5267
Wednesday, 22 May 2002
[Open session]
[The witness entered court]
[The accused entered court]
--- Upon commencing at 9.05 a.m.
JUDGE MAY: Mr. Kay, let me deal with two administrative matters first.
The first is this: That I understand that one of the associates of the accused handed in a book which -- of which mention had been made, I think last week, to the Registry, and the registrar has it. Perhaps I could have it. Thank you. It is "To Kill a Nation: The attack on Yugoslavia," by Michael Parenti [phoen]. We will keep this and have a look at it, and in due course, anybody who wants can make mention of it and, if necessary, could be made an exhibit.
The next matter is purely administrative, and it's this: On Friday, there has to be an initial appearance before this Trial Chamber. It will take place at 12.45, and as a result, we shall have to cut short the hearings here at 12.15.
The final matter - this is really for the Prosecution - Mr. Ryneveld, we should deal with the total number of witnesses that you're going to call in this part, your application to vary the order we made at the Pre-Trial Conference. We should have an argument perhaps about it, or we'll hear argument about it perhaps next week, along with the investigation and any other matters we've got to deal with. We must find some time for that. 5268 But let me tell you that preliminary thinking on the matter is that we will extend the time by a week, to the 26th of July, and we will expect you to finish the Kosovo section by then. It's clearly important that this section ends so that the next section can begin. But as I say, that is purely a preliminary thought, and we will hear argument about it.
MR. RYNEVELD: Thank you, Your Honour.
JUDGE MAY: The -- yes, Mr. Kay.
MR. KAY: It's just an introduction, Your Honour. It's Mira Tapuskovic sits beside Mr. Tapuskovic today. She is his assistant for cross-examination and his assistant for working on the case as part of the amici curiae.
JUDGE MAY: Thank you. Yes, Mr. Ryneveld.
MR. RYNEVELD: Resuming, if I may then, with Dr. Baccard.
WITNESS: ERIC BACCARD [Resumed]
[Witness answered through interpreter] Examined by Mr. Ryneveld: [Continued]
Q. Dr. Baccard, yesterday we left off with my asking you about the conclusions in your report at page 15 of that document, and I think I had asked you about what is in the conclusions at 1.4.3. I would ask you if you would now turn with me to 1.4.4, the Dubrava Prison. Very briefly, because the report speaks for itself obviously, and in due course I hope will be marked as an exhibit, I just want to have you highlight for us if you would, please, the conclusions about the number of autopsies and whether there was identification positive for any of them. Can you tell 5269 us about that.
A. Yes. The autopsies that were performed by the Spanish forensic team were 97, and at the time of the autopsy, 42 people were identified.
Q. And were you able to determine the age of the victims and their sex?
A. As for the age, the victims aged from 18 to 60. All of them were men.
Q. And your report also indicates the cause of death and the types of causes of death. What can you tell us, sir, about whether or not gunshot wounds were involved at all and what percentage?
A. Thirty-seven per cent of the cases were the result of gunshots and 40 per cent by explosives.
Q. Turning to 1.4.5, the Izbica case, I understand this was performed by the French forensic team on 139 graves; is that correct?
A. That's correct.
Q. And you've already told us about additional forensic data you obtained from a videotape. Can you indicate to us, sir, the -- from the examination and other information, how many bodies were involved in this particular incident?
A. The number of exhumed graves were 139. As regards the number of victims that one could see on the videotapes, it's difficult to determine, but as regards information that was taken from testimony I was made aware of, there were 127.
Q. Are you able to indicate, from what you could see, the apparent cause of death in the majority of these cases from the video? I 5270 understand you were not able to perform autopsies on these bodies because they were missing.
A. Yes. Within the limits of that method, the cause of death could not be asserted for each case. Only one could speak of -- we could talk about compatibility with this or that cause. The lesions that one could see on the video cassette did not appear on all the bodies but only on some of them, and on some of the bodies there were wounds that were compatible with wounds that are caused by gunshot.
Q. Now, on all of these reports that are comprised in these binders which form the source material for your report, photographs or photographs or videos are part of the source material that you used. In other words, there are photographs which are available to the Court that form a basis of the source material for your report as well, are there not?
A. Yes, that's correct.
Q. Turning to 1.4.6, the Kacanik case. I understand there are four subsites under Kacanik. Turning first, if I may, to the Dubrava Islamic cemetery. I understand that there were some eight autopsies performed by the Swiss team; is that correct?
A. Yes, that's correct.
Q. Seven of those were male and one female? All were identified?
A. Yes, that's correct.
Q. Are you able to indicate to the Court what the cause of death was and the percentage?
A. [No translation]
MR. RYNEVELD: I don't think I received a translation. 5271
THE WITNESS: [Interpretation] The cause of death was thoracic or abdominal injury by gunshot in 75 per cent of the cases. As I said, that is three-quarters of the cases, 75 per cent, the cause of death was related to wounds to the abdomen or the thorax related to the projectile of a gunshot.
MR. RYNEVELD:
Q. Thank you. The Kotlina site in 1.4.6.2. I understand there were 25 individuals autopsied there; is that correct?
A. Yes, that's correct.
Q. And are you able to tell us anything about age or gender of those victims that were identified?
A. As regards the gender, only five cases provided -- is there information provided for in the autopsy report. As regards the age, 68 per cent of the victims were less than 40 years old.
Q. And now the cause of death with respect to these individuals, can you tell us, in the majority, what you found to be the cause of death?
A. The majority of the victims died from gunshot wounds caused by explosives. That is in 84 per cent of the cases. Only 12 per cent died of projectiles from gunshots.
Q. From your recollection, sir, do you know where these bodies that died from explosions were found? It's not contained in your conclusions portion, but in the Kotlina site, do you know where those particular bodies came from?
A. I could not answer from my memory. I would have to refer to the documents. 5272
Q. All right, sir. Turning to the Stagovo site, I understand that there were some ten autopsies that took place in Kacanik by, again, the Swiss team. And what can you tell us, sir, about the gender of the identified victims and their ages range?
A. As regards the gender of the victims which were identified, six were men, four were women, and they ranged from 7 to 83 years of age.
Q. And are you able to indicate to us what the cause of death was in the majority of cases?
A. In the majority of cases, the cause of death was related to wounds from gunshot projectiles which primarily were involved with thoracic and abdominal wounds, and then in the second place, wounds to the head.
Q. Turning to Vata. I understand that there were some ten victims autopsied by the Canadian forensic team, and are you able to tell us about gender and range of age of those victims?
A. The victims were all men, aged from 15 to 52 years of age.
Q. Are you able to say anything about the cause of death?
A. The cause of death was the result of projectiles of gunshots, mostly to the abdomen, the thorax, and the ...
Q. All right. And about these particular bodies, were there any -- were the entry wounds from the back as opposed to from the front?
A. Yes. Insofar as possible, that detail was sought in each report, and the entry point was at the posterior part of the body in 37 per cent of the wounds.
Q. Now, sir, just going back to the Stagovo site, the previous site one moment. Again there, the location of the entry wounds of those 5273 bodies, are you able to give us a percentage of entry wounds from the back of the body?
A. Yes. At Stagovo, the location of the entry wounds was at the back side, at the back level, that is in 89 per cent of the cases.
Q. Eighty-nine per cent. I see. Turning then, if I may, to 1.4.7, the Krusha e Vogel site, there were some four victims I understand that were autopsied by the British forensic team, and I understand that there were one female and three males, one young adult and three adults; is that correct?
A. Yes, that's correct.
Q. 1.4.8, Padalishte. The Spanish forensic team performed autopsies on the Imeraj family, I understand. Is that correct?
A. Yes, that's correct. That involved 18 victims.
Q. And are you able to tell us anything about gender or age of those victims?
A. Yes. Eleven of the victims were males, seven females, and two-thirds were less than 40 years old.
Q. And what percentage died from gunshot wounds, sir?
A. Eighty-three per cent.
Q. Turning to Racak, if I may, 1.4.9, how many victims were autopsied in Pristina?
A. In all, 40 victims were autopsied in Pristina. 16 of them were autopsied before the arrival of the Finnish expert pathology team.
Q. Who had performed the earlier autopsies, sir, do you know?
A. Yes. The identity of the experts appears in my report. There was 5274 a team of forensic professors, Yugoslavian, with the assistance of two forensic specialists from Belorussia.
Q. All right.
JUDGE KWON: Mr. Ryneveld, if we can go back to 1.4.7, to Krusha e Vogel.
MR. RYNEVELD: Yes, sir.
JUDGE KWON: In the statement, there is a saying that "the status of these remains did not permit to determine the cause of death." Could I hear some explanation of this?
MR. RYNEVELD: Certainly. Thank you, Your Honour. I'd be happy to ask that.
Q. Sir, in your conclusions, there was something about the status of the remains. What can you tell us about the status of the remains that does appear in your report which prevented you from determining the cause of death? What was it about those bodies that prevented you from doing that?
A. Yes, I can. The bodies were severely damaged. They were skeletonised and partially burned, which prevented the British experts from being able to go further in respect of determining the cause of death.
Q. So their state of having been burnt and skeletonised simply did not permit you to venture an opinion; is that correct?
A. No, because they were what we call body parts, fragments of bodies, body fragments mostly.
Q. All right. 5275
JUDGE KWON: Thank you.
MR. RYNEVELD:
Q. Returning, if I may, to Racak, sir. The cause of death in the majority of those 40 individuals, were you able to determine what the cause of death was?
A. The cause of death was determined. It related to wounds through projectiles from firearms.
Q. In what percentage of the victims would you say that was the case? Were all the deaths related to gunshot wounds? Is that what I hear you to say?
A. Yes. All the victims died from gunshot wounds.
Q. Turning, if I may, next to 1.4.10, the Studime e Eperme case. I understand that some 93 individuals were exhumed and autopsied by the French forensic team; is that correct?
A. Yes, that's correct.
Q. Are you able to say anything about gender or age of the victims?
A. As regards the sex, 87 per cent were -- 87 were men, six were women. More than 75 per cent of the victims were under 50 years old.
Q. Are you able to provide some opinion to the Court concerning the cause of death?
A. As regards the deaths, 97 per cent were due to firearms.
Q. Are you able to indicate, sir, whether or not the range at which these people were killed in a certain percentage of the cases, whether it was from a distance or close range?
A. As regards the firing distance, I myself was unable to confirm it, 5276 and I could only repeat what was indicated by my colleagues, Professor Lecomte and Dr. Vorhauer; and according to their conclusions, the firing distance was close, even though they were not able to be more specific.
Q. And again, the entry -- was there any incidence of the entry wound being in the back side of the corpse in those victims?
A. According to the information and the photographic documents which appear in the reports, in 43 per cent of the cases, the wounds were in the back side of the body, and in 23 per cent of the cases on the front side.
Q. Turning finally, with respect to this report, to your conclusions under 1.4.11, the Suva Reka case, I understand, sir, that there were some six bodies autopsied there by the British forensic team.
A. Yes, that's correct.
Q. And are you able to indicate, sir, for some of the identified victims what the cause of death was?
A. Yes. For the victim identified as being Faton Berisha, that victim died from a gunshot wound to the thorax. As regards the victim identified as Fatime Berisha, that victim died from a gunshot wound to the head. And as regards the four unidentified victims who were mixed together, mingled together in the body bag, the cause of death could not be determined.
Q. Is there a reason -- I suspect the answer is in your -- to my next question has already been in your last response, but is there a reason why the cause of death could not be determined for the four other victims? Is it because their body parts were all mixed together? Is that what I'm assuming from your answer, or is there some other reason? 5277
A. That's the -- this deduction is correct. The absence of a diagnostic -- diagnosis as to regards the cause of death was connected to the fact that the bodies were extremely degraded, and there was a mixture of the bones there.
Q. Thank you.
MR. RYNEVELD: Your Honours, I would tender Dr. Baccard's report as the next exhibit.
THE REGISTRAR: Your Honours, just one clarification from yesterday. We're going to renumber the Meja binder, and that will be given -- it was previously marked as Prosecutor's Exhibit 160.1. It will now be 167. The expert report will be 168.
MR. RYNEVELD: And in accordance to what I indicated yesterday in relation to the additional page from the index that was handed out yesterday, I have had prepared an additional page which includes the tab numbers for the Meja binders, three binders. And also, finally, one binder that has also not been mentioned yesterday, the Cirez, Srbica municipality binder for sexual assaults. That's on the same page. So if I could distribute those pages, and then I want to finally deal with the Cirez binder with Dr. Baccard.
This page is numbered 9 of 9. I think you received pages 1 through 8 yesterday.
This will be the last area of examination for the doctor. Have the Cirez binders been distributed, are they there? Thank you.
Madam Clerk, have we assigned numbers to the -- you've just 5278 BLANK PAGE 5279 assigned the number to the Meja binder. Have you assigned the number to the Cirez binder?
Your Honours, might we have a number assigned to the Cirez binder? Because I intend to show it to the witness in a moment.
JUDGE MAY: Is it one of those which have been lined up or is it a totally different binder?
MR. RYNEVELD: It's not one of the ones that was lined up yesterday. It's a binder that was still being worked on yesterday and it's been completed this morning. So it is a further binder but it does -- it is on this index. It has been -- the contents were disclosed, we just didn't physically have the binders reproduced yesterday, and they've been produced now. They were disclosed. All this material in this binder was disclosed in February to the amici and to the accused, and it relates to the sexual assault counts only.
JUDGE MAY: Do we have the binder here or is there only one copy of it?
MR. RYNEVELD: No, there are copies.
THE REGISTRAR: Your Honours, we'll give this Prosecutor's Exhibit Number 169.
MR. RYNEVELD: Thank you.
Q. Very briefly, Dr. Baccard. I understand, sir, that during the year of 1999, you were in charge of all of the autopsies that were performed under your supervision, including the French forensic mission on the 2nd and 3rd of July of 1999 in Cirez; is that correct? This was under Professor Dominique Lecomte? 5280
A. No, that's not correct. In 1999, I was not responsible for the autopsies performed by the French mission.
Q. All right. During the course of your employment, during the course of your review of the autopsies of various bodies performed on Kosovo victims, was one of the sites that you reviewed the Cirez site involving some eight women who had been apparently found in a well, in three wells? Do you recall looking at that?
A. Are you referring to the mission from 2000 or the mission in 1999?
Q. This would be 1999.
A. In 1999, I did not participate in the autopsies performed at that site.
Q. All right. Doctor, there is an autopsy report performed by the French team, with photographs of the various bodies. Sir, if you were requested to review the -- actually, it's a very brief report, about five pages with photographs, and if you were asked to stand down, would you be able to provide the Court with an opinion later this week if you were asked by the Court to review -- or by the Prosecution to review these photographs to determine whether or not the findings in this binder are consistent with your observations?
A. I don't understand the question.
JUDGE MAY: I think, Mr. Ryneveld, the witness can't assist on this matter. I think -- suspect you'll have to call another witness or review the position rather than trying to put a burden on him now.
MR. RYNEVELD: Yes. My hope was that since the witness is here, that he may, if the Court would - after he concludes his evidence - permit 5281 him to review this binder and if he is able to render an opinion, to recall him before he leaves.
JUDGE MAY: One moment.
[Trial Chamber confers]
JUDGE MAY: We think it's going to be difficult, but we'll see what the position is.
MR. RYNEVELD: Thank you, Your Honours.
MR. KAY: Shall we withdraw the exhibit?
JUDGE MAY: I think that would be the best course. Let's withdraw the exhibit now.
MR. RYNEVELD: Thank you.
JUDGE MAY: Cross it out of the numbers and I'll hand this copy back.
MR. RYNEVELD: Thank you, Your Honour. Those are the questions I have with respect to Dr. Baccard at this time, subject, of course, to a further application once he's finished testifying. Thank you.
JUDGE KWON: Mr. Ryneveld, before we move on, I'm not sure whether he gave us the explanation of the concept of minimal number of victims which was dealt with in 1.3.4.1.
MR. RYNEVELD: Thank you.
JUDGE KWON: Can I hear it again?
MR. RYNEVELD: Yes, absolutely.
Q. Dr. Baccard, did you hear the question from His Honour Judge Kwon about 1. -- I'm sorry, I've got the wrong binder. 1.3. -- sorry, what was that? 5282
JUDGE KWON: 4.1.
MR. RYNEVELD: Thank you.
Q. Would you turn to that part of your conclusion, and --
JUDGE KWON: 1.3.4.1, yes.
MR. RYNEVELD: I'm trying to locate it, Your Honour.
JUDGE KWON: It's on page 10.
MR. RYNEVELD: Ah. Yes. All right.
Q. Yes. On page 10 of your report, sir, at the bottom of the page, you gave a report concerning the minimum number of victims, talked about commingling of skeletonised body parts, et cetera. Can you explain what you mean, how you arrive at the minimal number of individuals for the purposes of reporting in this report? Can you explain the process you adopted where you were confronted with commingled body parts? You understand my question?
A. Yes, I do. This has to do with the problem with which anthropologists and forensic anthropologists are confronted. When one is in the presence of bones that have been destroyed and commingled about which it is difficult to identify not only the individuals but even the number of individuals because one might find only one part of a right arm, for example, for instance, or a part of a left arm, and that the two parts could belong to -- either to two individuals or to the same individuals. And the expert work is to try to put together the bones which can be put together. And the risk one runs is overestimating the number of victims, and that's the reason that we prefer to speak about the minimum number of victims, realising that this is the lower limit below which one cannot go, 5283 basing oneself on bones that are only one single bone, like the sacrum or the right or the left side, and that one would get a left or right humerus, that prior work which the anthropologist expert does when he is faced with commingled bones which have been severely damaged.
Q. Is another way of phrasing what you've just told us, sir, that if you err on the side of caution, in other words, you err on the side of a lower number of victims that might possibly be there? Is that what you mean by the minimal number of victims? There could be more but no less than what is reported?
A. Absolutely.
JUDGE KWON: Thank you.
MR. RYNEVELD: Thank you. Those are my questions of Dr. Baccard at this time. Thank you, Your Honours.
JUDGE MAY: Yes, Mr. Milosevic.
THE ACCUSED: [Interpretation] Before I start with my questions, for the record, in connection what I asked for yesterday, I have here your ruling of the 4th of January, 2002. And under point (e), it says that the current status of disclosure [In English] "66(A) of the Rules including the necessary translations into the language of the accused." [Interpretation] Therefore, you made the ruling that I should receive the documents translated into my language. My yesterday's objection was not whether something was disclosed or not but that it was not disclosed in the language that you required it to be disclosed in. And when something was not disclosed in accordance with the Rules, then it is the same as if it hadn't been disclosed at all. And I link this to 5284 this witness who notes errors which he himself established, discrepancies, differences, and so on.
Therefore, I have been withheld the possibility for the experts assisting me to review the documents on the basis of which the witness made his conclusions, on the basis on which he found errors and so on and so forth. I'm saying this --
JUDGE MAY: Just a moment. Which documents have not been disclosed in B/C/S?
MR. RYNEVELD: Your Honour, to -- all this material has been disclosed in English. These are exhibits under -- my understanding is that even the report doesn't have to be disclosed in B/C/S, nor do exhibits. This is -- these documents are not subject to the ruling that they have to be in the language of the accused.
Now, we, as a courtesy, provided him with a copy of Dr. Baccard's report in B/C/S, but my understanding of the Rules is that that was not a requirement, nor are exhibits themselves. They are not part of the documentation that needs to be disclosed in the language of the accused. That's my understanding of the Rules. And everything was disclosed, as I say, in its form, in its present form, since February.
JUDGE MAY: We don't want to waste the time of this witness. The report has been disclosed in B/C/S, so the witness has that. We will review the position with regard to disclosure in due course.
MR. RYNEVELD: Thank you.
JUDGE MAY: Now, Mr. Milosevic, do you want to ask this witness any questions based on his report? 5285
THE ACCUSED: [Interpretation] Yes, certainly. Cross-examined by Mr. Milosevic:
Q. [Interpretation] Mr. Baccard, what do you imply under sources of forensic information?
A. As regards the sources of information which I used for the drafting of this report, those sources were mentioned yesterday and they appear on page 9 of my report, that is, they were reports of autopsies of anthropological experts that were prepared by my colleagues who worked on site and which constitute this document. There are also reports of crime scene examinations which were prepared within that same context, photographic albums of photographs taken during the autopsies, also photographs taken at the crime scenes. And in the case of Izbica, there was an additional document which is the video cassette and the photographs which were extracted from that video cassette.
Q. As I am not an expert, I have to ask you some questions which may appear to you to be too simplistic, but I would like to put them to you because I think they help to clarify the situation about which you are testifying. The question is linked to the first point you just made. Is it necessary for those sources of forensic information to exist prior to the beginning of the post-mortems, those that you have listed, as this can affect the position of the persons carrying out the autopsies of bodies or post-mortems?
A. I did not understand the question. Could it be re-asked, please.
Q. My question was: This collection of forensic information that you have listed as your sources, do they need to be available before 5286 undertaking an autopsy? Do you need to have what I would call information that are included in the overall analysis before undertaking a post-mortem or not?
A. The sources of information were based on the autopsies which were performed by international experts who came on site. The sources of information and the autopsy reports, the photographs were taken at the time of the autopsies, and therefore, they come from the autopsies and did not pre-exist the autopsies.
Q. I wanted to establish that. So before an autopsy, you didn't have any information as a guideline for those autopsies. So you had no information whatsoever prior to the autopsies?
A. The list that I use for this report of an analysis and summary is clearly mentioned on page 9. I did not use other information.
Q. Thank you. Military or civilian clothing, can it determine the status of a person in an armed conflict in a war-ravaged area or is the status determined by the activity of a person who is carrying weapons, using weapons, and killing people? So does the clothing determine the status of the person or not?
A. I can answer that question -- I cannot answer that question which goes outside my speciality, and have access only to the photographs which give details. And this was mentioned in several of the reports. I systematically studied that criterion in order to make -- to point out that information to the Judges. It was for their information. And then the Judges will have to interpret the information. But that is not up to -- it's not up to the forensic expert to -- to evaluate things in that 5287 way.
Q. Yes. But in your report, in point 1.1, you do refer to that aspect of the situation.
A. Yes, that's correct. This is a criterion, as I said, which was systematically studied in the report but no interpretation was made, at least not by me, in the report on the meaning which the presence or absence of this or that piece of clothing might have.
Q. So you do not consider yourself qualified to judge whether the status of a person is determined by the clothing he is wearing or the arms he's carrying or --
JUDGE MAY: He has answered that question. Now, let's move on.
MR. MILOSEVIC: [Interpretation]
Q. Why are statements of witnesses a component part on the report on autopsies and anthropological expert findings?
A. Certain witnesses that were doctors, these persons provided clarification about the interesting information and in -- as such, it was very rare. This is established in the report in that case. From the time that forensic information was indicated in the statement, and then if that was the case, I learned of it.
Q. So that means when you're talking about witnesses, you're talking exclusively about information of a forensic nature provided again by experts. Do I understand you properly?
A. The list of documents appears for each case in the introduction to the report on that site. Therefore, one has to refer to it in order to answer your question. 5288
Q. Mr. Baccard, I am cross-examining you, so you can't tell me it is to be found in the list of documents. I have that list. You need to answer my question. My question was very clear.
When you mention witness statements, does that mean exclusively forensic expert findings of your own colleagues that you used? Yes or no.
A. As regards the witness statement to which allusion has been made, it was the statement of a physician who carried out what we call an external examination at the site of the incident. It was a medical opinion.
Q. So you only have one medical opinion as a witness statement that you used in your report?
A. The term "witness statements" concerns seven statements of a witness who was a physician who carried out an external examination of the corpses at the site of the incident; and in his medical studies, he has a part which is devoted to forensic medicine and the opinion of a specialist physician which might be very, very useful in terms of the -- in terms of the forensic information he noted.
Q. And what is the name of that person?
A. That was (redacted).
Q. And what was her position and function in the investigations?
A. I think -- well, I don't know exactly what the functions were. I think that that person did not have any function in the investigation, but the -- she was there, because we're talking about a physician who was there to treat.
Q. Are you aware of the qualifications of that witness regarding her 5289 forensic expertise?
A. No, I don't know them.
Q. But you took her statement as being the statement of a forensic specialist.
A. No, that's not correct. It was one of the elements which is indicated last and that I used in the Racak case study after the autopsy reports that were performed by the Finnish forensic pathologists and those from Yugoslavia and Belorussia and the various documents which were drafted for that incident.
Q. I'm talking in principle about witness statements as a component part of the reports on autopsies. So my question was: Why is a witness statement a component part of a report on autopsies? And I wanted to get a professional explanation for this. We'll come back to this specific case later.
My next question, Mr. Baccard, is: Can videotapes and stills made on the basis of those tapes being considered evidence in legal proceedings? This refers to the part of your report 1.2. I wish to facilitate your answers.
MR. RYNEVELD: Your Honour.
JUDGE MAY: Yes.
MR. RYNEVELD: When reviewing the question, I believe that's something within Your Honours' domain rather than the witness's domain. He's asking his opinion as to whether or not this is, as I see it, considered evidence in legal proceedings.
JUDGE MAY: Yes, of course. 5290 BLANK PAGE 5291 Yes. It's not matter for the witness. It's a matter for us. Let's have the next question.
THE ACCUSED: [Interpretation] I shall move on to the next question, Mr. May, but I do have the right in cross-examination to ask any questions that were mentioned and brought up by the witness in his report. But, yes, I shall move on to my next question.
JUDGE MAY: That wasn't brought up. But let us move on.
MR. MILOSEVIC: [Interpretation]
Q. If in the report on Suva Reka, for example, two anthropological experts of the same kind do not coincide, what about the rest of the findings of the anthropologists? Can they be accepted as being trustworthy? And it is point 1.3.5.1 that I'm referring to.
A. I apologise. Could you repeat the question, please?
Q. If in the report on Suva Reka two anthropological expertise -- experts of the same team do not coincide, what about the rest of the findings of the anthropologists? Can they be accepted as being trustworthy?
A. I noted the contradiction which appeared on a very specific point of the report on Suva Reka. This does not put into question the rest of the report.
Q. In wartime conflicts, do we see more adults taking part, young adults, that is to say, or adults --
JUDGE MAY: That's not a question -- this witness is here to deal with the pathology, not to deal with general points such as that sort.
THE ACCUSED: [Interpretation] The witness is a forensic expert, 5292 Mr. May.
JUDGE MAY: No. That's a matter for the Court if it's a matter for anybody.
THE ACCUSED: [Interpretation] Very well.
MR. MILOSEVIC: [Interpretation]
Q. How, and does this occur, that is to say, how do the putrefaction changes and disintegration of the corpses, as well as the existence of the bones themselves of human origin, how does this affect the establishment of the number of wounds on the body and the establishment of the cause and origin of death?
A. Yes.
Q. But my question was if yes, how? How were these putrefactions expressed, decaying processes?
A. The state of degradation of a body - and this is a general answer - does constitute an additional obstacle for the forensic pathologist in determining the cause of death. Perhaps I won't explain all of the changes that take place in the colouring of the teguments which can mask or conceal in part ecchymosis or haematomas or changes which are related to the appearance of ecchymosal cavities of putrefaction. All of these changes that take place during putrefaction cause difficulties for determining the source of the wound or the trajectories. At a later stage, the gradual disappearance of all the soft tissues also constitutes a handicap for the forensic pathologist who will, in the end, be confronted with only a skeleton. And if the wounds which have soft parties are on a body, then from that point of view, the state 5293 of a body is very important in order to determine the cause of death.
Q. Therefore, they have -- they affect the number of wounds on the body and determining the cause and origin of death. They affect this very much; is that right? Am I understanding you correctly?
A. This is a difficulty, an additional difficulty, but there are other methods which allow one to make up for that additional difficulty.
Q. How is it possible for a person killed to establish different forms of death? First of all, a person can die because the fact that the brain has been blown out or destroyed. Perhaps it is due to bleeding. Perhaps it is due to the heart or the fact that the aorta has been cut off. And you have this in 1.3.5.1., these different elements. 1.3.5.2.1.
A. In general, the answer is that the death is not the result of a temporal succession of pathological but rather a succession of various events that take place at the same time. When a person has been hit by several projectiles, those projectiles can wound different organs, and the pathologist is then faced with several potential causes of death, and to that extent, the conclusions of the autopsies indicate frequently several causes of death.
Q. And to determine the circumstances under which death set in, is that the business of the person, the physician conducting the post-mortem, the autopsy? Is that their duty?
A. There is no obligation from a scientific point of view, but it is recommended. Still, there are cases when the cause of death cannot be established.
Q. I'm asking this question in connection with your point 1.3.5.2.2, 5294 manner of death. So it was in that regard that I asked the question, whether physicians conducting autopsies can determine the circumstances which cause death, under which death occurred, and whether that was their job or not, and as you're a professional man, whether you can tell us since when that has been their job.
A. As to determining the circumstances of the death and not the cause of death, the determination of the circumstances of the death require, when possible, knowledge of other information, in particular information relating to observations that were made on crimes -- on crime scenes and the certainty that the chain of proof was respected.
Q. And is it the duty of the expert dealing in homicide?
JUDGE MAY: What's the question?
THE ACCUSED: [Interpretation] The question is: Is that the duty of the experts investigating homicides?
JUDGE MAY: Is what the duty?
THE ACCUSED: [Interpretation] Well, to establish the circumstances under which death occurred. A moment ago, the witness mentioned --
JUDGE MAY: That's the question. Let the witness deal with it.
THE WITNESS: [Interpretation] The obligation of the expert is to provide to the Judges the most complete information, the most exhaustive information possible. When that expert is in a position to provide an opinion on the circumstances of death, he can do so, observing, of course -- or being as careful as possible. But if there is information allowing him to establish that the possibility of suicide, for example, would be the most plausible in respect of forensic medicine, he can make a 5295 statement in respect of that possibility.
MR. MILOSEVIC: [Interpretation]
Q. And on the basis of which parameters will a pathologist be able to, after an autopsy has been conducted, to draw conclusions as to how he differentiates death which occurred through hand firearms, for example, in war as opposed to a killing that took place, for example, in an armed conflict in which two people were involved, or the results of an unfortunate event such as self-infliction of wounds by a firearm going off and things of that kind? So all these different circumstances in fact and these different possibilities. What are the parameters that a pathologist will use to differentiate between these different types of death?
A. He refers to the Racak case where the Finnish team systematically took up that point without -- without giving an answer. In practice, current forensic medicine establishes that the -- that we must consider the possibility and on which we have to make -- give an opinion generally is that of suicide, homicide, or accident. And I can give you perhaps the various forensic arguments which allow us to decide which of these possibilities is the correct one and which we then provide to the Judges. I don't know whether your question is actually related to that.
Q. Yes. Thank you. Now, with a skeletonised corpse, how can you differentiate between inflictions to the bone with blunt or sharp objects in the course of life from injuries that were caused with those same objects after death or while the person was being buried, the body was being buried? And this is once again referring to your point 1.3.5.1. With skeletonised corpses, how are you able to ascertain that? 5296
A. In that case, the forensic pathologist is confronted with significant difficulties, and that explains that, in some cases, he is unable to make a diagnosis as to the cause of death. As regards the first part of the question, from the very moment when the body has -- even if it has been skeletonised, that body has lesions. By the aspect of -- the external aspect of those lesions and the microscopic aspects of the lesions, one can find wounds which could be indicative of gunshot wounds or types of fractures which would indicate a blunt instrument or a cutting instrument. That is possible, but nonetheless, there must be lesions on the bones.
Of course, when we're talking about wounds on the soft tissues and when we are dealing with a skeletonised body, one cannot make an evaluation.
Q. And what about carbonised corpses and corpses that have been distorted through decay after exhumation? Can you ascertain whether the effect of the firearm was while the person was still living or when he was dead? And I'm linking this up with your point 1.3.5.3.1 to facilitate you in answering your question.
A. 1.3.5.1.2 --
Q. 1.3.5.3.1.
A. Yes. As regards the difficulty caused by carbonisation of a body, x-rays make it possible to establish whether or not there were projectiles. Then everything depends on the degree of carbonisation. The wounds systematically must be studied with a desire to find whether one can find the antemortem character or the post-mortem character. 5297 Everything then depends on what remains of tissue around the wound which would make it possible for the expert to answer the question as to whether it is a -- it was a lethal wound or one that was -- that occurred later on.
Q. So it is possible, even with carbonised and decayed corpses; is that right? Have I understood you correctly, it is possible?
A. It is difficult to make a general answer because there are different degrees of the stages of putrefaction. There are also different stages of carbonisation. Therefore, each case is individual, but systematically one has to try to see whether it is possible to point out certain indications of wounds that give to that wound the definition whether it was something that happened before death or after death.
Q. So it is on the basis of bleeding around the wound, with a carbonised body, that you are able to establish that. Am I correct in my understanding?
A. That is one of the criteria which is studied.
Q. Very well. And with a skeletonised and putrefied corpse, can you establish the exact number of entry wounds or can you only assume how many there are or a minimum number of wounds and something that is not conclusive in that respect? And I'm linking this up to the next paragraph of yours which is 1.3.5.3.2, number of gunshot wounds.
A. From the moment that the parts of the skeleton show lesions, it is possible to identify those lesions. But first one underestimates the numbers because all the wounds which concern only the soft tissues, which have therefore disappeared, are not taken into account. 5298 And secondly, as regards a skeleton, one must take into account the fact that certain of the -- of the wounds are entry wounds and -- some are entry openings and some are exit openings and that they might correspond to the same wound.
And then the third point that the pathologist has to consider is whether the fact that the victim is a moving target and that that target might have an arm raised in a gesture of defence and it will be wounded in the arm, the forearm. The projectile will therefore afterwards perforate the thorax but it is the same shot. And if one examines the person in an anatomical position, you would see three different wounds, four if you count the exit wound in the thoracic cage. And that is why the pathologist, as far as possible, tries to speak about the minimal number of shots.
Q. Now, an experienced expert, an experienced professional, can he, without having any great problems in determining the entry and exit wounds on the upper and lower extremities, and where does the difficulty lie in determining the position of the wounds on the extremities, as is stated in your report in paragraph 1.3.5.3.4, location of the point of entry?
A. The problem of the upper limbs and lower limbs, in fact, is a significant one because the bones will be long bones. There are bones which have a cortical thickness which is significant with a cylindrical form. In those cases, it is much more difficult to determine whether we are talking about an exit or an entry orifice. I'm speaking about a body which has been skeletonised, and I'm leaving aside the case of a body which is -- still has soft tissue, because at that point we have other 5299 arguments that we can use.
Having said this, even when we're talking about a long bone, it is possible in many cases to determine an entry -- an open -- an entry point which we can distinguish from an exit point. But it's difficult to have a general position on this, but there is no question that it is much more difficult to make a differential diagnosis between the exit and the entry point on a long bone than on a flat bone. That would be the skull or the ribs.
Q. And on the bodies, were blindfolds and ligatures found, and if so, where were they found?
A. If I remember correctly, there was never shown that there were blindfolds on the corpses. There was one case was disputed, but in my opinion, it was a kind of a band that was -- that was put around the head in order to keep the jaw in place and that during movement, that type of tissue might move. And then in that case, on that site, it was not shown that there were any blindfolds.
Q. I'm talking about all your localities. In explaining the methodology of your work in Racak, for example, you state that all the autopsies can be classed into three groups and that they were verified ones, supervised ones, and complete forensic autopsies. And for the first two, you give detailed explanations of your methodology, but there is no detailed explanation of methodology for your third group. Why is that so?
A. The third group is the group of autopsies which were performed by the Finnish team.
Q. You mention that the first 16 autopsies were carried out before 5300 the Finnish expert team arrived. Isn't that so?
A. That's correct.
Q. But were the expert positions of the Yugoslavs, Finnish experts, and Belorussian experts for those 16 autopsies, were they harmonised and dovetailed or not? Aligned or not?
A. Those reports are -- well, I only had available to me the Yugoslav expert and the Belorussian expert. I only had one page, and it was a page indicating the conclusion responding to answers asked by the Yugoslav judge. I did not have available to me the full report drafted by the Yugoslav physicians, and therefore, this was a comparative work done between the conclusions -- based on the conclusion page prepared by the Yugoslav and Belorussian physicians which I compared with the report and conclusions made by the Finnish physicians. In order to answer your question, there existed - and this is listed in the annex of my report - there existed some cases wherein the conclusions were different. Certain points were minor points. Others were more important in respect of the number of shots that were fired on the victims.
Q. And do you consider those differences to be significant or less significant? The differences that you've been speaking about.
A. On the whole, for questions which are significant, such as the cause of death, there were some differences. Those differences, in my opinion, did not call into question the agreement between the two or three teams, that is the Finnish team, Belorussian, and Yugoslav. But there were some contradictions, and that appears in the annex.
Q. Yes, yes. The important thing is this: That you say they don't 5301 bring into question this agreement, that is to say, the differences will not affect the general agreement. That's how I understood you. Is that correct?
A. That is not quite what I said. What I said is that I had available to me a conclusion page which provided information which is extremely simple, even somewhat summary, in respect of the causes of death and the fact that the wounds were ante or post-mortem and the number of shots. As regards the cause of death, there was no discrepancy that was evident between the work carried out by the two teams, that is the Belarus and the Yugoslav team on one side and the Finnish on the other. As regards other points, because these reports, which I had to study, from the Finnish pathologists were sometimes quite long and one could not compare a very complete report with a one-sheet conclusion because I did not have available to me the complete reports that were drafted by my colleagues from Yugoslavia and Belorussia.
Q. All right. Now, if the pathologists in Racak claim that in one case you cannot exclude the possibility of the fact that a wound was inflicted with a blunt object and then the person conducting the autopsy concludes that, only on the basis of a photograph, that that injury was caused by a firearm because it has a typical description, the keyhole element, then the question arises - and this is my question to you - how come the pathologist does not see that? And this is linked to 2.1.4.2, paragraph 2.1.4.2 of your report.
A. I remember the case which is being referred to, and it is true. The conclusions of the Finnish forensic specialist left some doubts as 5302 BLANK PAGE 5303 regards the two possibilities, the first being that of a cranial cervical lesion caused by a gunshot and the other being a wound by a blunt instrument. And therefore, I learned of the photograph album which was prepared at the time of the autopsy, and I can assert that the lesional aspect that one sees on the photograph is typical of a lesion caused by a firearm which performs a kind of a keyhole aspect described by many writers, particularly in the United States. And this is the type of lesion which one frequently finds with certain types of calibres which then create a kind of a keyhole, which is absolutely typical. That is the -- that's my expert opinion.
Q. Yes, but my question is how come the pathologist did not see it, notice it?
A. Those people who performed the autopsy noted the lesion, described it, measured it, and mentioned two possibilities among which is the possibility of a wound by gunshot, and this was the first possibility which was mentioned.
JUDGE MAY: It is the time for an adjournment. We will adjourn now for 20 minutes.
--- Recess taken at 10.32 a.m.
--- On resuming at 10.55 a.m.
JUDGE MAY: Yes.
MR. MILOSEVIC: [Interpretation]
Q. Mr. Baccard, you said --
JUDGE MAY: We've got no translation.
THE INTERPRETER: One, two, three. Is that better? 5304
JUDGE MAY: Thank you.
MR. MILOSEVIC: [Interpretation]
Q. You said, Mr. Baccard, in connection with the comparison of reports, that you only read a page-long list of conclusions by Yugoslav and Belorussian experts, that you didn't read their entire report. Is that right? Did I get you correctly?
THE INTERPRETER: The witness doesn't have his microphone on, Your Honour.
THE WITNESS: [Interpretation] I read what was given to me, that is 40 times one page of conclusion of the expert report of the experts of the Yugoslav and Belorussian experts. Those are the only -- that's the only thing I had available to me.
MR. MILOSEVIC: [Interpretation]
Q. And did you ask the Yugoslav authorities to provide you with the whole report in view of the job that you were asked to do?
A. I asked that from the Office of the Prosecutor, and I myself did not make a request with the Yugoslav authorities. I didn't have any qualification -- any authorisation to do so.
Q. Very well. But you did ask this of peoples who were able to provide you with that. So you did address yourself to the Prosecution, did you not? Thank you for your answer.
In connection with the witness that you mentioned, do you, as an expert and in view of your references, which are most impressive and show that you are a very prominent forensic expert, do you consider that person that you mentioned as a physician who testified for this case, that she 5305 was able to provide relevant facts in that testimony in view of the fact that, according to her testimony, which I hold in my hands, she spent a total of two hours for all those 40 bodies that she examined. So was it possible for a high-level expert or an expert who is far from that that you referred to, in a period of some two hours, to examine 40 bodies, establish the entry and exit wounds, the clothing, and all the other parameters that she mentions in her testimony?
JUDGE MAY: Can you comment on that, Dr. Baccard, or not?
THE WITNESS: [Interpretation] I would like, Your Honour, to recall that the testimony of (redacted) was only one element among others that I used partially for the summary report. I would remind you that the doctor was not on site as an expert but, rather, as a witness. And I would also like to recall that in current forensic medicine, whether it be in France or other countries, we frequently have available to us at the time of the autopsies descriptive certificates which were prepared by general practitioners called on to appear on site, either by the family of the deceased person or by the police services, and that this type of document is transmitted to the forensic expert as one piece of information among other pieces of information.
And therefore, I would like to put this in its right proportions. That is, I am speaking about the contribution of (redacted) the documents which were the basis of my report.
JUDGE KWON: Doctor --
MR. RYNEVELD: Your Honour, if it assists, that report referred to by the witness whose name I don't want to mention and ought be redacted 5306 from the transcript, is found in the Racak binders which are part of the 38 binders that Your Honours have. So --
JUDGE MAY: The Trial Chamber has the position in mind. We have dealt with this matter. And Mr. Milosevic, there's no need to ask any further questions about it. We have it fully in mind, and we have now the witness's answer that it was merely one element amongst the others which he took into account in coming to the conclusions which he did. But there's no need to repeat the point, because as I say, we are fully aware of it in the various points that you have made.
THE INTERPRETER: Microphone, please.
JUDGE MAY: Have you got your microphone on?
THE ACCUSED: [Interpretation] It is switched on now. I was saying, regarding the question, it has to do exclusively with my interest in hearing Dr. Baccard's professional opinion in connection with the very specific question, that is, whether two hours is sufficient to draw any kind of conclusions of the examination of 40 bodies.
JUDGE MAY: Yes.
THE ACCUSED: [Interpretation] As Dr. Baccard is a specialist witness --
JUDGE MAY: So we don't go over this again, let the witness give an opinion, if he thinks he can, as to that point. If you think it's right -- you've heard the point. Is it possible in two hours to come to any kind of conclusions in these circumstances? What would your view be, if you have one? 5307
THE WITNESS: [Interpretation] Of course not as part of a forensic expert -- expert evaluation, but one can carry out a serious forensic analysis on 40 bodies in two hours. But the conclusions of this colleague were not of interest to me. What was of interest to me were the comments and not the conclusions or the interpretation about what she had seen, only what was important to me were the observations that she was able to make on the bodies of the victims.
MR. MILOSEVIC: [Interpretation]
Q. Which observations, Mr. Baccard?
A. The observations in respect of the position of the victims and the wounds that were shown, that is, those observations which appear in that document.
Q. And do you know that there is a serious reason to believe that those corpses were moved and brought from various locations to the spot where she found them? Did you take into consideration that fact too?
A. I did hear about the possibility that that might have happened, but my work essentially was based on the results of the autopsy -- the autopsies and not on a prior possible moving of the bodies.
Q. Very well. Let us move on then with other questions. The number of gunshot wounds and other wounds, can they be an indication of the cause of death or not?
A. The number itself, no, but the location of the wounds, yes.
Q. If a group of armed men is surrounded by another group and if there is an armed conflict between them, on what part of the body will the surrounded people have entry wounds, and will in that case be a greater 5308 probability of one part of the body being fired at more frequently than another? I draw attention to paragraph 2.1.4.5 of your report.
A. To answer in general terms that question, that is outside the scope of my specialisation. The question calls into account criteria which are not necessarily forensic, and I am not in a position to answer. Everything would depend on the respective positions of the two groups, of their weapons, the circumstances; there are too many variables, and I cannot answer that question.
Q. So there are too many variables to be able to give a qualified professional opinion on your part.
JUDGE MAY: That's what the witness has just said.
MR. MILOSEVIC: [Interpretation]
Q. And can one explain a large number of injuries on the head and trunk by the fact that in any training of soldiers or any members of armed formations at exercise grounds one usually uses targets with heads and trunks, and the advice is mainly to hit the head and trunk. This is part of the routine training of anyone being trained for combat.
JUDGE MAY: It's not a matter for the witness. Yes. Next question.
MR. MILOSEVIC: [Interpretation]
Q. In the event of a person lying down, on what part of the body would the wounds be found if we're talking about close-range struggle, running, moving, when both sides are mobile, moving around?
A. It would be difficult to answer that question also because it calls into account too many variables into whether the person is lying 5309 down, whether he's lying on the back, on the stomach, whether that person ran or was running. One cannot give a general answer to that type of question. One must take into account the particular cases in order to provide a well-reasoned answer.
Q. And on the basis of the appearance and size of the wound, is it possible to determine the calibre of the firearms that were used and on the basis of which criteria? I'm referring to paragraph 2.1.4.6.
A. As regards determination of the calibre of the weapon, one -- 2.1.4.6, you said? One can provide only general directions. It's very difficult to make the aspect of a wound match a specific calibre. One can give a direction in respect of a type of weapons or munition. That's much easier when one has, for instance, a body which has been pierced by a projectile. It's much more elastic then. The diameter of the entry point will be more or less the same as the calibre of the weapon. That is much more hazardous in respect of the entry wound on the skin because of the fact that the skin is elastic.
Another fact which gives information as to the calibre of the weapon is what we call, in ballistics, lesional ballistic, the lesional profile, that is what one finds during the autopsy in respect of the issues which were traversed by the projectile. So it is a kind of -- a grouping of various elements which will allow, later on -- allow the expert later on to provide information to the judge about a large category or a large class of weapons or projectiles; weapons, calibres, and projectiles.
Q. And which are the criteria for determining the distance from which 5310 a projectile was fired, the projectile that hit the body?
A. This is a very important question in forensic medicine, but one wants to make a distinction between two cases, depending on whether one -- one is dealing with a single shot, a bullet of a weapon or a rifle or a carbine or an assault weapon, or ones which have gunshot -- gunshot wounds which come from buckshot. Buckshot or various projectiles. The spacing of the spray at the point of impact will be correlated with the distance of the firing. The person firing either will be far away -- the further he is from the victim, that is the person firing, the larger there will be a spray of shot. But there are other variables to be taken into account which take into account the length of the gun, the -- the charge of the weapon or the -- the -- what is going to help in dispersing the shot. And then we deal with the single projectile, that is the bullet itself, the bullet which is by itself. In that case, other information is used in order to determine the firing distance. These have to do with information which are either visible or which are shown by analysis. This information which is visible is -- would be burns on -- at the point of the wound or the kind of tattooing of the powder traces which have been partially or incompletely burned on the edges of the wound and then we call it the fading zone. That is the place where the smoke struck the body. And then in respect of the firing distance, some of this information will be present or absent.
The final case to be taken into account is the one of firing which had been at close range or in which -- when one sees a specific aspect of the wound itself. 5311 These are the different criteria which we use in forensics in order to determine the firing distance.
Q. Yes. But, for instance, there are no burns, which means that it was not close range. Can you then assess the distance from which the shot was fired? Was it 10, 50, or 500 metres?
A. Beyond a certain distance, which various depending on the length of the gun or the size of the -- amount of powder used, it is true that one can determine the firing distance. One can determine contact discharge firing with the -- where the gun is put right up against the skin of the victim, those which are close range, those which are short range, and then intermediary distance and long distance about which one cannot give any specific information from the point that the traces of sulphur powder have dissipated. Once that has happened, one cannot determine the firing distance.
Q. Very well, then. Let me be more specific. Which distances can be established during the autopsy and using which research methods? Which distances is it possible to establish and on the basis of which methods of research?
A. The firing distance which we can evaluate at the time of the autopsies, referring to single projectiles, one can determine that things -- approximately only those which -- the cases where the gun actually touched the skin, at close-range shooting, that is, a few centimetres from the wound, and then intermediary distance. Once all of those factors can no longer be determined, there would be no signs on the body.
Q. So in that case, it is not impossible to establish the distance 5312 from which the shot was fired, whether it was 20 metres or 200 metres, if those traces are lacking?
A. With -- using classical methods, traditional methods. Using other methods, using more sophisticated techniques relating to lesional ballistics, there are differences in velocity which will cause changes on the lesional profile, but that requires specific methodology.
Q. In the studies that you did of those killed in Racak, did you have at your disposal information about the number of persons for whom the paraffin test was positive? That is, it was established that they were shot at by firearms.
A. As regards the reports which I consulted, that is the Finnish report and the one-page conclusion of the Belorussian and Yugoslavian team, there are no mention of paraffin tests. I would add that that paraffin test, which dates back to the 1930s, is a test which is of historical interest but which today is of no scientific interest. It is a test which can make it possible, when used on a person who shot in order to get an idea of the distribution of nitrate on the hands. But it will only indicate nitrate and in no way will it be very specific about firing residue. This is a test whose scientific valuation today has been rejected by all experts throughout the world because of its lack of specificity and the fact that our atmosphere has nitrate pollution at very large levels which is related to fertilisers and related to the possibility of having positive tests if there are traces of urine or nail polish or using any other kind of agents which would give positive reactions. So that is a test which is no longer scientifically accepted 5313 at all and has no scientific value in respect of showing firing residue. Having said this, I -- I was able to -- I did not really use that method in order to -- to come to any conclusions. If I had had to, I would have pointed out that there was a lack of specificity in that type of test which does not allow it to be accepted in the scientific community.
Q. And did any of the persons killed have any traces of nail varnish or did you have any information that in that village in the month of January, which had been abandoned several months ago, did you have any information to show that somebody had been using artificial fertilisers?
A. I had no information in the reports about the use of nail polish with the victims, including the female victims there. There was no information as to the use of fertilisers. But we do not need information about that type of detail in order to reject categorically - and that appears in all criminalistic books - to reject categorically the use of this type of method in order to look for firing residue. And I'm absolute on that point. I can refer you to several international publications, the most recent dating from 2001 from the Lausanne forensic laboratory. This is something which everyone knows in the scientific community.
Q. You have already said that the Prosecution did not provide you with the entire report, but did they provide you with the testimony of the witness that they have in their file, Dr. Dusan Dunjic, a forensic pathologist and also a member of these international associations of forensic experts and pathologists? Do you perhaps remember seeing that? 5314 BLANK PAGE 5315
A. The list of reports or documents that were used for drafting my report appears in the introduction, and I did not use them to prepare the report, that is the one from Professor Dunjic.
Q. Very well. Thank you. Diseases verified among those killed in Racak, could they have been an obstacle for them to take part in armed conflict?
JUDGE MAY: It's not for the witness to say.
THE ACCUSED: [Interpretation] I don't understand why not.
JUDGE MAY: He's a pathologist. He's here dealing with the various corpses and not the diseases they suffered from and whether they prevented them from being in armed conflict. If you want to call a doctor about it, you can.
THE ACCUSED: [Interpretation] But I'm linking this to paragraph 2.1.4.8 from his report, and diseases are also part of the pathology.
JUDGE MAY: Let us look at that. 2.1.4.8. You will have to help me, Doctor. 2.1.4.8?
THE WITNESS: [Interpretation] 2.1.4.7. It's on page 26, Your Honour.
JUDGE MAY: I have it. Doctor, can you help us whether somebody who had cancer of the bladder would be capable of taking part in an armed conflict? Or any of the other diseases that you mention; pulmonary emphysema? It would depend on how bad it was, presumably.
THE WITNESS: [Interpretation] That's correct, Your Honour. That would depend on the seriousness. In respect of the cancer for RA2, it was a cancer which had not metastasised into secondary locations and was 5316 relatively limited to that particular part of the body. Therefore, one could assume that that individual was still in a position to -- was still -- able-bodied. But I do not have any medical information which would allow me to answer properly that question.
MR. MILOSEVIC: [Interpretation]
Q. Very well. Why anthropologists and pathologists could not establish the minimum number of persons in the Djakovica site in Millosh Gillic Street on the 2nd of April, 1999, and was, on that occasion, an adequate method used to determine the minimum number of persons in the grave? I am linking this to 2.5.3.1, paragraph 2.5.3.1.
A. Yes, the difficulty which apparently was encountered by Dr. Rodriguez and his colleagues was related to the very bad condition of the human remains which they had to examine. They were not bodies but fragments of bodies and bodies which were partially carbonised. As regards the estimates of Dr. Rodriguez as to a minimum number of approximately 20 victims, this is related to the fact that in this type of case, as I have already said, the anthropologist or the forensic specialist will try to count the bones which are in a single position, and it's on the basis of that information, or that anthropological information, that we can estimate numbers.
Q. And the burnt nature and dismemberment, is it the result of mines and explosives of great destructive power or not?
A. It is difficult to answer the question because of the very poor state of preservation of the bodies, and that did not allow pointing -- pointing out traumatic lesions. One could point out that there were 5317 wounds and most likely those were caused by explosives. I could say that in some cases there were signs of post-mortem animal activity to show that the bones had been degraded by dogs or others -- or other animals.
Q. If the doctor that we're talking about could not ascertain with any certainty the minimum number of individuals and the sex of the people that were victims and found in this grave, how is it possible that the human remains of minors coincide with the published number of children listed as missing? And I'm talking about the number 12. And is that -- does that come within the frameworks of that professional work as well?
A. Some of the bones have an unequal value in respect of others when it comes to determining the age. If one is lucky enough to find a part of the sacrum or a part of the clavicle or a rib or a fragment of a skull, depending on the specific anatomical relief that one notices on those bone fragments, one can make estimates as to the age. For the certain parts of the body, we know that -- that it changes with age. It will -- the cartilage will change in that part of the body, particularly having to do with the pubic bone. And so we have reference tables, or there is the Suchet and Brooks team which we can use. They have the same thing for the extremities of the limb -- of the ribs. We know that the sutures, cranial sutures will come together at different times and different ages. The same thing applies to internal aspects of the clavicle, the collarbone.
So when we can put forward these types of bones among commingled bones, that one -- one will be able to identify, according to the age group, those bones. And that allowed the Dr. Rodriguez to answer that 5318 question and to provide the detail from that point, although he was not able to give a specific number because he spoke only about a minimal number of individuals. That is something which is completely acceptable and understandable from the point of view of a scientific study.
Q. Yes. But this kind of finding, could it have been made with any certainty, any degree of certainty?
A. Everything depends on the type of bone which is being considered. The predictive value of this or that bone is different depending on the age group. The pubic bone has a diagnosis value which is very important for determining the age before the age of 40. The value of an internal clavicle extremity or a cranial suture may be much less specific and therefore one has to refer to each of the bones under consideration in order to determine whether the predictive value has been encountered.
Q. Yes. You're explaining how this is professionally possible in principle, and I'm asking you in concrete terms for a concrete case and concrete data which was arrived at by looking at concrete bodies, specific bodies. So were you able -- is it possible -- possible to ascertain that kind of thing with a high degree of certainty or not?
A. As regards the documents made available to me, I did not have any specific criticisms to make about the methodology that was used by my -- by Dr. Rodriguez. I do not have any reason to doubt his work, but I was not in a position to control all the evaluations which he made. I did not have photographic documents of each of the bones, only overall views with limited incidents. And therefore, I have no reason to question the doctor's conclusions but I myself was not able to control each one of the 5319 operations carried out.
Q. So in principle, you have no reason to doubt. But in this concrete case, as far as I understood you, you were not able to check this out and test it. Is that right?
A. I was -- I was not able to carry it out as part of an anthropological evaluation.
Q. Thank you. Now, yesterday, you were talking about this particular matter and you were asked during the examination-in-chief in your testimony something with respect to the determination of sex of those 20 persons that were killed. And as far as I was able to gather and note, make a note of, you said that only in one case was it possible to establish the sex and that that was in fact in the case of a male, whereas in 19 of the other cases, it was not possible to determine sex. Did I understand you correctly?
A. Yes. The comments that one can make in general which will apply also to the specific case in respect of determining the sex are the same as those done -- made in order to determine the age. Only some of -- points on the skeleton will be of interest to determine the sex of the victim. This is the case, for instance, of the pubic bone, which shows different morphological characteristics depending on whether it's a man or woman. And this is the case of the base of the skull and other criteria which are much less reliable and which are related to the general condition of bones like the femur and the overall impression of the skeleton.
However, in that case, one is faced with bones that are extremely 5320 degraded and whose diagnostic value in respect of sex may be limited. When Dr. Rodriguez was lucky enough to come upon a fragment of the pubic bone, it was possible to state the sex, but in other cases that is not possible.
Q. Therefore, did I understand you to say that in the rest of the 19 cases it was not possible to determine the sex of the bodies; is that right?
A. It was possible to determine the bones which were -- had more female characteristics than not and to distinguish them from bones which could not be attached to one sex or the other. The problem also was that in respect of determining the sex, one does not give a categorical answer. In respect of the sex, there are -- there is a certain percentage of probabilities that the subject would be of this or that sex. We're dealing with men whose morphology is more feminine, more graceful, and then there are certain females which have more masculine characteristics. That explains the care that was expressed in Dr. Rodriguez's report. Only one individual showed very clearly masculine characteristics.
Q. All right. Now, would you answer this then, please: Why does it say in this list of yours one man and 19 women? On the basis of what? How come you were able to introduce that factor into your list as you say it was impossible to determine the sex of the 19? Why then does it say one man and 19 women in the list, one male and 19 female corpses?
A. One male and 19 which were either female or male. Female or undetermined, rather. 5321
Q. Well, take a look at what it says in your list. I haven't got the page in front of me, but I did study it carefully. One man, one male. You have a list and it says one male, 19 females.
A. Page 38, paragraph 2.5.3.4, there we read that all the others -- well, there was only one adult male was identified - that is bone cluster number 10 - and all the others were diagnosed as either female or undetermined.
In the conclusions on page 50, paragraph 2.5.2 -- it says that one was male and the others were female or undetermined. And as regards the chart which -- which says sex distribution, 1.4.3.2, we read that there were 5 per cent male and 95 per cent female or undetermined. I didn't say that the rest were only females.
Q. But that question was asked you yesterday during the examination-in-chief. One man and 19 women. So that means that that is not correct. One cannot make that conclusion; right?
A. It seems to me that I corrected that yesterday when -- and I said at issue were either women or people whose sex was not determined.
Q. So that observation and conclusion could not have been drawn from your report. The Prosecutor could not have drawn that conclusion from your report in asking you that question; is that correct?
JUDGE MAY: The witness has clarified the matter. Move on to another question.
MR. MILOSEVIC: [Interpretation]
Q. All right. Then I just have one more specific question. As we're talking about professional reports here, expert reports, highly expert and 5322 professional reports of which I was denied the right to be provided them in my own language, could you please, Mr. Baccard, when I receive a translation in my own language and when I am able to pinpoint certain questions and some of the differences that you yourself point to, not I establish them but experts who will take a look at it, would you be so kind as to come back and answer some of my other questions which will emerge from that study and examination?
JUDGE MAY: That is a matter for the Court. We will ask Dr. Baccard whether he's available, and if -- once you've provided your questions, we will see if we can ask him to come back. Unless, as Judge Robinson said, you would like to call him as a witness, but that's another matter.
Yes, Mr. Tapuskovic.
THE ACCUSED: [Interpretation] No, no. I do have some more questions. You thought I was finished? No.
JUDGE MAY: Yes, absolutely. Right. Well, you've got about half an hour more. See if you can finish by the break, please.
THE ACCUSED: [Interpretation] I don't know why in this particular case you're once again restricting my time for cross-examination, Mr. May. We have a report which numbers 150 pages. We had a comprehensive examination-in-chief. We have 38 binders that were not provided to me in my own language, and you now tell me that all I have left is half an hour for my questioning.
JUDGE MAY: Yes.
THE ACCUSED: [Interpretation] I don't understand. 5323
JUDGE MAY: Yes. We've considered the time which you've taken and the purpose for which it's been taken, and with respect to you, it hasn't been to a great deal of purpose so far. Now, you've had an hour and a half and you're getting another half hour. We'll consider the position then. But let's move on. If you've got specific questions, ask them.
THE ACCUSED: [Interpretation] As you have noticed, I of course don't have an objection to this, but the witness is giving extensive answers. So could you please take that into consideration as well when you calculate the time that you allot to me and all the circumstances.
JUDGE MAY: Yes. Dr. Baccard, could you please answer as shortly as possible. Yes and no, if possible.
Yes.
THE ACCUSED: [Interpretation] I personally don't have any objections to lengthy answers, but I do have objections to you and the time you are restricting me with and all the other things that you are restricting.
JUDGE MAY: Yes. Move on.
MR. MILOSEVIC: [Interpretation]
Q. Now, explosive wounds registered on the bodies of those killed in the Kacanik area, 2.8.5, what do these indicate, these injuries, these wounds, what do they indicate?
A. It was noted by Dr. Markwalder and Dr. Wyler that there was marks of explosions, of wounds and fractures and disintegration on 21 of the bodies, which would call into mind explosive agents. 5324
Q. And in view of those findings, does the possibility exist that people were buried there who had died in the bombing, who were killed in the bombing?
A. I have no information which would allow me to make -- give you a forensic answer in respect of the burials.
Q. You say that they were killed as the result of an explosion. Now, an explosion can be the explosion of an aeroplane bomb, for example, in the vicinity. Is that possible or not, or do you exclude that possibility?
A. I have no information in the report of the two forensic physicians which would allow me to answer the question. The determination of the origin of an explosive agent is based more on the basis of shrapnel fragments that were found during the autopsies rather than clinical examinations, taking into account the nature -- the very nature of the wounds.
Q. All right. Now, if eight persons were exhumated [sic] at the Muslim cemetery in Dubrava, for example, and if all these persons were identified by their relatives and family, how come the age was not determined in five cases? And that is point 2.9.3.5, paragraph 2.9.3.5.
JUDGE MAY: Can you help us as to that, Dr. Baccard, or not?
THE WITNESS: [Interpretation] I have no answer, no. It appears that the bodies were extremely degraded, that is, most of them were. I don't know whether that is referring to the state of degradation of the bodies.
MR. MILOSEVIC: [Interpretation] 5325
Q. If seven bodies in this case were in the skeletonised state, that is to say with no soft tissues, how were the pathologists were able to conclude that death resulted predominantly from internal bleeding, and is it possible at all to draw that kind of conclusion or, rather, is it possible to arrive at conclusions in that way when you are dealing with skeletonised bodies? And that is point 2.9.4.1 that I'm referring to.
A. Could that question be asked again, please?
Q. The question was: If in this case we have seven bodies that were skeletonised, seven skeletonised corpses, that means without any soft tissue, how then were the pathologists able to conclude that death resulted predominantly from internal bleeding, that it was caused by internal bleeding? And is it possible at all to make conclusions of this kind when you're dealing with a skeletonised corpse?
A. I have no information about internal bleeding.
Q. 2.9.4.1 paragraph. That is it, Doctor, 2.9.4.1.
JUDGE KWON: Page 53.
THE WITNESS: [Interpretation] Yes. There is an error. You're speaking about what site? Is that the Kotlina site or the Dubrava site? Both were part of the Kacanik case. Because I was not at the right --
MR. MILOSEVIC: [Interpretation]
Q. Yes, it belongs to Kacanik. This is 2.9.4.1, the question I'm asking you is about 2.9.4.1, skeletonised bodies, seven of those, and the conclusion was that death resulted from internal bleeding. Is it possible at all to establish that death was the result of internal bleeding when you're dealing with skeletonised bodies? 5326 BLANK PAGE 5327
JUDGE KWON: And it's Dubrava.
THE WITNESS: [Interpretation] Dubrava. My previous answers dealt with Kotlina and not Dubrava.
As regards Dubrava, since I was not looking at the right page, it was noted that the bodies were skeletonised. Now, I have to explain what is particular about that term. It means that there is a gradual disappearance of the soft tissues and that the -- most -- that most remaining -- remains are constituted by the skeleton. But that can be -- the skeletonisation can have different phases as well. There can be partially skeletonised bodies which let one see, depending upon the burial situation -- I'm sorry, but I've got to go into more detail here, and I give you a somewhat longer answer, but I've got to make this point clear. One can have, depending on the -- the burial, there can be skeletonisation which is not complete, which is partial, and which varies depending upon the location of the body. There can be within the thorax, with ribs that will be apparent, that is in skeletonised stage, in death, there can be remains of traces of bleeding which are putrefying, but there are still remnants of that, which might explain why that there was the diagnosis of internal bleeding that was provided by the forensic specialists.
And I repeat that my previous answers referred to Kotlina. In terms of Dubrava, there were seven cases of skeletonised bodies in various degrees, and one was mummified.
MR. MILOSEVIC: [Interpretation]
Q. All right. So in answer to my question of whether we can note 5328 that -- conclude that death resulted from internal bleeding on a skeletonised body, your answer to that was yes. Did I understand you correctly?
A. Skeletonised is the end result. There are different degrees of skeletonisation, as I have just explained. There are partially skeletonised bodies or totally skeletonised. When the body is completely skeletonised --
Q. Yes. We've already heard about that, Doctor. Yes, I know that. But we can ascertain that death was caused by internal bleeding even on skeletonised bodies. That's what you said, isn't it? I'm just checking out whether I understood you correctly.
A. From the point that the forensic specialist notes that there were traces of bleeding in the thorax, the diagnosis can be given even if the limbs have been skeletonised. There must be enough soft tissue in order to make that assertion.
Q. Very well. Thank you. Now, on the basis of which findings was the pathologist able to conclude that in some of these cases the victim was leaning or lying down when the bodies had in fact been skeletonised? How is that possible?
A. We are referring to the Dubrava case in Kacanik; is that right?
Q. That is 2.9.4.5, point 2.9.4.5, what I'm referring to. On the basis of which factors was the pathologist able to determine whether the victim was kneeling, in a bent-over position, lying, et cetera, when he was dealing with skeletonised bodies?
A. These are questions that you should ask him. I put in the 5329 criticism -- I put this in the criticism about the report, but these are questions that should be asked of him directly.
Q. Does that mean that you personally did not examine these bodies in the capacity of an expert pathologist? Does that mean that in fact your report is exclusively based on the reports you got in, you were relying on?
A. That's correct. And that was stated yesterday in the beginning and is explained in my evaluation report.
Q. Fine. And could all injuries on the body be registered when we know that the bodies were skeletonised? I'm referring to 2.9.5, to save time and facilitate your answer.
A. What is the question?
Q. I was referring to 2.9.5, to help you answer. And the question was if it is known that the bodies were skeletonised, was it possible to register all the injuries or wounds?
A. Once again, I would recall that there are degrees of skeletonisation of bodies. Secondly, the wounds which were studied and the statistics drawn from those wounds deal with wounds that were identified as such.
Q. Very well. In the case of Vata and Kacanik, the appearance of the wounds in three cases indicates that they were shot at from a large distance. Is that a sign that these persons were killed in an armed conflict? 2.10.4.5. 2.10.4.5.
JUDGE MAY: The pathologist cannot determine the circumstances in which they were killed in this sort of case, I would anticipate. 5330 Dr. Baccard, is that right? Can you tell whether it was an armed conflict or what it was?
THE WITNESS: [Interpretation] No, Your Honour. The firing distance in no way indicates the circumstances under which the firing was done, whether it was an accident or a homicide or an armed conflict.
MR. MILOSEVIC: [Interpretation]
Q. And in Stagovo and Kacanik, the wounds established, were they made by a blunt instrument? Could they have been caused by falling? How was it possible in 99/04/5 -- 10 that it was not impossible to establish whether the injury on the left side of the chest was caused by shrapnel or not? This is paragraph 2.11.4.6.
A. It is noted that in some cases there were associated lesions which are described in paragraph which -- to which reference is being made. Wounds which would call into -- which call up three-quarters of wounds caused by blunt instruments, and the term was used by the forensic pathologist, that is, possible wounds caused by shrapnel to the -- in the left thorax.
Q. So it's a possibility. And the different condition of putrefaction of bodies exhumed at Gornje Stimlje, does it indicate that death occurred at different times? That is the different degrees of putrefaction, is that an indication that death occurred at different times? This is 2.11.3.2. 2.12.3.2, I'm sorry.
A. We know in terms of forensics that the states of putrefaction which are different do not indicate different burial dates. The damage to the bodies once they have been buried depend upon local burial conditions, 5331 whether or not there is water at that location, what the quality of the soil is, what the significance of -- of the clothing and other factors such as the size of the body. There are many factors that have to be taken into account, and it is not possible to deduce from that what the dates of -- different burial dates.
MR. RYNEVELD: Your Honours, I wonder if I might just clarify the paragraph to which we're being referred, because I don't know whether it's a matter of translation or a matter of the reference being given incorrectly, but I don't see, on a number of occasions now, that there's a corresponding paragraph. Thank you.
JUDGE MAY: You've got to have a good look. It's 2.12.5.2. Yes. Let's go on.
JUDGE KWON: There's a problem in the report in numbering generally.
THE ACCUSED: [Interpretation] 2.12.3.2.
JUDGE MAY: There is obviously some problem in the numbering because the numbers are not the same.
MR. RYNEVELD: And in fairness to the witness, we're now on to a different site altogether. By my reading, if it's 2.12.5.2, then we're on to Studime e Eperme.
JUDGE MAY: The accused did say that.
MR. RYNEVELD: Thank you.
JUDGE MAY: Yes.
THE ACCUSED: [Interpretation] Shall I continue?
JUDGE MAY: Yes. 5332
MR. MILOSEVIC: [Interpretation]
Q. By which method was it established that, in those cases on this location, firing was at close range? This is 2.12.4.6.
A. The evaluations were performed by two forensic French -- two French forensic specialists, Dr. Vorhauer and Dr. Lecomte, assisted by a ballistics expert and munitions expert.
THE ACCUSED: [Interpretation] I'm not getting any interpretation. I'm sorry. I have to apologise.
JUDGE MAY: Dr. Baccard, would you go back, please. You said that the evaluations were performed by two forensic -- I think French forensic specialists. Could you pick up the answer from there.
THE WITNESS: [Interpretation] Yes, Your Honour. I was saying that each autopsy was performed by two forensic specialists from France, Professor Lecomte and Dr. Vorhauer, with the assistance of a ballistics and munitions expert, and that in most of the cases, the firing distances were asserted by observations that were made by that expert on the clothing and traces that were found on the clothing.
MR. MILOSEVIC: [Interpretation]
Q. And the victims in the prison in Dubrava, were they killed mostly as a result of the effects of explosions -- of an explosion? This is 12.13.4.3 -- 2.13.4.3.
A. As regards Dubrava and the prison at Dubrava, the victims -- 40 per cent of the victims showed wounds that were related to the effects of explosive directly by shrapnel or by sulphur, and part of the victims as well, 37 per cent, suffered bullet -- gunshot wounds. Thirty-seven per 5333 cent with the wounds and the other per cent by shrapnel -- explosives, excuse me.
Q. The death of a person with a sharp object and a blunt object in 25 cases could have been caused as the bodies were thrown by the explosion and as those bodies hit against blunt or sharp objects as they fell to the ground.
A. There are several mechanisms in explosive-caused deaths. They could be direct explosives, fragments of the explosive envelope which hits the body in the form of projectiles, there is the sulphur effect which alone can cause death, and there is also the possibility of secondary lesions related to a fall which sometimes might happen in steep areas. The two major causes are deaths caused by shrapnel or sulphur blast.
Q. And the death of 23 persons on which no external or internal injuries were established, are they due to so-called blast injuries as a result of the explosion which caused this air blast? And as you know, the prison was bombed, so could that have been the consequence? That is in the case of persons for no -- on which no external or internal injuries were found, could their death have been caused by this blast effect of the explosion?
A. Once one does not have enough soft tissue in order to carry out histological examinations, the diagnosis remains one of eliminating. The only conclusion that one could arrive in the 25 cases, the only conclusion that the forensic specialist arrived at was that it was impossible to determine the origin or the cause of death.
Q. And all the bodies found at the grave in Rakosh, were they killed 5334 at the prison in Dubrava or could they have been brought there and buried from some other place?
A. I don't have information, forensic information, that would allow me to answer that question.
Q. But you find that in paragraph 2.13.5.
A. What is the title of that paragraph?
Q. 2.13.5.
JUDGE MAY: No, its title, because there's something gone wrong with the numbering.
JUDGE KWON: It might be "Conclusions," 2.13.9.
JUDGE MAY: Yes.
MR. TAPUSKOVIC: [Interpretation] Your Honours, I can be of assistance. There is a serious difference in the numbering between the B/C/S version and the English version so the errors are very considerable, and that is why the difficulties arise.
MR. MILOSEVIC: [Interpretation]
Q. Regardless of that, my question remains whether all the bodies found at the Rakosh cemetery were killed at the prison in Dubrava or, after being killed, could have they been brought there and buried there after being brought there from some other place?
A. I cannot answer -- give a forensic answer to that question.
Q. Very well. Thank you. And the report on Suva Reka, can it be considered acceptable if there are differences in the findings and opinions regarding the gender and age of the victims between experts, members of one and the same team that examined them? 2.14.3.4 and 5335 2.14.3.5.
A. There were differences between the two anthropologist reports who successively investigated the cases, the report of Dr. Black and of Dr. Roberts. I was not in the position to know which of the two was right. I noted it down in respect of the cause of death, as I have already said, and Fatime Berisha and the cause of death could be asserted for Fatime Berisha and Fatime -- Faton Berisha. We have there is the problem then of this divergence between the two reports. The cause of death, in any case, was not determined.
Q. You said that you personally did not examine any of these bodies but that you just used findings and reports. Did you carry out any autopsies personally? Did you examine any one of these gravesites that are mentioned here at any time? I'm not just referring to the time when you were working on your report.
A. I -- this was said yesterday: I did not perform autopsies on the sites which are the subject of this report. I did not carry out the autopsies by myself. I did it -- I performed autopsies in 2000, but not the autopsies which are described in this report. My work, as I said yesterday, was a work of analysis and summary and work of analysis of a video document and a photographic document relating to the Izbica site.
Q. Could you tell me, Mr. Baccard, please, I'm more interested in an explanation as to how a prominent expert in your field of expertise can accept, on the basis of what I would call poor photos, stills taken from a videotape, to interpret the types of injuries on dead bodies, the types of 5336 injuries inflicted during life, the age of the victims, the origin of traces on the clothing of the victims, the mental retardation and --
JUDGE MAY: Let the witness answer that and then we shall adjourn. You're being asked about how you can make observations on the basis of a film of sorts.
THE WITNESS: [Interpretation] As regards the list of conclusions which I made in the report, I certainly did not interpret the mental condition of the victims. I return to what I said beforehand about the forensic analysis and the video cassette. The limitations were clearly indicated in terms of scientific research, first of all, in my report, and they appear in the annex which deals with Izbica. The conclusions are not forensic conclusions which are absolute. The answers are always given with the possible correction that such images are compatible with certain -- with such lesions. And as I said, this is not a document which has the value of an expert evaluation. This is stated in the introduction to my report.
Having said this, I answered yesterday a question asked about the -- the character -- the fact that it was not unexceptional to have this type of a mission, a mission which is frequently given to us by judges.
JUDGE MAY: We will adjourn now. Mr. Milosevic, we've considered the extra time you should have. We said a quarter of an hour, however, you've had five minutes of that, So you'll have ten minutes on our resumption.
Mr. Tapuskovic, we shall expect to finish this witness today. We don't want to detain him here any further. 5337 We will adjourn now. Twenty minutes.
--- Recess taken at 12.21 p.m.
--- On resuming at 12.43 p.m.
JUDGE MAY: Yes, Mr. Milosevic.
MR. MILOSEVIC: [Interpretation]
Q. Could I ask you to give me short answers, please, because I have very little time left for a lot of questions. How did you establish, as we are talking about Izbica, how did you establish that the photos were indeed from Izbica?
A. I didn't determine that those photographs were from Izbica. I analysed a video cassette which was given to me by the Office of the Prosecutor.
Q. So you were given the tape by the Prosecution.
A. That's correct.
Q. Do you know who filmed the video?
A. Yes. I was told that.
Q. And who was the author?
A. I was told that the video was made by a witness, a doctor, Dr. Dosik [phoen].
Q. Did you ask for the minutes of the Yugoslav authorities or the reports of the Yugoslav authorities from Izbica? Because I've just been told that they too carried out a detailed investigation into what had happened there, an on-site inspection and investigation was carried out. Were you given those reports?
A. No. 5338 BLANK PAGE 5339
Q. Very well. Very briefly, then, a few more questions. You spoke yesterday about errors and discrepancies. Are you sure that you identified all the errors and discrepancies?
A. What I was given, under the -- using as a control the photographic albums and the various reports, I believe that the divergences that could be seen were listed in my -- the annexes to my report.
Q. Is it possible for you to have established each and every single discrepancy and error?
A. I don't know. The -- I described in the annex of my report any divergencies I noted, and I don't know whether that list is complete.
Q. The documents indicating discrepancies, by being looked through by another expert, would that expert possibly find or identify some other errors or discrepancies?
A. I don't know.
Q. Would you allow for the possibility for another expert being able to identify some other errors and discrepancies?
A. I don't know.
Q. You said yesterday that the use of this method, that is photographs, has its limitations and that it is not frequently used. Isn't that so?
A. That is correct. I -- was written in the annex in respect of the report on Izbica. On page 93, it is stated that the limitations of the state are shown by the poor quality of the images that came from that videotape and that the definition's very incomplete and does not allow important enlargement of the details. There is no reference to a 5340 millimetre length scale, and that do not correspond obviously to the criteria required of the scientific photography. It says that a simple analysis of the images can in no way correspond to the external examination of bodies, but I emphasised that, in other terms, this medico-legal opinion in my report did not have the value of a scientific evaluation, that nowhere was there a diagnosis or certainty but simply diagnostic hypotheses, and what I did note here was things that were compatible or not compatible with lesions that had been noticed. This was stated in the introduction to my report.
Having said this, in the absence of an autopsy report, this document was the only one, along with the report of the French team on the exhumations, it was the only one which allowed us to have a forensic opinion.
Q. Do you consider this to be a serious limitation or not? Please, yes or no.
A. I'm sorry, I have to temper my answer.
Q. I didn't quite understand the answer.
A. I was saying that, in this case, it was not possible to answer by saying yes or no but that I had to give a more qualified answer.
Q. But as briefly as possible, please, because my time is limited. So the question is: Do you consider this to be a serious impediment or not?
A. I repeat that in no way is this a question of an expert -- a scientific expertise but, rather, a forensic opinion like the one that we give in other cases at the request of judges who have only available to 5341 them videos or photographic documents.
Q. What if the photographs were not taken by an objective person but by an interested party or by a person with prejudice? Would you consider that an impediment?
A. That would in fact be a possibility which I took up in the last paragraph of the chapter material, on page 93, where I looked at the possibility of simulation, and I gave my opinion on that possibility. But I must say that I did have that come to mind.
Q. Very well. It did occur to me as well. Could you tell me where you specialised in ballistic wounds?
A. At the faculty of medicine in Marseille as part of a diploma in lesional ballistics that was organised by the faculty of Marseille and General Breteau.
Q. And why did you prepare a new report on all the sites when your colleagues had already prepared reports for each of those sites separately?
JUDGE MAY: He's already explained what he did.
MR. MILOSEVIC: [Interpretation]
Q. Did anyone - and if so who - express doubts as to the expertise of your colleagues who had previously studied the sites covered by your report?
A. No.
Q. And did you coordinate your report with the -- with your colleagues whose reports and conclusions you had analysed?
A. No. This report was prepared afterwards. 5342
Q. Can you explain, in view of the fact that you were in Bosnia, why expert pathologists engaged by this institution, after so many years, still do not have a unified methodology of expert analysis of mass graves?
A. At the ICTY, we use a single methodology for exhumation operations that took place in Bosnia and in Croatia or in Kosovo. The methodology which was used in 1999 by the various international teams who worked separately, this is methodology which -- their methodology might have varied, and principally that was the reason that the Prosecutor's office asked me to prepare this summary report.
JUDGE MAY: Mr. Milosevic, this must be -- this must be your last question.
THE ACCUSED: [Interpretation] Allow me two last questions, please.
JUDGE MAY: Very well.
THE ACCUSED: [Interpretation] Thank you.
MR. MILOSEVIC: [Interpretation]
Q. What is the total number of victims that you mention -- or, rather, on how many victims have you given your expert opinion though you said you personally did not examine a single victim? You used one witness testimony and the rest was based on photographs and the videotape. On how many victims have you provided your expert opinion?
JUDGE MAY: Unless the witness has got it in his head, he'll have to add it up, and we can do that ourselves. What's the next question?
THE ACCUSED: [Interpretation] Very well.
MR. MILOSEVIC: [Interpretation]
Q. If you have so many objections regarding the findings of experts 5343 of this institution for Bela Crkva, Padalishte, Studime, and Dubrava, and then you come to the conclusion that, from the forensic point of view, these are observations, do not change the content of the expert reports, my question is: Do you justify -- are you justifying somebody's mistakes or ignorance or the need of this institution to justify the omissions made by others?
A. I would say, of course, no.
JUDGE MAY: Thank you. Yes, Mr. Tapuskovic.
MR. TAPUSKOVIC: [Interpretation] Your Honours, thank you. I should just like to tell you, however, before I begin my questioning, that throughout my professional career, I was never faced in such a sensitive point in time to make -- to take care of the time and to deal with only two sites out of all the sites that are before us, are before you, first and foremost. So I would like to ask Mr. Baccard just things related to the Dubrava site, the Dubrava prison site, that is to say 2.13.8.2. And the second site is the Racak site.
Questioned by Mr. Tapuskovic:
Q. Mr. Slobodan Milosevic has already asked several questions pertaining to the Dubrava prison site, and Mr. Baccard answered his questions. However, I should like now to ask a direct question, to ask Dr. Baccard a direct question, and it is the following: In paragraph 2.13.8.2, in the second paragraph of that point, it states that the cause of death is pulmonary shots, explosions. So there are no outside signs but the lungs burst in 23 cases. Now, what kind of explosion could it have been, what kind of blast could it have been to have caused the death 5344 of 23 persons exclusively by this cause, that is to say, the shattering of their lungs? So was it a blast of extraordinary strength?
A. As regards the answer to that question, that diagnostic clarification does not necessarily mean that there was a single explosion. At issue there might be a blast -- consecutive blasts of several explosions. This is a comment which -- this is the comment that I would make.
THE INTERPRETER: Microphone, please. Microphone for the amicus.
MR. TAPUSKOVIC: [Interpretation]
Q. These, however, were blasts, were explosions of such a nature that they caused exclusively internal injuries. That means that they must have been several explosions, one following another, of great power and strength. Strong, very strong explosions.
A. In the report, we do not have details which would allow us to answer that question. It also depends on the situation of whether the victims were being confined at the time of the explosion. An explosion in the open air will not have the same effect as one in a confined area, as in a small room, for instance.
Q. But none of these individuals was killed through direct contact with anything. It was just this air blast. Now, can that be characteristic of bombs, bombs that were thrown in this locality during the bombing, during the NATO bombing? Could that be it?
A. I am not aware of the circumstances, but this type of lesion might be encountered in the explosion of a bomb.
Q. Thank you. Similarly, when you spoke of these 25 injuries where 5345 we were dealing with damage -- that is to say, they weren't lethal, now, could that have been the product of these air blasts as well, similar air blasts, that people were thrown through the air, went flying through the air as a result of the blast?
A. No. What is stated is that in 25 cases, the type of agent, wounding agent, could not be determined.
Q. Yes, but what -- could the wounding agent have been an explosion, a blast which threw the victims up in the air and then they fell every which way and landed on the ground?
A. Insofar as my colleagues were not able to answer that question, I cannot answer now. As regards the blunt trauma instrument wounds, the aspect of the wound was sufficiently characteristic for that explanation to be given. But in 25 cases, it was not possible to determine the wounding agent.
Q. Thank you. I have no further questions about that, Dr. Baccard, but I should like, and I have to bear in mind the time, to move directly to another area and cover everything that you described and explained in your introductory remarks, in fact, when you said that you were presenting -- when you presented your views on method, methodology. And then you say -- I don't know where it is in the English version exactly, let me try and find it. It is 2.1.3.4. And in that section, you deal with clothing, military or civilian, and you present the view that: "We are able to conclude that the victims in practically all the cases were wearing civilian clothing." Is that right? Do you make that observation?
A. This is in paragraph "Military/Civilian Clothing" on page 12 of 5346 the report, and in fact it is stated that all the victims seemed to be wearing civilian clothes. That is, almost all the cases were that.
Q. Thank you. Now, what about Racak? The clothing that the people were wearing who lost their lives in Racak, were those people dressed in any specific way, that is to say far differently from all the other people that you encountered wearing civilian clothes? Were they wearing substantially different types of clothing?
A. As regards Racak, in the autopsy reports of the Finnish team, there is a paragraph which dealt with the description and photographs of the clothing. This did not exist for the 16 autopsies which were used to -- for verification purposes, because those bodies were undressed. The second source of information was the photographs taken on site and on those clothes that one could see on those victims on site or on the clothes that were described in the autopsy reports, there were only clothes that seemed to be civilian clothes.
Q. Thank you. However -- of course I'm not going to tire either you or the Court, but among the documents that are in existence, in the binders, that is, of the 40 persons -- of the 40 persons that were looked at, 24 show without a doubt that they were wearing two kinds or even three kinds of clothing. I'm not going to show anything else but just a case in point. I have selected one particular case, and I would like the Trial Chamber to have a look at it. It is in binder 5, which is the Racak binder. It is tab 30.
MR. TAPUSKOVIC: [Interpretation] May this one case be viewed by Dr. Baccard, and then I would like to ask him something concerning what he 5347 has looked at.
May we place the document on the ...
JUDGE MAY: Yes. Let it be put on the ELMO, and then perhaps the doctor can see it on the screen.
MR. TAPUSKOVIC: [Interpretation] Your Honour, Judge May, there are quite a number of photographs, and I think that Mr. Baccard ought to have a look at all of them in this particular case, one by one.
JUDGE MAY: Yes. Now, do you want them to go on the ELMO?
MR. TAPUSKOVIC: [Interpretation] I'm forced to ask that, yes.
JUDGE MAY: Yes.
MR. TAPUSKOVIC: [Interpretation] In all other --
JUDGE MAY: It can go on. Now, start, if you will, with -- there seems to be the first one. What is it you'd like him to look at?
MR. TAPUSKOVIC: [Interpretation] The number of the clothing on this person. He had two jackets or parkas, three pairs of trousers, and so on. I don't want to go into all the details. Then there were cartridge belts, and then we have an insignia of the KLA among all that. And I think it would be very useful to have a look at all the photographs in this particular case. I am trying to bear in mind the time, but this is a case I'd like to look into.
JUDGE MAY: Yes. Well, let's all have a look. Let's put it on the ELMO and just go through them one by one. Yes. We've got the first picture. Do you want to ask the witness a question about that or do you just want to go through the photographs and then ask him a question?
MR. TAPUSKOVIC: [Interpretation] Could he please take a look at 5348 all the photographs first?
JUDGE MAY: Yes. Let's just go through. Can we go through all the photographs, placing them briefly on the ELMO. Yes.
MR. TAPUSKOVIC: [Interpretation]
Q. And here is the KLA sign. Mr. Baccard, in 24 cases, it was like this. There are 24 cases of people dressed in this way. Is this clothing that civilians wear in normal -- in the normal state of affairs regardless of what times we're talking about or the actual moment that they were taken? Is this standard clothing?
A. The answer will be drawn from my experience during 2000 in respect of several hundred autopsies, several hundred -- thousand autopsies. These are autopsies which we did in Kosovo in order to find the victims who were wearing different layers of clothes.
It is true there -- they were very frequently wearing several layers of clothing. I don't remember what the temperatures were in Racak at the time of the events, but this is information which might be compared with that -- with that data.
Q. Mr. Baccard, if you carried out all these autopsies, did you perhaps have occasion to learn the facts or to perform autopsies with respect to persons who were found in the month of December? Mr. Ciaglinski, who was a witness here, spoke about that and said that a group of people were intercepted that were importing arms from Albania, that they were victims, that they were carrying weapons, and that they all -- they were all dressed in similar fashion. Do you know about that 5349 particular case and those autopsies?
A. What case are we talking about?
Q. Well, never mind. If you don't know, I won't ask you. I won't pursue the point. I have to hurry up, in view of the time. Now, what I want to ask you is this: You spoke a moment ago of the fact that taking paraffin gloves was not a suitable method for ascertaining particles of gunpowder and their presence on hands or clothing. I know about the analysis that Interpol conducted a while ago, but I have to say that, in my country at least, we use this method still exclusively. That's how we do the job.
You know that these paraffin gloves were taken off some of the people. You have that particular fact in your lists. And that the Yugoslav team arrived at a fact that with 37 individuals, the presence of paraffin particles was established and found on their hands. Particles of gunpowder, I beg your pardon. Particles of gunpowder were found on the hands.
A. I was not -- I did not read that report. I can state categorically, and I can provide all the scientific publications which would justify what I'm going say. I repeat categorically that from paraffin tests one can show on the hands only nitrates. One cannot claim that one is showing the presence of powder because of the pollution of the -- the nitrate pollution in the environment and the many other pollutants that exist. And I also repeat in the most absolute way that this test is no longer accepted scientifically today and hasn't been so for many years.
Q. Thank you. I understood that when you were describing it earlier 5350 BLANK PAGE 5351 on. But the paraffin test was not taken by the Finnish team at all, and I'm asking you this in connection with the clothing. On the clothing, gunpowder particles are still -- still can be found. Now, do you know why the Finnish team did not conduct an analysis of so much clothing that was found on these people and why they did not use a radiological analyser and all the other methods that are used to ascertain the presence of gunpowder particles? Do you know why this wasn't done? It could perhaps be conducted today, in view of the fact that the clothing still exists, or would you say that it was impossible to conduct such an examination at this point in time?
A. I can answer only that it is important in order to keep for this examination the scientific value. The fact that the clothing must be taken as soon as one arrives on the crime scene and that afterwards these clothes have to be conserved from all kinds of possible contamination and that the chain of proof be maintained. And I cannot answer about anything that was done or not done by the Finnish team. I don't have the results in terms of any possible powder discharge. That does not appear in any of the reports that I was asked to check in order to verify the thesis presented.
Q. Mr. Baccard, were there any scientific reasons -- are scientific reasons more important than the truth that we are here to ascertain in respect of this problem?
JUDGE MAY: I don't understand the question. It doesn't sound as though it's a matter for the witness.
MR. TAPUSKOVIC: [Interpretation] I don't insist on that. 5352 Mr. Baccard said that it was for scientific reasons that this was not undertaken by taking this paraffin glove and so on. But I won't persist.
JUDGE MAY: The witness cannot say why the tests were not undertaken. His evidence is about the unsatisfactory nature of the paraffin tests, which he says is no longer acceptable amongst scientists. That's all he said.
MR. TAPUSKOVIC: [Interpretation] Yes. I understand the point, Your Honour, and I won't insist further.
Q. Now, I have some introductory questions to ask before I go on to what I want to say.
You took note in the report of the documents you used to draw up a synthesis of the report and the event in Racak specifically, and you said, or, rather, as can be seen from your report, you didn't use a tape of any kind; no film, no cassette, no footage of any kind. Now, would a film that was filmed on that same day when the bodies were found at that site, would it be useful to you for the purposes of your analysis and to complete your analysis, in fact, to round it off if you have the autopsy and you worked on the basis of a film and stills in certain cases?
A. Everything depends on the type of film.
Q. For the 23 victims or, rather, bodies who were found in the pit in the village of Racak, you did not have any documents as to the on-site investigation that was conducted; is that right?
A. The list of documents that I used is limited, is given in a restricted manner. 5353
Q. The analysis of the events for what was found in the pit and ditch you'd seen in November and March on the spot; is that right?
A. You're alluding to Racak?
Q. Just Racak.
A. The list of documents is comprised of six documents which you mentioned and nothing else.
Q. According to the description, a number of wounds that these people in the ditch received and the cause of death, such as bleeding or damage of vital blood vessels and so on, one would have expected to find a lot of blood, traces of blood round the bodies; is that correct? Around the bodies, on their clothing, of course. That is -- that goes without saying. But isn't it logical to suppose that there could be a lot of blood to be found around the bodies themselves, traces of blood?
A. That depend on the wounds. Some wounds bleed a lot and others cause internal bleeding and are not seen -- are not seen on the outside. It depends on the layer of clothing and on the type of ground, and it also depends on whether or not there is rain afterwards.
Q. So you don't know why, as soon as the bodies were removed from the pit, that the soil -- a picture of the soil wasn't taken? And do you know how all this was organised, the transportation of the bodies and how they were transported from the ditch to the mosque? Do you know about that?
A. No. I have only the information that appears in the documents that were given to me.
Q. In paragraph 1.2, you note that you used reports from the on-site investigations, the crime scene examination reports. Now, did you ever 5354 learn where the other five bodies were that were found, and do you know that on that particular day from Racak, as it says in the Prosecution documents that have been disclosed, that there were nine bodies of people belonging to the KLA? Do you know about that?
A. I did not know that.
Q. Thank you. Can you tell me this: When does primary rigor mortis set in? Does it set in at the moment of death itself?
A. No. It goes over a certain amount of time. It depends on the individual himself, and it begins -- it goes in a decreasing pace. It begins slowly and then it moves to completion.
Q. And that is to say when does the flabbiness set in and then rigor mortis? The first question referred to flabbiness of the body.
A. Depends on how one is going to look at things. It's not an overall thing. One joint begins to become rigid and then others. It's something which is gradual.
Q. Mr. Baccard, I know full well, and I don't want to enter into discussion as to what cataleptic rigidity means, but I'm interested in the majority of cases. Does the body begin to become stiff in the position it was found in after the flabbiness of the body set in?
A. I don't think I really understand that question. There may have been an interpretation problem regarding that question.
THE INTERPRETER: Limpness of body, the interpreter's note.
A. I understand the general nature of this question. There is a period after death, a period of several hours where the body can be moved before that rigidity sets in. That rigidity then starts incompletely, 5355 then more completely. From the point that that rigidity has set in, any moving of the body is going to break something. If you try to dress or to undress a body, you can break that rigidity at the level of a joint and it will not reappear. I don't know if that was the thrust of your question.
MR. TAPUSKOVIC: [Interpretation]
Q. But when death occurs and the first stage sets in, the limpness of the body, then the body cannot move at all if it is limp or flabby.
A. I think there is an interpretation problem of your question. I don't know whether the interpreter understands your question fully, because after death, there is no movement.
MR. TAPUSKOVIC: [Interpretation] Your Honours, I would like most if it were possible for Mr. Baccard to take a look at the film and then I could ask him about that afterwards.
JUDGE MAY: Yes. Let him see the film. Yes.
MR. TAPUSKOVIC: [Interpretation] We have two minutes of it, a two-minute extract. It is Exhibit 95, this extract. It was used with Witness Drewienkiewicz, but we've already prepared it and given it to the technical booth.
[Videotape played]
MR. TAPUSKOVIC: [Interpretation] That's all. I will now, of course, go from one photograph to the next.
Q. But as at the end we've seen this exhibit, and as you are also a ballistics expert, this was found on the spot, this film, or this object was found there. Could you tell us what it is? Is it a bullet, a casing? This film has already been seen in this courtroom, and it is the only 5356 object found on the spot. Could you tell us what it is, what you just saw at the end of the film?
A. I want to correct something. I'm not a ballistics expert nor an expert in munitions. I am an expert in lesional ballistics and I'll explain what that is, but that does not authorise me to give an opinion on projectiles or weapons which are part of another speciality which is not mine. Lesional ballistics is the science and the study of the movement of projectiles --
JUDGE MAY: I think we have the point, yes.
MR. TAPUSKOVIC: [Interpretation] I would now like to ask for this photograph to be shown to the witness, Dr. Baccard. Could it be placed on the ELMO, please.
JUDGE MAY: Yes.
MR. TAPUSKOVIC: [Interpretation]
Q. If this man was killed on this spot, this hand, after deathly limpness, could be raised in this way or not? And he had three wounds and also his brain was injured in this particular case. That is true.
A. I didn't get an interpretation of that.
JUDGE MAY: Could you quickly, Mr. Tapuskovic, say it again and we'll get an interpretation. It's to do with the hand. That's the point you want to make.
MR. TAPUSKOVIC: [Interpretation]
Q. After this deathly limpness which necessarily sets in, is it possible for a hand to be raised in this way if this man had been killed here rather than being brought there from some other place? 5357
A. In order to answer the question -- I can't answer that. Examination of rigidity is done on a case-by-case basis. In the analysis of this photograph, one cannot know whether there is an obstacle or some other kind of support on which the hand is resting, or whether this forearm was not wounded, or it might be fractured. So it is very difficult to interpret the rigidity on a photograph. One can interpret a wound or analyse a colour or form which really is part of visual diagnosis, but rigidity requires movement of the body, manipulation of the body, so one cannot answer that question.
Q. Dr. Baccard, I am a layman, but believe me, I have been doing this for many years. So if it is inevitable after death for the body to go limp, then the hand simply dropped by the body and they can no longer be raised after rigidity except in the case of very serious brain injuries. The hand goes rigid in the position that it was in the moment limpness sets in, or death. So you are denying that. It is possible, you're saying, that he died on that spot and that his hand could be raised in the way we see it on this photograph?
A. I am not denying anything, I'm not affirming anything, I'm simply saying that one cannot interpret the rigidity in a photograph.
Q. You saw the film, and on the film too, the situation is identical.
A. I saw the film, yes.
Q. It is a film made the day when the bodies were discovered on that spot, and you're claiming that it is possible, at the moment of death, when limpness sets in, for somebody to be in this condition and to go rigid and to remain like that, together with seven other bodies who were 5358 found further up in that trench?
A. I'm not asserting that. I'm simply stating that the study of rigidity cannot be made from a photograph.
Q. Would you please look at this photograph too. Could it be shown to Mr. Baccard. It was a drastic head injury, and below the head, on the ground, there is no trace of blood.
A. I don't know whether or not there are blood traces. The photograph does not make it possible to state that.
Q. Could Mr. Baccard please look at this photograph as well.
JUDGE MAY: Yes, see the next photograph, yes.
MR. TAPUSKOVIC: [Interpretation]
Q. I have the same question for the next five cases. Is it possible for bodies, after limpness, to go rigid in this position if they were killed on this spot?
JUDGE MAY: The witness has answered that. He has said it's not possible to say.
Dr. Baccard, is there anything you want to add to your answer in light of the photographs you've been shown?
THE WITNESS: [Interpretation] No, Your Honour. Looking at the photograph, I'm wondering whether one could see -- I'm asked a question as to whether or not there was blood. But in the lower right corner of the photograph, really, I can't think that one can just analyse a photograph very, very quickly, just like that.
As regards the position of this person, the only thing that one can assert is that, once again, it is impossible, scientifically, to state 5359 whether we are dealing here with rigidity, because this is diagnosis which is something that is done through touch. We can merely say that this person has the forearm -- the forearm is across the thorax, and this could be for reasons -- this can be explained by several reasons. But one cannot simply assert that that person is showing cadaverous rigidity on the upper part of his arm.
MR. TAPUSKOVIC: [Interpretation] Your Honours, I am insisting on one single problem. I will not insist any further, but I would like Mr. Baccard to look at this very carefully. I have only one more photograph to show Dr. Baccard.
JUDGE MAY: Show him it.
MR. TAPUSKOVIC: [Interpretation] It is this photograph.
Q. Is it possible, after limpness, for the body to be in this position? After first going limp, to be found in this position?
A. It's only when one looks at the outside appearance of that body that we can come to that conclusion. Looking at a photograph, this is too fragmentary, too partial for one to be able to say whether that person was lying on the side and whether for the examination it was turned over on its back. We do not know in what position it was. It seems here that there is a blood trace around the head, subject to any reservations that may be made, so one could think that that person might have been on his side. But these are really questions which I can deal with but for which I cannot answer on the basis of -- on criteria which deal with rigidity. That's not something that one can state on the basis of photographs.
Q. When life ceases and deathly limpness sets in, how can a body be 5360 turned? How can the body turn around? Isn't this a sign that the body or, rather, the person was killed somewhere else and then brought there to that spot?
A. Not necessarily. There might have been movements in the death throes. We do not know whether the body fell in a position in which it was in not balance and that, over time, or as the person was dying it might have shifted. We don't know whether animals came by the body. I don't know. We can make observations on the crime scene because then we could check the various things around the body but when looking at the photographs, we're not going to answer those questions.
Q. But here there are no traces of any animals having contact with these bodies --
JUDGE MAY: The witness --
MR. TAPUSKOVIC: [Interpretation]
Q. -- in the cases of all these bodies with the hands raised.
JUDGE MAY: The witness has said he cannot assist further. He's assisted as far as he can. The time now is quarter to. Mr. Ryneveld, do you want this witness to come back tomorrow for re-examination?
MR. RYNEVELD: I had just two very brief one-word questions, but I can --
JUDGE MAY: Yes. Mr. Tapuskovic, you've had the time which has been allowed. You've made your points, and the witness has answered them as best he can.
Yes, Mr. Ryneveld. Two very quick questions. 5361
MR. TAPUSKOVIC: [Interpretation] I haven't had a chance to put the most important thing to the witness.
JUDGE MAY: No, I'm sorry. You've had your time. You've had three-quarters of an hour. You knew your time was limited. What is the final question you want to put?
MR. TAPUSKOVIC: [Interpretation] The question is linked to a photograph on which it can be seen that three bodies were first separated and then suddenly placed together.
JUDGE MAY: Yes. Put it to the witness. If he's got a different answer, it will be a change.
MR. TAPUSKOVIC: [Interpretation] This is the first photograph.
JUDGE MAY: Yes. Let's have the second one.
MR. TAPUSKOVIC: [Interpretation] And then another photograph where we see the bodies together.
Q. Can this happen? Can something like this happen, for bodies to move unless somebody moved them? Were those bodies moved after this first photograph was taken? Because the difference is obvious.
A. I don't know. I cannot answer in respect of photographs. The only thing I can say is that it does seem that for the first two people these are the same people and the respective positions of the bodies is different in both photographs. Having said this, I cannot assert whether or not the bodies were moved after death.
Q. Isn't this evidence that somebody interfered with these bodies?
A. I -- it's not for me to answer that question. I can only give opinions as to the photographs, and I have a very limited opinion in 5362 BLANK PAGE 5363 respect of these photographs which have been submitted.
JUDGE MAY: No. The witness has given his opinion.
MR. TAPUSKOVIC: [Interpretation] Thank you. I just wish to thank you. But this is such a serious and complex problem. There are many more photographs like this that, for a case like this, we amici should be allowed the opportunity to draw attention to some other such factors.
JUDGE MAY: You've had every opportunity, and time, as you know, is limited.
Yes, Mr. Ryneveld. Two questions, please.
MR. RYNEVELD: I will take one. Re-examined by Mr. Ryneveld:
Q. Sir, with respect to Dubrava, you were asked by Mr. Tapuskovic concerning what you described as blast injuries, whether or not those injuries could have been caused by something like a bomb. I believe you answered that it could. My question to you is this: Would the injuries, the blast injuries, also have been consistent with, for example, a grenade being thrown in a small room?
A. Yes. This type of wound is compatible with any type of explosion which would create pressure in the immediate environment. And if the victim were in that immediate environment, there would be that kind of lesion. The example would be a bottle of gas which explodes or an automobile explosion or an explosion in a kitchen with a gas stove, one can find that kind of lesion. Even with aerosol cans. In very, very close areas, there can be that kind of effect of the explosion.
Q. So I understand the answer is it could be a bomb but it could also 5364 be any one of a number of these other things that you've mentioned including, say, a grenade?
A. Absolutely. With any type of thing that could explode.
MR. RYNEVELD: Those are all the questions I ask. I only ask one further thing, Your Honour; that if Your Honour is dismissing this witness, we would simply indicate that provisionally we may -- after I speak to Dr. Baccard, once he's dismissed now, provisionally we may ask him to be recalled on the Cirez binder after I'd had an opportunity to discuss it with him.
JUDGE MAY: Yes. Well, we're not dismissing the witness. We're thanking him for attending and we're telling him he's free to leave, which he is.
Dr. Baccard, thank you for your attendance. You are free to go. If the Prosecution ask for you to come back, of course we'll consider it. But, Mr. Ryneveld, I must say we don't encourage you. If you can deal with the matter in some other way rather than having the witness come back, then it should be done.
MR. RYNEVELD: Yes, Your Honour.
[The witness withdrew]
MR. NICE: Tomorrow's witnesses, problems with dealing with witnesses many of whom have already given a lot of their time and are on limited availability. Of the three witnesses remaining to be heard this week it was hoped, it's clear that I'm only going to be able to get through two, if those two, it will be Baton Haxhiu tomorrow. He's a bis'd witness, as it were. There's a small additional bis'd statement coming, 5365 one paragraph of which directly deals with the accused.
JUDGE MAY: He's the journalist.
MR. NICE: He is indeed, yes.
JUDGE MAY: We will admit him under 92.
MR. NICE: It may be that one paragraph of the additional would have to be dealt with, but you'll see it when it comes through this afternoon. Then after that, I'll take Mr. Merovci and I'll deal with him as swiftly as I possibly can, given to the degree to which there is overlap.
JUDGE MAY: So no K5.
MR. NICE: Almost certainly not. It's quite easy for him to be brought back here. He's very cooperative and the logistics are easier for him than for some.
JUDGE MAY: Very well, we will adjourn now. Apologies to Trial Chamber I for late finishing.
--- Whereupon the hearing adjourned at 1.52 p.m., to be reconvened on Thursday, the 23rd day of May, 2002, at 9.00 a.m.