Tribunal Criminal Tribunal for the Former Yugoslavia

Page 2651

 1                           Monday, 23 March 2009

 2                           [Open session]

 3                           [The accused entered court]

 4                           --- Upon commencing at 2.18 p.m.

 5             JUDGE PARKER:  Good afternoon.  Before we commence, it will be

 6     necessary tomorrow to adjourn at 12.15 because all Judges are meeting in

 7     a Plenary session from 12.30.  So it will not be possible to have the

 8     third session tomorrow morning.  And could I mention that it has just

 9     been advised late on Friday by the Dutch security personnel that this

10     whole area, including this building, will not be open at all to the

11     public on Tuesday, the 31st of March, that is Tuesday week, the reason

12     for that is an international conference at the highest government levels

13     on Afghanistan which will be held in the adjoining building, the

14     conference centre, so that this whole geographic area will be closed to

15     the public which means we will not be able to enter or leave this

16     building on Tuesday, the 31st of March.  So in your planning ahead, if

17     counsel can take account of the fact that tomorrow we must finish at

18     12.15 and that we will not be able to sit at all on Tuesday,

19     the 31st of March.

20             Mr. Stamp, I understand you have a matter.

21             MR. STAMP:  Yes, Your Honours.  It would be a matter that asks

22     that we go in private session.  Perhaps before we do that may I indicate

23     it is in respect to protected measures for a witness to come.  I rise

24     because I think I should indicate to the Court that the application is --

25     we propose to make an application, but perhaps it might be better if the

Page 2652

 1     application is made when the witness -- just before the witness comes

 2     instead of breaking the flow of this witness.  But I just wanted to say

 3     so at the first opportunity because we will have the information on the

 4     weekend.

 5             JUDGE PARKER:  Very well.  We will wait until this witness is to

 6     come.  He is the witness following this one?

 7             MR. STAMP:  Following this one.

 8             JUDGE PARKER:  Very well.

 9             MR. STAMP:  As it pleases you.

10             JUDGE PARKER:  We will then have the witness that is to continue

11     today.

12                           [The witness takes the stand]

13             JUDGE PARKER:  Good afternoon.

14             THE WITNESS:  Good afternoon, Your Honours.

15             JUDGE PARKER:  Could I remind you that the affirmation you made

16     to tell the truth still applies.

17             THE WITNESS:  Thank you.

18             JUDGE PARKER:  Mr. Djordjevic.

19             MR. DJORDJEVIC:  Thank you, Your Honours.

20                           WITNESS:  JOSE PABLO BARAYBAR [Resumed]

21                           Cross-examination by Mr. Djordjevic: [Continued]

22        Q.   Good afternoon, Mr. Baraybar.  This afternoon I'm going to

23     continue my cross-examination from where we broke off.  It has to do with

24     the statement you gave during your direct examination.  Mr. Baraybar, I

25     would like to ask you about wounds and the nature of the wounds

Page 2653

 1     established by your team.  I wish to restrict myself only to the bodies

 2     that had been exhumed and then repatriated to Kosovo from Batajnica,

 3     Petrovo Selo, and in relation to the type of injury and kind of injury

 4     sustained by the persons on whose -- on whom autopsies had been carried

 5     out.

 6             We have here a document of yours that has already been admitted.

 7     We see in Batajnica that there was a total of 744 bodies.  For 506, the

 8     cause of death was established, and the cause of death is unknown for 238

 9     bodies.  Now, my question:  Your conclusion when speaking about this was

10     that the persons who lost their lives were civilians in your view -- or

11     rather, if they were not civilians, then they were persons who could not

12     defend themselves.  Why?  Because they had bullet wounds rather than

13     shrapnel wounds, and it is your experience that they are mainly the cause

14     of death of persons who take part in combat.  Could you please explain

15     this to us.  Where do you get this experience from, and what is it based

16     on?

17        A.   Certainly.  What I said is that after carrying out a survey of

18     some 25 armed conflicts, some of this information as a matter of fact was

19     also submitted to the Court in the case of the Prosecutor against

20     Brdjanin and Talic.  The primary cause of morbidity and/or mortality in a

21     traditional armed conflict, and by this I mean two groups of people

22     fighting one other, armed both of them, whether it be guerillas, an army,

23     or whatever, people with arms; generally the first cause of mortality and

24     morbidity is shrapnel followed by gun-shots, that is in terms of

25     mechanism of injury.  When in these settings gun-fire is the leading

Page 2654

 1     cause as it may be, the distributions of injuries in the bodies are:  The

 2     extremities, be arms and legs; thorax; and head.  However, we have

 3     observed the reverse pattern in cases in which the context in which these

 4     people are dying is not an armed conflict as such, meaning that one of

 5     the groups is armed and the other one is not armed.  So it is not a

 6     military engagement of some kind.  In this case what we have recorded is

 7     that the distribution of injuries by gun-fire would be head, thorax, and

 8     extremities.  In some cases, the number of injuries on the head and the

 9     thorax may be the same or very close one another.  As in our case, for

10     example, the thorax is slightly higher than the head but the head is

11     extremely high for what it is.

12             What I have also said is that -- and I can give you the quote.

13     If you wish.  Maybe if you wish you can tell me and I will give you the

14     quote.  It has been determined that in gun-fire contexts, meaning

15     shoot-out context of some kind, some people may show skeletal injuries

16     while other people may not show skeletal injuries.  However, all of them

17     may have died of gun-shots.  When dealing with decomposed remains with

18     all that remains, even if I'm being redundant here, is the skeleton or

19     the bones, it is possible to assume that some of the remains that do not

20     show any bone trauma may have also been injured by gun-fire not affecting

21     bones, such as, for example, somebody being shot through the abdomen or

22     through any other part of soft tissue through the body.

23             I don't know whether I'm answering your question.

24        Q.   You mentioned that you can give me a particular quotation.  What

25     was it that you meant?

Page 2655

 1        A.   Yes, the quotation I was referring to was a quotation of how the

 2     context, in this case a gun-fire context, is the one that may determine a

 3     certain distribution of skeletal injuries in some cases and no skeletal

 4     injuries in some others.  And the article I was referring to is by -- I

 5     will pronounce it and then spell it, De La Grand Maison, in French, so it

 6     would be D-e L-a G-r-a-n-d M-a-i-s-o-n, and associates 2001.  I have the

 7     full -- the actual full quote in the bibliography of the report that has

 8     been already tendered to the Court.

 9        Q.   Mr. Baraybar, could you please tell me whether you are familiar

10     with the autopsy reports of the soldiers of the Army of Yugoslavia and

11     the policemen of Yugoslavia who lost their lives in Kosovo?

12        A.   It would depend.  I mean, your question is quite -- I mean,

13     broad.  I mean, I have seen some reports primarily, if I'm not mistaken,

14     on some cases.  I'm just trying to recall now on what cases.  On some

15     specific cases of people we identified back -- back in Kosovo as

16     belonging to possible soldiers, but unless you are more precise I cannot

17     really give you a precise answer.

18        Q.   What I'm asking about the members of the police, and what I'm

19     asking about the members of the military - at that time it was still

20     definitely the territory of the sovereign Republic of Serbia in the

21     sovereign Federal Republic of Yugoslavia - so I'm asking you about the

22     members of the police and the Army of Yugoslavia who took part in

23     fighting in Kosovo.  Do you have any knowledge about that or not, in

24     relation to autopsies, of course?

25        A.   In -- no, in those cases you are mentioning, no, I don't.

Page 2656

 1        Q.   Thank you.  According to the reports that you provided to the

 2     OTP, and some of them were admitted into evidence here, it appears that

 3     the number of cases that were solved while you headed the team was 1800,

 4     or rather, 1800 or 1900 cases from the territory of Kosovo.  So did you

 5     make any comparative statistics in terms of bodies that you dealt with

 6     excluding Batajnica, Petrovo Selo, and Perucac?

 7             MS. KRAVETZ:  Your Honour, could we please have a reference to

 8     the passage that my learned colleague is calling -- is citing to where

 9     this number is referred to.

10             JUDGE PARKER:  Could you assist, please, Mr. Djordjevic.

11             MR. DJORDJEVIC: [Interpretation] Your Honours, right now I cannot

12     give you a reference but I'm going to rephrase my question in that case.

13     I'm going to ask Mr. Baraybar:  How many exhumed bodies were autopsied,

14     excluding Batajnica, Petrovo Selo, and Perucac, while he headed the

15     organisation, that is.  What I mentioned is contained in his report.  I

16     don't have the reference right now, so in order not to waste any time

17     I've rephrased my question this way.

18             THE WITNESS:  I could not give you an exact number.  I mean we

19     could obviously extrapolate something on the consolidated list of missing

20     persons.  Meaning, I left in May -- the 1st of May, 2007, and the list

21     you have here is April 2008, and before that you got another list of

22     October 2006.  Just for simplicity's sake, let's take the list of

23     October 2006, in which 3.011 cases were closed, of which the ones that

24     were examined, meaning remains were identified and therefore were subject

25     of an examination, were 1751 plus 91.  We could do a bit of an addition,

Page 2657

 1     if you wish, just to give you an exact number, would be 1842 remains.  So

 2     I would say that that is the average number of cases that my office while

 3     directing that office examined -- I mean physically examined.

 4             MR. DJORDJEVIC: [Interpretation]

 5        Q.   As for the autopsies that were carried out, was cause of death

 6     established for those persons, and do you have these statistics as you

 7     did for Batajnica, Petrovo Selo, and Perucac, do you have those

 8     statistics?  I'm asking you because I haven't seen them.

 9        A.   I don't have them, and as far as I know they are not part of my

10     report.

11        Q.   I'm asking you this for the sake of the objectivity of your

12     report in relation to your conclusion that the persons who were exhumed

13     from Batajnica, Petrovo Selo, and by Lake Perucac were injured in a way

14     that made it obvious that they could not defend themselves and that they

15     were therefore unarmed persons.  You referred to certain sources, and I

16     see that these sources are French, French authors.  I don't know what

17     armed conflict and what part of the world you were actually dealing with.

18     Do you know any research in relation to the conflict in Kosovo?  Do you

19     have any comparative study in relation to that?

20        A.   No; however, in my report tendered to the Court for the case of

21     Brdjanin/Talic and then expanded also in an article by myself and

22     Gasior, G-a-s-i-o-r, from 2006, it's a peer reviewed paper at the

23     Journal of Forensic Sciences.  We expand and explicit some of the

24     resources you're referring to, not specifically regarding Kosovo but

25     elsewhere in the Balkans, primarily Croatia and Bosnia, if I'm not

Page 2658

 1     mistaken, Croatia for certain; meaning, distribution of injuries by

 2     anatomical location, and the nature of injuries caused by one or another

 3     mechanism in wartime.  But to answer your question:  No, I have no

 4     sources for Kosovo, certainly not.

 5        Q.   Mr. Baraybar, I was not challenging the part of the skeleton

 6     where the wounds were found or whatever it was that you did.  I'm saying

 7     something else.  You say that this indicates that these were unarmed

 8     persons who could not take part in combat, or if they were combatants

 9     they had no weapons at that moment.  That's why I'm asking you whether

10     you have any comparative knowledge from Kosovo in relation to the way in

11     which war fair was waged, what weapons were used, and to what extent it

12     was possible in view of traditional war conflicts, as you said, that

13     injuries in combat can be sustained in the way in which you describe

14     this, namely, coming from shrapnel and not being exit/entry wounds.  That

15     is the essence of my question.  Do you have information about how

16     conflicts in Kosovo developed in view of this assertion that you're

17     making?

18        A.   No, but I have to -- I'm afraid I cannot tell you yes or no, but

19     let's just put the thing in context.  I have the conclusion of my report

20     here.  What it says:

21             "Strongly suggesting the killing of individuals unable to defend

22     themselves rather than the confrontation between two armed groups,"

23     suggesting, so I'm not affirming it.  The information I have provided in

24     this report and in the previous quotes I gave you is totally comparable

25     to any other country in the world where different types of "war" have

Page 2659

 1     been waged.  The survey of 25 armed conflicts from Cambodia to

 2     Afghanistan to the Balkans shows you various different kinds of contexts

 3     in which war has been waged and the pattern repeats itself in any place.

 4     To give you yet another example, this distribution of injuries, whether

 5     shrapnel first, gun-shot second, and when gun-shot having this specific

 6     pattern has been recorded in a killing in Peru dating from 1984 where a

 7     counter-insurgency war had been waged by the army.  So again we may say

 8     what is the point of comparing Peru and Kosovo or Croatia or Bosnia,

 9     whatever, but it seems to be a quite universal thing.  That is what we

10     know for the time being.

11        Q.   Am I right if I say after this response of yours that it is your

12     conclusion that that is probably the way it was.  You're not saying

13     anything with 100 per cent certainty, are you, as regards whether they

14     could or could not have defended themselves?

15        A.   That is correct, because all the affirmations that an expert,

16     such as myself or any other expert, would give you are the most probable

17     scenarios not the most possible scenarios since we know that everything

18     is possible 50/50 per cent.  So the most probable scenario meaning that

19     the evidence I have collected allows me to reconstruct this as a

20     probability, but certainly I cannot give you a statistical probability

21     because it is not the nature of the material we are working with to tell

22     you this is probable 99.9 per cent.  This is not DNA.  Certainly we are

23     not talking about that kind of quantitative variables, if you wish.  But

24     it is the most probable scenario.  That is what an expert will

25     reconstruct.  The most probable scenario, not the most possible one, but

Page 2660

 1     the most probable one.  Therefore, if I was certain to a hundred per cent

 2     that I am not.  I mean, I'm not saying I'm a hundred per cent sure.  I

 3     think this is the most probable scenario, meaning all these elements most

 4     likely assist us to conclude this, this is the most likely scenario;

 5     otherwise I would say that these attest to the killing of individuals

 6     unable to defend themselves.  I said "strongly suggesting," so it is the

 7     most probable scenario.  The information we have as compared with all the

 8     sets of information and as explained in this report lead us to conclude

 9     that, as the most likely cause.  Now, is it possible that some other

10     cause may have come into play here?  Yes, it is possible.  Everything is

11     possible, but I cannot comment upon possibilities.  I can only comment

12     upon probabilities, the ones contained in this report.

13        Q.   However, had you had comparative data to show the Trial Chamber

14     and the OTP as regards other persons whose bodies you looked at in

15     Kosovo, and if you had very specific information, as you did for

16     Batajnica, Petrovo Selo, and Perucac, you will agree with me that in that

17     case, had we had these statistics, the probability of your assertions

18     would have been much higher or perhaps it would have been non-existent.

19     Had you showed us that the other bodies that you had examined had

20     sustained injuries from shrapnel and then you say they probably lost

21     their lives in armed conflict, the situation would be quite different.

22     If all the bodies that you examined had only exit/entry wounds, as in

23     gun-shot wounds.  Will you agree with what I said just now?

24        A.   I wouldn't, but I'll tell you why.  I mean, I'm not trying to

25     disagree with you for the sake of keeping my argument, but there is a

Page 2661

 1     reason why I do disagree with you.  Let's remember that the three mass

 2     graves which remains are discussed in this report correspond to specific

 3     events.  These are not random people that end up in holes with other

 4     people.  For example - and that is just out of pure recollection from my

 5     days in Kosovo - one of the groups of people came from Izbica and Izbica

 6     was a specific attack in a specific day when a number of people, not

 7     everybody, were killed.  Other people came from Meja and in Meja it was

 8     another specific attack, so another event.  Therefore, the event and the

 9     nature of the event is the one that will determine the nature of the

10     injuries sustained by the victims because the event is an event of this

11     kind or the other kind.  Therefore, I cannot compare simply 1800,

12     whatever number I gave you, 1842, I think, individuals found in Kosovo in

13     various events to these events.  Of course I can compare similar things.

14     I can compare an event similar to Meja or to Izbica or whatever to

15     another event of its kind, but I cannot compare all the bodies found in

16     Kosovo that could be a collection of various events and various

17     mechanisms and all the rest of it.  For example, I cannot compare some

18     old lady found dead in her apartment with Meja or something of the kind.

19     I mean, it doesn't make any sense.  Therefore, that's why I disagree with

20     you.

21        Q.   I would have agreed with you if you had written that in your

22     report, but it's missing in your report.  What we have in your report is

23     a heap of death certificates and then forensic inspection reports, and

24     I'll come back to one of these.  It's Ba012 case that you had commented

25     upon earlier in your testimony.  Now let me see, I have a reference here.

Page 2662

 1     Just a minute.  In B/C/S the report is 2794, 02794 is the English

 2     version, the certificate for Lirije Berisha and the forensic inspection

 3     report comes with it.  We can see that on the screen.  Right.

 4             I'm looking at this report.  Why is the autopsy report only a few

 5     sentences long, and how are we who are interested -- I see Ms. Kravetz is

 6     on her feet.

 7             MS. KRAVETZ:  Your Honour, I wanted to request a page reference

 8     to which page we are referring to in the report, if my learned colleague

 9     could kindly indicate that.

10             MR. DJORDJEVIC: [Interpretation] Just a second, Your Honour.

11     I'll continue, and I'll give you the reference in due course.  I'm asking

12     a general question using this specific example because that's the one

13     chosen by Mr. Baraybar.

14        Q.   Why are all autopsy reports only a few sentences long; and how

15     are we who are interested in the nature of injuries, the origin, the

16     mechanism of the injury able to check these reports with our expert

17     witnesses when the reports are so short and lacking in the kind of detail

18     that we feel should be included so that we could review them critically?

19     We have no minutes of the autopsy, no record of what had been

20     established, the origin of the fractures, whether the injuries were

21     post mortem or ante mortem?  Why are the reports so short?  Is that the

22     usual practice?

23        A.   No, it is not.  As a matter of clarity, what I have in front of

24     me here is just the cover page of my report.  Mr. Djordjevic was

25     referring to, I think, the inspection report that I do not have it in

Page 2663

 1     front of me.  I mean, I have the paragraph on page 11 of my report, but I

 2     don't think that is what he is referring to.

 3        Q.   Sure, just a moment.

 4             MR. DJORDJEVIC: [Interpretation] Your Honour, not to waste time,

 5     I would kindly ask the usher to give the witness a hard copy of the

 6     report that he discussed yesterday, and in the meantime we'll find a

 7     reference.  I'll just ask the usher to show it to the Prosecutor first.

 8             THE WITNESS:  Thank you.

 9             As I explained at the beginning of the examination, the forensic

10     inspection, although the factor becomes a second autopsy, it is not a

11     formal autopsy in that respect.  Therefore, the information is quite

12     summarised.  However - now I have it here, yes - this doesn't mean that

13     this document was produced in the autopsy room, certainly not.  All the

14     forms, the original forms, that were filled in by hand during the

15     examination where they described each of the injuries and all the rest of

16     it does exist.  This piece of paper is only the forensic inspection

17     report, as it says, which is a summary; it is not the paperwork that goes

18     with it.  Having said that, the forensic inspection is only that, an

19     inspection, it is not a full autopsy in the way that was carried out in

20     the -- in Serbia prior to transfer of the bodies.  However, a lot of

21     attention was given to reconstructing body parts that were broken in

22     order to make these interpretations such as, for example, here gun-shot

23     injury to the head, et cetera, describing the keyhole, where it is

24     located, et cetera.  But yes, I mean, there is pictures that go with

25     these inspection reports, there is handwritten notes that go with them.

Page 2664

 1     I mean, all that does exists to my knowledge.  It should be in the

 2     Office of Missing Persons in Kosovo.  So all I'm trying to say is this

 3     piece of paper is not an examination.  I was not in front of the body-bag

 4     and filled it in.  This is only a summary that is produced for purposes

 5     such as this one.

 6             MR. DJORDJEVIC: [Interpretation]

 7        Q.   These are documents --

 8             THE INTERPRETER:  Could the counsel please repeat the numbers.

 9             MR. DJORDJEVIC: [Interpretation] The second one is P5148 and the

10     first one -- let me repeat.  P4556 and P5148.

11        Q.   My next question, Mr. Baraybar:  To what extent did you take into

12     account the autopsy reports of bodies repatriated to Kosovo from

13     Batajnica, Petrovo Selo, and finally Perucac?

14        A.   Could you be more precise in -- I mean, how -- if we took it --

15        Q.   Did you take them into account?  Did you review them?  Did you

16     use them in your paper?  Or did you not use them in your paper at all?

17        A.   We did.  As a matter of fact, the whole issue of the forensic

18     inspection comes after reviewing the first cases we received -- not the

19     first eight, but when we were receiving a larger number of cases when you

20     could actually see that they -- all of them, at least in Batajnica or

21     Perucac, had cause of death ascertained; and it seemed that there had

22     been like a cut and paste in the text, meaning that all were crushed by

23     blunt-force instrument, cause of death was unascertained because the

24     bodies were too decomposed.  And obviously what was more worrying is that

25     in some of the cases we found extra body parts.  We found another arm or

Page 2665

 1     leg of another person that -- obviously there's nobody with three legs,

 2     and this was really a problem.  Therefore, at some point we had a look at

 3     these reports but just as a reference -- as a reference.  I mean,

 4     obviously the inspection report is still independent report, it's not --

 5     we were not trying to pick, if you wish, "pick" on the mistakes of the

 6     others, but we had a duty towards the family -- there were a tremendous

 7     amount of pressure to hand over the remains, and we could not just hand

 8     over remains primarily if there were extra remains in the bag.

 9        Q.   I'll go back to the statistics that you provided.

10             MR. DJORDJEVIC: [Interpretation] I think it's 02795 in B/C/S,

11     that's page 5455, that's -- sorry, it's P5455.  Could we have that on the

12     screen.  I'm mostly interested in the table.  The number is 5455.  That's

13     Exhibit 5455.

14             THE REGISTRAR:  Your Honours, P455 is on the screen now.

15             MR. DJORDJEVIC: [Interpretation] Thank you.

16        Q.   Let's look at the table you made for Batajnica.  You have 238

17     unknown causes of death.  What is the main reason why your team was

18     unable to determine the cause of death?

19        A.   Just to clarify, I do not know whether it is a translation term.

20     Unascertained is not the same thing that unknown, so this is cause of

21     death unascertained; meaning that you are able to ascertain the most

22     probable cause of death based on hard evidence that the body, so to

23     speak, is providing you or the skeleton is providing you.  You may have a

24     skeleton of somebody who has been, let's say, poisoned, choked with a

25     pillow or simply stabbed in soft parts of the abdomen and has no boney

Page 2666

 1     injuries of any kind.  Therefore, you cannot ascertain the cause of

 2     death.  It is not that it is unknown, but it is unascertainable, so to

 3     speak.

 4             So the reason, to answer your question, why these cases are

 5     unascertainable is because they were too fragmented or incomplete.  As I

 6     told you, for example, there were some body-bags that contained more than

 7     one individual and, for example, you may have a torso that was

 8     articulated to arms and head and all the rest of it.  But, for example,

 9     the legs, one leg may be his leg but the other leg could be somebody

10     else's; or you may have only one leg and obviously you cannot ascertain

11     the cause of death of a body based on a leg.  Certainly you can assume

12     certain things that if they take your leg you will die, but obviously

13     that will be far too much far-fetched in a way.

14        Q.   What does the number 238 unascertained mean?  Because after your

15     answer I'm completely at a loss.  You have statistics where you say the

16     number of cases, the number of ascertained causes of death, and this

17     number is unascertained.  What does that mean?

18        A.   Well, I think I already explained you, but I can say it again.

19     From a total number of 744 individuals that you have, 506 had the cause

20     of death ascertained based on physical evidence of the bodies themselves,

21     while 238, the remaining of the 744, the cause of death could not be

22     ascertained based on the remains we had examined.  So, for example, there

23     were incomplete remains, for example, there were skeletons with no

24     injuries of any kind and things of the kind.

25        Q.   Now I understand.  I did not understand the previous answer quite

Page 2667

 1     clearly, but now you've made it quite clear.  Now, my next question

 2     relating to these persons where the cause of death was not ascertained:

 3     Did I understand correctly that in Batajnica you found mostly skeletons

 4     with barely any tissue on them; is that correct?

 5        A.   Yes.

 6        Q.   Thank you.  Does that mean that in case of a stab wound or an

 7     entry and exit wound through a tissue, you would have been unable to find

 8     a bullet wound and you were unable to say that the cause of death is a

 9     bullet wound?

10        A.   Yes, that is correct.

11        Q.   Now, my next question:  Would injuries sustained not only from a

12     blade or a gun-shot also leave no trace on the skeleton?

13        A.   That is correct.

14        Q.   Thank you.  Now, I have another question concerning your report,

15     D002-4164.  I believe that's the version in English.  It's over 50 pages

16     long, so I won't call it up, but since you are the author I believe you

17     are familiar enough.  I want to look at the results of examination of

18     human remains found in Berisa, Kosovo.  You conducted the examination

19     yourself, correct?  Nine groups found in the location of Berisa, Kosovo?

20        A.   If I am right, that was the evidence presented through the case

21     of Limaj and others, wasn't it?

22        Q.   Yes, but I'm giving you the exact number of the document.  Let us

23     call up the first page.  D002-4166, to avoid any doubt.  D002-4166.

24        A.   Yes, I can see it.

25        Q.   Is this something you have written yourself?  Are you familiar

Page 2668

 1     with the document?

 2        A.   Yes, it is.

 3        Q.   Thank you.  I think on page 3 of this document it reads:

 4             "In the part of examination of wounds it says:

 5             "Due to the impossibility of determining whether the bullet

 6     wounds were post mortem or ante mortem, it was assumed that gun-shot

 7     wounds were the cause of death and occurred at the time of death ..."

 8             Is this forensic determination based on assumptions or on fact?

 9        A.   Okay.  I will give you a lengthy answer because it requires a

10     lengthy answer so we are all very clear regarding this.  Forensic

11     anthropologist, forensic pathologist, anybody examining extremely

12     decomposed remains is determining the most probable cause of death, not

13     the mechanism of death, unlike a pathologist working on a cadaver.  For

14     example, somebody has been shot to the head in a homicide, the cause of

15     death definitely will be the gun-shot wound to the head.  The mechanism

16     of death, however, may be hypovolemic shock, I mean, the person bled to

17     death or any other more pathophysiological mechanism.  So what happens

18     when you have a remain, a set of remains, that has no soft tissues of any

19     kind; be bones, be something very decomposed?  If we as scientists are

20     trying to determine the mechanism of death of that individual, then we

21     shouldn't even be in this court today, I mean there's no point of any

22     examination.  Because all you can say is that this body has a gun-shot

23     wound to the head; however, I do not know whether the person was

24     clinically dead or alive.  I cannot say that the person -- when the

25     person saw the gun had a heart attack and died.  The question is:  Is

Page 2669

 1     this logic a useful logic for any type of context?  It isn't, in my

 2     opinion certainly, and it is an opinion I defend strongly.

 3             So I think that one of the things we have a take into account

 4     when dealing with this nature of cases, be extra-judicial killings, full

 5     disappearances, any kind of human rights violation, to put it in a

 6     broader sense.  We have to take into account two things.  One is the

 7     context, for example.  The bodies found in these mass graves, these

 8     people did not go there themselves.  These people did not bury

 9     themselves.  A person found in a grave with a blindfold and hands tied

10     behind the back is not a case of suicide.  All I'm trying to say is that

11     the context is defining a number of elements that you will find

12     eventually on the body; by the same token when examining the remains and

13     using that context into account you have to make that assumption - and

14     yes it is an assumption - in absolute terms if we become the most purest

15     of the purest certainly you cannot say if the person was clinically dead

16     or alive.  We can go into a metaphysical discussion as to what is alive

17     or dead.  Maybe the person got into a cataleptic state but was breathing

18     or was no breathing or was no pulse but was this person alive or not?

19     And use that hard evidence you are finding as an element that contributed

20     to the cause of death not to the mechanism of death of the person.

21             By the same token I will tell you:  You find a body with five

22     shots through the head, if the person was dead, why did you shoot the

23     person five times in the head?  Of course they can give you an answer,

24     anybody can give you an answer.  This explanation I gave you refers to

25     the need for determining the most probable cause of death.  This also

Page 2670

 1     means there has to be some correlates between the injuries you are

 2     describing in real life as I mention in this report in the paragraph --

 3     last paragraph, I refer, for example, to some paper by Okoye and Kimmerle

 4     in the year 2000 where they were looking, for example, at patterns of

 5     activity and survival of people after they were shot.  So, for example,

 6     you know somebody shot on the head likely will die or will die after very

 7     few minutes depending on what calibre of weapon this person was shot,

 8     certainly.  While somebody shot with a rifle through the thorax or the

 9     chest would also eventually die.  And this person may run for 2 metres or

10     10 metres and then drop dead.

11             So all these studies help you to relate the physical injuries you

12     are recording in this bone in this decomposing body to a specific

13     clinical correlate that physicians and other people deal with on a daily

14     basis.

15             So what is actually written here has also been written and peer

16     reviewed certainly in other publications I can provide you if you are

17     interested that is called, On the means of determining the most probable

18     cause of death; and that is something that is quite generally assumed as

19     a -- I mean procedure in any setting, I mean not only in this Tribunal

20     but in any setting.

21        Q.   Tell me, is it in the purview of an anthropologist to establish

22     the origin of injuries of bones, the mechanism of their occurrence in

23     determining the cause of death?

24        A.   Yes, meaning the anthropologist assist the pathologist in

25     ascertaining the most probable cause of death, as I already explain you.

Page 2671

 1     And definitely it is in the purview of the anthropologist to determine

 2     the mechanism of injury because we work with bones, and if it's not us

 3     who would do it?  A pathologist deals with soft tissues, with organs and

 4     tissues.  I mean, we work with bones.  Bones is are our subject of study,

 5     so to speak, so we have to understand how a bone breaks, how a bone

 6     grows.  We need to know everything about bones, and yes -- the answer is

 7     yes.

 8        Q.   What about the mechanism of the occurrence of injuries, of the

 9     infliction of injuries, would that be included too?

10        A.   Yes, certainly.  I mean, as I explain you -- I mean, even as an

11     anthropologist if I cannot differentiate between a hole in the bone

12     caused by a gun or caused by a drilling machine, then I would be jobless

13     I guess.

14        Q.   Again on page 3 of the same report we read that all the entry and

15     exit wounds in the area of the head and chest are lethal, or is it my

16     misunderstanding?  Would you confirm this?  Would you say that all

17     gun-shot wounds to the chest and the head are lethal?

18        A.   We have to take this comment in the context in which it has been

19     written.  When determining the most probable cause of death, you have two

20     kinds of injuries, okay.  The first kind of injury called lethal are

21     injuries limited to the head and the torso, the thorax, and lethal if

22     untreated could be injuries linked to the arm -- I mean to the arm and to

23     the leg, primarily the thigh and the upper arm, primarily because of the

24     link between the comminution or the fracturing of the humerus, I mean the

25     bone of the arm, and the femur, that is the bone of the thigh, and the

Page 2672

 1     presence of the arteries, brachial artery in the arm and the femoral

 2     artery on the leg, that normally lacerated at the time of a high velocity

 3     through those areas.

 4        Q.   Now, sir, have you heard of the Baraybar collection?  Does the

 5     term mean anything to you?

 6        A.   Most definitely.  I mean, I have certainly heard about the

 7     Baraybar collection, not that it exists, but yes I have certainly heard

 8     about it.

 9        Q.   Baraybar forensic skeletal collection, right?  Can you tell me

10     what that is?

11        A.   As far as I know, the term was given I guess by those who gave or

12     named this so-called collection after me were trying to honour me,

13     although they didn't really make my life easier as a matter of fact.

14     ICTY had or the Office of the Prosecutor had a project through the work

15     they did in Bosnia, primarily Bosnia, and Kosovo in order to re-calculate

16     aging standards for Balkan populations and that is what was done.  The

17     papers with peer reviewed and published last year, in 2008, I think the

18     Journal of Forensic Sciences.  This "collection" consisted of a number of

19     sleeves of bone and casts and -- I know that after this collection -- or

20     these bones, sorry, I mean, were used for these examinations and then

21     returned to -- returned from wherever they came from.

22        Q.   That collection of bones it was made by whom?  Why is it named

23     after you?

24        A.   Since I was the resident forensic scientist in the Tribunal, and

25     I was acting as chief anthropologist in most of these occasions, I

Page 2673

 1     oversaw this project; and that is why I believe these scholars at the

 2     University of Tennessee, in the United States, who carried out the work,

 3     thought that there would be really a distinction, if you wish, to call

 4     these series of studies - because there's no, as far as I know, physical

 5     collection of bones behind some glass windows - after me.  That is, I

 6     mean, my understanding of the situation.

 7        Q.   Did you attend the meeting, professional meeting, of

 8     anthropologists, pathologists, forensic scientists of the

 9     American Academy for Forensic Science in Dallas 2004 when

10     Tennessee university researchers presented this entire project?  Were you

11     present, and could you tell us, if you were there, what you remember from

12     that occasion, from that congress?

13        A.   I was there, and I remember I arrived late and I gave a paper

14     that is -- that has been published within the same volume of that

15     symposium that is called:  When there is no DNA can we still identify

16     people?  It is published within that symposium in 2008, if I'm not

17     mistaken, I mean the publication in the Journal of Forensic Sciences and,

18     as a matter of fact, I did learn then that when the symposium was

19     introduced, I have been given the honour, if you wish, to have this

20     "collection" named after me.

21        Q.   Wasn't it different over there -- wasn't it a fact that you and

22     the entire group of scholars from Tennessee were exposed to serious

23     criticism in view of the ethnic background of the entire story, and also

24     all the bones of these victims were obtained by you without the consent

25     of their next of kin and no one had been informed about that.  At that

Page 2674

 1     time Mr. Graham Blewitt Deputy Prosecutor of the OTP said that you were

 2     authorised to carry out an investigation, but that was in the broadest

 3     possible terms; whereas the scientists from Tennessee said that they did

 4     not know that these bones or remains were from the victims from Kosovo

 5     and Bosnia.  Am I right if I say that you and the entire team were

 6     exposed to severe criticism by a professor of anatomy and forensic

 7     anthropology and other scientists who attended the gathering?  Therefore,

 8     the entire project was brought into question?

 9        A.   Well, that is an opinion.  I can explain you this.  If it was

10     anybody that has been subject of much heated debate -- and I'm being very

11     politically correct, not to say slandering - has been actually myself.

12     And as you well know if you go to internet and just type my name and put

13     bones next to it and it will have quite a lot of articles and comments of

14     otherwise unnamed scientists criticising this and that and the only name

15     that is associated to that is mine.

16             So far, I have not seen any scholarly disagreement or discussion

17     regarding these series of papers that have been published, as I said, and

18     peer reviewed.  And that is exactly the type of criticism I would pretty

19     much expect.  All the other type of criticism that actually started with

20     a publication in the Sunday -- what was it -- no sorry, it was the

21     Sydney herald back in 2001, if I'm not mistaken, and some obscure

22     magazine in the United Kingdom called The Age, and I remember this

23     because I was working for the Tribunal in Sanski Most I think.  You know,

24     the same -- the same topic pretty much with various different backgrounds

25     came over and over and over over the years.  And it seems there's

Page 2675

 1     still -- I mean, moves quite a lot of people and gives a lot of

 2     inspiration to a lot of people to keep writing about this.  But regarding

 3     that I have no comments.  This type of work is not a popularity contest.

 4     Therefore, I am not searching whatever is written about myself on a daily

 5     basis, certainly not.

 6        Q.   Can you give us your comments with regard to the statements made

 7     by your colleagues from the University of Tennessee who said that they

 8     were not aware of the origins of these bones and they found out only

 9     later that the bones had come from recently deceased persons, or rather,

10     the way you put it, recently killed persons.  Why was it that you said

11     that, or rather, that they said that?

12        A.   I -- this is the first time I heard about my colleagues from

13     Tennessee saying such a thing.  So maybe you provided me the quote in

14     what newspaper it has been said -- I mean, in any case, even if I see it,

15     I have nothing to comment.  If it is true they say that, well, you should

16     ask yourself to them.  I mean, I have nothing to comment on that.  This

17     is the first time I hear it in any case.

18        Q.   You were asked by journalist from an organisation that is called

19     IACAN [as interpreted], Kosovo Action Network.  The journalist is

20     Petra Kirning [phoen] and Kees Birning [phoen] you said the same thing

21     that they should be asked why they had stated that, but that's not really

22     the most important thing that we're dealing with now.  I'm interested in

23     the following:  Why were samples taken for 800 bodies?  Was it to

24     establish the possible age of the persons who were supposed to meet the

25     requirements of a profile of a Kosovar or Bosniak?  I think that's what

Page 2676

 1     you said.  Was that the reason of the scientific research, to establish

 2     the possible age of the deceased person after the skeletons were found?

 3     Was that the reason why the bones were taken?  As far as I know, it was

 4     the ribs and the collar bones that were taken; am I right?

 5             MS. KRAVETZ:  Your Honour, the witness has been put a compound

 6     question.  There are several questions in fact in this one question.  He

 7     also hasn't been shown the source of the materials my learned colleague

 8     is talking about.  So I wonder if we could first break up the question

 9     and also if the witness could be directed to the source of the -- of this

10     allegation.

11             JUDGE PARKER:  We are presented with compound questions and

12     compound objections.

13             If you want the witness to comment with some intelligence, it

14     will be necessary to put to him the article and the specific reference.

15     The way you're putting it, I would suggest, would preclude the witness

16     from bringing any sort of sensible expertise to an answer.

17             MR. DJORDJEVIC: [Interpretation] Thank you, Your Honour, then

18     it's going to take a bit longer because I familiarised myself with this

19     material just before the trial.

20        Q.   So first of all, for the purposes of your research, did you take

21     the remains of the bones of over 800 corpses or not?  There.

22        A.   First, it was not my research, as I already said; and second, I

23     do not know on the top of my head how many remains or samples of remains

24     were taken, but the number may be correct -- actually, you have -- you

25     got the source, I don't have it.  So I would say or consider that is the

Page 2677

 1     case, yes.

 2        Q.   Would you please be so kind as to answer whether it's possible or

 3     whether it is a number that is just that big.  At whose proposal was this

 4     project started, the taking of these bones, and what was the purpose of

 5     the taking of these bones because we heard that you did take bones --

 6             JUDGE PARKER:  You're now getting into multiple questions,

 7     multiple questions again.  Now, do you want the witness to comment on a

 8     specific article?

 9             MR. DJORDJEVIC: [Interpretation] You are right.  You are right,

10     Your Honour.  I don't want the witness to say anything about any article

11     because it may be a case of libel or slander.  I'm asking him whether it

12     is correct that they took the remains of bones of over 800 corpses and

13     the witness said that that is possible.  And now I'm asking under whose

14     supervision and at whose proposal were these samples taken.  He was the

15     head then so I'm asking whether it was his proposal.

16             JUDGE PARKER:  Let him answer that then.

17             THE WITNESS:  As I said at the beginning, the proposal to the

18     Office of the Prosecutor, the scientific concept of that was mine

19     although it was not my personal research, collection, whatever else we

20     want to add.  And just to answer now, since we are at it, your compound

21     question, I mean the other two parts of your question is the why, the

22     reason why, is very simple.

23             Over the years in the Balkans, the standards for determining age,

24     individual age, skeletal age that has been used were primarily derived

25     from American -- North American populations.  What we now know is that

Page 2678

 1     different populations age skeletal-wise, obviously, I'm not talking about

 2     whether somebody's wrinkled or not, in different ways.  Therefore, in

 3     order to be objective not just when you reconstruct demographic profiles,

 4     meaning you got so many people dying between, let's say, 25 and 35 or

 5     something of the kind; but also to assist with individual identification,

 6     meaning I suspect this person was so and so and part of his profile is

 7     that it is a male and is this age requires to have age standards that are

 8     derived from that population in question.  That is why now one of the

 9     things or one of the objectives of forensic anthropologists throughout

10     the world is to elaborate what is called population-specific standards.

11     I cannot use an African standard and apply on a South American population

12     or North American standard and use it in any other thing.  So that is the

13     reason.  I do not know whether it is clear, but that is the -- I mean,

14     the overall reason.  I mean, I can obviously expand, but, I mean, I don't

15     know if you're satisfied with that.

16        Q.   In part.  My next question in relation to this collection, this

17     bone collection:  I've read this and now you're going to tell me whether

18     it's correct or not.  In several articles of that, not at one, that the

19     samples that had been taken were the pubic bone, rib, and collar bone; is

20     that correct?

21        A.   It is and it isn't.  Depending -- let's see.  In the clavicle,

22     they took a piece of the clavicle for what is called osteon counting,

23     that is a histological technique, as a matter of fact, that requires a

24     slight of bone so not the whole bone, that's one thing.  The second thing

25     is, the pubic bone in some cases was resected and in some others cases

Page 2679

 1     was casted.  So they took a cast, kind of like a silicone cast.  And the

 2     ribs, the same thing, some where the external extremity, meaning the

 3     extremity that is closer to the cartilage was cut, that is a 2-centimetre

 4     or 3-centimetre cut or was casted as well.  So it depends.  It is a

 5     variation of this -- again, I do not have with me inventories or anything

 6     of the kind to tell you how many casts or how many actual specimens were

 7     taken, but this is variation and a combination of all.

 8        Q.   Very well.  The next question I would be interested in the

 9     remains of the bones that were taken from the remains of these bodies.

10     Did this have to do with persons whose identity had been established or

11     were these persons whose identity had not been established?

12        A.   They were a combination of both.  There is a large number of

13     cases with known identities and there are some other cases with unknown

14     identities.  The thing is that now, the standards derived from the known

15     can be employed to the unknown.  That is, in lay terms, what it is about,

16     yes.

17        Q.   When you spoke of the profile that you were interested in, did it

18     have to do with the Balkans or the former Yugoslavia or, for example,

19     only Kosovo and Bosnia?

20        A.   I guess these were -- profile has been quoted from where?  From

21     an article?  I mean, somewhere?

22        Q.   What you said yourself just a moment ago.  You said that the

23     profile of establishing the age of the remains could not be identical to

24     the one used in North America and that's why you started the entire

25     project.  However, since you say that the research was in Kosovo and

Page 2680

 1     Bosnia, Yugoslavia, the former Yugoslavia, rather, is a broader notion

 2     and the Balkans is an even broader notion.  So now I'm interested in

 3     hearing what the purpose of your investigation was.  What area?

 4        A.   Yes, I did not use the word profile, I used the word

 5     population-specific standard.  And as a people, former Yugoslavia is a

 6     quite representative sample of a people.  In other words, aging -- aging

 7     in former Yugoslavia will be much more uniform as a people are taken and

 8     as a population, no matter how we want to divide these populations up in

 9     subgroups than, for example, a North American population that yet again

10     is a multi-racial population or is a multi-national population.  So the

11     idea was to create population-specific standard for that part of the

12     Balkans that is quite representative as a matter of fact.

13        Q.   Tell me, before you got this idea to do that, you mentioned the

14     word standard rather than profile.  Did you use European profiles or

15     standards?  Are you familiar with those standard?  Why didn't you use

16     them rather than American standards?

17        A.   Well, as a matter of fact, and we're going to go into a very

18     technical detail here, the only -- let's go back in time a bit.  In

19     1995/1996 we were, for example, working in Rwanda, okay, not even in the

20     Balkans but in Rwanda, and we have bodies to examine and we have to come

21     up with a specific individual profiles in this case regarding how old

22     they were, males or females and so on.  Then the only forensic standards

23     we did have at hand were the ones they were and widely used were

24     North American standards.  Why is that?  The North American standards,

25     and I'm referring to two specific standards here, one called the

Page 2681

 1     Suchey-Brooks that refers to the changes or metamorphosis of the pubic

 2     synthesis that is part of your pelvis to parts of your pelvic bones, and

 3     then the standards produced by Iscan and Loth based on the metamorphosis

 4     of the external end of the ribs were the only forensic standards

 5     available.  Why were they the only forensic standards available?  Because

 6     these people have actually carried out an identical research collecting

 7     autopsy room specimens of known age and sex.  In the case of

 8     Suchey-Brooks was a very large multi-racial sample at Los Angeles county

 9     medical examiners office while the samples from Iscan and Loth were from

10     Florida somewhere.  But these were the only robust standards that could

11     be applied in forensic contexts until then.  So we came mid-1996 to the

12     Balkans and yet again we had the same problems as in Rwanda, what

13     standard should we use?  Of course there were other standards, for

14     example, the European association of anthropologists that has some kind

15     of standards; but they were not forensic standards.  They have been

16     derived on medieval populations.  Of course you have some other standards

17     by Aksavi [phoen] and Nemeskedy [phoen] very famous Hungarian

18     professors of anthropology that have developed the complex methods widely

19     used in the Balkans and in this way.  These cases yet again where is

20     majority, archeological populations that cannot be compared to modern

21     individuals.

22             So if I had a choice in 1996 I have to use what I had at hand,

23     but obviously the idea was that we have to be using something that could

24     actually be replicated elsewhere and used by those who would continue the

25     work of identification in the Balkans, I mean beyond ICTY, as they do it

Page 2682

 1     now.  So that is the reason.  So when we talk about standards we have to

 2     be very careful because, yes, there is a lot of standards.  But the

 3     validity and the usability of a standard is only dependent upon the

 4     sample on which it was based and whether it is applicable or not in a

 5     medical-legal context.  I cannot apply or for that matter even defend a

 6     report and say I have used, you know, standards derived from an Egyptian

 7     population from the time of the Pharaohs to apply to a Bosnian sample or

 8     Peruvian sample here.  That doesn't really work.  Here you're trying to

 9     defend the specific identify of one individual or a group of individuals

10     so you have to really base your things on the most accurate things you

11     have.

12        Q.   How could you then provide findings for all these bodies -- or

13     actually, tell me, when did the collection start, actually, the

14     collection known as the Baraybar skeletal collection, what year?

15        A.   The project, if I'm not mistaken, started back in -- this I would

16     question, 1998 or 1999, one of those two years.  Again, I'm using my own

17     sort of memory, so to speak -- I mean the project -- I rather call the

18     project rather than to my learned colleagues in Tennessee using the name

19     or my name for the project.

20        Q.   If it's 1998, when did Bosnia happen then?  You said that remains

21     were taken from Bosnia too, parts of skeletons, that is.  Am I right or

22     wrong on that?

23        A.   No -- yes.  I mean, as I -- I think I already said it.  This

24     project contemplated things from -- remains from Bosnia, and there's a

25     tiny collection, if I'm not mistaken, there's a tiny collection from

Page 2683

 1     Croatia as well and Kosovo, yes.

 2        Q.   Is that also 1998?

 3        A.   Yet again, based on my recollection, I think the project started

 4     in 1998 or 1999.  I mean, then -- I don't have the -- I mean, I got

 5     nothing.  I'm just using my own memory for that.

 6        Q.   You said that there were both identified and unidentified corpses

 7     from which these remains were taken.  Tell me, in the case of the

 8     identified bodies, was consent sought officially from family members to

 9     take these bones for scientific research or not?

10        A.   No.  These bones were collected as part of the autopsy procedure.

11     As in any autopsy you collect the specimens you need for your

12     examination; and in these types of cases, the determination of age or

13     whatever determination was part of the investigation of that specific

14     case.  If in an autopsy you collect tissue samples, you collect urine and

15     blood and vitreous and organ samples, whatever you need, in order to

16     conclude your case, there was the same logic.  So there was not an issue

17     of, I don't know, taking pieces for some strange, I mean, experiment of

18     some kind.

19        Q.   No, that's certainly not what I meant; however, I'm asking you

20     this because of the feedback involved from the families of these victims

21     and the representatives of certain international organisations that

22     voiced their views on this.  For example, Mrs. Munira Subasic,

23     Mothers from Srebrenica and Zepa; then again a gentleman who spoke on

24     behalf of Shpresimi [phoen] and Mari [phoen] Hoti, the Association of

25     Missing Persons.  Their comment was that this was scandalous, that no one

Page 2684

 1     had asked them about this, and that they are all appalled.  I don't know

 2     whether you're aware of these comments or not?

 3        A.   What I'm aware is that a number of very irresponsible journalists

 4     and maybe, maybe -- I would say maybe, although I'm almost sure,

 5     colleagues as a matter of fact unnamed so far decided that it was really

 6     a good venture to go to the media with these type of very inaccurate

 7     comments and then to the families to tell the families that indeed

 8     somebody has been taking pieces of the loved ones for some private

 9     collection, maybe a collection that I had in my house or under my bed or

10     something like that, because I have heard that too; and the families

11     therefore in -- reacted, as expected they would react, when exposed to

12     this kind of information.  What can I tell you?  It has been -- I have

13     lived through these types of slandering campaigns for years now.  And

14     they have used the families when the families, I mean, stopped saying

15     whatever they have to say, they went back to the families again and when

16     they did not hear anything from the families they invented something else

17     and that.  So there's quite a lot of those things on the internet.  I

18     stopped reading them, frankly.  For my mental health I have stopped

19     reading them a long time ago.

20             MR. DJORDJEVIC: [Interpretation] Your Honour, I have very few

21     questions left, but I believe that the time is right for the technical

22     break.  I've already overstepped, but I'll have a maximum of ten minutes

23     left for my questions for Mr. Baraybar, and I will then conclude my

24     cross-examination.  I think it would be a good idea to take the break

25     now.

Page 2685

 1             JUDGE PARKER:  Well, a break now will enable you to look over

 2     your remaining notes and consolidate your thoughts, perhaps,

 3     Mr. Djordjevic.

 4             So we will adjourn now and resume at quarter past 4.00.

 5                           --- Recess taken at 3.47 p.m.

 6                           --- On resuming at 4.17 p.m.

 7             JUDGE PARKER:  Mr. Djordjevic.

 8             MR. DJORDJEVIC: [Interpretation] Thank you, Your Honour.

 9        Q.   Sir, Mr. Baraybar, my last question is related to this

10     embarrassment connected to the bone collection.  Did the collection

11     remain at the University of Tennessee, or were the bones returned to

12     Kosovo?

13        A.   As far as I know, the University of Tennessee has returned all

14     remains to ICTY.  I mean, I no longer work for ICTY, as you know;

15     therefore, questions regarding that should be addressed to the

16     University of Tennessee.  But as far as I know, bones were returned.

17        Q.   One more question.  Why were the bones taken to the USA in the

18     first place, to the university?

19        A.   The University of Tennessee is, I would say, the, with a

20     capital T, university that has developed the most comprehensive forensic

21     anthropology programme in the US among all other universities, as you may

22     know, the department there was -- and the forensic anthropology programme

23     was set up by Dr. William Bass, a very well-known forensic

24     anthropologist.  As a matter of fact, his -- one of his books is pretty

25     much a textbook used by forensic anthropologists, I mean, all over the

Page 2686

 1     world.  So that was the main reason.

 2        Q.   Was it at your suggestion?

 3        A.   Yes, it was my suggestion, yes.

 4        Q.   Was there any kind of understanding or a protocol between the

 5     ICTY and the University of Tennessee about this?

 6        A.   Yet again, you should ask ICTY, but I presume there is, yes.

 7        Q.   You personally, as head of the PMF, no nothing about this, about

 8     any sort of agreement or protocol?

 9        A.   I wouldn't say I know nothing, but as I told you you should

10     actually ask ICTY because I stop working for ICTY in 2002.  I understand

11     there was some kind of agreement, but obviously I was not part of that

12     agreement since I was not employed by that institution.  I am not the

13     right person, based on recollection, to answer anything related to that

14     because it's just recollection.  I do not know.  I don't have any

15     documents in front of me.  But, I mean, I guess the right body to be

16     asked would be the ICTY.

17        Q.   Is there an expert report at the University of Tennessee sent to

18     the OTP or the Tribunal that has ever been used in a courtroom in any

19     case before the Tribunal?

20        A.   Yet again, you should ask the University of Tennessee they have

21     sent a specific report to ICTY; however, there's a suite of papers

22     published in the Journal of Forensic Sciences, peer reviewed papers that

23     at least within the North American, more specifically United States

24     system, would comply with the so-called Daubert standard of peer reviewed

25     publications that can be used in court published last year, 2008, yet

Page 2687

 1     again I do not have with me the specific issue, but I can -- I think you

 2     can find it on internet without any problems.

 3        Q.   I'm asking this because I suppose that the

 4     University of Tennessee received these fragments of bones in order to

 5     perform expert analysis for the benefit of a trial here or some other

 6     case, but I suppose you don't have any information about that.

 7             MR. DJURDJIC: [Interpretation] Now can we call up 5453

 8     [In English] -- that is the headline.  [Interpretation] Page 18.

 9     [In English] It is not 5453, it is P, P453.  Yes, that's correct.

10             JUDGE PARKER:  On the screen at the moment is I think

11     Exhibit P455; is that correct?

12             MR. DJORDJEVIC: [Interpretation] P5453 is the one we need --

13     sorry, P453, page 18.

14             JUDGE PARKER:  No, I'm interested in whether we need to receive

15     the document on the screen as an exhibit.  You referred to it when you

16     were questioning the witness.  It's a document --

17             MR. DJORDJEVIC: [Interpretation] I have not used this document at

18     all, Your Honour.  This is a protocol on forensic experts and reports,

19     it's P453, it's a document I have not used before, P453, page 18.

20             JUDGE PARKER:  Mr. Djordjevic, I don't think we are understanding

21     each other.  On your screen at the moment is a document you asked to be

22     put on your screen which you referred to the witness.  Do you want it to

23     be received as an exhibit or not?

24             MR. DJORDJEVIC: [Interpretation] Yes, I do want to tender this

25     document.

Page 2688

 1             JUDGE PARKER:  Can I tell you that you're in very good company,

 2     Mr. Djordjevic.  Mr. Djurdjic has set the example for this.  We will

 3     receive the document.

 4             THE REGISTRAR:  That will be D00064, Your Honours.

 5             MR. DJORDJEVIC: [Interpretation] Yes, yes.

 6             May I kindly ask for the protocol on the exchange of forensic

 7     experts and reports to be shown on the screen.  It's P453, page 18.

 8             That's correct.  That's the one.

 9        Q.   Now a very short question.  Are you familiar with this protocol?

10        A.   Yes, I am.

11        Q.   Did any cooperation actually take place under this protocol?  And

12     when I say that, I mean an exchange of your experience, the mutual

13     exchange of experience between pathologists, anthropologists, or not?

14        A.   Yes, in general terms, yes.  I would say that we were very

15     accommodating to Serbian forensic experts to come to Kosovo to oversee

16     the exhumation and examination of any remains that they suspected to be

17     non-Albanians.  On the other hand, however, most of the, if not all, the

18     exhumations and examinations of remains found in Serbia proper were

19     carried out prior to my office being set up.  Therefore, I was not even

20     there, so we could not really -- I mean, be reciprocated, so to speak, in

21     that regard.

22        Q.   My question basically is this:  Did you exchange data with

23     Serbian experts regarding precisely what I call profile and you call

24     standard, if I'm not mistaken, of the age of the exhumed bodies?  Was

25     there any cooperation on that issue and on the application of certain

Page 2689

 1     standards that were not familiar to you because you said that the

 2     Northern American standard was the one you applied beginning with Rwanda

 3     and former Yugoslavia and further on?

 4        A.   Well, as I already told you, the final publication of the

 5     standards, I mean as peer-review standards, has taken place last year.  I

 6     left Kosovo the year before.  Therefore, by definition, no.

 7        Q.   So your answer is no.  Thank you.  I have no further questions.

 8     I thank you for the answers you've provided today and over the past three

 9     days.

10             MR. DJORDJEVIC: [Interpretation] Your Honours, I have completed

11     my cross-examination.  If any other comments arise, we will file a

12     submission in writing.  Thank you.

13             JUDGE PARKER:  Thank you.  Are you wanting this document received

14     as an exhibit?

15             MR. DJORDJEVIC:  Again [Interpretation] Yes.

16             JUDGE PARKER:  It will be received.

17                           [Trial Chamber and Registrar confer]

18             JUDGE PARKER:  It's being pointed out by our court officer that

19     it's already an exhibit, so you've done well.

20             Ms. Kravetz, is there any re-examination?

21             MS. KRAVETZ:  No, Your Honour, I have nothing in re-examination.

22     Thank you.

23                           [Trial Chamber confers]

24             JUDGE PARKER:  Judge Baird has some questions.

25                           Questioned by the Court:

Page 2690

 1             JUDGE BAIRD:  Mr. Baraybar, I shall like to take your mind back

 2     to the reference you made to the tangential gun-shot wound to the head,

 3     the keyhole, as you called it, displaying exit and entrance wounds

 4     simultaneously.  Now, can you tell us what was or what would have been

 5     the position of the deceased in relation to the person doing the actual

 6     shooting?

 7        A.   That is a very tricky question, as a matter of fact, Your Honour,

 8     and is a question that is generally posed -- generally by lawyers, if I

 9     may say.  One thing we have to understand regarding this is that the

10     trajectories that are presented in a corpse, I mean in a skeleton, are in

11     relation to the anatomical position of the individual, so irrespective of

12     whether the person was, for example, lying or standing.  Anatomically it

13     would be standing with both arms extended next to the body.  So in those

14     absolute terms it would be from let's say back to front, above to below,

15     below to above.  However, in a case like this one I cannot tell you

16     whether the person was with a head, for example, bent or kneeling or

17     something.

18             In very specific cases certain shots generally caused by handguns

19     in this case can provide us more insights as to how the person may have

20     been, I mean, placed in or regarding the person shooting.  For example,

21     shots that enter areas that are covered by the neck, in which you

22     actually need for the head to be hyper-flexed, meaning flexed anteriorly,

23     there is no other way by which the bullet could come in that way.  But

24     with high-velocity rounds such as in this case that's a high-velocity

25     round, a rifle round, it is extremely difficult to say in what position

Page 2691

 1     the person was.  I do not know whether I am answering --

 2             JUDGE BAIRD:  I thank you.

 3        A.   Thank you.

 4             JUDGE BAIRD:  Now, you referred to the peri mortem injury.  Now,

 5     a peri mortem injury is in essence a post mortem injury, is it not.

 6        A.   It is not, as a matter of fact.  Peri mortem is distinguished by

 7     post mortem by the fact that it belongs to the interval around the time

 8     of death, meaning could be slightly before or slightly after.  In other

 9     words, let's say I have a person, I shoot this person and the person dies

10     of an injury, but let's assume that I shoot the person a second time and

11     the person is clinically dead.  I will not be able to find in that second

12     interval a difference between the first and the second shot.  The only

13     way to find this out, and I may say there's an element of current

14     research in various -- in various places, is on the detection of certain

15     elements that are produced by your body while you are alive.  For

16     example, some by-products of blood -- of bleeding specifically more than

17     of blood, but of bleeding -- certain proteins that may be produced when

18     you are alive.

19             Therefore, yes, if I shoot a dead body and the body bleeds

20     because this person died 30 seconds ago, this person is not producing

21     that substance.  That would be a lay way to put it.  But for the time

22     being it has been for the last many many years, peri mortem is something

23     we interpret as around the moment or the episode of the death.  So it

24     could be slightly before or, yes, slightly after.  But post mortem is

25     something more of an artefact.  For example, I threw the body in a grave

Page 2692

 1     and then the massive rocks, I mean, covered the body and broke the bones,

 2     and things of the kind.  That would be post mortem, but peri mortem is

 3     around the time of death.

 4             JUDGE BAIRD:  There is no line of demarcation between the peri

 5     mortem and -- there is none, I suppose, there is none.

 6        A.   No, yet again, the beauty of somebody working with a cadaver is

 7     that having soft tissues you can actually measure that.  You can measure

 8     the person bled because you have the blood, you've got the broken vessel

 9     because you've got a hematoma because you have everything.  Not having

10     that, as such as in bone, you remain with other things that are less

11     precise, they may be as accurate as, but less precise.

12             JUDGE BAIRD:  I see.  I thank you very much indeed, Dr. Baraybar.

13     Thank you.

14        A.   Thank you.

15             JUDGE PARKER:  You'll be pleased to know that that concludes the

16     questioning for you.  The Chamber would like to thank you for your

17     attendance for the assistance you've been able to give and the time that

18     you've been asked to devote to this.  We are grateful.  You may of course

19     now resume to your ordinary activities.

20             THE WITNESS:  Thank you, Your Honours.  If I may, can I say

21     something?  It's just, I had a note -- I have a note here on a

22     clarification for Mr. Djordjevic, as a matter of fact, that I wanted to

23     say as a closing remark of mine if I may steal some of the time of the

24     court.

25             JUDGE PARKER:  It would depend upon Mr. Djordjevic.

Page 2693

 1             Would you like to hear, Mr. Djordjevic?  I take that as a yes.

 2             MR. DJORDJEVIC:  Rather no.

 3             JUDGE PARKER:  No.

 4             THE WITNESS:  Okay.  Fine.

 5             JUDGE PARKER:  Okay.  That's the answer, I'm afraid.

 6             THE WITNESS:  That's fine.

 7             Thank you very much.

 8                           [Trial Chamber confers]

 9                           [The witness withdrew]

10             JUDGE PARKER:  Now, Mr. Stamp, we understand there's a matter you

11     wish to raise?

12             MR. STAMP:  Thank you very much, Your Honours.  If I could do so

13     in private session, I'd be grateful.

14             JUDGE PARKER:  Private session.

15                           [Private session]

16   (redacted)

17   (redacted)

18   (redacted)

19   (redacted)

20   (redacted)

21   (redacted)

22   (redacted)

23   (redacted)

24   (redacted)

25   (redacted)

Page 2694











11  Pages 2694-2704 redacted. Private session.















Page 2705

 1   (redacted)

 2                           --- Whereupon the hearing adjourned at 5.46 p.m.,

 3                           to be reconvened on Tuesday, the 24th day of

 4                           March, 2009, at 9.00 a.m.