100928IT

Page 5873

1 blindfolds.

2 Finally, at the Ravnice primary grave-site he found the bodies

3 were not buried, but lying largely on the surface, and thus greatly

4 broken up and scattered. None were blindfolded. The injuries were all

5 gun-shot, mostly multiple, but there were no blast injuries.

6 Your Honours, that concludes my summary. I now have a few

7 questions to ask Dr. Clark.

8 JUDGE FLUEGGE: Before you do that, I would like to mention that

9 in your first tendering move, you were not mentioning P919, the report of

10 the witness, but that was included in the decision of the Chamber, to

11 receive that as well.

12 MS. CHITTENDEN: Sorry, that was my omission. Yes, I would like

13 to include that. Thank you.

14 JUDGE FLUEGGE: It's clear for the record now. Please carry on.

15 MS. CHITTENDEN:

16 Q. Dr. Clark, what was your role as a pathologist in the Bosnia

17 exhumations in 1999 through 2001?

18 A. Well, as a pathologist, I was one of a number of pathologists

19 doing what pathologists do. That's to examine bodies, record our

20 findings in them, and secure any evidence from them. The main findings

21 were interpretation of the injuries on the body. So that was our primary

22 role, to look at the bodies, see what findings there were, particularly

23 describe the injuries, and then try and establish or provide a cause of

24 death.

25 And then, myself, I had a further role as chief pathologist, as

Page 5874

1 you described the various duties I had for that.

2 Q. And what were those specific tasks as chief pathologist?

3 A. Well, that was, as you've said, to make sure that the -- or

4 oversee the general running of the mortuary, the staffing, that we had

5 enough people, the -- I organised the sort of flow of work so that -- the

6 pace of work and the cases that we did. I acted as -- I offered advice

7 to colleagues and any others, and to just generally make sure that the

8 place worked well and efficiently. And as you said, probably my major

9 task was -- after all the practical work had been finished, was to look

10 through all the post-mortem reports and try and extract the relevant

11 information from them, and bring them to some coherent whole, which is

12 what these reports that are the overall reports I've produced are.

13 Q. Thank you. Dr. Clark, in your reports and in your prior

14 testimony, you explained the procedure at the mortuary when the bodies

15 were brought to be examined after being transferred from the grave-sites.

16 With the assistance of some photographs, I'd like you to briefly explain

17 that procedure to us now.

18 MS. CHITTENDEN: If we could have 65 ter 6593 in e-court, please.

19 If we can go to page 2 firstly. Thank you.

20 Q. Dr. Clark, can you tell us about what's happening in this photo

21 here?

22 A. I'm not sure how clear it is.

23 This is a very general view of the mortuary, a sort of random --

24 random picture of the mortuary. I think that's maybe slightly better

25 there. You'll see various people in it. Essentially, we've got a number

Page 5875

1 of processes. Right at the back, you'll see people in blue and white,

2 et cetera. They are the people who are actually examining the bodies.

3 The bodies have been taken out of fridges, they've been put onto tables.

4 The bodies are cleaned up, kind of reorganised, because a lot of them

5 were skeletons, and the clothing removed and any other possessions, so

6 that's what's going on there. And we will -- the pathologists, in turn,

7 will be noting -- noting the various findings.

8 The person in the middle of the photograph, sitting with the dark

9 blue and with the gloves on, is a photographer, and it's his job to be

10 recording all the relevant evidence as things were going on. So he does

11 that, and then he comes and files his pictures.

12 And the person at the bottom right is, who -- you just see the

13 light blue. He's a scene-of-crime officer, and it's his job to -- if we

14 find any possessions or anything else on the body, to take hold of these

15 and record them and make sure that they are -- the chain of evidence. So

16 that's the general working.

17 Just to go back to the people at the back there --

18 Q. If I can interrupt you, there's a close-up photo.

19 MS. CHITTENDEN: If we can just go to page 1 of this document,

20 please.

21 THE WITNESS: This is now a close-up of the sort of working area.

22 There are three tables, if you like, three teams, going on. At the back

23 there, we have a body. You can see the dark-brown material there.

24 That's a body with clothing and with sort of mud from the grave. That's

25 actually myself working at the right-hand side there. I'm assisted

Page 5876

1 with -- by an anthropologist, a technician, and various other people, so

2 we're all working together. We all have little specific jobs to do. So

3 that's actually what's going on there. And there are three similar teams

4 working in the mortuary doing that.

5 MS. CHITTENDEN: If we can just turn to the final page, number 3,

6 please.

7 THE WITNESS: Yes. This is kind of slightly further on. This is

8 a body -- a skeletonised body laid out on a table. We've cleaned it,

9 we've removed the clothing. We've reorganised the bones with the help of

10 the anthropologists, and now we're doing -- recording our findings. This

11 person in the front here happens to be an anthropologist who is noting

12 the bones which are present and trying to assess the age of the person

13 and the sex of the person.

14 The role of the pathologist is also to look at the body, but

15 really from the point of view of looking for injuries and identifying

16 where they are, what caused them, and things like that. And you can see

17 the various processes going on in the background.

18 Generally, perhaps in a day, we would do, on a case like this,

19 perhaps 12, 15 bodies per day going through the mortuary.

20 MS. CHITTENDEN: Thank you.

21 Thank you. We're finished with that photo now.

22 Q. Dr. Clark, you just mentioned before pathologists and

23 anthropologists working together at the mortuary. Can you explain the

24 difference, just once again, between their work?

25 A. Yes. A pathologist is medically trained, so we deal with people,

Page 5877

1 we deal with the whole body. Anthropologists are not medically trained,

2 but they have a specific expertise in looking at the skeleton, the bones.

3 Their role in the mortuary here was really twofold. Firstly, to look at

4 the bones, because it's really mainly from the bones that you can tell

5 the age of the person and the sex of the person in cases like this. So

6 they would be looking for that, the shape of the skull, the shape of the

7 pelvis, things like that. They would also make an inventory of all the

8 bones which were present, because some would be missing. They would list

9 that. But because of their knowledge -- detailed knowledge of the shape

10 of bones, where we had a broken bone, maybe in several pieces, they had

11 that skill to be able to identify that little fragment came from that

12 bone or whatever and perhaps glue them all together, and that made any

13 injuries, bullet injuries particularly, all the more easy to see. So

14 they had that dual role of assisting with identification, but also

15 assisting the pathologists to clarify the injuries.

16 Now, it's one thing finding an injury. It's another thing

17 interpreting what that means, and that really is where the pathologist

18 comes in, because with our knowledge of the rest of the body, all the

19 soft tissues and the organs, we can get a very good idea that an injury

20 to a bone is likely to cause these other -- the damage elsewhere in the

21 body. So that was why the pathologist has the ultimate responsibility of

22 the consequences of an injury and of establishing why we thought how this

23 person would have died. So there's kind of two roles there.

24 Q. Thank you. I'd like to just show you now P895 in e-court.

25 JUDGE FLUEGGE: Ms. Chittenden, are you tendering the three

Page 5878

1 photographs we have seen?

2 MS. CHITTENDEN: Yes, I would like to tender this. Thank you.

3 JUDGE FLUEGGE: They will be received.

4 THE REGISTRAR: The three coloured photographs, Your Honours,

5 under 65 ter 06593 will be assigned P01127.

6 JUDGE FLUEGGE: Thank you.

7 MS. CHITTENDEN: Thank you, Mr. President.

8 If we could have Exhibit P895, and if we could first go to

9 page 4.

10 Now, this report doesn't have a B/C/S translation -- oh, maybe it

11 does. Okay, great.

12 Okay, if we can go to page 4.

13 Q. Dr. Clark, can you tell us what this document is?

14 A. Yes. The -- on the right-hand side -- I suppose it's on both

15 sides. This is our working document in the mortuary. We had -- it's

16 about 12 pages or so. And so this is what we would have on a clip board,

17 as we're looking at the body, taking notes. And you can see lots of

18 scoring out there, et cetera, because, you know, we're thinking about

19 things, changing our minds, perhaps. So this is our rough notes taken at

20 the time. And we go through various stages. This is -- right on the

21 first page here -- well, in addition to the official details of each case

22 and who's involved, on the first page is just a very general overview of

23 the body, its state and things like that. And then as you go through the

24 document --

25 MS. CHITTENDEN: If we could go to the next page, please, in

Page 5879

1 e-court. Thank you.

2 THE WITNESS: Then we go through and we then begin to detail the

3 clothing in a little more detail.

4 It has to be said, just specifically, on that part of clothing,

5 that was usually filled up after the clothing had been cleaned. We came

6 back and filled that in afterwards. But what we're looking for in the

7 clothing is perhaps signs of bullet injuries, any burning, anything else

8 or any other damage that we might find on it.

9 Then we look at the sort of -- I'll put my specs on for this,

10 I think. These other items at the bottom of the page here.

11 MS. CHITTENDEN: Just the bottom half, please. Thank you.

12 THE WITNESS: These are perhaps material which has been taken out

13 of the body. In the pockets, cigarette lighters or what have you.

14 MS. CHITTENDEN: If we can go to the next page, please.

15 THE WITNESS: This page is really about general identification

16 features. A lot of it, we cannot tell, but if we could tell just looking

17 from the body whether this was male or female, because sometimes the body

18 was complete, we could indicate that. More often than not, as a

19 pathologist, we weren't able to say. We're looking at the general build,

20 any hair that's present, teeth, things like that, just the general

21 identification features.

22 MS. CHITTENDEN: And the next page, please, in e-court.

23 THE WITNESS: This is a page actually specifically compiled by

24 the anthropologists, so I can't really speak too much about that. But

25 this is -- they are looking at the pelvis and the skull to try and get an

Page 5880

1 idea of the sex of this person, the height, and a rough idea of the age.

2 They compile that.

3 MS. CHITTENDEN: And the next page, please.

4 THE WITNESS: And, again, that's -- anthropologists complete

5 this. It's a sort of inventory for the body. You know, take for the

6 head, it's present, the left arm, right arm, whether it's present or not.

7 Really, in this body, it's more or less intact. I think you can see all

8 the ticks are in the "Present."

9 MS. CHITTENDEN: And the next page, please.

10 THE WITNESS: Now, this is our main role. This is looking at the

11 injuries.

12 Before we do anything on the bodies, we took the body into a

13 special room and did a fluoroscope on it. This is a form of X-ray which

14 really just scans the whole body and will pick up any metal fragments,

15 particularly bullets. And we would do that for every body and see if we

16 could identify these. After that -- yes. Then we go down to

17 systematically look at injuries on the different parts of the body. You

18 can see that the sort of lower half of the thing is about head and neck.

19 I'm looking for injuries in the head and neck. You'll see nothing

20 written there, so there's no injuries on the head and neck.

21 If you go on to the next page --

22 MS. CHITTENDEN: Next page, please.

23 THE WITNESS: -- then you will see that we are now moving on to

24 the trunk and that I have now started to describe. I have findings on

25 the trunk, and I've numbered them and described it in some detail.

Page 5881

1 I've then got to decide -- I'm given three options: whether

2 I think this is an injury which is caused in life; whether I think it's

3 probably an injury caused after death; or whether I really don't know.

4 Now, we can come on to later on decide why we think injuries are

5 caused in life or not, but it's probably easier to do that later. But

6 you'll see that that first injury, this is an injury in the upper part of

7 the chest here in which there's a big hole in the skin because this body

8 [indiscernible], and there were fragments of -- there was disruption of

9 the ribcage -- there was a big hole in the ribcage underneath that, and I

10 found fragments of bullet. So I was happy that this represented a

11 gun-shot injury on the chest.

12 I also find, under number 2 here, sorry, multiple broken ribs.

13 This was a pattern that we saw in a lot of bodies, and we give the

14 benefit of the doubt that these were probably injuries caused after

15 death, just as the body is pressing in the grave and compacted by other

16 ones. So you'll see the tick, I think, if you go to the right-hand

17 side --

18 MS. CHITTENDEN: On the screen, if we can just -- thank you.

19 THE WITNESS: -- I've put "Probably post-mortem."

20 MS. CHITTENDEN: Okay. So the next page.

21 THE WITNESS: If you just go down to the bottom of that page, I

22 think it's probably empty, but -- yes, it is. So the next page. So

23 really that was the only injury on the body.

24 We looked at -- if there was any internal -- internal tissues.

25 This was unusual, that it was a relatively complete body. We can

Page 5882

1 actually see internal organs, and I didn't find -- I was looking for any

2 natural disease in these and I found none.

3 MS. CHITTENDEN: Next page, please.

4 THE WITNESS: Next, I have recorded what photographs were taken

5 of the body, in general terms, and the name of the photographer doing it.

6 I've recorded what samples were taken from the body. This would be any

7 samples of bullet, samples taken for the anthropologist to try and assess

8 further the age of the person, samples for DNA, for attempts at future

9 identification. So these are all recorded in that report there and given

10 numbers; C1, C2, D1, D2.

11 MS. CHITTENDEN: And the next page, please.

12 THE WITNESS: This doesn't look very well. Scored out as well.

13 This is my -- from the -- from my workings from my findings, I've

14 now formulated conclusions. This is done usually after, you know, maybe

15 in the days afterwards. We don't do that at the time because we need to

16 sit down and think about things. So it's not just rushed off at the end

17 of each case. It is considered. And I give a summary of my findings.

18 It was an intact body. We established the person was male, about the

19 clothing, et cetera. And I've said there was evidence of an apparent

20 gun-shot injury to the right side of the chest, with damage to the

21 ribcage and the rest of it. And I've concluded that was a potentially

22 fatal injury. I've noted the other injuries which were present, the

23 fractured ribs which I thought were post-mortem in nature, and I finally

24 at the end there come to give a cause of death. I thought the cause of

25 death was a gun-shot wound of the chest. And I've signed it and all the

Page 5883

1 rest of it.

2 MS. CHITTENDEN: And just the final page, I think.

3 THE WITNESS: Yes. This is a body diagram, and I'm just -- the

4 dark area on the chest is just the area of disruption of this --

5 MS. CHITTENDEN: So if we could just now go back to -- we started

6 from page 4 on, for the record. If we could go back to page 1 of this

7 document now, please.

8 Q. And if you could just briefly tell us, what's this here?

9 A. From all these rough notes and scribbles and scores-out, that

10 folder is given to the secretaries, and they bring that all together into

11 a nice, tight, three-page report, with my conclusions at the front there,

12 the cause of death, and then the details which we've heard about

13 summarised on the next two pages.

14 Q. Okay.

15 A. This is just simply a typed version of the rough notes.

16 MS. CHITTENDEN: Okay, thank you. I've finished with that

17 exhibit now. Thank you.

18 Q. Dr. Clark, you've mentioned bodies and body parts. Can you

19 explain how something is classified as a body versus a body part?

20 A. Yes. I mean, it was quite common, and particularly in some

21 graves, that we found intact bodies, but we also found large numbers of

22 just a little bit of a body, perhaps an arm, perhaps a hand, a couple of

23 ribs, sometimes slightly bigger, and we just called them body parts.

24 They were part of a body.

25 I mean, it's easy if you've just got a hand or a bit of skull.

Page 5884

1 It's a part of a body in everybody's language. When it became a bit

2 bigger, perhaps with the head and the trunk, most of the trunk, but no

3 arms, no legs, is that a body part or a body? We took the view that

4 anything which was substantially a body, in fact, there was more of a

5 body or not, we called a body. So generally that would be some -- if

6 there was a head there and the trunk, I would call that a body because it

7 was -- it's a person, really, and it's identifiable. If it was just a

8 leg or two legs, I would call that a body part.

9 Now, there was a decision taken at the field team - I think

10 you've heard Professor Wright testify here - and they would give a

11 initial assessment. They would call it a body or a body part. By the

12 time it came to the mortuary -- or after the mortuary, rather, when we'd

13 had the chance to clean up the bodies and perhaps find extra bits there,

14 we sometimes changed their allocation from -- of a body down to a body

15 part or the other way 'round, a body part up to a body, and that was

16 quite acceptable and not a problem.

17 Q. Mm-hmm. And were autopsy reports prepared for both body parts as

18 well as bodies?

19 A. Yes, yes.

20 Q. And in your final pathology reports for 1999, 2000 and 2001, did

21 you include those results for the body parts in your final calculations

22 about cause of death and gun-shot injuries?

23 A. No. I mean, I've discussed body parts, but I've kind of left

24 them to the side, and my main -- or the calculations about how -- the

25 types of injuries, how common they are, the directions, et cetera, are

Page 5885

1 entirely based on the bodies.

2 Q. Mm-hmm, okay.

3 A. So we're not confusing ourselves with body parts. The problem

4 is, of all these body parts, I don't know if some of them came from the

5 main bodies where a bit's missing, or did they come from other bodies who

6 we haven't yet found, and we did not have the ability or the facilities

7 to -- or the time to match all these up. So it was easy just to record

8 what was there, but dismiss them from the overall calculations.

9 Q. Dr. Clark, I've just got a few more -- a couple more questions to

10 ask you and then a few photos, and then we'll be finished.

11 In your Popovic testimony and also in all of your three reports,

12 you explain the limitations of pathology evidence in these cases. Can

13 you briefly outline those for us now?

14 A. Yes. I think this is a very important concept to get over.

15 These were not cases which -- the type of cases a forensic

16 pathologist normally deals with. We normally deal with people who are

17 freshly dead, who have all the tissues on them, you can recognise colours

18 and injuries and any other findings. So we're not really dealing with

19 the normal situation. We're dealing with decomposed bodies, often very

20 discoloured just because of soil and other staining. Lots of the tissues

21 will be missing and very often -- very often with no tissues left, just

22 skeletons. And we've got to try and assess our findings in that.

23 There's really four stages. When we look at the body -- these

24 decomposed bodies, and we see something, we've got to decide is that

25 genuine or is it not? Is this just staining which has occurred in the

Page 5886

1 grave-site from a body nearby, discolouration, or some odd mark on the

2 bone? We've got to decide that. Having decided that I think this is an

3 injury, a genuine injury, the second stage is to decide did that injury

4 occur before death or after death, because we've got to be very well

5 aware of the possibility of injuries occurring to the bodies after death,

6 and that could occur for a number of reasons. Bodies have been put into

7 a mass grave, they're perhaps crushed together or lying heavily on top of

8 each other. You can imagine pressure on the chest or the pelvis, and

9 these bones can break. Bodies have also been removed from one grave to

10 another, potentially, disrupted. So there's quite a potential for

11 injuries to occur to the bodies after death. So we've got to decide

12 whether this has occurred before death or after death.

13 So the third stage, having decided I think this is an injury

14 which has occurred in life, I've got to decide what kind of injury is it.

15 Is this an injury caused by being hit by some weapon, by a gun-shot, by a

16 knife, by falling? And really we're talking about injuries on the bones

17 here, because most of the bodies were skeletonised. So that was a

18 further assessment, had to do that.

19 And the fourth stage was, having decided this is a genuine

20 injury, having decided this is probably gun-shot injury, I've then got to

21 decide did that kill them, because you may have a gun-shot injury through

22 your hand and that's not necessarily going to kill you, or an injury

23 through your forearm won't necessarily kill you. So I've got to decide

24 whether -- whether that's likely to be a fatal injury. And as my

25 training as a pathologist, I know what tissues are 'round about the bones

Page 5887

1 and how people normally die because we deal with death all the time, and

2 I could assume that -- I think if I find a bullet hole in the front of

3 the skull and an exit hole at the back, I can be fairly certain that's

4 going to kill that person, even though I can't see the brain in between,

5 but I know it will be there. And, similarly, an injury to the front of

6 the chest, there's a lot of big organs inside the chest which will get

7 damaged. So that was why we could come -- we could come to decide about

8 a cause of death.

9 I have to say we did not come to that lightly, and I think you'll

10 see from the reports that in a substantial number of cases we felt that

11 there wasn't the evidence there to come to a positive cause of death, and

12 these are cases which we left as unascertained. But I think it's very

13 important to get an idea of the difficulties of looking at these bodies

14 and the thoughts we had to have in our mind all the time.

15 Q. Thank you, Dr. Clark. Considering those limitations, just in

16 general, what was the finding that you found in the majority for cause of

17 death?

18 A. Well, it was gun-shot injuries. I think it's -- I've worked out

19 to about -- of these bodies, about 86 per cent of the bodies in these --

20 all these grave-sites had been -- had gun-shot injuries which we thought

21 were the cause of death. Now, that leaves 14 per cent in which we

22 couldn't find -- well, actually, there's another percentage will have

23 died from blast injuries from explosions, and you would have to add that

24 to them. I think that's about 5 per cent. And then there's a small

25 proportion, and that must be about 9 per cent, 8 or 9 per cent, in which

Page 5888

1 we could not come to a cause of death, and that was possibly because we

2 couldn't find any injuries or we didn't find any injuries on the parts

3 that were present, or we didn't think these injuries, even though they

4 were present, were sufficient to kill. So we sort of -- I think it's

5 important that we were prepared to accept that there were cases that we

6 could not establish cause of death.

7 Q. Thank you, Dr. Clark.

8 Now, finally, just before we finish, I'd like to show you three

9 photos.

10 MS. CHITTENDEN: If we could have P912 in e-court.

11 Q. Okay. Can you tell us about this photo?

12 A. Yes, it's a bit dark. I don't know what colour it comes in.

13 This is a skull from the side on. The right-hand side of the screen is

14 the front as you face. You can see the teeth at the bottom right, and

15 the left-hand side is obviously the back of the skull. This sort of

16 horseshoe-shaped bone to the right-hand side is your cheekbone, so

17 that's -- you're looking at the skull side on.

18 What this injury particularly shows is a bullet hole in the

19 skull, and that is towards the bottom left of the skull. There's not an

20 actual arrow, but I think you can see a black hole towards the bottom

21 left, a circular black hole. That's a gun-shot entry wound.

22 Now, from that, you'll see various lines going up over the rest

23 of the skull. There's certainly one going up and to the right, and

24 there's another one going to the back, and there's some going down below.

25 These are what happens when particularly a high-velocity bullet hits a

Page 5889

1 skull. It loses a lot of energy, and the skull fragments. You get a

2 hole, but you get these fractures running off in all directions, with a

3 lot of disruption of the skull. So that's what it's showing, a gun-shot

4 injury of the skull.

5 Q. And just before we go to the next photo, what are those letters

6 and numbers down there on the ruler? What does that mean, generally?

7 A. The numbers -- oh, yes, sorry. This is the case number. "KP" is

8 "Konjevic Polje," and it was grave 1 of Konjevic Polje, "KP1," and each

9 body is given a number. This was the number given by the field team, so

10 this is the 15th body. And it's "B," that means it's a body, not a body

11 part. So Konjevic Polje, grave 1, the fifth body, and it's a body rather

12 than a body part.

13 MS. CHITTENDEN: Okay. Thank you.

14 If we can go to P901 in e-court now.

15 JUDGE FLUEGGE: May I interrupt you for a moment.

16 You said first it is the 15th body, and then we saw that you said

17 "the fifth body."

18 THE WITNESS: I'm sorry, it might be my eyesight.

19 JUDGE FLUEGGE: We saw the number 15.

20 THE WITNESS: It was 15th, then. Sorry, my eyesight might

21 have --

22 JUDGE FLUEGGE: Yes. Thank you very much.

23 MS. CHITTENDEN:

24 Q. So, Dr. Clark, what do we see here in this --

25 A. This is another skull, and this is to show a ligature around the

Page 5890

1 face. The skull is rather discoloured, but I think you can see in the

2 middle part a sort of band of pink material going 'round. It's covering

3 the eye sockets and it's tied at the back. And this was a typical

4 blindfold. And this body is from Kozluk, "KK," the third grave at

5 Kozluk, and it's body number 621, and it's a body. So this is just a

6 good example of a ligature -- a blindfold around the neck -- around the

7 face, rather.

8 MS. CHITTENDEN: Thank you.

9 And, finally, if we could have P902 in e-court.

10 THE WITNESS: This is showing a pair of hands. So the hands are

11 pointing down the way. And this is showing ligature around the wrists.

12 You can see a binding. I think it's tied in the middle. It's looped

13 around each wrist and there was a knot in the middle. So that's what's

14 now showing. This also sure indicates that the varying degree of

15 preservation of the body. This one has tissue on it, sort of leathery --

16 dark, leathery tissue, skin, where other ones were -- were just a

17 skeleton. So this is Kozluk 3, body 329.

18 Q. And for these photos, where were they taken?

19 A. They were all taken in the mortuary.

20 MS. CHITTENDEN: Thank you, Dr. Clark.

21 Thank you, Your Honours. I have no further questions.

22 JUDGE FLUEGGE: Thank you very much, Ms. Chittenden.

23 Mr. Tolimir, now you may commence your cross-examination and put

24 questions to the witness.

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

Page 5891

1 Greetings to the witness and everyone present. May God's will be

2 done in these proceedings, and may the outcome be as God wishes and not

3 as I wish.

4 Cross-examination by Mr. Tolimir:

5 Q. [Interpretation] Mr. Clark, in the Popovic et al case, in answer

6 to the question on the terms of reference within your work, you answered

7 the following --

8 THE INTERPRETER: The interpreter didn't catch the transcript

9 page.

10 MR. TOLIMIR: [Interpretation]

11 Q. "... this had to do with Srebrenica. There were other

12 grave-sites, but I suppose that you want to know about the sites related

13 to Srebrenica."

14 This is my question: Being a pathologist --

15 JUDGE FLUEGGE: Mr. Tolimir, can you please repeat the page and

16 line number. The interpreter didn't catch that.

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

18 Page 7335, lines 5 and 6. Thank you.

19 MR. TOLIMIR: [Interpretation]

20 Q. This is my question: Being a pathologist, in what way did you

21 establish that the grave-sites where you worked, Kozluk, Konjevic Polje,

22 Nova Kasaba, Glogova, Ravnice, and Zeleni Jadar, were linked with

23 Srebrenica? Did you make any inquiries of your own or was this something

24 that you were told? Thank you.

25 A. We made no inquiries -- I made no inquiries of my own. These

Page 5892

1 were -- this was information provided to me.

2 JUDGE FLUEGGE: And just for the record, we are looking at

3 document P892. This is the Popovic transcript.

4 Please carry on, Mr. Tolimir.

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

6 MR. TOLIMIR: [Interpretation]

7 Q. You have the transcript before you to see if I'm misquoting you,

8 perhaps.

9 Being a pathologist, in what way -- I'm sorry, I put this

10 question to you: Page 7335, this is the page we're looking at, line 25,

11 you stated that the anthropologists tried to identify individuals by

12 reference to the skeleton. This may have been misinterpreted, but can

13 you tell me, how can one identify an individual by his or her skeleton?

14 Do you mean age, sex, or is there any other way of identifying an

15 individual in this way? Thank you.

16 A. What the anthropologists were doing was to get a sort of

17 general -- basic identification features of male or female, the sex of an

18 individual, and an idea of the age. They could not go any further than

19 that, in terms that they could not say this is such and such a person or

20 not. That was not our role. But what we did do was to take material

21 from each body with a view to perhaps specific identification in the

22 future by DNA analysis. So there were occasional bodies in which we

23 did -- we found documentation in the pockets, but we certainly did not

24 necessarily give that person a specific name. It was just to build up a

25 picture of what type of bodies we had -- we were dealing with, and the

Page 5893

1 specific identification was to be done by other people in the future.

2 Q. Thank you. You've mentioned pockets now. At page 7342, line 25,

3 and at page 7343, line 1, you stated, and I'm quoting:

4 "None of them had any weapons, and only rarely -- and only

5 occasionally did we find some bullets in their pockets."

6 Since your reports do not include all the findings, can you tell

7 us whether the items found in the pockets of the individuals were

8 forwarded for further forensic examination? Thank you.

9 A. I assume they were. We -- anything found in the pockets was

10 handed to the scenes-of-crime officer, who would deal with it thereafter.

11 Whether it was examined or not, I do not know. We certainly made no

12 specific examination of the contents.

13 Q. Thank you. Did any of their findings by the scene-of-crime

14 officers, if any, end up in your report? And I mean the findings

15 relating to the contents of the pockets. Thank you.

16 A. Only in very general terms. And I think you will see that in my

17 report I do refer, in general, to things like cigarette lighters,

18 occasional documents, that sort of stuff, but I haven't -- I haven't been

19 specific about it because I didn't think that was the important part, and

20 this -- for my report, anyway. That information is available somewhere,

21 but I have not gone into that in any detail.

22 Q. Thank you. At page 7342, lines 2 through 8, you said that in a

23 great many cases, you were not able to ascertain the cause of death and

24 you had to classify them accordingly. In lines 2 through 8, you also

25 said that you could not rule out the possibility that the individuals

Page 5894

1 were members of the army, since they -- most of them were of military age

2 and they could carry weapons and could have been killed in combat.

3 Today, in answer to the Prosecutor's question at page 10 - 21100

4 [as interpreted], you said that 5 per cent were killed -- could have been

5 killed by a blast, and for a number of them you were unable to ascertain

6 the cause of death.

7 Can you tell me, is the task of a pathologist to ascertain the

8 age of individuals found in the grave or is it the task of an

9 anthropologist? And is it the task of an anthropologist to conclude if

10 the person met his or her death in combat? Thank you.

11 JUDGE FLUEGGE: Before we receive the answer of the witness,

12 could you please check, Mr. Tolimir, if you have given the right page

13 number. It's unclear to me if that is really the part of the transcript

14 in Popovic you were referring to.

15 And Ms. Chittenden.

16 MS. CHITTENDEN: Thank you, Mr. President.

17 That was my first comment was on line 11 we had -- you said that

18 "in a great many cases." I believe it actually says "in a number of

19 cases" on T-7342, line 6, not "great number of cases."

20 And, secondly, as you mentioned, Mr. Tolimir's reference to

21 lines 2 through 8, I don't believe that's 7342 at all. I'm asking for a

22 transcript reference.

23 And just finally, if we could please break up -- break up the

24 questions there, because I noticed quite a few in that large paragraph.

25 Thank you.

Page 5895

1 JUDGE FLUEGGE: Mr. Clark, do you recall anything of the

2 different questions?

3 THE WITNESS: I do. I was going to make the very first point

4 about being misquoted about the "great number." I've said "a number," so

5 it's important to stress that.

6 The last part of the question, perhaps we could deal with that,

7 about the anthropologists. I think I have explained the difference in

8 the roles of anthropologists and pathologists, but we did not work in

9 isolation. We worked together, and the anthropologists gave us

10 information about age range, sex of the body, et cetera, which I

11 incorporated -- we incorporated into our reports, and I think that's only

12 sensible. It brings it all together. We could -- I mean, I'm still a

13 doctor and I can look at a body and I can make my own assessment, but I

14 had expert guidance by the anthropologists. So I think you should

15 picture that the anthropologists and the pathologists work closely

16 together. They fed us information.

17 As I've stressed, it is our job, as a pathologist, to establish

18 cause of death. The anthropologists did not do that. They could offer

19 their advice and expertise, saying that that is a gun-shot injury, or, I

20 suppose, it's not that, but in the end it's the pathologist that decided.

21 And I'm afraid I cannot remember what other parts of the question

22 you had.

23 MR. TOLIMIR: [Interpretation] Thank you.

24 Q. I will repeat. Today, at page 21, 10095150 [as interpreted], you

25 said that 5 per cent of individuals were killed in a blast, and in 8 to

Page 5896

1 9 per cent of the cases, you weren't able to ascertain the cause of

2 death?

3 A. Yes.

4 Q. In other words, approximately 14 per cent -- between 13 and

5 14 per cent, if we add these two cases. Did you list all these cases in

6 your report as "Unascertained"? Thank you.

7 A. There is a 5 per cent of the blast injuries which were -- that

8 was the cause of death, and I think there's a small percentage -- I mean,

9 I could get these figures -- a small percentage who died from a

10 combination of gun-shot and blast. But in the end, I think there's

11 probably maybe, I don't know, 3 to 4 per cent of cases in which we felt

12 unable to give a specific cause of death, and it may well be -- a lot of

13 these cases did still have injuries. It may well be that they still did

14 die of gun-shot injuries, but we felt we had insufficient proof on what

15 we were dealing with. So the vast majority of people did die of gun-shot

16 injuries, or blast injuries, or a combination of both.

17 JUDGE FLUEGGE: Judge Nyambe has a question.

18 JUDGE NYAMBE: Yes. What sort of weapon would have caused a

19 blast injury?

20 THE WITNESS: That would be any explosive device, like a grenade

21 or a rocket. Explosion means that it's something which would -- well, it

22 explodes, it bursts open, and it releases small portions of metal, shell

23 casing, et cetera, and that will damage the body. It tends to cause much

24 greater damage to a greater area of the body because it's a larger --

25 larger impact. And what we found in these cases was a large area of

Page 5897

1 damage to a limb or part of body, and often with little bits of

2 shrapnel -- of metal from the grenade or the contents of the grenade

3 actually in the body, and that indicated to us that this was a blast

4 injury.

5 JUDGE NYAMBE: So in your profession, you'd never describe a

6 gun-shot wound as a blast injury?

7 THE WITNESS: No, we would distinguish the two.

8 JUDGE NYAMBE: Thank you.

9 JUDGE FLUEGGE: Mr. Tolimir, please carry on.

10 Sorry, Mr. Tolimir. Judge Mindua has a question, a follow-up

11 question to the last one.

12 JUDGE MINDUA: [Interpretation] I'm very sorry, Mr. Tolimir.

13 I would like to just put a follow-up question, following

14 Judge Nyambe's question. When it comes to the injuries that you've

15 described, I would like to know the following.

16 Mr. Clark, on page 22 of the transcript, lines 9 to 11, we saw a

17 skeleton, we saw a skull, and you said that there was a hole that was

18 probably caused by the entrance of a bullet. So there's an entry wound.

19 And I am wondering, would you be able to say which weapon caused this

20 entry wound? You mentioned a bullet, but could it be, for instance, a

21 lance, or can it be something else? Because you are making a difference

22 between injuries caused by a bullet or by an explosion, but in this

23 particular case I would like to know: What is your level of certainty?

24 How could you ascertain that it was, let's say, a bullet in this case?

25 JUDGE FLUEGGE: Could we have P912 back on the screen, please.

Page 5898

1 THE WITNESS: Yes, that's a very good question, and it gives an

2 opportunity to perhaps explain a bit about gun-shot injuries.

3 This is a skull with a round hole in it, and that tells me that

4 is a gun-shot injury. Now, gun-shot injuries can be caused by different

5 types of weapon. It could be what are traditionally called low-velocity

6 weapons, like handguns, pistols, revolvers. They tend to leave a hole in

7 the skull, but not much in the way of fracturing 'round about. It's just

8 the bullet going through the skull creates a hole and damages the brain

9 and perhaps goes out.

10 When we see a pattern of injury like this in which there's a

11 hole, but a great deal of fragmentation 'round about, that indicates that

12 that bullet has hit that skull with a lot of energy. And when it hits

13 the skull, it loses all that energy, and as a result the skull fragments.

14 And it's a highly typical pattern of what we would call a high-velocity

15 weapon.

16 Now, it has to be said that in a number of cases, we did find

17 bullet holes which were only a hole in the skull and did not have this

18 fracturing 'round about, and we thought, well, that may well be

19 indicative of the use of a handgun, or of a revolver, or a pistol. That

20 may be one possibility. There may be other possibilities, but it is this

21 pattern of fragmentation of the skull which leads us to believe that.

22 Now, the fact that it's a round hole points to this to being a

23 bullet, as opposed to shrapnel. If this was an explosive injury, the --

24 it would be much more irregular. It wouldn't get this round hole.

25 And the further thing is and you cannot see it on that picture,

Page 5899

1 that when a bullet passes through the skull, it leaves a very

2 characteristic mark. Essentially, the diametre of the hole on the

3 outside of the skull is smaller than the diametre on the inside. So it's

4 like a sort of funnel going in the way. It's called bevelling, it's a

5 very characteristic feature. As I say, you cannot see it there, but we

6 could tell that. That has the benefit of indicating to us the direction

7 of the bullet. That's why we can tell this is an entry wound, as opposed

8 to an exit, because often the bullet will come out the other side. So

9 all of these point to us strongly gun-shot entry wound from a

10 high-velocity weapon.

11 I think you mentioned could this be some rounded, blunt object,

12 some pole, narrow pole. Theoretically, yes, but it would not produce

13 either the bevelling on the inside and it would not produce the

14 surrounding fracturing and the amount of damage.

15 JUDGE MINDUA: [Interpretation] Thank you very much. Your answer

16 was very clear.

17 JUDGE FLUEGGE: Mr. Tolimir, please carry on now.

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

19 I wish to thank Their Honours Judge Nyambe and Judge Mindua for

20 their questions.

21 MR. TOLIMIR: [Interpretation]

22 Q. This is my question for the witness: It is very important for us

23 to see who was killed in combat and out of combat, and hence my question:

24 Whether a person was killed in combat or in a non-combat situation, is

25 this something that you established solely on the basis of the evidence

Page 5900

1 you found there or was it also based on some independent reasoning of

2 yours? What were the factors based on which you decided whether a person

3 was killed out of combat? Thank you.

4 A. I don't think I ever took that decision that these people were

5 killed in combat or not killed in combat. I provided information which

6 would perhaps support one argument or the other, and I think there are

7 various groupings of findings to support -- to support one of these.

8 Firstly, if you are thinking of a traditional army in -- men in

9 uniform, with weapons and with bullets, well, none of the bodies we saw

10 had any signs of that. Now, you could argue that after they'd been

11 killed, the bullets and the weapons could have been taken away, and I

12 cannot exclude that in the slightest. You could argue that you don't

13 have to be wearing a military uniform to be a soldier or to fire a

14 weapon. I quite accept that. I can't counter that. So that's one

15 argument. But it has to be said that none of the bodies had any military

16 uniform, and as far as we could see, virtually all of them -- or

17 virtually none of them had any weapons or bullets in their pockets.

18 Secondly, soldiers, by definition, are a generally fairly fit and

19 active population, of fighting age. We were able to establish that in

20 this group of people, particularly from some graves, there was a very

21 wide age range from perhaps teenagers up to people potentially in their

22 80s or 90s, so not really what you would call a fighting-age population.

23 Additionally, a certain portion -- proportion of these people - I think

24 it's about, in one grave, 4 per cent in the Kozluk grave - had

25 significant disabilities, in the sense of somebody had a glass eye,

Page 5901

1 somebody had had open-heart surgery, somebody had a very rigid elbow, and

2 so they had significant disabilities. Again, hardly a military

3 population.

4 Thirdly, the -- a substantial portion of people in certainly some

5 of the graves, Kozluk, Lazete, particularly, had blindfolds and had

6 ligatures on the wrists, again, which would go against them being

7 traditional soldiers.

8 And I think fourthly, and it's a point that -- it's a more

9 general observation from general reading and knowledge, that typically in

10 a conflict situation between two armies, the majority of people, any

11 deaths are caused by explosion injuries rather than gun-shot injuries,

12 and you could look at any military conflict in history and this would be

13 borne out. And the -- sort of allied to that is that in any traditional

14 conflict, you will find many more people are injured, rather than killed,

15 and to my knowledge -- or at least nobody has ever put that information

16 to me, there were not large numbers of wounded people found in the

17 Srebrenica area. That's for other people to either provide that

18 information or put it to me.

19 So for all these reasons, going from the clothing, the nature of

20 the people, the fact that a number of them had -- were restrained,

21 clearly, and these wider issues, there was very little from the mortuary

22 examinations to indicate that these were conflict/combat casualties.

23 Q. Thank you. Since you've made a number of points now - four that

24 I could count - based on your experience, general knowledge and findings

25 from the graves, and you've just said that this was what you based your

Page 5902

1 findings as to whether a person was killed by a bullet or in some other

2 way, and this is what's important for us: Tell us, please, did you know

3 that individuals -- the individuals in Srebrenica whose mortal remains

4 you examined mostly wore civilian clothes because the area had been

5 demilitarised, and they were not allowed to wear uniforms in public

6 because UNPROFOR would observe that and prevent them from going about

7 their activities? Did anybody tell you this? Thank you.

8 A. Not specifically. I'm happy to accept that, yes. And as I said

9 earlier, they don't have to be wearing a military uniform to carry a

10 weapon. I'm happy to accept that.

11 Q. Thank you. Did you know that in the course of the sanitisation

12 of the general area, that ammunition and materiel and technical equipment

13 was taken away and was not buried together with the mortal remains, and

14 it was taken away by those who buried them? Would this have any bearing

15 on your finding that most of the individuals recovered there were

16 civilians? Thank you.

17 A. No, I have no knowledge of that information. But I've also --

18 I think if you go back to my answer, my longish answer, you'll see that

19 I've allowed for that, I've accepted that's a possibility. But I had no

20 specific information about that, myself.

21 Q. Thank you, Professor. There is one other matter which would be

22 very important for us to hear your explanation of in order for

23 Their Honours to make their findings. There were witnesses here

24 testifying to the effect that a number of individuals, and in some cases

25 they said more than a hundred, committed suicide. They were part of the

Page 5903

1 column that was trying to break out of the area.

2 Now, what would the chosen criterion be for establishing whether

3 a suicide was committed? They were not in combat with the enemy at the

4 time. They were on their own. We know the specific locations based on

5 witness statements. Would it mean to you, if we told you what the

6 location was, would it have any impact on your subsequent findings as to

7 how the individual was killed? Thank you.

8 A. That's a good point. We made no judgement on any of these

9 deaths, whether this was a suicide, homicide, accident, or whatever. We

10 just provided the information that the majority of people were killed by

11 gun-shot injuries. I have not mentioned anywhere the word "homicide,"

12 and certainly not "suicide." I fully accept the possibility of suicide.

13 If you're telling me that -- there are various ways, of course, that you

14 can commit suicide. If you're telling me that they committed suicide by

15 shooting, shooting themselves, then typically people kill themselves

16 by -- when they shoot themselves, by a gun-shot in the mouth or in the

17 head or in the chest. I can't remember of specifically any particular

18 case with that pattern of injury, just a single gun-shot injury perhaps

19 in the mouth. I'd have to look back on all the files. But perhaps

20 you're talking about suicide in other ways, and, in fact, the commonest

21 method of suicide certainly in our country is hanging. And if somebody

22 hanged themselves, that could well be one -- it would leave little, if

23 any, trace at post-mortem. I would not see evidence of that, and that

24 could be amongst the unascertained causes that we saw. So that's a

25 possibility. If they took -- committed suicide by taking an overdose,

Page 5904

1 I'm not going to see that, or certain other ways. Stabbing themselves, I

2 might not see that either.

3 So I think it's a fair point. It would really have to be amongst

4 that small percentage of unascertained cases that they committed suicide.

5 I don't think there's any evidence, in the larger 86 per cent of people

6 or more of the gun-shot injuries, of any typical suicide pattern of that.

7 But other methods, yes.

8 JUDGE FLUEGGE: Mr. Tolimir, I think this is the right time for

9 having the first break.

10 We must have our first break now on technical reasons, and we

11 will resume at 11.00. And the Court Officer will assist you during the

12 break.

13 THE WITNESS: Thank you.

14 --- Recess taken at 10.31 a.m.

15 --- On resuming at 11.04 a.m.

16 JUDGE FLUEGGE: Just for the record, I would like to mention that

17 the document P16C will be admitted under seal.

18 Mr. Tolimir, please carry on with your cross-examination.

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

20 I would like the professor to help us with all his experience,

21 because he sees both one side and another here, whereas we have to rely

22 on his opinion.

23 MR. TOLIMIR: [Interpretation]

24 Q. Tell us, would it be fairer, in cases where there are Prosecution

25 witnesses, not Defence witnesses, saying that people killed one another

Page 5905

1 and were not killed in combat, would it be fairer to qualify them as

2 combat casualties, rather than qualifying them as having been killed by

3 shrapnel or gun-shot wounds? Because we did not see the bodies

4 ourselves, so tell us, if there are witnesses saying that over a hundred

5 people were killed in this and that way, and we found a hundred bodies in

6 a meadow killed by grenades or shells, wouldn't it be fairer to treat

7 them as casualties rather than victims of a murder?

8 A. I'm not sure if I follow -- follow that argument at all. Again,

9 I have not mentioned the word "murder" anywhere in my report. That is

10 for others to judge. I have only said that people were killed in such

11 and such a way, and that could be -- that's not prejudging any situation,

12 whether that's combat, execution, whatever. I'm not actually saying

13 that. I've just given the cause of death and any other information, and

14 it's up to others to take a decision on how and when that happened.

15 Q. Thank you, Professor. But if there is a witness, a Prosecution

16 witness, not a Defence witness, who claims that in such and such a place,

17 a certain number of people met their death in such and such a way, and

18 another number of people who met their death in another way, is it fairer

19 to place them all in one category as being killed by a blast or gun-shot

20 wound or to say, specifically, that they died in such and such a way?

21 A. I'm happy to -- if somebody's put it to me that, These people

22 were killed -- this group of people were killed in this way, are your

23 findings consistent with that, I'm happy to -- yes, yes, I would agree

24 that is a possibility. Somebody else could put to me another scenario,

25 and I could say, well, yes, that's possible, or I think that's unlikely

Page 5906

1 for a number of reasons. But I don't think it's my place to group

2 everybody together and say that they came from -- I have no idea. They

3 didn't come from a particular place. I don't have that knowledge. But

4 I've got my findings, and it's open to either Prosecution or Defence to

5 say, Do your findings fit in with such and such a scenario, and I will

6 say, Yes, or, Perhaps, or, I don't think so.

7 Q. I'm asking you a fair question, Professor. We had a Prosecution

8 witness, Jean-Rene Ruez - maybe you heard of him, he was an investigator

9 for a while - and he says that in one location, the so-called location

10 Bare, he found more than 600 victims who were killed by artillery

11 weapons, by shells only. Whether they were killed by direct or indirect

12 shelling, I don't know, but they were killed in combat. And then during

13 the clearing-up of the terrain, they were placed in mass graves, together

14 with other people who were killed by gun-shot wounds, whether from a

15 10- or 15- or 500-metre distance. How are we supposed to treat them all

16 together as victims?

17 JUDGE FLUEGGE: Ms. Chittenden.

18 MS. CHITTENDEN: Pardon me. Objection, Your Honours.

19 This misstates the evidence on the record, and if Mr. Tolimir is

20 going to put a fair question to the witness, he should refer him to that

21 piece of evidence so he can comment.

22 My second objection is the witness has said twice that this type

23 of question is outside his role. So, thank you.

24 JUDGE FLUEGGE: Indeed, that was the answer of the witness, but

25 I'm sure the witness is able to answer the question in that way he wants

Page 5907

1 to answer them.

2 Mr. Tolimir, can you give us a reference to the testimony of

3 Mr. Ruez?

4 THE ACCUSED: [Interpretation] Thank you.

5 I'll go on with my questioning while my legal assistant finds the

6 exact reference in Jean-Rene Ruez's testimony, and then I'll put it to

7 the professor. I'm just asking the professor for advice how we should

8 treat these people in this case, because we have different categories of

9 victims, and he has looked at many categories. I'm just putting to him

10 that a Prosecution witness found a certain number of victims killed in

11 this way, and they were later placed in a mass grave. I'm asking how we

12 should treat these victims, as combat casualties or people killed with a

13 specific intent?

14 MR. TOLIMIR: [Interpretation]

15 Q. How are we supposed to treat this kind of shrapnel or blast

16 wound? I'm asking you in good faith. I'm not asking you for any answers

17 that would be in violation of your professional ethics. Thank you.

18 JUDGE FLUEGGE: Mr. Tolimir, if you want to have an answer, you

19 should be very precise, what you are putting to the witness. Otherwise,

20 an expert witness will not be able to give you a precise answer if you're

21 not able to put the testimony of the other witness in a correct way.

22 I think first you should rephrase the evidence of the other witness, and

23 then you perhaps could expect a precise answer by the witness.

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

25 please have understanding for me too. I don't know English, I don't have

Page 5908

1 the transcript, I'm just quoting from memory, and I stand behind what I

2 quoted. My legal assistant will find the reference. I'm just asking the

3 professor, in the context of our discussion, to give us his advice or

4 opinion. If the Prosecution objects to my eliciting such advice, I'll

5 move on, but I believe this is a very experienced expert who can provide

6 us with an adequate answer.

7 JUDGE FLUEGGE: Ms. Chittenden.

8 MS. CHITTENDEN: Thank you, Mr. President.

9 Again, I repeat my objection that this misstates the evidence.

10 If we turn to Ruez's testimony on day 16, so the 3rd of May,

11 2010, 1538, and we have from page -- line, sorry, 16 onwards, and we also

12 have 1537, lines 5 onwards. If you see on page 1538, we're actually

13 talking --

14 THE INTERPRETER: Would the counsel please speak into the

15 microphone.

16 MS. CHITTENDEN: Pardon me.

17 If you see on page 1538, we're actually talking about surface

18 remains, not mass graves, so that misstates the evidence. And as again,

19 as Mr. President has asked, I would ask you to please quote the

20 transcript when you put the question to the witness.

21 JUDGE FLUEGGE: If we could have that part of the transcript on

22 the screen, that would be helpful. Then the witness will be able to

23 comment on it.

24 MS. CHITTENDEN: If you can just scroll up on 1537 to start off

25 with, you can see the "600," and then again further down on 1538, from

Page 5909

1 line 16.

2 JUDGE FLUEGGE: 1537, lines 5 onwards, and 1538, line 16 onwards,

3 these are the portions Ms. Chittenden indicated that Mr. Tolimir was

4 referring to.

5 Can you see that on the screen?

6 THE WITNESS: I have nothing on the screen yet. But perhaps

7 I can give a general --

8 JUDGE FLUEGGE: Perhaps the Court Usher can help you to have it

9 on the screen.

10 THE WITNESS: All right.

11 I think the essential point, he seems to be referring to cases

12 that I had no dealings with whatsoever. Also, the only people that can

13 determine precisely how a person died are the pathologists. The

14 investigators can only give their -- their opinion from what findings

15 they have. And if that coincides with the opinions of the -- in the

16 mortuary, that's fine, but the two may well differ. I'm not sure there's

17 a great deal more I can say.

18 Again, I would reiterate that if it's put to me, from the cases

19 that I have dealt with and my findings, are these consistent with combat

20 casualties, people who have been shot in a combat and then buried, I

21 would say perhaps they are or perhaps they're not.

22 JUDGE FLUEGGE: Could we scroll up a little bit so that we can

23 see -- no, the other way around. 1538, lines 16 onwards, that was the

24 other portion.

25 Are you able to comment on that part?

Page 5910

1 THE WITNESS: Well, again, this is nothing -- nothing to do with

2 me. This is a Finnish team of pathologists, it would appear to be. I

3 have no idea what they found, so I don't think I can comment any further

4 on that.

5 JUDGE FLUEGGE: Mr. Tolimir.

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

7 I thank everyone, including Mr. Clark. I think you have managed

8 to assist me in getting an answer that I needed and didn't have, because

9 numbers of such victims do crop up. And I am glad that Ms. Chittenden

10 helped us find the right reference in the transcript.

11 MR. TOLIMIR: [Interpretation]

12 Q. Now, since this was done by a Finnish team of pathologists and

13 they dealt with surface remains, I'm just asking: If such surface

14 remains, about which we have witness testimony that they died in such and

15 such a way, if they are lumped together with all the other victims of the

16 conflict, is that really fair? Should we lump them all together or

17 should we make a distinction based on witness testimony?

18 A. That would be fine if we were able to identify which bodies these

19 were, but certainly, in our level of work, we were not able to

20 distinguish that. That might be possible nowadays, with DNA testing, to

21 identify individuals, and then, yes, it might be possible to extract

22 these individuals from the overall grave-site and look at them as a

23 separate group. But we did not have that facility. It might be

24 something that could be done, but that's a fair point. It might be fair

25 to extract that group of people and look at them individually and not

Page 5911

1 lump them in with the others. But I have no way of knowing, at the

2 moment, who was who in a mass grave.

3 Q. Thank you, Professor. I'll move to another area. I thank you

4 very much, because you shed light on certain facts that I needed

5 elucidated.

6 On page 7343 [Realtime transcript read in error "5343"], lines 10

7 to 12, you also said, and I quote:

8 "There were a number of those who had physical disabilities that

9 would have prevented them from being involved in combat."

10 Now, my question is: If we proceed from the fact that these are

11 bodies --

12 JUDGE FLUEGGE: Mr. Gajic.

13 MR. GAJIC: [Interpretation] Good morning to everyone.

14 Just one correction to the transcript. It's page 7343, lines 10

15 to 12. It's the testimony of this witness in the Popovic case.

16 THE REGISTRAR: And that, Your Honour, is under P00892.

17 JUDGE FLUEGGE: Thank you.

18 Mr. Tolimir.

19 THE ACCUSED: [Interpretation] I thank Mr. Gajic for this

20 reference. I believe the professor has now seen it and I can ask the

21 question, if the professor can see the lines indicated.

22 MR. TOLIMIR: [Interpretation]

23 Q. Have you found them?

24 A. I can't actually see them. But I think it's unlikely that I

25 would have used the word "prevent them from being involved in combat." I

Page 5912

1 would have said it makes it less likely, but I don't think I would have

2 ever have said "prevented them from being combat casualties." Certainly,

3 my evidence this morning was that the fact that a number of people had

4 disabilities would make them less likely to be combat -- a group of

5 combat soldiers. It's not impossible, but it's unlikely.

6 JUDGE FLUEGGE: Mr. Gajic, I'm not sure if you have the right

7 part of that testimony on the screen. I don't see anything in the lines

8 10 to 12 on this page. Now we have another one. We need 7343.

9 Now we have it on the screen. Yes, thank you.

10 THE WITNESS: Yes, I accept I have used the word "prevent" there.

11 Well, I mean it in the context that if you have somebody with a

12 very rigid elbow or a rigid knee, it -- well, it certainly would prevent

13 them from being -- using a weapon in the normal sense. So that's --

14 that's what I mean by that.

15 MR. TOLIMIR: [Interpretation]

16 Q. Thank you, Professor. I understand what you meant.

17 Let me ask you this: Having clarified the previous point, were

18 there many persons with physical disabilities that would have made them

19 unfit to do their compulsory military service, as determined by military

20 medical panels, and were these deformities negligible? I mean, was the

21 number of people with such deformities negligible, because I can't find

22 that in your report?

23 A. I think it -- Kozluk was an example of -- that was probably the

24 greatest proportion of people who did have significant disabilities.

25 That's -- I think I estimated about 4 per cent had a significant

Page 5913

1 disability. That, of course, is only the disabilities that we could see

2 on a skeletonised body. There may have been others which we could not

3 see. It is fair to say that in other sites, Nova Kasaba, Lazete,

4 Glogova, there appeared to be far fewer people with any significant

5 physical disability and that it was uncommon. Kozluk, it was more

6 common.

7 Q. Thank you. Professor, could you tell the Trial Chamber, how do

8 you determine this, because the bodies lay in the grave for a long time,

9 and as they moved from the primary to secondary graves, they sustained

10 further damage? How do you determine such things?

11 A. The main disabilities that we could see were disabilities in the

12 skeleton. Now, the skeleton will survive. The tissues of the body will

13 disappear. The skeleton will survive. So if somebody has an abnormal --

14 abnormality in the joint, for instance, in the elbow, that's still going

15 to be there. It's sort of fused together. Similarly, if somebody has a

16 glass eye, that is still there. Some people did have -- well, had

17 arthritis of the spine, nodules developing in the spine. That is still

18 visible. And one or two -- and those that did have tissues, there was

19 evidence of previous surgery, heart surgery, or metal plates in various

20 places. So evidence did survive in decomposed bodies, particularly when

21 it involved the skeleton.

22 Q. Thank you. I would then like to know how we are going to

23 determine heart surgery, previous heart surgery, if the heart is missing,

24 if the tissue is missing.

25 A. Two things. Sometimes the heart was still present. But in heart

Page 5914

1 surgery, you have to get in to the heart, and we had to do it -- a split

2 down the sternum, so that was still visible, with metal clips -- metal

3 stitches in the breastbone. That was still visible, and that is a very

4 strong indication of somebody who's had open-heart surgery. They split

5 the breastbone, pulls it apart, surgery's done and the breastbone is

6 stitched up with metal stitches, and that's -- they were still visible.

7 So that was the indication. I think there was only one, possibly two,

8 cases who showed signs of that, but they were there. That, of course, is

9 not necessary -- not necessarily a disability, because people have

10 open-heart surgery for a reason and they can recover very well from it,

11 but it was a finding nonetheless.

12 Q. Thank you, Professor. For instance, we had a typical situation,

13 I mean, the cases you worked on, wherein a number of persons you dealt

14 with were killed in the so-called break-out operation in an attempt to

15 cross from one territory to another in a fighting situation, that were

16 trying to break out of encirclement. Could you tell us if there are any

17 typical wounds that would characterise such an attempt to break out from

18 encirclement, and is that a typical military situation that you know?

19 JUDGE FLUEGGE: Again, Mr. Tolimir, it would be helpful if you

20 could give a reference to the relevant part of the reports of the

21 witness.

22 Ms. Chittenden.

23 MS. CHITTENDEN: Thank you, Mr. President.

24 That was my objection, or I was going to suggest that he could

25 put it as a hypothetical question to the witness, but not -- if he

Page 5915

1 doesn't have any evidence to refer to there. Thank you.

2 JUDGE FLUEGGE: But as Mr. Tolimir was referring to your reports,

3 you are perhaps able to give us an answer.

4 THE WITNESS: Yes.

5 Well, I don't think it's my place to determine what's a military

6 situation and what is not. But to perhaps try and help your answer, a

7 break-out situation would be, I would imagine, people, men, running

8 around and being shot. They could be shot from various directions,

9 perhaps once, perhaps several times. Our findings could certainly fit in

10 with that. But, equally, you could put to me another half-dozen

11 scenarios and I would probably be saying the same thing. But there's

12 certainly nothing that I can say this was highly characteristic of a

13 specific military operation. That's -- there's no way I could say that.

14 THE ACCUSED: [Interpretation] Thank you, Mr. Clark. Thank you,

15 Ms. Chittenden, and I apologise for not referencing the transcript, but I

16 just wanted to speak about it in general terms.

17 MR. TOLIMIR: [Interpretation]

18 Q. You spoke of this at page 7360, lines 11 through 15, where you

19 mentioned typical wartime situations, and you spoke of the

20 characteristics of modern warfare. And I was referring to one; namely, a

21 break-out situation. Perhaps you should have a chance to look at this

22 portion of your transcript, rather than me reading it in translation, and

23 perhaps then you can answer my question. Thank you.

24 A. I think I know what you -- what you're referring to.

25 What I was referring to is a paper in the medical literature

Page 5916

1 about in typical combat situations, and I'm thinking large conflicts,

2 that the characteristic injuries of victims are from explosions, rather

3 than bullets, and that more people are wounded, rather than killed. That

4 is looking at a conflict as a whole, perhaps the whole of the Gulf War,

5 Afghanistan, Vietnam, looking at it as a whole. Whether that pertains to

6 a very specific incident, which I think you're implying here, a very

7 specific incident, well, it might not apply to the very specific part.

8 All I can say, as a whole, the findings from the mortuary, in terms of

9 the type of injuries found, would point more to a non-typical military

10 conflict.

11 But to get back to your original question about whether the

12 injuries found could be consistent with a break-out, yes, it's a

13 possibility.

14 JUDGE FLUEGGE: Now we have that part of the previous testimony,

15 P892, on the screen.

16 Mr. Tolimir.

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

18 I apologise to everyone, especially to the professor, for not

19 referencing the relevant transcript page in time.

20 MR. TOLIMIR: [Interpretation]

21 Q. This is my question: Can it be established, to a reasonable

22 degree of certainty, the number of victims as a result of a combat in a

23 break-out situation, as opposed to a situation where we have individuals

24 shot before a firing squad or executed in some other way? Thank you.

25 A. I don't think I can separate the two very easily.

Page 5917

1 Q. Thank you, Professor. Can you tell us, why is it difficult to

2 separate the two? It is very important for us to know in this trial

3 because every added victim incurs a greater degree of responsibility.

4 Thank you.

5 A. Of course, it depends on how you say -- you're putting the

6 scenario of people being -- well, let me start -- in a break-out

7 situation, as you say, I'm imagining that these are men running off

8 somewhere and being fired at perhaps from varying directions, in which

9 case you would expect gun-shot injuries to different parts of the body,

10 different numbers per person. And certainly in a substantial portion of

11 the bodies we saw, that could fit.

12 A firing squad, I think the general picture one would get would

13 be that men standing up, either facing or from behind, and shot once or

14 twice or more times all in the same part of the body or the same surface

15 of the body, then there are cases in these graves which would equally fit

16 with that.

17 THE ACCUSED: [Interpretation] Thank you, Professor, for the

18 answer.

19 JUDGE FLUEGGE: Mr. Tolimir, the witness just stopped because you

20 were in discussion with your legal assistant.

21 THE WITNESS: Yes.

22 JUDGE FLUEGGE: He didn't finish his answer. Please let him

23 continue with his answer.

24 THE WITNESS: I was going on to say that there were a certain

25 number of bodies in which we found only one injury, a single gun-shot

Page 5918

1 injury to the back of the skull or the side of the skull, which could

2 certainly point to an execution or a firing squad-type injury, as opposed

3 to a break-out. That would fit much more with that. One group of --

4 I can think of one group particularly in the Glogova graves of 12 men

5 tied together, each with a bullet hole in the back or the side of the

6 head, ligatures 'round the wrists. I hardly think that they would be

7 classified under break-out. They're much more likely to be a specific

8 firing squad or whatever.

9 So I think within -- within all our cases, you could find

10 examples of -- which would fit with your scenario of a break-out, some

11 that could fit with the scenario of a firing squad, and some, perhaps, an

12 even closer style -- execution-style killing.

13 MR. TOLIMIR: [Interpretation]

14 Q. Thank you, Professor, and I apologise for interrupting you. I

15 thought you had completed your answer.

16 I wanted you to answer this based on your experience. This is

17 something that you did not explore, yourself, but it's something that we

18 have to deal with. This was an area where there was combat, and both

19 sides are aware of this. And so there was a large number of victims;

20 2.500 to 3.000, they were all buried in mass graves, and it is common

21 knowledge that they were taken there from an area where there was combat,

22 where there was an attempt to break out to cross over to free territory.

23 Thank you.

24 JUDGE FLUEGGE: Ms. Chittenden.

25 MS. CHITTENDEN: Again, Mr. President, I object. That completely

Page 5919

1 misstates the evidence in this case. Thank you.

2 JUDGE FLUEGGE: Mr. Tolimir, if you are putting a fact to the

3 witness, you should be precise and give a reference, please. Otherwise,

4 the witness is not in a position to comment on it.

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

6 I understand your position and the position of Ms. Chittenden. I

7 did say that the witness, himself, did not work out in the field, and we

8 have the problem of victims being lumped together into mass graves,

9 regardless of what the cause of their death was. That's why I put this

10 question to him, based on his experience. But I will withdraw the

11 question, if I have to, since I'm unable to reference the transcript page

12 at this point. Thank you.

13 THE WITNESS: If I could just --

14 JUDGE FLUEGGE: This was not what I -- that was not my guidance.

15 You shouldn't withdraw your question, but rephrase your question. If you

16 are putting to the witness this was an area where there was combat, both

17 sides were aware of this, and so there was a large number of victims,

18 2.500 to 3.000, if you are putting questions, it is not necessary to have

19 such a statement if you have no reference. So that perhaps you should

20 rephrase your question without such a statement of a fact which we don't

21 know where you did obtain it from. Perhaps you could just rephrase your

22 question and then continue.

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

24 I will rephrase my question. I don't know the exact references,

25 and I believe that everyone, including the Prosecution, know that this

Page 5920

1 was fighting that was going on in an attempt to break out of the area.

2 This is something that is known to all the parties. But let me rephrase

3 the question.

4 JUDGE FLUEGGE: I think, Mr. McCloskey, at the moment

5 Ms. Chittenden is taking this witness, and now after this last --

6 Mr. Tolimir agreed to rephrase the question. He should do it, and then

7 we receive the answer. Please let him continue.

8 MR. McCLOSKEY: May I speak, Mr. President?

9 JUDGE FLUEGGE: No. I think only -- now it is Ms. Chittenden who

10 is taking this witness. It is quite difficult also for the accused to

11 have two counsel responding.

12 Mr. Tolimir, your question, please.

13 MR. TOLIMIR: [Interpretation] Thank you, Mr. President.

14 Q. Professor, in the course of your work in Bosnia-Herzegovina, for

15 instance, in relation to the autopsies of victims related to the fall of

16 Srebrenica, did you draw upon the services of legal advisors who would,

17 for instance, present you with their theory of what had transpired?

18 Thank you.

19 A. No, only in the context of the courts, when various scenarios

20 were put to me, as you are doing now.

21 Q. Thank you. In the Popovic case, in answer to the question as to

22 whether your role, as a forensic pathologist, was to dispute any cases or

23 was your role to work toward the verdict of conviction, now, at

24 page 7386, lines 14 to 15, you said:

25 "My role was to collect evidence, and it was up to others to

Page 5921

1 interpret the evidence."

2 Now, at page 7387, lines 15 to 16, you stated:

3 "I wanted to collect information about the individuals as openly

4 and as impartially as possible, and it was up to others to interpret my

5 findings."

6 Does this mean that it was not up to you, as a pathologist, to

7 establish whether a person was killed in combat or was, for instance,

8 shot, executed, and that you should draft your report without presenting

9 any such findings? Thank you.

10 A. Yes, the latter. It was not my role to decide issues --

11 military -- or specific situations. I've given my findings and again

12 emphasise that nowhere in that will you find that I've said this is

13 definitely combat casualties or this is definitely execution, et cetera.

14 From time to time, I have phrased it in such a way that this would -- the

15 evidence would suggest that, perhaps suggest that or point to that. But,

16 no, it is my role to establish what findings there are, and if that

17 agrees with the proposition put to me by the Prosecution or the Defence,

18 that's fine, but equally it may -- my evidence may go against either of

19 these or not go with it. I'm, if you like, a servant of the Court. I'm

20 not a servant of the Prosecution or the Defence.

21 Q. Thank you, Professor. That's why I was curious about certain

22 points and asked you about it, because I didn't know how to interpret

23 them. I'll move to a different area now, and I thank you for all the

24 answers you've given me in this particular area.

25 THE ACCUSED: [Interpretation] Can we call up P894, please. This

Page 5922

1 is the report by the chief pathologist, entitled -- titled "Srebrenica

2 Grave-Sites." Can we call up -- or, rather, turn to page 2 in both the

3 Serbian and English versions. That's a portion titled "Autopsy Report."

4 We have it on our screens. It reads:

5 "An autopsy report was completed for each body and body part ..."

6 MR. TOLIMIR: [Interpretation]

7 Q. This is my question: Was an autopsy of body parts carried out

8 only once these body parts were associated, and I suppose it was done by

9 the anthropologist, or if not, can you tell us in what way was an autopsy

10 of body parts conducted? Thank you.

11 A. We made no attempt to re-associate body parts with bodies. We

12 dealt with the bodies, and then we had a large number of body parts, and

13 we described -- we produced a report for each of the body parts. It was

14 inevitably a much smaller report because we might have been dealing with

15 just a forearm or a hand, so it was a much smaller report, but there was

16 a report for each one. But we made no attempt -- other than, if it was

17 very obvious, we made no attempt to link a body part with a body. That

18 has been done subsequently, nothing to do with me, and all the evidence

19 I'm speaking about in the reports is really to do with the bodies and not

20 the body parts. It's perhaps stretching it to say autopsy report on a

21 body -- on a hand or a forearm. It's a report -- an examination report.

22 "Autopsy" would imply a lot more, but it certainly is an official report

23 on each of the body parts, and that was done without any attempt at

24 association of them.

25 Q. Thank you for your answer, Professor. Please tell us, based on

Page 5923

1 what you've just described for us, is it possible to present a higher or

2 a lower number of victims in connection with the body parts that were not

3 linked to a body? Thank you.

4 A. Yes, I think I know what you're getting at there. The numbers I

5 have given and are working with are just the whole bodies. The

6 anthropologists, perhaps by looking at the body parts, could indicate

7 that these body -- some of these body parts will be coming from other

8 bodies which we have not seen. For instance, if -- if all 56 bodies in a

9 grave all have a left arm, and we find a body part of a left arm, clearly

10 it's another individual, and by -- that's a simple example. But by such

11 an exercise, it may be possible to say, well, from these body parts,

12 there must be at least another four or five or more individuals

13 represented in that grave-site; the rest of the body, we have not seen.

14 So that is why you may see varying figures. That's -- I have not

15 worked -- my calculations are not worked -- are not based on that.

16 They're based on physical bodies which anybody could count, one, two,

17 three, four. We can see them, and that's what my calculations are done

18 on.

19 Q. Thank you, Professor. Bearing in mind the answer you've just

20 given us, please answer this: In drafting these autopsy reports - I

21 suppose that's what they're called - did both the pathologist and

22 anthropologist write a single report for every body or were these two

23 separate reports that were produced? Thank you.

24 A. It's a fair point. There certainly is a report produced by the

25 pathologists. The anthropologists would have -- they did their own

Page 5924

1 report for each case as well, and from that, from their report, they gave

2 us certain information which we would find useful in our report; for

3 instance, of the age, the sex, and things like that in a body. But as

4 far as I understand it, they have their own separate documentation. I

5 don't know in what format that was produced, whether it was produced into

6 an official report or not, but they certainly had all their own

7 documentation.

8 Q. Thank you, Professor. To have a complete answer from you, tell

9 me, does this mean that there would ultimately be the final versions of

10 reports by anthropologists and by pathologists? Thank you.

11 A. Yes, there could well be, but we are looking at different things.

12 I think the pathologist's report is what everybody understands as an

13 autopsy report. Description of the body, cause of death, that's a

14 standard autopsy report. The anthropologist will be producing their own

15 report, but entirely for identification, and listing of bones, and aging,

16 et cetera, information. They make no attempt -- as I understand it, they

17 make no attempt to talk about causes of death or interpret all the

18 findings that I've interpreted. I don't know if that helps to answer.

19 Q. Thank you, Professor. It is helpful.

20 To have a complete understanding of what you're saying, as a

21 layman, please tell me, did anyone analyse these two reports and draw

22 findings as to the contents of a grave holding 100 to 200 bodies? Thank

23 you.

24 A. They may well have. I have no idea of that.

25 Q. Thank you. If this was not the case, would these reports then be

Page 5925

1 considered as two separate reports? Thank you.

2 A. There may well be a report from archaeologists, anthropologists,

3 giving an idea of the overall number of bodies in a grave-site. My

4 report deals with, simply, the whole bodies or virtually the whole bodies

5 that we dealt with, and I'm quite happy to believe that if I'm dealing

6 with 200 bodies from a grave, by other calculations, looking at body

7 parts and other things, there may well have been 230 bodies. I don't

8 know. But I'm -- I'm sticking strictly to the bodies that I can analyse.

9 I would imagine that somebody has looked at these body parts and tried to

10 estimate numbers of individuals, but it's not something that I've been

11 involved in.

12 Q. Thank you, Professor. In order to fully understand what you've

13 just told us, can you tell us, what were the facts that a pathologist

14 dealt with and what were those that an anthropologist would deal with, as

15 well as an archaeologist, whom you've just introduced, in order for me to

16 be able to understand, whilst looking at reports, which concern what sort

17 of facts and issues? Thank you.

18 A. Yes. Probably starting at the archaeologist, the archaeologist

19 is looking at the physical grave, the structure of it and the findings

20 within it, the general findings within it. The anthropologist, as I've

21 explained earlier, is helping -- is assisting both the archaeologist and

22 the pathologist in identifying the individual people and trying to assess

23 how many there are. And the pathologist, at the other end, is -- his

24 main task is -- having been presented with these bodies, is to look at

25 them in detail, list injuries, other findings, and come to a cause of

Page 5926

1 death.

2 Now, the pathologist is the only person who will be looking at

3 the -- or listing the injuries in detail, looking at the clothing,

4 looking at the other findings, and coming to a conclusion about how that

5 person has died. Nobody else has done that. Equally, the pathologist

6 has nothing to do with how a grave is constructed or the other contents

7 in a grave. That's the archaeologist's field.

8 So the anthropologist sort of comes in in the middle there as

9 assisting both parties.

10 Q. Thank you, Professor. Now, based on what you just said about the

11 work of the pathologist, the work of the anthropologist, and the work of

12 the archaeologist, I realised that the most meritorious is the report of

13 the anthropologist because they take into account all the aspects of what

14 is found in the graves, in clothes, and the contents of pockets,

15 et cetera. Would it be fair to say that the report of the pathologist

16 is, in fact, the most authoritative, compared to the reports of other

17 experts?

18 A. Well, just to correct you, you have said that the work of the

19 anthropologist, they take into account of clothes, the contents of the

20 pockets. They don't. They had nothing to do with that. That, if

21 anything, is the role of the pathologist.

22 Well, I mean, overall, in terms of why people have died, yes, the

23 pathologist's report is the most important, but I'm bound to say that in

24 terms of the circumstances of the deaths and the burial of the bodies,

25 then the archaeologist has the important role there. So we all do have a

Page 5927

1 different role. But if you're looking at you've got somebody who was

2 living and then somebody who's dead, why have they died, the pathologist

3 has the main importance in establishing that.

4 Q. Thank you, Professor. That's what I meant. Perhaps I've phrased

5 my question inaccurately. Anyway, I have to work through interpretation.

6 What I meant to say was exactly what you just said. The pathologists are

7 helped by anthropologists and archaeologists in forming their conclusions

8 about the circumstances.

9 Now, as to determining trauma injuries on bodies found in

10 grave-sites, most of the bodies you dealt with were skeletonised. In

11 such cases, would the role of the pathologists be even more prominent,

12 compared to the roles of other experts in these cases, anthropologists

13 and archaeologists?

14 A. Well, first, archaeologists had no -- no role in the mortuary at

15 all, so the archaeologists are not in the mortuary. The only two experts

16 in the mortuary are the pathologist and the anthropologist.

17 You said that most of the bodies were skeletonised. That's not

18 entirely true. Quite a lot did still have some tissue on them, and

19 certainly in some graves. But apart from that, the main evidence of

20 trauma that we had to look at was trauma to the skeleton, to the bones,

21 because the bones remain, tissues disappears. So, really, all our

22 evidence is coming, by and large, from what's on the skeleton.

23 Now, we, as doctors, pathologists, know what a skeleton looks

24 like, in the same way we know what other parts of the body look like.

25 The anthropologist has a specific expertise, just in solely looking at

Page 5928

1 the bones, so naturally they have a lot to contribute to helping us to

2 decide which bone is which, what part of it, if it's in several

3 fragments, trying to link them together. So we really worked together --

4 closely together, but it's the pathologist that decides, yes, there's an

5 injury to that bone, what does that mean. You don't die from damage to

6 the bone. You die from damage to the tissues 'round about, blood vessels

7 and what have you. So it's really only the pathologists, from their

8 routine practice in their own countries, looking at fresh bodies, can

9 say, well, as you get damage to the bone, it's highly likely you're going

10 to get damage to an organ 'round about, and that's likely to prove fatal.

11 So that was where -- that's where the pathologists differ from the

12 anthropologists. Anthropologists assist us, but we take the final

13 decision.

14 Q. Thank you, Professor, for clarifying this for my purposes.

15 THE ACCUSED: [Interpretation] May I now call up in e-court

16 pages 6 in English and Serbian of P894. Thank you. It will be easier

17 for me to put my question and for you to answer once we see the document.

18 Now we have it in both versions.

19 MR. TOLIMIR: [Interpretation]

20 Q. "As it was said before, 292 whole or largely complete bodies and

21 233 body parts were recovered from the grave, the majority from KK3.

22 From anthropological calculations, this constituted a minimum of

23 340 individuals."

24 I believe you noticed that this concerns the number of bodies.

25 You are here recording an estimate by anthropologists. Does that mean

Page 5929

1 that the minimum number of individuals found in the grave is not your

2 estimate, your calculation; it's something, rather, that you accepted

3 from anthropologists?

4 A. Yes.

5 JUDGE FLUEGGE: From anthropologists or from archaeologists?

6 THE WITNESS: From anthropologists.

7 JUDGE FLUEGGE: Thank you.

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

9 MR. TOLIMIR: [Interpretation]

10 Q. What importance is it to the pathologists the number of bodies

11 found in a grave, considering that there are also body parts, as

12 indicated here?

13 A. Well, in this grave there were a large number of body parts. We

14 were aware that this was a grave, as I recall, which had been disturbed,

15 and we imagined that most of the body parts were represented, parts of

16 bodies, damaged in removing other bodies from that grave. I mean, you

17 can get a body part for a number of reasons: One, it could be -- could

18 have been separated off in an injury, perhaps in a blast injury, so a

19 foot comes off. That becomes a body part created in life. Secondly,

20 if -- over the years, as bodies decompose and the normal tissues holding

21 parts together, the joints, they will disappear, and so a hand can fall

22 off or an arm can fall off the rest of the skeleton because there's not

23 tissues to join it. Or, thirdly, it could be that the bodies have been

24 disrupted at a later stage after death, perhaps in excavating a

25 grave-site, in robbing, as it's called, removing bodies from it. You can

Page 5930

1 imagine that during an attempt to do that, bodies will be disrupted and

2 we'll be left with parts of bodies, and that is what appeared to be us --

3 appeared to us to be the explanation here.

4 Q. Thank you, Professor. I don't intend to ask anything for pure

5 curiosity. I am asking this because I need it.

6 Since we are dealing with approximately 41 bodies here, a few

7 more or less, do all these body parts that are said to have constituted a

8 minimum of 340 individuals, have they all been subjected to DNA analysis?

9 JUDGE FLUEGGE: Ms. Chittenden.

10 MS. CHITTENDEN: Thank you, Mr. President.

11 I'm just wondering where the reference to 41 bodies came from

12 there. If we could have a reference to that, please.

13 JUDGE FLUEGGE: Mr. Tolimir, can you help us?

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

15 I'm quoting from this text on page 6. It deals with the Kozluk

16 grave, and it says, I quote:

17 "As stated previously, a total of 292 whole bodies," 292, I

18 repeat, "and 233 body parts were recovered from the grave, the majority

19 from KK3. From anthropological calculations, this constituted a minimum

20 of 340 individuals."

21 I was looking at a difference between 292 and 340 to see what

22 accounts for the total number shown here in court, and if there are any

23 significant discrepancies we should take into account.

24 THE WITNESS: Yes, I think what you're posing, do all the body

25 parts -- do they constitute the missing 42 people -- 48 people, I think.

Page 5931

1 I don't know how much association has gone on since. I would imagine

2 that some of these body parts did come from the 292 bodies, but that

3 was -- that could not be the explanation for all of them, and that a

4 substantial number of the 233 were parts of bodies, the rest of which had

5 been -- was missing. Now, it may be that since then, there has been an

6 attempt to associate these body parts with bodies in other graves,

7 perhaps, but I don't know the results of that. But certainly there

8 are -- there are major parts of bodies missing from this site, that we

9 only -- all we had was some body parts for them.

10 MR. TOLIMIR: [Interpretation] Thank you, Professor.

11 Q. Could you explain, when the number of body parts -- does that

12 imply mutual association of body parts that have not been related to any

13 bodies? Can you explain whether these body parts have been associated

14 with these bodies, or were they lying independently in the grave, quite

15 independently of the bodies?

16 A. I can't answer that with any authority because I didn't see them

17 in the grave. I would imagine that when the bodies were being removed,

18 if this was even -- it was separated from a body but it was obviously

19 linked with it, that would be -- at the time when the body was removed,

20 would be linked in with the body. So, for instance, if you had a man

21 lying face down on the ground, and there was just him, and there was a

22 left arm beside him, he had no left arm, and it was lying right beside

23 the body, I think the decision would have been taken at the grave to

24 include that into him, and that would be a body.

25 So the fact that there are identified body parts would be parts

Page 5932

1 of bodies which those people in the field team really could not associate

2 with any body 'round about, that appeared to be quite separate. Now,

3 where they were, whether they were all in one part of the grave or

4 distributed throughout the whole of the grave, I don't really know that.

5 Q. Thank you, Professor. I ask this because it says "body part,"

6 and that's not the same as "bodies." I was thinking perhaps they are

7 linked to the bodies or they are entirely separate and have nothing to

8 do -- no features in common with the bodies found in the same grave.

9 A. I think you can be sure that if, for various reasons, we thought

10 a body part belonged to a particular body, for instance, if it had the

11 same clothing on or it was very -- lying right beside it, or there was

12 some other feature, we would have included that into the body. But the

13 vast majority of body parts, we were not able to associate in the

14 mortuary. We had neither the time nor the facility to try and link them

15 up.

16 Q. Thank you, Professor. When you say "body part," do you mean one

17 bone, separate from the other bones in the grave, or do you mean mutually

18 associated bones, a group of bones?

19 A. I think, well --

20 Q. [No interpretation]

21 A. Both -- it could have been one single bone, like a femur, but

22 most often it was a small part of a body, like a forearm, a whole arm, or

23 a leg, or a foot. I think if one individual bone was found, a bone from

24 a foot or a hand, they were generally collected all together and dealt

25 with -- dealt with in that way, and there was no attempt -- we didn't

Page 5933

1 really do very much on that. So "body part" means what you and I would

2 imagine it means. It's a part of a body which we can identify as a small

3 part of it.

4 Q. Thank you, Professor. You see here the subheading

5 "Preservation," the penultimate paragraph in both versions. It says:

6 "The degree of decomposition of the bodies varied greatly, no

7 doubt reflecting their respective position in the grave, the protective

8 effect of adjacent bodies, and how wet or dry that particular area was."

9 And you go on to say:

10 "A substantial number were surprisingly well preserved, with

11 intact leathery skin and recognisable internal organs."

12 Could you explain in more detail this phenomenon wherein

13 different bodies in the same grave are found to be in different degrees

14 of decomposition, and have you come across such cases in other

15 grave-sites, apart from this one?

16 A. Yes. I think if -- in all my work in Bosnia and Croatia and

17 elsewhere, the thing that has surprised me more than anything is the

18 unpredictability of the preservation of bodies in graves. And you're

19 quite right to show surprise that one body in a grave is relatively well

20 preserved and another one is not, it's a lot decomposed. I don't know

21 the complete answer to it, but I can only imagine that it's what we call

22 micro-climate, it's really just what's happening in that particular

23 little area of the grave. It may be that because there's other bodies

24 pressing on it, protecting it. It may be that particular grave is more

25 moist than others, I don't know, or how deep in the grave they are.

Page 5934

1 These are all things which I think we need to look at more. But it was a

2 striking feature that sometimes some bodies were extremely well preserved

3 and others weren't, and this did -- because I've not just worked on

4 Srebrenica sites, but I've seen this in other sites as well.

5 Q. Thank you, Professor. Could you please tell us, in view of this

6 phenomenon: Before your pathological examination of the grave-sites,

7 were there other experts examining the same graves, such as

8 archaeologists and anthropologists, who provided you with information

9 about bodies, about the degree of moisture, and other conditions in the

10 grave? Did you receive such information before you proceeded with your

11 own examination?

12 A. Nothing -- nothing official. Perhaps we might have chatted at

13 various stages and both expressed some surprise or observations about

14 these things, but I certainly -- we received no official indication.

15 Q. Thank you, Professor. Speaking about this particular case, were

16 there bodies dating back to different periods in the same grave or were

17 they all from approximately the same period?

18 A. I don't know the answer to that. I think it's entirely possible

19 that some bodies could have been in the grave longer than others, it's

20 been added to, but if somebody was to tell me that, no, all the bodies

21 were put in the grave on the same day, I -- I couldn't argue against that

22 either. I mean, one of -- perhaps the other factors about decomposition

23 of a body is how soon after death it goes in the ground, because bodies

24 decompose because of bacteria in the body, and if it's sort of a warm

25 environment or outside, then the body will begin to decompose quite

Page 5935

1 relatively quickly. If the body is buried quickly and then goes into,

2 therefore, a cold environment without any air, then decomposition will be

3 slowed down. So the good preservation of a body may or may not be a

4 factor of having been buried very early -- very shortly after death.

5 That may be a factor.

6 Q. Thank you, Professor. Can you tell us, was there any examination

7 done into when the bodies may have been buried, and were there any

8 differences in the time of burial in the same grave?

9 A. I'm sure there were investigations in that line. I know the

10 archaeologists would be able to tell different times of burial from the

11 construction of the grave and the soil that's been put on it. I just

12 know that from general knowledge and chatting to people. But from a

13 pathologist's point of view, we can't offer any guidance on that at all.

14 Q. Thank you. Is there any standard in the pathological -- in the

15 pathologists' profession as to how fast bodies decompose, perhaps based

16 on the calcium content in the bones and other factors that may help

17 determine the age?

18 A. I'm not aware of the issue about calcium content, but it may well

19 be that that is a factor. I don't think it's the main factor in

20 decomposition. I mean, all bodies will decompose, and we see this

21 regularly in our own practice, decomposed bodies. I know that a body in

22 a warm environment would decompose much more quickly than one in a cold

23 environment. A body in water will decompose in a different way from a

24 body on -- exposed to the air or underground. I mean, there's quite a

25 lot of documentation about that. But I think, equally, there's actually,

Page 5936

1 I think, a lot that we still need to learn, and these cases from these

2 grave-sites have certainly opened my eyes to the variety of changes and

3 the unpredictability of it all. I think we read in the pathology

4 textbooks that you get one particular type of decomposition with a hot

5 environment, one with a dry environment, one in water, and we tend to

6 think they're all separate, but, in fact, you can see all three changes

7 in the one body.

8 That's quite a long answer, and I'm not sure if that -- what the

9 original question was. But decomposition is an area which we're still

10 learning about.

11 Q. That was precisely my question. What is the main criterion for

12 determining the degree of decomposition of a body, as applied in this

13 case? Was it the changes that you discussed in previous answers? What

14 was the reason why these changes occurred faster in some bodies than in

15 others in the same grave?

16 A. We made no real attempt to interpret the decomposition. All

17 I can say is that these bodies were not fresh. The appearances would

18 suggest that they have been dead for at least several months, and very

19 possibly years. Now, I cannot say that they've been dead for

20 three years, four years, or five years. After a while, the changes all

21 merge into each other. But -- so we made really no attempt to specify

22 particularly when these people died.

23 THE ACCUSED: [Interpretation] Thank you, Professor.

24 Can the professor be shown page 7 in e-court.

25 JUDGE FLUEGGE: Before we move to the next part of this document,

Page 5937

1 perhaps this is the right time for the second break, and you should

2 continue after the break.

3 We will adjourn and resume at 1.00.

4 --- Recess taken at 12.32 p.m.

5 --- On resuming at 1.04 p.m.

6 JUDGE FLUEGGE: Yes, Mr. Tolimir, please continue your

7 cross-examination.

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

9 MR. TOLIMIR: [Interpretation]

10 Q. My next question would be: If the witness can recall his

11 previous answer, when we discussed clothing, or perhaps it would be good

12 to look at page 7 of this report. I don't know if you have it in front

13 of you, where it says:

14 "Clothing was still present on nearly all the bodies, some with

15 just a few light items, others with several layers."

16 Layers of clothing, I suppose.

17 Now, my question is: Can you recall if there was some kind of

18 regularity about this, in which part of the grave were the bodies with

19 more clothing and in which part of the grave there were bodies with just

20 a few items of clothing, and is this difference perhaps due to the

21 personal habits of the individuals found in the graves or is it because

22 clothing was removed before the bodies were buried?

23 A. Yes, I follow your question. I don't -- we made no analysis of

24 that at all. I don't know where a particular body was in the grave.

25 That information will be available somewhere, but it's not something that

Page 5938

1 I've seen or certainly not analysed, so I can't really help you there,

2 I'm afraid.

3 Q. Thank you. I'm interested in this issue for practical reasons.

4 For instance, if we have items of clothing which have gunpowder on them,

5 and if the gunpowder found on the clothing is sent for analysis, one can

6 establish the distance from which the individual was fired upon. So I'm

7 asking you, were pieces of clothing sent for further forensic analysis in

8 order to establish the distance from which the individuals found in the

9 graves that you examined were fired upon? Thank you.

10 A. No, they weren't. And I think analysis of clothing for gunpowder

11 residue in the situation of a mass grave would be meaningless because of

12 potential transfer from one body to another. It would be one thing to

13 look for that at an individual -- at an individual grave, but in a mass

14 grave would be meaningless. You would perhaps prove gunpowder on a -- on

15 clothing, but it could be argued that came off another body at whatever

16 stage. But certainly we sent no clothing for fire-arms residue.

17 I think, perhaps just to help the Court, what you're probably

18 getting at is that one of the features of trying to identify distance of

19 fire is some of the other things that come out the end of the -- end of

20 the gun, and with -- that means smoke and flame and various other things.

21 And if a person is shot at very close range, then on the body or the

22 clothing, in addition to the hole from the bullet, you will see the smoke

23 and perhaps even flame -- burning which is coming out of the barrel as

24 well. If you go further away, and I mean even just a few feet, then the

25 only thing that strikes the body is the bullet, because the flame and the

Page 5939

1 powder don't travel any distance. They only travel a few inches or, at

2 most, a few feet.

3 So I know what you're trying to get at. If we looked at -- for

4 gunpowder residue, could that -- that might indicate that was at close

5 range, the short answer is, no, we did not look at that.

6 Q. Thank you, Professor. Was clothing examined in order to

7 establish if these individuals used weapons? For instance, if I was to

8 operate a gun, I would have gunpowder residue on my hands, and there

9 would also be gunpowder residue on my -- on the clothing of the person

10 shot at? Thank you.

11 A. Well, I go back to what I said earlier, that anybody -- just

12 because you fire a gun or you are shot doesn't mean to say there will be

13 gunpowder residue there anyway. There are various conditions that apply.

14 But, certainly, we made no attempt to look for any gunpowder residue on

15 people's hands. I mean, the same argument applies, that it's meaningless

16 in a mass grave, and on somebody -- a body that's decomposed, would be

17 extremely difficult anyway. So we didn't look for it, nor do I think any

18 results we got would be in any way meaningful.

19 Q. Professor, I wasn't referring to body parts, but to pieces of

20 clothing, such as sleeves, for instance, or the pieces of clothing where

21 the entrance or exit hole are located. Thank you.

22 A. Yes. Well, I've -- that's what I was imagining you were meaning,

23 and I think I've answered that, that in an ideal case, in an individual

24 body, it's certainly something we would look at. But it wasn't done, and

25 it's inappropriate, really, in the situation of a mass grave, unless with

Page 5940

1 very specialised techniques, which we didn't have.

2 Q. Thank you, Professor. Can you please tell us, what specialised

3 techniques are these that could possibly be applied in this case? Thank

4 you.

5 A. Well, not really in this case. I'm straying outside my expertise

6 here, but I'm aware that in cases in a normal practice, one can look at

7 tissues, even bone, under a special electro-microscope, and this can

8 detect particles that we wouldn't see maybe in other ways. But I don't

9 know much about that, and it certainly would have been impossible in a

10 situation like this. So, I repeat, it wasn't done.

11 THE ACCUSED: [Interpretation] Thank you, Professor.

12 Can the professor be shown page 8 in Serbian and English. This

13 is the basis for my question.

14 MR. TOLIMIR: [Interpretation]

15 Q. I'm interested in the distribution of shots. We can see from

16 here that most of the shots were to the trunk, so this is my question:

17 In your experience, would normally, in combat situations, most of the

18 wounds be inflicted in the area of the trunk?

19 A. I don't actually know the figures. I'm not aware of figures from

20 general combat situations. But I would imagine -- the trunk is the

21 largest part of the body, so it's the one that's likely to get the most

22 number of shots. I don't know how that compares in detail with other

23 conflicts, but I wouldn't have thought it differed a huge amount.

24 Q. Professor, you obviously stand by what is stated here, so hence

25 my next question.

Page 5941

1 Please look at the last paragraph on page 8 in Serbian, which my

2 assistant tells me is page 9 in English. It's the first paragraph on

3 that page. So I'm interested in the frequency of shots to legs, that

4 particular paragraph. That's the second paragraph on page 9 in English.

5 Thank you. We can see it on our screens, my assistant tells me.

6 I'm interested in the frequency of shots to the legs, which is

7 touched upon here, and those shots being more common than shots to the

8 head:

9 "... it could be argued that a proportion of 27 per cent was no

10 more than might be expected from random distribution, given that the legs

11 account for approximately 36 per cent of the body surface, there must be

12 a possibility that at least some of these injuries represented deliberate

13 disabling shots to the legs, mostly followed by fatal injuries elsewhere,

14 though the latter need not necessarily always have applied."

15 I rushed through it, but I suppose you could read it in English

16 for yourself.

17 This is my question: In the course of examination, were you able

18 to establish the order in which these wounds were inflicted, whether legs

19 were shot first and then next followed something else? Was this

20 something that was based on facts or on the general experience of

21 pathologists? Thank you.

22 A. No, I can answer that very quickly. I cannot tell that shots to

23 the legs occurred before or after shots elsewhere.

24 THE INTERPRETER: Microphone, please.

25 MR. TOLIMIR: [Interpretation]

Page 5942

1 Q. In relation to what you said here about random distribution, does

2 this mean that it was a random distribution of shots, or was it the

3 result of an intent? I want to have your answer complete on the record.

4 Thank you.

5 A. I think, as I've said in the report, that this could just be

6 random shots, and it just happens to be going into the legs rather than

7 the trunk or the arms. But I think why I raised this possibility, there

8 were a number of cases, and I've illustrated one, in which really the

9 only injuries we found were injuries to the legs, and I've illustrated

10 one particular one. It just raised in my mind the possibility of

11 targeting of the legs, but no more than that, really. It's just raising

12 the possibility.

13 JUDGE FLUEGGE: May I interrupt you for one question,

14 Mr. Tolimir.

15 Is there a possibility to establish if the person who was

16 shot was still standing or lying on the ground when shot?

17 THE WITNESS: I can't remember the specific details of that, but

18 we could tell if it was -- the shot was going from above, down the top of

19 the foot. I think, from memory, the -- we thought the person was

20 standing or was -- the foot was flat on the ground, shall we say.

21 JUDGE FLUEGGE: My question was not related to this specific

22 case, but in principle.

23 THE WITNESS: In principle, we can tell -- it's not all that easy

24 with injuries to the feet. With injuries to the skull and some other

25 bones, it is possible to tell the direction of the shot and perhaps the

Page 5943

1 position the person is likely to be in. I think with the feet, it's a

2 lot more difficult, and I couldn't really say with any great degree of

3 certainty whether they were upright or in any other position, in general

4 terms.

5 JUDGE FLUEGGE: And if you say "feet," you mean also legs, or is

6 it different with the legs?

7 THE WITNESS: Legs, it's a bit -- it's a little bit more easy to

8 determine direction of shots in the legs. And sometimes we would be in a

9 situation in which we thought a single bullet had caused more than one

10 injury in the leg. Perhaps if the knee was bent, a single bullet could

11 cause an injury to the thigh and to the lower leg, and that might -- that

12 would perhaps indicate the person was sitting on the ground or whatever.

13 I think, generally, it was not all that easy to see what position the

14 person was in when they were shot.

15 JUDGE FLUEGGE: I'm asking that because you were asked by

16 Mr. Tolimir if some of the wounds on the legs were caused by shots before

17 the shots on the chest or after.

18 THE WITNESS: Yes, I understand the question entirely, and

19 I think the answer is it's very difficult to say one way or the other.

20 JUDGE FLUEGGE: Thank you very much.

21 Mr. Tolimir, please carry on.

22 MR. TOLIMIR: [Interpretation] Thank you, Mr. President.

23 Q. In order for us to be able to examine a specific situation, can

24 you tell us, is it a typical occurrence that certain -- that incoming

25 shots would hit the chest more often, whereas the outgoing -- or shots to

Page 5944

1 the back would actually hit the legs? So if you had a person running

2 away from you, you would most often shoot him in the leg, whereas if you

3 have a person approaching you, you would rather be targeting the upper

4 part of the body or the head? Is there anything you can tell us about

5 this?

6 A. No, there's no way I can read into the mind of people who are

7 shooting. That may be a possibility, but it's not something I can

8 comment on.

9 Q. Thank you, Professor. My intention was to draw a conclusion from

10 your answer when we have a typical combat situation and a typical

11 non-combat situation. That's why I needed to have your opinion on this.

12 Thank you.

13 Did you draw a conclusion that some of the victims died in what

14 was typically a combat situation, whereas others died in what was

15 typically a non-combat situation? Thank you.

16 A. Not really, but I'm happy to accept that some of the bodies we

17 found were -- could have been in a combat situation. Equally, as I've

18 already said, there are a number of bodies in these graves which looked

19 far more like specific targeted injuries, the ones with the bullets in

20 the head, maybe a single shot particularly in the head. So I think we've

21 probably got a mixture -- well, potentially a mixture of types of

22 situations in these graves.

23 Q. Thank you, Professor. Based on what you've just told us, was

24 distance of fire calculated at all in order to arrive at the conclusions

25 you referred to just now? Thank you.

Page 5945

1 A. No.

2 THE ACCUSED: [Interpretation] Thank you, Professor.

3 Can we now call up page B [as interpreted] in Serbian, which is

4 page 10 in English, and there we will find a portion of the document

5 titled "Distance of Fire."

6 MR. TOLIMIR: [Interpretation]

7 Q. We can see that the title is "Distance of Firing." I quote:

8 "In the absence of soft tissue on most of the bodies,

9 particularly the skin, it was impossible to say from what distance the

10 shot had been fired; i.e., whether contact, close range or whatever. The

11 only pointer to perhaps some of them being close range was the number of

12 shots neatly placed at the back of the head, either in the midline or

13 behind one or other of the ears."

14 Thank you. I -- yes, I did read "ears."

15 So my question is this: You said a moment ago that it was not

16 possible to establish what the distance of firing was. Can you tell us,

17 what are the elements required for one to establish the distance of fire?

18 Thank you.

19 A. It is, I think I explained earlier, the other features on the

20 body which will come out of the barrel of a gun. And a bullet wound from

21 about a couple of metres, two metres, on a body can look exactly the same

22 as one from 100 metres or 200 metres, and it's really only at the close

23 end that we can get an idea of whether a gun is up against the skin, or

24 very close to it, or just a short distance away. After that, it becomes

25 impossible.

Page 5946

1 In these bodies, these decomposed bodies, there was no way that

2 we could see any burning, staining, soot staining, or any other features

3 around the wounds, so really we read very little into trying to estimate

4 distances.

5 My only -- you are right to point out that little paragraph that

6 I mentioned. Quite clearly, if there is a shot in a series -- a group of

7 cases in which the shot is remarkably similar and remarkably similarly

8 placed, then it's much easier to do that, clearly, from a short distance

9 than from a long way away.

10 Q. Thank you, Professor. Can you tell us, in this specific case

11 where you worked, how was it established -- how was the distance of

12 firing established, if it was established? Was it based on the entry and

13 exit wound, or was it based on the type of weapon used, or something

14 else?

15 A. Well, I think I've already answered and said that we made no --

16 there was very little we could read into distance of wound, and we really

17 made no interpretation of that.

18 Q. Thank you, Professor. Now, in the following paragraph, "Nature

19 of Weapons Used," you say the weapons used were high-velocity rifles:

20 "... this being confirmed by the recovery from many bodies of

21 typical sharp, pointed, copper-jacketed bullets of 7.62 millimetres in

22 diametre."

23 If this kind of weapon was used, high-velocity rifles, does that

24 mean that a close-range shot would pierce the body, including the skull,

25 and is it true that evidence was found that this was possible even at a

Page 5947

1 not-so-close range, from a greater distance, with this type of weapon?

2 A. Yes, with a weapon of this sort, it is quite possible to inflict

3 devastating injuries from quite a distance away. So I'm making no

4 conclusions about how close the weapons were. With high-velocity rifles,

5 that's what they say, the bullet travels at a high velocity, with a lot

6 of energy, and it can be damaging from quite a distance away. It doesn't

7 have to be close up. But the pattern of damage that we saw in the bones

8 clearly indicated that this was a bullet with a lot of energy in it, and

9 it was of the type that would have come from what's called a

10 high-velocity weapon.

11 Q. Thank you, Professor. Let me ask you, as a layman, if a bullet

12 was found in the body, it stayed in the body, does that mean that that

13 person was killed from a higher distance -- from a greater distance, not

14 at close range?

15 A. That's one possibility, not the only one. I mean, when a

16 bullet -- high-velocity bullet strikes a body, it will often -- if it

17 strikes bone, it will be -- it will break up. As well as the bone

18 breaking up, the bullet will break up, and parts of that bullet can leave

19 the body and some parts will stay in the body. If the bullet passes

20 through a body without hitting bone, then it will probably pass right

21 through it and come out the other side undamaged. That's if it doesn't

22 hit bone.

23 So if we have an intact bullet still in the body, then that's

24 slightly unusual because it would indicate, perhaps, that it hasn't --

25 that it reached the body with a lesser power and didn't lose a lot of

Page 5948

1 energy, and that could be -- for one possibility would be that it was

2 fired from a long distance away, and we're speaking about hundreds of

3 metres away, probably. The second possibility -- well, and so that by

4 the time it reaches the body, it's lost its energy, a lot of its energy.

5 The second possibility is that bullet has been fired from a closer

6 distance, but it has gone through something else beforehand, possibly

7 another body, possibly another part of that person's body, like an arm.

8 So that would be another possibility. And conceivably, in a mass grave,

9 it could have reached there after death, having gone through another

10 body.

11 So the fact that we have intact bullets in a body could mean fire

12 from a distance, but certainly not by any means the only explanation for

13 them.

14 Q. Thank you, Professor. I asked you precisely about the cases when

15 the bullet was found in the body, as you stated in your report. You say

16 that in many bodies, bullets were found with sharp, pointed,

17 copper-jacketed bullets of 7.62-millimetre diametre. It's under the

18 heading "Nature of Weapons Used."

19 A. But not all of them intact bullets. These could have been --

20 that includes bullet fragments, so bullets which have broken up, and we

21 perhaps find the lead core or the copper jacket of a bullet. Sometimes

22 the bullets were remarkably intact. More often than not, there were just

23 fragments of bullets, but it was still possible to -- from the dimension

24 of them, to give an indication of the type of weapon.

25 THE ACCUSED: [Interpretation] Thank you, Professor.

Page 5949

1 Could we now show page 10 of your report in Serbian and page 11

2 in English, and I would like to discuss the cause of death.

3 MR. TOLIMIR: [Interpretation]

4 Q. My first question -- it's now on the screen. It's paragraph 2

5 for me and paragraph 1 for you. Did pathologists use a protocol or

6 instructions in order to come up with a uniform, standardised

7 pathologist's report?

8 A. We used a protocol to record the evidence. When it came to

9 formulating cause of death, different pathologists would have, perhaps,

10 different views. If I can just give an example. If somebody -- if there

11 was a gun-shot injury of the head and perhaps an injury to the pelvis or

12 to the arm, we can be fairly sure that the cause of death was the bullet

13 to the head. That's inevitably fatal. And, personally, I would have

14 given that as a cause of death, gun-shot wound to the head, even though

15 there were other bullet injuries elsewhere. Other pathologists might

16 have included them all, you know, and said gun-shot wounds to the head

17 and the trunk. That's a fair point, but I think overall there's not an

18 issue. The issue was the cause of death was due to gun-shot injury, and

19 that's the important point. I think the specific final cause of death --

20 this may sound odd, you know, from a pathologist, and the whole point was

21 looking at cause of death, that the actual wording is not all that

22 important. The important thing is that the overall cause of death was

23 gun-shot injury. So that -- and I've tried to explain that a little bit

24 there.

25 I think you would find any pathologist in any country would

Page 5950

1 perhaps take slightly differing views about what they do include in the

2 cause of death and they don't. This was the range of findings here.

3 Q. We see in this table, under "Unascertained," there were 55 cases

4 of unascertained in this sample?

5 A. Yes.

6 Q. And then if you look below the table, it says:

7 "These figures are a guide, but are open to interpretation. The

8 decision as to what to include in the cause of death was very much a

9 subjective one for each pathologist ..."

10 My question to you is: What do you mean by "subjective" decision

11 by a pathologist? Does that mean that a number of pathologists can come

12 to a number of different conclusions regarding the cause of death?

13 A. Well, I've tried to explain the reasoning there. Some would give

14 the cause which was the inevitably fatal injury. Others would be more

15 inclusive and add, really, all of the injuries there, and that's why they

16 would put: "Multiple gun-shot injuries." That's normal professional

17 practice. I don't think it makes a huge -- a huge issue, because my

18 analysis of -- if you go back to the earlier sections, my analysis of

19 where the injuries hit the body -- struck the body, whether the head or

20 the trunk, is nothing to do with the cause of death. It's an analysis of

21 the injuries themselves. As I stressed, the most important part here is

22 that all but 55 of these people died from a gun-shot injury somewhere.

23 Q. Thank you, Professor. Now, looking at this page, page 10 in

24 Serbian, page 11 in English, you've just said that out of these

25 55 cases -- in these 55 cases, it was not possible to determine the cause

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1 of death. Now, my question is: When it is impossible to determine the

2 cause of death, like in these 55 cases, is it impossible for a

3 pathologist to decide what the cause of death was and, therefore,

4 impossible to make a reliable conclusion as to the circumstances as to

5 the circumstances in which the person met their death?

6 A. Yes. I think, clearly, if we do not know the cause of death, it

7 becomes very difficult to have any certainty of the circumstances of the

8 death.

9 JUDGE FLUEGGE: Mr. Tolimir, we are at the end of today's

10 hearing. Could you indicate how much time you need tomorrow to conclude

11 your cross-examination?

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

13 I will try to conclude within the first session. If the witness

14 is helpful and gives useful answers and suggestions, then maybe we will

15 go into the second session as well.

16 JUDGE FLUEGGE: Thank you very much.

17 You indicated earlier that you would need three to four hours.

18 You should take that into account. Thank you very much again.

19 Sir, we have to adjourn for today, and we will resume tomorrow at

20 9.00 in the same courtroom. Thank you.

21 We adjourn.

22 [The witness stands down]

23 --- Whereupon the hearing adjourned at 1.47 p.m.,

24 to be reconvened on Wednesday, the 29th day of

25 September, 2010, at 9.00 a.m.