asymmetrical haircuts

Disclaimer: Asymmetrical Haircuts is produced as a podcast, meaning it is meant to be listened to and not read. Because of this, we recommend that you listen to the episode while reading, because the written word does not do justice to the emotion or tone used by our speakers. However, because we recognise there might be bandwidth issues or you might be using a hearing aid, we have provided written transcripts for all our available episodes.

[INTRO TUNE]

Steph 01:20 Hi, Janet.

Janet 01:21 Hi, Steph. So, do you spend any time reading those really glossy annual reports that come out from the International Criminal Court? You know, the ones from the Office of the Prosecutor that get launched at the Assembly of StateParties every year? 

Steph 01:38 Boy, do I ever. I do read them, and I try to parse them for every little bit of information that I can possibly glean. And it’s not very much. 

Janet 01:48 Yeah, well, good luck with that. Yeah, they’re so glossy that they just gloss over everything, in my view.

But do you remember that there was—I think it was about two years ago—there was this line in one of them that said that the Office of the Prosecutor (OTP) was going to become a “leader in technology,” and they were making a big investment in a particular tech called ‘Project Harmony,’ as far as I remember. And that this was a way they were going to improve the management of evidence. Did that-? 

Steph 02:18 Absolutely. I actually did a deep dive into it because I wanted to do a story about how they were going to use AI in parsing through evidence. But what I remember from it was that it was very general, and that they didn’t want to tell me very much more in detail about what they were doing. And so, I couldn’t, in a way, sell it to my editors to do a story about it. So, I tried and failed. 

Janet 02:41 Yeah, well, here’s a chance for redemption. How little we know; we will put on show. But yeah, welcome to our lives as journalists, asking questions and getting only minimal answers. 

So, that in itself has been at the back of my mind for a little while. And then when somebody, about six months or so ago, mentioned a thing called ‘Relativity’ to me.That’s a system that’s apparently being used by some organisations. It belongs to Microsoft, and we’ll put a link to that in the show notes. And that’s all about how AI—Artificial Intelligence—is being used in connection with legal data. So, that started me really thinking about what are the systems that everybody is using? What are the ways that AI is being used? What do we need to know about? And how is machine learning coming about? 

Steph 03:27 One of the things I’m really interested in is how do you tag these databases? How much does this cost? How effective is it? They made a big deal of kind of overhauling and modernising the OTP evidence presentation also during trials. But of course, we also know that now there are issues with Microsoft and the ICC, and they’re moving away from it. So, what are they going to do with these systems is another kind of more current point that I’m sure we will get to.

Janet 03:54 Yeah. We’re actually recording this podcast as the second part of our tiny little toe-in-the-water series about Artificial Intelligence and International Criminal Justice. 

Steph 04:04 Yeah, I really enjoyed our previous episode where we talked with Jessica Dorsey and Elke Schwarz about AI targeting. 

Janet 04:13 So, this time, we’re going to talk specifically about investigations and AI.

Steph 04:18 To help us out, we have a friend of the pod and former podcast producer herself, Marta Bo of the Asser Institute. Hi, Marta. 

Marta Bo 04:47 Hi, Janet. Hi, Steph. Thank you for having me. 

Janet 04:30 And we have a new person on the podcast, but very journalist-friendly, Benjamin Thorne, who’s from Reading. Hi, Benjamin. 

Benjamin Thorne 04:37 Hi, both of you. Thank you for the very kind invitation to participate in this conversation.

Steph 04:43 The way to kick this off, probably, is to start the same way we did our previous podcast, to ask you, Marta, to define what we mean by AI? What is AI in this context? 

Marta Bo 04:56 That’s a great starting point, Steph, because AI is very much an umbrella term. If we don’t unpack it, we risk talking past each other. 

So, on the one hand, we have rule-based systems. They operate on the basis of an ‘if-then’ logic. So, if we imagine an AI system that is programmed, for example, to identify words like ‘attack’ or ‘orders’ or ‘weapons’ in documents, and then, based on this identification, it would flag a certain document as relevant for a war crime investigator. 

So, this is very different from machine learning systems. A machine learning system,in this context, would be trained instead on the basis of documents that are labelled as relevant for war crimes investigators or not relevant for war crimes investigators. So, it would learn from patterns in this document. So, instead of identifying keywords, it would also learn that, for example, ordering to carry out an operation and not only an attack would basically be the same thing. So, it would identify such a document as relevant. Machine learning systems are very good at pattern recognition, and they’re much more efficient than rule-based systems. At the same time, they’re more opaque, and I’m sure this is something that will come up more as a problem of these systems in this podcast.

Now, on top of machine learning systems, we also have LLMs, Large Language Models. So, the technology that is behind ChatGPT, for example. And these models, they analyse language, and they provide analysis of legal language, for example.Based on LLMs, we also have an increasing role of agentic AI, so AI assistants that can help in a variety of tasks. So, they not only react to prompts, but they can actually perform planned steps, and this could potentially be very useful for investigations as well. 

Janet 07:17 Okay. So, there’s a lot of different details in there. What’s the most important thing for us to understand as to how this relates to international criminal justice investigations? 

Marta Bo 07:30 Yeah, I think what is important is to what tasks in criminal proceedings these, or different types of AI that can often be combined, are applied to. 

So, international criminal proceedings, as you know, are very complex proceedings.They involve hundreds of victims, witnesses, hundreds of pages of witness testimonies, video footages, intercepted communications. And investigators do not need to only prove that a single murder has been committed by an individual soldier. On top of the underlying crimes, they have to prove contextual elements, as you know, namely that crimes were part of widespread or systematic attacks, or that they were carried out in the context of an armed conflict.

So, these are very much linking exercises. You need to link several crimes, victims of crimes in different geographic parts of certain countries. So, you have to connect the patterns of crimes and you have to connect individual perpetrators also to high-level perpetrators. In these linking exercises, AI can be potentially very useful. AI is very good at pattern recognition in these linking exercises and in processing, analysing, and categorising huge amounts of evidence. These are not just hypothetical applications, but this is how AI is being used right now.

So, in Ukraine, the Office of the Prosecutor General has been using a platform provided by Palantir to integrate different sources of evidence, satellite imagery, and documents. So, this is what this platform is very good at, integrating data. And in the context of international criminal prosecution, this can be very helpful, for example, to map command structures or to map the patterns of crimes.

Steph 09:40 So, Marta mentioned some of the investigators of some of the offices who are working on things with these models and with this AI-assisted kind of searching through the evidence. Benjamin, are there any other investigators worth mentioning who would you like to lift out? 

Benjamin Thorne 09:58 Sure. So, I think obviously the ICC, like many things to do with international criminal justice, takes up a lot of space and perhaps oxygen, and perhaps rightfully or wrongfully. But I think in these conversations, when you’re asking about sort of different types of investigators, we are talking about core international crimes and international criminal justice, but I think this also overlapswith the connected field of transitional justice as well, because there are a number of organisations who are using different types of AI. And some of that might be in terms of criminal prosecutions, but some of it might also be to document human rights violations that also might relate to core crimes, such as crimes against humanity. And I refer to this in some of my current work as this ‘digital accountability ecosystem.’ And I think when we’re talking about investigators, there are a number of different actors with sometimes shared purposes, perhaps also sometimes competing agendas as well.

So, I think when we’re talking about this ecosystem of investigators and those who are interested in AI technologies and digital evidence, I think it’s not necessarily a homogeneous whole, but I think it’s perhaps more useful to think about it as these different component parts, one being investigators within the OTP, but they’re not all moving in the same direction. And this ecosystem is more fragmented, perhaps certainly diverse, and at times contested. So, in terms of more narrow criminal investigators, we have people like I just mentioned at the ICC, but also Eurojust, also UN-relevant units such as the IIMM and the IIMM, and up until 2024, UNITAD as well, which is where Karim Khan came from before he took up his post as Chief Prosecutor at the ICC.

But we also have domestic war crimes units in different European countries, that to varying degrees, may be using some sort of AI tools. But then we also have, as we all well know, OSINT organisations and broadly related human rights organisations that have their own investigative teams, definitely some overlaps. Just to give some examples, OSINT for Ukraine, Bellingcat’s ‘Just Accountability’ unit, although that closed, I think it was late 2024 or 2025.

There’s ‘Witness.’ ‘Airwars’ is an interesting one, particularly in this context, as they gather a lot of geolocation data, for want of a better word, but they don’t gather it for a specific purpose in terms of a trial. My understanding is they gather it more to gather it, and then it could be for a variety of processes. But they quite publicly talk about how they’ve made a choice not to use AI. And I was at a talk where someone from Airwars was, I think it was last autumn, and they were saying that because these potential violations are very much a human process, the process of analysing that data should also be a human process, partly linking that to dignity. So, I think it’s quite interesting how there’s a lot of AI going on in these kinds of investigation processes by a variety of institutions and organisations.

However, there are a few, and I think Airwars is one of those that’s kind of resisting in some sense, the use of AI. We also have organisations like ‘Eyewitness to Atrocity,’which refer to themselves as a closed-source investigation organisation. Another one that I’ve become aware of relatively recently called Earshot. So, we often think of digital investigations and the use of AI around the visual, kind of what we see, whether it’s through geolocation data or a social media post, and around kind of visual verification of that. But also audio is a really big part of that. It’s an organisation called Earshot that does ballistics, for example. So, I think that’s kind of an interesting component of that, and they use AI within some of their work. 

I think another part of this that just kind of often sits at the margin is, in quotations, consultants. So particularly human rights organisations who are involved in a lot of this work directly, they will sometimes, for want of a better word, outsource some of the analysis to external consultants.

So, whether we think of those consultants, perhaps or perhaps not as part of who we consider investigators. Then we have organisations such as what I refer to in some of my writing as ‘activist archives.’ You may well know the group ‘Mnemonic,’ which is kind of an umbrella for archives such as the Syrian Archive, Yemen Archive, etc.

And interestingly, we think of OSINT organisations as kind of this big thing that’s happening in terms of documenting and contributing to evidence for possible trials. But organisations such as the Syrian Archive kind of predated a lot of the work that a lot of the OSINT groups are doing. But groups such as the Syrian Archive have been—for more than a decade—documenting and now using AI within that documentation process to prepare that material for a justice yet to come.

And I don’t know if we can even include, perhaps, journalists as investigators. So, I think you might agree or disagree with some of that. But I think it is useful to try and nuance what we mean by investigators and also the kind of work that they’re doing.

Steph 15:31 I think for this podcast, we’re probably going to focus mainly on the kind of courts that we follow in direct investigation of war crimes, just because we need to narrow it down. I wanted to ask Marta specifically because you referred to that the Ukraine Office of the Prosecutor General was using AI, and specifically Palantir for some of their war crimes investigations, which is remarkable to me because Palantir, we talked about it also in our other podcast about AI targeting, it’s been criticised for its kind of deep involvement in the military. So, I wonder if there are concerns around some organisations more than others with AI and what you should use as a kind of diligent war crimes investigator if we’re talking about that group of people.

Marta Bo 16:20 I think Palantir is a very interesting example because it has been involved in the science context, the law enforcement context and being heavily criticised, as we all know, for its involvement in many of the ICE operations. I think what this example also illustrates is how this technology can move from a military context to a law enforcement and criminal justice context, because the way it started to enter Ukraine was primarily for military purposes. So, for military targeting, and then it transitioned also to other uses.

But this, of course, in terms of legal safeguards, presents some issues, because the guardrails in terms of human rights, etc, that you would have in a law enforcement context would be different compared to a defence context. But if I can go back a bit to what Benjamin also highlighted, which I thought was extremely interesting, is that because of its inherent characteristics, international crimes involve so many institutions, because they involve so many communities, because of their gravity impacts. So ideally, it would be desirable to have more coordination, also in terms of how AI is implemented within this context, because you would then havestandardised procedures for accessibility, reliability checks, etc, etc.

Instead, the tendency is very much the opposite. Every organisation, every national authority, is developing bespoke AI systems that work within their environment. This is also to protect confidentiality, of course, because in criminal law context, this is a paramount concern.

So, we have this tendency to develop AI systems working only in Italy, for example, and within the Italian judiciary. And of course, when evidence is processed through one institution’s AI pipeline, they’re categorised, translated, summarised, they may arrive in another institution in a format that is incompatible, or partially processed, or maybe metadata is stripped. So, this just creates an enormous amount of compatibility problems and admissibility problems in proceedings for which, by definition, institutions should be cooperating and exchanging evidence as much as possible.

Janet 19:19 Steph picked up Palantir. I wanted to pick up the thing that I mentioned at the top of the pod, which was this thing called ‘Relativity,’ because I’m wondering whether that’s becoming some kind of standard, understanding that it’s been developed very specifically for judicial purposes. And the context in which it was spoken about to me was me asking: “Where is all the UNITAD evidence?” All the stuff out of Iraq that was gathered, which you know, some of it is going for various trials across Europe. And somebody said to me: “Oh, don’t worry, it’s in New York, it’s been entered into Relativity.” The problem is that there’s no person to push the buttons in to extract it from Relativity and to send it around in its different formats to the different spaces where it’s needed. You need a budget to be able to run Relativity, but the evidence exists there.

So, I was wondering, Benjamin, since Marta did Palantir, do you want to do Relativity for us on any other systems that you think we need to know about? 

Benjamin Thorne 20:22 So there’s Relativity, there’s also Accenture as well. So, if you think about Project Harmony, it’s this kind of pyramid, if you like, main organisations that are, that partnered with ICC. So, we have Microsoft, we have Accenture, and then ‘Avanade.’ Avanade is kind of consumed within both of those. It was partly funded and funded by Accenture. But then within those kind of three partners of Project Harmony, you do, as you rightly say, a big part of that is Relativity.

Maybe it’s just helpful, very briefly, to say that Project Harmony has three components. It has the OTP link, which is this kind of portal, comes under kind of Article 15 communications, where in principle, any stakeholders or anyone can upload information. That’s increasingly being kind of potential evidence, if you want to call it that.

So that’s why I think we were talking about investigations a few moments ago, why organisations like OSINT and Human Rights are quite important, because they are doing that. So, they are uploading information to the OTP link. In terms of relativity, they kind of, as I understand it, and again, as Janet alluded to at the very top of the podcast, it’s difficult to understand what’s happening, because it’s very secretive, is also my experience.

In addition to OTP link, there’s two parts. There’s the E-Vault, which is more of the Microsoft part, the storage that people started panicking about a lot when there werethe sanctions, and kind of access. And it was reported that within the OTP office, there were apparently, some people printing off dossiers because of fear they might not be able to access that. That’s the Microsoft part. 

Janet 22:06 The sanctions that you’re referring to, Benjamin, are the US sanctions against certain individuals at the ICC, with Stephanie’s amazing reporting out of Reuters to suggest that there is actually a sort of Damocles held over the whole institution, and who knows. So, I assume that’s what you’re referring to.

Benjamin Thorne 22:23 Exactly that. And what I think is increasingly coming, perhaps maybe kind of a web of sanctions that people are fearful to trip, and so they’re kind of over compliant. Yes.

Interestingly, that’s kind of died down a little bit—those conversations. It’s not saying they’re not going to come back, but it has kind of settled down a little bit, maybe since the very end of last year, in terms of actual sanctions coming out of the US administration. That certainly is a big issue.

And then you have eDiscovery, which is where some of the AI tools are in terms of analysis, and that’s, as I understand it, where Relativity comes in. Relativity, as kind of alluded to by Marta, some of this stuff comes from a domestic criminal justice setting. So this, for example, Relativity tools are used within the criminal justice system in the UK, for example, relating to police body cameras, also in-court video technology as well.

So, I think, again, going back to one of your comments earlier, Janet, when you were saying there’s this big claim that the ICC will become a global leader in accountability technologies, which was part of its strategic goals of 23-25. I mean, that’s just the usual ICC chest-beating, for want of a better word, perhaps. But I think it does also have real-world implications, a bit like sometimes it might over-claim to do things around victim participation.

I think, yes, you can just say, well, it’s just the ICC being the ICC, but it does make these big claims and people do interpret that. And maybe that is kind of, again, over-promising to go back to old issues with the ICC. But going back to Relativity, there are these connections between the domestic criminal justice system and that being kind of used. So, it’s not to say the ICC in the future won’t perhaps develop its own technologies or adapt those. But at the moment, a lot of what’s happening, from my understanding, is kind of being taken from the domestic criminal justice and being adapted or adopted in a variety of ways, perhaps slightly more bespoke ways going forward. 

And in terms of Marta mentioning military connections, my understanding of Accenture is a beast of a technology company. If you have a look at it, it’s always different. It has metaphorically lots of fingers and lots of pies, and they have a lot of contracts in the US military. I think my understanding is also NATO. So they’re involved in this. It also kind of sees that connection between military application and justice application as well. 

A few conversations I’ve had around Relativity with people inside the OTP, and again, these are informal conversations rather than formal research interviews, but it is that the systems they use are a bit more fragmented. So if we’re thinking around story analysis and disclosure, there are a few different systems, and they’re not all compatible with things such as relativity. 

Steph 25:11 I still have, although I understand what you’re saying, my very basic question is, what does relativity do? What kind of programme is it? Should I envision it as a kind of- Is it supposed to be like an operating system or like this kind of one-stop shop, what Microsoft does with Office? Is it the idea with Relativity that they offer some kind of suite of programmes that you as a legal officer or an investigator could use, and it includes, I don’t know, a word processor or a filing system and all these things, or is it AI specifically? Because I still don’t know what Relativity does. I understand the court management system. If you have a court case, I know there’s all those e-court things and you share documents and all those, but what is the product that Relativity is in a very basic sense? 

Benjamin Thorne 26:03 It is a kind of e-discovery, so I think that has a variety of tools. How it’s used at the ICC, again, I’m not certain from my conversations, it’s used to do with things such as facial recognition and object recognition, so if it sees a particular object in an image, then it can compare that to a similar object in a different image as well. As I understand it, it also has some text-based analysis. So again, with transcripts, for example, it can then map certain words as well. So those, as I understand it, in the ICC, that’s what it is. But yeah, to do with visual facial recognition, identifying words within text and transcript as well.

So the ICC use this, for want of a better word, acute language of evidence management platform, but even I think in that process, before we get to what we might think of the conventional analysis, such as facial recognition, there is also, my understanding is, there is AI involved in the sorting and cataloguing, and then that might potentially create issue or have issues relating to bias. Or also just things, if a document’s been titled with an odd title by whoever did it externally, is there issues there as well? So I think AI, yes, in the analysis, using tools provided by Relativity, but also the platform that also has AI, and I think we need to think about that as part of the kind of the AI terrain as well. 

Janet 27:39 Mata, quite a lot of what we’re discussing sounds to me very mundane, to be perfectly honest. I mean, I think we need to put something on the front page of our podcast to say we use AI, for example, for transcription. Sometimes even when I’m transcribing something in Ukrainian, it does an automatic translation for me, which I don’t necessarily think the translation’s perfect, but thank you. That’s good, isn’t it? So at least I know I’ve got the basics of what somebody has to say.

So I kind of think of this as like, yeah, that’s normal, and it’s just like an assistance tool in that sense. But I understand that like the last podcast that we did on AI, we specifically discussed the ethical issues. So, are there a lot of ethical perils, let’s say? I understood that one of the judges at a meeting that you were at described them as “ethical perils”—Julia Motok used that term. So, what do you think? What are the problems with this? 

Marta Bo 28:40 I think there are both ethical and legal problems. Because what we have been discussing so far, for example, are still uses of AI that require some sort of human verification, right? So, we’re thinking about facial recognition systems that helps skim through thousands of photos. And basically, at the end of this process, you would in principle have also someone verifying the whole process. 

So for me, the first problem in relation to the idea of human verification, that we would still use AI with human verification is basically that, often to maintain this human judgement and this human capability to understand what these systems are producing and are recommending to us, it’s quite difficult. Because there are proven studies that prove that there is cognitive bias when we use the systems that might lead to over-reliance on AI output. Now, this means that the errors that AI itself can produce, such as, for example, missing key information, missing exonerating evidence or exonerating information that the prosecutor has the duty to investigate, might be missed.

So, there are inherent errors in what AI can do and can produce, and if we couple this issue with the cognitive problems and the automation bias issues, this might lead to critical errors in investigations and decision-making. So, on the one hand, AI can help process massive amounts of evidence and a large volume of data, but my core argument is that these tools also introduce a serious risk in terms of missed identifications, misrepresentation of data, failures to detect crucial evidence, including exonerating evidence. Under Article 54 of the Rome Statute, the prosecutor has the duty to establish the truth and to investigate both incriminating and exonerating evidence equally. So, if an AI system leads investigators to overlook evidence or materials that might be exonerating, this obligation might not be fully met. Now, this is not a fully fledged violation of disclosures but could still have serious consequences for the investigations. 

Now, if we think about this and if we consider the transparency problem around what type of AI is being used, for which task, for which purposes, for which uses, basically, AI has been implemented, and if we consider that AI is often difficult to understand, unexplainable, it might be extremely difficult for the defence to understand and detect, for example, if something has gone wrong, if something has gone missing, and if there was a violation of the duty to investigate exonerating evidence.

So, the main takeaway for me is that we should not be rejecting the use of AI, but its use needs transparency around what has been used, and only after that we can start thinking about safeguards, guardrails, disclosure protocols, etcetera, etcetera, in order to safeguard the rights of the defence. 

Steph 32:35 My question is, can we ever expect transparency from AI systems as a kind of general rule? Because they are commercial systems, that kind of secret sauce is hidden and not public. It’s run by commercial companies. It’s not an open-source situation. So, Benjamin, take it away. 

Benjamin Thorne 32:54 I think these are still human decisions, whether there is transparency or not. Whether it’s in the source or in the tools and how those tools are being used, it’s still always, these are just systems and algorithms, if we’re going to boil it down to its essence. So, I think it’s always a human decision, choices made or not made, when it comes to transparency and other ethical-related issues. And I think a lot of this conversation around transparency comes to legitimacy as well. And if we don’t have transparency, it really potentially impacts on legitimacy. Legitimacy in two interconnected ways is the main way I see it. Legitimacy of the process of how AI is used, but then also legitimacy of the outputs that that process produces.

So, if we don’t have transparency of what exactly those tools are, how they’re being used, and also the algorithms were embedded within those tools and systems, I think it really raises legitimacy concerns. And so, I think, yes, we can say, oh, these are not open-source systems, but I do think, to some extent, there is a responsibility of institutions such as the ICC. Sadly, they’re not the only ones. But, I mean, there is a responsibility for them to engage more with transparency. These are kind of ethical-related questions, as I see them. And transparency is one of those ethical-related questions. And I think they do have a responsibility. I don’t think it’s good enough just to say: “Oh, we can’t discuss some of this because it could affect investigations.”Maybe there are instances where they can’t talk exactly about what they’re using or the algorithms behind it. There are times when I think they should be talking about that. And I think they hide behind this secrecy. 

I would just add to that they are not the only organisation that is quite secretive around how they use AI tools. And I think this goes back to, like I said, near the beginning of the podcast, that there is some kind of competition between different institutional organisations that are, in some ways, directly involved with documenting human rights violations that relate to core international crimes. So, that secrecy and lack of transparency go beyond the ICC. 

In terms of conversations I’ve had with a couple of defence councils working in the ICC, one of their concerns is that they don’t know how the OTP is using AI. So, again, it goes back to transparency. So, that is a concern for them. But they feel very much out of the loop as well. And that does raise questions to do with procedure and human rights. Also, things we talked about, that content itself that is AI-generated or modified, and then how does institutions such as the ICC own AI tools recognise AI-generated content. So, again, this relates partly back to something like the OTP link platform where external organisations or stakeholders can submit potential evidence, some of which may be AI-modified or generated. Then how accurately can the tools that the OTP is using identify that? I mean, that’s one issue, saying that Marta very accurately talked about how we have these different organisations, institutions, this ecosystem, as I put it. And she was talking about how the technologies they use are not always compatible with other organisations and institutions. So, that is a big concern.

I think another related concern to that, where evidence moves between different organisations and institutions, is what I refer to as the layers of AI in terms of transparency. Let’s say Eurojust, who are using their relatively new system, analysed some potential evidence and have used some AI tools within that, and then it gets submitted to the OTP, for example. There is no audit of any kind showing the different types of AI that were used, say, at Eurojust and at the ICC.

So, I think we have these layerings or layers of AI, but very little transparency about that in the specific context of how evidence moves between and across different related criminal justice, international criminal justice institutions and organisations. And I think a part of that, a big ongoing issue, is this lack of a more joint-up approach. There’s also, just in a very practical sense, duplication of efforts and resources as well, that we might have two or more organisations or institutions doing the same sort of analysis, which I think is problematic as well, particularly in terms of the resources, arm and efforts that these things take to do anyway.

I just want to pick up something that Marta said around human verification, which I completely agree with. Just to add to that a little, I think there’s one conversation around, there always has to be human verification. We hear this language of “human in the loop.” There has to be space for verification, human intervention, etc. But my understanding is that some of these institutions, keeping the ICC as an example, aresometimes a first layer of initial analysis that gets done with AI tools. Then the human investigator looks at that, but the human investigator isn’t necessarily looking at all of that digital information. They might look at all of the digital information that AI has identified as potentially relevant, but there’s sometimes a first layer that a human hasn’t looked at all the potential evidence. So, I think when we’re talking about verification, I think, for me, AI tools are useful when a human is involved throughout the whole process. Yes, this means it’s a long process, but then I think there are risks relating to biases that come within the AI tools, but also biases that potentially become embedded within the patterns of the AI analysis itself.

When investigators are looking at digital evidence using AI tools, but they need to see all the evidence, which some might say is an unrealistic call, but I think otherwise we’re having an initial layer of analysis where the human might not see a piece of potential evidence, for example, a piece of evidence that AI has disregarded because it doesn’t meet the algorithm or patterns it has. But that might be useful, whether for the prosecutor or perhaps for disclosure reasons. And I think in terms of transparency, I’ve asked, and I had a few conversations around, are there any intentions to have an OTP policy on the use of AI and the ethical use of AI within its work, which I think is much needed.

And my understanding is that there is not. And I think that continues to be, for me, deeply problematic. There’s not a willingness to have a policy on the ethical use of AI. If the OTP is going to continue to use AI, increasingly so, I think that is something that should be addressed. All of this, I think, is to do with transparency, lack of transparency, and to also not assume that AI always needs to be used in these processes. I think sometimes they have a very useful role to play. But I think also it’s important for investigators to always be asking, why use AI for this particular task? 

Steph 40:42 We’ve talked about a lot already, and we have touched on a lot of different aspects, but the kind of journalist in me is always looking for the more newsy bits. So I’m really- 

Janet 40:54 Shame on you. Shame on you, Stef.

Steph 40:56 And I’ve been hammering away at these- 

Janet 40:57 This is fascinating material, and I’m listening to it with great interest, but you go ahead and be a journalist. Go on. 

Steph 41:03 I want to ask, though, very specifically about these sanctions, because we’re still, we’re talking very specifically about this, much of this AI, if not all, is US-based. There is some China-based, but that has its own problems. With these ICC sanctions, how realistic is it that the ICC and other kinds of European justice institutions can keep using this Relativity software or these Microsoft-based systems and store potential evidence on US, you know, US servers of commercial companies that are, in part, beholden to what the US government orders them to do? 

Janet 41:43 And I’d say it’s not only relevant to the ICC, it’s also relevant to all of the other actors that Benjamin has run through, because they’re all having to think about whether they use US-based stuff. So, who wants to take this as a last question? 

Benjamin Thorne 41:57 I think some of this is that there is like an appetite, it appears in Europe, to try and move away from some of this. I think it does seem perhaps that, and again, perhaps talking within, but also slightly outside of the criminal justice context, but I think these things relate in terms of how we might be seeing organisations like the ICC moving away from these things. But there is an appetite to take more risks. I think some of the systems, and I guess I hear I’m talking a bit more about cloud systems rather than the tools, but those things are sometimes interconnected anyway.

Some organisations and also domestic and regional governments are looking to take risks with untested, at-scale products because of what’s happening. I think also, as Janet’s alluded to, there are a number of organisations that have to consider this, but I think sometimes, particularly some OSINT organisations who are working specifically on gathering evidence for criminal trials relating to atrocity crime. They’re well aware of the issues with engaging with US and perhaps Chinese tech. However, their priority is to gather and analyse this information. That is their primary objective. And sometimes this comes down to really practical things like resources, and maybe they haven’t got the resources to look at and invest at this moment alternatives, which I think is ideal to say everyone should be moving away from US and Chinese tech, perhaps. But I think if you’re a small-scale OSINT organisation, it’s a very different kind of calculation compared to the ICC. 

Just on the ICC and Relativity, a lot of Project Harmony, a big part of it was funded by the European Commission, I think it’s around seven million euros, and also some voluntary donations by state parties. So there is a question there: If the ICC is going to move away from Relativity, how are they going to pay for it? I mean, maybe they’ll find a magic money tree or something similar, as they sometimes do, but that is a consideration, I think.

So even for big organisations like the ICC is how they would fund the move away. From my understanding, the contract with Relativity ran from 22, and it’s due to expire 27. I’m not sure if that’s been renewed. And again, maybe one of you knows more about that. And also my understanding is that the money that came from the European Commission and voluntary donations from states was not enough for Project Harmony. So, they had to kind of dip into the kind of the regular budget a bit for that as well. I think they are both at the small scale, there’s different kinds of considerations whether to move away from US tech. But also for the ICC, they’re also, I think, perhaps slightly different, but also financial considerations. But we don’t know, I mean, I think is the bottom line here, when it comes to ICC, at least, because it is so closed. We talk about transparency in terms of the tool, but just transparency, the ICC, I think, is maybe something we would maybe all to some extent agree upon the lack of transparency. And that, I think, becomes a big issue when we’re talking to things around tools which have direct impact on the admissibility of evidence that could affect the prosecution. 

Janet 45:19 Marta, why don’t you take us a bit inside the black box of the ICC, or wherever, and tell us more about what we need to know.

Marta Bo 45:26 I think a bit at the more higher level, what is important to think when institutions start incorporating these technologies is that they don’t really buy a product, a thing, but they buy a service. And this creates long-term dependencies, in terms of also, if we think about the updates, reconfigurations that are necessary, and the expertise that must be continuously supplied by AI suppliers to the end consumer. So over time, this really creates structural reliance on private companies.So this is also, you know, like blending what a criminal justice system is, and who has control over core tasks of criminal justice and investigations. So, of course, one solution could be European technology, technological autonomy. And I think we are hearing this a lot in the defence context. Europe has to rearm to develop. AI is now at the core of rearmament efforts within Europe. And you could make the same argument for the judiciary, but this would require an enormous amount of expertise, a massive amount of investment.

So I think to think a bit more on the shorter term, what is needed is internal knowledge, internal capacity within institutions, such as the ICC, to have internal expertise, in-house expertise, to understand the limitations of this system, and to understand at least the basic elements of how they work. Okay, explainability is a core problem of these systems. But in basic understanding of what are the inputs, what are the data that has been fed into the systems, how output are produced, so that users have a meaningful understanding of it, I think it’s necessary also to kind of decrease reliance on industry, especially since we are going more and more towards co-development of these systems, which then requires a relationship of trust with industry and training of the end users, which means ICC staff and investigators on how these tools should be used.

Janet 47:56 We’re definitely going to have to bring you both back in because we had another series of questions that we’re not going to get to. But we’re just going to ask our final question. We’re not going to ask all of them. The last one always is, is there anything that you have been reading, or listening to, or watching in the last wee while, either within the field or something completely different to get away from it that you would like to share with the audience that you think it would be interesting for them to know about? Marta, why don’t you kick us off? 

Marta Bo 48:26 So my final point, since we’ve been discussing many applications and very limitedly AI assistance, for me it’s just a final comment on how cautious we should be, investigators should be, about the use of chatbots and AI systems, because all the risks that we have been discussing so far, especially around over-reliance, are more and more present with this agentic AI new trend, and judiciaries around Europe have started using chatbots and AI systems for quite a trivial task, like a draft part of the judgement, but there should be much more awareness and training around the use of these systems. 

I think my final point is about a risk that is often not discussed enough, but it’s de-skilling, essentially, and it is highly concerning. To me, there are already many studies around how the use of AI assistance basically de-skills us, and slowly we lose our brain capacity and brain capability to solve even extremely easy tasks, so I think the problem of de-skilling should be put there.

There is a WIRED article from today, actually, that is very much about how actually it would be much better if AI assistance would tell us how to do things instead of giving us fully cooked replies, because this has an effect on cognitive functions, and if we think about the older generation of investigators and judges, yes, they can still perform tasks that they’ve been learning from here, but if we think about the young generation of legal officers at the ICC that have just joined an institution and they start using these tools without having first built their own knowledge on how to do investigation, how to do the mapping of cases, how to do these things, I think this is very dangerous. 

Janet 50:41 What about you, Benjamin? Do you want to add in?

Benjamin Thorne 50:44 Just to say, I think Marta’s point about de-skilling is one of the most important things, I think, going forward. I’ll just quickly respond to what I’ve been reading in this context. 

In terms of AI, and maybe it’s come across in my responses to some of your questions, a lot of the literature I engage with is the kind of more critical literature on AI, both in the context of international justice but also outside, and then thinking about some of those arguments as made more broadly around ethics and AI and seeing how they might apply to what we are talking about, international criminal law and justice.

There’s one book I’ve read recently and would recommend to anyone who’s interested in AI in this context or outside, is a book by Shannon Valler, who’s an ethics and AI philosopher based at the University of Edinburgh and her book, The AI Mirror. I don’t know if any of you have read it or not, but it’s AI Mirror: How to Reclaim Our Humanity in the Age of Machine Thinking. She talks a lot about choices when it comes to how governments and institutions are using AI, kind of at the design stage and how AI is designed, and that’s about choices for it to act and be certain ways, and there’s other choices that could be made.

So in terms of thinking perhaps critically about some of these conversations we’re having today, that’s a book I’ve read and I would recommend. 

Marta Bo 52:02 Which is another way of saying, let’s be concerned about bias. And I think we have spoken about it, but not so explicitly during the podcast, but a lot can be reconducted to the bias problem. So what Benjamin, you discussed at the beginning about the bunch of investigators and people involved in investigation; we have also to think about how all this preliminary material that has been documented, collected by NGOs, then is also used as training data for these systems, and how then the bias can be essentially fed into the systems and be replicated over the course of the proceedings. 

Janet 52:52 We’ll just end it by saying thank you so much, and sorry for having to cut off the conversation. I mean, there’s so many aspects to this, but really Marta and Benjamin, thank you so much for coming on and giving up your time and explaining some of the issues to us.

Benjamin Thorne 53:02 Thank you both very much. 

Marta Bo 53:03 It was a pleasure. 

[OUTRO MUSIC] 

This was Asymmetrical Haircuts, your international justice podcast, created and presented by Janet Anderson and Stephanie van den Berg, in partnership with the Hague Humanity Hub. Music is by Audionautix.com. You can find show notes and everything about the podcast on asymmetricalhaircuts.com. This show is available on every major podcast service, so please subscribe, give us a rating, and spread the word.Stay safe and enjoy your day.

Disclaimer: Asymmetrical Haircuts is produced as a podcast, meaning it is meant to be listened to and not read. Because of this, we recommend that you listen to the episode while reading, because the written word does not do justice to the emotion or tone used by our speakers. However, because we recognise there might be bandwidth issues or you might be using a hearing aid, we have provided written transcripts for all our available episodes.

[INTRO TUNE]

Steph 00:09 Hi Janet.

Janet 00:10 Hi Steph.

Steph 00:11 Earlier this year, when I was just getting back to work after some medical stuff that kept me at home, you sent me off on a very long day to chat to a bunch of different people.

Janet 00:23 Yeah, I’m sorry about that. I couldn’t get back to the Netherlands in time to help out, but I thought that it was kind of a nice way to ease you back into the business, wasn’t it?

Steph 00:33 It was, and it was nice to see everybody, and it was nice to know that I could still walk around all day and actually do this thing and do this job, so it got me a little more confidence that I will be alright in the end.

Janet 00:45 And what actually was it that was going on?

Steph 00:47 Well, I was going to the conference of the War Crimes Committee of the International Bar Association, so it’s basically a day of panels and talks, all with super interesting people, many people we’ve had on the podcast or that I now want on the podcast, who talked about international law and international criminal proceedings.

Janet 01:06 Ok, we’re going to get into the detail in a bit, but just from your kind of perch-like position, sort of at a distance from it all, what would you say were the main themes that you gleaned from it all?

Steph 01:20 There’s a couple of different strands to pull out. There was a lot about AI and technology and how that changes international justice. There was, of course, a lot about the perceived threats against international justice and the position of the US and all these things.

In the coffee chat in between, it was all about what was going to happen at the ICC with Prosecutor Khan, where the investigation—because at the time the investigation into the alleged sexual harassment was still ongoing. Sexual harassment claims that he denies, by the way.

And I think there was a lot of excitement around universal jurisdiction and universal jurisdiction cases.

Janet 02:00 Yeah, you set me the task of listening to all of this and editing some of it. Something that struck me, maybe we’ll repeat this again a bit later, is how closely our podcast mirrors what is going on in these people’s brains—the people who are doing the investigating, the people who are doing the academic work to examine what’s going on. It really does feel like our podcast. There was nothing that came up in this that I thought, “Wow, I’ve never heard that before.” It really did feel like, yeah, that’s our lifeblood too, us too.

Of course, we were very happy to have been given access by the International Bar Association’s War Crimes Committee. They even set up a separate office for you to use. So, should we hear some of the extracts from the interviews? Where should we start?

Steph 02:54 Absolutely. It was very lovely. I had a nice little office tucked away that I could have all these interviews in. And let’s kick off today’s kind of, I don’t know what the word is anymore.

Janet 03:06 Smorgasbord. Yes, smorgasbord. That’s the one I always use when I have no idea what to say, that I’ve got a range of different stuff on offer.

Steph 03:14 Let’s kick off today’s smorgasbord of comments with Alex Prezanti. He’s a barrister at Artemis Chambers, and he’s the director of the State Capture Accountability Project. And Polina Levina, a UN official who investigates financial crimes in connection with atrocities.

And their panel was about how corporate financial and legal actors are increasingly implicated in atrocity crimes. And by that, they kind of mean, you know, where are people earning money and supplying weapons or facilitating alleged perpetrators from evading sanctions against them? And you’ll hear that I keep asking the same question to kind of drag out of them what they really feel about what’s going on in international law. And there’s a lot of negativity.

Janet 03:58 Yeah, I mean, let’s be clear, there is a lot of bad shit going on in our line of work at the moment.

Steph 04:05 But we thought it would be interesting to pick up also the points of light in what’s going well and what they expect more from. So here is first Polina, and she is followed by Alex.

Polina Levina 04:16 What is going well is creative approaches to accountability, among them financial investigations. Financial investigations are like a Swiss Army knife in international crimes accountability processes. The reason I say this is because, in my experience leading a financial investigations team at the United Nations, there are four things that financial investigations allow you to do. The first is that if you start with the crime rather than the assets of the perpetrator, you centre victims and the harm suffered. The second is that it allows you to expand jurisdictional opportunities by looking at who is enabling the crimes, where they are holding their assets, where they’re operating, where they’re residing. The third is that financial evidence is great linkage evidence. So, it strengthens your core international crime case. And the fourth is that from the get-go, you’ve built in quantifying the harm suffered, as I said, which then allows you later down in the legal process—if you get to the phase of reparations—you have the evidentiary foundation to quantify what the extent of the harm suffered is and the compensation needed for the crimes perpetrated.

Steph 05:41 And that’s your light point. Is there anything that you can point out specifically that we saw in the last year in this realm, or a kind of investigation that you can talk about? Which, of course, there are a lot of things that you can talk about, I’m sure. But is there something you can highlight that happened in that realm that we can look at?

Polina Levina 06:00 One of the major international legal developments in the last year has been the Gambia versus Myanmar case at the International Court of Justice. What’s been very interesting about that case is that both parties relied quite extensively on the evidence collected by the independent investigative mechanism from Myanmar. And within that pool of evidence was a report produced by the financial investigations team of the mechanism focusing on the destruction and dispossession of Rohingya land and property. But essentially, what it did was lay out the full chain of evidence from the destruction of Rohingya villages. Their levelling, raising the construction of security bases using evidence such as budget allocations, corporate documentation, and extensive open-source evidence. And named the corporation that was involved in the construction of those security bases, often tracing the exact shape of the Rohingya villages that once stood in those areas.

Steph 07:02 In a way, it’s like the financial or having the receipts- it’s a bit like—I love my ICTY precedents, and so I remember that in the Srebrenica cover-up case of the reburial, a lot of the evidence was the receipts from fuel from the trucks and the allocations in the military about giving extra fuel so you can have diggers. And then they would create these tertiary and even quaternary mass graves because they’re trying to hide the evidence. So, you’re saying that this is also in the Myanmar case at the ICTY, which I haven’t—I mean, I’ve heard about it—but a lot of the evidence that we see or that we report upon is, of course, the kind of eyewitness evidence. And I hadn’t quite clocked that there was this financial evidence underlying. So, thank you for pointing that out.

Alex, is this also kind of your light point? I know there’s a lot you can’t talk about. So, is there something you can say about where the positives were in the past year?

Alex Prezanti 08:00 Well, to me, the positives don’t really come through international institutions or international law in this past year, but really the domestic jurisdictions and efforts by national courts or national authorities. So, I mean, if we take a bit longer than a year, I think that’s a recognition by Western governments that they have leverage over financial systems, over supply chains, and they can use that leverage to make an impact on war crimes or conflicts themselves. And that’s been used, of course, extensively in the war and Russia’s aggression on Ukraine, but also has been used in many other contexts. In the context of accountability, I would say that the Lafarge verdict in France is probably the most interesting development in the past year.

Steph 08:55 I’m going to give a bit of context here, which is that Lafarge is a cement company in France that was convicted and fined for what was it- they were giving ISIS money to protect or to keep their cement factories running in ISIS-held territory.

Alex Prezanti 09:12 That’s right. They were effectively paying a bribe to ISIS, not only ISIS, but also some other terrorist organisations, and they’re effectively paying a bribe. And they were doing it not to preserve the interests of the local communities. They were doing it because—and we know this from evidence in the trial—they thought that there would be a lot of scope for future profits from reconstruction in that region. And so it was important for them to stay in the market. And that’s why they paid the bribe.

And what’s really interesting about this development is that, for the first time, I mean, we’ve had cases, most notably the Lundin case in Sweden, where CEOs and managers are accused of crimes. But here we have the actual corporation that is held to account and fined. Okay, the fine may not be huge, 1.25 million euros.

Steph 10:10 Which is probably pocket change for Lafarge.

Alex Prezanti 10:13 Correct. But I think that it’s a positive development in that it is now out there that a corporation like this has to take into account more than just profits for its shareholders, but also has to take into account the impact that it’s doing. And if it doesn’t, then it could face accountability.

Steph 10:34 And the Lundin case, I’m just going to Stephopedia all of this—which we will link to all these cases, of course, also in the show notes. The Lundin case is a Swedish oil company that paid local militias to protect oil fields in Sudan, effectively contributing to these militias potentially committing crimes.

Polina Levina 10:53 Can I just add that, in addition to holding the corporation responsible, I mean, the two former executives of Lafarge were arrested in the courtroom. This 69-year-old former CEO and his former deputy, who is 75 years old, each, I think, were convicted for years. Which, as corporate executives, to face arrest and imprisonment, feels ground-breaking in this moment.

Steph 11:19 Is that also your kind of most interesting development in accountability?

Polina Levina 11:24 So, it’s very recent. Of course, there’s more to follow with the Lafarge case, because the next phase of it will specifically look at crimes against humanity. So, from an international criminal law perspective, it definitely feels like a very significant moment and one that is maybe the start of some very exciting follow-up developments.

Steph 11:45 I ask the same questions of Lindsay Freeman, who’s at Berkeley Human Rights Centre, and Yuval Shany, who’s been working on the kinds of charters that AI companies are coming up with to regulate their work. Lindsay has long been at the forefront of open-source intelligence and thinking about how civil society can access social media, and now understands the new challenges that artificial intelligence poses, or at least we hope she does. Their panel was about ethical guardrails for AI and within conflicts and the new opportunities that there also are for civil society, but also militaries, combatants and despots. So, the whole mixed bag of what AI brings to all the different actors on the battlefield, not only the kind of people who want to do bad things with it, but also the people who would potentially use it for good.

So here is Lindsay, and she’s followed by Yuval.

Lindsay Freeman 12:40 Well, I am really excited about the technology and what AI brings to bear on our work. I think it has tremendous applications. It does actually kind of feel like in the last two weeks, they’ve solved the digital evidence issues I’ve been talking about for the last decade. I don’t know if that’s overstating it, but really, AI is incredibly empowering in allowing you to code your own tools that are fit for purpose in a way that we just weren’t able to do before. And there’s a lot of potential in terms of what I’ve seen. I’ve really had some jaw-dropping moments even in the last few weeks—“Oh, wow, what we can do now.” It really is a force multiplier. So, the sort of speed of delivery and enforcement, I think we could hugely close that gap with the responsible and ethical use of AI in those tools. I also think that trying to be optimistic about the field, it may need some disruption.

These older institutions in the post-World War II period made a lot of sense and held peace for a long time, but were they working for everyone? I think that’s a really fair question of maybe the UN wasn’t equal to all states, and not everyone was happy with it—all of these institutions. So I think the disruption, while the way it’s happened has not been great, it maybe creates new opportunity for something that needed to happen and to build something better.

Steph 14:23 Yuval, do you see bright spots, and what are they? What’s the thing you look at and think, Oh, okay, this gives me some hope?

Yuval Shany 14:31 Yeah, well, I see some spots, some of them have some bright shades. I wouldn’t exaggerate how bright they are, but I would say, well, the language of international law is still relevant. So even states that do not practise international law still go about the effort of trying to, because it’s still to explain or to justify their conduct on the basis of international law, because it still serves A, as a common language of legitimacy in many realms and B, for some states, it is still an important framework. So not all hope is lost.

I would also say that we are seeing, in some respects, international law being more dominant than before in many areas of the public discourse. And we are seeing a lot of activism, which invokes the language of international law. And with regard to technology, I would- while technology is certainly- we have a mixed record with technology, because law is always struggling to catch up with new technology. And international law has not been doing a great job so far in this regard. I mean, even domestic law is very much behind. International law, with its cumbersome decision-making processes, is even farther behind.

But I would say that in this realm, there are also some reasons for optimism. One is, I think, that this development comes at a time when there is greater awareness of the role of companies and the responsibility of companies. And hence, a lot of the activism and a lot of the political pushback is directed not at governments, but at companies. And we have seen, in this regard, some companies step up and integrate international standards, human rights standards, into their policies—far from perfect. But having, I mean, a company like Meta, for instance, integrating human rights policies into its business policies and establishing an Oversight Board, which operates as a sort of Facebook Supreme Court to monitor human rights—an imperfect experience; there is also criticism. But I think this is something we have never seen before in terms of the ability of international law and human rights law specifically to penetrate spaces that were before closed to it.

And with regard to the point that Lindsay said about the promise of AI, of course, AI could be a force multiplier for many good projects, such as resolving world hunger, such as promoting economic development, such as dealing with lawlessness. We are still, I would say, at an inflexion point where it’s not obvious whether these positive applications would outweigh the negative, because it’s also potentially a force multiplier in the opposite direction. So, there are opportunities on the table. The question is whether we as a human society would be able to make use of these positive opportunities.

Steph 17:29 Lindsay, you already mentioned a kind of interesting development in accountability, I would say, by essentially—I think it’s called “vibe coding”—kind of being able, as a layperson who doesn’t programme, to kind of tell these models what kind of tools you want to make. Is that something that you would lift out as the most interesting development in accountability? Or are there other things you want to mention?

Lindsay Freeman 17:55 I think that’s interesting. One caveat I will say is that I do think you need some baseline technical knowledge to do it and do it well. And on my team, I have some very, very technical people who can look over the code. So that is one of those things where there could be danger of people who don’t know what they’re doing or using it. But I think it does have huge potential. And if you have that sort of baseline technical knowledge, it does kind of feel right now like the world is your oyster and you can do some really interesting things. So I think, you know, people have talked about this concern of AI replacing critical thinking. But I also think it is prompting new creativity and critical thinking. If you really get creative about how you can use it and start seeing it as this tool that can work for you and think outside of the box, it actually can be very good for enhancing your thinking and learning new ways to think.

Steph 18:59 Yuval, is there something you want to lift out as an interesting development in accountability that you’re looking forward to being developed further?

Yuval Shany 19:07 Well, I think in many respects, human rights law has been working very much downstream, trying to deal with violations as they happen. And I think a central ethos was protecting victims. But that’s a bit Sisyphean. I mean, there are so many violations. So, your ability to actually deal with violations at the root cause level and actually stem the problems was quite limited, especially given the limited leverage that human rights enforcement bodies have vis-à-vis states, etc.

With technology-driven violations, it’s a bit different. I think, actually, we have a very limited capacity to deal with downstream violations because of the scale. But we may have a better capacity to deal with upstream issues. And if so, if we can get the big companies—and there are still, I mean, there are a few, but still relatively, I mean, the numbers are still manageable. If we can get the large companies on board and have them integrate, for instance, human rights standards into the models, this is something that could have a very significant impact on the world of human rights going forward.

So this is, again, a very critical moment. I must say that I still haven’t seen this happening so far. So even Anthropic, who’s been cast as the good guy in the recent drama of the Department of War saga regarding the military use of the Claude Code. Even Anthropic, when you look at their very recent constitution, which is this policy document, which is actually, whose audience is actually Claude, right? You would look very difficult for the words human rights and you will not find them. It’s not mentioned once in the document. I mean, there are other things that are, I mean, some aspects like privacy are mentioned. Safety is mentioned. The system is instructed not to kill humanity, not to exterminate the entirety of humanity. But we still haven’t seen…

Steph 21:07 That’s very broad brush strokes.

Yuval Shany 21:08 Sorry?

Steph 21:09 That’s very broad brush strokes.

Yuval Shany 21:11It’s a bit of broad-brush backstop. But we haven’t seen so far a full-fledged integration of this body of norms. We’re still working with frameworks like “AI safety”, “AI ethics”, and “responsible AI,” which are good, but they do not actually dispose of the need to also integrate human rights head-on into the system. So again, the opportunity is there. We have still not generated sufficient momentum to realise this opportunity. In terms of my own work, this is actually what I’ve been working on for the last couple of years, trying to develop at least human rights formulations that would be amenable to implementation in these sorts of upstream contexts.

Janet 21:56 I found it really interesting to listen back to all of that from Yuval and from Lindsay because of the two podcasts that we did last month and a little bit earlier. The first one was about targeting artificial intelligence and the ethical issues of having machines making very fast decisions rather than humans about who should be targeted. And the second one was about how investigators are now using AI, which can maybe help make more connections. But there are so many additional issues to be considered to do with interoperability, you know, between different AI systems, and defence rights. I mean, what happens in court when you present material that’s been sort of developed in particular ways? So all kinds, again, of legal and ethical challenges. So for me, sort of listening to that discussion between the two of them helped me, maybe, I don’t know, balance out a little bit the outlines of the issues?

That’s not to say, though, we won’t be critiquing AI more in the field. I think there are still many questions to be asked. We have lots more pods planned on this new element in this field.

So, who else did you manage to speak to?

Steph 23:13 Well, there was also a panel on climate change in relation to conflict and environmental crimes increasingly being used as a weapon of war. This is a subject, you know, that you and I have also talked about a lot. We did a lot of-

Janet 23:26 Oh, my goodness. So much. So many pods.

Steph 23:29 So many ecocide pods, including the ICC, Office of the Prosecutor’s own policy on climate-related crimes.

Janet 23:35 Yeah. And we’ve also done stuff specifically on ecocide, which at one point was considered potentially as a new crime for the ICC’s Rome Statute. Not so sure about that. But maybe most importantly, we did- you and I both spent quite a lot of time around the International Court of Justice advisory opinion on climate, partly because so many states got involved again in that. And now that’s come out, and there are obligations on the states to protect their citizens and the natural environment.

So, who did they have to speak on that, or who did you manage to get from that panel?

Steph 24:14 I spoke with Maksym Popov, who is now the first secretary of the Ukrainian embassy in The Hague, but before was at the Ukraine Office of the Prosecutor and worked on the Nova Kakhovka Dam situation. And there was Charles-Edouard Renault, who is a partner at the French law firm De Gaulle, Florence.

I want to ask you specifically both what you are working on and what we should look out for in the coming year in development.

Maksym Popov 24:44 I had the privilege to work for the last three years, starting from the full-scale invasion in 2022, in the Prosecutor General’s office as an advisor to the Prosecutor General. And I was in charge of strengthening the capacity of Ukraine to investigate and prosecute wartime environmental damage.

So basically, we were at the forefront of developing the practice and the case law of individual criminal responsibility for the wartime environmental damage. And right now, when I moved to The Hague and started my career in the embassy as a diplomat, I still, at heart, continue as an expert to help our Ukrainian colleagues on the ground to do this job. And I would say that this run really changed the global perspective and value of the natural environment from the perspective of different actors.

So basically, at the end of 2025, the Office of the Prosecutor of the ICC, they finally finished the work on the policy of environmental crimes under the Rome Statute. And we believe, and we know for sure, that partly they progressed in this work because of Ukrainian endeavours and because we spoke so loudly and did our job well in terms of doing this investigation and prosecuting domestically.

Steph 26:16 Now that I have an expert on this in front of me, the big flagship case about that, that we also did a podcast on, is, of course, the Nova Kakhovka Dam. Where is that case at the moment? Are there other cases in Ukraine that really, really we should know about, but we’re all looking at the dam?

Maksym Popov 26:33 Yes. So, as for the Kakhovka Dam case, the Kakhovka Dam was destructed by Russian militaries on the 6th of June, 2023. That was almost three years ago, and the case is still in the pretrial stage.

I believe it’s probably the most severe environmental disaster happened on European continents during last decades. So there are a lot of efforts allocated to collect evidence on both sides—war crimes- and also the second component of the qualification is ecocide. We have no criminal code specific article that prescribes criminal responsibility. So, it takes a while to collect all the evidence and substantially prepare the case for the court.

As for the other cases, it almost seems to me that 300 cases have been registered of wartime environmental damage in Ukraine. The biggest one, there are five other dams that were attacked. Some of them were destroyed, for example, Oskil Dam, that were partly destroyed in 2022. It’s in the Kharkiv region. Also, the second category is attacks against nuclear power plants and nuclear objects. So, we have a scientific nuclear institute in Kharkiv that was attacked by different types of weapons in 2022, more than 70 times. There is a storage of nuclear materials. Hopefully, these weapons, missiles and drones didn’t reach the specific storage, and there was no contamination. But we charged the Russian military on the ecocide article basis because it prescribes that ecocide in Ukraine is also any actions that may cause environmental disaster.

The second example is the occupation of the Chernobyl nuclear power plant at the very beginning of the full-scale invasion. And also attacked by the Shahed drone during the confinement in February 2025. So, we also have a case registered by the Ukrainian authority that is right now being investigated and prosecuted.

And so the first case about the Kharkiv nuclear facility. So, this case is already in court. So, we expect to have a verdict soon.

Steph 28:46 Thank you. We’ll look out for that.

Charles, you are also looking very much at these weapons groups. Is there work that you’re doing that we should look out for in the coming year? Something to come out with that or something else that you want to flag up?

Charles-Edouard Renault 29:02 Perhaps a very quick specification. It’s interesting to see within the banks that are asked to lend money for rearming Europe that defence has become, quote unquote, a resilient activity. So, I think more globally it means that our society, our Western society and our European society have indeed to become resilient. Took really example of the way the Ukrainian people have faced these terrible situations in 2022. We need more and more to be resilient for the coming years.

And based on that, I think there are probably two main directions. The first one is accountability. It’s, in fact, linked with what we already said about the immunity. It means that we shall have a judicial institution in a position to fight back and find the liability and the guilt of all kinds of aggressors. You have the standard war abroad, and you also have the hybrid war within the territory of the European Union, and so more and more we have to use legal ways to fight back at any time.

I think that the second we must be ready to chase any rogue foreign state and be ready to deprive them for this principle of immunity which is not an absolute principle anymore and that’s a notion that under case law has evolved very slowly but has indeed evolved, and I think that in the coming year will come to an era where any state war aggressor could be deprived of that immunity in court.

And the second thing I think we should look into is this development, this notion of ecocide—and it comes more and more present within the authorities, state authority and legal authority, and I think we shall really take a good look at the International Court of Justice judgement of February 9th of 2022. It was a case between the Democratic Republic of Congo against Uganda, and the High Court considered that Uganda was indeed responsible for damages to nature by overexploiting the resources and by destroying fields and also exploiting protected wildlife. I think this is a case precedent that’s going to be used to strengthen that very concept of ecocide in other regions of conflict.

Janet 31:55 I’d love to do a whole series on different things that have come out of the International Court of Justice—some of which I think many people have forgotten about—but they are actually big judgments sometimes and sometimes big opinions. And I’d really like to look at what kind of effect they have actually had because I think these are long-term things. And you know what we’re like as journalists—you know it’s now, has to be now—and it would just be so nice to have a little bit more space to really think long-term, you know? What have been the implications of something that was decided five years ago, ten years ago, etc, etc? So, if anybody would like to sponsor that, you know, you never know.

Steph 32:38 Get in touch, yeah.

I also spoke to a friend of the pod, Milena Stereo, and Natalia Kubesch. Their panel was ‘Justice Running on Empty,’ which really kind of dove into the fairly bleak picture of the international justice mechanism facing a chronic funding crisis, and they spoke out about apparent duplications, overlaps and who loses out in the fight for global attention.

Janet 33:06 Ooh, yikes. Did you actually dare to ask them for their points of light? Were you so contrary, Stephanie?

Steph 33:14 Well, I mean, I asked for, you know, what’s going wrong. After they finished explaining all of the kinds of problems with that, I did ask for their points of light, and they had quite a few, and they were quite uplifting in the end.

So here is Natalia.

Natalia Kubesch 33:31 Well, I think it’s fair to say that 2026 has already been pretty relentless, so it can be quite hard to pick out the good things. But maybe one development where we are continuing to see positive movements is in the use of universal jurisdiction across different countries.

For those of you who know the resource, the Universal Jurisdiction Annual Review is due to be published, and it clearly shows a trend of more states using universal jurisdiction in lieu of international justice mechanisms and also in more creative ways. So maybe just to give you some figures, in 2025 we saw 160 investigations ongoing. We saw 28 new cases being opened and 29 convictions.

And some of these cases actually established legal precedent. So, we saw Finland convicting a war criminal from Russia in what is so far the first conviction relating to the war in Ukraine. We also saw Germany beginning a trial for starvation as a form of warfare, and then in Sweden, the first conviction for genocide for the transfer of children involving Yazidi women and girls.

So overall, we think that’s a very positive development, maybe signalling a shift of the epicentre for international justice from the international institutions more to domestic courts.

Steph 34:47 And we have the final word from Milena.

Milena Sterio 34:51 I think that despite the fact that we’re witnessing significant violations of international law, at the same time we’re seeing almost like a return to international law in the sense that state world leaders are increasingly calling for a respect of international legal norms and increasingly saying that there is a set of things that they will just not do because it violates international law. And I think that’s a positive development.

I also think that we’re seeing among international law scholars almost a unanimous call for the respect of the international legal order, as we have witnessed it since 1945. And so, I think that despite the fact that we’re witnessing violations, at the same time we’re seeing this rhetoric of the importance of international law—that we need to preserve the international legal order, that it would be a dangerous world if we all said, “Well, let’s just do as we please and abandon the rules as we’ve known them since 1945.” So, I am on that front more optimistic, perhaps and hope that I do think that the international legal order will survive all of this.

Janet 35:57 So much, like I said, right up at the top seems to reflect on what our podcast is all about. Like all these universal jurisdiction cases that they refer to as being very positive, and we’re doing this continuing universal jurisdiction series, asking what different jurisdictions are up to and how things are developing there.

Steph 36:25 Yeah, my main takeaway from all the positives was that universal jurisdiction is really gathering pace, not only for war crimes but also for the kind of humanitarian law linked to companies, and those are finally being held to account. We recorded so much more than we can actually broadcast now, but we essentially chose to play one big answer for each person, plus a little more, because it would have gone to a two-hour episode if not.

Janet 36:58 And, I mean, you’d said already with the big themes for you, but out of what we didn’t get to play, was there anything that you want to remember from what people are working on? Anything that you say we’ve got to do a podcast about, or maybe any of the other common themes? I noticed specifically the Lafarge case in France and the amazing implications from that. It didn’t just come up in one conversation; it came up in several of them. So that’s really resonating in our community. But anything that you, particularly what we didn’t manage to use in the clips?

Steph 37:36 I think the Lafarge was really big because it had just also been handed down. I thought something that made my ears prick up and think that it was really interesting is that there was about to be a French, I think, Supreme Court ruling on the use of Agent Orange in Vietnam as an environmental crime, which the French lawyer spoke about. I thought it was heartening because it was not only so many years ago, but it also involved kind of themes of universal jurisdiction and countries’ responsibility for corporations producing these chemicals used in alleged crimes, and that even so many years post-date, they could still do these cases. So, I thought that was really interesting.

There was another speaker that we’re also trying to have on the pod who had some really interesting things to say about AI and using that to translate victim statements, which, really, I think I immediately messaged you and said we must have. So those are the things that I really remember from that.

But also, it was a long day, and I was quite tired. It was my first actual day doing full work again.

Janet 38:47 Well, I say thank you to you for doing all of that work on our behalf, but also specifically thank you to Elsa Wyllie, Kirsty Sutherland and Daniela Gavshon, who are all members of the IBA War Crimes Committee, and they really helped facilitate the fact that we were able to have a smooth recording.

Steph 39:08 Yeah, and I would really like to thank Leon Kopitz and Julia Brown, who are our “infatigable” interns who are both studying and were both doing exams for their LLMs at the University of Amsterdam. And they were really running around and being my arms and legs and helping me on the first day back. So I was really, really grateful for all their help and support.

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This was Asymmetrical Haircuts, your international justice podcast, created and presented by Janet Anderson and Stephanie van den Berg, in partnership with the Hague Humanity Hub. Music is by Audionautix.com. You can find show notes and everything about the podcast on asymmetricalhaircuts.com. This show is available on every major podcast service, so please subscribe, give us a rating, and spread the word.