1 Wednesday, 23 July 2008
2 [Open session]
3 [The accused entered court]
4 [The witness entered court]
5 --- Upon commencing at 9.04 a.m.
6 JUDGE AGIUS: Good morning, Madam Registrar. Would you call the
7 case, please.
8 THE REGISTRAR: Good morning, Your Honours. This is case
9 IT-05-88-T, the Prosecutor versus Vujadin Popovic, et al.
10 JUDGE AGIUS: Merci, Madam. I notice that all the accused are
11 here. And from the Defence teams I notice the absence of Ms. Nikolic,
12 Mr. Josse. That's all. And present for the Prosecution is Mr. McCloskey
13 and Mr. Thayer. Mr. McCloskey and Mr. Thayer.
14 [Trial Chamber and registrar confer]
15 JUDGE AGIUS: The witness is also here. We'll soon start with
16 the continuation of your testimony. Good morning to you in the meantime.
17 Mr. Krgovic, I understand you wish to address the Chamber.
18 MR. KRGOVIC: [Interpretation] Yes, Your Honour. In keeping with
19 the decision of the Trial Chamber of the 26th of May, 2008, the
20 Prosecutor and all sides to the proceedings are duty-bound at the moment
21 when the witness starts testifying and takes the oath to submit documents
22 that they would be using during cross-examination. General Gvero's
23 Defence has observed that the Prosecution has not complied with this
24 decision. We have addressed the Trial Chamber in writing asking for
25 everybody to comply with this decision.
1 Mr. Thayer submitted his documents for the last witness only when
2 the examination was finished and for this witness we have still not
3 received any documents. This has a great bearing on the
4 cross-examination. Yesterday, for example, the documents arrived late to
5 the Defence and that's why some questions were not raised on
6 cross-examination. So what we are asking for everybody to do is to
7 comply with the decision. That was the case during the Prosecution case.
8 In case any Defence team was late disclosing documents and notifying the
9 Prosecution what would be used, the Prosecution reacted. And I repeat,
10 the moment this witness starts testifying and takes the oath, we would
11 like to be given notification of all the documents that will be used
12 during the examination of this said witness.
13 JUDGE AGIUS: I think this is an old story. We have debated this
14 in the past and I think there are two categories of documents that one
15 could speak of. The ones that are anticipated, and the ones that cannot
16 be anticipated and the need for which arise in the course of the
17 examination-in-chief. But anyway, I don't know who is going to address
18 this? Yes, Mr. Thayer.
19 MR. THAYER: Good morning, Mr. President. Good morning,
20 Your Honours. Good morning, everyone. I'll address it simply since I'm
21 sitting here at this moment. It is really, frankly, a stunning argument
22 to hear from my friends. They've asked us about it informally, we've
23 told them what our position and our position is simple. We had an
24 agreement with our friends that lasted for two years during the
25 Prosecution case. That agreement was unanimous with respect to the
1 Popovic team the agreement was withdrawn to some degree when Ms. Condon
2 left but we had an agreement that we have discussed in Court on the
3 record to which my friends made no objection, no qualification when this
4 issue was raised before upon a complaint from the Popovic team.
5 This is just shocking that we are hearing this now when they
6 know what they agreed to. It's on the record. We've been abiding by
7 that agreement. We specifically, as part of that agreement, agreed that
8 the Defence could turn over their documents for cross upon the
9 conclusion of the direct examination at the beginning of the
10 cross-examination with the specific understanding that that agreement
11 would hold during the Defence case. That was the understanding and it
12 was unanimous and it was observed for two years. It doesn't take a
13 rocket scientist to understand why we would agree to that. That was
14 the consideration.
15 JUDGE AGIUS: All right. Stop. I think this is a matter that
16 you should meet and discuss around the table again, once and for all.
17 And we will abide by whatever decision you arrive. You all know that we
18 have all along tried to avoid to intervene ourselves in these matters and
19 we have left you entirely to come to an agreement, fully confident that
20 you are perfectly capable of doing so. So let's not use more sitting
21 time and go straight to the witness. Yes, Mr. Thayer.
22 MR. THAYER: Mr. President, just for of the record, the last
23 discussion we had on this, on the record, was at transcript page 12141,
24 May 29th of last year.
25 JUDGE AGIUS: Thank you.
1 So good morning, again, Mr. Jevdevic. Mr. Ostojic will continue
2 with his examination-in-chief -- oh, Mr. Nikolic, sorry. Mr. Nikolic
3 will continue with his examination-in-chief.
4 MR. NIKOLIC: [Interpretation] Thank you, Your Honour. Good
5 morning. Good morning to everybody in the courtroom.
6 WITNESS: MARINKO JEVDEVIC [Resumed]
7 [Witness answered through interpreter]
8 Examination by Mr. Nikolic: [Continued]
9 Q. Good morning, Mr. Jevdevic.
10 A. Good morning.
11 Q. Yesterday we left it off with a topic that we almost completed.
12 It was about the effort of the administration of the security and
13 intelligence service and on how to eliminate paramilitary formations.
14 I'll have just a couple of more questions about that then I'll move on.
15 Were there any other situations in which the military police was tasked
16 with eliminating the work of paramilitary formations in some other
17 regions and if that was the case, could you please tell us where and when
18 that was the case?
19 A. Yes. In the Sarajevo
20 paramilitary formation in question was the formation Brneta [phoen] in
21 Ilidza up there. This is where the military police participated in the
22 arrest of these individuals and their bringing in and placing under the
23 control of the Army of Republika Srpska.
24 Q. Can you give us some more details of that paramilitary unit in
25 Ilidza. Whose unit was it, who were the rogue individuals? Were they
1 under somebody else's command or influence?
2 A. They were not under the command of the Army Republika Srpska, so
3 we had received an order and Commander Malinic went with us. They were
4 mostly volunteers from Serbia
5 Q. Very well, then. Tell me, please, until the end of the war, were
6 there any other problems with those paramilitary formations? Were they
7 finally eradicated and was their influence finally eradicated?
8 A. After these two cases, we did not have any more problems with
9 paramilitary formations in the Bratunac Brigade and Sarajevo Romanija
10 Corps down there at Ilidza.
11 Q. Now, I'm going to show you a document, 2D530. Can this please be
12 brought up in e-court. We have a draft version of translation into
13 English. Could you please look at the document just briefly. Read it
14 and then we will comment on the document together. Can the document
15 please be scrolled up to show the bottom of the page. Thank you. Can I
17 A. Yes.
18 Q. The document was issued by the Main Staff. The date is
19 19 October 1995
20 contents and the essence of this document?
21 A. This is an order which was issued by the Main Staff and it also
22 applies to the 65th Protection Motorised Regiment which was our unit and
23 the order was to remove such formations and other groups from the
24 territory, as well as individuals who were not under command of the
25 Army Republika Srpska.
1 Q. In your opinion, does this mean that the problem was not
2 completely resolved and that not all paramilitary formations were
3 eliminated before this document was issued, what would you say?
4 A. I believe that that indeed is the case.
5 Q. Thank you. In the course of your testimony yesterday, you told
6 us how the military police, headed by yourself, completed the job
7 concerning paramilitaries in Bratunac and that you were also assisted by
8 Colonel Beara during that operation. How often did you have an occasion
9 to see Colonel Beara in the course of the war, of course?
10 A. I mostly saw him around the Main Staff or in the Main Staff
11 itself. We would go there quite often. We were mostly engaged in
12 providing security for the Main Staff.
13 Q. I'm asking you this because I would like to draw some
14 conclusions. After such a long time, would you be able to give us the
15 description of his appearance, the way he looked at the time?
16 A. Colonel Beara at the time was tall, heavily built, he had greying
17 hair, he sported spectacles.
18 Q. And what was his military posture and attitude towards his
19 subordinates, towards you, the military policemen?
20 A. He was rather strict, and he expected us to behave as soldiers.
21 And this is exactly how he behaved, as a soldier. He demanded discipline
22 from us.
23 Q. Very well, thank you. Let's move on to something else now.
24 Where were you when the operation around Srebrenica was taking place?
25 A. At the time I was with one part of my company in the vicinity of
2 Q. Was that due to some combat activities or were you just
3 performing your regular police duties there?
4 A. At that time, there were combat activities in the area of
5 Odjadjel [phoen] and also in the area of Umcani. I was in Kijevo with
6 one part of my unit prepared for those actions.
7 Q. How long did you stay in the Treskavica sector, can you give us a
8 time period?
9 A. I believe that it was on the 14th of July, 1995, when we left.
10 Q. Where did you go on the 14th of July?
11 A. On the 14th of July, I left for Nova Kasaba. I returned to my
12 unit with two of my soldiers.
13 Q. And why did you return bearing in mind that there was combat
14 going on at Treskavica, had the combat stopped or was there any other
15 reason that required your presence in the unit?
16 A. Combat had temporarily stopped. With my unit I was in Kijevo far
17 behind the line and I went to Nova Kasaba because I had learned that one
18 part of the troops were supposed to come back for regular leave and I was
19 going to relieve them with some of my men, to replace those that were on
21 Q. When you arrived in Nova Kasaba, who did you find there? Could
22 you describe the situation as you saw it on the day when you arrived, and
23 when was it, what time of day was it when you arrived in Nova Kasaba?
24 A. I arrived on the 14th of July in the afternoon hours. And in the
25 barracks I found the battalion commander Major Malinic. Troops were in
1 the state of readiness, performing regular duties and jobs around the
3 Q. You joined them, didn't you, and what else did you do on that
4 day? Did you have any conversations with Commander Malinic, did he brief
5 you on the situation, did he update you on what had happened while you
6 were absent?
7 A. Yes, I was updated in a conversation with Major Malinic. He told
8 me what had happened the day before. There was fighting in that area of
9 Kasaba and the surrounding hills. He gave me a task to take 12 soldiers
10 and provide security for the barracks, to be prepared to intervene
11 because fighting was still going on.
12 Q. So did you take the task, where did you go?
13 A. Yes, I took the task. And there were not that many men. We were
14 in the state of readiness.
15 Q. On that day did you scour the ground looking for any remaining
16 groups in view of the fact that fighting had taken place the previous
18 A. No, not on the 14th, but I did go to scour the terrain on the
20 Q. Did anything significant happen during your mission, and was
21 there anything that merited conversation with your commander? Was there
22 anything that you had to inform your commander about?
23 A. I took 14 soldiers towards the -- and I went towards the hill
24 above Kasaba. We had information that a family, a Serb family lived in
25 the village above Kasaba and that they resided there permanently.
1 According to the information that we had, there was a strong likelihood
2 that some Muslim units had had paid them regular visits inquiring about
3 our positions and we had received an order to pay a visit to that family.
4 We did that, and we found an elderly woman up there. She told us that a
5 group had arrived on that very morning and that other groups came very
6 frequently. She even gave food to one of those groups. I don't know
7 what food she gave them, but in any case she did feed them. She did not
8 want to go back to Nova Kasaba with us.
9 And we proceeded further following some information according to
10 which in the surrounding hills at a water source and in some swimming
11 pools there was a large quantity of hidden weapons. We were still trying
12 to find those hidden weapons. As we were looking for them, we came to a
13 forest path, a road. We noticed that there were several soldiers from
14 Srebrenica there. They were enemy soldiers who had committed suicide.
15 Q. Just a moment, please. How do you know that they committed
16 suicide? Can you give us some more details? As I'm listening to your
17 answer I can conclude that they were dead, did you see bodies?
18 A. Yes, they were dead. There was quite a number of bodies there.
19 They were lying scattered on that forest trail in smaller groups. There
20 was not a very long trail and we knew from the intelligence that we
21 received earlier that there had been instances of self-destructions and
22 this is what we found. I got interested in that and I took a few
23 soldiers to inspect the situation, and as I say, they were scattered all
24 along the road and we could establish that they had killed either each
25 other or they committed suicide with bombs. And we could conclude that
1 judging by the wounds that they had inflicted upon themselves with those
2 grenades. We left the scene very quickly because of the stench. The
3 bodies had already started decomposing by then.
4 Q. Mr. Jevdevic, I will now put another document to you. Could we
5 please see 2D233. We also have a draft English translation. Could we
6 please have it distributed to the Trial Chamber.
7 Could you please take a look at the document and then we shall
8 analyse it. Would you please look at paragraph 4. That is the paragraph
9 that is important for us. Can we proceed?
10 A. Yes.
11 Q. This is an official note composed by the ministry of the interior
12 police station in Srebrenica on the 26th of August, 2003. You have read
13 it now. Would you please now tell us what this is about?
14 A. It has to do with this person describing the things similar to
15 what I had seen but worse. I didn't come across such people out in the
16 field. I only came across such people who were killing. I didn't see
17 anybody who had hung themselves.
18 Q. Based on this statement given by Sinahid [phoen] has -- it seems
19 that he was one of those in the column who had managed to reach Tuzla
20 break through to Tuzla
21 A. Yes.
22 Q. So this is his description of events taking place that you
23 witnessed yourself or, rather, you saw the consequences of those events;
25 A. Yes, yes.
1 Q. When you came back on that day after touring the terrain, when
2 you came back to Nova Kasaba, did you inform the commander about
3 everything that you had seen?
4 A. Yes. I informed him about what I had seen out in the field and
5 he confirmed to me that there was some information that in the village of
6 Jelah, that there was some intelligence information indicating that a
7 group had been found there in that village, a group of people that had
8 committed a mass suicide.
9 Q. All right. When you arrived on the 14th in the afternoon and
10 then on the 15th you spent the entire day Nova Kasaba, were there any
12 A. There were no prisoners.
13 Q. In that period of time on the 14th in the afternoon and on the
14 15th, did you see -- or, rather, did you see specifically Ljubisa Beara
15 who was chief of security in Nova Kasaba and in that area?
16 A. I did not see Ljubisa Beara in the Kasaba area.
17 Q. Who did you find there when you came back from touring the
19 A. Upon my return from the terrain on the 15th when I came back to
20 the barracks at the school in Nova Kasaba where we were housed, I saw
21 that there were two vehicles parked, two vehicles of UNPROFOR. Those
22 were two Mercedes jeeps.
23 Q. And did that make you inquire about what was going on?
24 A. Yes, I asked my friends from the military police and the crime
25 technicians and they told me that those were two jeeps that the UFOR
1 commander from Potocari had given them as a gift and he personally
2 brought them there and gave the keys to Major Malinic allegedly due to
3 very proper behaviour of our soldiers because they had spent there
5 Q. And what was the fate of those vehicles, did they remain with you
6 or did you transfer them to the security administration or to the
7 Main Staff or to somebody else?
8 A. Yes. One remained with us and was used by the military police.
9 And later on it was rotated and was used as our vehicle when we were
10 carrying out our assignments. As for the other one, I don't know where
11 it ended up. I think that it was sent to the police in Han Pijesak.
12 Q. Please tell me, while you were there on the 14th and the 15th in
13 Nova Kasaba, did you find there or did you see there any of those UN
15 A. No, I didn't.
16 Q. All right. Thank you?
17 MR. NIKOLIC: That concludes my examination Your Honours.
18 JUDGE AGIUS: Thank you Mr. Nikolic. Madam Fauveau, he is also
19 your witness. Sorry, Mr. Petrusic. It seems you are going to examine
20 the witness. Please go ahead and introduce yourself.
21 MR. PETRUSIC: [Interpretation] Just a moment, Your Honour,
22 Mr. President.
23 First of all, good morning, Your Honours.
24 Examination by Mr. Petrusic:
25 Q. Good morning, Witness. My name is Nenad Petrusic and on behalf
1 of the Defence team of General Miletic, I will be putting questions to
3 At the very outset, I would like to clarify certain matters,
4 namely, that you on page 9, line 3, said to Mr. Nikolic that you had
5 information that in the hills in the water sources and swimming pools
6 there was some weaponry. Please explain to me what swimming pools were
7 you referring to?
8 A. I wasn't referring to any swimming pools. I was referring to
9 reservoirs of drinking water that the local residents used.
10 Q. Did you find any weaponry there?
11 A. No, we didn't.
12 Q. And next to those dead bodies that you came across, did you find
13 any weaponry there, next to them?
14 A. Yes, they were in uniforms. And based on everything I had seen,
15 they were members of the army of Bosnia and Herzegovina. They had belts,
16 ammunition on them, and some of them had rifles still on them.
17 Q. Tell me, please, in July of 1995, did you have a rank?
18 A. Yes, I was second lieutenant.
19 Q. What about the unit that was under your command, was that the
20 same unit that you had under your command back in 1992?
21 A. Yes, in 1992 I was a platoon commander and now I was a commander
22 of an anti-terrorist company.
23 Q. How long did you stay in Nova Kasaba, until what time?
24 A. I left Nova Kasaba on the 17th in the morning hours.
25 Q. Are you referring to the 17th of July, 1995?
1 A. Yes, the 17th of July, 1995.
2 Q. Who did you leave Nova Kasaba with, and pursuant to whose orders
3 did you leave it?
4 A. I left Nova Kasaba with the members of my unit, 14 of them. On
5 the 17th in the morning at about 6.30, I set out towards Zepa pursuant to
6 the order of General Savcic.
7 Q. Did General Savcic directly issue the order to you?
8 A. No, Commander Malinic conveyed to me the order of Savcic which I
9 carried out subsequently.
10 Q. Could you give us more details, what exactly did Major Malinic
11 convey to you?
12 A. On the 16th in the evening, late in the evening, Major Malinic
13 called me and told me, "There's a message for you from General Savcic,
14 for you and your package to set out at dawn towards the Zepa area."
15 Q. You knew what that code stood for, your "package" or your
16 "parcel," you knew what that meant?
17 A. Yes, I knew. It referred to my soldiers. We used that term
19 Q. Which road did you take from Nova Kasaba to Zepa, and how did you
21 A. I set out in a vehicle, in a terrain vehicle. It was a
22 Pinzgauer, an open vehicle. I set out towards Nova Kasaba, Han Pijesak
23 and the village of Godjenje
24 Q. And on that road or around that road did you observe that there
25 were any combat activities, was there any fighting taking place between
1 Nova Kasaba and Han Pijesak?
2 A. No, I did not notice anything except for police checkpoints that
3 were stepped up and moving towards the village of Godjenje
4 forward command post, I did not notice anything.
5 Q. Let us go back for a moment to Nova Kasaba. Those 10 or 12
6 people of yours, when did they reach Nova Kasaba?
7 A. Some of them arrived on the 13th and some on the 14th. Because
8 in Zvornik they waited for the road to Nova Kasaba to be opened; it had
9 been closed. So they arrived there before me.
10 Q. And when you set out from Nova Kasaba, how many people remained
11 in the military police battalion under the command of Major Malinic?
12 When I say people I'm referring to soldiers.
13 A. He remained there with some 20 to 30 people, approximately.
14 Q. Thank you. And that military police battalion, do you remember
15 what its strength was? How many men it had in its numbers?
16 A. Well, it was 500-odd people in that military police battalion.
17 Q. Do you know, do you remember, where were they deployed at that
19 A. A part of the battalion was in Treskavica, another part, or
20 rather, a platoon of my company -- before me one had been in Zepa. Then
21 a company of armoured vehicles was also in the Zepa area and the barracks
22 in Han Pijesak, because prior to that we had some combat activity around
23 the Main Staff and they remained there on alert. A lot of people were
24 wounded in the activities around Treskavica. Over 100 people were
25 wounded and were put out of action.
1 Q. Mr. Jevdevic, when Major Malinic told you that you should go to
2 Zepa did he provide you with the specific location where you should
3 report and whom you should report to and did you know that, the identity
4 of the person that you were to report to?
5 A. Well, he told me that the forward command post of General Savcic
6 was located in the village of Godjenje
7 "Gorazde"] and it was quite natural that I should report to him. He was
8 the commander of the protective regiment, so I was reporting to him.
9 Q. Well, this is a little bit leading question, but I hope there
10 will be no objections from the Prosecution. So on the 17th you arrived
11 in Godjenje [Realtime transcript read in error "Gorazde"]?
12 A. Yes, that's right I arrived at the forward command post at
14 Q. Who did you found there at the IKM, the forward command post?
15 A. I encountered several people at the forward command post,
16 General Mladic, Major Jevdevic, and after that I reported to
17 General Savcic.
18 Q. Major Jevdevic is your brother, is that not right?
19 A. Yes, he is my brother.
20 Q. Did you remain there at the forward command post at all?
21 A. We remained there for a very short period of time.
22 Q. Did you receive any orders from anyone at the forward command
24 A. Well, General Mladic asked us to go with the troops towards the
25 village of Ljubomislje. Then I spoke to him, I said I have the remains
1 of my unit, a platoon deployed around Brezova Ravan and that I should
2 report there and that General Savcic was waiting for me, and he approved
4 Q. Madam Fauveau warns me that at page 15, line 23, and page 16,
5 line 3 through 5, instead of IKM Godjenje it says IKM Gorazde, so I would
6 like that to be corrected. We'll do it through a question.
7 Mr. Jevdevic, are we talking about the IKM forward command post
8 at Godjenje?
9 A. Yes, at Godjenje.
10 Q. And what was the reason why you stopped at that forward command
12 A. Well, I knew that my brother, Major Jevdevic, Milenko Jevdevic,
13 was deployed in that area. I recognised his vehicle. The vehicle that
14 he was using that was a communications vehicle. And I wanted to see my
15 brother. That's all.
16 Q. So finally you encountered General Savcic; is that right?
17 A. Yes, I reported to General Savcic.
18 Q. Did you have in your unit any chemical weapons?
19 A. Yes, we did have some chemical rounds.
20 Q. Could you please explain what kind of weapons are we talking
21 about for the benefit of the Trial Chamber?
22 A. Well, some of my soldiers had been issued those hand grenades,
23 AG1 hand grenades and they contained tear gas. They are used by all the
24 police forces, the police -- civilian police and military police uses it
25 and it is establishment equipment.
1 Q. Well, and those hand grenades, are they used for riot control?
2 A. Yes, precisely.
3 Q. And to use this kind of chemical weapons, would you have to have
4 some protective equipment, gas masks, something like that?
5 A. Yes, we were all supposed to have protective masks in order to be
6 able to use the hand grenades.
7 Q. And did you have such masks?
8 A. At that time we didn't have those masks.
9 Q. And do you know whether chemical weapons were used, any kind of
10 chemical weapons, in combat operations around Zepa?
11 A. I don't know anything about any use of chemical weapons.
12 Q. Okay. Now, I would like to move on to something else. Could you
13 please tell us something about those combat operations, or rather, how
14 you received the tasks from General Savcic, the combat operations and who
15 issued tasks to your unit? So could you please tell us what tasks did
16 you get from him?
17 A. The task was to join a platoon led by Lieutenant
18 Stojan Maksimovic . He had been in the field there for a long time. He
19 was in the area of Brezova Ravan and he sent me there and the same day I
20 reached Lieutenant Stojan Maksimovic in the area of Brezova Ravan. I
21 asked him to give me intelligence about their trenches and we were
22 getting ready to launch an attack. And we attempted an attack the same
23 evening. But we were unsuccessful and had to pull back to the initial
25 Q. So you are talking about the 17th of July?
1 A. Yes, that's all this is happening on the 17th of July.
2 Q. And could you please tell us, were you in contact with
3 Stojan Maksimovic or with Savcic, the Maksimovic that you were
5 A. Yes, we were in contact using radios, we had Motorolas.
6 Q. Were you part of the communications system of the Drina Corps,
7 were you in contact with them?
8 A. No, I was not in their communication system.
9 Q. So General Savcic was the only person issuing orders to you?
10 A. Yes, he did that on our frequency using communications equipment.
11 Q. After that first meeting with General Mladic sometime in the
12 morning of the 17th, did you see him again on the 17th, during the day?
13 A. No, I did not.
14 Q. Let's go on. On the 18th, on the 18th of July, how did combat
15 operations proceed, did you get any new tasks and what did your command
16 do vis-a-vis you, what were you doing in other words?
17 A. On the 18th I was at the same axis and I continued with the same
18 task. And in the morning of the 18th, I launched an attack with my unit
19 along the Brezova Ravan axis.
20 Q. Do you know that there is a point or a checkpoint at
21 Brezova Ravan and to our knowledge it was supposed to be an UNPROFOR
22 checkpoint or point?
23 A. Yes, General Savcic told me about that and he said that this
24 point had been taken over by the Muslim army from Zepa, that they had
25 taken the UNPROFOR soldiers to Zepa and they had been using this UNPROFOR
1 point as their stronghold.
2 Q. And what kind of weapons were the Muslim forces from the
3 Zepa Brigade using in offering or rather, in engaging your forces, can
4 you say that, do you have any knowledge of that?
5 A. Well, apart from light infantry weapons, light machine guns, I
6 actually didn't know what they were using. But they were using some
7 larger calibre weapons, I didn't know what it was. Up until the time
8 when we actually managed to take an APC, that was on the 18th, that was
9 an UNPROFOR battalion APC, it was located there at this UNPROFOR point
10 and it was used by the enemy side to engage us.
11 Q. And that was on the 18th?
12 A. Yes, on the 18th in the morning. That's when we took
13 Brezova Ravan.
14 Q. Could we please have 5D1112 put on our screens. Mr. Jevdevic,
15 could you please focus on item 2 of this document originating from the
17 perhaps comment on it.
18 On the 19th of July did you really take the village of Vratar
19 approaches to the village of Borak
20 reached the approach routes to the village of Borak
22 A. On the 19th of July, I and my unit took the village of Vratar
23 which was on our axis. I'm not familiar with Borak, we were not heading
24 in that direction.
25 Q. Do you have any knowledge that in that part of the theatre or
1 rather, in the fighting around Zepa that in addition to the units of the
2 65th Regiment, your unit and this other unit that was commanded by
3 General Savcic that there were other units from Drina Corps deployed
5 A. Well, there were other units of the Drina Corps. There was the
6 battalion to the left of me from the Bratunac Brigade.
7 Q. Do you know that there were elements of the units of the
8 2nd Romanija Brigade deployed there and elements of the Birac Brigade?
9 A. Yes, they were there too.
10 Q. Could you please look at item 3 now. On the 19th of July, did
11 you at any point receive an order, and if so from whom, to cease combat
13 A. On the 19th of July as we were taking the village of Vratar
14 received an order from General Mladic via radio and it indicated clearly
15 to all units to stop fighting and to remain where they are, to remain at
16 the lines that they had reached.
17 Q. So this was a direct order from General Mladic?
18 A. Yes, a direct order from General Mladic that we received on the
20 Q. In the course of the proofing for this testimony, you indicated
21 where the village of Vratar
22 the point that you reached when General Mladic issued this order to cease
23 all combat operation, did you have a line of vision to Zepa?
24 A. Yes, you could see the whole of the village of Zepa
25 location quite clearly.
1 Q. And do you know where at the time, we are talking about the 19th
2 of July, the Muslim armed formations were, members of the 285
3 Zepa Brigade?
4 A. Well, I could infer that on the basis of the fighting that was
5 going on in the direction of the Zepa mountain that was on the opposite
6 side from where I was, so I could conclude that they were on the opposite
8 Q. And on that day, the 19th, the truce, did it apply to all units
9 participating in combat?
10 A. Yes, it applied to all. That was the order, or at least I
11 received that order.
12 Q. From then on for as long as you were deployed in the area, did
13 you receive any order to continue fighting?
14 A. No, I did not receive any further orders about any combat.
15 Q. From that point, could you see what was going on in Zepa at that
16 moment in the town itself?
17 A. We could see civilians' movements around Zepa. Above the centre
18 of the village of Zepa
19 could observe a large number of civilians.
20 Q. The way I understand you, the large number of civilians came from
22 A. Yes, Cavcici, Purcici --
23 Q. Just a moment, hold on, please. Where did those civilians arrive
25 A. They arrived from the direction of the Zlovrh, and then they came
1 to the villages of Purcici and Cavcici, and --
2 Q. According to your information at the time when the civilian
3 population was entering Zepa from the surrounding villages, the troops of
4 either the Drina Corps or the 65th Regiment, did they enter the village
5 of Zepa or did they remain on the lines reached up to then?
6 A. At that time none of our troops, or any troops for that matter,
7 entered the village of Zepa
8 Q. And you did not take the village of Zepa
9 A. That's true, we did not take Zepa.
10 Q. Can we now see document number P3015.
11 Please look at the document, Mr. Jevdevic. On the 20th of
12 July when this document was issued, according to your information, in
13 addition to the 20 or 30 soldiers that he had in Nova Kasaba, did
14 Major Malinic have at his disposal another military police battalion?
15 A. No, he did not have at his disposal any military police
16 battalions. He had the troops that he had. The troops that remained.
17 Q. Just a moment, please, bear with me. How long did you stay in
18 the territory of Zepa
19 A. I can't tell you exactly, but it could have been either the 25th
20 or the 26th of July.
21 Q. Did you see any movements of civilians from that little town?
22 A. Yes. Civilians kept on coming in larger numbers to the village
23 of Zepa.
24 Q. After the ceasefire was declared on the 19th, from that day up to
25 the 25th of July when you left, did you receive any combat orders?
1 A. No, we did not receive any orders for combat. We kept
2 maintaining the lines reached.
3 Q. And during that period of time there was the time of ceasefire,
4 there was no combat going on anywhere?
5 A. No, nothing from our positions, but there was some sporadic fire
6 in the direction of the road towards Zup [phoen].
7 Q. And that sporadic fire, when did this start, did it start after
8 the 20th, after the 21st, after what date did that start?
9 A. On the 25th or on the 26th it was still going on at a somewhat
10 higher intensity.
11 Q. And do you know which units participated in these activities, in
12 the exchange of fire?
13 A. I believe that those were the units of the Drina Corps which were
14 on our left. A flank towards Zlovrh and Zepska Koliba.
15 Q. On the one side you had troops of the Drina Corps and on the
16 other side you had Zepa Brigade; is that correct?
17 A. Yes.
18 Q. Do you know whether Zoran Malinic came to Zepa at any one time?
19 A. I wouldn't know, I didn't see him. If he had arrived, I would
20 have seen him.
21 Q. In the area where you were deployed up to 25 or 26, did you see
22 civilians being moved out of Zepa, did you see any civilian buses or any
23 means of transportation for the civilians?
24 A. On that day I saw buses leaving for Zepa and on that day
25 civilians started being transported out of Zepa.
1 Q. What day was that?
2 A. That was on the last day of my stay. I left Zepa sector on the
3 day when civilians started being moved out.
4 Q. From the Zepa sector, where did you go?
5 A. Pursuant to General Savcic's order, I went to the Han Pogled
6 Pass since on that day there was combat around the Zepa mountain and
7 Zlovrh. Some of the armed Muslim troops broke through our lines and
8 proceeded on the Zepa-Kladanj road. My task was to intercept them in the
9 area in the pass on the road leading from Han Pijesak towards Vlasenica.
10 Q. And how long did you stay there?
11 A. We did not stay long because I received the order to return to
12 the Han Pijesak barracks, and there I received an order to form a column
13 and go towards Han Pijesak, Kasaba and to proceed further towards
15 Q. So the unit that was with you proceeded towards Krajina?
16 A. Yes, on the same day.
17 MR. PETRUSIC: [Interpretation] Mr. Jevdevic, I have no further
18 questions for you.
19 Mr. President, I have completed my examination in chief.
20 JUDGE AGIUS: Thank you, Mr. Petrusic. Mr. Zivanovic, do you
21 have cross-examination for this witness?
22 MR. ZIVANOVIC: No, Your Honours.
23 JUDGE AGIUS: I thank you, sir. Mr. Bourgon, do you have a
24 cross-examination for this witness?
25 MR. BOURGON: No cross-examination of this witness,
1 Mr. President.
2 JUDGE AGIUS: Thank you, Mr. Bourgon. Mr. Lazarevic?
3 MR. LAZAREVIC: No cross, Your Honours.
4 JUDGE AGIUS: Thank you. Mr. Krgovic?
5 MR. KRGOVIC: [Interpretation] I have a few questions but I still
6 have not received the Prosecutor's list of documents that they will be
7 using with this witness and that's why I'm asking the Trial Chamber to
8 allow me to raise any questions that may be raised by the Prosecution
9 during their cross-examination and that might have a bearing on my
11 JUDGE AGIUS: We'll have a break now and discuss it with
12 Mr. Thayer. We are not going to change the procedure, Mr. Krgovic, that
13 we have adopted. 25 minutes.
14 --- Break taken at 10.23 a.m.
15 --- On resuming at 10.56 a.m.
16 JUDGE AGIUS: Yes, Mr. Krgovic.
17 MR. KRGOVIC: [Interpretation] Thank you, Your Honour. I just
18 wanted to inform the Trial Chamber that during the break we have spoken
19 within the Prosecutor and that we will try and reach an agreement on the
20 timing of the disclosure of documents. And Mr. Thayer has kindly
21 informed me that he will not be using any documents with this witness and
22 I believe that from now on we will be able to reach a consensus between
23 the two sides.
24 JUDGE AGIUS: Thank you for that, both of you. Let's proceed
25 with your questions, please.
1 Cross-examination by Mr. Krgovic:
2 Q. Good morning, Mr. Jevdevic. My name is Dragan Krgovic and on
3 behalf of General Gvero Defence team, I'll have some questions for you.
4 Mr. Jevdevic, in answering my friend's questions you described
5 your stay in Zepa in July 1995. When you were withdrawing from Zepa, you
6 took the road from Zepa towards Rogatica when you were leaving that
7 sector; is that correct?
8 A. Yes, I went in the direction of Rogatica.
9 Q. On the road from Zepa towards Rogatica when you were withdrawing,
10 either on the 25th or the 26th, were there any checkpoints manned either
11 by the military or the police between Zepa and Rogatica?
12 A. There were no checkpoints at all manned either by the police or
13 the military.
14 Q. And in the other direction as you were entering Zepa, when you
15 arrived in Zepa on the 17th of July, did you encounter any military
16 police checkpoints from the point where you left until you arrived at the
18 A. I did not notice any checkpoints on arriving there.
19 Q. Could you describe the road between Rogatica and Zepa or
20 Brezova Ravan were you were billeted. Was it an asphalt road or dirt
22 A. It was an asphalt road between Rogatica and Budeta [phoen]. And
23 at Sjeverska, I turned left towards Zepa.
24 Q. And the road there is a dirt road?
25 A. Yes.
1 MR. KRGOVIC: [Interpretation] Thank you, Your Honour. I have no
2 further questions for this witness.
3 JUDGE AGIUS: Thank you, Mr. Krgovic.
4 Mr. Haynes, do you have a cross-examination.
5 MR. HAYNES: No, thank you very much.
6 JUDGE AGIUS: Thank you. Mr. Thayer.
7 MR. THAYER: Thank you Mr. President. I can confirm that as a
8 result of hearing how the evidence came in, we have no documents that we
9 intend to use. We did not need to send out our exhibit list.
10 Cross-examination by Mr. Thayer.
11 Q. Sir, good morning to you. My name is Nelson Thayer. I'll be
12 asking you some questions on behalf of the Prosecution.
13 A. Good morning.
14 Q. And I actually only have one question for you. You testified
15 that your recollection is that from the period of the ceasefire on the
16 19th of July onwards during your time in Zepa, your recollection is there
17 was no further fighting; correct?
18 A. From the 19th of July, 1995, in the area where I was moving
19 around the village of Vratar
20 at us. We did not engage in combat.
21 Q. And to your knowledge from that period of the 19th on, were other
22 VRS units, be they 2nd Romanija Motorised Brigade units, units from the
23 Zvornik Brigade or other units including your own that were elsewhere
24 than Vratar, did you understand that there was fighting engaged in by
25 those units?
1 A. There was fighting in the areas of Zepa mountain and Zlovrh
2 because the Muslim armed forces were trying to break through the
3 frontlines there. That was across the mountain from where I was. I was
4 on the other side.
5 Q. Now, just to follow up with my last question for you, sir, with
6 respect specifically to Brezova Ravan, that feature, there has been
7 testimony before this Trial Chamber from various witnesses, both Muslim
8 as well as from General Savcic that the fighting for that feature
9 continued for approximately ten days, in his recollection, from 15 July
10 to on or about the 24th or 25th of July. And for anyone who is
11 interested, that is at the transcript page 15333, 13 September 2007.
12 Now, sir, is it possible that your recollection that
13 Brezova Ravan was taken on the 18th mistaken, given the testimony that
14 this Chamber has heard from including General Savcic who was very
15 specific about the dates and the length of time it took to take that
16 feature, that you are mistaken in your recollection?
17 A. I arrived in the Zepa theatre of war on the 17th. And the
18 UNPROFOR checkpoint at Brezova Ravan is what we call Brezova Ravan
19 feature although the whole sector extends to the village of Ljubomislje
20 That's where Savcic had his unit because we had a battalion or, rather, a
21 company from Han Pijesak which consisted of the population and that unit
22 was on the strength of the protection regiment. And my platoon commander
23 was in the Zepa frontline throughout all that time; I joined him on the
24 17th. And on the 18th in the morning, we carried out a breakthrough
25 towards the Brezova Ravan checkpoint where the EUFOR checkpoint was. On
1 the 18th of July, we took the checkpoint at Brezova Ravan, I wouldn't be
2 able to give you the precise measurements of the Brezova Ravan territory,
3 the entire territory.
4 MR. THAYER: Okay. Sir, I have no further questions, thank you.
5 JUDGE AGIUS: Thank you, Mr. Thayer. Is there re-examination,
6 Mr. Nikolic?
7 MR. NIKOLIC: [Interpretation] No, Your Honour. None.
8 JUDGE AGIUS: Mr. Petrusic.
9 MR. PETRUSIC: [Interpretation] No re-examination, Your Honour.
10 JUDGE AGIUS: Mr. Jevdevic, we have finished with you. We don't
11 have any further questions for you which means you are free to go. Our
12 staff will assist you. On behalf of the Trial Chamber I wish to thank
13 you for having come over and on behalf of everyone present, I wish you a
14 safe journey back home.
15 THE WITNESS: [Interpretation] Thank you.
16 [The witness withdrew]
17 JUDGE AGIUS: Mr. Nikolic, documents.
18 MR. NIKOLIC: [Interpretation] Documents from our 65 ter list
19 that we used 2D233 [Realtime transcript read in error "2D333" 2D529 and
20 2D530. They have been submitted to the Prosecution and I believe that
21 they are also ...
22 JUDGE AGIUS: Yes, any objections?
23 MR. THAYER: None, Mr. President.
24 JUDGE AGIUS: Other Defence teams, any objections? None. They
25 are so admitted. Mr. Petrusic.
1 MR. PETRUSIC: [Interpretation] I have one document which is
2 5D1112, that we would tender.
3 JUDGE AGIUS: Any objections.
4 MR. THAYER: No, Mr. President.
5 JUDGE AGIUS: Yes, Mr. Nikolic.
6 MR. NIKOLIC: [Interpretation] Your Honour, just one correction.
7 In the transcript on page 30, line 12, the number is 2D333 and it should
8 be 2D233.
9 JUDGE AGIUS: Okay. Thank you for that correction. Any
10 objections from the other Defence teams? None. So your documents are
11 also admitted. Mr. Thayer, I suppose you don't have any documents.
12 MR. THAYER: No, Mr. President.
13 JUDGE AGIUS: Thank you. Which that concludes the testimony of
14 Mr. Jevdevic. And we come to the next witness, which I understand is the
16 MR. OSTOJIC: That's correct, Mr. President. Dr. Debra Komar is
17 our next witness. We would request a five- to ten-minute break so that
18 Dr. Komar can set up her computer laptop. It did fall coming in through
19 security this morning but it seems as if it's okay. We'd ask the
20 assistance of the technician just so that can be up and running, if it
21 it's acceptable with the Court.
22 JUDGE AGIUS: Okay. We'll have a short break then. Thank you.
23 As soon as you are ready, please inform us. Thank you.
24 MR. OSTOJIC: We'll do so.
25 --- Break taken at 11.10 a.m.
1 --- On resuming at 11.21 a.m.
2 [The witness entered court]
3 JUDGE AGIUS: So are we all set, Mr. Ostojic?
4 MR. OSTOJIC: We are, Mr. President. Thank you again very much.
5 JUDGE AGIUS: How shall we call you, Professor Komar, Dr. Komar?
6 THE WITNESS: Dr. Komar is fine.
7 JUDGE AGIUS: Good morning to you. You are very much welcome to
8 this Tribunal. I'm the Presiding Judge. To my right I have Judge Kwon,
9 Judge Stole, and on my left I have Judge Kim Prost. You've been summoned
10 as an expert witness by the Defence team for Colonel Beara in this case.
11 And before you start giving evidence, our rules require that you make a
12 solemn declaration which would be equivalent to an oath in some
13 jurisdictions that in the course of your testimony you will be speaking
14 the truth, the whole truth, and nothing but the truth. Text has been
15 made available, please read it out aloud and that will be your solemn
16 undertaking with us.
17 THE WITNESS: I solemnly declare that I will speak the truth, the
18 whole truth, and nothing but the truth.
19 WITNESS: DEBRA KOMAR
20 JUDGE AGIUS: I thank you, Doctor. Please make yourself
21 comfortable. Mr. Ostojic will go first. I don't anticipate your
22 testimony to finish today. So I assume that you will be here with us
23 again tomorrow.
24 Mr. Ostojic.
25 MR. OSTOJIC: Thank you, Mr. President.
1 Examination by Mr. Ostojic:
2 Q. Good morning, Dr. Komar. As you know, my name is John Ostojic
3 and I represent Mr. Ljubisa Beara. Can you please for the record state
4 your full name.
5 A. Debra, D-e-b-r-a, Komar, K-o-m-a-r.
6 Q. Dr. Komar, since we do have the transcript translated in several
7 different languages, I am going to just tell you but it's really a
8 reminder to myself that we should try to pause before I either put
9 another question to you or before you commence providing us with an
10 answer. So if you could just accommodate me to the extent that you can
11 I'll try to do the same, obviously. Thank you.
12 Dr. Komar, could you please share with us your brief
13 background history, where were you born and what year, if I may ask
14 that question.
15 A. I'm a Canadian citizen, I was born in St. Katherine's, Ontario
17 Q. Share with us, if you will, your education background starting
18 with any bachelors or undergraduate studies that you had undertaken?
19 A. From 1990 to 1994, I completed a bachelor of science at the
20 university of Toronto
21 a masters of science in the department of anatomy and cellular biology at
22 Queens University
23 PhD in the department of anthropology in forensic anthropology at the
24 University of Alberta
25 Q. Would you be kind enough to tell us what is the study of forensic
2 A. The discipline of anthropology is the study of human beings. The
3 forensic aspect of anthropology essentially takes the methods and
4 theories that are part of our discipline specifically relating to issues
5 such as archeology and physical anthropology and translates them into a
6 medical/legal context, brings them into a court of law.
7 Q. How long have you been a forensic anthropologist?
8 A. I began my training in 1990 and I've been practicing non-stop
10 Q. Let's go over some of the experience that you have. I know you
11 highlighted some of it in your curriculum vitae that we have marked as
12 2D533. And could you share with us, please, first and foremost, if you
13 were ever involved in any exhumations in the area commonly referred to as
14 Srebrenica resulting in events that unfolded there in 1995?
15 A. Yes.
16 Q. And can you tell us who contacted you to be involved in that
17 exhumation process?
18 A. I was involved in two separate occasions. The first occasion was
19 in 1999 when I was contacted by Dr. Brenda Kennedy who was the director
20 of the Physicians for Human Rights organisation that had been contracted
21 to be doing inter-entity exhumations with the commissions, the Bosnian
22 commission, the Serbian commission, the Croat commission in the
23 Srebrenica area. And I was a forensic anthropologist in 1999 with
24 Physicians for Human Rights. My area of responsibility included the
25 Srebrenica area. In 2001, I was contacted by the International
1 Commission on Missing Persons to hold a brief contract to assist with the
2 joint exhumations in the Srebrenica area that were carried out jointly
3 between the ICMP, the Missing Persons Commission, and the ICTY.
4 Q. Now, the exhumations that you conducted in 1999, did it have a
5 name of a dig specifically?
6 A. We were working with the Bosnian inter-entity commission
7 responsible for recovering those individuals associated with Srebrenica
8 that were not under the jurisdiction of ICTY. So the commission
9 themselves were responsible for identifying and initiating the
10 investigation. They provided us the information, the potential sites.
11 Q. And can you just tell us what role specifically you played that
12 exhumation in 1999?
13 A. I would be responsible for the field recovery of those remains
14 and on several occasions I was also responsible for the analysis of
15 remains associated with Srebrenica in what is known as the PIP morgue in
17 Q. Similarly if I may ask you with respect to your involvement in
18 2001, can you share with us what your responsibilities were in connection
19 with that exhumation?
20 A. The ICTY provide both the investigator, the criminalist who was
21 responsible for the scene and a senior archeologist who was responsible
22 for documenting the overall grave and scene itself. ICMP agreed to
23 provide technical support in terms of osteology and physical
24 anthropology, so I was responsible essentially for the delineation,
25 examination and removal of human remains from within the grave context.
1 Q. Can you describe for us what osteology is or the discipline of
2 osteology ?
3 A. Osteology is study of human remains through the hard tissues of
4 the body, specifically bone, teeth.
5 Q. And were you -- were these digs, did they have a name that you
6 were involved in 2001, because obviously from the review of your
7 curriculum vitae we know or should know that you were involved in an
8 exhumation identified as Cincari 7 and Liplje 4, I believe; correct?
9 A. Yes.
10 Q. And that's the name of the two exhumations that you conducted in
12 A. Yes.
13 Q. Now, doctor, we'll come back to this in a little bit. I just
14 want to get a little better feel for your experience in exhumations.
15 Have you conducted other exhumations throughout your career?
16 A. Yes.
17 Q. Can you share with us or highlight some of those, please.
18 A. In the international realm and on a mass scale, I have worked
19 in -- I was part of the team that was responsible and answered to the
20 regime crimes liaison which was a joint Iraqi High Tribunal and the US
21 Department of Justice that was responsible for the investigation of
22 genocide and war crimes charges against Saddam Hussein and 14 of his
23 co-defendants. That was in August through November of 2004 in Iraq
24 Additionally, I have worked in Kosovo for the United Nations as part of
25 the UNMIK mission to Kosovo. Specifically, I worked for the OSCE as an
1 identification project officer. I was stationed at the ICTY morgue
2 facility in Rahovec and was responsible for the identification and
3 repatriation of victims of the Kosovo conflict.
4 Q. Thank you for that. If I may just follow up, can you tell us
5 what the OSCE is and also for the sake of brevity, can you also tell us
6 what an identification project officer is?
7 A. OSCE is the Organisation for Security and Cooperation in Europe
8 which is -- I believe is one of the branches or pillars of the
9 United Nations. Identification project officer essentially was to be --
10 or what we were tasked with was the independent review of the human
11 remains specifically to answer the question of personal identity. So we
12 weren't responsible for the evaluating trauma or other aspects, we were
13 tasked solely with attempting to put names back to decedents.
14 Q. Were you one of many who were involved in this or were you in any
15 supervisory capacity or the director of that identification process?
16 A. There were four of us, all told.
17 Q. Share with me, if you will, a little bit about your employment
18 history, and specifically were you ever involved in working with ICMP?
19 A. I worked as a contract forensic anthropologist for ICMP in 2001.
20 Q. And can you share with us what your job duties and
21 responsibilities were with ICMP in 2001 as a contract forensic
23 A. They were conducting a joint experiment with the ICTY at the time
24 to provide additional technical and expert support in the field in terms
25 of dealing with what were understood to be large secondary mass graves
1 that to that point had not been excavated by the ICTY. So while the ICTY
2 had the, I suppose, jurisdictional authority over the site and were
3 responsible for the overall site itself, the ICMP was assisting in terms
4 of dealing with the human remains themselves.
5 Q. And at that time, if I may, were you familiar with the standard
6 procedures and protocols that the ICMP implemented in connection with any
7 such excavations?
8 A. I understand what standard operating procedures were, at that
9 time in that circumstance I was not provided with SOPs.
10 Q. And we'll go through some of the SOPs during your testimony, so
11 thank you for that. That's why I asked.
12 Let me talk about memberships and professional organizations
13 or associations. Are you affiliated with any such associations or
15 A. Yes.
16 Q. Can you just list a couple for me?
17 A. I am a fellow of the forensic anthropology/physical anthropology
18 section of the American Academy of Forensic Sciences which means
19 essentially I hold a senior or advisory leadership rank. I'm also a full
20 member of the Canadian Association of Forensic Sciences.
21 Q. And most recently you were an associate professor at the
22 department of anthropology at the University of New Mexico in
23 Albuquerque, New Mexico, United States; is that accurate?
24 A. Yes.
25 Q. Share with us if you have ever published any articles, books or
1 periodicals in connection with the discipline of anthropology and
2 specifically forensic anthropology?
3 A. I'm the senior or sole author of two books relating to forensic
4 anthropology. The first is a senior graduate textbook entitled Forensic
5 Anthropology: Contemporary theory and practice, which I co-authored with
6 distinguished professor Dr. Jane Buikstra from the Arizona State
7 University. The second is a sole volume that I'm the author of entitled,
8 Forensic investigation of genocide, victim selection, identification, and
9 identity, published by Charles C. Thomas. I am the author, either the
10 first author or the sole author of 22 articles in print and three under
11 review for peer-reviewed journals all addressing the issue of either
12 forensic anthropology or specifically international investigations of
14 Q. [Microphone not activated] That's obviously --
15 A. I can no longer hear anything.
16 Q. I was shuffling some papers and trying to be courteous, turned
17 the mike off. Obviously, that's reflected in part in your curriculum
18 vitae as we identified 2D533; correct?
19 A. Yes.
20 Q. I know that you also highlight other sections in your CV that we
21 won't go into but certainly you've received several, if not many,
22 academic awards and distinctions. I won't embarrass you to go through
23 that but that's an updated CV that we have in front of you. If I can
24 perhaps just have the Court or with the Court's permission have the usher
25 just pull up 2D533 which is Dr. Komar's curriculum vitae.
1 Doctor, looking at what was attached, I believe, to your report
2 as an appendix with your name in the top centre and if you look at the
3 screen in front of you, my question is simple, is this a current
4 curriculum vitae reflecting not only your educational experience and
5 accomplishments, but other work that you've been involved in including
6 publishing and et cetera?
7 A. While it's an accurate reflection of my status in February of
8 2008, I believe is the date on it, I would suggest that there have been
9 additions and revisions since that time.
10 Q. Okay. Let me just follow up with that so we have a clear record.
11 Is there anything of significance that you would like to add and if so,
12 please do?
13 A. The positions listed as current positions I have resigned from as
14 of three weeks ago. So the associate professorship, I have resigned my
15 tenured professorship at the University of New Mexico and I have resigned
16 my position as the forensic anthropologist for the office of the medical
18 Q. You've piqued our curiosity, I'm sure. What will you be doing in
19 the next few months, if I can ...
20 A. Well, this seems to be taking some of my time.
21 Q. I apologise for that. I know that you were scheduled last week,
22 thank you again for agreeing to come a little later, I apologise for
23 that. Are you going on another contracted engagement as an
25 A. Yes.
1 Q. Can you share with us, if it's not confidential, as to where you
2 may be heading towards in the next several months?
3 A. My next round of research will be conducted in Rwanda relating to
4 the genocide from 1994. That's in association with completing a funded
5 external grant contract that I need to complete.
6 Q. I think we've spent an adequate time on your curriculum vitae.
7 Thank you for that. What I'd like, Dr. Komar, to ask you is, when -- you
8 were asked to review certain materials from our Defence team, is that
10 A. Yes.
11 Q. And we'll go through the contact, et cetera. Can you tell us
12 first and foremost, was there a task assigned to you in connection with
13 the materials that we were requesting you to review?
14 A. Yes.
15 Q. Share with us what that task was.
16 A. Originally I was approached by Mr. Christopher Meek representing
17 the Defence team for Beara. I was asked to review the available
18 scientific evidence that was being presented to the Court at that time.
19 Specifically looking at the validity of the methodology primarily
20 relating, at that time, to the question of establishing what is known as
21 MNI or the minimum number of individuals.
22 Q. Did at any time during your review of certain documents which
23 we'll list out in a moment, were you asked to review the scientific
24 material or evidence that was presented by the Prosecution to analyse in
25 addition to their methodology, the analysis and the conclusions that were
1 reached by the various scientists that they brought forward?
2 A. Yes.
3 Q. So in addition to methodology, the task was to review and give us
4 an objective opinion as to the methodology and analysis and conclusions
5 of the scientific evidence that the Prosecution was offering specifically
6 in connection with MNI; correct?
7 A. Yes.
8 Q. Although we know it and we use it commonly, forgive me for asking
9 you this, MNI stands for?
10 A. The minimum number of individuals.
11 Q. Is that an anthropological term or just simply a scientific term?
12 A. It's derived from the anthropological literature, specifically
13 the archeological literature.
14 Q. In connection with the task that was requested, can you tell me
15 at any point did any of the Defence counsel, including myself, of course,
16 the investigators, ask you to skew your report in one way or another?
17 A. No.
18 Q. Okay. And in fact, Doctor, you wouldn't in any event; correct?
19 A. No.
20 Q. Now, let me ask you with respect to prior testimony that you may
21 have been engaged in during your professional career. Have you testified
22 in court before?
23 A. Yes.
24 Q. And just give us a ballpark estimate as to how many times you've
25 testified in court?
1 A. In a major capacity, probably about a dozen or so times in both
2 US and Canada.
3 Q. Did you testify in the Saddam Hussein trial?
4 A. No.
5 Q. At that trial there was limited scientific evidence; correct?
6 A. It was restricted to very small portion of one day.
7 Q. Now, have you ever testified for the Office of the Prosecutor,
8 not at the ICTY but in any capacity as an expert witness?
9 A. I have only previously testified on behalf of the Prosecution.
10 Q. So have you ever testified, although I think I know the answer
11 based on that answer that you provided, have you ever testified for a
12 Defence in any criminal proceedings in connection with forensic
13 anthropology or any of the fields that you are experienced and educated
15 A. No.
16 Q. So this would be the first case?
17 A. Yes.
18 Q. Dr. Komar, can you briefly share with us the material that you
19 reviewed in connection with determining or formulating any opinions that
20 you may have in connection with this case, and for the Court and counsel,
21 if we can have 2D534 brought up to the screen, please.
22 Doctor, while this is coming up on the screen, I do have a couple
23 of other personal questions, if you don't mind, not really personal but
24 -- did you know Mr. Christopher Meek prior to his contacting you in
25 connection with assisting us in this case?
1 A. No.
2 Q. Did you know myself at any time prior to meeting last week and
3 exchanging a couple of brief e-mails with respect to scheduling?
4 A. No.
5 Q. Have you ever worked for either of us?
6 A. No.
7 Q. Or anyone else on our Defence team?
8 A. No.
9 THE INTERPRETER: Counsel and witness are kindly asked to make
10 pauses between questions and answers.
11 MR. OSTOJIC: Thank you. I apologise it was just a brief area.
12 Q. Now, we have in front of us, I believe, 2D534, which -- if we
13 could look at the last page of that document or the last two pages, I
14 believe. Then, Doctor, once you have that document in front of you, can
15 you just tell us generally what this document is. It's attached again, I
16 think, to your report which has your curriculum vitae attached to it as
18 A. As of February of this year, this was a list of exhibits that I
19 had been sent and had reviewed for the purposes of this trial.
20 Q. And who generated this list?
21 A. I did.
22 Q. And this is over a course of a certain period of time that we,
23 the Defence for Mr. Beara, were providing you with additional
24 information; correct?
25 A. Yes.
1 Q. And if we can just scroll to the bottom and perhaps go to the
2 second page. I'm just asking you to look at it. This is a true and
3 accurate copy of the materials that you reviewed as of February 2008 in
4 connection with your testimony here today; correct?
5 A. It appears to be.
6 Q. Now, since February of 2008, were you provided additional
7 materials or documents to further assist in your review and analysis of
8 the scientific evidence that's been heard in this case?
9 A. Yes.
10 Q. Share with us what that is, to the best of your recollection?
11 A. I have been sent the testimony of other experts who have
12 testified in a scientific capacity. I have also been given additional
13 materials relating to a demographic study that was done in, I believe,
14 2005 for the OTP relating to the combination of the missing persons list
15 with a 1991 Bosnian census. And a few other isolated materials, I can't
16 recall off.
17 Q. And since your arrival here at the Hague approximately a week or
18 ten days ago, you've also met with me on a couple of occasions?
19 A. Yes.
20 Q. And we have gone through some of that material, correct, as well
21 as your report?
22 A. Yes.
23 Q. Doctor, what I'd like to ask you next is have you reviewed any
24 outside materials other than those that you've just identified that are
25 not listed in your report, such as textbooks, articles or other
1 information that would have assisted you in formulating the opinions that
2 you have identified in your report or will soon identify?
3 A. Yes.
4 Q. Share with us what those other materials were, if you will?
5 A. Many of them are included in the bibliographies that run through
6 my report, so when I specifically referenced any one particular article
7 or outside source, it will be referenced and identified within my report
8 and the citation for the reference itself is provided at the end of each
10 Q. And you give, obviously, the source and the cite that you've
11 relied on; correct?
12 A. Yes.
13 Q. You've also written, yourself, several articles, as you've shared
14 with us. Did you write any specifically in connection with Srebrenica?
15 A. Yes.
16 Q. How many?
17 A. Specifically with Srebrenica there was one, there are a variety
18 of other articles that do include a large sample size from Bosnia
19 which Srebrenica victims comprise a significant portion.
20 Q. Thank you. I want to ask about two specific reports to see if
21 you've reviewed them. Can we have 2D70 brought up in the screen, please.
22 It's 2D70. And Doctor, as that is being brought up just for you to see
23 it, it's actually what's been to referred to commonly here as the
24 San Antonio Report and I just have a couple of questions in connection
25 with that. Obviously, the first one being have you had an opportunity to
1 review the report that we've coined as the San Antonio Report, 2D70?
2 A. I had an opportunity to read it in the past week.
3 Q. Prior to the past week, did either Mr. Meek or myself give you a
4 copy of this report or ask you to utilize it in formulating any of your
6 A. No.
7 Q. I'd also like to ask you with respect to Dr. Chester Elliot Moore
8 III, I believe. Are you familiar with him?
9 A. Yes.
10 Q. What is his profession?
11 A. He is also involved in forensic anthropology at the -- what is
12 known as the JPAC, the joint military agency that's responsible for the
13 identification of war missing in the United States.
14 Q. Now, if I can show you with the Court's permission and court
15 clerk's assistance 2D535, which is our proposed 92 bis statement. It's a
16 rule of procedure here so you need not worry about that. We are waiting
17 for Dr. Moore to provide us with an authorised and notarized statement.
18 He has given us this. Have you had an opportunity to review Dr. Moore's
19 report, if you will?
20 A. In the past week I've read this, yes.
21 Q. Prior to that you had not; correct?
22 A. Correct.
23 Q. Now, in looking at these materials that you've reviewed and
24 relying on the various articles that you've examined as well as written,
25 the updated materials that you've identified for us, the San Antonio
1 Report as well as Dr. Moore's recent statement, have you relied on those
2 documents and those articles in order to assist in formulating the
3 opinions that you hold in connection with the task that you were
5 A. Yes.
6 Q. Let's turn to your report, Dr. Komar, if we may. That's 2D534,
7 for the record. If we can have that brought up as well. Doctor, I think
8 we have in front of us document 2D534. Can you just identify it for us,
10 A. It was a witness statement I was asked to prepare in February of
11 this year that would summarize some of the contents of my testimony here
13 Q. Well, can you just walk us through briefly your report and we'll
14 get into the details and some of the opinions that you hold as well as
15 the basis of those opinions, can you just walk through it and I may try
16 to assist you. I think it's broken down in five separate sections; is
17 that right?
18 A. I believe so.
19 Q. And just for general purposes, it's broken down, I think, into
20 your understanding and opinions you may hold with respect to ICMP and the
21 DNA-based identification which would be one.
22 A. Yes.
23 Q. I apologise -- the next one is the MNI which is the minimum
24 number of individuals; correct?
25 A. Yes.
1 Q. Then you discuss briefly Mr. -- or Dr. Lawrence's autopsy
3 A. Correct.
4 Q. You discuss further the issue of, as you've identified it or as
5 they have identified it, "robbing or rob"?
6 A. Yes.
7 Q. And then finally you identify a group which is commonly or
8 referred to in your discipline as social group identification?
9 A. Correct.
10 Q. Now, we are not going to go through each and every one of these
11 but I would like to highlight two or three of these items in your report
12 and to further obtain your opinions in connection with that. But before
13 I do that, I'd like to ask you: Is your report current as it stands now,
14 the one that you generated in February of 2008, in light of the
15 additional material that you reviewed and relied upon or would you like
16 to make any supplemental additions to it?
17 A. Based on the material I've had the opportunity to review
18 particularly since I have arrived here, I would offer amendments to the
19 report as questioned.
20 Q. Fair enough. Now, before we go and delve into the report in
21 detail, are you familiar with some of the scientists and anthropologists
22 and archeologists and pathologists and DNA scientists that testified in
23 this case, I know you've read their testimony but do you know them on a
24 personal or professional basis?
25 A. Yes, it's a pretty small community and most of us have worked
1 together at some point or another.
2 Q. So when we go through this, obviously they are professionals as
3 well, we are not asking to you render any criticisms of them personally
4 because they are obviously doing the job that they were requested to, but
5 we will go through some of that. These are certainly your colleagues,
6 are they not?
7 A. Yes.
8 Q. Okay. And from time to time you see them on an exhumation and
9 other times you may see them several years later; correct?
10 A. Correct or at professional functions.
11 Q. Professional conferences?
12 A. Yes.
13 Q. Fair enough. Let's go through, if we may, the first section of
14 your -- my outline and your report which deals with the MNI because, I
15 think, since you were assigned that task initially, it might be most
16 reasonable to start at that point. Tell us, generally speaking, although
17 you mentioned -- describe what MNI is and you looked at various reports
18 from, for example, Dr. Wright and Dr. Lawrence; correct?
19 A. Correct.
20 Q. And Dr. Baraybar?
21 A. Mr. Baraybar, yes.
22 Q. Mr. Baraybar, I'm sorry. And Mr. Manning; correct?
23 A. Yes.
24 Q. You've read their testimony in connection with that?
25 A. Yes.
1 Q. Can you just tell us briefly, have you based upon a reasonable
2 degree of anthropological and scientific certainty formulated an opinion
3 having reviewed those materials as well as their testimony in connection
4 with what they were trying to convey with respect to MNIs?
5 A. Yes.
6 Q. And what is that?
7 A. Essentially as I understand a review of the material, there are
8 two specific sources or separate sources upon which people are making
9 assessments as to MNI, or how they are calculating or estimating MNI.
10 Based on my review of that, there are some methodological deficiencies
11 with the means by which these MNIs are calculated.
12 Q. Okay. I'll try to just flush that out. You examined that and
13 when you said -- when you identified generally the people, we were
14 talking about the individuals who rendered testimony in this Court and
15 people who have issued reports in connection with that topic MNI;
17 A. I guess I prefer to speak to their work product rather than the
19 Q. Of course. That's exactly what we are evaluating. We are not
20 addressing them personally, but I meant if we were going to highlight
21 without going over their names again, Mr. Baraybar, Mr. Manning,
22 Dr. Lawrence and Dr. --
23 A. Dr. Wright?
24 Q. Dr. Wright, thank you. Now, you say to make the assessments as
25 to MNI, the process of making an assessment in connection with MNI, and I
1 think you gave it to us in the latter half of your answer, is the actual
2 methodological process; correct?
3 A. It requires the application of a methodology to generate the
4 estimate which is the goal of the procedure.
5 Q. If I'm correct, you would take this methodology and then you
6 would do the analysis in order to reach a conclusion?
7 A. Correct.
8 Q. Now, what was the methodology or what application of what
9 methodology was used to generate an estimate?
10 A. In my review of the material, it appears there's a sort of a time
11 frame or a sequence of how this is done. The first reference I can find
12 to a scientific estimate of MNI occurs in Richard Wright's exhumation
13 field reports from the late 1990s. 1998, 1999.
14 Q. I have the date, the 12th of May, 1999, if we can please have
15 P666 up on the e-court, please. And just so the record is clear and I
16 think we advise that my learned friend Dr. Komar does have the binders
17 the hard copies on them and if she would be kindly permitted to utilize
18 that because she's familiar with where she's placed them in the various
19 binders, with the Court's permission, of course.
20 JUDGE AGIUS: Any problems with that, Mr. Vanderpuye?
21 MR. VANDERPUYE: No, Mr. President.
22 JUDGE AGIUS: Other Defence teams, any problems? Absolutely no
23 problem on our side.
24 MR. OSTOJIC: Thank you, Mr. President.
25 JUDGE AGIUS: Let's proceed.
1 MR. OSTOJIC:
2 Q. Doctor, you mentioned that you examined or looked at the report
3 by Dr. Wright which is the 12th of May, 1999, that we have identified as
4 P666. And you say this is the first evidence or at least the first
5 information that you were able to glean where the identification of the
6 issue MNI raised itself; correct?
7 A. Of the materials I reviewed, this is the earliest mention of any
8 attempt I see by anyone to calculate an MNI, yes.
9 Q. Where in his report does he attempt to calculate an MNI? I think
10 it is the 12th of May, 1999. Take your time.
11 A. I found it. There is --
12 Q. And Doctor, I'm sorry, I'll let you answer the question. Just so
13 that we can keep up with you, it's actually on the second page of his
14 report under the summary findings; is that accurate?
15 A. That's a conclusionary statement, so essentially it's mentioned
16 several times in the context of the report. Within the body of the
17 report, it occurs at a later section and in greater detail.
18 Q. Well, direct us so that we can follow your analysis here with
19 respect to Dr. Wright's report. What page on this be Exhibit P666 should
20 we ask the Court and --
21 A. 00848245.
22 Q. That's page 32 of Dr. Wright's report, I believe?
23 A. Correct. It's 245.
24 Q. ERN number, the last three, 245. Thank you. We have now the
25 document before us, you have the hard copy in front of you. Can you
1 share with us your opinion in connection with the conclusions or the
2 issue that Dr. Wright was addressing in connection with MNIs and keeping
3 in mind that your general opinion was that the methodology, I think as
4 you put, was deficient, if I got you right?
5 A. That's correct. Essentially, he does two separate things within
6 the context of this estimate. One is an evaluation of the material
7 actually recovered within the field season. The second is an estimate
8 based on a statistical and mathematical statement as to the total number
9 of individuals that is potentially represented by the graves identified
10 in the report.
11 Q. In your opinion, why do you believe that that methodological
12 evaluation or method utilized was deficient?
13 A. In what is known as the SOP or the standard operating procedure
14 of Mr. Wright's report, he identifies the fact that the purpose of the
15 field exhumation is not to do analysis of the remains. It's a very clear
16 statement within the body of the report on several occasions that there
17 will be because of the conditions in the field, no attempt to actually
18 analyse or understand the remains as they are being removed. It's an
19 assessment of the grave. So essentially, to later indicate the number of
20 individuals, he himself earlier in his report indicates that he is not
21 doing sufficient analysis at that time and prefers that the work be done
22 later in the morgue which is completely appropriate for these kind of
23 circumstances. The number of individuals he offers at this point is more
24 a statement of the number of body bags that were removed and by his own
25 admission, that that necessarily does not represent an individual for
1 that initial boxed or tabled statement of the number of individuals per
3 Q. And that was the methodology aspect of it. With respect to his
4 conclusions that we see on the next page, page 33, am I correct that
5 Dr. Wright simply in this report took a number and then from an average
6 that they have exhumed and then just multiplied it by an estimate of 21
7 unexhumed graves and he came up with what was identified at that time as
8 the first MNI or the early MNI?
9 A. That's a correct assessment of the later half of that assessment.
10 Essentially what he argues is that if you take the graves that have been
11 done to date and use what he himself admits is not a definitive estimate
12 of the numbers of individuals in it, you create an average and times it
13 by what he believes to be the potential number of unexcavated graves. He
14 produced what is essentially only an arithmetic statement as to what he
15 believes the number of individuals represented is.
16 Q. Now, let's just go back to the methodology again. Just share
17 with us what your opinion is and why you think that the methodology
18 utilized as reflected in this May 12th, 1999, report was deficient or
20 A. If you break it down again into these two components, let's start
21 with the idea that we are actually counting the people coming out of the
22 ground. Professor Wright himself acknowledges that they were not doing
23 sufficient analysis at the scene to be able to create this number. He
24 supplements the number with a report from Visoko. So essentially, he is
25 including in this number some degree of subsequent analysis that was
1 carried out in the morgue at a later date in Visoko. Not in and of
2 itself erroneous or problematic other than if you then subsequently go to
3 some of the autopsy reports coming out of Visoko as to how individuals
4 were being defined both in the field and in autopsy.
5 Q. Thank you. Just describe for me what you mean by not doing
6 sufficient analysis at the scene. I mean, what were they not doing? I
7 know as a general term what it means but if you could just, from an
8 anthropological and forensic anthropologist standpoint, just help us have
9 a better understanding in our mind as to what it is they should have been
10 doing and then what it is they did not do based on that?
11 A. In subsequent excavations that were done both in Bosnia
12 ultimately in other similar circumstances in the world, it's been
13 understood particularly in graves that are in any way compromised, say
14 secondary graves, graves with a great deal of settling, in which the
15 individuals contained within are decomposed and are no longer
16 articulated, therefore recognisable as defined human beings; they are no
17 longer fleshed, they are no longer discrete units.
18 There is not agreement both within these reports and within the
19 anthropological community as to how we begin to define what constitutes a
20 body. So at what point are we calling portions of an individual a body
21 and at what points are we then subdividing that individual into what
22 becomes known as body parts or miscellaneous or general elements.
23 Professor Wright, within the context of his report, gives a vague and
24 insufficient definition of how these determinations were being made.
25 Q. And as a result of your opinion and analysis on this, you find
1 that this report is suspect, if I can use that term?
2 JUDGE AGIUS: Yes, Mr. Vanderpuye.
3 MR. VANDERPUYE: Mr. President, I object. This is manifestly
4 leading and I think it's been going on for a while. I haven't objected
5 but I think at this point I will start to object.
6 JUDGE AGIUS: Yes. Do you wish to comment, Mr. Ostojic?
7 MR. OSTOJIC: Yes, just very briefly.
8 JUDGE AGIUS: Or do you wish to rephrase the question.
9 MR. OSTOJIC: No, I will rephrase it but I don't understand the
10 point that it's been going on for a while. And if he can draw my
11 attention, I would certainly invite him to show me one question where,
12 other than a couple that I thought were for the sake of --
13 JUDGE AGIUS: Let's give that. Just rephrase the question.
14 MR. OSTOJIC: Fair enough. Fair enough.
15 Q. Doctor, in connection with the opinion that you have in respect
16 to this first report on MNIs, other than it it's methodologically
17 deficient, do you have any other opinions based on a reasonable degree of
18 forensic certainty, anthropological forensic certainty?
19 A. While there is precedent for how the initial table is presented,
20 the attempt to then establish a mean and to then extrapolate that across
21 a number of graves that by Professor Wright's own admission in subsequent
22 years did not yield bodies is fundamentally flawed. That is not
23 acceptable practice. It is not a valid and scientifically appropriate
24 way to estimate the number of individuals.
25 Q. Doctor, in your prior -- just moments ago you discussed various
1 things like articulation and body bags, and are you familiar with the
2 concept of disassociation and re-association?
3 A. Yes.
4 Q. Okay. Just share with us what that means.
5 A. Disassociation or disarticulation is the notion that the body is
6 made up of a series of elements, some of which are preserved longer in
7 the archeological record than others specifically, the bones, and that as
8 the soft tissues decompose the body literally begins to fall apart or
9 disassociate. The process of re-association is the scientific
10 examination of isolated elements with the goal of essentially
11 reconstituting the integrity of a body. You are literally trying to put
12 someone back together.
13 Q. And because you mentioned body bags in Professor Wright's
14 statement or report that he provides, did you find any evidence of
15 attempts at re-association or re-articulation?
16 A. No. He makes it clear that in the field that was not the goal of
17 what they were doing, so he makes the argument that because of the
18 conditions at the time, it was not appropriate to try and reassociate
19 people. He preferred that that be done within the context of the morgue
20 during later analysis.
21 Q. And do you have an opinion as to whether or not that was
22 reasonable to later have that re-association or re-articulation be
23 performed at the morgue?
24 A. That's common practice, and there's nothing inappropriate about
1 Q. I agree. I just wanted to cover that. Now, did you see if there
2 was some of the -- this scientific evidence that was brought forward at
3 the morgue, whether there were efforts, specifically if we can just focus
4 on this report for the time being and date of this re-articulation or
5 re-association of body parts with bodies.
6 A. If my understanding of the reports is correct, there is a
7 subsequent analysis that was done at a later time. If the report that
8 I'm -- was shown in reference is a direct relation to that, there was not
9 an attempt at re-association, and in fact, what there was a decision by
10 the lead pathologist to simply evaluate the body bags as they were
11 received and to do things such as estimate the number of traumatic
12 injuries and/or cause of death by body bag rather than by individual or
13 even individual body part.
14 Q. Now, given your testimony that that could have been done on the
15 field, the re-association, re-articulation, and it's acceptable to defer
16 that to the morgue, do you have an opinion based upon a reasonable degree
17 of anthropological certainty whether or not the failure or having no
18 evidence of it, that not being done at the morgue, do you have an opinion
19 based on that?
20 JUDGE AGIUS: Yes, Mr. Vanderpuye.
21 MR. VANDERPUYE: Thank you, Mr. President. The objection is that
22 I don't believe that the witness has stated that this could have been
23 done in the field.
24 MR. OSTOJIC: I could clarify that with her.
25 JUDGE AGIUS: Okay.
1 MR. OSTOJIC: And I just thought it was a presumption -- and I
2 didn't mean to be presumptuous, but I'll clear it up with her. I'm
4 JUDGE AGIUS: Okay. Then we are going to leave it in your hands.
5 Thank you.
6 MR. OSTOJIC: Thank you.
7 Q. Dr. Komar, is this re-articulation, did the anthropologist and
8 the scientists who were actually on the field, did they have a capacity
9 to be able to perform the re-articulation or re-association prior to the
10 body or body bag being placed in the morgue?
11 A. They had a standard operating procedure as defined by Professor
12 Wright that they were not to do that.
13 Q. And I'm not asking you that, and thank you for that. Is there
14 capability from a scientific standpoint to accomplish such a task?
15 A. Re-association can essentially be done at any point that the
16 remains can be evaluated appropriately. If field conditions exist, and I
17 have done it and I've seen others do it, that the remains can be
18 evaluated properly, it has been done and can be done in the field. There
19 was a decision made by Professor Wright that that would not be done here.
20 Q. And I understand. We are just saying in the remote possibility
21 under certain circumstances, does it ever exist that an anthropologist or
22 an archeologist or a pathologist are able to perform that scientific
23 re-association or re-articulation. I think you've answered.
24 Now, to go back to my question before I was interrupted, given
25 your testimony that although back -- Professor Wright had a standard
1 operating procedure not to do this and now learning from your review of
2 the materials that at the morgue they also did not do that, do you have
3 an opinion based upon a reasonable degree of forensic anthropological
4 certainty as to whether or not that failure of not doing this
5 re-articulation being done at the morgue was proper or reasonable?
6 A. If -- it is not consistent with the standards that we recognise
8 Q. Okay. I'm sorry.
9 A. I'll leave it at that.
10 Q. Okay. Well, that's what we are asking you for, and that's the
11 applicable scientific standards that should have been utilized at the
12 time and that are applicable today. Was there a deviation from those
13 standards of acceptable practice from an anthropological point not having
14 done this at the morgue?
15 A. It calls into question the veracity of the numbers that are
16 presented here. It -- there can be an argument, debate on both sides as
17 to whether resources, time, personnel allow for everything that can be
18 done to be done. This would be something that I personally would argue
19 is a necessary step in the proper analysis of the remains. Had I been
20 responsible for this particular site, I certainly would have attempted
21 it; I certainly would have addressed it to a far more exhaustive level
22 than was done here.
23 Q. Again, Doctor, we are not sitting here and trying to say that
24 Professor Wright or any of the other scientists who were involved in here
25 did anything purposefully wrong or unreasonably wrong. We are just
1 trying to get a better appreciation for how much or how valid or, as you
2 say, how reliable or unreliable some of the data that's been provided
3 are. That's what we're trying to examine here. Thank you for that.
4 With respect to that Professor Wright, do you have any other
5 opinions or would you like to identify any other areas where you find
6 that the report with respect to the MNI was methodologically deficient?
7 A. Again, this mathematical statement of estimate is not, in my
8 opinion, a valid scientific exercise.
9 Q. And That's what we see on the second page, which I think was 33
10 of his report, if I'm not mistaken.
11 A. I think it's the bottom of 32.
12 Q. Okay. And I think if you look on the next page that, in fact, he
13 summarily concludes the first estimate of an MNI, correct?
14 A. That's correct. He essentially goes through the mathematical
15 statement and draws a conclusion at the end of page 33.
16 Q. Okay. Thank you for that. I just want to make sure we are all
17 on the same page.
18 Any other opinions in connection with this 12th May 1999
19 Professor Wright report that you would like to share with us?
20 A. With regard to MNI?
21 Q. Correct.
22 A. No, not at this time.
23 Q. We're just going to focus on MNI and not some of the other stuff
24 for at least this portion of your questioning. Now, the next report that
25 you looked at with respect to MNIs were Dr. Lawrence's autopsy report,
2 A. In only a general sense in that he does not expressly answer the
3 question of MNI because of the methodology he chose to employ in his
4 analysis. So he doesn't make an expressed statement of MNI; therefore, I
5 cannot derive an express statement of MNI from his report.
6 Q. Thank you. Can you derive from reading his report what that
7 methodology is that he utilized?
8 A. Again, he chose to analyse and evaluate the remains, not through
9 an attempt to re-articulate or define individuals but, rather, an attempt
10 to understand the number of traumatic injuries or cause of death
11 attributable to any one body bag. By doing that, it presupposes or
12 assumes that more definition or more analysis was done in the field than
13 is actually the case here.
14 Q. I'd like -- and I forgot to ask you this during your background
15 experience. You also -- you mentioned Kosovo, obviously, but you also
16 worked in the Foca area in the former Yugoslavia, correct, on
17 exhumations, et cetera?
18 A. Yes.
19 Q. Okay. And you were involved there as a hired forensic
20 anthropologist who assisted the recovery and uncovering and exhumation of
21 various grave sites, correct?
22 A. Yes.
23 Q. And that was in what year, just so we can have a ...
24 A. Foca was 1999.
25 Q. Thank you. Now, what I'd like to do is to look at the next
1 report that I believe that you examined, and that was the -- Mr.
2 Baraybar's December 8th, 1999, report, and I think it's P559. If we
3 could kindly have that up on the screen.
4 JUDGE AGIUS: [Microphone not activated]... and the break will be
5 at 12.30 as scheduled.
6 MR. OSTOJIC: Thank you, Mr. President.
7 Q. Dr. Komar, as you are finding the document, just so the record's
8 clear and my learned friends can follow along, Dr. Baraybar actually has
9 two specific reports, and I'm going to try to break it down so that we
10 can look at each. It's the December 8th, 1999, report as identified,
11 which is P559, but also the January 2004 report, which is soon -- when we
12 get through it is 2477. So I'd like first if you would be kind enough to
13 walk me through the December 8th, 1999, report.
14 A. It's essentially what's known as a summary report of a field
15 exhumation, so he's describing the field season as a whole, and what he's
16 addressing specifically is the anthropological examination of the remains
17 that take place after the field exhumation and during the autopsy phase
18 of the analysis.
19 Q. What was -- I'm not sure if I understand you. What was the
20 methodology that he used in connection with this field exhumation or
21 field season as a whole as you call it?
22 A. He is not addressing MNI in the field. He addresses it in the
23 autopsy suite.
24 Q. Okay. And what methodology does he use in the autopsy suite?
25 A. He acknowledges that simple body count is not sufficient in that
1 -- because you have disarticulation of the remains. It isn't as simple
2 as simply counting bodies. At this point, what he chooses to do is
3 essentially a standard, accepted protocol within anthropology that
4 recognizes that individuals are represented by specific elements. So in
5 other words, if you have 12 skulls, you must have at least 12 individuals
6 who contributed those skulls to the analysis.
7 Q. And the same can be said for the femur or the humerus, correct,
8 the leg femur or -- go ahead.
9 A. When we do these types of analysis, you can do them in a variety
10 of ways: One, you can use unpaired or single bones, those bones that
11 occur in the mid-line of the body, so say the breastbone or sternum, the
12 skull, the jaw, the sacrum, for which you have one part. It runs along
13 the mid-line. The alternative is to recognise that there are paired or
14 bilateral bones; you have a right and a left. If you are going to do
15 this kind of analysis with the paired bones, you must include the notion
16 of side within your analysis.
17 Q. So right side or left side predominantly?
18 A. Yes.
19 Q. Okay. Was that ever done in connection with any of the reports -
20 I know I'm deviating a little bit from the Baraybar report - in
21 connection with a humerus or a femur?
22 A. It's my understanding that was the core with modifications of the
23 methodology he employed.
24 Q. And which one did they utilise?
25 A. It's difficult to tell from this report. There appears to be a
1 combination of bones that are used. He frequently references the
2 proximal femur, which is the portion of your thigh bone that connects
3 with your hips. He also makes reference of pelvic bones, sternum, and
4 other long bones, paired long bones.
5 Q. Having reviewed the Baraybar report of December 8th, 1999, were
6 you able to formulate an opinion as to a reasonable degree of certainty
7 as to whether or not methodologically there were any flaws that you
9 A. That methodology is described to that point as absolutely
10 standard procedure. He makes two modifications to it that can challenge
11 the validity of the ultimate results.
12 Q. Can you share with us where those two modifications are that he
13 makes which may challenge the validity of the result?
14 A. The first -- essentially when we do this, we can also -- or he
15 chooses to also look at what are known as variables. In this case he
16 introduces two variables. The first is the sex of the individual as
17 determined through anthropological examination; the second is the age of
18 the individual as determined through anthropological examination.
19 Q. So the reliance on sex and age are the two elements that you
20 would consider to be variations or modifications in the methodology that
21 was utilized?
22 A. Again, it's not unheard of that they are used. It's how they are
23 used in this particular instance that is questionable.
24 Q. Direct us, if you will, please, to the page on Baraybar's
25 December 8th, 1999
1 A. 00911541 and 00911542.
2 Q. Thank you, and that is still on Exhibit P559. Thank you. And
3 they only have an ERN number. They don't have a page number on the
4 bottom, so I apologise for that. Doctor, once it's up on the screen, if
5 you could just assist us and direct us where exactly that's addressed.
6 A. He goes through his methodology fairly clearly and concisely by
7 saying that initially the calculation begins with an assessment of this
8 bone. So you establish what bone you are using to determine your MNI.
9 If you have the most of your proximal right femur, then it makes sense
10 and is appropriate to argue that if you have 54 right femora, you must
11 have minimally at least the 54 individuals that contributed those femora
12 to the analysis. It is possible you would have more; it is not
13 physically possible to have less. That's appropriate.
14 In the middle of that page in the second full paragraph, he
15 introduces the notion of sex. How we determine sex anthropologically
16 does not inherently follow how the remains were analysed to determine the
17 MNI. So essentially, what happens is if you use, say, the sacrum or the
18 sternum to establish your MNI to get your base count, there isn't
19 necessarily a corresponding method that is accepted in the
20 anthropological community that allows you to determine sex from those
21 specific bones.
22 Q. Again, I don't want to lead you on this, so am I understanding
23 this correctly, because they are not using the proper bones or the --
24 evaluating or examining the proper bone, it would be hard-pressed for one
25 to be able to make a conclusion in connection with sex? Am I as a
1 layperson trying to -- I apologise for not understanding this a little
3 A. What I would say is, essentially it appears that what they are
4 examining either has to be relatively complete bodies, which is possible
5 but does not necessarily reflect what is described in the report. So in
6 other words, if I'm going to establish MNI using a sternum, there is no
7 method by which I can then use that same sternum to determine whether
8 it's a male or a female. The parts of the body you need to do that are
9 either the pelvis, the skull, or metrically, through analysis of either
10 the head of the humerus, how big the top of your arm is or the head of
11 the femur. So if he chooses to use the proximal femora, it is possible
12 to do some metric analysis to divide males from females. If he uses the
13 other bones identified in this report, there is no accepted
14 anthropological method that ties the idea of sex to those bones unless
15 you presuppose that what he is examining or what the individuals are
16 examining is close to a relatively complete body or that re-association
17 has been done.
18 Q. With respect to there being a complete body or re-association in
19 order to obtain a complete body, in the report there's no evidence that
20 that -- or little evidence, if I may use that, to support that, correct?
21 Strike that. I'll restate it. I'll restate it.
22 JUDGE AGIUS: Thank you. Yeah, yeah, yeah. It's ...
23 MR. OSTOJIC:
24 Q. Is there any -- I'm sorry. Really, is there any evidence in the
25 report to identify that there were complete bodies or re-association to
1 complete bodies?
2 A. I see no express evidence that that was done. You could also
3 make the argument that if you had complete bodies, you have an MNI. You
4 count the bodies.
5 Q. I understand that. Thank you. Just briefly, and we have just a
6 few minutes before our next scheduled break, which I'm sure you'll look
7 forward to. With respect to the aspect of sex, is your opinion -- or
8 what is your opinion now in connection with age? Because you've said
9 these are the two modifications, one being sex, the other being age.
10 A. Again, it goes to the issue of the bone you use to establish MNI
11 is not inherently the bone you would use to establish the age of the
12 individual. So it presupposes that if you were going to use, say, a
13 sternum, again, to establish your MNI, there is no method that then
14 allows you to age that sternum in order to subdivide it.
15 Q. And we can see the methodology as well as the analysis utilized
16 by Mr. Baraybar in his December 1999 report on 00911541, correct? I
17 mean, it's captioned "age," and presumably it's in that report that the
18 methodology is described as well as on the next page where they render
19 the conclusions.
20 A. On Table 3, he gives an express and explicit statement of the
21 methods used to establish age, all of which are acceptable methods, all
22 of which are perfectly relevant to establishing the age of an individual,
23 but that those methods don't inherently apply to the bones that were used
24 to establish the MNI. So unless you have relatively complete
25 individuals, you are making analysis of separate or isolated or
1 unreassociated bones.
2 MR. OSTOJIC: I think at this point we can all use a break,
3 [indiscernible] more so, though.
4 JUDGE AGIUS: All right. We'll have a 25-minute break. Thank
6 --- Recess taken at 12.38 p.m.
7 --- On resuming at 12.56 p.m.
8 JUDGE AGIUS: Mr. Ostojic, let's continue.
9 MR. OSTOJIC: Thank you, Mr. President.
10 Q. Good afternoon, Dr. Komar. Doctor, we were talking about little
11 bit about the sex and age in the last session and I just wanted to follow
12 up, if we may, on this section of age with respect to Baraybar's December
13 8, 1999, report. Are there any other opinions you have in connection
14 with that and specifically, if I can direct your attention to the issue
15 of or -- for example, is the age range too wide or do you find any other
16 defects or deficiencies in that methodology utilized by Baraybar?
17 A. It's not that the age ranges are too wide, they reflect the
18 methodologies he is employing; it's that the age categories as they are
19 defined don't inherently reflect the way we establish age. My most
20 troubling, I guess, comments are the notion that we can separate a
21 17-year-old from an 18-year-old based on the methodology as they exist
22 and particularly with relation to the bones they are talking about. I
23 think it -- that there's significant overlap between the age categories
24 as they are defined and particularly and in what can be defined or
25 categorized as a crucial age category, this notion of the late teens
1 early adulthood, I think it suggests a degree of specificity that is not
2 reflected or that warranted by the methodology being employed; in other
3 words, I would not argue that we can conclusively and unambiguously
4 separate a 17-year-old from an 18-year-old.
5 Q. If I can just direct your attention to your report under section
6 2.2, and so you can assist me in understanding this section where you say
7 the age and death calculation -- under 2.2. And again, it's on
8 Dr. Komar's report which is 2D534, and we are looking under paragraph
9 section 2.2, please.
10 A. Okay.
11 Q. And just so I understand, what is this section dealing with,
12 because I note that you do mention Baraybar in his 1999 report as well as
13 his 2001 and 2004 reports. And you talk about the usage of the right or
14 left femur, which we discussed, and then also you go on to say that none
15 of the -- down below, I think in the sixth line, "However, none of the
16 aging methods cited in Baraybar's protocol," and then you make reference
17 to his three reports, "use the femur, ribs, et cetera, as the aging
18 standard)." Do you see that?
19 A. There's a separation of thought. None of the aging methods use
20 the femur; in fact, it's ribs, [indiscernible] and teeth that are used as
21 the standard.
22 Q. That's my understanding of it. I just wanted to clarify. So
23 they are not using the femur which is the acceptable standard method,
24 they are using the ribs?
25 A. No, it's -- I'm not arguing that the femur is an accepted method.
1 I guess if I have any comment regarding this it is that perhaps
2 Jose Pablo Baraybar is not sufficiently clear in his methodology as to
3 allow an outside individual to assess exactly what was being done. He
4 makes sort of -- I don't want to use the word vague but tangential
5 comments regarding the bones that he does or does not use in any
6 particular site and it's completely acceptable to use different sets of
7 remains for different sites. You are looking at each site in its toto
8 and trying to determine what's your most common element. All of that is
10 What is not clear is how the relationship between -- how he makes
11 the connection between the elements and material we look at in order to
12 establish age and how that corroborates with the elements you would then
13 use to establish MNI, that that connection is not clear in the report as
14 it's written and it's not clear as someone who understands exactly what
15 it is he's trying to do and how he's doing it, how he accomplishes what
16 he claims to accomplish.
17 Q. Let's see if Baraybar in his subsequent report makes it somewhat
18 more clear. I direct your attention, if I may, to his January 2004
19 report which is P2477. Specifically, just so that we can follow along
20 with you, I think we are going to highlight initially ERN number
21 03489048, which is where they discuss the MNI procedure.
22 A. Correct.
23 Q. But before we go there, Doctor as it's being placed, are there
24 any other opinions or comments or thoughts that you would like to make in
25 connection with the December 1999 report that you formulated here?
1 A. I would sum it up by saying that there's a lack of clarity as to
2 exactly how the connection is made between how age is established and how
3 the MNI is calculated. He describes the two processes separately but
4 fails make the connection other than that they are evaluating significant
5 portions of remains and/or complete bodies, in which case MNI is not the
6 question before the examiner.
7 Q. Thank you. And now directing your attention to P2477, which
8 should be on the screen, and we've asked that the specific number be
9 placed on which is ERN 3 -- 03489048 and I think we also would need 47 on
10 the screen at one point, I'm just giving a heads up. I think it actually
11 starts on that prior page.
12 A. It begins on what he's marked as page 3048 and continues through
14 Q. Thank you for that. Now, having reviewed this report and based
15 upon your experience, naturally, and education, did you form an opinion
16 in connection with this report specifically as it relates to the MNI
17 procedure that was utilized, that we see in Baraybar's January 2004
19 A. Much of it is a duplicate of what has previously happened. There
20 are significant improvements in this particular report in that he is far
21 more specific for each site as to what he is using to establish MNI.
22 Where again there can be some suggestion of a lack of clarity is, again,
23 how the connection between, say, the right or left proximal femur which
24 is overwhelmingly what he uses, connects to the notion of sex and age as
25 was determined by what have to be considered individuals.
1 If you are going to establish age and sex, you are essentially
2 talking about something other than isolated elements. Whereas MNI
3 essentially relates to this idea of isolated elements. You are trying to
4 get an estimate of how many people are represented by the mismatch and
5 collection of material that is left over in these disarticulated sites.
6 And if I have a comment it is simply that it is not clear from the way it
7 is written how he accomplished that.
8 Q. But this lack of clarity in the report, that goes to the, if I
9 can use the term and I know we've discussed it briefly, one can't
10 reasonably rely on this because there's no evidence to suggest that it
11 was done properly or improperly. Would that be an appropriate way to say
13 JUDGE AGIUS: Yes, Mr. Vanderpuye.
14 MR. VANDERPUYE: Same objection, Mr. President. It's, really,
15 unconscionably leading in the circumstance.
16 JUDGE AGIUS: Mr. Ostojic.
17 MR. OSTOJIC: I'll restate the question, but really, I don't
18 think it's necessary to say things such as these are unconscionable or --
19 but those are -- fine. If he needs to use those adjectives, that's fine.
20 I don't think it was leading.
21 Q. But in any event, Dr. Komar, with respect to the issue of lack of
22 clarity that you discussed, what impact does that have for an objective
23 or independent scientist such as yourself or others to evaluate the
24 veracity or the credibility of the conclusions that are reached by
25 Baraybar in his January 2004 report?
1 A. While the individual methods and items he outlines are acceptable
2 in isolation, I would have to suggest that in combination it is unclear
3 how they accomplished this. Frequently, he uses -- creates examples to
4 clarify the point, and it makes the point quite clear if a layman was
5 reading this, where the connection is failed to be made is how it then
6 translates into what he is actually looking at.
7 Q. And that which he is actually looking at is what?
8 A. A collection of -- again, a secondary or what he refers to as
9 merged graves, this idea that there are some individuals who are still
10 articulated, perfectly understandable in the circumstances, mixed with
11 those who are disarticulated, and therefore that does pose a legitimate
12 question to investigators, how do we figure out exactly how many people
13 we are talking about here? Again, you know, in and of itself,
14 introducing sex, introducing age is not unacceptable methodology; it is
15 just not clear from how it's written and how it's presented how he makes
16 the connection between isolated remains that he describes as forming the
17 basis of his MNI and how those are then sexed and aged, absent any
18 methodology that allows you to do that.
19 Q. Okay. Now, Baraybar in his report on page 4 uses language such
20 as the same logic applies for determination of sex, and in other parts he
21 says the same logic is used for the application of determination of age.
22 Can you share with us if his report identifies what logic he is actually
23 utilizing in his methodology in order to reach those conclusions?
24 A. Essentially, the statement of logic that goes to MNI says that
25 you can't have less than the people that are represented. If you have
1 five right proximal femurs, you must have five people. He extends that
2 logic to the idea of sex. If you have what is clearly a female femora
3 and five right femora, then you would argue that you have what represent
4 five male femora and one female femora, thereby raising the MNI to six.
5 Even if you don't actually have an additional element, he is introducing
6 the notion of sex as a way of further differentiating the individuals and
7 further amplifying the estimate that basically -- and again, in and of
8 itself, nothing wrong with that.
9 Q. And I actually like the word "amplifying the estimate" because I
10 was going to use "inflated," but we'll go with your word "amplifying."
11 So the net result is by using this methodology, although it's unclear,
12 and by purportedly identifying this logic that they've utilized in
13 determining age and/or sex, when you say there's an amplification, what
14 do you mean? Is that an inflation or increase in the potential number of
15 individual bodies or ...
16 A. Inflation sounds like there's a purposeful statement to it.
17 Q. No, no.
18 A. I would suggest that if -- what it potentially does is introduce
19 bias, and a bias is a skewing of results in a particular direction. In
20 this particular case, by introducing additional variables, inherently the
21 skew is going to be for a higher number than a lower number.
22 Q. Fair enough, and I don't mean to impute anything negative to
23 Baraybar or any of the other scientists here. With respect to, as you
24 call it, amplification or higher numbers, can you detect as to whether or
25 not that was reasonable in making a determination as to what the minimal
1 number of individuals were in his 2004 or any of his other reports, for
2 that matter?
3 A. In the 2004 report, he goes a step further in that he introduces
4 what he calls an MMNI, which is a minimum -- minimal number of
5 individuals. While he is certainly not the only person that has ever
6 proposed that idea, what he uses it to introduce is the idea of hidden or
7 invisible individuals. So what he is suggesting is that by his own
8 methodology, he recognizes that there are certain individuals who are not
9 captured within that system, so that -- what he is suggests is that
10 simply counting the bones enough in these circumstances is not sufficient
11 to identify the minimum number of individuals, that he argues you have to
12 recognise the potentially individual -- or invisible individuals that
13 could be counted as well. That -- that would have less acceptance in our
14 community than a simple calculation of MNI.
15 Q. Okay. So -- and that was going to be my question. With this
16 MMNI, is that widely a practice that forensic anthropologists would
17 utilize or scientists in the field in determining MNI, or is that
18 something that we see for the first time in this report of January 2004?
19 A. I would in no way suggest he invented it. There are others who
20 have invoked it. Again, we come down to the logic of how we makes the
21 argument that you would count those individuals. It is appropriate and
22 completely acceptable to identify the potential that there are people not
23 being captured. He goes a step further and attempts to quantify that,
24 and I don't know that I'm comfortable with that.
25 Q. Fair enough. In the report, did you find any evidence of, as
1 you've identified it, the re-articulation or re-association of various
2 body parts to bodies?
3 A. Within the context of this report, I don't see evidence of that;
4 but to be fair, this report deals with MNI and not re-association.
5 Q. Fair enough, but in constituting or determining MNI or MMNI,
6 would you know -- any of his other reports, do they address this
7 re-association or re-articulation?
8 A. I don't recall specific references to an effort to do it. I
9 understand and have worked with Jose Pablo and know that his methodology
10 frequently incorporates that. I don't see an express statement to that
11 effect, and that just might be an artifact of how he wrote the report and
12 not actually what happened in the field. I can't speak.
13 Q. Now, because we've reached the 2004 period, although we are going
14 to jump a little bit with the next report by Dean Manning, one of the
15 investigators for the Prosecution, I wanted to ask you: Were you during
16 the digs in Cancari and Liplje?
17 THE INTERPRETER: Counsel and witness kindly asked not to overlap
18 for interpretation.
19 MR. OSTOJIC: I apologise. Thank you.
20 Q. When you were involved in those two particular digs involving the
21 Srebrenica area, how many scientists were involved in each or either one
22 of those exhumations?
23 A. There was an investigator who is not a scientist. There was the
24 chief archeologist John Sterenberg [phoen], who was a scientist. There
25 was myself as the osteologist; I had a graduate student with me. And
1 then in addition to that, we had several local workers who assisted but I
2 would not put in the category of scientist.
3 Q. Do you recall the investigator from the OTP who assisted or was
4 present during the exhumation process?
5 A. Mike Hedley.
6 Q. I think you had identified him --
7 JUDGE AGIUS: Slow down.
8 MR. OSTOJIC:
9 Q. Thank you. And it's in your report and thank you. I just wanted
10 to know if you recalled it. Now, if we can look at the next document
11 that I'd like to review with you today here. Is the Dean Manning report,
12 3D261. And it's the June 8th, 2007
13 Doctor, for the report to be brought up on the screen. Again, it's
15 Doctor, in preparation and in formulating your reviews and
16 opinions in connection with the materials that you reviewed, is this also
17 a report that you reviewed and analysed?
18 A. Yes.
19 Q. And can you tell me from the best of your recollection, just in
20 general terms, what is the report and from whom? Other than the name
21 Manning, do you know who he was and what role he played?
22 A. Dean Manning, my understanding, was an investigator for the ICTY.
23 I believe he was a leader or team leader capacity and it represents a
24 summary of the forensic evidence of mass graves to that point that relate
25 to the Srebrenica investigation.
1 Q. Now, in your experience have you had investigators who would be
2 involved in introducing MNIs?
3 A. No. I was -- you specifically referenced Liplje and Cincari, I
4 was expressly asked for an example of how this works by Mike Hedley to
5 generate an estimate of MNI and I imagine within the context of his
6 report hopefully he identified the source of that estimate and how I went
7 about doing that.
8 Q. And in your opinion or do you have an opinion as to whether or
9 not that was reasonable with what Mr. Hedley --
10 A. Hedley.
11 Q. Hedley?
12 A. Hedley, H-e-d-l-e-y.
13 Q. I'm bad with last names. Mr. Hedley did, is that reasonable in
14 your opinion?
15 A. It's common practice and very acceptable.
16 Q. Is the fact -- now you reviewed Mr. Manning's report, do you have
17 an opinion whether or not it was appropriate for Mr. Manning to be
18 introducing MNIs? But before you answer that question, you also reviewed
19 his curriculum vitae that was attached as 2D541, if you remember. I know
20 you won't remember the number but I think you looked at his CV; right?
21 A. I understand your question, I would -- I don't know if I can ask
22 you to rephase it but I'm a little uncomfortable with what you are asking
24 Q. You can. You can most certainly ask me to rephrase it, I think.
25 I will rephase, if it permitted. Dean Manning we know is an
1 investigator; we shared with you his curriculum vitae which is 2D541.
2 What I'm asking in essence is: Do you have an opinion based upon a
3 reasonable degree of scientific certainty as to whether or not it was
4 appropriate for Dean Manning to be introducing MNI?
5 A. There is nothing inappropriate about an investigator citing
6 another source, a scientific source as to how -- if he chooses or she
7 chooses to include an MNI in that report, it is appropriate and
8 acceptable for them to identify the source of that report. If I had an
9 opinion into this particular case, I think what makes me uncomfortable is
10 that while Dean Manning identifies the DNA from the ICMP as the source of
11 where his numbers are coming from, there is no specific scientific report
12 that he is referencing for which those numbers are generated.
13 Q. When we review his report and some of the conclusions that he has
14 reached, there's -- is there a basis for -- a reasonable basis as to how
15 he comes to the conclusion for MNIs?
16 A. The use of DNA as a source of generating an MNI is completely
17 appropriate. If I have an objection to this particular report it is a
18 sentence contained within it that transcends or - and purely my opinion -
19 goes beyond the responsibilities and abilities of an investigator in that
20 he makes a scientific assessment absent citing any scientific report he's
21 generating this from, that disregards the anthropological source of MNI
22 and replaces it with DNA.
23 Q. And just so the record's clear, and that's why I referenced his
24 curriculum vitae, it's an investigator who does not have any scientific
25 background or experience and that's really what you are referencing;
1 correct? Because had he had some scientific experience or
2 anthropological experience, would your opinion have still been the same?
3 A. You are getting into degrees of what constitutes --
4 Q. Fair enough.
5 A. -- I mean, just because somebody has a BA in anthropology doesn't
6 necessarily qualify them make this assessment. If I can be clear for the
7 purpose of the Court -- first of all, can I identify the sentence that I
8 object to?
9 Q. I'll get that. It's ERN 06106456 and it's the bottom of the
10 third paragraph, I believe.
11 A. What Mr. Manning states in his --
12 Q. Just give us a second if you don't mind. I'm sorry to interrupt
13 you. Just so that we can follow along.
14 A. Okay. I was just going to read it.
15 Q. Page 2 of 23 of his report. And it's captioned "Number of
16 individuals" in bold text and it's the third paragraph beneath that. We
17 have it up now, Doctor, so can you focus which sentence or sentences that
18 you are going to render an opinion on in connection with his report?
19 A. It's the final sentence of the third paragraph which reads: "The
20 results of this DNA analysis are therefore used in preference to the
21 previously use anthropological MNI."
22 Q. I have to ask you this question, and forgive me for asking it. I
23 think I know what it means but what does it mean to you as a scientist?
24 A. That is a judgement call and a --
25 JUDGE AGIUS: Yes, Mr. Vanderpuye.
1 MR. VANDERPUYE: I think the question requires some clarification
2 because the sentence refers to the substitution of this information in
3 the context of the report that's being generated by Mr. Manning. It does
4 not refer to the substitution of that information with respect to the
5 scientific data upon which that report is based. And I think that my
6 colleague can do more to clarify the question for the witness.
7 JUDGE AGIUS: Yes, Mr. Ostojic.
8 MR. OSTOJIC: It would please me to assist, if I can.
9 Q. Doctor, you've heard what my learned friend has stated. Is there
10 evidence of any scientific reliance that Dean Manning cites as to coming
11 to his conclusion as to the MNI?
12 A. If there is a report from ICMP that he is referencing, I have not
13 seen it and I am not aware of it. And again, I don't wish to exceed what
14 I'm being asked.
15 Q. Doctor, obviously if there's a report I'm sure my learned friend
16 would have tendered it and I'm sure he will show it to you when he has an
17 opportunity to question. But given that you haven't seen that report,
18 what is your opinion based upon a reasonable degree of certainty in
19 connection with this?
20 A. It is commonplace and appropriate for an investigator to
21 reference a scientific report as the source of their information. If the
22 purpose of the report is a summary of the overall investigation that it
23 represents, it is appropriate and common practice for an investigator to
24 reference a scientific report. What makes me uncomfortable about this
25 particular event is it appears as though Mr. Manning has made a
1 scientific decision that the anthropological MNI data that's been
2 represented is being replaced by his interpretation of DNA analysis and
3 the numbers generated.
4 Q. So what effect, if you are correct in how you read his statement,
5 what effect is he saying the evidence of Dr. Wright and Jose Baraybar,
6 what affect their reports and testimony has. He is saying that we have
7 something else that's better and more improved and we shouldn't rely on
8 their reports and others?
9 JUDGE AGIUS: Mr. Vanderpuye.
10 MR. VANDERPUYE: Again, I object. It's a leading question and
11 furthermore, to the extent that it is my understanding that Mr. Ostojic
12 wants the answer to that question, that is a question that he could have
13 put to Mr. Manning at the time that he testified. I don't think it's
14 appropriate for this witness to speculate as to what was intended by
15 Mr. Manning when he drafted the report or what's written in the document.
16 JUDGE AGIUS: Yes, Mr. Ostojic.
17 MR. OSTOJIC: I don't think that I need to respond to that, that
18 I could have or should have asked Mr. Manning. We've asked Mr. Manning
19 many questions and I think the Court can go back and review that. I have
20 a witness here who is qualified in order to render an opinion. This is
21 obviously an investigator who had no anthropological or archeological or
22 pathological experience whatsoever and he is now making a decision on
23 behalf of the Prosecution that he is going to disregard some of the
24 anthropological evidence. This anthropologist that's before us, I think
25 has an opinion as to why and whether or not investigators should
1 disregard and the value of anthropological MNI determination. So I think
2 it's a fair question and it should be allowed that the witness answer the
4 JUDGE AGIUS: Yes, Mr. Vanderpuye.
5 MR. VANDERPUYE: Thank you, Mr. President. First of all, I think
6 that my colleague has misstated the record insofar as Mr. Manning's
7 experience concerning the exhumations that were carried out in relation
8 to this case. Second of all, I would point my colleague to the
9 transcript, in particular on page 19002, which basically sets out what
10 Mr. Manning did in relation to the preparation of this report.
11 Specifically he says he used the data provided by ICMP and that is the
12 basis of the -- that is the essence of the questions being put to this
14 MR. OSTOJIC: The next series of questions go to directly to ICMP
15 because it naturally flows from that. The point being that --
16 JUDGE AGIUS: Why don't you go there straight away.
17 MR. OSTOJIC: She has an opinion in connection with that.
18 JUDGE AGIUS: You can ask her for her opinion along the way.
19 MR. OSTOJIC: Okay I'll do that.
20 Q. Doctor, what significance do you believe, and although you are an
21 anthropologist -- not although, but you are an anthropologist, what
22 evidence or how do you feel the use of anthropological science is in
23 evaluating and determining MNI, do you think it's significant or
25 A. It is a recognised source of creating an estimate.
1 Q. And for how long has this been a recognised source of creating an
3 A. Throughout the history of anthropology. It is essentially a
4 reliance on the logic that Mr. Baraybar references in his report, that if
5 there are seven femora, there have to be at least seven people.
6 Q. Is it widely acceptable and considered reliable?
7 A. Yes.
8 Q. Now, Mr. Manning seems to be moving away from the previously used
9 anthropological scientific MNI estimates to what is commonly referred to
10 DNA analysis; correct? Or so it seems?
11 A. Based on what is written.
12 Q. Now, let's talk a little bit about ICMP, if we can. Have you had
13 any experience in dealing with that institution?
14 A. Yes.
15 Q. Share with us in what capacity and when.
16 A. In 2001, I was contracted as a forensic anthropologist for the
17 ICMP to assist in the exhumations jointly with the ICTY, specifically
18 with the sites we discussed, Cincari 7 and Liplje 4.
19 Q. Are you familiar with their SOP or standard operating procedures
20 that may have been in existence at that time?
21 A. I was not given any copies of SOPs at that time. I have since
22 read the SOPs released by the ICMP within the context of this trial.
23 Q. We provided that to you; is that correct?
24 A. Yes.
25 Q. Do you know when those SOPs were actually formulated and
1 implemented at the ICMP, by looking at the actual document?
2 A. I can't speak to that. Most of them -- many of them are not
3 dated which is standard operating procedure for a standard operating
4 procedure. Given that my experience with the ICMP was limited to two
5 months in 2001, I can't speak to what they did or did not do outside of
6 that time-frame.
7 Q. Now, your basic analysis and opinions that you render in
8 connection with the ICMP DNA-based identification is actually found under
9 subsection (1) of your report as well as various paragraphs 1.2, 3, 4,
10 et cetera; is that correct?
11 A. Yes.
12 Q. Now we are going to cover that although we have 15 minutes. I
13 don't know that we'll be able to accomplish the entire areas that I'd
14 like to cover with you in connection with ICMP, but first and foremost,
15 can you just help me understand the difference between matching rates and
16 collection rates?
17 A. The fundamental definition of those ideas?
18 Q. So we can have a better appreciation when one take a matching
19 rate and a collection rate?
20 A. A matching rate is a statement of proportion of two populations
21 that when compared to each other, either are concordant or disconcordant.
22 If you have hundred of something and you compare it to a hundred of
23 something else, a matching rate is a statement of how many of those two
24 groups concur.
25 Collection rates go to sampling strategies within a population.
1 So it is first necessary to define your population; and secondly, it is
2 important to establish what your sampling protocol and methodology is in
3 order to determine whether or not your collection is representative of
4 your population or not.
5 Q. Now, and I know, and I apologise if I'm leading you on this, you
6 ray viewed a two-page or so letter from Mr. Parsons from the ICMP,
8 A. I read a one-page memo from Dr. Parsons from the ICMP.
9 Q. Okay. And now, was -- did you ever review -- because Mr. Manning
10 in his report relies upon the DNA evidence in preference to the
11 anthropological evidence, did you ever find or were you ever given a
12 formal report from the ICMP?
13 A. I was not provided with that, no.
14 Q. So the only thing we have is the Dr. Parsons' report, and I don't
15 have the date here in front of me, but I think it was in - I do have the
16 date - the 30th of November 2007. Is that correct?
17 A. 30 November 2007
18 Q. And I think it's been identified, just so that we can all follow
19 along, as 1D703, but we will get back to that report in some detail.
20 Now, in your report here you talk about a fundamental yet critical flaw
21 in the logic that was used in order to create the estimated number of
22 individuals missing from the Srebrenica area. Do you see that?
23 A. In my report, yes.
24 Q. Yes. And now, can you tell us why you find that there is a
25 fundamental yet critical flaw in the logic, and help me understand, are
1 you again addressing both the methodology and the analysis or, also, the
2 methodology and analysis and conclusion when it comes in evaluating
3 although obviously a very short -- I don't know that we can call it a
4 report but a letter, if you will, and we'll talk about some of the
5 contents of that letter a little later, this letter from Parsons dated
6 30th of November, 2007.
7 A. Just to be clear, the statement you referred to in my report
8 references the ICMP statement from Parsons and not the report from
9 Manning. The statement issued by Parsons called the ICMP Statement On
10 Estimated Numbers appears to confuse the notions of collection rates and
11 matching rates in the structure of the argument and ultimately the
12 estimate he produces as a result of it.
13 Q. Okay, and we'll address that. I just want to clear up one thing
14 in your answer. You say, "Just to be clear the statement you refer to in
15 my report references the ICMP statement from Parsons and not the report
16 from Manning." And I just want to understand that because I don't know
17 if I'm following, but Manning states that he has a preference, and now --
18 they are now going to essentially abandon the anthropological scientific
19 analysis and this -- conclusions that were done in favour of the DNA.
20 What report other than the Parsons 30th of November, 2007, report could
21 Dean Manning possibly be relying on?
22 JUDGE AGIUS: Yes, Mr. Vanderpuye.
23 MR. VANDERPUYE: I think the question misstates the evidence and
24 mischaracterizes the evidence. The document to which we were referred
25 previously where Mr. Manning says that they are replacing or that he is
1 replacing anthropological MNI with DNA MNI is a summary, and it's made in
2 the context of the summary. It represents that what is depicted in the
3 summary is this information as distinguished from the report that was
4 previously filed. I think to characterize that as Mr. Manning
5 substituting this information on a scientific level for the presentation
6 to the Court I think mischaracterises the evidence.
7 MR. OSTOJIC: Let me ask -- let me ask the doctor to clarify, and
8 we're not trying to mischaracterize it at all. That's why we have Dr.
9 Komar here.
10 Q. And Doctor, help walk us through that if you don't mind.
11 A. It's actually rather clear. The date on Manning's report is June
12 8th, 2007. The Parsons report is produced November 30th, 2007. So
13 Manning's report is written in advance of when Parsons' memo is created.
14 Q. Fair enough. So what is Manning relying on that he would make
15 the statement that he has a preference to the DNA samples versus the
16 anthropological scientific analysis that's been done up to that date in
18 A. I don't know what report he is referring to. I haven't seen the
19 report he is referring to. There is a release of information from ICMP
20 in raw data form that I have seen that is concurrent with this particular
21 event. There is no specific statement as to what he is referencing. He
22 is very clear that it's coming from ICMP, and that's fair. I don't know
23 where he gets the numbers or what allows him to make the statement that
24 it is therefore preferential to the anthropological.
25 Q. Does he identify it anywhere in his report, or its proclaimed
1 that he does not, correct?
2 A. I haven't found it. I don't see it.
3 JUDGE AGIUS: Yes, Mr. Vanderpuye.
4 MR. VANDERPUYE: Mr. President, I think that my colleague is
5 asking the witness to speculate as to these matters, and I think it's
6 quite plain particularly, in light of the reference that I gave to the
7 trial transcript in which Mr. Manning expressly states that he
8 effectively -- and I'm quoting it; this is line 14 of page 919002, and
9 it's a question put to Mr. Manning, "How did you reach this number, Mr.
10 Manning, the number of 4017?" The answer is, "Your Honours, effectively
11 I took the data provided by ICMP based on my knowledge of the graves and
12 the types of codes used and the grid references, locations. I divided
13 those figures into the relevant graves." That's how he arrived at the
14 data. That's the source of the information that's relied on, and I think
15 to make a representation to the contrary misstates the evidence.
16 MR. OSTOJIC: Respectfully, I disagree because I think that is a
17 misunderstanding. We're saying and I think Dr. Komar in her answer did
18 refer to the raw data, and my question is simply other than that raw data
19 that she's had an opportunity to review, was there another report or a
20 formal report, or is the only thing that we see, although admittedly
21 subsequent to Dean Manning's report in November 30th of 2007, this one
22 page letter from Dr. Parsons, and all we are doing is narrowing it down.
23 Dr. Komar has reviewed, I believe, the raw data and has herself
24 reconfigured some of that, which we'll get to in a -- shortly, I hope.
25 So I don't think we are mischaracterizing. I think they may have
1 misunderstood what we are trying to say.
2 JUDGE AGIUS: You may not be mischaracterizing it, but I think I
3 still think that your question was unnecessary --
4 MR. OSTOJIC: All right.
5 JUDGE AGIUS: -- considering her previous answer. She started by
6 saying, I don't know what report he is referring to, I haven't seen the
7 report he is referring to; and then she refers to directly to the ICMP as
8 being the source that she could -- as far as she could understand, and
9 then she said, I don't know where he gets the numbers. And then you ask
10 her, Does he identify it anywhere in his report. Well, I think you can
11 move through --
12 MR. OSTOJIC: Fair enough. Fair enough, Mr. President. I will.
13 Q. Let me clarify. Dr. Komar, were you able to review the raw data
14 on a spreadsheet form that was provided by the ICMP?
15 A. I was given a number of Excel spreadsheets that are identified as
16 copies of ICMP data.
17 Q. Looking at all the reports and the testimony that some,
18 admittedly, predate and some post-date this November 2007 letter from
19 Parsons, have you come to learn whether or not any such formal or
20 informal report from ICMP exists in connection with the DNA-based
21 identification relating to MNI?
22 A. All I can speak to is what was provided to me, which can be
23 summed up with the raw databases, this one-page statement or memo from
24 Parsons, and I'm trying to think if there's anything else specifically
25 from ICMP. Oh, the SOPs, standard operating procedures.
1 Q. We'll touch on that little later. Again, now, going back to
2 where we were leading to, and that is looking and defining the matching
3 rates or the matched success rates with the collection dates. In your
4 report, you then use the term "representation" or "representative" rates.
5 Can you just tell me how that fits in, if we are using match rates with
6 collection rates, and forgive me for asking, but I was a little confused
7 on that.
8 A. Okay. The report begins by identifying in completely acceptable,
9 mathematical terms how he defines his matching rate, so he is essentially
10 saying, of the samples we got, here are the ones we've been able to
11 match, and produces a mathematical statement to that effect. Absolutely
13 Q. And that's a methodological way of -- process that he was
14 conducting, correct?
15 A. Yes, and that's in the second paragraph. No complaint with that
16 whatsoever. He then in the third paragraph says, If we assume that, and
17 then he lays out a set of criteria that form the basis for the hypothesis
18 that he is then going to formulate, and again, completely scientifically
19 acceptable to establish your parameters and list, and in fact, you are
20 required to list and identify the assumptions you are basing that on, but
21 there seems to be sort of a transition from talking about a matching rate
22 into this notion of representation and sampling strategy without
23 sufficient evidence such that others can evaluate it how he makes that
24 leap and that there is a disconnect between identifying a matching rate
25 and then arguing that that in fact represents a collection rate.
1 Q. Forgive me, Doctor. I'm not sure I fully understand. We will
2 flush it out, but I think we'll need for all of our purposes if we can
3 have 1D703 on the screen, and I know you have it in front of you, Doctor,
4 and you were looking at it, so let's just take a look at that. Oh, I'm
5 sorry. Please, this is under seal, I'm told, but I just want to
6 double-check. I apologise.
7 MR. VANDERPUYE: Sorry, Your Honour. I couldn't hear you.
8 JUDGE AGIUS: Was it lifted?
9 MR. OSTOJIC: Not yet, Your Honour.
10 MR. VANDERPUYE: I don't believe so.
11 MR. OSTOJIC: So we shouldn't broadcast it, either, I think.
12 JUDGE AGIUS: Okay. Madam Registrar will look into that, okay?
13 [Trial Chamber and registrar confer]
14 JUDGE AGIUS: We are looking into the matter, Mr. Ostojic and Mr.
15 Vanderpuye. I'm also told that 1D703 hasn't been tendered as yet.
16 MR. OSTOJIC: Has not been tendered?
17 JUDGE AGIUS: It could well be the position, yes.
18 MR. OSTOJIC: Okay. I'll look into that too. Can we maybe
19 reference it, then, just by the date of the letter, and then we'll --
20 JUDGE AGIUS: Wait, because it could have a duplicate number from
21 what I can understand.
22 MR. VANDERPUYE: I'm sorry. Mr. President --
23 JUDGE AGIUS: It has been tendered by someone else, I think.
24 MR. VANDERPUYE: Yes, that's correct. I understand that P --
25 JUDGE AGIUS: With a different reference number.
1 MR. VANDERPUYE: I understand it's P3005. Thank you,
2 Mr. President.
3 JUDGE AGIUS: It is under seal. It is under seal, so be careful,
5 MR. OSTOJIC: Yes. Thank you very much.
6 JUDGE AGIUS: And no broadcast.
7 MR. OSTOJIC:
8 Q. Doctor, in examining and in formulating your opinions in this
9 case, have you had an opportunity to review this document that
10 erroneously I've been calling 1D703, which is actually P3005, dated the
11 30th of November, 2007, from Dr. Parsons?
12 A. Yes.
13 Q. In your report, again, in the first section, this is where you
14 analyse and highlight some of the opinions that you have in connection
15 with that?
16 A. Yes.
17 Q. And you were in the process of explaining to us some of the
18 methodology that was used and if you could be kind enough in the just a
19 couple minutes that we have and we'll pick up on this topic in some
20 detail tomorrow. You were referencing certain things in the report and
21 just so we can have a better appreciation when you discuss matching rates
22 with collection rates and then representation, just point out where we
23 are gleaning that from?
24 A. He defines and states his matching rate in the second paragraph
25 and he defines that by taking the number of individual profiles that ICMP
1 have been able to extract from the samples that were given to them, and
2 he compares that to what he calls family matches or what are in essence
3 positive identifications of missing individuals. So he takes the 5.280
4 individual profiles, those are simply DNA fingerprints, if you will, the
5 physical profile that is created when the extraction occurs and the DNA
6 is amplified and it's put out. And he compares that to what he calls
7 family matches which are essentially identifications that stem from that
8 based on a comparison of those profiles with reference samples provided
9 by missing persons family members. So that is he how he defines his
10 matching rate and that's completely appropriate, completely accurate.
11 Doing that is appropriate.
12 The confusion, the lack of clarity, the issue arises in the
13 next paragraph when he defines what his assumptions are that allows
14 him to make a further calculation using that number.
15 Q. And just -- I don't mean to interrupt you. We just have a minute
16 left. I just wanted to ask you -- and you have it in your report the
17 assumptions that he is using are -- in your opinion, or plainly as you
18 stat in your report, incorrect?
19 A. Well, they are assumptions. The problem is -- the question is
20 whether an assumption can ultimately render the conclusion invalid. Is
21 the assumption so questionable that it can ultimately render the
22 conclusion drawn from it invalid. I would suggest given the assumptions
23 he defines and his bending or utilizing matching rates in lieu of
24 representation would render the conclusion he draws from it questionable.
25 MR. OSTOJIC: Thank you, Dr. Komar. With your permission,
1 Mr. President, if we could end here and then pick up tomorrow morning, I
2 would appreciate.
3 JUDGE AGIUS: Certainly, Mr. Ostojic. We stand adjourned until
4 tomorrow morning at 9 o'clock
5 --- Whereupon the hearing adjourned at 1.45 p.m.
6 to be reconvened on Thursday, the 24th day of
7 July, 2008, at 9.00 a.m.