The fact is that the corpse exists.  Everything else that

Page 22906

 1     should have accompanied the autopsy report is imprecise, incorrect,

 2     superficial, so that I was not able to draw a conclusion from such a

 3     finding.  I cannot deny the fact that there is a corpse, but this part, I

 4     cannot accept, and this is precisely why I commented on individual cases

 5     and individual segments.

 6             The same thing applies to the collective reports that I commented

 7     on.  I did not put objections on the entire report because in three

 8     sentences, this and this was said that does not, for example, correspond

 9     to the individual reports.  I just gave an illustration in order to be

10     able to confirm the individual autopsy report.  In some segments of the

11     collective reports, there is nothing to object to.  These are some facts,

12     assertions.  But in some of those, their assertions, some of the

13     pathologists and those who drafted the collective reports showed

14     subjectivity in relation to some conclusion that they reached which is

15     not covered by an adequate finding so that the person reading the

16     collective report, for example, if we are talking about point blank or

17     executions where these would be the last in a series of injuries, well,

18     this is something that cannot be accepted absolutely because there is no

19     medical element that could confirm this.  So in that segment of that

20     report, I can consider it personally nuanced and subjective.  It's some

21     impression of the person, and a subjective position of the person stated

22     in the report.

23        Q.   Yesterday I think you told us at page 51, line 7 through 8 that,

24     "A conclusion in an autopsy report has to represent an objective

25     judgement of what has been established by the findings," end quote.  And

Page 22907

 1     what you're suggesting to us is that it does quite the opposite in these

 2     autopsy reports and the material that you reviewed.

 3             JUDGE AGIUS:  Yes.

 4             MR. MITCHELL:  Objection, leading, Your Honour.

 5             JUDGE AGIUS:  Yes, it is leading.

 6             MR. OSTOJIC:

 7        Q.   Can you make a conclusion as to the objectivity or subjectivity

 8     of the autopsy reports and do you have an opinion as to whether or not

 9     the forensic pathologists deviated from the standard that they should

10     maintain an objective judgement of what has been established based upon

11     the findings, those three that we have discussed?

12             JUDGE AGIUS:  Yes, Mr. Mitchell?

13             MR. MITCHELL:  Asked and answered, Your Honour.

14             MR. OSTOJIC:  I can really respond quickly.  I think we talked

15     about reliability and not objectivity and I think that --

16             JUDGE AGIUS:  No.  You dealt with objectivity already, Mr.

17     Ostojic.

18             MR. OSTOJIC:  Thank you, Mr. President.

19        Q.   Doctor, yesterday you mentioned on page 48, lines I think 22, the

20     ABCs of professional -- of your profession.  Do you remember that?

21        A.   Yes.

22        Q.   You also went on in the next lines, I think it's lines 1 through

23     7 to say that when you reviewed these post-mortem examination autopsy

24     reports by the pathologists, you saw nothing, and I'm quoting, "We see

25     nothing but mere statements saying that this is it, and you have to take

Page 22908

 1     it for the face value."

 2             My question to you, sir, based upon a reasonable degree of

 3     certainty, is that how pathological reports are supposed to be drafted

 4     where there is no bases for the opinions or conclusions that a

 5     pathologist reaches and renders?

 6             JUDGE AGIUS:  Yes, Mr. Mitchell?

 7             MR. MITCHELL:  Asked and answered, Your Honour.

 8             JUDGE AGIUS:  I think the witness has already made himself clear

 9     on these issues and what you are trying to ask him now pertain more to

10     the area of submissions than to questions to this witness.  He's already

11     given us --

12             MR. OSTOJIC:  With all due respect, there is some, just so the

13     record is clear, there is some specificity to the question but I will

14     I'll move on with the court's instruction.

15        Q.   Dr. Dunjic, having reviewed all the reports from the

16     archeologists, anthropologists, forensic pathologists, et cetera, did you

17     find any instance where the -- where those --

18             JUDGE AGIUS:  Let him put the question first, please.

19             MR. OSTOJIC:

20        Q.   -- where those persons from the OTP actually concluded at any

21     time one corpse having either been the cause of death or a manner of

22     death from a legitimate military combat engagement?

23        A.   If I may, Your Honour and dear counsel, you're putting me in a

24     position to provide a summary or general assessment of what I did.  I

25     will, however, act as a forensic pathologist and I will answer in the

Page 22909

 1     following.  I precisely quoted all of the documents I had analysed, and I

 2     commented on each and every one of them, providing my opinion.

 3     Therefore, I cannot speak about it as a whole, since your question was of

 4     that nature.  I stick by the facts I had analysed, written down,

 5     commented upon for each individual case, in terms of autopsy reports and

 6     the collective reports I quoted.  I cannot draw a conclusion of the type

 7     such as you had defined in your question.

 8        Q.   I'm sorry, Dr. Dunjic, I couldn't find any, so I just wasn't sure

 9     if you found any.  Let me ask you this because earlier today immediately

10     after the last break, I think it's on page 70, you talked about samples

11     being taken from other parts of the corpse, if you will, the hands and

12     all that.  Do you know if there was any analysis done to determine if --

13     and I'm directing your attention specifically to one of the conclusions

14     you have in your report, which is under again page 127, roman numeral 5,

15     did you find any analysis from the forensic pathologists, whether it was

16     a cursory or a detailed review, that they conducted any gunpowder residue

17     examination to determine whether the deceased individual was military or

18     civilian?

19             JUDGE AGIUS:  Let me ask him a question first.  Is it possible

20     with the kind of dead bodies in their various stages of either

21     putrefaction or skeletonisation, is it possible to conduct such

22     examinations as firearms residue or gunpowder residue after these bodies

23     have been buried, in particular, and sometimes reburied, Mr. Dunjic, or

24     Professor Dunjic?

25             THE WITNESS: [Interpretation] Such an analysis would be very

Page 22910

 1     difficult to carry out, such as referred to by some of the people

 2     involved, and the results obtained in such a way would be highly

 3     debatable.  However, something that probably was necessary in certain

 4     situations was to analyse the traces that could be found in the area of

 5     the wound or damage itself.  I'm not talking only about external factors

 6     of gunpowder, explosion, and residue either on the skin, bones or

 7     clothing, but inside the trajectory, the canal.  That means that on

 8     putrefied corpses it is very difficult to prove, precisely because of the

 9     state of decay of the soft tissue.  That is why we insist on examining

10     the canal or the trajectory of the word on hard tissue, for example from

11     one end to the other end of the bone.  Once a projectile had gone

12     through, not only gunpowder residue may remain but particles of the

13     casing itself.

14             As for gunpowder residue that would be a very difficult thing to

15     do and results may prove unobtainable.  However, in those cases in which

16     we have soft tissue preserved as well as the clothing on the corpse, in

17     certain situations, depending on the degree of changes, such analyses

18     should have been conducted.  It wasn't done.  Therefore, it renders any

19     comment on that impossible.  I believe that would be my response.

20     Forensically speaking I agree with what my colleague said, that it was

21     difficult and impossible to do because of the putrefaction changes in

22     particular on skeletonised corpses.  But, however, it should have been

23     noted in the autopsy report as something that was not done or was

24     impossible to do.  That is all I would like to say about that.

25             MR. OSTOJIC:  May I continue, Your Honour?

Page 22911

 1             JUDGE AGIUS:  Yes.

 2             MR. OSTOJIC:  Thank you.

 3        Q.   On page 74, just now on line 1 you used the term that you used

 4     throughout or in parts of your report, "Debatable."  Now, if you could

 5     just explain to us what you mean when you say it's debatable?

 6             JUDGE AGIUS:  Yes.

 7             MR. MITCHELL:  Objection, vague, Your Honour.  Can we have a

 8     specific situation?

 9             MR. OSTOJIC:  Sure, Your Honour, I'll be happy to help them.

10        Q.   Sir, if you look at your report, specifically case number 055,

11     056, 057, 058 and 062, for example, where you use the word "debatable"

12     and you used it specifically on line 1 in answering Your Honour

13     Mr. President's question on page 74 and I just want to have a better

14     understanding of what you mean, sir, when you use the word "debatable"

15     and just because everyone can follow along, I'll ask that it be brought

16     up on e-court.  As I said, we could take any one of those, so let's take

17     58.

18        A.   What location, please?  You mean the cause of death as something

19     that is debatable?

20        Q.   Correct.

21        A.   [No interpretation].

22        Q.   If you could just turn to page 56, for example, which is -- of

23     Dr. Dunjic's report 20990, and obviously the several pages before that,

24     and several pages after that, I think I've cited the case number but if

25     we just look back at ERN X004-6156, case number NK 08057 B, and it's

Page 22912

 1     under your comment section right before the next case that you've done

 2     which is 058, you used the word "debatable."

 3        A.   Yes.

 4        Q.   I just want to make sure that it's on e-court so that my learned

 5     friends can follow along with us.  Again, just so it's clear, it's page

 6     56 of Dr. Dunjic's report and it has the court transcript page number

 7     when it was filed as 20990, but any one of those ten pages because I

 8     think it's in each of those pages would be adequate?

 9             JUDGE AGIUS:  Yes, we can find this page quickly.  We have found

10     it.  Have you found it from the Prosecution side?

11             MR. OSTOJIC:  They are not even looking.

12             MR. McCLOSKEY:  We trust his answer on this one.

13             MR. OSTOJIC:  Oh, they have raised the -- okay.

14        Q.   Doctor, we just have actually a minute but could you just explain

15     and I'm sorry, it is late so sometimes we get giddy, but can you just

16     tell me, please, when you use the word debatable as you have in your

17     answer to the Court's question, what are you really saying there?

18        A.   Under that term, in a number of cases, I meant the following.  I

19     tried to be as precise as possible.  I wrote down, as in other cases, the

20     cause of death is debatable.  I had already explained why and how.  I

21     simply referred to the topic of the cause of death that we discussed.

22     That's why I used the word "debatable" in that context.  This includes

23     all the cases I referred to as such.  And I had elaborated upon that in

24     the preceding chapters when discussing the cause of death.  I'm trying to

25     say that I don't want to discuss this case in particular because I had

Page 22913

 1     already discussed that previously.  I only commented on the segment it

 2     referred to.  As for the cause of death, I simply wanted to refer the

 3     reader back to what I've already said, ante-mortem, post-mortem,

 4     practically and theoretically and why we use certain things when

 5     discussing that.  That is the context of the word.

 6             JUDGE AGIUS:  I think we need to have to leave it at that today.

 7     Thank you very much, Professor Dunjic.  We will continue tomorrow

 8     morning.  I'm being asked to check with you how much longer, how much

 9     more time you require to finish your direct.

10             MR. OSTOJIC:  No more than 15 to 20 minutes, if I may.  I'll try

11     to look to pare it do you know if the Court wishes.

12             JUDGE AGIUS:  Thank you.  Tomorrow morning at 9.00.  Thank you so

13     much.

14                           --- Whereupon the hearing adjourned at 7.02 p.m.,

15                           to be reconvened on Friday, the 27th day of June,

16                           2008, at 9.00 a.m.