Tribunal Criminal Tribunal for the Former Yugoslavia

Page 7216

 1                           Wednesday, 3 November 2010

 2                           [Open session]

 3                           [The accused entered court]

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

 5             JUDGE FLUEGGE:  Good afternoon to everybody.  The witness should

 6     be brought in, please.

 7             Mr. Elderkin.

 8             MR. ELDERKIN:  Good afternoon, Your Honours and everybody.  Just

 9     while the witness is coming in, I wanted to mention as a matter of record

10     from the OTP that Ms. Chittenden, who has been a member of the team and I

11     know you've seen a number of times appearing in court, has, unfortunately

12     for us now, left work with us.  So you won't be seeing her again but

13     I wanted to let Your Honours know that.

14             JUDGE FLUEGGE:  If we have known that earlier, we met her in the

15     hallway yesterday, we could have said goodbye to her.  Please forward our

16     best wishes for her personal situation and professional career in the

17     future.

18             MR. ELDERKIN:  Of course, and thank you, Your Honour.

19                           [The witness entered court]

20             JUDGE FLUEGGE:  Good afternoon, Mr. Baraybar.  Welcome to the

21     Tribunal.  Will you please read aloud the affirmation on the card which

22     is shown to you now.

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

24     whole truth, and nothing but the truth.

25                           WITNESS:  JOSE PABLO BARAYBAR

Page 7217

 1             JUDGE FLUEGGE:  Thank you very much and please sit down.

 2     Mr. Elderkin from the Prosecution has questions for you.

 3             Mr. Elderkin.

 4             MR. ELDERKIN:  Thank you, Your Honours.

 5                           Examination by Mr. Elderkin:

 6        Q.   Good afternoon.  As you know, my name is Rupert Elderkin, and

 7     I'll have a few questions for you.  But first, please could you say your

 8     name for the record.

 9        A.   My name is Jose Pablo Baraybar Do Carmo.  I will spell that for

10     the record, J-o-s-e P-a-b-l-o B-a-r-a-y-b-a-r D-o C-a-r-m-o.

11        Q.   I know that you have a binder of documents in front of you today.

12     Could you tell the Court what is in that binder?

13        A.   The binder contains my expert reports as well the previous court

14     transcripts relating to this case.

15        Q.   Everyone knows what you have in front of you, and if you need to

16     look at that at any time, please just let us know.

17             Can you say if you recall testifying here in the Popovic case in

18     March of 2007?

19        A.   Yes, that is correct.

20        Q.   Have you had a chance to read your Popovic testimony in the

21     previous days?

22        A.   Yes, I have.

23        Q.   And is there a correction which should be made in that testimony

24     to your profession which is, in various places, referred to as forensic

25     pathologist?

Page 7218

 1        A.   Yes, it should read forensic anthropologist.

 2        Q.   Okay.  And noting this correction, does the transcript fairly and

 3     accurately reflect what you would say were you to be examined here today

 4     and if you were asked the same questions?

 5        A.   Yes, it does.

 6             MR. ELDERKIN:  Your Honours, I would move at this stage for the

 7     admission of the witness's prior testimony as well as the previously

 8     admitted exhibits, and those have been, I think, already provisionally

 9     numbered in a memorandum.  I can read out the numbers, if you wish.

10             JUDGE FLUEGGE:  The first one, the transcript of the testimony in

11     the Popovic case will be received as P1048.

12             The others, you should not read all the numbers but give us the

13     first and the last one.

14             MR. ELDERKIN:  Your Honours, the range is P1049 through P1070,

15     and additionally one which is out of sequence, and that is P938.

16             P938, just for Your Honours' reference, appears on the list

17     between P1069 and 1070.

18             JUDGE FLUEGGE:  This was already marked for identification for

19     another witness we haven't heard yet, I take.  These documents will be

20     received with the given numbers.

21             MR. ELDERKIN:  And now with Your Honour's permission, I would

22     like to read a short summary of the witness's evidence.  Jose-Pablo

23     Baraybar is a forensic anthropologist.  He has previously testified

24     before this Tribunal concerning Srebrenica in the Krstic and Popovic

25     trials.

Page 7219

 1             He has worked on forensic investigations since 1991, including

 2     for the United Nations missions in Haiti and Kosovo, for the ICTR in

 3     Rwanda, and for the ICTY from 1996 to 2002.  During his work for the

 4     ICTY, Mr. Baraybar worked on the exhumation and analysis of the remains

 5     of victims from Srebrenica.  From 1997 onwards, Mr. Baraybar was the

 6     chief anthropologist at the mortuary which handled the remains recovered

 7     from graves.

 8             The role of the anthropologists at the mortuary was to determine

 9     the age, sex and stature of victims, to estimate the minimal number of

10     individuals or MNI, based on the remains recovered, and to assist in

11     reconstruction of broken parts, in order to determine the type of injury

12     sustained by the victim.

13             Mr. Baraybar also led teams of archeologists working in the field

14     on Srebrenica-related exhumations in 1999 and 2001.  Mr. Baraybar

15     prepared a number of reports which set out the findings of the

16     exhumations and which calculate the minimal number of individuals

17     recovered from Srebrenica-related mass graves.  According to

18     Mr. Baraybar's calculations, the ICTY exhumed at least 2.541 separate

19     individuals from Srebrenica-related primary and secondary graves between

20     1996 and 2001.

21             That concludes my summary, Your Honours.  And with your

22     permission, I would like to ask a few additional questions of the

23     witness.

24             JUDGE FLUEGGE:  Before you move on, I have to note that we have a

25     problem in the transcript in e-court with the page numbers.  We have now

Page 7220

 1     page number 174, but I'm sure we haven't filled so many pages in

 2     LiveNote.  The pages are correct, and if I compare them, that means 174

 3     is the same as 4 in LiveNote.

 4             Please carry on, Mr. Elderkin.

 5             MR. ELDERKIN:

 6        Q.   Mr. Baraybar, can we start by having you tell us a bit more

 7     about, first of all, your work at the ICTR and then moving on to how you

 8     came to the ICTY, please?

 9        A.   ICTR created what was called, if I recall correctly, the

10     scientific support unit to the Office of the Prosecutor.  This unit was

11     led by a medical doctor, Andrew Thompson, and had as its staff two

12     anthropologists; one senior and one junior, me being the junior and

13     Dr. Will Haglund being the senior, an engineer and a logistician.  These

14     units were the one that performed primarily two -- the investigation of

15     two cases for the ICTR at the time, one of them led to the indictment of

16     Clement Kayeshima, if I'm not mistaken, and the second one against

17     Georges Anderson Rutaganda.  By the end of the first semester of 1996,

18     this unit was lent to ICTY.  We were supposed to come to the Balkans,

19     specifically to Bosnia, to conduct some exhumations for some six weeks.

20     Obviously, the six weeks extended for much, much longer than that and

21     became closer to six months.  As a matter of fact, I do recall returning

22     to Rwanda to actually collect my personal effects only one year after

23     I left for six weeks.

24             Only 1997 -- I became an employee of the Tribunal of ICTY as

25     such.  At the time I was still on loan, so to speak, from ICTR.

Page 7221

 1        Q.   I think your ICTY history is covered in detail in your prior

 2     testimony, but just for the sake of record, could you give us a brief

 3     account of what you've been doing since you left the ICTY and when did

 4     you leave the ICTY?

 5        A.   I left the ICTY in 2002, I believe about June.  Then I became the

 6     head of the Office of Missing Persons and Forensics in the United Nations

 7     mission in Kosovo until 2007, I believe, May 1st, when I went back to my

 8     home country, Peru.  There, I am the executive director of the Peruvian

 9     forensic anthropology team, a non-government organisation dealing with

10     the issue of the missing as a consequence of the internal conflict in

11     Peru.  This organisation that I support also conducts a number of

12     trainings in various parts of the world, including the Philippines, the

13     Congo, Nepal and places of the kind.

14        Q.   Focusing on your work at the ICTY, as the chief forensic

15     anthropologist at the mortuary in Bosnia, how would you describe your

16     role?

17        A.   The way to actually -- there were multiple tasks that I had

18     conducted.  Perhaps the most important one was to assemble the teams that

19     would actually work with us in the mortuary and in the field for that

20     matter, setting common protocols and forms to have some consistency on

21     the recordings of the various things, and in addition working, doing case

22     work, because I was not some type of supervisor that would just, like,

23     sat and supervise people.  I was also working.

24        Q.   What did the case work for you and the other anthropologists

25     involve when you were at the mortuary?

Page 7222

 1        A.   Let me answer in a bit of a narrative that would actually give a

 2     bigger picture of how the thing worked.  The remains that we exhumed from

 3     the sites would arrive to the mortuary in body bags.  These body bags

 4     will be scanned with a fluoroscope, that is some kind of an x-ray

 5     machine, to look for metal fragments, be it shrapnel bullets or live

 6     grenades, as in some cases we have encountered.  The body then would be

 7     placed on the table, the autopsy table.  Pictures would be taken,

 8     clothing would be separated from the remains.  At the table, there would

 9     be a pathologist, an autopsy technician and an anthropologist, and then

10     it would be a scene-of-crime officer that would be going from table to

11     table, generally, collecting the various evidences.  The anthropologist

12     would be responsible then, and after agreeing with the pathologist, on

13     removing parts for age and/or sex determination.  Some occasions, the

14     remains were badly decomposed and there were not external genitalia to be

15     able to determine sex.  And also reconstructing, after cleaning of

16     course, any bone that was shown to be broken.  As you know, bones in that

17     context were broken by actions after the death of the people, in order to

18     rob -- and I'm using a popular term -- robbed the graves in which an

19     excavator, for example, would go through bodies and will fragment them,

20     or people that have been actually been killed, been shot, or had injuries

21     caused by projectiles or things of the kind.

22             MR. ELDERKIN:  Could I ask, please, to have P00903 on the screen?

23     That's perfect.  Thank you.

24        Q.   Mr. Baraybar, you mentioned the task of reconstructing bone

25     fragments.  Could you describe what we are seeing now on the screen?

Page 7223

 1        A.   You're seeing the left side of a skull -- of a human skull.  If

 2     you look at it, the left side of the screen will be the face and the

 3     right side would be the back part, and you see some linear element, that

 4     would be the zygomatics, or cheeks of this person.  Where the number 1

 5     is, there is a round hole that is actually the entrance of a gunshot and

 6     all this fluffy white elements you see below the number 1 and on the

 7     right side of number 1, are actually the results of the glue we use to

 8     piece all these fragments together.  So this skull that looks like a

 9     skull now was actually a co-mingled group of fragments that we have to

10     put together like a jigsaw to understand what actually broke the skull,

11     that, in this case, was a gunshot wound that you can see there.

12             MR. ELDERKIN:  If we could see now, please, P00910.

13        Q.   And again, with the image we are seeing, can you describe to us

14     what it is and if there is any reconstruction work visible?

15        A.   Sure.  You have an femur, if I'm not mistaken, it's a right

16     femur - although we should see in the vertical, we are now seeing it

17     horizontally - and that's a leg bone, by the way, the thigh bone.  So

18     what you can see here is that these bones -- this bone has been

19     fragmented perfect, has been fragmented into multiple -- multiple pieces.

20     The arrow, the second arrow, from above to below, shows again another

21     gunshot wound.  And I will use this thing to indicate where it is,

22     roughly here.  Have I done anything?  I cannot see any -- what should

23     I press?

24        Q.   If it's possible, the usher could assist.  Yes, please.  Sorry,

25     but I mean the circle should be slightly to the left.  Anyway, in that

Page 7224

 1     area --

 2             JUDGE FLUEGGE:  You could delete your marking and you could do it

 3     again.

 4             THE WITNESS:  Okay, how do I delete it?  All right.  Perfect.

 5     Okay.  There.

 6             MR. ELDERKIN:  I don't know if there is a technical way to change

 7     the colour of that marking, but I think green on green is going to be

 8     quite hard to see if this thing doesn't have the same resolution in

 9     future.

10             THE WITNESS:  Right.  So that circle shows an area, the likely

11     area of a gunshot wound.  You can also see below and above that circle

12     that there are some fractures, some fracture lines that are running above

13     and below, and this is what is expected from such an injury.  So in this

14     case, again, this thigh bone was just comprised with many fragments that

15     have been pieced together with this glue to show exactly what was the

16     agent that caused the fracturing of the bone, and in this case it would

17     be a gunshot wound.

18             MR. ELDERKIN:  In order for us to make a request to have this in

19     evidence, I assume it would be helpful to have the witness's initials and

20     perhaps the date.

21             JUDGE FLUEGGE:  I think this is not necessary.  We have the

22     marking on the screen and if we receive it, and we will do that, it can

23     be combined with our transcript.

24             MR. ELDERKIN:  I move to have it admitted, please.

25             JUDGE FLUEGGE:  It will be received.

Page 7225

 1             THE REGISTRAR:  With Exhibit P1305, Your Honours.

 2             MR. ELDERKIN:

 3        Q.   Mr. Baraybar, I'd like to turn now to a different topic, which is

 4     that of the calculation of the minimal number of individuals.  Can you

 5     tell us what MNI, minimal number of individuals, means and why was this

 6     method used to determine the numbers in Srebrenica-related graves?

 7        A.   The minimal number of individuals is a calculation done to

 8     express at least the bones or the remains I have that I exhumed,

 9     excavated or I have, at least how many people do they represent.  If you

10     bear with me, I will now go on the complex side of things because it is

11     slightly complicated but not impossible to understand, nevertheless.

12             If we have a grave that contains 50 cadavers, the way to find out

13     how many people are represented in that grave would be to do a head

14     count.  You just count them and you've got 50.  However, if you do have a

15     grave in which people are not complete and what you have is a combination

16     of complete bodies and parts of bodies, legs, arms, heads, how would you

17     choose -- or what method would you choose to count them?  Let's take an

18     example.  Imagine you have a right leg and a left leg.  Would you count

19     them as one or would you count them as two?  Because obviously each of

20     the legs can belong to a different person or they can belong to the same

21     person.  So the minimal number of individuals would count them as one.

22     So we will only use, for example, the right leg.  So you have 50 right

23     legs and you've got 50 people, irrespective of the fact that maybe the

24     left leg or the number of left legs could be from different people but

25     you do not count them.  So it's a minimal number.  But let's add another

Page 7226

 1     level of complexity to this.  We are fine with the legs.  But let's

 2     assume for a moment that all these 50 right legs are of adults, adult

 3     individuals, so which is fine.  But what would happen if, in addition to

 4     that, we find some other remains, not legs, could be arms, could be

 5     skulls, that belong to children?  Obviously those children would also

 6     need to be counted and added to this minimal number.  And maybe these

 7     children are not represented by the right leg but are represented by some

 8     other kind of bone.  For example, the sternum, a bone that lies here in

 9     the middle.  That is not a paired bone, it's a unique bone.  So in that

10     case, you would count those three sternums and would add them to the 50

11     right legs that are adults, because the other ones are children, so your

12     MNI, your minimal number of individuals, will be 53.

13             So in other words, the minimal number of individuals is a way to

14     account or to explain what this assemblage of remains or how many people

15     are represented by that assemblage of remains.  And as its name

16     indicates, it is an underestimation, it is not an overestimation, it's an

17     underestimation.  It's a minimal number so it is likely that the real

18     number is higher, but we would rather err on the side of underestimating

19     than overestimating.  I don't know if that is clear.

20        Q.   It's certainly clear enough for me and this is obviously covered

21     in great detail in your prior testimony and in your reports, so I won't

22     ask for any further detail.  But can you say when you reached the figure

23     of 2.541 as the smallest number of victims across these

24     Srebrenica-related graves exhumed between 1996 and 2001.  Is the process

25     you've described basically the process that you followed in arriving at

Page 7227

 1     that figure?

 2        A.   Yes.  But there is an issue of clarification that needs to be

 3     introduced here.  The report you are mentioning, with the number of 2.541

 4     is a further calculation of the MNI.  In other words, actually, the title

 5     says, "Calculating the minimum minimal number of individuals," would be

 6     the MMNI, if we have to come up with an acronym, and if I may explain the

 7     Court what it means because just not to create confusion.

 8             In that report, that is the final report, if I'm not mistaken,

 9     that I have submitted, I'm trying to merge, to come up with a single or

10     on consolidated figure of at least how many people ICTY may have been

11     recovering over the years.  As you know, the level of complexities that

12     people were first buried in primary sites, so in a grave, people were

13     buried in a grave, then people were removed from that grave and their

14     remains were scattered in a number of smaller graves.

15             So one person could be spread out throughout many graves, the

16     head in one place, an arm in one place, a leg in another place.  Okay?

17     Through a number of scientific analyses that I've referred to and done by

18     other people, but they are referred to in the reports, primary graves and

19     the so-called secondary graves were linked, for example, through soil

20     analysis.  At the moment these bodies were removed from this grave, the

21     soil came along and was deposited in a secondary grave, so the soil here

22     and here were the same.  So a link was established.  Okay?

23             So based on that, we have to recalculate the minimal number of

24     individuals linking this primary and secondary sites in order not to

25     overestimate the real number of people represented by the remains that

Page 7228

 1     have been recovered.  So, for example, if site 1 was a primary site, and

 2     site 2, 3 and 4 were the secondary sites, I would need to find a common

 3     denominator between all those sites to calculate the minimal number of

 4     individuals.

 5             That was level 1.

 6             And level 2 was that after I have calculated that merged number,

 7     I will need to calculate a minimal number of individuals based on all the

 8     remains for all the sites after being merged.  So the figure of 2.541 is

 9     the most conservative, not to say extremely conservative figure of at

10     least how many people were recovered.  Because if I just added all the

11     numbers, it would have been much more than that.  And that would not be,

12     I mean, scientifically correct.

13        Q.   And just for clarification on the record, although we don't need

14     to see it on the screen, am I correct that the report which I mentioned

15     and where you referred to the figure of 2.541, is your January 2004

16     report; is that correct?

17        A.   Yes, it is.

18        Q.   And that is, for the record, P938.  Mr. Baraybar, at the time of

19     your work on Srebrenica-related graves and victims, was it possible to

20     conduct high volume DNA analysis to identify the individuals?

21        A.   Not in those days.  Remember that the International Commission

22     for Missing Persons, who have been the leading DNA provider and analyser,

23     so to call it, in the Balkans, started the operations, the massive

24     operations, much later.  I mean, I wouldn't give you an exact date but

25     from my recollection, well into the 2000s.  I mean when they started --

Page 7229

 1     I mean when they got pretty much state-of-the-art technology and

 2     protocols that allowed them to work with high volume of samples.  DNA

 3     analysis in that kind of scale is something very new, it's something of

 4     the last, I mean, ten years if so.

 5        Q.   Are you aware of the DNA identifications that have subsequently

 6     been made, using samples taken from the remains in the Srebrenica-related

 7     graves?

 8        A.   I'm not privy to any specific information.  I know it from

 9     newspapers and that, but I have not read or seen or examined any

10     documents pertaining to that.

11             MR. ELDERKIN:  Thank you very much, Mr. Baraybar.  And I have no

12     further questions for you at this time.

13             JUDGE FLUEGGE:  Thank you very much, Mr. Elderkin.  Now we move

14     to Mr. Tolimir and his cross-examination.

15             Mr. Tolimir.

16             THE ACCUSED: [Interpretation] Thank you, Mr. President.  May

17     God's peace reign in this house and may God's will be done and not

18     necessarily mine in these proceedings.

19                           Cross-examination by Mr. Tolimir:

20        Q.   [Interpretation] Good afternoon to Mr. Baraybar.

21             THE ACCUSED: [Interpretation] Good afternoon to everybody in the

22     courtroom and around the courtroom.

23             MR. TOLIMIR: [Interpretation]

24        Q.   You were involved in the excavation of mass graves and the expert

25     analysis of the material that was excavated, I'm sure that this was a

Page 7230

 1     team work which involved quite a number of different experts.  Could you

 2     please tell us briefly how that team functioned?  And what was the

 3     relationship between the experts on the team and what was their

 4     respective role?  Thank you.

 5        A.   Certainly.  The typical exhumation team was composed by

 6     archeologists/anthropologist and I say slash because it depends on what

 7     educational system you have been trained.  For example, in the

 8     United States, archaeology is a subdiscipline of anthropology; while in

 9     other countries, Europe, for instance -- in many countries in Europe,

10     archaeology is a discipline in itself.  So the field would have these

11     archeologists/anthropologists, a photographer at least, a scene-of-crime

12     evidence technician taking care of the evidence and logging the evidence

13     as we would collect it, and obviously logistics support.

14             At some point after 1997, I believe, we were able to get some

15     facilities at the grave sites such as showers and things of the like.

16     Therefore, there was an engineer that was assisting with the logistics.

17     Before that, in 1996, we had a backhoe, an excavator operator, there were

18     people supporting the team.  The more -- the typical team, again, and per

19     table, to make it simpler, would consist of a pathologist [Realtime

20     transcript read in error "anthropologist"], an anthropologist, an autopsy

21     technician.  And people that were pretty much doing multi-tasking would

22     be scene-of-crime officer, a photographer, sometimes the scene-of-crime

23     officers were doing those two things.  And in some occasions as well, you

24     may have an anthropology assistant.  There were people helping out

25     cleaning or preparing some of the specimens.

Page 7231

 1             JUDGE FLUEGGE:  Mr. Elderkin?

 2             MR. ELDERKIN:  I hesitate to interrupt but having cleared up one

 3     mistype in the previous testimony, I see that in page 14, line 5, we have

 4     a team consisting of an anthropologist, another anthropologist.  I think

 5     the word "pathologist" was used but it would probably help for the record

 6     to clear that up.  I apologise, I said page 14, it's page 15, line 5.

 7             JUDGE FLUEGGE:  Yes, we have two times anthropologist.  But I'm

 8     not sure -- I would like to ask the witness.  The sentence reads as

 9     follows:

10             "The more -- the typical team, again, per table to make it

11     simpler, would consist of an anthropologist, an anthropologist, and

12     autopsy technicians.  And people that were pretty much doing

13     multi-tasking would be scene-of-crime officer," and so on.

14             Were you referring to anthropologist and pathologists or

15     anthropologists and archeologists.

16             THE WITNESS:  The right order would be pathologist, comma,

17     anthropologist.  So pathologist first, an anthropologist, and autopsy

18     technicians.

19             JUDGE FLUEGGE:  Thank you very much.  That makes it clear.

20             Mr. Tolimir, please carry on.

21             THE ACCUSED: [Interpretation] Thank you, Mr. President.

22             MR. TOLIMIR: [Interpretation]

23        Q.   Mr. Baraybar, could you please tell us whether during your

24     engagement as a member of the OTP, when you worked on the Srebrenica

25     case, did you have a superior who gave you tasks and to whom you

Page 7232

 1     reported?  In other words, somebody who was your boss while you were an

 2     OTP member.  Thank you.

 3        A.   There were different times in which I had different roles and I

 4     will explain that to answer your question.

 5             In 1996, as I said before, I was part of the scientific support

 6     unit.  This unit was headed by Dr. Andrew Thompson, so he was my boss.

 7     In 1997, I became chief anthropologist.  However, the mortuary, at any

 8     point in time, was always headed by a pathologist.  Therefore, that

 9     person, and there were many of them, were my bosses.  In some other

10     occasions, as the years passed, I became chief archeologist.  Therefore,

11     I responded to the Prosecution team that would task me with the recovery

12     of a certain site.  Not that they would direct my technical work.  They

13     would just task me.  And as chief anthropologist again, when I have to go

14     back to the mortuary, I will be under the chief pathologist.  That would

15     be my boss as well.

16        Q.   Thank you.  So far we've had an opportunity to hear something

17     about the relationship which exists between a pathologist and an

18     anthropologist.  Was there any co-operation between your pathologist and

19     your anthropologist?  You said that your profession is actually an

20     anthropologist and then you joined the team as the head of that team, so

21     can you tell us whether there was any co-operation between the two in

22     your team and if that was indeed the case, what did that co-operation

23     constitute of?

24        A.   There was always co-operation primarily because examining remains

25     was and is, still is, a joint effort.  So when a pathologist is

Page 7233

 1     specialised and deals with soft tissues, obviously in ideal

 2     circumstances, a pathologist will deal with cadavers, with human

 3     cadavers, where they have organs and fluids, a pathologist will need and

 4     do need an anthropologist to work on tissues that are not his or her

 5     expertise, such as bones.  Therefore, the autopsy was done as a joint

 6     effort.  And primarily because we rarely encounter remains that were

 7     preserved enough as to conduct a classical autopsy, as you know, a

 8     classical autopsy would consist in opening the three cavities:  The

 9     neural cavity, the chest, and the abdomen.  That obviously the remains we

10     were confronted with were extremely decomposed.  They may be partly bone

11     and part decomposing soft tissues.  So there was a lot of co-operation,

12     yes, because we have to work together.  I mean, there is no way to

13     separate things in a way.

14        Q.   Thank you.  Mr. Baraybar, sir, in your report about the

15     anthropological examination of mortal remains, we find not only the data

16     that resulted from your anthropological analysis but also specific data

17     about mass graves which are considered primary as opposed to the

18     secondary graves.

19             My question, based on that, would be this:  Did you personally

20     participate in the exercise to establish which mass graves were primary

21     graves or -- and which ones were secondary graves, or did you just take

22     over that information from the archeologists?  Thank you.

23        A.   Just to be clear, are we referring to the report of December 8,

24     1999?

25        Q.   Thank you.  I believe that that's mentioned in all your reports,

Page 7234

 1     that there is reference to primary as opposed to secondary graves.

 2     That's why I wanted to know whether you personally participated in the

 3     exercise to establish which graves were primary and which graves were

 4     secondary graves, or did you simply receive that information from your

 5     archeologists?  That was my question, sir.

 6        A.   I did participate in a number of exhumations, and through those

 7     exhumations I was able to learn what was a primary grave and what was a

 8     secondary grave.  From then on, if I did receive information on the site

 9     or the exhumation of a site where I have not participated, and they refer

10     to primary or secondary, then I knew what we were talking about.

11     Primarily because the parameters defining a primary or a second site were

12     well-established and I did participate in understanding what were those

13     parameters.  Do remember that I did participate in exhumations from very

14     early on, in 1996, and that is how I got to learn these kind of things,

15     yes.

16        Q.   Thank you.  A lot can be concluded from your answer.

17     Mr. Baraybar, sir, in some of the graves you found bodies which were not

18     integral, which were not complete.  In some previous testimonies, we

19     heard that each body part that was found was subject to analysis.

20             My question is this:  Based on the position of mortal remains in

21     the graves and on some other criteria, did you try to join the different

22     parts of the body to form one whole?  Thank you.

23        A.   The attempt to piece body parts together would not be done at the

24     site.  And I will explain you why in a moment.  However, in the mortuary,

25     whenever possible, we looked at photographs or maps or even correlative

Page 7235

 1     numbers of body parts to see whether those body parts could belong to the

 2     same person.  And, as a matter of fact, in some cases, we succeed at

 3     piecing together some parts, primarily on base of clothing that has been

 4     torn.  Why you cannot do that during the exhumation?  Because the

 5     exhumation is a process where you're recovering things in reverse.  If I,

 6     to give an example, if I open a hole and put a number of people inside,

 7     and I cover it, me, as the archeologist, is doing the work in reverse.

 8     I'm first taking the fill, that is the last thing I put, and then getting

 9     to the bodies in reverse order as they were deposited.  So my objective

10     there is to record things as I see them and recover the associations that

11     I can -- I can see, not to move one piece from one end and another one

12     from another end and that.  However, if there is something as obvious as

13     that, that I have an arm on one side and the other arm on the other side,

14     I will take note of it so the people in the mortuary will be able to know

15     what I saw and put it together.

16        Q.   Thank you.  This means that a lot of significance was given to

17     the notes based on the observations made at those graves, yes or no?

18        A.   No, but I have to tell you more than no.  The recording system at

19     the exhumation site was much more comprehensive than notes.  There were

20     forms to be filled in per body or body part.  There were pictures, and

21     also there was mapping.  The mapping that evolved also with time is a

22     system by which you will take different points on the body or body part,

23     to then represent them within the grave.  So there is a wealth of

24     documentation beyond notes.  Always, the person that was in charge of the

25     excavation would have a notebook but that is -- there is a standard

Page 7236

 1     archaeological procedure but irrespective of those notes, that would be

 2     like a register of the accounts of the day and specific ideas that you

 3     may have when you are excavating, there was an individual record per body

 4     or body part that would follow the remains all the way through the

 5     mortuary.

 6        Q.   Thank you, Mr. Baraybar.  And now, please tell us, or, rather

 7     explain one of the sticking issues in this case, something that is not

 8     completely clear to any of us, I believe.

 9             As for the purpose of your analysis, how many bodies had to be

10     completed or how complete one body had to be in order for that body to be

11     considered complete?  Thank you.

12        A.   The difference between a body and a body part, because that is --

13     I understand -- that is -- I presume what you're trying to ask me because

14     that is in most of the reports, the term body and body part.  A complete

15     body would be a unit that would be composed of at least 75, between 70

16     and 75 per cent of its parts, meaning or rather namely torso,

17     extremities, and likely head, or the complete body, minus an arm or a

18     leg.  A body part would be exactly the opposite.  A body part would start

19     from a single hand bone to, for example, a torso, a legs, one and a half

20     legs, part of a skull.  But I can concede to you right now that there

21     isn't a scientific or metrical or quantitative way to determine what is a

22     completes body and what is a body part.  As a matter of fact, in some

23     cases, people in the field would determine that a body part was an almost

24     complete body and then once it got to the mortuary, the pathologist would

25     say, You have an almost complete body for me.  This is a body, not a body

Page 7237

 1     part.  And then the record would be changed from BP, body part, to B, as

 2     in body.  Having said that, the type of analysis or the detail in

 3     recording what was there or collected would not change.  There is no

 4     different treatment, so to speak, to any type of remain by its

 5     completeness.  We did not discriminate on how to approach remains as per

 6     they were complete or incomplete.

 7        Q.   Thank you.  As part of this question, did you have any instances

 8     of a head being found and then marked as a body part?

 9        A.   Yes, yes, I'm totally sure, yes.

10        Q.   Thank you.  And as we know that every body has but a single head,

11     how did you then connect that head to a body and on what basis?  What was

12     the criterion?

13        A.   As I explained you, we did not attempt to connect body parts

14     unless there was sufficient evidence that one part of the body would

15     connect with the other part of the body.  And as a matter of fact, in

16     forensic practice I would not try to fit a head on a headless body,

17     because the only link between the two would be the joint at the first

18     cervical vertebra, and that is not the most convincing of evidences to

19     say this head belongs to this body, if we are talking about bones.

20     However, what you have to bear in mind is that, yes, we did find skull

21     pieces that were considered to be body parts, but we rarely, rarely found

22     a complete head.  Whenever we found the head, was totally fragmented,

23     such as in the picture you saw before.  In only very few cases you could

24     find a head, a complete head.  And as I said before, if there was any

25     attempt to connect that head to a body, you would need to have a number

Page 7238

 1     of criteria leading you to establish an association, an extreme case

 2     would be having a body, and a complete head, a few centimetres above it

 3     or away from it that you could say that it was reasonable enough to

 4     assume that the head had been separated from the body by a number of

 5     reasons, of course, and it could be associated together.  But would the

 6     mortuary have the final word in saying that actually trying every

 7     possible thing this head may belong to this body or not.

 8        Q.   Thank you, Mr. Baraybar.  Can we now see in e-court Exhibit D938

 9     or P938?  This is a report by Mr. Baraybar on the minimal number of

10     persons exhumed by the ICTY from 1996 to 2000.  Thank you.

11             JUDGE FLUEGGE:  May I take the opportunity to put a question to

12     the witness in the meantime?  We have heard another expert witness who

13     said, in his understanding, a body comprises more than 50 per cent of a

14     complete body.  This seems to be quite logical.  Now you said today that

15     in your way of working, you define a body at least 70 to 75 per cent of a

16     complete body.  This is, I think, a very careful estimation, but -- or

17     calculation.  You added that there is no acknowledged standard how to

18     define a complete body or a body.  What is the reason for the difference?

19     Can you help me with that?

20             THE WITNESS:  Well, Your Honour, I think the debate has been

21     going on for many, many, years.  And I believe that we have come to terms

22     of agreeing to disagree with other colleagues.  While we were working at

23     the exhumation, you have to make sometimes certain decisions because

24     every piece of evidence, be a body or be an artefact has been numbered or

25     given a code.  And when it came to body parts, you have to define what

Page 7239

 1     would be a B or a BP; a body or a body part.  And there were a number of

 2     considerations there, and I think that one of the main considerations

 3     would be the likelihood that that unit would be able to yield some

 4     information, some useful information, and eventually of course be

 5     identified.  And it was very difficult to define how far would you go

 6     with a body part or how far would you go with a body.  Because you could

 7     have a hand or you could have a hand with the arm and half of the torso

 8     or maybe the torso with an arm.  And how would you call that a body or a

 9     body part?

10             In my case, I settled very much for a body to be a much more

11     complete unit, a much, much more complete unit.  So it was a body minus

12     certain parts.  But anything below that would be a body part.  And the

13     other issue that comes out of this is, in not being a sort of a

14     scientific way to define it, is that this situation was so new.  Prior to

15     1996, I would dare to say no one had been encountering the sheer volume

16     of fragmented people or people, I mean, shredded to pieces.  And the

17     first logic is to call it body part.  But, I mean, the first day we

18     coined that term, I don't think we actually knew what were the boundaries

19     of that because every site would pose further levels of complexity.  Just

20     to share with you what this means is that imagine that there were some

21     sites that the preservation of the remains were such that the flesh and

22     the fat has turned into what we call adipocere.  It's like a body wax, so

23     to speak.  So you had limbs, and obviously you could distinguish limbs as

24     body parts if you have an arm or a leg, but there were other sites where

25     the remains were totally skeletonised.  There were only bones, not even

Page 7240

 1     articulated.  So they all were body parts and could range from, as

 2     I said, one hand bone to half a skeleton.  So I would say that, yes,

 3     I stick in a way with my definition, understanding that we will have some

 4     disagreements, so to speak.  But for me, in any way, a much more semantic

 5     disagreements because the analysis is not dependent in a way on the

 6     integrity of the remains.  As a matter of fact, because the integrity of

 7     the remains, and this variability on the integrity of the remains is that

 8     we have calculated, for example, the minimal number of individuals rather

 9     than counting arms or legs and units of the kind.

10             JUDGE FLUEGGE:  Thank you very much for that explanation.

11     Judge Nyambe has a question.

12             JUDGE NYAMBE:  I just want some information, if you have, in

13     relation to the team with which you worked.  Was there someone in your

14     team who would be responsible for securing the scenes of crimes, say the

15     graves?  By securing, I mean preserving them as items of evidence.  Did

16     you have such a person in your team?

17             THE WITNESS:  Since 1996, we had a security presence on the

18     grounds to obviously keep the site intact, from anybody coming after we

19     have left.  In 1996, I recall that the problem there was is that NATO, at

20     the time IFOR, if I'm not mistaken, was reluctant to guard the graves.

21     They would say they were there to be protection to the people, meaning

22     the team, us, but not to guard any grave.  So in those days, we used to

23     sleep next to the graves, to force the soldiers to guard us and the

24     graves.

25             Luckily for us, in the years that came later, ICTY provided a

Page 7241

 1     permanent security detachment from The Hague or another office to

 2     actually guard the site after hours.  And as I said, these also saw some

 3     improvement in the conditions of work, having, for example, showers, they

 4     were something quite necessary, and then these guards could actually

 5     physically stay there and protect the integrity of the evidence that we

 6     left behind.

 7             JUDGE NYAMBE:  After you left, was there an attempt then to also

 8     secure the sites in the sense that the future generations of people

 9     wanted to visit the site, they would clearly see where the grave was and

10     the location?  Thank you.

11             THE WITNESS:  No, Your Honour.  We did not.  All the sites were

12     actually excavated and then back-filled, primarily because the areas

13     where we excavated we did not know were public property or public

14     property, and we did not know either nor we wanted to cause any problems

15     for the population living in the area by, for example, leaving an open

16     hole and these holes were sometimes quite deep and could get filled with

17     water so it could be dangerous for a child to drown or something of the

18     kind.

19             So we did not leave anything -- anything open.  But I would like

20     to just to let you know something I remember now, that pertains somewhat

21     to your first question, and is that during 1996, and 1997, although in

22     1997 we did not dealt with a case pertaining to this trial, there were a

23     number of security issues and we had to evacuate the sites in many

24     occasions because of -- there were riots by the civilian population and

25     we have to literally run out of the site and this happened at least one

Page 7242

 1     occasion in 1996, or at least one occasion I can remember, if not two, my

 2     memory, I mean, falls me a bit.

 3             JUDGE NYAMBE:  Thank you very much for your explanation.

 4             JUDGE FLUEGGE:  Judge Mindua has another question.

 5             JUDGE MINDUA: [Interpretation] Witness, Mr. Baraybar, I have a

 6     question, a qualification regarding terminology.  In the transcript, on

 7     page 194, I'm looking at the line 4 on page 194, so lines 4 to 6, you are

 8     talking about the skeletised body parts or the skeletised body, the

 9     overall remains of the skeletal body, which are nothing but bones,

10     non-articulated bones.  And which make the body.  The question that I

11     have for you is this:  I would like to know when would that be an entire

12     body, without soft tissues and without fluids?  So when would that be an

13     entire body?  Would that be actually an entire body or just a body parts.

14             THE WITNESS:  May I reply in French?  It would be easier for me.

15             JUDGE MINDUA: [Interpretation] Of course you can, yes.

16             THE WITNESS: [Interpretation] Thank you.  When I spoke about body

17     parts, irrespective of the fact whether it was a skeleton or whether it

18     still retained some soft tissue, when we referred to body parts, we do

19     so, we refer to body parts because these are somebody's remains.  Those

20     remains may be bones, they may be larger parts, larger parts of the body,

21     like legs or arms.  It can be the skeleton, or it also can be tissue.

22             The actual stage in which a part of the body is, is of no bearing

23     at all on the actual state of preservation of a single part, if I have

24     been clear.

25             JUDGE MINDUA: [Interpretation] Thank you.  Yes, you have been

Page 7243

 1     quite clear.

 2             JUDGE FLUEGGE:  May I put the same question very simple way for a

 3     better understanding of myself?  Skeleton without any soft tissues, is

 4     that a body or a body part?  I mean a complete skeleton.

 5             THE WITNESS:  A complete skeleton is a body.  It's definitely a

 6     body.  And, Your Honour, just to, I mean, be more purist, if I may,

 7     obviously in a complete skeleton, considering there is no soft tissues,

 8     it is likely that little parts like the finger bones will be lost, but

 9     will still be a body.  It will be an exaggeration to expect to find a

10     skeleton with every single bone and nails, that would be an almost

11     impossibility in those conditions, in a grave with dozens of people.

12             JUDGE FLUEGGE:  Thank you very much.

13             Mr. Tolimir, please carry on.

14             THE ACCUSED: [Interpretation] Thank you, Presiding Judge.  Thank

15     you, Judges.  I thank all the members of the Trial Chamber for helping us

16     clarify this issue.  Can we now see, please, page 5 in the Serbian

17     language and page 4 in the English language of the document which

18     I requested previously?  In the English, this is the last part, the last

19     portion above the numbers 1, 2 and 3.  Thank you.

20             MR. TOLIMIR: [Interpretation]

21        Q.   Yes, we now have it.  I'm quoting a part of this report:

22             "The purpose of this report is, however, to provide the minimum

23     number of persons exhumed from the Srebrenica graves between 1996 and

24     2001.  In order to calculate such a figure, a number of assumptions were

25     proceeded from.  First, whenever multiple grave sites were thought to

Page 7244

 1     contain victims from the same event, they were merged together and then

 2     merged again with the remains found in secondary sites.

 3             "2.  All primary and secondary sites were merged.

 4             "3.  In order to merge the remains from all the grave sites, the

 5     same bones had to be used in all counts.

 6             "The minimal number of persons, of individuals, was established

 7     on the basis of the age structure and therefore not always the same bones

 8     were used to calculate the distinct intervals."

 9             THE INTERPRETER:  The interpreters do not have the English page

10     on the screen.

11             MR. TOLIMIR: [Interpretation]

12        Q.   "Fifth, the most frequent types of bones were obtained from

13     primary grave sites and were used for the secondary ones."

14             Did I understand correctly that in item 1, you're actually

15     referring to two assumptions, the first one that the victims actually

16     were the victims of the same event and the second is a -- assumption is

17     that of their merging with the remains found in secondary grave sites?

18        A.   The way I see it is that we referring to event as the

19     relationship between sites, in this case primary and secondary sites,

20     that have been linked by a number of scientific tests that has been also

21     referred to in my reports and have been done by other people.

22             I do not know if I'm answering your question, because that is

23     what I understood from your question but you may please -- I mean, ask me

24     again to clarify.

25        Q.   Thank you.  We shall clarify it by this question.  Seeing as you

Page 7245

 1     are an anthropologist and not a military expert or an OTP investigator,

 2     can you tell us who gave you the information on the basis of which you

 3     assumed that the victims from the different graves were -- actually came

 4     to grief in the same event, were the victims of the same event as is

 5     stated under item 1 here?

 6        A.   As I said, I do not mean event but by any other type of event

 7     that for me is the relationship between a primary and a secondary site.

 8     So I will provide you with some examples of how I got to the conclusion,

 9     as a matter of fact not me, but based on those reports, that sites were

10     linked.  Among the evidence that I quote are the reports of Dr. Brown,

11     who did the analysis of soil, as I explained before, comparing the soil

12     found in primary sites and in secondary sites.  Discovering the soil was

13     the same, and this was established as a link.  But let me be more

14     specific because that may lead to confusion.  And I'll try to be very,

15     very simple in this explanation because it is quite complicated,

16     I understand that, and I hope you can bear with me.

17             I want to take a totally hypothetical example to make it easier.

18     Imagine you have a grave that is dug in sand or a sandy soil.  You put a

19     number of people inside and you cover it.  Sometime afterwards, I go in

20     and excavate these bodies, trying to empty this grave, to, I presume,

21     destroy the evidence or hide it or something.  And I will remove the

22     bodies with an excavator, and put them in a truck, take it away and go to

23     another location where the soil is a clay soil, totally different, not

24     sand but clay.  I will open a hole in the clay, and then I'm going to

25     take my bodies in the truck and put them back into that hole.

Page 7246

 1             Obviously, since I have used excavators to remove the bodies, I'm

 2     not only removing bodies, I'm also removing the soil that is with the

 3     bodies.  So that sand now has been redeposited into a hole that was dug

 4     in clay.  So when I dig that secondary site and I find that sand, I will

 5     say, Well, this sand does not belong here because it's clay.  So

 6     Dr. Brown examined those kind of links, and through those links he was

 7     able to establish that there were sites that were linked and if they were

 8     linked, that is what I refer to as an event.

 9             In other words, if I find an individual in grave A that is a

10     primary grave, and other pieces in grave B, that is secondary grave

11     I would say they are linked and they are part of the same event.  It

12     doesn't mean, and I'm not implying that this happened at the same time,

13     that is that the same day they bury them, the same day they open a

14     secondary grave, That is not what I'm talking about.  Event I mean as

15     this link.

16        Q.   Thank you.  Thank you, Mr. Baraybar.  Please be so kind as to

17     explain this also.  In item 1, you also refer to the collecting of the

18     remains in a single spot and I presume that is done by experts.  Tell me,

19     was this the physical relocation of bones to a single spot and if that

20     had been the case, who did that and under whose supervision were the

21     bones thus collected in a single place?  Thank you.

22        A.   You refer, sorry, you refer item 1 on page 4 of the report, in

23     the English version?

24        Q.   That's right.  That's right.

25        A.   There may be a translation issue.  When I mean merging, I mean

Page 7247

 1     calculations.  I'm not talking about physically putting bodies together

 2     between primary and secondary sites.  This is referring to merging

 3     numbers.  I may -- if you wish, I may expand on this to make it very

 4     clear.

 5        Q.   Thank you.  I would be grateful if you could expand and make

 6     things a bit clear.  Thank you.

 7        A.   We are talking here about how to come up with a number, right?  A

 8     minimal number of individuals.  So let me explain exactly what I mean.

 9     And we are going to take another hypothetical example, that is pretty

10     much what I'm saying here.  This is not hypothetical but I would like to

11     take a hypothetical example just to illustrate this.

12             We have a primary grave, for this matter a grave, that contains a

13     number of people, let's say 100 people for simplicity.  At some point in

14     time, I go in and I scoop out some of the contents of this grave, or most

15     of the contents or all the contents of the grave.  But let's assume that

16     I scoop out 80 people, okay?  And I leave 20 people behind.  But these 20

17     people behind that I'm leaving behind in the grave may be totally cut up

18     in pieces because, as I said I'm using a machine, I'm not going in with a

19     trowel and a brush.  I'm actually excavating so that what I may leave

20     behind is a number of body parts or incomplete remains that represent 20

21     people.  Then I do open five other holes and those 80 people will be now

22     spread or scattered through these five holes, some pieces here, some

23     pieces there, some pieces there.  The question is:  How would I be able

24     to calculate the minimal number of people represented by hole 1, the

25     primary site, and the five other holes?  First, I need to know that the

Page 7248

 1     sites are related.  How do I know that?  Through, for example, soil

 2     analysis, as Dr. Brown did.  So site 1 was excavated in sand and then

 3     I found the same sand in a clay matrix in five different holes.  So

 4     condition 1 is fulfilled.  The sites are related.

 5             What I now need to do is to try to merge, in terms of numbers,

 6     some to come up with figure that represents all these six locations,

 7     number 1 and five others.  So if I , for example, was to do a minimal

 8     number of individuals per grave, say, in the grave 1 I may have 20, okay?

 9             But, for example, in grave 1, the secondary -- grave 2, sorry,

10     the secondary grave, I may encounter that the most common bone or body

11     part is the right leg, while in the other one was the left arm.  And then

12     I move to another secondary site and I will find that the right foot is

13     more common, and so on and so forth.  So if I was to just add the numbers

14     that I would get in each of the graves, my total would likely be higher

15     to the original number of people that were in that grave, that was a

16     hundred, as I said.  I may come up with 130 because if I just add

17     different frequencies of different things, I'm not counting the same

18     thing.  So by merging, I mean that I have to find a common denominator

19     among all the graves, the primary grave and the secondary grave, so if it

20     is a right leg so the right leg will be.  And based on that, I will

21     calculate the minimal number of individuals.  Therefore, my final number

22     will be a very conservative number that is an underestimate of the real

23     number of people that were found in the grave.  Otherwise, I will be very

24     liberal, and being very liberal I will be increasing or swelling up the

25     real number of victims that were there.  I do not know whether that was

Page 7249

 1     clear.

 2             JUDGE FLUEGGE:  Thank you very much for your answer.  We must

 3     have the first break now, Mr. Tolimir, and we will resume 20 minutes past

 4     4.00.

 5                           --- Recess taken at 3.51 p.m.

 6                           [The witness stands down]

 7                           [The witness takes the stand]

 8                           --- On resuming at 4.23 p.m.

 9             JUDGE FLUEGGE:  Mr. Tolimir, please continue.

10             THE ACCUSED: [Interpretation] Thank you, Presiding Judge.

11             MR. TOLIMIR: [Interpretation]

12        Q.   May I ask, Mr. Baraybar, to explain to us paragraph number 5?

13     Actually, item number 5 in the paragraph which I quoted.  You say the

14     most frequent type of bone was the derived from the primary sites and

15     then applied to the secondary sites.  Please be so kind as to clarify

16     this to us.  Thank you.

17        A.   Of course.  As I explained before, we were able to define what

18     was a primary site and what was a secondary site.  Following this line of

19     thought, if a primary site is a place where bodies were disposed in the

20     first place, and from there removed, to be placed in secondary sites, any

21     calculation should originate at the primary site.  And while this is a

22     totally arbitrary decision, it is the most logical decision, not to

23     overestimate the number of bodies you may be counting.  So you would say

24     that whatever was the most type, common type of bone in the primary site,

25     the place where everything originated from, you would use the same type

Page 7250

 1     of bone to calculate your MNI in retrospect, so on the secondary sites.

 2             So if in site 1 you had the left leg bone as the most common

 3     bone, that would be the bone you will be using throughout the secondary

 4     sites.  With the exception, of course, as I mentioned at the beginning,

 5     that you had, for example, individuals of another age that were not

 6     represented by these left legs.  So, for example, you may have a right

 7     arm of somebody that was on a totally different age than the previous

 8     example I gave you.  So if all these left legs were of adults and you

 9     happened to have a right arm of a child, that would count as one.  But

10     you will use the same type of bone starting from the primary to the

11     secondary.

12        Q.   Thank you, Mr. Baraybar.  And now could we look at page 4 in the

13     Serbian language, paragraph 1, and page 4 in the English language, also

14     paragraph 1.  We are talking about the MNI and when you talk about the

15     MNI, you defined this as the minimum number of individuals necessary to

16     explain all of the elements of the collection of the remains.  And you

17     point to the origin, White, 1991, page 278, and did you find this?

18             JUDGE FLUEGGE:  Mr. Tolimir, would you please check the number of

19     the page in English again?  Is that the right one we have on the screen?

20             THE ACCUSED: [Interpretation] It's the first paragraph on the

21     screen.

22             THE INTERPRETER:  The microphone was not on.

23             JUDGE FLUEGGE:  Thank you very much.

24             THE WITNESS:  The answer is yes.  In other words, the minimum

25     number of individuals is the number that you need to account for all the

Page 7251

 1     pieces that you have found, but it is, yet again, as its name implicates,

 2     a minimal number, not a maximal number, so something would be totally

 3     different would be that you were estimating the maximum number of

 4     individuals in which you would need to account for every possible piece

 5     as potentially representing somebody else.  But, yes, it means that if I

 6     have an assemblage of bones, of remains, the minimal number would account

 7     or would tell me at least how many people those bones represent.  So the

 8     answer is yes.

 9             MR. TOLIMIR: [Interpretation]

10        Q.   Thank you.  Could you please explain, or could you please tell

11     us, who Mr. White is and which of his publications are you referring to

12     in here?  I don't see his publication in the bibliography of the works

13     that you used while compiling your report.  Thank you.

14        A.   You're totally right.  His name is not listed here.  But it may,

15     hopefully, be listed elsewhere and let me find out for you.  If I'm not

16     mistaken, it's a book called "Human Osteology."  Mr. White is a quite

17     well known physical anthropologist who works in a number of

18     archaeological and paleoanthropological sites throughout the world who

19     has extensive experience working with fragmentary remains, hence he's

20     quoted in this -- in this report.  But you are totally right, I have

21     omitted the quotation, as I have seen also many typos and things of the

22     kind, regrettably, but thank you for pointing that out to me.  I'm trying

23     to see whether I have quoted it anywhere else.  And it seems I haven't,

24     as a matter of fact.  It is -- I have overlooked to include that quote.

25     Let's see.  I'm not losing the hope that it may be at least in another

Page 7252

 1     report.  Nope.  It seems I have not quoted Mr. White, but the book will

 2     be called "Human Osteology."

 3        Q.   Thank you, Mr. Baraybar.  And now could you tell us whether all

 4     mortal remains had to find their place when you determined the minimum

 5     number of individuals, or, rather, did you take into account only

 6     particular parts of each of the skeletons?  Thank you.

 7        A.   I did not understand the first part of the question.

 8        Q.   I'll repeat.  Thank you.  Did every mortal remain have to find

 9     its own place when you set out to determine the minimum number?  Or did

10     you take into account only particular parts of the skeleton?  If we look

11     at your previous answer, you said that a minimum number is necessary to

12     define the assemblage of your remains.  And my question is whether every

13     part of the assemblage had have to find its own place?  Thank you.

14        A.   Okay.  We prepared inventories of every single bone in the

15     skeleton.  The minimum number of individuals was calculated by seeing

16     what was the most frequent bone or part of bone in all those inventories.

17     Just to give you an idea of how exhaustive this process was made,

18     whenever you had a long bone, for example the leg bone, we did record

19     whether the bone was complete, meaning whether the top part that was

20     called the proximal part, the middle part and the distal or the end of

21     the bone was complete and we would say, 1, 1, and 1, that would be the

22     value of 1, means presents and 0 would be absent.  Because in some

23     occasions, the minimal number was calculated based on, for example, the

24     upper part of the leg bone from the right side, so all I'm trying to say

25     is that we did not only do a count, like how many legs or how many this,

Page 7253

 1     but we subdivided bones inasmuch as possible in the most discrete units,

 2     to make the calculations.  So if I'm understanding your question

 3     correctly, the answer is yes, we have exhausted recording every possible

 4     recordable thing, and based on that, calculate the minimal number, so

 5     it's not been a kind of leg count or hand count or something.  It's using

 6     very discrete categories.

 7        Q.   Thank you, Mr. Baraybar.  Please, what I see here is that when

 8     you determined the minimum number of individuals, you used several

 9     reports.  My question is this:  Do you know if anybody else but you

10     carried out any analysis in order to establish the minimum number of

11     persons in order to perhaps double check your results or for some other

12     reason?  I don't know which.

13        A.   I do not know whether anybody else has attempted to recalculate

14     what I have done.  That I do not know.  In my case, what I can say is

15     that these calculations are totally arithmetic.  They are not complex

16     calculations of any kind.  There is no statistics.  There is no

17     projections.  It's just pretty much sums and subtractions of numbers.

18     This information that has been done obviously on a number of reports, and

19     has not been very easy, has been done once and again and again and again

20     and again, because in adding all these numbers sometimes you would --

21     I mean, get it wrong for -- you do a wrong calculation and you get two

22     more or one less, and numbers didn't then fit.  But as per your question,

23     if somebody else has done this?  Not that I know of.

24        Q.   Thank you.  Therefore, during the period that your report refers

25     to, are you saying that this should be the MNI 2.541 as you stated during

Page 7254

 1     the examination-in-chief?

 2        A.   Yes.  The final minimal -- minimal number of individuals, meaning

 3     after we have merged every possible piece of information we had until

 4     that date, meaning January 2004, the number will remain at 2.541.

 5        Q.   I apologise to the interpreters.  Mr. Baraybar, before 2004,

 6     before you submitted this report, did you hear any criticism of the

 7     methodology that you used in order to establish your MNI or not?

 8        A.   No.  I've heard many criticisms regarding many things but not

 9     that specifically, no.

10        Q.   Thank you.  I'm interested in professional criticism, criticism

11     coming from your fellow professionals who deal with the MNI

12     establishment.

13             THE ACCUSED: [Interpretation] Can we now see page 6 of the report

14     in Serbian and in English?  We are interested in establishing the age of

15     the bodies.  Thank you.

16             MR. TOLIMIR: [Interpretation]

17        Q.   You can see the page in front of you.  And you say, and I quote.

18     This is from your report:

19             "Age was estimated, in other words age was estimated."

20             My question is this:  The results that you obtained while

21     establishing the age, were they just estimates?  And if so, how reliable

22     those estimates are?

23        A.   When you deal with remains of any kind, what you perform is an

24     estimation.  Age has -- there is two types of aging, if we can call it

25     that way.  One is chronological aging, that is the one that would be on

Page 7255

 1     your ID card, the day you were born and you can calculate how many years

 2     and months and days and even hours and whatever unit you want to use to

 3     estimate your chronological age.  However, when you do have a body, you

 4     estimating biological age.  Biological age is how your body looks like.

 5     That's a very simple way to put it.  So let me give you an example.  If

 6     you -- if we were looking at, for example, the knee joint to estimate

 7     age, that is not the case, and you happen to be a soccer player, at the

 8     year 35, your knee will look like you were 80 because the wear and tear

 9     of your activity.  That is why we use certain elements that are known to

10     change with age.  For example, as in this case, the fourth rib or the

11     pubic symphysis.  All estimates are subject to variation and that is why

12     you cannot provide a specific pin-point age.  You cannot say this person

13     is 44.5 years or 44 years, six months, and three days.  Obviously you

14     cannot.  Therefore, the estimate is an estimate that is given within a

15     bracket, because you know that that bracket would provide you what is

16     called accuracy.  It would not provide you precision.  It would provide

17     you accuracy.  So to give you an example, it would be accurate to say

18     that all individuals within this courtroom are between - I'll be

19     generous - 10 and 100 years.  We are totally accurate.  But we are very

20     imprecise.  Precision will be to give the specific age estimate of each

21     of the persons in this courtroom.  Likewise, dealing with remains, our

22     estimates have to be based on very robust techniques, and robust I mean

23     that I cannot use a standard for aging remains that has been based on two

24     cases or five or ten.  I have to use samples that statistically make a

25     difference.  And this means that the bracket estimate I get is a bracket

Page 7256

 1     estimate with some confidence, speaking statistics, would be a confidence

 2     interval, meaning that most of the times I'll be right and only sometimes

 3     I'll be wrong.  That's what statistics mean at the end of the day.  So,

 4     yes, it is an estimate, but the validity of the estimate is based on the

 5     type of techniques that we have used to estimate age.

 6             So age has not been estimated by, let's say, eyeballing, by

 7     picking up a bone and saying well, to me, it's like 35.  And that is not

 8     science.  And that is why you would appreciate that how conservative we

 9     have been with age estimation, perhaps too conservative, meaning that

10     there is a large number of people that fall on the interval 25 and plus.

11     That in terms of forensic cases, if you had one case, let's assume that

12     you working in the mortuary and you have only one case, it will be

13     totally absurd to say this person is anywhere between 25 and plus, could

14     be 25 and a hundred.  Could be half of the population.  However, why did

15     we do that?  Because it's a robust standards for aging could only be

16     observed in certain parts of the body, not in all parts of the body.  So

17     if I found a hand or a foot or a piece of a leg, maybe then I would only

18     be able to say this is an adult, there is no features of being somebody

19     younger, it's an adult, but how old is this person, I do not know.  And

20     this was different if I found a piece of the body where I could observe

21     the techniques I have listed here that we have used, in which case you

22     could be more precise.  In the rest of the cases you only would be

23     accurate.

24        Q.   Thank you.  Thank you, Mr. Baraybar.

25             In the first passage you describe the methods that you used for

Page 7257

 1     identification or, rather, for establishing the age of the bodies, and

 2     you are probably referring to scientific publications and their authors.

 3             My question is this:  Are these methods generally accepted at the

 4     time when you carried out your research, were there any other methods

 5     used in order to establish the age of the mortal remains?  Thank you.

 6        A.   As a matter of fact, there are plenty more of techniques that can

 7     be used to age human remains.  And that is not the issue.  The issue is

 8     whether those techniques have been developed in populations that could be

 9     called forensic populations, that bear some kind of resemblance, at the

10     very least, with the population we are dealing with.

11             In other words, what would be the use for me to, for example,

12     apply some of the techniques that were available at the time and still

13     are by Professor Lovejoy and colleagues from Case Western Reserve

14     University?  While these techniques are very comprehensive, the

15     population from which they were derived is a prehistoric, native,

16     North American population from Ohio.  So it is obvious that I would not

17     be able to apply a technique derived from a prehistoric North American

18     population to a contemporary European population.  That would be

19     unscientific.  On the other hand, all the techniques that were used here

20     have been derived from either forensic populations, for example Suchey --

21     the Suchey-Brooks technique is a technique that was derived from a sample

22     from the office of the coroner in Los Angeles county, very large hundreds

23     of individuals dying in Los Angeles.  It's a contemporary population.

24     Likewise, the Ishian [phoen] loss technique; while Smith, for example,

25     for the dental classification of the teeth is derived from a number of

Page 7258

 1     samples that were pulled together but all of them are from recent -- I

 2     mean, living, as a matter of fact, children.  So all I'm trying to say is

 3     that not because there are techniques available, you can use them all.

 4     Because not all of them may be applicable.  Because many of them could

 5     have been derived in populations that do not fit into the criteria that

 6     we looking for, meaning a recent population.  It is extremely unwise to

 7     simply extrapolate results from one setting and blindly applying to

 8     another.  Because then what we going to get are results that are totally

 9     meaningless.

10        Q.   Thank you, Mr. Baraybar.  To explain this in full, you say what

11     is referred to by Simmons et al in 1999 were modified.  Actually this

12     Suchey-Brooks and symphyseal phases were modified using the

13     population-specific standards for Bosnians described by Simmons et al.

14     My question is:  What are symphyseal phases, that's one; and secondly,

15     what are population-specific standards for Bosnians?  Thank you.

16        A.   How to explain you.  A little bit of mimic because I don't have

17     any other means to show you.  The pubic symphysis is, if I can stand up

18     for a second, is this part here.  So you got your pelvis that has two

19     sides, right, and they meet right here.  So if you actually touch here,

20     you're going to feel something that is like a boney part.  So the pubic

21     symphysis are the two faces that meet like this and you're looking at

22     this face.  There is a -- not a cartilage but a fibrous component between

23     the two, okay, and you're looking at this face.  This face that is like

24     this, changes with age in males and females.  So the older you get there

25     is a number of changes.  And --

Page 7259

 1             JUDGE FLUEGGE:  Mr. Elderkin.  Sorry for interrupting.

 2             MR. ELDERKIN:  I'm sorry for interrupting as well, both you,

 3     Mr. Baraybar and to General Tolimir.  If it would help, and I don't know

 4     if General Tolimir wants to use it, but Prosecution Exhibit P1050 shows a

 5     graphical picture of a pelvis and if the description is going to get any

 6     more complicated than we just saw, it would certainly help me and perhaps

 7     others to have that image available for the description.

 8             JUDGE FLUEGGE:  Especially for the accuracy of the transcript

 9     that would be helpful if we can get that on the screen.

10             Mr. Gajic.

11             MR. GAJIC: [Interpretation] Mr. Elderkin has told us that the

12     witness would perhaps like to see this in hard copy and we do have a hard

13     copy, so if the usher could hand it over to Mr. Baraybar, if that would

14     be of any assistance.

15             JUDGE FLUEGGE:  Very well.  Then Mr. Baraybar could explain the

16     last part of his answer.

17             THE WITNESS:  Yes, can I colour the screen here to show you

18     exactly so you can all see it?  So the pubis is this, okay?  The pubic

19     symphysis is exactly this that you cannot see it because actually -- can

20     I erase this again?  For some reason these are -- it's just -- for some

21     reason, it doesn't -- do you see this like -- let's try again.

22             Okay.  Well, left of that line I had drawn, you can see another

23     line in black.  Can you see that?

24             MR. TOLIMIR: [Interpretation]

25        Q.   Yes.

Page 7260

 1        A.   Okay.  So that is the pubic symphysis, but remember that the

 2     pubic symphysis is protected by this piece of fibrous tissue that you can

 3     see there, okay?  So what you see in the drawing is this:  Imagine that

 4     you open it like this, so the pubic symphysis is that phase there that is

 5     covered on the illustration.  Does it help?

 6             JUDGE FLUEGGE:  It helps and just for the record, first, the

 7     witness drew a circle, explaining the subpelvic angle; is that correct?

 8             THE WITNESS:  Angle, yes.

 9             JUDGE FLUEGGE:  Angle, yes, of course.  And later on a line

10     indicating the pubic symphysis, both in red.

11             If that is not correct, please correct me.

12             THE WITNESS:  The line is slightly displaced.  I mean, the line

13     I was trying to draw is -- should be actually to the left, slightly to

14     the left, to overlap the line that is on the drawing, but for some reason

15     I'm not able to draw it over the line I want.

16             JUDGE FLUEGGE:  Mr. Tolimir, are you tendering this part, sketch?

17             THE ACCUSED: [Interpretation] Thank you.

18             THE WITNESS:  So the second part of the question regarding this

19     population-specific standard, a population-specific standard means that

20     I'm deriving a way of doing things, like in this case of -- to changes in

21     the pubic symphysis from a population that is known.  So the study by

22     Simmons comprises 241 males from the Tuzla morgue, these are people,

23     I mean, dying and being autopsied in the Tuzla morgue.  So this

24     constitutes a statistically significant sample to observe these changes

25     in the pubic symphysis from people from Bosnia.  Therefore a

Page 7261

 1     population-specific sample.

 2             JUDGE FLUEGGE:  Mr. Tolimir?  Are you tendering this picture with

 3     the drawing?  With the markings?

 4             THE ACCUSED: [Interpretation] Thank you, Presiding Judge.  We are

 5     grateful.  I should only like the witness to say for the transcript

 6     whether these Simmons standards are generally accepted standards for the

 7     establishment of age at the moment of death on the basis of mortal

 8     remains.  Thank you.

 9             JUDGE FLUEGGE:  Mr. Gajic?

10             MR. GAJIC: [Interpretation] Your Honour, I should just like to

11     apologise.  It is Simmons in the transcript.  We should like to ask the

12     witness to spell the name of this standard exactly so that it could be

13     faithfully recorded in the transcript.

14             THE WITNESS:  It's Simmons.  It's S-i-m-m-o-n-s, Simmons.

15             JUDGE FLUEGGE:  Now it's corrects correct on the transcript and

16     this marked sketch will be received as an exhibit.

17             THE REGISTRAR:  With the exhibit number D131, Your Honours.

18             THE WITNESS:  Yes, at the time when all these studies were made,

19     it was a valid correction of the Suchey-Brooks technique.  Remember this

20     standard was a correction only for the pubic symphysis, so it's not an

21     all-out aging standard.  It's something that refers to a specific

22     technique on a specific bone.  And obviously this standard now has been

23     improved on further in 2008 that was not relevant for the time the report

24     was produced but obviously and luckily science progresses and

25     improvements can be made over the years.

Page 7262

 1             JUDGE FLUEGGE:  Now a question from Judge Nyambe.

 2             JUDGE NYAMBE:  Yes.  I just want to ask more specifically since

 3     you mentioned the fact that you also worked in ICTR, Rwanda, would the

 4     population-specific standard go down to ethnic identification, for

 5     example?  In the case of Rwanda, would you be able to identify the bones

 6     being Tutsi or Hutu or Twa?

 7             THE WITNESS:  It is nothing to do with ethnicity as such but

 8     something we call biological affinity, that has nothing to do with

 9     ethnicity.  But it is a fact that, for example, the rate of maturation,

10     let's assume, for example, females, the rate of maturation of females is

11     different between, for example, Africans, North Americans, Europeans and

12     even Latin Americans.  If you, for example, live in a high altitude place

13     like in my country, if you live at 4.000 metres above sea level, you will

14     develop fully but you will be shorter, because your system, that is

15     extremely intelligent, is deciding that what you need is to complete

16     yourself as a functional human being in detriment of stature, for

17     example.  So these details are very important because I cannot go to the

18     Congo and apply Peruvian standards because maybe I'll be underaging or

19     overaging people in the Congo, and if I take Congolese standards to Peru,

20     it would be the same thing.  My people will look much younger than what

21     they are and maybe they are older because, for example, they are smaller.

22     So it has nothing to do with ethnicity, in that regard.  And, of course,

23     the specific issue of Rwanda would deserve another session to discuss but

24     I fully appreciate the very intelligent question, Your Honour.

25             JUDGE NYAMBE:  Thank you very much.

Page 7263

 1             JUDGE FLUEGGE:  Mr. Tolimir.

 2             THE ACCUSED: [Interpretation] Thank you Judge Nyambe.  Thank you,

 3     Mr. Baraybar.

 4             MR. TOLIMIR: [Interpretation]

 5        Q.   Bearing in mind what you have just said in response to

 6     Judge Nyambe's question, please tell us whether on your team there had

 7     been persons who had earlier dealt with the establishment of the age of

 8     persons at the time of death, persons who originated in Bosnia and

 9     Herzegovina?

10        A.   None of the people that worked in the teams had been doing any

11     research, if that is what you're asking, regarding the Bosnian population

12     or population of the Balkans, I mean not in those days, not that I can

13     recall.  I'm sure -- I mean nobody had.  Maybe later but not at the time.

14        Q.   Thank you.  I was rather interested, in fact, whether on your

15     team there had been persons with experience in estimating the age of

16     persons from Bosnia and Herzegovina in this particular context, in view

17     of what you've just said in relation to Rwanda.

18        A.   Yes.  But okay, I may need to clarify this.  The issue is not

19     whether you are experienced in working with a specific population,

20     because the standards are the same.  In other words, all us human beings

21     share the same characteristics.  In other words, there is no -- I mean,

22     phenotypical differences in the pubic symphysis, whether I'm looking at

23     an African person or a Latin American person or a Bosniak or Russian, or

24     whatever, it doesn't really matter.  Our bone structure are pretty much

25     the same in that respect.  It's not whether I'm an expert in looking at

Page 7264

 1     Bosnian pubic symphysis because the pubic symphysis is the same no matter

 2     where I am.  What changes is the age brackets associated to each of these

 3     categories.  So, for example, if we were to divide, as it is divided,

 4     this technique into six phases, phase 1 for a Peruvian population could

 5     be an interval between, let's say, 16 and 23 or something of the kind.

 6     Maybe for the Balkans it will be 18 to 25.  And maybe in Africa would be

 7     16 to 19.  And maybe elsewhere something else.  But the features are the

 8     same.  So it doesn't really matter whether you have experience in that

 9     population.  There is no special quality you could observe in a given

10     population that will tell you, yes, I mean, this definitely will be

11     different.  I mean, no.

12        Q.   Thank you.  You have partially responded to what I also meant to

13     ask you now, but let us now look at page 10 in Serbian and page 8 in

14     English of this report.

15             THE ACCUSED: [Interpretation] That is Exhibit P938.  Thank you,

16     Aleksandar.

17             Thank you.

18             Here we have a table or, rather, we do not have it right now in

19     front of us, but it will reappear on the screen so that we can see it.

20     Page 10 in Serbian and page 8 in English, please.  Thank you.

21             Could we also have page 10 in Serbian?

22             Well, the figures are the same anyway.  We see a table here.  The

23     age brackets are indicated at the top, from 8 to 12, from 13 to 17, from

24     15 to 24, 25 plus, et cetera.

25             MR. TOLIMIR: [Interpretation]

Page 7265

 1        Q.   Can you explain to us why is this specific age -- why was this

 2     specific age bracket taken, 15 to 24?  How is it scientifically

 3     justified?  How is it scientifically relevant, that specific age bracket,

 4     in order to establish the time of death?

 5        A.   The -- as I explained at the beginning, we are estimating

 6     biological age, and that means that we would create a bracket, an

 7     interval, within which the age of the person should be.  That is the way

 8     to be accurate.  These four stages correspond to developmental stages

 9     that are observable.  I will give you an example.  How did we come up

10     with the age of 8 to 12?  Okay.  Eight to 12 means that the person cannot

11     be or should not be, that is better to say, should not be older than 12,

12     nor younger than 8, okay?  How is it characterised?  Well, is it

13     characterised by some features of the teeth?  And how certain teeth have

14     grown?  And that is based, for example, on the standard by Smith that I

15     have quoted here from 1991 or 1981.  Well, you know that an individual

16     that had, for example, the first molar, one of the back teeth, that has

17     grown up to a certain extent, you know that that happens within this and

18     that year.  Not before not after.  That's one thing.  If you combine this

19     with, for example, the pelvic bone, the same -- I mean the pelvic bone

20     that we saw before, the pelvic bone between 8 and 12 is actually

21     separated into three parts.  And only later on is that fusing to become

22     one part.  Okay?

23             So if you find these elements together with size, for example,

24     you would say comfortably that this person is within that age bracket.

25             But beware.  This does not mean that an individual that was

Page 7266

 1     between 8 and 12 could not in absolute terms be in the next interval of

 2     13 to 17, okay?  But what do I mean by this?  If I decided to put it in

 3     the interval 8 to 12, it's because there is enough elements that made

 4     this person a young person, and if I decided to put somebody in the next

 5     category, it's because there is enough elements that make this person

 6     older than the previous one.

 7             Now, I'm totally conscious that it is meant to be an overlap

 8     because we are talking about brackets, intervals, not chronological age.

 9     So somebody between 8 to 12 could be 12.9, but I have no way to know it.

10     All I know is that based on all these elements, and I'm observing, it is

11     most likely that this person falls in this category rather than the other

12     one.

13             And that is why you see this division.  So it is not a division

14     that a -- a capricious division that I decided to invent to see what do

15     I do with all these people?  I put some here and put some there.  All of

16     them are supported by specific morphological elements that reflect what

17     I explained the Judge a moment ago and that is this developmental

18     patterns.  Likewise, somebody who is 25 plus is somebody who has

19     everything fused.  You know that children are very plastic, you know.

20     They are very plastic.  It's very easy to dress them, I mean.  As a

21     matter of fact, you see the clothing of a baby is very small and then you

22     say, How I am going to fit this baby?  And the baby is very plastic.  Why

23     is that?  Because the bones are composed primarily by cartilage, and when

24     this bone unit replaces the cartilage, the individual grows by the ends,

25     by the extremities.  So it means that the extremities of the bones until

Page 7267

 1     puberty, more or less, are open, are separated.  And when you become an

 2     adult they become fused.  So by the same token, if I find a leg that is

 3     totally fused, I know that this person must be at least 25 years of age.

 4     But I do not know if the person is 23.5.  Because there is bound to be

 5     variability.  That's a fact.  I don't know whether I'm answering your

 6     question.

 7        Q.   Thank you.  Please explain to me what is the scientific

 8     explanation or justification for this range, 15 to 24, because it seems

 9     quite big, and while we are on this subject -- on the subject, there are

10     two age brackets shown in the table, 13 to 17 and 15 to 24, and they

11     overlap in 13 to 17 and 15 to 24 overlap.  Can you explain that too to me

12     so those would be two questions.

13        A.   The variation of the age ranges had to do primarily, if we

14     compare this from 1996 and after, by the increase in the number of body

15     parts that we were finding and the inability in some cases to be more

16     precise in our age estimate.  So, for example, some of the elements I've

17     been telling you compromise a number of bones, teeth and long bones, for

18     example, but in some cases you would find only one or the other.  So it

19     will be very difficult to combine these elements.  That is one factor.

20     The second factor is that these age ranges are also made in order to

21     consolidate some of the data that was collected in 1996, and the data

22     collected in 1996 did not follow a specific order of organisation.  Many

23     of them were spreadsheets with the individual ages given by

24     anthropologists per case, so what we need to do is to take these hundreds

25     of cases and present them in some kind of fashion, because otherwise what

Page 7268

 1     I would have provided you with is hundreds and hundreds and hundreds of

 2     reports for you to figure out how many people you had and what age

 3     distribution.

 4             So this overlap that you see there reflects also that.  They are

 5     not as big as you think.  But they reflect two types of situations.  The

 6     13 to 17 is an individual characterised as a young juvenile, somebody in

 7     the early puberty, while the second category is somebody evolving to the

 8     late part of the puberty.  So if we are to imagine for a moment what

 9     would you expect to find in the bone, in the first category of 13 to 17

10     will be an individual which long bones are still growing, that the

11     epiphysis, I mean the parts, the extremities that articulate of the bone

12     would be separated, totally separated, while when looking at the second

13     category, you'll be looking at a bone that has almost completed growth,

14     with partial fusion of these extremities.  That would be - obviously I'm

15     oversimplifying things - some of the features.  But there is bound to be

16     some overlap, and where are we getting the information for the cutting

17     point?

18             The information for the cutting point is obtained from standards

19     of the fusion of a number of bones, from a very large, and I would say

20     the only one available, forensic sample that used American soldiers that

21     died in Korea, and some in Vietnam as well but primarily Korea.  This is

22     a sample that include a variety of biological affinities, people

23     classified as Hispanics and people from Oriental ancestry,

24     African Americans, a number of people.  But this is the only

25     comprehensive sample that exists to date pretty much.  That is Stewart --

Page 7269

 1     McKern and Stewart, and that is listed in the bibliography.

 2        Q.   Thank you, Mr. Baraybar.  Could you please tell us whether there

 3     were any cases where you found only parts of bodies in a grave, and did

 4     you have a problem then to establish the age, if you only found parts of

 5     a body?  How did you manage to establish their year of birth, their age

 6     in general?

 7        A.   As I said before, age, estimation is limited by how complete the

 8     remains may be.  I mean, some cases, not some, but many cases all you

 9     were able to say is that this person is an adult; young adult, middle

10     adult, senile, impossible to say.  You had a bone, for example, that was

11     all fused and you couldn't say anything else.  So it did happen.  But

12     I mean that is why these categories from 25 onwards are so broad.  25

13     plus could occupy half of a population.  We couldn't say more.  However,

14     it's easier to age younger people, because younger people have much more

15     elements of unfused parts, of growing parts, that are much more visible.

16     But all the people, meaning a generic adult, is virtually impossible if

17     you have, of course, this -- a body part or a bone, a rib, a clavicle, if

18     everything is fused all you can say is it's an adult.  That's it.

19        Q.   Thank you.

20             THE ACCUSED: [Interpretation] Could the Court please produce

21     page 9 in e-court.  Page 9 in Serbian and page 7 in English.  The title

22     is, "The age of bodies" and I'm going to quote a part of that text.

23     Thank you.

24             We don't have it yet.  No, no, we do, we do.

25             I can see it actually.

Page 7270

 1             MR. TOLIMIR: [Interpretation]

 2        Q.   "Age," it says here:

 3             "This review combines data collected over a number of years using

 4     different aging standards.  During the 1996 to 1999 campaigns or, rather

 5     to 2001, most aging indicators were derived from modern North American

 6     populations.  Only after 1999 population-specific standards were used."

 7             My question is this:  The data obtained before 1999, could they

 8     be updated based on some previous reports, photos, or a review of the

 9     bones in order to apply a unique criterion to establish the age of the

10     remains?  Thank you.

11        A.   Yes, it would.  But let me -- so everybody is clear regarding

12     this.  When I say the different aging standards means only one thing.  In

13     1996, they applied in addition to the standards we have been using

14     throughout, some other observations.  But the common element throughout

15     the years is the fourth rib, the pubic symphysis and all that as

16     explained in these reports.  In 1996 it added some other observations.

17     Some people were looking at, for example, if I'm not mistaken, I mean,

18     it's my pure recollection here, they were looking at the fusion of the --

19     of some part of the vertebra for subadults, okay, for example.  But we

20     found, or I found, that that study had a very small sample, population

21     sample, to begin with, so it wasn't very robust and also it depended to

22     find a spine and that wasn't always the case, and some specific vertebra

23     in the spine, not the whole spine but just some specific vertebra.  As

24     for your question whether we could now revisit everything, yes, it is

25     possible.  The question is:  What would we obtain?

Page 7271

 1             The variation that exist between the estimates of Suchey-Brooks

 2     that is based on North American multi-racial, as they call it, population

 3     from Los Angeles and the Bosnian standards is that according to the study

 4     of Simmons, people look slightly older per phase.  So if phase 1 as

 5     I said in North American population is - I'm just making this up - 15 to

 6     20, in Bosnia would be 17 to 23, for example.  Okay?  The range.

 7             But if we do that, then we would need to use an even more robust

 8     population-specific sample that was published only in 2008 and is based

 9     on 891 cases that combines Kosovo, some of Bosnia and some of Croatia, so

10     it's a very robust thing, but again the differences per phase would be

11     extreme.  It's not that phase 1 suddenly becomes a year 50 years old, I

12     mean that is not the case.  There are differences, but I mean they are

13     settle differences.  Then would it be reflected in these estimates?  No,

14     it would not.  Because the people that are 25 plus will remain 25 plus.

15     You will be more precise, not more accurate.  So as per the young people,

16     this will -- these will remain where they are because that technique I'm

17     telling you about is a technique dealing with the Suchey-Brooks technique

18     for the pubic symphysis, not with anything else.  So, yes, you could do

19     it, but you'll get pretty much back to the same results because these

20     categories have been kept as wide as possible exactly to avoid that type

21     of problem.  Because it will be too pretentious to be precise when you

22     have only bits and pieces to work with.  You're not talking about

23     complete cadavers but primarily body parts.

24        Q.   [Microphone not activated]

25             JUDGE FLUEGGE:  Your microphone, please.

Page 7272

 1             MR. TOLIMIR: [Interpretation]

 2        Q.   Thank you, Mr. Baraybar.

 3             THE ACCUSED: [Interpretation] Could the Court please produce

 4     page 7 in Serbian and page 6 in English?  We are interested in the part

 5     which speaks about gender and how to establish the gender of any mortal

 6     remains.  Could this be blown up for the witness?

 7             MR. TOLIMIR: [Interpretation]

 8        Q.   In the last sentence here, where it says sex, in the last

 9     sentence of this paragraph, you say:

10             "When dealing with body parts or isolated bones, only the

11     morphology of the pelvic girdle was used in determining sex."

12             My question is this:  Was it just this method and its application

13     that led to the determination of the gender of a number of persons, while

14     the gender of some other persons remained undetermined?  Thank you.

15        A.   Yes.  As you know, the safest way to sex a body will be with

16     external genitalia.  Because the expression of sex in the skeleton, at

17     least, could vary from people that are -- that -- for example, for males,

18     from people very masculine features, I mean boney structure, to people

19     that may be very gracile.  So if you are looking at the bones of people,

20     you could be confused in some cases.  Therefore, when you only have

21     bones, you have to start with the pelvis.  And why is that?  There is a

22     reason for that.  The reason being that there is a structural and

23     functional difference between the female and male pelvis.  The female

24     pelvis is prepared for child bearing or child birth, while not the male

25     one.  And this will cause structural differences that would make possible

Page 7273

 1     to differentiate male from females.  If I do not have the pelvis, I would

 2     use the skull, but the skull already is much less efficient to

 3     discriminate between males and females because there are no structural

 4     differences or functional differences between the female and male skull.

 5     If I don't have a skull, I would use the long bones, but long bones means

 6     that I assume that men are taller and more robust than women and women

 7     are shorter and more gracile.  But that is totally absurd because in a

 8     specific population, it could be the reverse or it could be that women

 9     are carrying out tasks that men carry in other populations.

10             So how would I be conservative?  By simply sexing feet and hands

11     and whatever, or just concentrating myself on the most robust indicator

12     and that is why we have a tremendous number of undetermined individuals,

13     meaning obviously the sex of that body part is something that can be

14     known but we cannot grasp it, we cannot extract it from those remains

15     because they are very incomplete.  So yet again, we are erring on the

16     side of conservatism in terms of estimates.

17        Q.   Thank you, Mr. Baraybar.  The fact is that in a population of the

18     same ethnic origin, there are people who are all smaller built or bigger

19     built.  Some people who are shorter and taller, of different body shapes

20     in other words.  Do these differences have an impact on determining how

21     old was the person at the moment of death?

22        A.   It does, but it depends as well what type of feature I'm looking

23     at.  As I gave you the example at the beginning, if I'm examining people

24     that were playing soccer, these people at 35 will have the knees of

25     somebody of 70 or 80, so if my indicator for age will be the wear and

Page 7274

 1     tear of the knee, what I would be concluding would be totally spurious.

 2     But, for example, the pubic symphysis is an area that is not subject to

 3     specific stress, so to speak.  Obviously there is differences in women

 4     regarding child birth and all the rest of it, but I mean -- or the fourth

 5     rib is not an area that I'm actually using, it's an area protected by

 6     cartilage and I'm only breathing pretty much.  But other parts of the

 7     body that if I was looking at them and trying based on that to estimate

 8     age, it will be totally wrong.  And believe it or not, it would have been

 9     very tempting to use some age indicators that have been derived from

10     prehistoric or medieval populations in Europe where they used, for

11     example, the amount of leaping of the vertebra of the back.

12             You may have heard about this parrot beak, meaning that the

13     vertebral bodies have this overgrown and sometimes you got back pain

14     because it's piercing a nerve.  But, of course, if you look at somebody

15     who is been carrying weights all his life, let's take as an example

16     somebody from my country, somebody working in a farm that is carrying

17     tremendous weights since age 8 or 10, this person at 20 will look

18     skeletally much older if I'm looking at the spine, for example.

19             But if I'm looking at other areas that are more discrete and that

20     are changing with age irrespective of work, it will be totally different.

21             Hence, the choice of the standards we have chosen.  Yet again,

22     more conservatism.

23        Q.   Thank you, Mr. Baraybar.  Do you know why, from 2001 onwards,

24     exhumations were given to the government of the Republic of

25     Bosnia-Herzegovina?  Does it have the same type of expert bodies as your

Page 7275

 1     team, the team that was involved in exhumations from 1996 to 2001?  And

 2     during that period, performed only 2.541 exhumations which shows how

 3     meticulous you were in your work?  In other words, will this development

 4     have an impact on the quality of the work performed?  Thank you.

 5        A.   Just a correction on the transcript here.  We did not perform

 6     2.541 exhumations.  We calculated a minimal minimum number, so MMNI, of

 7     individuals, of 2.541, just for the record.  Because in line 10, I

 8     believe, it says that we performed 2.541 exhumations.  I do not know,

 9     I think -- I mean I'm the wrong person to ask why the Tribunal gave -- if

10     it gave anything to the government of Bosnia to perform these things and

11     I'm not acquainted at all with the quality of work they do or anything of

12     the kind.  I have not been involved with their work nor been following

13     their work.  Very shortly after I was in Kosovo, so I have no more

14     knowledge than you.  All I know is from the media and things of that kind

15     but I have no comment to make regarding that.

16        Q.   Thank you.  You don't know anything that would explain why the

17     establishment of the MNI, as you corrected me, was taken out of the hands

18     of the OTP and given into the hands of the bodies of the Republic of

19     Bosnia-Herzegovina?

20        A.   I don't know.  No, I don't know.

21        Q.   Thank you.  Did the provider of the funds have anything to do

22     with that?  And the funds referred to in here are those applied to the

23     DNA analysis and other such methods used in your work.

24        A.   I don't understand the question.  I mean, the providers of what

25     funds have anything to do with what?  I don't understand.  You may

Page 7276

 1     rephrase or repeat your question, please.

 2        Q.   Thank you.  Was that restricted by the funds which are allocated

 3     to establish the final number?  Thank you.

 4        A.   I ignore if funds have anything to do with these calculations.  I

 5     mean, as I have said before, I was employed by the Tribunal and my duty

 6     was to prepare these expert reports, and I ignore I mean whether there

 7     were funds or not.  I mean, those kind of questions I think pertain more

 8     to the OTP than to me, in that respect.

 9        Q.   Thank you.  I wanted to hear that from you as an expert who was

10     engaged for a number of years.  I wanted to hear your opinion.  I would

11     like to thank you for all your answers that you gave me.  I would like to

12     thank you for all your explanations about the issues that I knew very

13     little before I met you today.  I wish you all the best.  I wish you

14     success in your future work.  Thank you.

15             THE ACCUSED: [Interpretation] Mr. President, this brings my

16     cross-examination to an end.  I would like to thank you for your

17     assistance as well as all the other staff that has been working in the

18     courtroom in the course of today's examination.  Thank you.

19             JUDGE FLUEGGE:  Thank you very much, Mr. Tolimir.

20             Mr. Elderkin, do you have any re-examination?

21             MR. ELDERKIN:  Your Honour, I have a few questions, yes.  I don't

22     know how you would wish to handle it, whether we should break a few

23     minutes early or try and --

24             JUDGE FLUEGGE:  What is your estimation, how many minutes do you

25     need?

Page 7277

 1             MR. ELDERKIN:  Around five to ten minutes.

 2             JUDGE FLUEGGE:  I think then we should try to do it before the

 3     break because we -- before we finish for today, I think.

 4             MR. ELDERKIN:  Very good.

 5                           Re-examination by Mr. Elderkin:

 6        Q.   Mr. Baraybar, in an answer to Judge Flugge when you were

 7     describing the difference between categorising remains as bodies or body

 8     parts, you said the difference was semantic.  Can you explain further

 9     what you mean by that semantic difference?

10        A.   The impossibility lies in how would you calculate an exact

11     percentage to -- for a body to be a body, or a body not to be a body.  So

12     even more beyond semantic, meaning semantic would be that I call a body

13     part where somebody else may say, No it is a body.  And it is almost

14     philosophical.  Another layer to add to it would be beyond semantics,

15     beyond what I call this or what do you call this?  I mean, put a -- a

16     cutting point, this is a body part and this is a body.  As I said, this

17     was a permanent -- almost a permanent debate.  In some cases, it

18     changed -- a body part would come out from the field a body part and then

19     you give it to the mortuary and become a body, for example, because a

20     pathologist may think that that is a body and not a body part.  I would

21     say it's almost an unsolvable problem.  You can see that body part is a

22     body part because a pice of somebody.  Because then when this somebody is

23     not a piece?  If I may explain it in that way.  So I would say that yes

24     there have been various or different arguments from different people to

25     call this that or something else, but the essence of what you looking at

Page 7278

 1     doesn't really change.  I don't know whether I'm explaining because it's

 2     very philosophical, but I don't know if I'm explaining it correctly.  Are

 3     you satisfied with the answer?

 4        Q.   I'm satisfied and I would follow up with a further question on

 5     the same issue.  For the purposes of your work, and in particular for the

 6     calculation of minimum number of individuals, does the categorisation of

 7     remains as body or body part have any consequence in that calculation?

 8        A.   None whatsoever.  I mean, none whatsoever.  Do remember that

 9     these charting with number 1 or 0 for present or absent happened on every

10     thing that was collected from the grave; from a complete body, that would

11     be 1, 1, 1 all over the place; or a piece of a body, that would be 1, 0,

12     0, 1, and so forth.  So no.

13        Q.   Now, you used a hypothetical example when you were describing

14     how -- the example of a soil sample present in secondary graves could

15     show a link to a primary grave.  All that was just a hypothetical, but it

16     seemed to me possible that, for example, you might have several primary

17     graves containing similar soil.  So are there other ways in which links

18     between primary and secondary graves could be identified and were

19     identified in the Srebrenica graves others than soil samples?

20        A.   Well, the information I was privy to obviously used a number of

21     lines of evidence to do that.  One was soil, the other one was pollen,

22     the other one were artefacts; for example, textiles that have been found

23     part in one grave and part in the other one, and they would match, you

24     see it's the same piece of cloth.  If I'm not mistaken, shell casings

25     demonstrated pretty much that all these casings had been fired by the

Page 7279

 1     same weapon and were found in the primary as well as the secondary sites.

 2     All possible, I mean, links were established, it was not only soil and

 3     pollen.  That is quite strong, I have to say, because it's not just

 4     solely by looking at the soil.  It's something very microscopic and

 5     detailed.  But, yes, we had many lines of evidence that pointed to those

 6     links.

 7        Q.   Do you know if DNA connections could be used as a way to link

 8     primary and secondary graves, for example, if bones from one individual

 9     identified through DNA analysis were to be found in two different sites?

10        A.   I mean nowadays, move definitely.  Nowadays you would use, I

11     mean, DNA to reassociate parts, and if, as you explaining me, say the arm

12     of somebody would be broken into five pieces and be in five different

13     places, you would be able to use DNA to do a bone-to-bone matching and

14     link all those pieces and would be yet another line of evidence to show

15     that the arm ended up inside 1, 2, 3, 4, 5, and are all part of the same

16     person.

17        Q.   You also spoke on cross-examination about one or more occasions

18     where you had to leave an exhumation site because there was some danger

19     from the local population.  Do you remember which site that was?

20        A.   Well, from the occasions I remember, back in 1996 was at site of

21     Lazete.  Obviously in 1997 happened again, but it has nothing to do with

22     this case.  In Brcko happened the same thing.  But 1996, I think at least

23     the one time I recall because actually we got stuck in the confrontation

24     was coming out of Lazete, that we have to really leave as we were.

25     I mean, and actually we could not cross the inter-entity boundary line

Page 7280

 1     because we got pretty much stuck on the Republika Srpska side and there

 2     was a confrontation with local population and the soldiers that were

 3     giving us protection.

 4        Q.   I don't know how familiar you are with the other local place

 5     names, but is the Lazete site you mention the one by an elevated railway

 6     line at a place called Orahovac?

 7        A.   Yes, yes, that's the one.

 8        Q.   Okay.  Now, the Trial Chamber has heard from other witnesses and

 9     reports about DNA testing being used to identify many thousands of

10     Srebrenica victims.  Given the unique nature of each individual's DNA,

11     does your process of MNI calculation serve any additional process when

12     dealing with these cases involving victims in mass graves?

13        A.   Remember that --

14             JUDGE FLUEGGE:  Just a moment.

15             Mr. Tolimir.

16             THE ACCUSED: [Interpretation] Thank you, Mr. President.  I have

17     no objections to the witness answering all these questions but I should

18     like to accentuate that this was not the subject of either the

19     cross-examination or of his expertise, this particular issue.  Thank you.

20             JUDGE FLUEGGE:  Mr. Elderkin?

21             MR. ELDERKIN:  I hope I was clear in my question as to be asking

22     the witness to explain exactly the area of his expertise which is the

23     purpose of the MNI calculation in view of where we are today, where DNA

24     information is available.  I'm not asking him as a DNA expert but as

25     somebody who handles this anthropological question.

Page 7281

 1             JUDGE FLUEGGE:  That was my understanding of your question as

 2     well.

 3             THE WITNESS:  It is likely that with further identifications, the

 4     MNI will change, but my prediction for that matter is that the MNI or the

 5     number will increase because as I said before, the minimal number is

 6     really a very conservative estimate.  If you are able now to reassociate

 7     body parts many of which were not used for the MNI, because you have to

 8     be very consistent with the type of bone you're using, it is highly

 9     likely the number will go up.  That's a commonsensical conclusion from

10     this issue.

11             MR. ELDERKIN:

12        Q.   Is there a separate purpose to the MNI calculation from the

13     purpose for which the DNA identification process is used?  Does it add

14     anything?

15        A.   Well, I mean, obviously a DNA adds something but let's put things

16     into context again.  When these calculations were done, there was no DNA

17     in the way we know it now, okay?  So you got a very fair and conservative

18     estimate regarding how many people would be represented by these remains.

19     Now we do have DNA.  What DNA will allow us to do is to increase the

20     number of people that fell through the cracks, so to speak, in these

21     estimation of the minimal number of individuals.  DNA would allow us to

22     do something that we should call a maximum number of individuals, meaning

23     you'll be able to reassociate all those parts that were not, I mean,

24     counted because they were not consistent with the type of bone we were

25     looking at.  So, yes, there is a point.  I mean, it's a major technology

Page 7282

 1     breakthrough that has to be used, obviously.

 2        Q.   So there is clearly, as you observe, an additional purpose

 3     because for DNA work that's being done now but looking at it in the

 4     reverse, does there remain a purpose for the MNI work that you have done?

 5     If the same hypothetical occurred now that you were called to investigate

 6     a mass grave, would MNI serve any purpose given the availability of DNA

 7     techniques?

 8        A.   Well, I'm going to answer you now, in very clear terms.  Well, of

 9     course DNA is available, if you can pay for it.  So I'm being very blunt

10     here because then you're drawing on my expertise beyond this Tribunal.

11     The MNI is a basic thing to lead further approaches such as DNA.  DNA is

12     yet an accessory technique, as many others, to prove or disprove

13     something, but you have to start from somewhere, to validate that

14     somewhere.  Your MNI is a somewhere where you start from.  What DNA will

15     do to your MNI is first it will confirm your MNI and then it will

16     increase it because you will be using also other parts that were not as

17     part of your original calculation of MNI.  But certainly, it's like

18     saying to an anthropologist whether bones would be of any use because we

19     have DNA now and certainly that's not the issue.  I mean, DNA contributes

20     and gives you a piece of the puzzle, so to speak, but all these processes

21     are totally valid and would have been done in the same way now, having

22     DNA.  A lot of this is the most basic groundwork that any anthropological

23     investigation has to do, be it the Balkans, be in Peru, in the Congo,

24     whatever.  And the issue, of course, understanding as well the issue of

25     DNA is an issue of resources.  I mean there is a number of techniques

Page 7283

 1     available but I would not say that all countries have access to them.

 2             JUDGE FLUEGGE:  Mr. Tolimir.

 3             THE ACCUSED: [Interpretation] Thank you Presiding Judge.  I said

 4     that the DNA was not the subject of either the examination or of this

 5     expertise.  I should now like to ask is the OTP contesting the minimum

 6     number as such?  Does this call in question the expertise of this witness

 7     and his final report?

 8             JUDGE FLUEGGE:  Mr. Elderkin.

 9             MR. ELDERKIN:  No, Your Honours, we are not challenging our own

10     witness.  We are presenting his evidence as called here live today and in

11     his reports and prior testimony.

12             JUDGE FLUEGGE:  Are there any more questions, Mr. Elderkin?

13             MR. ELDERKIN:  No, Your Honours and thank you very much for your

14     indulgence for those extra minutes and thank you to the interpretation

15     staff and other staff.

16             JUDGE FLUEGGE:  Thank you very much.

17             Mr. Baraybar, thank you very much for all the answers you were

18     able to give us and, indeed, I would join Mr. Tolimir, we have learned a

19     lot, and now you are free to return to your normal activities.  Thank you

20     again for your attendance here and your expertise.

21             THE WITNESS:  Thank you very much.

22                           [The witness withdrew]

23             JUDGE FLUEGGE:  Mr. Elderkin, Mr. McCloskey, is there another

24     witness available for half an hour today?

25             MR. McCLOSKEY:  Good evening, Mr. President.  I think it would be

Page 7284

 1     better if we just started with Mr. Janc in the afternoon tomorrow as

 2     opposed to trying to get something done today when I think it would be

 3     better to wait if we could.  It's not much time left really.

 4             JUDGE FLUEGGE:  Indeed.  I would agree.

 5             If there are no other matters to discuss today, then we have to

 6     adjourn and resume tomorrow quarter past 2.00 in this courtroom.

 7                           --- Whereupon the hearing adjourned at 6.00 p.m.,

 8                           to be reconvened on Thursday, the 4th day

 9                           of November, 2010, at 2.15 p.m.