[It is time for some serious attention to the important but largely neglected issue of DNA analysis. After 15 years and much digging it has proved impossible to meet the 8,000 “men and boys” quota (even by splitting up human remains and treating a few bones as a “case”, and thus implicitly as the equivalent of a body). As a result, traditional forensics went out of fashion at the Hague to be replaced by the supposedly cutting-edge science of DNA analysis. In the great rush to meet the number game quota it was not noticed that traditional autopsy reports, even if they failed to generate the required number of bodies, were nevertheless forensically relevant in ways that are critical in a criminal investigation such as Srebrenica. They can give us key information about the time and manner of death which DNA cannot and was not designed to do. But DNA’s deficiencies are supposed to be compensated by the allure of advanced science. In fact, however, even advanced science cannot make up for certain immutable realities. One of them is that DNA results coming out of the ICMP laboratory in Tuzla are intrinsically unreliable because since they are not independently verifiable they are entirely faith-based. Requests to ICMP to provide samples that independent laboratories could test are met with refusals and evasions. So when it comes to the practical application of this “cutting edge technology,” on the level of verification we are in the same position that we would have been in the Middle Ages: we are being asked to believe that what we are told is true without the possibility of obtaining proof. But there is another significant fact which has a huge bearing on the credibility of the DNA evidence that is being offered. An Israeli biological research firm, Nucleix, has demonstrated that DNA samples can be falsified with great ease, a fact which makes ICMP evasions additionally suspect and rigorous application of proper verification criteria even more urgent. The complete dishonesty with which the DNA issue has been presented illustrates the corrupt nature of the official version of Srebrenica and explains its partisans’ vigorous resistance to free inquiry and criticism of their conclusions. We are afraid, however, that DNA manipulation will not help them bridge the enormous gap between the verifiable number of Srebrenica bodies and the numbers they need to approach the assigned “genocidal” levels. If the task of DNA procedure was to do that, it too will fail under the relentless battering of critical scrutiny. The analysis that follows was written in relation to procedures used in the Prosecutor v. Pelemis and Peric case tried before the State Court of Bosnia and Herzegovina in Sarajevo. We leave it up to our readers to assess the DNA controversy and its background.]
DNA did not appear as a significant evidentiary feature in Srebrenica cases until the Popović et al. trial. [1] The imminence of its use to bolster the rather disappointing results of standard forensic procedures was being announced with considerable pomp going back some time. It should be noted that this aspect of official Srebrenica research is being conducted under the patronage of an organization called the “International Commission on Missing Persons” (ICMP). The Podrinje Identification Project, or PIP, works closely with ICMP and depends on ICMP laboratories for logistical support in its work. Officially, ICMP’s mission, according to the public statement which is posted on its web page, is: “[T]o ensure the cooperation of governments in locating and identifying those who have disappeared during armed conflict or as a result of human rights violations”. [2] ICMP is making great efforts to nurture the official profile of an independent and non-political organization devoted to the noble purpose of assisting surviving relatives to find out what happened to their loved ones, to enable them to find some solace through the identification of the mortal remains of the missing, and finally to make a decent funeral possible.
However, ICMP’s autonomy is quite questionable. The organization itself was set up in 1996 at the G-7 summit in Lyon, France, on the initiative of the American president Clinton. The list of its chairmen reads like an excerpt from the Who is who of the American establishment. The first chairman was former secretary of state Cyrus Vance from 1996 to 1997. Between 1997 and 2001 the position was occupied by Senator Bob Dole. The next chairman, James V. Kinsey, reputed to be a generous philanthropist, was previously a director of America Online. The current chairman is Thomas J. Miller, another establishment insider and former U.S. ambassador to Bosnia and Herzegovina.
Is the carefully cultivated impression about the independence of ICMP a reality, or is it an illusion? The likelihood of the latter might reasonably be deduced from a US State Department press release of 11 May, 2001, which suggests that the chairperson of ICMP is appointed by none other than the US secretary of state:
“Secretary Powell has appointed James Kimsey as the new U.S. chairperson of the International Commission for Missing Persons (ICMP), the leading organization involved in the identification of remains of people killed in recent conflicts in the Balkans. Mr. Kimsey is the Founding CEO and Chairman Emeritus of America Online, Inc.” [3]
Although ICMP’s publicly posted materials on the internet promote the image of a classic NGO with purely humanitarian objectives, and while the available information does not suggests anything overtly sinister, what is known nevertheless might raise the possibility of a serious conflict of interest. Not only that, but it also appears that ICMP does not render an account to any scientific or judicial body which might in any way be related to its official mission. Many of their reports and statements are very ambiguously worded [4] so that even if someone would attempt to verify their announcements, their opaqueness would greatly hamper that task.
It is not known that any of the key ICMP conclusions, such as DNA matching data for instance, has ever been reviewed or confirmed by any independent professional agency or laboratory.
For that reason at least it would seem appropriate to express some reserve in relation to DNA evidence that emanates from ICMP, which consists essentially of unverifiable assertions which must be taken on faith. These observations are absolutely relevant to the purported DNA results offered to the chamber in the instant case [Prosecutor v. Pelemis and Peric, x-KR-08/602] through the evidence of the prosecution forensic expert, Mr. Rifat Kesetovic. Mr. Kesetovic stated on p. 2 of in his Report that the organization that he is employed by is the Podrinje Identification Project [PIP] which in 1999 was founded by ICMP with the “sole task of identifying exhumed mortal remains of victims linked” to Srebrenica [p. 2]. It is further stated in the prosecution expert’s Report that DNA analyses are performed in cooperation with ICMP and in accordance with its protocols [pages 2 and 3]. In the annex to Mr. Kesetovic’s report there are a number of death certificates where the deceased are identified on the basis of “DNA matches”. That raises the obvious issue of where these DNA matches were performed, at the ICMP laboratory or elsewhere? In either case, concerns about the procedures used and whether and how the results could be independently verified are entirely appropriate.
The background of the organization under whose auspices the DNA analysis of the mortal remains of Srebrenica victims, including those who are the subject matter of these proceedings, was performed is therefore a legitimate component in a proper assessment of the validity of the results. In view of the acute shortage of bodies which, using the methods of classical forensics, were located and could reasonably be linked to genocide victims, the assertion recently launched by ICMP, that they have managed to identify over 6,000 Srebrenica victims, sounds quite sensational. If that assertion is demonstrably true, it will go a long way to empirically documenting at least the quantitative aspect of the official account of what happened in Srebrenica in July of 1995.
However, ICMP’s data are extremely difficult to rely on. That is so, among other reasons, because they are for the moment completely unverifiable.
In relation to the factual matrix of Srebrenica, DNA evidence has never been the subject of an exhaustive and transparent public analysis before ICTY or in any other forum of comparable authority. DNA evidence was offered to the chamber in Popović et al. in closed session. And even that occurred under very onerous conditions which denied to the defense teams adequate time and resources to subject the tendered DNA material to thorough and exhaustive independent verification. The explanation that was offered for the secretiveness was that exposure of the data to the gaze of the public would constitute a callous act injurious to the dignity of the victims causing, at the same time, immense pain to their surviving relatives. In response to every request by private individuals or interested public entities for insight into ICMP laboratory data for purposes of independent verification, there follows an unfailingly polite but unalterably firm response: that it is not possible without the written consent of the victim’s relatives who donated their blood samples, this again being motivated by the desire of protecting “privacy.”
It may, however, be argued that at ICTY the entirely laudable goal of privacy protection has been taken a bit too far and virtually to the point of absurdity. It does not seem to be confined to the accused and their defense teams but extends also to the Office of the Prosecutor of the Hague Tribunal, the very agency that is tendering that material to the Court in the form of evidence. There are valid reasons to suspect that not even the Prosecution has had an opportunity to review properly the DNA material prepared by ICMP for its use. How else to interpret the statement made by ICTY prosecutor Hildegard Uertz-Retzlaff in response to the demand made by the accused Radovan Karadžić for the right to examine that evidence: “ICMP has not shown the DNA to us either. So that it is not correct that they gave it to us, but not to others”. [5]
But a careful reading of the ruling issued by the Karadžić chamber, which intimated to the defense that it might be allowed to examine a small number of samples (a mere 300 out of over 6,000), something that was praised as an important step forward in relation to the situation as it stood previously, reveals that even that small concession was conditional and that built into it was the possibility that the defense might still receive nothing. [6] For, first of all, in making its ruling the Chamber did not discard in principle the position championed by ICMP that DNA analyses may be shown to others only with the relatives’ written consent. The implicit retention of that position, the potential effect of which is always to deny to the defense the opportunity to independently check one of the most significant elements of proof in the prosecution’s case against the accused, raises serious issues of potential breach of the procedural rights of the accused person. In its ruling the Chamber merely states that “ICMP has agreed to obtain the consent of the approximately 1,200 family members who provided samples relevant to the 300 cases selected by the Accused, so that the Accused’s expert can then conduct the necessary analysis”. [7] It is left unexplained in the Court’s decision what would follow if those 1,200 relatives, or a substantial number of them, simply refused to sign the requested permission. If we take it as a matter of principle that their permission should be required [8] we must then be prepared for the possibility that they might refuse to grant it. The defense would then be back to square one and the alleged “movement” in its favor would be clearly seen for what it really is – an illusion.
The degree of indulgence the Hague Tribunal has shown to ICMP is impressive. In the course of the Popović trial it was disclosed that for years until October of 2007 ICMP was operating without professional certification from the international agency which approves DNA laboratories, Gednap. That fact was freely admitted by ICMP’s director of forensic studies, Thomas Parsons, under cross examination. [9] However, when the chamber published its judgment in the Popović case it turned out that failure to demonstrate compliance with professional standards to which every credible DNA laboratory is held in ICMP’s case was not treated as a disability. The chamber used to the following logic in order to turn an apparent disability to ICMP’s advantage: “…[T]he Trial Chamber is of the opinion that the ICMP’s lack of accreditation prior to October 2007 does not undermine the authenticity of the identifications concluded before this time. While Stojković [defence DNA expert] speculates that the lack of accreditation undermines the work of the ICMP, the Trial Chamber is of the opinion that the accreditation is rather an expression of approval of the ICMP’s work”. [10]
Better late than never seems to be the Chamber’s message. But in a medical malpractice case would the Chamber show similar indulgence to a neurosurgeon who performed operations without proper professional accreditation during several years? Would it find reason to praise him for retroactively demonstrated professionalism because at some later point he did manage to get certified and make his situation regular?
But subsequent inquiries with Gednap led to a shocking discovery which suggests that Mr. Parsons’ sworn testimony, even though taken as far as it goes it does raise some serious issues, is not the entire story. Even now, after finally having obtained certification, it turns out that ICMP’s position remains far from being professionally regular. Its forensic studies director Parsons was in fact less than candid in his sworn testimony before the chamber in the Popović case. ICMP has three locations in Bosnia and Herzegovina, in Sarajevo, Tuzla, and Banja Luka. Sarajevo is the site of its administrative office and in Banja Luka there is only a small specialized laboratory which deals with a handful of difficult cases. Those sites were, indeed, visited by Gednap representatives prior to the issuance of professional certification to which Parsons referred, in 2008. But the important work, the thousands of alleged matches which form the bulk of the DNA evidence which was presented to the Popović and other chambers is being conducted at the Tuzla laboratory. That site, the only operationally significant of the lot, turns out never to have been inspected by Gednap and no explanation has been offered for that awkward exception. So the culture of secrecy still envelops this enigmatic organization, which continues to effectively resist both judicial (ICTY) and professional (Gednap) oversight of even minimally meaningful sort.
The insistence on verification is much more than mere pedantry. It is now known that not just DNA results, but even DNA samples which generate those results, can be plausibly faked. [11] Dr. Dan Frumkin, a founder of Nucleix, a Tel Aviv company which has developed methods to distinguish genuine DNA from the false, has stated that by planting authentic looking counterfeit DNA “you can just engineer a crime scene” and he adds that the task is so uncomplicated that “any biology undergraduate could perform this.” [12]
Dr. Frumkin’s warning in a scientific paper he authored on the subject that “the disturbing possibility that DNA evidence can be faked has been overlooked” [13] is spot on. In view of the complete impenetrability of its operations, it is clearly applicable to the secretive ICMP and to the opaque DNA evidence it has furnished to the Hague Tribunal and to the State War Crimes Court of Bosnia and Herzegovina.
ICMP steadfastly refuses to permit its results to be independently tested and it has operated for years without proper professional credentials. In one of the most bizarre segments of the Popović judgment, ICMP was practically acclaimed for successfully circumventing accountability under applicable professional standards.
On page 3 of the Gednap Manual, “The GEDNAP (German DNA profiling group) blind trial system” [14] it is stated that “the system must comply with the generally acceptable state-of-the-art which means that the system must not only be proven to be reproducible within the developing laboratory but must also be reproducible in other equally qualified laboratories.” So the reproducibility requirement is very important. But if the participating (or developing) laboratory refuses to make its data available, how can the reproducibility requirement ever be met? If it cannot be met, what is the level of credibility that may be attached to the results claimed by such a laboratory?
The practical requirement where DNA matching under the auspices of ICMP is concerned, that the results be accepted on faith, is repugnant to both proper science and to proper legal procedure, if it takes the rights of the accused person duly into account.
Endnotes:
[1] ICTY, Prosecutor v. Popović et al. , par. 638 et passim.
[2] See the ICMP website, http://www.ic-mp.org/about-icmp/
[3] U.S. Department of State, International Information Programs, Press Statement, May 11, 2001.
[4] For a sample of the clarity of ICMP institutional discourse, this is the way its director of forensic science, Thomas Parsons, answered a question that was put to him when he was giving evidence at the Popović trial: “… these assumptions are likely to be nearly true, but ICMP does not represent that they are strictly true, or that the degree of uncertainty can be empirically estimated with accuracy. […] A wide range of variables that are beyond the ICMP’s ability to consider with empirical accuracy could have a minor effect on the estimate either upward or downward, but the overall high matching rate supports an estimate close to 8,100 [missing] individuals”. ICTY, Prosecutor v. Popović et al., Judgment, footnote 2323.
[5] ICTY, Prosecutor v. Karadžić, Status conference, 23 July, 2009, p. 364, lines 21 – 23.
[6] Although the Karadžić chamber is verbally committed to enable the defence to check 300 DNA reports, it continues to hold inviolate ICMP’s principled position that independent sample verification without the written approval of relatives is impermissible: „NOTING that the ICMP has stated that it cannot provide its entire database of genetic profiles obtained from blood samples taken from family members of missing persons to the Accused without obtaining the consent of each family member who provided such a sample, and that this process would take significant time in view of the volume of samples taken“, see ICTY, Prosecutor v. Karadžić, “Order on selection of cases for DNA analysis,” 19 March, 2010., p. 2.
[7] ICTY, Prosecutor v. Karadžić, “Order on selection of cases for DNA analysis,” 19 March 2010, p. 2.
[8] Which, of course, is not the case at all because the Tribunal is invested with full jurisdiction over all aspects of the criminal case under its consideration if only it should decide to make use of it. But the use of that authority is not in every instance discretionary. The court has an obligation to effectively use its powers to make unconditionally available to the accused all evidentiary materials that are being used in the case against him.
[9] Popović et al., 1 February 2008, Transcript, p. 20872.
[10] ICTY, Prosecutor v. Popović et al., par. 645.
[11] “DNA evidence can be fabricated, scientists show,” New York Times, 18 August, 2009; also, “Report: Israeli scientists discover way to counterfeit DNA,” Haaretz, 18 August, 2009.
[12] New York Times, ibid.
[13] See FSI Genetics, 17 July, 2009; also, http://www.fsigenetics.com/article/S1872-4973(09)00099-4/abstract
[14] http://gednap.forensischegenetik.de/Information/Manual_englisch07_04.pdf
Attachments:
ICMP link to US State Department