Dr. Ljubiša Simić: An analysis of Srebrenica forensic reports prepared by ICTY Prosecution experts

A thorough analysis of forensic evidence used in Srebrenica-related trials at ICTY in the Hague is an important tool not only for sorting out what actually happened in Srebrenica in July of 1995, but also for understanding the procedures followed by that Tribunal. These insights are all the more significant since over the last decade much new evidence has emerged which sheds new light on the events in Srebrenica and the Tribunal’s judicial standards.

This paper focuses on the methodology of forensic teams which, working on behalf of ICTY Prosecution, between 1996 and 2001 exhumed mass graves believed to be related to Srebrenica and recorded their findings in the form of autopsy reports. Significant methodological errors in the autopsy reports are pointed out, calling into question the integrity of that evidence as received by various ICTY chambers.

As a result of significant problems with the forensic evidence, which is the only material proof of what happened in Srebrenica, the generally accepted narrative needs to be reexamined.

Thorough analysis of the forensic evidence used in the various Srebrenica trials could make an important contribution to clarifying what happened in Srebrenica in July of 1995. It provides also a useful glimpse into the way the ICTY operates. Clearly, over the last twenty and some years, virtually from the time of the initial exhumations, this evidence has been controversial. Equally controversial is the Tribunal’s professionalism in this area. The way in which this forensic data was collected, processed, offered into evidence, and finally incorporated into ICTY judgments, thus coming to form the basis for far-reaching conclusions, sheds additional light on this international tribunal’s modus operandi.

For our purposes it is unnecessary, and would even be uncalled for, to dwell on the political, legal, or moral background of the events which took place in Srebrenica in July of 1995. Instead, we shall focus on the methodology of the international teams of forensic experts who were asked by the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia to conduct exhumations of Srebrenica-related mass graves and record their findings in the form of individual autopsy reports between 1996 and 2001. For this task to be performed credibly, all relevant and available data must be taken into account. Significant issues must be clearly identified, and they should be discussed as thoroughly as possible.

It may be said at the outset that the critique that follows strongly encourages the formation of a new perspective not only about Srebrenica but, to the extent that this major component of the accepted narrative of the Bosnian war 1992 – 1995 is found to be unsustainable, about that conflict as a whole.

It should be pointed out at the start that the general thrust of this critique is not to endorse either of the extreme views on the subject, one claiming that 8,000 prisoners of war were lined up and shot, and the other asserting that no major violations of the laws and customs of war occurred. To that extent, the partisans of both views will probably remain dissatisfied with what we have to say because the conclusions suggested by our analysis of Srebrenica forensic data do not lend support to either camp.

Outside experts and their modus operandi. It could plausibly be argued that considerably more progress might have been made in establishing the facts, at least on the forensic level, if outside interventions had been more constructive, or at least more moderate in their strenuous demands to fit forensic realities into preconceived frameworks.

The analysis that follows will shed light on one aspect of that foreign intervention which was designed to “pick up the pieces” in the aftermath of the Bosnian war. The importance of these materials may be judged by the fact that the Hague Tribunal relied on them to define the events in Srebrenica as genocide, which is perhaps the most serious legal characterization in the arsenal of jurisprudence. Individuals accused of involvement in these events have received prison sentences totaling many decades. Yet until now no one has bothered to subject the forensic methods and the autopsy reports themselves, as prepared by the Prosecution’s own experts, to serious review, notwithstanding their far-reaching impact.

One may assume that trust in their competence and objectivity was so implicit, that the thought never occurred to anyone to seriously question their work.

That impression is reinforced by the fact that Tribunal experts were granted complete autonomy in their work while their local colleagues from Bosnia or the former Yugoslavia were not allowed access to any of the about 20 mass graves that were identified and exhumed in the general area of Srebrenica. Given the bitter mutual hostility of local contenders, viewed in the abstract entrusting the delicate task of sorting out the forensic evidence to presumably detached foreigners may have appeared as a wise move under the circumstances. But the corollary to that is that since no one but ICTY Prosecution experts were involved in the exhumations, they and the institution on whose behalf they were performing their task must now bear complete professional responsibility for the quality of the results. At the same time, taking into account the countries from which many of these experts were drawn, as well as countries from which they were pointedly excluded, skeptics may be excused for thinking that this particular detail may explain many of the shortcomings in these autopsy reports, which will be pointed out in due course.

In order that the main issues may be properly highlighted and understood, the data will be analysed from several different angles. In addition to the data itself, we will deal also with the important question of how they were presented to and interpreted by the Tribunal and were thus used as the foundation for several convictions. This approach will generate more useful information and it will enable us to explain this complex material by using numerous examples.

The subject of the analysis that follows are the results and conclusions reached by several teams of prosecution forensic experts engaged by the Office of the Prosecutor of the Hague Tribunal. They conducted exhumations between 1996 and 2001. These exhumations were performed in the Podrinje (Drina Valley) region of Bosnia and Herzegovina in mass graves believed to contain the remains of Srebrenica victims.

Autopsy reports prepared by these expert teams refer to victims in over 20 mass graves in 13 localities: Glogova, Kozluk, Konjević Polje, Hodžići Road, Nova Kasaba, Pilica, Ravnice, Zeleni Jadar, Lazete, the Dam, and Čančari Road.

Is that what they mean by lege artis?  Before going further, it would be useful to consider the way Hague Tribunal experts view the forensic evidence where Srebrenica is concerned.

Asked by the defense during the Popović et al. trial whether in his view it would serve a useful purpose to try to establish how many Srebrenica Muslims were killed in combat, ICTY prosecution military expert Richard Butler answered as follows:

It would be relevant if the forensic evidence of mass graves were showing evidence that would reflect that the bodies in those graves reflected combat casualties. The forensic evidence, as I understand it, coming out of those mass graves reflects the opposite, that they are not combat casualties.[1]

Nevertheless, further along during the cross examination, Butler felt compelled to admit that based on his military experience it would be reasonable to assume that “between 1,000 and 2,000” Muslims could have died as a result of combat activity.[2]

Though he was eventually compelled to backtrack to a certain extent, it is Butler’s initial response that encapsulates the dogmatic position which has implicitly marked from the start the way this forensic evidence was treated by the prosecution, successive Tribunal chambers, and the experts engaged to prepare it. As will be evident, that rigid position does not have empirical support in the forensic evidence itself.

The issue of professionalism.  No expert, regardless of skill or reputation, can state with absolute certainty whether an injury was the result of execution or combat merely on the basis of a bullet or other injury to some portion of the body, especially if the body is in an advanced state of decomposition or has been reduced to a skeleton. Unqualified assertions are always a sure sign that the expert is overstepping the legitimate bounds of his or her mandate.

The chamber in the Krstić case reasoned in a way that was quite similar to Butler’s. Their conclusions on forensic matters, as stated in the judgment, are largely adapted to the prosecution’s claims without much apparent attempt at critical analysis. In many instances, the prosecution’s views were incorporated into the judgment with little or no modification.

The following aspects of the Krstić judgment where it intersects with the prosecution’s forensic evidence should be red-flagged because they are seriously questionable. They have, nevertheless, infected the reasoning and the principal conclusions of the judgment as a whole.

1. It is tacitly accepted that each forensic report represents a body. That is not correct because a significant number of reports involve only a few bones from which no firm conclusions can be drawn. That is particularly true of hand or foot bones, some of which do not even exhibit any evidence of injury. [Annex 5.4]
2. The total number of cases (or purported bodies) with blindfolds and/or ligatures is, by our count, 442. In the Krstić judgment, two figures are cited. One refers only to blindfolds (448), and the other only to ligatures (423).[3] It is thus implied in the judgment that these are two separate groups of prisoners. When these figures are combined, the resulting total is 871, which is somewhat more than the actual number of victims found in a state which suggests execution. Some had only blindfolds, others had only ligatures, but many had both. Thus, there was overlap between the two groups. However, this is not mentioned anywhere in the judgment nor is there the slightest hint of the fact that in a significant number of cases the same individuals had a blindfold and a ligature. The objective of the prosecution, naturally, was to augment the number of potentially executed persons and thus to impress the judges. They were apparently successful. The result is reflected in the lengthy sentence that was in the end meted out to General Krstić.
3. The judgment also fails to discuss numerous autopsy reports which refer to bodies where only shell or mortar fragments were found. The presence of such munitions militates strongly against the self-confident thesis of prosecution expert Butler that practically without exception victims exhumed from mass graves were executed. (Annex 5.2)
4. Deliberately or by design, the issue of “high velocity bullet injuries” referred to in many autopsy reports, and the important implications that has with regard to the manner of death, is casually mentioned in the autopsies but its significance is left completely unexplored. However, the presence of such injuries is directly pertinent to whether or not an execution occurred in a particular case. The gravity and the extent of bone damage in these situations clearly suggests the impact not of conventional bullets but of shells associated with the Praga cannon,[4] a widely used artillery piece. Its use in the Srebrenica theater and particularly as an anti-personnel weapon is amply documented in the survivors’ statements. (Annex 5.1)
5. The Krstić judgment ignores the significance of autopsy reports which refer to complete bodies with soft tissue to greater or lesser extent present but without any visible injuries inflicted by firearms or any other weapons. This category of human remains suggests that some individuals in the enclave may have died of natural causes or in some other way that rules out execution. (Annex 5.13)
6. It is also stated in the Krstić judgment that at the time the judgment was announced “the minimum number of bodies in the graves exhumed” by forensic specialists “was 2,028”.[5] But that clearly misstates the actual situation as of August of 2001, when the Krstić judgment was published. Our material, which includes not only the data available to the Krstić chamber but also two additional mass graves exhumed after the Krstić trial judgment, shows that there was a maximum total of about 1,920 bodies, or individuals, in all the exhumed mass graves taken together. Some exhibited a pattern of injury consistent with execution, but many did not.
7. In the Krstić judgment, the chamber delivers the conclusion that 18 then-unopened mass graves contain a “minimum of 2,571” unexhumed additional bodies.[6] We may set aside the obvious question: What entitles the chamber to venture such precise figures about the content of as yet unopened grave-sites? More to the point, however, almost two decades have passed since then and there still is no trace of the 2,571 bodies of executed prisoners estimated by Tribunal experts,[7] who are also quoted in the judgment as claiming that the total number of victims “detected” in the mass graves is 4,805.[8] After more than a decade, and in spite of assiduous digging, there is no sign of those additional 4,805 bodies which, in order to support the chamber’s conclusion, must not only be discovered but also forensically demonstrated by proper autopsy reports to be victims of Srebrenica-related executions, and not of some other cause of death. The failure, after such a long time, to bring to light what the chamber was told had been “detected” in numerically quite precise terms suggests that this estimate was pure guesswork and that it was professionally unfounded.

Other ICTY chambers in Srebrenica cases were hardly less awkward in their reasoning. Examples include some of the conclusions drawn by the chamber in the Blagojević judgment. Disregarding numerous defects which in this respect it has in common with the Krstić judgment, some of which were mentioned above, there are also some new ones.

1. The chamber represents that in the Pilica (Branjevo farm) mass grave 132 bodies were exhumed, of which 82 had ligatures.[9] That information is incorrect. In fact, 115 bodies were exhumed, of which 70 had ligatures.
2. It is claimed that the Glogova 1 and Glogova 2 mass graves contain 317 bodies. Our analysis of the data shows that to be incorrect. There is, in fact, a total of 275 bodies not just in the Glogova 1 and 2 mass graves but in all the mass graves exhumed at that location taken together, i.e. Glogova 1, Glogova 2, Glogova 3, Glogova 4, Glogova 5, and Glogova 6. Using simple mathematics, all six of those mass graves contain a total of 275 bodies while in the Blagojević judgment it is claimed that in just two of them there were 317 bodies.[10]
3. In some of the paragraphs of the judgment, it is stated that in the Hodžići Road mass grave there were estimated to be 219 bodies. In fact, 156 were exhumed there.[11]

The Tribunal dealt with these issues not only by relying on the findings of forensic experts in the field, but also by considering the evidence of witnesses who took part in these events in July of 1995. To be exact, it heard for all practical purposes the testimony of just a single witness, Dražen Erdemović, who appeared as the prosecution’s star witness in several Srebrenica trials. The place where our analysis of the forensic evidence intersects with Erdemović’s evidence is Pilica, located about 40 kilometers from Srebrenica. According to Erdemović, that was one of the locations where executions of prisoners took place in July of 1995. In his book, The Star Witness[12], Germinal Čivikov discredits the claims of Dražen Erdemović that together with seven other members of his unit he could have executed between 1,000 and 1,200 prisoners in less than 5 hours.

Čivikov points out that, when account is taken of Erdemović’s claim that the prisoners were bound and that the busses in which they were being driven were parked 100 to 200 meters from the execution site (in one of Erdemović’s statements the distance was 100 meters, in another 200), and that the prisoners were being shot in groups of 10, given such a tempo, using simple mathematics the executioners would have had no more than 2,5 minutes per group to commit the crime.[13] Given the general setting of the crime, and in combination with Erdemović’s claim that within a five-hour period the executioners found enough time to take breaks, to have drinks, to abuse the prisoners, to force them to empty their pockets and set aside their personal documents, and then to take them to the execution site and finally to check to make sure that everyone was dead, it is clear that this story has some serious flaws. One might well doubt the claim that all the enumerated activities could have been accomplished in 2,5 minutes per executed group. However, such doubts did not arise in the mind of any of the judges, at least not with sufficient intensity to cause them to be incredulous. Oddly, it never occurred to any of the chambers which heard Erdemović’s evidence to invite the other perpetrators of the Pilica killings to testify, nor did it motivate the prosecution to charge those accomplices with anything, although Erdemović had identified them all by name and arguably the prosecution was duty-bound to react given the magnitude of the crime that Erdemović claims to have occurred. [14] The possibility that Erdemović was exaggerating, or perhaps even not speaking the truth, is plainly suggested by the exhumation of the Pilica mass grave. That is the reason that Erdemović’s evidence is being particular consideration here. The number of bodies exhumed at Pilica was 115, and of that number 70 had headscarves and/or ligatures. That is 15 times less than the figure cited by Erdemović. Yet even such significant discrepancies were not enough for ICTY chambers to begin to question the credibility of the “star witness” or to order the other alleged perpetrators of the crime in Pilica to come to the bar of justice so that at least their accounts could be heard and compared to Erdemović’s.

It remains a mystery how the court could accept these contradictions without bothering to verify the facts. Even this cursory survey strongly suggests that one of the proposed versions has to be incorrect. Either Erdemović is speaking the truth when he claims that with the help of seven associates he executed 1,200 men, or judgments supposedly based on the findings of forensic experts are erroneous because at Pilica the remains of only 115 individuals were exhumed. Even such drastic inconsistencies in the evidence could not persuade ICTY judges to order a further investigation or to call the co-perpetrators to court in order to clarify an important issue. Both poles of the contradiction are tacitly accepted without any attempt to resolve them. This has served as the basis for draconian sentences in several Tribunal cases.

In the Krstić case, the chamber makes an attempt to ameliorate the contradiction by asserting that the Pilica remains were partially reburied in the Čančari Road 12 mass grave. However, that explanation is not overly persuasive. The Čančari Road 12 mass grave according to our analysis contains 90 bodies, giving a total of 205 when combined with Pilica. Even that is six times less than the figure claimed by Erdemović.

For the sake of accuracy, it should be stated clearly that in the Krstić judgment the chamber accepts as a possibility that a certain number of persons may have been killed during combat. It nevertheless settles for the view that the overwhelming majority were executed.[15]

How ICTY interprets forensic data.  Should there be any doubt that forensic reports can be more complex than appears at first glance, there is a specific detail that recurs in a number of them that seems to have been overlooked by almost everyone. Focusing on that detail will help us to gain a better understanding of the actual complexity of Srebrenica events.

While reviewing data from some of the mass graves, it was noticed that autopsy reports kept cropping up where the cause of death was attributed to high velocity bullet injury. Autopsy reports from several mass graves contain references to this phenomenon and the number of such reports is not negligible. Body injuries are described as burst-out, and they are said to have resulted from the impact of high velocity projectiles which cause extensive and, in most instances, lethal damage. The first question that arose was: Why didn’t the chamber ever discuss or refer to these reports? Why did it not attempt to draw a conclusion about the type of weapon that could have caused such destructive body damage and its compatibility with the theory of execution? Are ordinary firearm bullets capable of causing this type of tissue destruction?

This question is important because it directs the inquiry to the next level: What kind of weapon, capable of causing such extensive damage, was most probably used causing the death of these particular individuals?

The specific nature of injuries inflicted by high velocity bullets may be described as follows. When projectiles, which move at speeds greater than 900 m/s[16] impact the body, they cause a false cavity around the entering projectile that is of considerably greater diameter than the projectile itself, causing correspondingly greater tissue damage. On the other hand, high velocity projectiles also transmit to the tissue an enormous amount of kinetic energy which serves as the cause of additional damage and, if they impact bone structures, a phenomenon known as burst-out injury will result. The characteristic of such injuries is that bone tissue will disintegrate into many tiny fragments.

The example shown in Annex 3.1 suggests that the probability that such injuries might result from conventional automatic or semi-automatic weapons is low and that there is a high likelihood that burst-out bone injuries, as they are described there, might have been inflicted by projectiles launched from the Praga artillery piece. It is known to have been used in the theater and its velocity is much greater and therefore sufficient to cause the observed damage.

An example of this phenomenon would be a burst-out injury to the cranium or some other part of the body which causes it to splinter into dozens of small fragments. Injuries of this type would cause cranial defects whose diameter usually would exceed 10 cm across. Where the point of impact was the chest area the result would be shoulder blade fracture into dozens of tiny fragments and (as in one particular case) the fragmentation of six neighboring ribs. So the question must be put as follows: What kind of weapon most likely inflicted such serious and extensive injuries? The anti-aircraft gun М53/59, better known as the Praga, would be an obvious candidate. All the elements fit. First, the initial speed of the projectile when fired from this weapon is 1,000 m/s. Second, the size of the Praga projectile is such that an enormous and sufficient amount of energy is transmitted to the body upon impact, which means that the injuries would be correspondingly more extensive.

And third, according to numerous witness statements of survivors, the execution weapons that were actually used[17] were of the type which had incomparably lower velocity.

As an example, the velocity of a bullet discharged from the famous AK-47, also known as the Kalashnikov, is 700 m/s;[18] the velocity of an M-92 automatic bullet is 645 м/с;[19] for the automatic M-70 the velocity is 720 м/с;[20] for the semi-automatic М72Б1, bullet velocity is 745 м/с.[21] The familiar Scorpion’s projectile travels at a speed of only 320 м/с.[22]

There are not many studies focusing on the impact of the Praga on civilian targets. The Praga was designed initially as an anti-aircraft weapon. However, during the Bosnian conflict it was widely used also against civilian targets. That was amply confirmed by the statements of members of the 28^th Division of the BH Army in the column that was retreating under fire in mid-July of 1995 from Srebrenica to Tuzla. They confirm that the enormous number of casualties that the column sustained was in part the result of the use of the Praga by Serbian forces all along the column’s route.[23]

To clarify some of the essential points, first, it is correct that regular firearm bullets, which are commonly used in executions, in ballistics are classified as high velocity bullets, but their speed is insufficient to cause grave damage that was observed. Second, the extensiveness of the injuries indicates that the energy transmitted to the body during impact was enormous and that it must have exceeded greatly the amount of energy that projectiles originating from automatic or semi-automatic weapons could be expected to transmit.

These fundamental conclusions have been extensively confirmed by surviving members of the 28th Division. In numerous independently given statements they admitted that during the breakout toward Tuzla their side did suffer enormous casualties, and that one of the reasons was precisely that they were exposed to fire from Pragas which were deployed and used by the Serbian side in the theater of operations. In assessing observed damage to human tissue in combination with those statements, it is important to remember that the velocity of 1,000 м/с[24] is more than sufficient to produce just such an effect. When propelling a 30 mm projectile, that velocity conveys to the point of impact kinetic energy of extremely destructive and lethal force.[25]

If we rule out the possibility that prisoners were being executed using artillery, the only plausible conclusion congruent with the reports of numerous surviving members of the 28^th Division column is that burst out injuries as described by Prosecution forensic specialists could have resulted only from exposure to combat operations.

It appears incredible that the judges did not make an effort to inquire how such destructive damage, which in the evidence submitted to them was clearly labeled “burst-out injuries,” came about. Might the acknowledgement of such odd injuries, when juxtaposed to the judges’ view that most deaths were caused by executions, have caused an unnecessary complication? At any rate, it did not seem to strike them as awkward, nor did it stimulate their intellectual curiosity.

Had they bothered to examine the forensic evidence before them more thoroughly, the judges would have noticed that burst-out type injuries are not referred to in all, but only in some, of the autopsy reports. That should have been a signal to them to ask why those reports are different from others. If such injuries were a characteristic feature of automatic and semi-automatic weapons commonly used in executions, why were they not present and referred to in all or the great majority of the autopsy reports if – as asserted – most of the victims were executed? Although the approximately 150 reports in the burst our injury category clearly stand out in terms of both their salient features and resulting injuries, that was apparently not enough to raise some obvious new issues in the judges’ minds.

The raising of these new issues might have clarified the manner of death of some of the soldiers and reclassified them as combat casualties. By failing to make pattern-of-injury distinctions in the prosecution forensic reports, which clearly also have distinct manner-of-death implications, the court in effect misrepresented the forensic data to the public by propagating the illusion that the forensic evidence generally corroborated the execution scenario, although it manifestly does not.

There is also another category of reports which demonstrates that soldiers who were killed in combat were illegitimately conflated with Srebrenica execution victims. In this category, the prosecution’s own forensic experts sometimes unambiguously state that the lethal injury was inflicted by shrapnel (Annex 5.2), i.e. a grenade or mortar fragment, or fragment of some projectile other than a bullet. Such autopsy reports also are in harmony with statements given by soldiers who took part in military operations on the Muslim side to the effect that many among them were killed by artillery shelling during the withdrawal of the 28^th Division.

Always skillful at formulating rhetorical deniability strategies to give cover to its blanket generalizations, the Hague Tribunal admits in the Krstić judgment that it “cannot rule out the possibility that a percentage of the bodies in the grave-sites examined could have been of men killed in combat”.[26] That one sentence encapsulates their comments on the complex subject of combat deaths. While this statement is in principle correct, it would have been equally correct to say that based on the same evidence the chamber “cannot rule out the possibility that some of the men were executed”, since both of those statements are true. In neither the Krstić nor any of the subsequent Srebrenica cases did Tribunal chambers pay the slightest attention to this sizable category of forensic reports. If they had done so, it might have seriously undermined their sweeping conclusions about execution as the cause of death of the overwhelming majority of Srebrenica casualties. Such dissonant reports were essentially ignored and there is no indication that any thought was given to conducting a more detailed analysis of such data and their implications.

Bed of Procrustes—a good place to dump the facts.  It is difficult to ward off the impression that the Hague Tribunal is attempting to marginalize some very relevant facts which, if the Tribunal were operating with some preconceived conclusions, would be rather uncomfortable and threaten to change the perception of Srebrenica. In the judicial culture of the Hague Tribunal it has become commonplace to marginalize or ignore facts which are difficult to refute but which are equally difficult to fit into the court’s scheme of things. The usual response is to ignore them and not conduct any further inquiry into the matter. At ICTY there is no sustained practice of calling in experts and witnesses whose evidence might encourage skepticism of the received judicial wisdom. The Tribunal’s preferred technique is to allow nonconforming material to be lost in the avalanche of other data and thus remain unnoticed and to that extent stripped of its significance. In stark contrast, when the intention is to create an apparent evidentiary basis to corroborate conclusions that were probably selected in advance, the Tribunal rarely misses the opportunity to accept the evidence of various witnesses, no matter how dubious their credentials, such as the already mentioned Erdemović.

In addition to the evidence of ICTY prosecution forensic experts, our contention that significant losses suffered by the Muslim side, as reflected in the autopsy reports, are more readily explainable by the impact of artillery – which by definition rules out execution – is supported also by the testimony of numerous Muslim survivors.

What follows is a list of their statements indicating that a certain number of men were killed in combat by fire from artillery and other weapons, definitely excluding execution, during the 28^th Division withdrawal from Srebrenica to Tuzla in July of 1995. The ICTY database   reference number for each of those statements is given. That is important because it shows that this evidence is archived in the Tribunal’s own records and that it was available at all times to both the Prosecution and the Chamber. More specific details about the withdrawal of the 28^th Division and individual statements which corroborate these conclusions are located in a volume co-authored by the present writer. [27]

Hasanović Sead  03021142-43

Shelling in the vicinity of Kamenica.

Jusufović  Azim #93, 00464628

Shelling in the vicinity of Kamenica.

Muhić Azem  #97, 00464635

Shelling in the vicinity of Kamenica.

Sinanović Sabrija #106, 00464646

Shelling in the vicinity of Baljkovica.

Bašić  Adem #67, 00464604

Shelling in the vicinity of Kamenica.

Jašarević Fehim  00464628

12 July – Serbian forces opened fire on the column from all sides and the witness estimates that there were up to 5000 casualties.

Jusufović Azmir  00464629

12 July – column attacked in the vicinity of Kamenica, about 300 dead and 100 wounded.

Mahmutović Haris  00464630

Along the column’s path of retreat it was ambushed at a location the witness is unable to identify and about 100 civilians were killed and many were wounded.

Mehmedović  Adil   00464631

12. July – the column was shelled from the surrounding hills on the Kamenica-Pobudje Road and there was a great number of dead and wounded. On the way to Snagovo, came across many dead. In Perunik, saw over 200 dead.

Hasanović  Admir  00464621

11. July – Chetniks shelled column, resulting in 20 dead and 40 wounded.

Hasanović  Hasan  00464621

11. July – the column was shelled.

Hasanović Vejz 00464622

11. July – ambush in the woods near Kravica, many dead and wounded.

Hodžić  Džanan  00464624

11. July – the column stepped into a mine field in Jaglići, resulting in the death of five and wounding of 10 civilians.

Hodžić  Nezir 00464624

11. July – column subjected to constant shelling and the witness saw many dead in Srebrenica, Konjević Polje, Cerska, and Kamenica.

Hodžić  Zuhra 00464625

11. July – column ambushed at Buljim, about 200 dead.
12. July – ambush at Velika Glava, many dead; also at Lipanj and Baljkovica, minimum 50 dead.

Beganović  Ragib 00464609

11. July – an intense artillery attack lasting 45 minutes resulting in numerous casualties.
12. July – while walking thtough the valley (in the direction of the Konjević Polje-Kaldrmica Road) where the column was initially ambushed, saw about 2500 decomposing corpses.

Ćosić Muharem 00464612

11. July – ambush in Jadar, 500-600 dead.
12. July – about 150 men killed in an ambush at Baljkovica.

Gutić  Sabahudin  00464618

11. July – column shelled near Bukovik hill by Chetniks using 82 mm and 120 mm cannon resulting in many casualties.

Orić  Fadil   00464653

12. July – column shelled near Buljim.

Muhić Azem   00464635

12. July – column shelled constantly all the way to Kamenica.

Muratović  Sakib  00464637

11. July – Chetniks were shelling the column and men were being killed in front of him.

Mustafić  Idriz  00464638

11. July – Chetniks shelled the column near Buljim and witness saw men being killed.
12. July – Chetniks continued the shelling and witness saw dead and wounded men.

Ridžić  Ramo  00464640

11. July – the column was attacked from the direction of Kravice, Zabrdje, and the surrounding hills on the Buljim-Nova Kasaba Road resulting in about 700 dead between Kamenica and Kasaba.

Salihović  Sefedin  00464642

11 or 12 July – while crossing the road near Konjević Polje the column was shelled and at least 500-600 men were killed. In the shelling near the village of Jaglići, about 12 to 15 men were killed.

Sandžić  Bajro  00464643

12. July – gunfire, followed by artillery shelling of the column, near Pobudje. The same evening near Kasaba there was an artillery attack resulting in many dead and wounded. After the shelling, many of the dead and wounded were abandoned on the plateau in the vicinity of Kasaba.

Sinanović  Sabrija   00464647

Chetnik shelling near Baljkovica resulting in about 100 dead and 100 wounded.

Smajlović Ahmed   00464647

11. July – column attacked near Konjević Polje resulting in many casualtiues.

Suljić  Mevludin  00464649

12. July – ambush near Konjević Polje, estimates that about 400 to 500 men were killed.

Udovičić Edin   00464649

The column was shelled and subjected to gunfire continuously during its retreat: „The Chetniks were shelling us without interruption.”

Similar statements by other witnesses also suggest that the column suffered enormous losses during its retreat:

Osmanović Ramo 00512683, Ramić Sado 01008163, Zukanović Bego 00371759, Ademović Ševal 01008095, Alić Mevlid 00371771, Avdić Enver 00371746, Hakić Nermin 01185308, Halilović Osman 00818527, Halilović Suljo 01008121, Hasanović Sead 03021141, Husić Ramiz 00813498, Kadrić Midhat 00371768, Mehanović Hašmir 00371774, Memišević Nurif  00396028,  Muminović Behudin 00464352, Muminović Sejdalija 00371757, Muratović Kadrija 01185372, Mustafić Husejn 00401647, Osmanović Nazif 01008158, Orić Mevludin  00464519, Avdić Nedžad 00464521, Ahmetović Nedžad  03053077.

When viewed in combination with statements given by members of the 28^th Division and Srebrenica civilians who comprised the retreating column, data in the forensic reports which refer to shrapnel as the cause of death become particularly significant and helpful to explain the manner of death of a considerable number of Srebrenica Muslim casualties.

This evidence seems clear enough. It does not refute that some prisoners were executed, but it does suggest strongly that a significant number of those who died were highly likely not in that category. It demonstrates the existence of another group, combat casualties, encompassing a significant segment of Muslim casualties in July of 1995. Inexplicably, the Hague Tribunal continues to be reluctant to recognize the factual and legal distinction between those two groups. Why?

Other flies in the Tribunal’s ointment.  In addition to autopsy reports which reflect widespread combat activity, and which are fundamentally incompatible with the univocal standard picture claiming that execution was the only, or at least the predominant, manner of death, there are also other reports which are difficult to fit into the standard narrative. For instance, a number of reports refer to bodies with various quantities of soft tissue (Annex 5.13) where autopsy did not disclose any signs of injury, but which may be assumed to belong to a certain number of individuals in the enclave who at some point must have died of natural causes. It may safely be assumed that the Hague Tribunal did not mention or in any explicit way take such reports into account. Doing so would have been an acknowledgment of the fact that all persons who died were not necessarily executed.

There are bodies that were exhumed from primary graves in 1996 which merit special attention. They consist of bones only, without any soft tissue (Annex 5.3). These cases are significant for the following reason:

It is an accepted scientific fact that for soft tissue to disintegrate, the passage of between four and eight years is required.[28] If the individuals in question were executed in mid-1995, the disintegration of their soft tissue already by the following year is not an outcome that would normally be expected. That suggests that a number of individuals whose remains were found and autopsied in some of the Srebrenica-related mass graves, and assumed to be Srebrenica victims, may have died considerably before the critical period in July of 1995. Therefore, it would be improper to automatically categorize them as Srebrenica victims. This is another subtlety that the Hague Tribunal has apparently missed in formulating its factual findings and legal conclusions.

If the matters discussed so far indicate mere sloppiness, the one that follows is of such far-reaching significance that mere sloppiness would scarcely be an explanation. It goes to the very heart of the matter: how many prisoners were executed? As mentioned already, one autopsy report does not equal one body, although things are tacitly arranged to create that impression. Very often, autopsy reports refer to only a few bones. In over 90% of such instances even ICTY Prosecution forensic experts were obliged to admit that valid cause of death conclusions could not be drawn.[29] An example in this category is presented in Annex 5.4.

The implicit, but misleading, equivalence between a “case” and a body is vitally important because it is one of the principal mechanisms by which the hugely exaggerated impression of the number of individuals whose remains were allegedly exhumed by the forensic teams of the Hague Tribunal is generated. In fact, notwithstanding assiduous efforts to augment the figure, almost 25 years after the event it still has not passed 2,000, and due not only to execution but also to other causes.[30]

The immense zeal to increase number of potential execution victims is evident in the Krstić judgment,[31] where the chamber treats as valid evidence the prognosis that in additional 18 as of then unexhumed mass graves, over 2,000 more bodies were going to be found.

It strikes one as a very odd procedure to base factual and ultimately legal conclusions about the number of victims in a criminal case not on the actual situation established at the time judgment is rendered, but on what is explicitly termed an “estimate”. It is, nevertheless, precisely this sort of evidentiary speculation which characterized the Chamber’s approach in Krstić and also exercised a notable influence on the draconian punishment that the defendant received. But let us allow for the possibility that almost twenty years ago the Krstić chamber may have honestly thought that there was a solid basis for such speculation. What are we to make now of the fact that in the intervening period the Tribunal has made no effort to exhume the mass graves in question and to thus to settle any residual doubts about what they may contain? In fact, in the Krstić judgment we are not even informed about the precise location of those alleged mass graves.

Some obvious errors in forensic reports.  A number of individual reports merit particular attention because they are emblematic of the peculiar way ICTY functions and also because they corroborate of our suspicion that fundamental conclusions were reached independently of any serious consideration of the facts prior to that.

There are reports which refer to Pilica exhumations in 1996 which are perhaps the most telling practical illustration of the Tribunal’s professional culture.  Some of them should be looked at.

For the gravity of these errors to be properly appreciated, some preliminary remarks are in order.

First, these remains were exhumed from a primary mass grave in Pilica in 1996.

Second, the skeletons exhibit the presence of soft tissue to various degrees.

Third, no bodily injuries were found that could be linked to a bullet, dull objects, or any other cause.

Fourth, neither bullet nor any other metal fragments were found on or near the body.

Fifth, there were no blindfolds or ligatures associated with these remains.

Sixth, from all the above it clearly follows that the cause of death is impossible to determine, and that is precisely what the forensic scientists found in their autopsy report.

However, when they went on to state the manner of death, they nevertheless wrote the conclusion that it was homicide.  (Annexes 5 .5, 5.6, 5 .7 and 5.8)

In other words, unable to find signs of injury, without any palpable evidence pointing to homicide, and without being able to determine the cause of death, they nevertheless drew the conclusion that death was the result of a culpable act, murder, and they put that conclusion in their report.

ICTY forensic specialists are perhaps the sole professionals in their field who do not require material evidence to make a determination of the manner (and sometimes even the cause) of death.

The obvious question is if the Tribunal knew a priori the number of victims, as well as the manner of their death, and presumably a number of other parameters, as many of these reports suggest that it did, why did it spend any money on seemingly redundant field research?

As if to draw attention to these absurdities, it appears that a few months later someone took the trouble to review and correct these autopsy reports. In the “manner of death” rubric they wrote in the only response that could possibly be correct under the circumstances, i.e. that it was “unknown”. (Annexes 5.7 and 5.8)

After such a professionally awkward situation, one might have expected a proper court to critically scrutinize the prosecution’s team of “experts” and perhaps even to discard their findings.

But instead the ICTY went on to construct its own verdicts in great part precisely on data of such dubious integrity. One may reasonably suspect that in some trials this forensic data may also have influenced the severity of the sentence.

If we hypothesize that the unspoken but actual task of ICTY forensic and perhaps other experts is not to follow the evidence wherever it leads but to shape it in order to create a public illusion that court judgments are factually supported, many pieces of the puzzle come into place. That explains why space for objectivity and professionalism at the ICTY is so drastically reduced. It also explains another key element that characterized these particular proceedings: the complete exclusion of independent experts during the exhumation process.

The underlying question is this: after a review of Srebrenica-related autopsy reports, how much can ICTY still be trusted? That seems to be the court that embraced flimsy evidence to draw uncritical conclusions of the highest order and of the utmost legal significance. By virtue of such conclusions a public impression was formed that in Srebrenica a genocidal mass slaughter took place. That finding was given an official judicial imprimatur, and the accused persons were sentenced to draconian punishments. And all that was done apparently without ever having seriously examined the principal purported evidentiary underpinning for the judgment in question.

The banishment of common sense. There are other examples in the Srebrenica autopsy reports that demonstrate the Tribunal’s lack of rigor in assessing Prosecution evidence presented to it.

In the mass of professionally flawed autopsy reports, some stand out because they literally defy common sense. In one such report, Prosecution forensic experts found a handkerchief in the victim’s pocket and they characterized it as a possible ligature. Assuming that were true, it would obviously be helpful to the Prosecution’s case because it would suggest that the person was executed.  (Annex 5.9)

This is a stunning conclusion, and for the following reasons.

First, we are dealing with a handkerchief, not rope or wire or any other material suitable for use as a ligature.

Second, the handkerchief was found in the person’s pocket.

Third, ligatures are usually long pieces of wire or other material which could be wound and tied around the wrist.

It is of particular interest that the handkerchief was found in the person’s pocket. That suggests that if it was indeed used as a ligature the soldiers who performed the execution must have first used it to tie the victim’s wrists and then, after the execution, removed it and placed it in the pocket of the executed person.

Such a procedure after execution is difficult to imagine and even more difficult to fathom.

But this is not the end to manifestly unsound forensic conclusions.

In another example (Annex 5.10) a knee injury is treated as a possible cause of death. The rationale is quite ingenious: according to the makers of this autopsy report, unless such injuries are treated medically, they can lead to hemorrhage and result in death.

In the example shown in Annex 5.11, someone crossed out the originally determined cause of death, said to be a calf injury. The reviewing authority then wrote in their own assessment, as was already seen in numerous other Pilica reports, to the effect that the cause of death could not be determined. The corrector, of course, finally got it right because without more, a calf injury is scarcely expected to be fatal. But this almost slapstick comedy with very serious implications is just another interesting illustration of the general level of professionalism among ICTY forensic specialists.

In Annex 5.12 ICTY forensic scientists were faced with the sceletized remains of a leg without any apparent bone damage. But the absence of bone trauma did not discourage ICTY forensic experts from drawing the following hypothetical scenario: a nearby bullet was said to have been the cause of death by damaging that individual’s soft tissue which, unfortunately, is unavailable for examination because it has disintegrated and is no longer attached to the bone.

It is a settled principle of forensic work that specialists in this branch do not have a mandate to engage in fanciful hypotheses and conclusions and that they must confine themselves strictly to the observable facts. Conclusions, especially if they are of a legal nature, are the exclusive province of the court. A forensic specialist who because of an excess of zeal or for other reasons strays over into the legal domain does great damage to his profession and to the integrity of the legal process. A court which condones such conduct acts as his tacit enabler in inflicting such damage.

And perhaps more than merely tacit. Where a handkerchief in the pocket is treated as a ligature, when the cause of death is determined without a single apparent injury, when imaginary conclusions are drawn about non-existent soft tissue which had disintegrated, or hemorrhaging knees, calves, and feet are speculated to have been the cause of death although in medicine these are not considered to be vital organs, it is difficult to avoid the impression that ICTY forensic experts were operating with a mandate which was tacitly broader than merely reporting observable facts. Could it also have encompassed, on the implicit level at least, the prosaic task of providing professional cover for institutional conclusions that somehow had been arrived at in advance?

Besides the issue of the legal characterization of the crime, the other central issue of Srebrenica, which is the subject of intense debate, is the number of victims. The answer which, oddly, seems to have been anticipated even before the events in July of 1995[32]  is based on the expectation that there should be several thousand executed Muslims. A proper court would perform its task based not on expectations, but solely on the available evidence. Since in this particular case, the forensic evidence is the sole corpus delicti, it would be normal to expect that the court would reference its factual findings to the number of bodies that were actually exhumed from mass graves. If the finding of 7,000 to 8,000 execution victims were sustainable, we should expect to find, upon the conclusion of their work, that ICTY forensic experts had turned up evidence of at least 7,000 to 8,000 executed persons in those mass graves.

The facts, however, belie that expectation. What they have managed to produce are 3,658 autopsy reports which are presented to the court and to the public on the implicit premise that one report equals one body. But even that premise is false. An enormous number of these reports consist of only one or a few bones, often of a hand or foot, which may or may not exhibit any injuries, and in about 90 % of such fragmentary autopsy reports even ICTY Prosecution experts concede that the cause of death is indeterminable. In order to arrive at a fairly accurate count of how many bodies there really were in those mass graves, it was necessary to count femur bones.[33]

According to that analysis, the number of bodies is 1,923 for individuals who perished of a variety of causes, the principal ones being combat activity and execution. That is almost half as many as there are Tribunal autopsy reports (3,658), and it is over four times less than the figure (8,000) that has been sacralized over the last 15 years.

Finally, in selecting its forensic experts, the Office of the Prosecutor of the Hague Tribunal made some very odd choices. A significant number were from the United States and Turkey, and many of the corrected reports that we have mentioned had been prepared originally by Turkish forensic specialists. That is a matter of some significance when issues of possible bias and conflict of interest are considered, and it is taken into account that Serbian and independent forensic specialists were not allowed access to the sites or any role in the proceedings that took place there.

Why, for example, were countries like the Russian Federation, Finland, Sweden, France, to mention a few, arguably more advanced in medicine than Turkey or some of the other countries that were represented on the Srebrenica international forensic teams, excluded from taking part in these exhumations and in the important task of preparing accurate and reliable autopsy reports?

Annexes 3.1 — 3.13  with autopsy reports referred to in this article were published and may be viewed in “Deconstruction of a virtual genocide: An intelligent person’s guide to Srebrenica,” pp.  252 – 294.

References

Karganović, Simić, et al., Deconstruction of a virtual genocide: An intelligent person’s guide to Srebrenica (Den Haag – Belgrade, 2011)

Herman, ed.., Srebrenica Massacre: Evidence, context, politics (2011)

Čivikov, Srebrenica. Der Kronzeuge [Srebrenica.The Crown Witness] (2009)

Lorin de la Grandmaison, International Criminal Tribunal for the former Yugoslavia (ICTY), the forensic pathologist and ethics (Med Sci Law. 2006 Jul;46(3):208-12)

ICTY trial judgments in Krstić, Blagojević and Jokić, and Popović et al. (http://www.icty.org/en/cases/judgement-list )

Endnotes: 

[1] Popović et al, Transcript p. 20250  

[2] Popović et al., Transcript p. 20251, lines 6-8

[3] Krstić trial judgment, par. 75:  «Investigators discovered at least 448 blindfolds on or with the bodies uncovered during the exhumations at ten different sites. At least 423 ligatures were discovered during exhumations at 13 different sites…»

[4] Praga: M53/59. The Praga is a double-barrelled self-propelled anti-aircraft gun. Although it was designed to counter low-flying aircraft and helicopters, during the war in Bosnia and Herzegovina it was used mainly as an anti-personnel weapon and against lightly fortified facilities.  

[5] Krstić trial judgment, par. 80.

[6] Krstić trial judgment, par. 80.

[7] Krstić trial judgment, footnote 166.

[8] Ibid.

[9] Blagojević and Jokić trial judgment, paragraphs 312 and 352.

[10] Blagojević and Jokić trial judgment, paragraphs 312 and 352.

[11] Blagojević and Jokić trial judgment, paragraphs 312 and 352.

[12] Germinal Čivikov: The Star Witness (Belgrade, 2010), p. 65 and 66.

[13] For an instructive comparison, see par. 763 of the Blagojević and Jokic trial judgment. There, the chamber describes what it evidently regards as a credible account of the execution of prisoners at the Grbavci School, near Orahovac.  According to par. 567 (f) of the judgment, about 1,000 persons were executed there, which is less than the 1,200 that Erdemović claims were shot at Pilica and which the chamber, based on his allegations, accepted as a credible fact with regard to that location. The strange thing is the following. In par. 763 in Blagojević it is accepted that the execution of a group of about 1,000 in Orahovac began on 14 July in the afternoon, continued all evening long, and then through the following night, until 5 a.m. the next morning, 15 July. There arises a logical question: if Erdemović is to be believed, how was it possible to execute 1,200 men in only five hours, while elsewhere it took three times longer to execute about 1,000?

[14]  At the Popović et al. trial (2007), judge Agius asked Erdemović to name the members of the Tenth sabotage detachment who took part in the execution of prisoners at Pilica alongside him. Erdemović (who is himself a Croat) named the following persons and their ethnicity: Marko Boškić (Croat), Franz Kos (Slovene), Vlastimir Golijan (Serb), Brano Gojković (Serb), Stanko Savanović (Serb), Aleksandar Cvetković (Serb), and Zoran Goronja (Serb). It is perhaps significant that although as a result of Erdemovic’s evidence over the last ten years these individuals were known to the authorities as potential suspects in the commission of a serious war crime, no investigation them them was initiated and there was no attempt to take them into custody until Germinal Čivikov’s The Star Witness was published in Serbian translation in 2009.

[15] Krstić trial judgment, par. 77.

[16] For a technical account of this issue, see:

http://www.kenrahn.com/jfk/scientific_topics/wound_ballistics/How_a_high-speed.html

[17] For instance, Srebrenica witness Salihović Bećir [EDS: 00464530] claims that he survived execution and that the firing squad used automatic and semi-automatic weapons.

[18] http://www.wikipedia.org/sr-el/A-47

[19] http://www.zastava-arms.rs

[20] Ibid.

[21] Ibid.

[22] http://www.wikipedia.org/wiki/Scorpion_gun

[23] See statement by Alić Mevlid [00371771] who says that the 28^th Division column was being shelled by “artillery” and “anti-aircraft guns”.  The use of weapons of this type is also mentioned by Mehanović Hašmir [00371774], who also mentions mortar fire, and Halilović Suljo [01008121]. All these witnesses are 28^th Division soldiers who successfully withdrew from Srebrenica to Tuzla, where they gave their statements.

[24] http://yumodelclub.tripod.com/vehicals/m5359_twin_30mm_self.htm

[25] Ibid.

[26] Krstić trial judgment, par. 77.

[27] See chapter VII, “Analysis of Muslim combat losses due to minefields and combat activity,” in S. Karganović, Lj. Simić, et al., Deconstruction of a virtual genocide: An intelligent person’s guide to Srebrenica (2011)

[28] Dr. Dušan Dunjić et al.: Forensic medicine (Belgrade, 2008), p. 53.

[29] See section “Data summary” in Annex IV, “Presentation and interpretation of Srebrenica forensic data,” in S. Karganović, Lj. Simić, et al., Deconstruction of a virtual genocide: An intelligent person’s guide to Srebrenica (2011)

[30] The 2,000 figure does not reflect the number of executed or combat casualties, but the number of the dead. For a breakdown according to cause of death, see Chapter VI, “Presentation and Interpretation of Forensic Data (Pattern of Injury Breakdown),” Deconstruction of a virtual genocide: An intelligent person’s guide to Srebrenica, ibid.

[31] Krstić trial judgment, par. 80.

[32] Hakija Meholjić, chief of police in the Srebrenica enclave during the war, was a member of the delegation from Srebrenica which was received by Alija Izetbegović in 1993 during a conference in Sarajevo. He has revealed that Izetbegović informed the delegation that the then US President Clinton had told him that the political precondition for an American intervention was the slaughter of at least 5000 Srebrenica Muslims. [Reported by Srna, 24 April 2010]. For essentially the same version of Meholjic’s account, which has remained consistent over the years, see Dani (Sarajevo), 22 June 1998. This information is also cited in the Report of the Secretary-General Pursuant to General Assembly Resolution 53/35, November 1, 1999, paragraph 115. It is noted in the Secretary-General’s Report that Izetbegović subsequently denied the accuracy of the statement which Meholjić attributed to him.

[33] In Chapter VI, “Presentation and Interpretation of Forensic Data (Pattern of Injury Breakdown),” in Deconstruction of a virtual genocide: An intelligent person’s guide to Srebrenica, ibid., each mass grave is separately analyzed.