9099 Le lundi 31 janvier 2011
[Audience publique]
(EDITOR'S NOTE: PAGES UP TO THIS POINT ARE NOT AVAILABLE IN ENGLISH FOR THIS DAY)
are the Judge, and I won't say anything further. Thank you.
JUDGE FLUEGGE: Mr. McCloskey, your principal observation is absolutely fine. Everybody would agree to that, but it is the wrong example you picked up. Therefore, to shorten this discussion, I would like to ask the witness: Was this oversight committee in the position to determine or to change the opinion on cause and manner of death? That was the first question. Please provide us with an answer.
THE WITNESS: No.
JUDGE FLUEGGE: Now, the next question: Was anybody able to change that text that was written and determined by the pathologists and 9160 the anthropologists?
THE WITNESS: No, not without their permission.
JUDGE FLUEGGE: Thank you. Mr. Tolimir, please carry on. Judge Nyambe has a question.
JUDGE NYAMBE: Following up on your last answer to Judge Fluegge's question which was, "No, not without their permission," was anybody able to change the text that was written and the determination by the pathologists and anthropologists with or without their permission?
THE WITNESS: They would have to have the permission of the individual that did the work, not that they were the only ones, pathologists would be the ones to change things and without getting the -- their permission, those things should not be changed. They did the autopsy. Other people didn't.
JUDGE NYAMBE: I think I have to just ask you again: Was any pathologist or anthropologist asked and gave permission to change the report?
THE WITNESS: The issue is a pathologist's reports. I wouldn't be surprised if Dr. Kirschner talked to some of the pathologists and seeing if they would permit the change. He probably explained why and they probably did, but we had 33 different pathologists that summer, and some had come for -- these are doctors that had very busy -- we picked out the best pathologists we could find, and these people are very busy. If they can get away for two weeks from their regular work, that's hard. Some people could get in longer, but -- and they were only there for a certain time, so all those people weren't available at the time 9161 Dr. Kirschner was putting together this report. So he may have slipped his memory or he just didn't ask them, but if they were there he would have probably discussed it with, I would think, but that I do not know. I was not in that part and I wasn't involved with the signing of the certificates, but the people would have -- the bottom line is people would -- anybody else besides the pathologists that wrote that report, they would have to have the permission of the doctor that did it. Did that [Realtime transcript read in error "happen"] help?
JUDGE NYAMBE: Thank you for your answer.
THE WITNESS: Okay.
JUDGE FLUEGGE: I think the last question of the witness was not "did that happen" but "did that help"?
THE ACCUSED: [Interpretation] Thank you, Your Honour.
MR. TOLIMIR: [Interpretation]
Q. Mr. Haglund, it is not my intention to comment the work of one or the other side of the pathologists or anthropologists or others. I'm only interested in one thing. Is the opinion on the cause and manner of death a legal opinion or an opinion of the medical profession? That is the only thing that I'm interested in. Thank you.
A. I don't know if I can answer that question, but I know in the United States that the autopsy report is entered as a -- as evidence based on what they say. The certificates that a doctor signs in the United States are legal documents, the cause of death, and that is put on the death certificate - I know many countries don't have those - but in that sense, it's, I think, a legal -- I believe it's a legal document. 9162 So the final resolution of the report, on the cause and manner of death is put on actually a death certificate. That's -- that happens in the United States. So I don't know what it is -- I don't know what these documents are legal or illegal or -- they are not illegal but if they are legal or not, I don't know, in many other countries. And we had people from all over the world.
JUDGE FLUEGGE: May I assist again? I think there was a misunderstanding. Mr. Tolimir were asking you, is the opinion on the cause and manner of death a legal opinion or an opinion of the medical profession. He was not talking about documents but the opinion.
THE WITNESS: Okay. I don't know if -- I don't know if it's classified as a legal opinion or not. I really don't know. It's a medical opinion based on facts that they see in the autopsy. It's probably not in that sense a legal document, although it's used in the legal system to determine trials and outcomes of trials, et cetera, but that I really don't know the answer to.
JUDGE FLUEGGE: Mr. Tolimir?
MR. TOLIMIR: [Interpretation]
Q. Thank you, Mr. Haglund, that's exactly what I wanted to hear from you, whether this has a legal import, that's one thing, and the other thing is whether it also has some legal consequences. So thank you for your explanation. Maybe you could add whether this opinion has some legal consequences in relation to your activities.
A. Yes. It has consequences. That's why we are here in court.
Q. Thank you. Can we now have page 6? Under "responses" we can 9163 find the following and I quote:
"There was no clear agreement as to who was responsible for what. We felt that in large part that was due to the fiscal and administrative dichotomy between the UN Tribunal and Physicians for Human Rights, which apparently had never been explained to the working scientists in the field or the morgue."
And then it goes further on, saying that there was no clear agreement among you, Dr. Haglund, and Dr. Kirschner. My question is as follows: Since they mention fiscal and administrative problems, can you explain to me and to the Trial Chamber in rather concrete terms, what were those administrative and fiscal problems that influenced your work in the field? Thank you.
A. I think we've already talked about the fiscal -- if you're talking about financials -- finances, et cetera. The administrative dichotomy, I'm not really sure what they were -- I could only make guesses of what they were. I think you would have to ask these people what they were saying. I can read it just like yourself and I have questions on this document, I don't agree with everything in it, but I did not write it and I do not know the thoughts behind it -- all of them, anyway.
Q. Thank you for your explanation. So can I take your answer to mean -- can the Trial Chamber take your answer to mean that in your opinion the main problems were of the administrative and fiscal nature, or the main problems were the problems of the level of expertise of the persons involved in the work at the 9164 locality? Thank you.
A. In looking at this, I'd like to readdress the former question if I can a little bit.
Q. Thank you. Go on.
A. The relationship between myself and Dr. Kirschner was relatively, I think, known. In the autopsy area, the pathologists were in charge of the pathologists and the other workers that worked for them, be they anthropologists or autopsy technicians or whatever. So in the lab they did know that the pathologists were in charge. However, Dr. Kirschner was absent a great deal of the time, as you see this, and so that would -- may be confusing to people who was their boss at that time. And that was part of the pathology things. So this confusing because often times you were -- when one person left, when Kirschner would leave then he might leave somebody else in charge, but then that person would leave and leave somebody else in charge so that continuance of -- may not have always been obvious to people who came in new and then didn't understand. So -- between myself and Dr. Kirschner, I just looked at him as a pathologist of -- and I knew that that was his area of expertise, and that the individual pathologists, that that was their area of expertise. That was not mine, and so ... does that help? Or does that answer your question?
JUDGE FLUEGGE: We will see if that helped. We have to continue after the second break. We adjourn now and will resume quarter past 6.00.
--- Recess taken at 5.47 p.m. 9165
--- On resuming at 6.18 p.m.
JUDGE FLUEGGE: Yes, Mr. Tolimir. Please go ahead.
THE ACCUSED: [Interpretation] Thank you.
MR. TOLIMIR: [Interpretation]
Q. For witness's travelling purposes we were asked to state if we are going to finish cross-examination today. I believe that we will, in order to accommodate these requirements, we will withdraw some of the planned questions.
That's the position of the Defence. Can we have P1307, page --
THE INTERPRETER: The interpreter didn't catch the number of the page.
MR. TOLIMIR: [Interpretation]
Q. Again, we are discussing the report made in San Antonio --
JUDGE FLUEGGE: Mr. Tolimir could you please repeat the number of the page. The interpreters didn't catch the number.
THE ACCUSED: [Interpretation] Thank you. I wanted to have page 9 of P1307, which is the San Antonio report and we have it on our screens now, thank you.
MR. TOLIMIR: [Interpretation]
Q. We have the questions listed here that were put to all the participants in this meeting of the oversight body. And I'm interested in the questions under 9 and 10. I'm quoting:
"To whom was authority delegated in the absence of Dr. Haglund?" And 10: 9166 "To whom was authority delegated in the absence of
Dr. Kirschner?" Can you please answer these questions for us? Thank you.
A. In my absence from an exhumation Jose Pablo would be the person taking my place.
JUDGE FLUEGGE: That is referring to Mr. Baraybar; is that correct?
THE WITNESS: That's correct, that's correct.
JUDGE FLUEGGE: Thank you.
THE WITNESS: And as to Dr. Kirschner, he was supposed to assign someone when he left to take over his place.
MR. TOLIMIR: [Interpretation]
Q. Thank you. Do you know who it was supposed to be? If not, thank you anyhow.
A. There were various people, depending upon who was there.
Q. Thank you. Dr. Gallagher also participated in the work of this committee. Do you know her?
A. She is not a doctor. I think she has a master's.
Q. Thank you.
THE ACCUSED: [Interpretation] Can we have page 5 shown in e-court?
MR. TOLIMIR: [Interpretation]
Q. I'm sorry for misquoting her title. But you do know the person, that's the only thing I --
JUDGE FLUEGGE: Mr. Tolimir, yes, that was the problem. The 9167 witness wanted to answer your question but you were in discussions with your legal adviser, so we should give the floor to the witness so he can answer the question if Ms. Gallagher also participated in the work of this committee. Do you know that?
THE WITNESS: Yes. Yes, she was one of the persons interviewed, yes.
JUDGE FLUEGGE: Mr. Tolimir.
THE ACCUSED: [Interpretation] Thank you.
MR. TOLIMIR: [Interpretation]
Q. Let me quote some of her words. Dorothy Gallagher saw problems in the field and in the lab. She stated that Dr. Kirschner changed autopsy reports and instructed her to do so while processing the reports. In the field, Dr. Haglund dictated too much speed in exhumation. The result was commingling and failure to associate body parts. Are you familiar with this statement of hers?
A. I see it, yes. I'm familiar with the statement, yes.
Q. Thank you. Did you try at a later stage in the morgue to associate various body parts in order to remedy the problem referred to herein by Dr. Gallagher? Thank you.
A. That was her perception of a problem, so yes, we would always try to -- to incorporate partial parts of bodies and skeletons and broken bones as much as we could. I don't agree with her statement, and neither did the majority of the rest of the crew, but there were about four, I think, comments that were questioning me, and this is one of them. I don't agree with it. 9168
Q. Thank you. Did the oversight committee establish that Dr. Kirschner modified autopsy reports and advised Dr. Gallagher to do the same? Thank you.
A. I was not aware of him advising Dr. Gallagher to -- not -- Dorothy, Ms. Gallagher, thank you so much, to change things. I wasn't aware of that.
Q. Thank you. But did she make the statement as I've read it in item 13?
A. I see the same statement you do. It's attributed to her. I ...
Q. Thank you. Please look at item 14. Can we have your comments on what the Chilean anthropologist, David Del Pino said, and I'm quoting: "Operations were halted when Dr. Haglund was away. Clothing was discarded at Haglund's command, even though some contained identification."
A. We have it -- okay. Have two separate questions. Well, things certainly didn't halt if I left Jose Pablo Baraybar in charge when I was gone. And so that's -- that's his perception. He was a very slow, meticulous worker used to doing archaeology work and it didn't sometimes work out with what we were doing, I think, that was his opinion. And as far as the clothing, you'll see in my report that this is in Pilica, and by that time I realised a return of clothing by the Bosnians, they would accept clothing when we returned the remains to them, but they didn't want clothing that wasn't associated with the body. And I think this had to do with just a couple trousers and a pair of pants that were separate away from the remains in the grave. And as you 9169 can see from my report, that I did -- we did search those for any identification documents, any sort of artifacts, anything that would be in them, all of the pockets were empty, there was nothing there. So I left them in the grave knowing that nothing could be done with them anyway.
Q. Thank you.
THE ACCUSED: [Interpretation] Can we now have page 5 -- or rather, I'm sorry, paragraph 5 of the San Antonio report in order for us to see what Dr. Clyde Snow [phoen] stated? Thank you.
MR. TOLIMIR: [Interpretation]
Q. We can see paragraph 5 now, and I'm quoting: "He states that sloppy science was done. He felt at times it was Dr. Haglund versus the UNTAES, U-N-T-A-E-S, and mentioned the many bodies removed in one day. Dr. Snow stated that, in his opinion no more than 20 bodies should have been exhumed in a single day. He felt Dr. Haglund showed very poor judgement and that it was lucky nothing had blown up as a result of the procedures used."
Can we have your comments, please? Thank you.
A. Well, he's a very esteemed forensic anthropologist and at one time was a very good friend of mine, and Dr. Snow is of really -- I don't know if he had any experience with graves with partially decomposed remains and saponified remains where you had complete bodies, but I know he was very good at dealing with skeletal remains and he'd -- working with the Argentinians and South Americans for a long time. I'd like to explain what moves -- when you can remove a body and what sometimes 9170 it's -- you have to take -- if you have a skeleton and it's separate bones, you have to clean off every bone, find them, you know, over 25 in each hands, same way with the feet, you got 100 little pieces of bone, that takes meticulous care and time to do that. This was not the -- it was not the situation in the former Yugoslavia, for the primary graves, okay? And that means, once you've cleaned off the surface where bodies are lying, once you've mapped them, which we did with electronic device called a Total Station where an individual could stand with an electronic device and somebody would hold up a staff with the markers on it of how deep it was, they could click off the positions of the bodies - the positions of the bodies we do with the head, the shoulders, where the elbows are, where the hands are, where the hips are, where the knees are, where the end of the feet are -- you could probably do that in two to five minutes, period. But when they were doing the original work in Argentina and Latin America, they didn't have those transits, they didn't have those that -- and they had to measure everything. It would take a very long time to do that so that further slowed down the process for them. It made our process very fast. And the -- we were able to document, take out a complete individual's remains relatively quick. Now, it makes a difference whether it's a pile or they are spread out and when, for instance, when if you're working in a latrine, there is only one anthropologist that probably can get in it or in a well because they are a very small place. If you're working in a place like the Cerska grave where you have the remains spread over a large area you can deploy teams of two anthropologists/archeologists and you can have ten 9171 teams in there working at the same time so that makes a difference. So there is a lot of difference in the speed and -- it's not what I want to call it speed, but the efficiency of being able to take out remains dependent upon their condition of the amount of decomposition, of how they were arrayed in the grave, et cetera, so I don't agree with that, but people are entitled to their opinion.
Q. Thank you. Can you tell us briefly how many bodies were exhumed from the graves you worked on daily?
A. How many bodies were removed? Well, on the first day we would come, none would be removed; on the second day come, none would be removed; on the third day come, we probably maybe have some of -- it got down to the remains or found where some of those are. You have to clean out a big enough area so that you really know who is under what other person, who is on the top of them, who is intermingled with them, if you have partial remains and that, so that's a question you can't answer it, as the -- as the exhumations continue then you have varying rates of -- it depends, it just depends upon if a grave is flooded in the morning or if it's not flooded, you have to -- so that's a question I cannot answer. There is no formula to answering that question.
Q. Thank you. Can you tell us if there were separate reports written by anthropologists and pathologists or were they compiled as a single report? Thank you.
A. They were compiled, the -- the reports of the pathologists would reflect the information that the -- they were collecting for the autopsy and that would be reflected in the autopsy report so they did not write 9172 separate reports, and neither did they write separate report -- we would have, let's see, 100 times 450 reports if we did something like that, and that would be a chaotic situation. No, they didn't write separate reports. The pathologists -- the pathologists did but the anthropologists and archeologists did not. They made their notes and that and we put that all in one area if they made notes, but -- which they didn't.
Q. Thank you. Can you tell us who oversaw autopsies as they were being conducted? Thank you.
A. The pathologist doing them.
Q. And who supervised the work being done in the morgue?
A. The pathologists. It should have been Dr. Kirschner all the time but he was gone a lot, so he appointed other people to do that.
Q. Thank you. Can we now call up page 43 in Serbian and 32 in English? And to save time, let me ask you right away. On this page you're referring to -- we are talking about P1072, corpses of vultures, and you said that they could have been the result of those. Thank you. So can you please explain what sort of problems you had to -- on the sites themselves with regard to vultures or animals on the grave site? Thank you.
A. Scavengers is a generic term for animals that would eat or move bones or tissues. There were no vultures involved. On two occasions, probably a neighbourhood dog or possibly some wild canid, it would be a canid with long teeth, moved some bones and -- and that was reconciled the next day and you see that in my report. They didn't remove any bones 9173 from the site, to my knowledge, but they did remove some -- they did move some remains that we'd had -- we had tarps -- tarps over and rocks, got under and pulled on something, so you saw the leg maybe sticking out or something like that. But that was the only disruption we had in terms of scavengers. This happened in the evening when the -- they would -- it was guarded but it's dark, and, you know, you don't have everything lit up.
Q. Thank you. Can we now look at P1071, page 65 in English, and 70 in Serbian. It's a table wherein it is stated that in case Cerska 1801 driver's licence, a map, and military orders were found on the person in the grave site -- on the grave site. Do you know what sort of military orders this involved?
A. No, I do not know, but we had a translator at the autopsy -- in the autopsy area that translated that for us that's what it was. I put it in the report.
Q. Can you tell us if the orders and the documents you found were preserved as part of the general documentation? Thank you.
A. That, I think, probably would have been preserved, I'm not sure. Many of the documents on bodies of the -- the identification documents and that were turned over to the group that was trying to identify these people and trying to match up -- there was another PHR project that started out, a family outreach so they could start making a database with the interviews with the families to see if people had broken arms or broken legs or something at some time and how tall they were and the condition of their teeth was and that, and they took those kinds of 9174 documents, most of the documents were identification documents, and but if it was a document like this, I'm sure the ICTY would have gotten it.
Q. Thank you. The document says that these were military orders. We are very much interested in those because a number of inferences can be made from it. Is there a way of gaining access to these, if you know? Thank you.
A. That would be a question to ask ICTY.
Q. Thank you. It would probably be up to those who are guarding the documents. And can you tell us, please, who are the ones charged with guarding all the artifacts retrieved from the graves? Thank you.
A. In the autopsy building, took one room and had a metal door with big locks attached to it, and then we had particular spaces to put the recovered documents, indication of religion or whatever, and all the things we collect from the body, and they were put in that deposit, and then Mr. Gerns would go through the documents he thought that the Tribunal would use and that would be returned -- that would be taken to the Tribunal, and then the other documents would be released to the families, usually identification documents and letters and pictures of families, et cetera.
Q. Thank you. I'm interested in the maps and military orders. Does it indicate to you, as an expert, that the bodies had not been searched by those who killed them? Had this been the case, the orders and identification papers and the rest would probably have been seized. Is that right? Thank you.
A. I have no information on whether bodies were searched, but you 9175 can see by the report that many people had a lot of documents on them. They had a lot of -- a lot of things in their pockets and letters and things like that. It appears to me that -- I don't know. All I can tell you is what documents we got. I don't know what other people did before we got the bodies. I just -- the bodies are my friend. I don't know anybody else.
Q. Can you now take a look, the third row from the bottom, where it says Osmo Muminovic, and can you now read out what follows after that?
A. "Driver's licence, identification, and car."
THE INTERPRETER: Could the witness please speak into the microphone?
THE WITNESS: Yes, certainly. "Driver's licence, identification card, military orders."
MR. TOLIMIR: [Interpretation]
Q. Thank you. Thank you. I am interested in military orders and documents. As far as the Defence is concerned, the cross-examination is finished, and I want to thank you, Mr. Haglund, for the answers that you gave me. I also asked some questions that I, as a layman, was curious about because there was a number of discrepancies found by different committees and it was my natural curiosity to ask what was then the truth. I think it was a normal thing to do.
I wish you a safe journey home and a joyous stay in Europe. May God bless you. Thank you.
JUDGE FLUEGGE: Thank you very much, Mr. Tolimir. Mr. McCloskey, your re-examination, please? 9176
MR. McCLOSKEY: Yes, Mr. President. I have no questions for Dr. Haglund.
JUDGE FLUEGGE: Thank you very much. Judge Nyambe has an additional question.
Questioned by the Court:
JUDGE NYAMBE: At page 75, you state, lines 9 -- starting with lines 9:
"Many of the documents on bodies investigation documents, and these were basically saying were turned over to the group that was trying to identify these people and trying to match up..."
Do you know which group this was?
THE WITNESS: Yes, it was the representative of the Bosnian government that were taking control of the bodies and have done exhumations in their own country, and these were the people that were actually dealing with identifications, so it was basically over to the Bosnian government.
JUDGE NYAMBE: Thank you very much.
JUDGE FLUEGGE: Dr. Haglund, you will be pleased to hear that this concludes your examination here in this trial. The Chamber would like to thank you for your attendance and the way you were able to provide us with your knowledge and expertise. Thank you very much again, and we wish you a safe travel home and all the best for your health.
THE WITNESS: Thank you for your patience and your good questions and guidance.
JUDGE FLUEGGE: Thank you very much and now you are free to leave 9177 the courtroom and the Tribunal.
[The witness stands down]
JUDGE FLUEGGE: We have ten minutes left but as there is no -- I think we shouldn't start with the next witness because I would like to issue an oral decision of the Chamber and then there are only a few minutes left. If the witness is still waiting, he should be released. On the 25th of January, the Prosecution filed its urgent Prosecution motion to convert witness number 135 from a viva voce witness to a Rule 92 ter witness. In its response filed in English on the 28th of January, both last week, the accused opposes the motion and requests that the Chamber hear the witness viva voce.
As a preliminary matter, the Chamber notes that this witness is scheduled to testify this Wednesday, the 2nd of February, and that means the day after tomorrow, and therefore wonders why the Prosecution has waited so long to make this request. The late timing of which has no doubt led to its urgent status.
Turning to the merits, the Chamber notes that the Prosecution's motion, in effect, asks the Chamber to reconsider its 92 bis decision of 7th of July 2010 in which the Chamber denied the Prosecution's motion for the witness's evidence to be admitted pursuant to Rule 92 bis. The Chamber considers that the Prosecution's current motion contains no new arguments in support of admitting this witness's testimony pursuant to Rule 92 ter, except that admission would be in accordance with the Chamber's guidance to the parties on the 29th of November, in which the Chamber reminded each party of the importance of 9178 presenting their case as expeditiously as possible.
The Chamber considers that its reasons for preferring to receive Witness 135's evidence viva voce are clearly presented in paragraph 118 of its 92 bis decision of the 7th of July and it will not, therefore, repeat those reasons here.
In sum, the Chamber has found that the inconsistencies contained in the proposed evidence constitute an overriding interest in the witness's testimony being heard viva voce. The Chamber, having found that there are no circumstances which would justify reconsideration of its 92 bis decision, therefore, denies the Prosecution's motion. This concludes the Chamber's ruling.
And this concludes the hearing of today. We adjourn and resume tomorrow morning at 9.00 in this courtroom.
--- Whereupon the hearing adjourned at 6.53 p.m., to be reconvened on Tuesday, the 1st day of
February 2011, at 9.00 a.m.