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Episode 161 – Seeing Isn’t Believing: Deepfakes and Evidence with Yvonne McDermott Rees and Anne Hausknecht 

[INTRO TUNE]

 Asymmetrical haircuts Justice. Update with Janet Anderson and Stephanie Vandenberg in partnership with Justice info.net. 

Janet: 00:38  Hi, Steph.

Stephanie: 00:39  Hi, Janet.

Janet: 00:40  So we are in the middle of doing a whole series about artificial intelligence, and we thought it would be interesting to go back to somebody who we’ve had on before about evidence, particularly.

Stephanie: 00:54  Yeah, we had Yvonne on to talk before about how judges were learning about the use of social media in trials, and I think we then talked about Bellingcat and we had the Judge Joanna Korner say something about that.

Janet: 01:08  Yeah, that was fun. I mean, it showed how sceptical a judge can be, but also how an expert witness can kind of help them along and explain new and unfamiliar stuff and really get them to accept user-generated evidence. 

Stephanie: 01:22  But we’re now living in a world of AI slop on social media, and we kind of see everything, and nothing is believable, and judges are also human beings. So, how will reality be assessed in courts and in international trials from now on?

Janet: 01:38  Our trusty source, as mentioned already, for user-generated content or – I don’t know what I was writing there, “user generated concrete” no – user-generated content and evidence is Yvonne McDermott Rees. Hi, Yvonne.

Yvonne McDermott Rees: 01:56  Hi, Janet. Hi, Steph. Great to see you.

Stephanie: 01:59  Yvonne is now at Queen’s University Belfast School of Law, and she’s still doing experiments with courts and lawyers, and jurors even, God forbid, and testing how people understand standards of proof and the limits of expert evidence. And we will put a link to one of these in the show notes, where there is a great team of prosecutors and defence, and former ICC judge Howard Morrison, put in the hot seat, where they’re testing people’s reactions to pattern-recognition evidence. 

Janet: 02:27  I don’t even know what that is, Steph. I mean, I wrote it down. It’s copy-paste. So maybe we’ll come back to that.

Stephanie: 02:34  Let’s put a pin in that and ask it later. But it’s part of the “TRUE Project,” where Yvonne is the principal investigator, and I’m sure she will tell us much more about it later. 

Janet: 02:45  And this time she’s joined by Anne Hausknecht. Hi, Anne.

Anne Hausknecht: 02:49  Hi, Janet. Hi, Steph. Thanks for having me on.

Janet: 02:52  And Anne is a postdoctoral researcher at the Oxford Institute of Technology and Justice. She’s also on the same ‘TRUE Project,’ and in some of the work she’s been doing with Yvonne, she’s been exploring the impact of deepfakes on trust in user-generated evidence and how that works in accountability processes for human rights violations. And her research focuses primarily on the use of user-generated evidence in domestic prosecutions of core international crimes. And Anne is being supervised in a PhD by Yvonne. So let’s see how much they agree with each other. Over to you, Steph.

Stephanie: 03:28  Well I wanted to ask one definition thing before we dove into the deep end. What is the definition of “user-generated evidence?” Because “generated” to me kind of implies manufactured. So are we talking about, you know, people who make videos of alleged violations, or are we talking about people who generate some kind of content via, for example, reconstructions of things that happen?

Yvonne McDermott Rees: 03:54  We define user-generated evidence as information, so this is images, video, text, audio, created by – so that’s the generated part – by ordinary people basically, not professional investigators, on their own personal digital devices. And what makes it evidence is its potential use as legal evidence in accountability processes. So we’re talking really about the eyewitness who records a video, someone who takes an image, not someone who decides, “I’ll create an AI model or an AI reconstruction.” That would be something different.

Janet: 04:33  OK, but I think we will also include a bit on reconstructions, because I think that’s interesting, sort of where the line lies between one thing and the other, because one can lead into the other.

Yvonne McDermott Rees: 04:45  Absolutely. In the Al Hassan and in the Al Mahdi trials – I know you’ve had people talk about this before – the digital reconstruction that was created by SITU Research, an architecture firm in New York City, and that basically used user-generated evidence. So, videos they found on YouTube, satellite imaging and things like this, and put it all together into a digital reconstruction. So, yeah, they’re closely related.

Janet: 05:12  I think there’s an opportunity for a Stephopedia here.

Stephanie: 05:15  I am diving in for the Stephopedia. Yes, the Al Mahdi and Al Hassan trials are the ICC cases that have to do with the destruction of religious sites in Timbuktu by Islamists who took over that city in Mali. And so, Al Mahdi was specifically destruction of tombs and religious sites, and Al Hassan was that and also floggings and basically terrorising the population of Timbuktu. And they had reconstructions of some of the sites where crimes happened.

Yvonne McDermott Rees: 05:47  Just one last point to add on why we use the term “user-generated evidence,” as opposed to “open-source evidence” or something like that is, as you know, previous research I carried out with my colleagues really looked at open-source research or open-source evidence, but increasingly we’re finding this kind of content isn’t posted online. It’s sent directly to investigators. It’s captured using maybe dedicated apps like the eyeWitness to Atrocities app, which was created by the International Bar Association. By today, The Office of the Prosecutor has got this platform where anyone can upload relevant evidence of international crimes. So we didn’t want to exclude that closed-source content, because actually, when it comes to evaluating it and considering its credibility, the questions are the same, regardless of whether it’s open-source or closed-source. That’s why we’ve broadened out to user-generated evidence.

Janet: 06:42  OK, I’ll start using that from now on. But, I wanted to also just ask this, I mean, crazy philosophical question, maybe, but it comes up for me again and again. Are we any good as human beings about distinguishing between factual stuff and fictional stuff? How do we know what we’re watching is reality? And obviously, I don’t want to spend the whole podcast doing philosophy, but, what can you, how can you describe that to us?

Anne Hausknecht: 07:09  Well I could start, so we’ve been doing some research. I’ve got a wonderful colleague, Ruben, who’s been looking more from a psychology perspective at how good are we actually at spotting deepfakes? And it turns out, really not that good, it’s like flipping a coin. And I think we see deepfakes are getting better and better, so it’s getting harder and harder. But one thing and one sort of argument that we always try to make is that manipulation of audiovisual content is not new and this is something that we’ve been talking to judges at the International Criminal Court, that they mention that deepfakes are just the newest form of manipulating content. But there’s always been other ways you can edit content. What we see a lot is misattribution, so taking a video out of context and saying, “This just happened in Ukraine.” So I think what we’ve seen is that this awareness that a video can only ever show so much, you don’t know why someone started to film at one point and then actually stop, whats actually not been captured on camera. That’s really important, and I think that a lot of judges are quite aware of that, and that’s where there’s so many factors that we can consider when it comes to authenticating content and telling whether something is fake or not. And I think the key one is corroboration. We see that in most of the cases, you either have another video or a photograph to corroborate the finding, but a lot of times it’s eyewitnesses that are called in to confirm that something actually happened.

Stephanie: 08:34  You say judges are kind of used to doctored images or that they’ve had this before. But one of the things we see with judges is that sometimes they’re not necessarily au fait with kind of new technology and they need new skills to look at this. Do you think, you know, everybody talks about AI being this revolutionary change, especially if you work in journalism; it really gets touted as something that is going to fundamentally change our job. Do you think it will also fundamentally change judges’ jobs, in that sense? In the content that they get or having to weed out what is real and what is not real?

Janet: 09:14  Are you saying, Steph, that they’re old, like me? Is that what you’re saying? Because they’re old, they won’t be able to understand what’s going on?

Stephanie: 09:22  I’m saying they’re even older than you, and even I am, you know, very much Gen X. And it means that I kind of stopped at Instagram. I have an Instagram account, but I still don’t quite know how to do it and I see how quickly technology becomes obsolete and how, at a certain point, you just don’t deal with the new technology anymore. So, I think this goes for judges as well.

Anne Hausknecht: 09:43  Definitely, so I think there’s definitely a need for training, giving them at least a basic understanding of what is a deepfake, how we can spot it. Deepfake detection tools, they are not very accurate, so I think it’s important for judges to understand that relying on a tool isn’t this sort of panacea. We also have to have an expert coming in to authenticate content. But I don’t think that’s necessarily just the case for judges, I’m speaking to investigators and prosecutors, I think everyone still has this big need for more awareness about deepfakes and for training. So I think it’s sort of overarching, everyone should be aware that what they see online isn’t necessarily authentic.

Yvonne McDermott Rees: 10:24  And just to add to that, I’m not sure I agree with the premise that the role of the journalist is going to be changed completely in the age of AI, nor do I think the role of the judge is going to be completely transformed in the age of AI. I mean, as Anne said, this is maybe a new face on the old problem. But, you know, if we were ever, I don’t know, sent a document or shown an image, did we ever believe that that’s what it purports to be? Just as journalists have those skills in terms of looking, well, let’s look at the source. Where did this come from? Who sent it to me? Is this a reliable source? Is it, as Anne said, is it corroborated by other information? So, you know, I think sometimes there’s a perception that “oh back in the old days we used to take things at face value and we can’t do that anymore with AI,” but I’m not sure that was ever true you know? Photoshop has been around for quite a long time. And Anne, in her PhD, has this really good example of: in 1870, in the US, there was a guy called William Mumler who created this sort of spirit photography. So he would say to people, “Oh you’ve lost your loved one in the American Civil War. I can bring them back in my images.” And essentially what he was doing was sort of double-processing the negative. So you take a picture of someone and then have what looked like the spirit of their loved one in the background and he got prosecuted for fraud. But, you know, that was, what, 150 years ago? So, yeah, I think the idea that we were once in a golden age of, you know, we took things at face value and we can’t do that anymore, I’m not sure that really stands up to scrutiny.

Janet: 12:03  But are you finding in the work that you’re doing with judges, whether domestically or at the International Criminal Court, that they are, I don’t know, pushing back to some degree on visual evidence and saying, “OK, that is less reliable than we might have hoped it would be, and we’re really going to have to go back to basics”? Or are you finding them saying, “OK, understood. We now need to get our heads around things like authenticity, watermarks, you know, how to assess something”? Which way are judges going?

Anne Hausknecht: 12:41  I would say it’s more the latter. I think it’s more an interest in how we can actually authenticate content, geolocation, chronolocation. So determining where and when was something captured by looking at specific landmarks,looking at the weather patterns or the shadows in a video or photograph. So I think this sort of idea that we can’t rely on user-generated evidence anymore, that doesn’t really pan out. It’s more like “what role it can play?” Uh, I don’t think we will see a case at an international court, or even in the domestic cases that I looked at, where we just rely on one video or photograph because, even if it’s not a deepfake, it could have just been staged or taken out of context. So again, corroboration and just being a bit more thorough with regards to authentication and, I think also expert testimony is really important. Having an expert to come in and not just go through the steps they took in authenticating content, but also explaining how they go about that and how we can tell fake from true.

Stephanie: 13:42  One of the things I wanted to ask about is that in some kind of content generators you have this kind of digital watermark or added metadata that comes from what is known as C2PA, the Coalition for Content Provenance and Authenticity. Can you explain a bit what that does and how we are seeing that in user-generated content that is maybe used in legal cases?

Yvonne McDermott Rees: 14:05  Yeah sure. So C2PA is like an industry standard. So, it’s inherent in some hardware, I think, for example, Sony have signed up, other, you know, particular camera makers, Google, if you’ve got a Google Pixel phone that will be embedding the C2PA message data, but also in software. So if you amend an image using Photoshop, Google Gemini, ChatGPT, in theory at least that should have that stamp on it and then you can go to contentcredentials.org, upload the image and then you can see that C2PA stamp. So, for example, if I edit an image using Gemini and say, “Here’s a picture of me and Steph; can you add Janet in?” it will just say “this was amended using Gemini.” So we can see that there was some AI manipulation of it. So that’s something useful. I think, like Anne said earlier, you know, we can’t rely on it as a panacea. I think sometimes people say, “oh, well, this is the answer, we just need to get C2PA in everything and then we’ll be able to tell that it’s reliable or not.” Some of the dangers with that line of thinking is, first of all, not every device will have it. So, famously, Apple hasn’t signed up, because it kind of goes against their privacy, the importance they put on privacy. There are all sorts of other device manufacturers that won’t be part of C2PA. Secondly, I think, you know, we have to be concerned about potentially there, there are witness-protection kind-of issues here. So, C2PA doesn’t say “Yvonne McDermott took that image,” but it will say “it was taken by this kind of device.” You know, depending on the device or whatever, it might say in Belfast on this date. And you know, if you think about, if you’ve got a human rights defender in a region where there’s a crackdown on human rights defenders, there might be ways in which you could use that information and triangulate it with other information to identify the identity of someone. So I think we need to, kind of, push back on the idea that C2PA is the answer. Like everything, it’s just one of these factors that can be taken into account when holistically assessing a piece of evidence.

Janet: 16:20  OK, so my question was about judges. What about prosecution and defence? I mean, are there differences there in the way they are regarding the use of images? I’m trying to think particularly defence work is to try and poke holes in things and to say “this isn’t right” and so on. So, are we getting things like a, I don’t know, a battle of expert witnesses, where one says it’s this and the other says it’s that in terms of images and, you know, whether it’s been AI’d? How is that working in court?

Anne Hausknecht: 16:55  I think with regards to the defence, one issue is really equality of arms and whether they have access to as much information as the prosecution would have. A lot of the content that we see is guarded by civil society actors. They don’t necessarily collect the kind of information that the defence would find useful. So that is a big issue there. I don’t know, Yvonne, if you wanted to say something about the battle of experts.

Yvonne McDermott Rees: 17:19  Yeah. So in the cases that Anne has looked at, there have been usually expert witnesses from like national forensic institutes. Sometimes the defence will call their own expert witness, but it really hasn’t been that battle of experts thing, it hasn’t come out in very many cases.

Yvonne McDermott Rees: 17:36  There was one case I remember from Sweden and it was a case where, it was one of these cases of like returning ISIS fighters, and the defendants were shown in this image of a like a beheading video, but they had their faces covered, so they had like a mask and also something so all you could see is the eyes. But one of them had a tattoo on his arm or on his hand, and they also spoke a dialect of Swedish but like a dialect that’s quite unique to western Sweden. So, someone from the Swedish Forensic Institute was like, “I’ve done an analysis, and the likelihood of it being someone other than this defendant, whose got the same tattoo and is from western Sweden, is so small.” And I remember the defence called their expert, a professor from Lund University called Christian Dahlman, who said, “You’ve chosen the wrong reference class. You’ve compared it with everyone in Sweden, whereas actually you should look at what’s the likelihood of a returning ISIS fighter from western Sweden also having this tattoo and then actually it could be someone else.” But that didn’t fly in the case, and the defendant got convicted. But I think, yeah, we’ll see new – we saw it in our mock trial – the defence chose not to call their own expert witness, but rather to point to the limitations of the expert called by the prosecution and to try and, again, poke holes in “okay, well, what do you not know?” You know, “did you approach this with a sort of a biased mindset?” Yeah, different ways of sort of undermining the expert. And interestingly, the majority of our juries acquitted. So, nine out of our eleven juries went not guilty, and the other two were hung juries. So, they just couldn’t reach a decision, even when they were told “we’ll accept a majority verdict.” So thats what one of the ten out of the twelve of them can agree on.

Yvonne McDermott Rees: 19:31  So for me this was a real eye-opener, because I’ve always thought well it doesn’t really matter if you don’t know the source of a piece of user-generated evidence, or the person who captured it isn’t able to come and testify, because you can always get an expert to independently verify it. And we saw that our juries just didn’t think that was possible really. They said, you know, “we think this expert seems qualified, reliable and so forth” yet they had doubts about whether the piece of user-generated evidence could be independently verified.

Stephanie: 20:01  We kind of see that in journalism as well with images that now, because the world is kind of less reliable and those deepfakes are getting better and images get doctored and end up on Twitter, or X, or wherever. There is a lot of people doubting genuine narratives or genuine pictures. Or if you want to cast doubt on something, you can just say, you know, “this is just like all the other stuff,” and you can never now know that something’s true. Is that something you think, is that an effect that you see with juries having to decide? And is there a big difference between say jurors and professional judges in that sense, if you’ve looked at that?

Yvonne McDermott Rees: 20:41  Yeah, I, I, I’ll let Anne come in here first, because she has some really interesting findings on the extent to which that sort of deepfake defence has come up in court.

Anne Hausknecht: 20:51  Yeah, so we haven’t seen a sort of liar’s dividend or deepfake defence come up in any of the international crimes trials, I think mostly because the cases at the ICC and in the domestic courts, they all predate crimes that were committed before deepfakes. But we’ve seen this deepfake defence being raised in a couple of cases in the US. There are two cases that came out of the Capitol Hill storming, where the defendants themselves had been capturing a lot of photographs and videos, proudly sharing them with family and friends, and that content was then used as evidence against them and Counsel for them stood up and Court said, “Well, this could be fake. We can’t trust this kind of evidence.” And luckily, in those cases there was CCTV footage and police-camera footage to corroborate the findings, so there was enough corroboration there.

Anne Hausknecht: 21:40  But I do think this is definitely increasingly a problem where experts are really important. One case in which the deepfake defence was used successfully was a murder trial in the US, where prosecution wanted to show a video on an iPad and used the zoom-in function to sort of expand the video and the defence said that if you use the zoom function, it sort-of manipulates the video. So, the court said, “ok well, the prosecution has to bring in an expert to explain that using the zoom function doesn’t actually manipulate or use AI to change the video.” And they couldn’t find an expert, so they just could not use that as evidence in that case.

Yvonne McDermott Rees: 22:20  So, on our juries, we did see a little bit of this. Some of the, I remember one of the jury members in one of our groups said, “Oh, you know, I saw a photo competition recently, and the very famous photo competition and the guy who won it, it turns out that actually the whole photo was generated using AI.” So that sort of doubt, I guess, is creeping in. But I think, you know, people are logical and rational in terms of how they approach the evaluation of content. So we do a lot of like online studies and the TRUE Project, and people say, you know, “Well obviously I’d have to see is there’s anything else on this incident,” or, you know, “I’d look at the source,” or I thought, you know, “I might ask friends and family.” I might, you know, make this evaluation holistically. So I think, yeah, we’re not quite there yet ,where we hear it a lot, right? Like no one believes anything they see anymore, but I think it probably, this is such a lawyer’s answer, it depends.

Yvonne McDermott Rees: 23:18  We did see the idea of like, “oh well, anything might be a deepfake” come up a bit in the European Court of Human Rights. There was a case that Ukraine and the Netherlands took against Russia around the attacks that started in eastern Ukraine back in 2013 was it? or 2014. But In that case, there was one particular image that had been circulating online that was used to geolocate this Russian soldier, and the military unit to which he was a member to a particular site of strikes from eastern Ukraine. And there were actually two versions of the same photograph in circulation. So one had him with a tank in the background and the tank number is on the tank and there’s like a column of soldiers behind him. And the other was without the tank number. And Bellingcat had used one in one of their reports, and the Atlantic Council had used the other version. So before the European Court of Human RIghts, Russia really seized upon this discrepancy and said, and you know, even the column of people behind, that could be cloned from a single individual. So it’s that sort of deepfake defence coming in, in practice. And what the European Court did was they actually got a witness statement from Eliot Higgins from Bellingcat, who explained, uh, what happened was there actually, the soldier himself had used this image as his profile picture on VK.com, the social media site. And he had used the first version, and then later he took it down and replaced it with the second version. So a very simple explanation. And the court said, well, that sort-of explains that. And as for the other things that Russia has referred to, they are only what the state has called “indications of potential fakery.” And the European Court’s Grand Chamber said that falls quite significantly short of what we would need to see to be convinced that this is, in fact, a doctored image. 

Yvonne McDermott Rees: 25:13  So I think it goes to show that the sort-of blithe assertion that like anything might be AI these days is probably not, you know, the best legal strategy. And, there are probably other ways that one could challenge a piece of evidence: that’s not the defendant in the image, or there was someone out of shot holding a gun or, you know, we’ve seen those kinds of challenges a lot more in the case law database that Anne has put together. Sorry for the plug, but on our website, trueproject.co.uk, Anne has compiled this amazing database of cases, and it’s freely available. So that might be something people want to check out after the show.

Stephanie: 25:52  I’m going to slightly Stephopedia this as well. I think the European Court case you’re talking about is also the one involving the downing of flight MH17, which is why the Netherlands was involved. And we’ve talked about this on several podcasts, notably, I think, with Marieke de Hoon, the Dutch international law, and we’ll link to those in the show notes if you want to know more about that specific case.

Janet: 26:14  I want to introduce an element that’s also quite kind-of popular at the moment: sloppaganda. But just before we do that, I wanted to say that one of the reasons we were talking about doubting true narratives was because long-term supporter of the podcast Ronald Sly said that he’d been thinking about that as part of the AI series. So thanks, Ronald, for helping us with the question. You too can support the podcast and send us in questions if you ever want. Just a plug to counter the TRUE Project plug as well, or to add to it, let’s say.

Janet: 26:48  So, sloppaganda, and, you know, the sense that we have that there’s lots and lots of slop around – we’ve seen it particularly in the conflicts Iran, US, Israel – it has a purpose. Maybe we could describe that purpose and then maybe also describe what we think might happen with that kind of stuff in court. Is this going to play any part in, I mean, I’m not saying they’re going to be any trials out of this, but is that the kind of thing that might end up being discussed in court sometime? Start with what, what’s it for this sloppaganda?

Yvonne McDermott Rees: 27:30  Well, you know, a lot of research has been done on this, like Neve McIntyre, who is a journalist based here in the UK, did a big deep dive into who who’s behind all this AI slop, particularly in the context of the war in Iran, and it was found that actually a big incentive is monetary. You know, theres a lot of these accounts that are based in Thailand, Cambodia, the Philippines – in other words, in countries that aren’t actively involved in the conflict – generating this kind of AI slop. And that content drives engagement, and engagement drives clicks, and clicks bring money. So that does seem to be a big incentive. Then the other side, of course, is the sort of propaganda side. So we’ve seen, for example, Donald Trump reposting AI-generated stuff. We’ve seen the Iranian government repost AI-generated content. So that aspect of it can’t be set to one side, but neither can we ignore the very real monetary reasons behind some of this content.

Yvonne McDermott Rees: 28:25  In terms of what can be done about it, the Meta Oversight Board had a really interesting decision recently on this exact decision. Like what should Meta be doing on AI generated content from the Israeli-Iran war? And they found that, you know, first of all, meta wasn’t really actively implementing its own C2PA standards. So it wasn’t actively doing that and flagging content as AI generated. I think that would go a long way in just putting that sort of watermark or warning to viewers that this is AI generated. And also, you know, there’s also a role in terms of demonetising that kind of content and downgrading it. So there’s a lot that could be done that falls short maybe of taking it down altogether, that platforms could be doing. 

Stephanie: 29:14  We’ve talked a lot about the problems with possibly AI in this evidence. But is there also a role for AI-assisted evidence reconstruction of what houses looked like before and after, you know, plans of a prison, those kinds of things?

Yvonne McDermott Rees: 29:30  I think there’s a role for this kind of thing in advocacy, in human rights reporting. I would be very wary about using it in criminal trials because, as I think Sarah Zarmsky, my colleague from here in Queen’s, I think she’s been on the show talking about this before and she’s also written on this. You know, there is that risk of the sort of cognitive bias that comes in seeing something with your own eyes and the way that we process that visual content. It can be highly, highly prejudicial, I would say. And probably that prejudice outweighs its probative value. Sorry to use some legal terms, but in terms of the actual weight that it should be given, its strength as evidence is outweighed by the prejudice that would be caused by it. So I’d be quite wary about using it in the courtroom. I don’t know if Anne would agree or disagree.

Anne Hausknecht: 30:23  No, I agree with that. Yeah, I find it very tricky. 

Yvonne McDermott Rees: 30:24  I’d say on this, someone asked me recently, “Well, what about like witness protection? Couldn’t you have like deepfakes, you create an avatar of someone and then you feed that AI model their words and then it looks like someone is presented, but its their identity is completely protected?” I mean, again, I think that could something that would be useful. You know, maybe, we’ve seen some documentaries, for example, using this, or, that kind of thing. But in court, you know, really, evidence needs to be tested rigorously, and there are well-established ways of protecting witnesses that don’t involve turning to AI and creating AI avatars and things like that.

Stephanie: 31:08  I was going to say, I saw a documentary on, I think, a Mormon polygamist cult, where they had the underage wives of this particular kind of prophet. And they said, “well we doctored them because, you know, it looks better if, so, they’re not recognisable, but they do look like real people.” And they’d say that upfront in the documentary but when you look at it, its really, your brain doesn’t really compute that, they don’t look AI, they don’t. It wasn’t uncanny valley kind of where you’re like, something is off. So I was really looking at that thinking: I can see why you would do this in a documentary, and I can see that it looks more engaging right? Especially if you have evidence in courtrooms here where, you know, when we have a protected witness, it’s like blocks and pixelated. And of course that creates a layer of distance. But then I was also thinking, well, the judges don’t see them pixelated. They see the real person and they have to judge most of the time, unless it’s video evidence. So, you know, I, when you talked about documentaries, that sprang to mind because I was looking at that thinking, this is so odd, but also very effective visually and my brain is being tricked into thinking that this is completely normal.

Janet: 32:18  What was in my mind when I wrote the question was work on North Korean prisons that I’ve done, where we used, quote-unquote, blue bodies to represent people because, you know, and didn’t give them any characteristics at all. They were just vaguely robotic, but to, you know, one had a whip and one was cowering and one was, you know, ten were packed into a cell and so on. But, I would have felt distinctly uncomfortable with showing that kind of detail with people that look like people. AI’s, i mean, it felt right to make it as, I don’t know, as unreal, but effective, as possible.

Janet: 32:59  Yes, we’ve gone off on our own tangent, of course, as, as

Stephanie: 33:01  As we are one to do.

Janet: 33:04  Yeah, we had another 15 questions, but we’re not going to get around to doing them. It’s going to wrap up here and just ask you to start with, is there something that you wanted us to ask you that you haven’t had a chance to say? Anne, to start with?

Anne Hausknecht: 33:19  I think the main point that we’re trying to make is that it’s not a new phenomenon. Manipulation has always been around. So, I think the big fear with our work as well, when we’re constantly talking about deepfakes, is that we are doing more fearmongering than good. So, I think it’s important to be aware of deepfakes and to know that they are quite tricky and risky and difficult to detect. But yeah, we should always approach anything we see online with a healthy dose of scepticism, but not cynicism that just dismiss everything outright.

Yvonne McDermott Rees:  33:50  Yeah, I couldn’t have said it any better. 

Stephanie: 33:52  And then we’re going to move on to our kind of traditional Asymmetrical Haircuts question. If you follow the podcast, you’ve probably heard it before, but we like to ask our guests if there is anything that they’ve been watching, reading, listening to, or even that they’re doing, that they want to share with us. It can either be related to the field you’re working on, or it can be whatever you do to get away and keep your mental health intact, which is also important in this kind of work. So let’s start with Anne. Do you want to share something that you’re enjoying listening, reading or watching?

Anne Hausknecht: 34:28  Well, I’m not reading anything AI-related because I feel like I’m doing enough work on that. But I’m currently rereading Nadia Murad’s book “The Last Girl,” about being held captive by ISIS.

Stephanie: 34:39  That doesn’t seem very calming, honestly.

Anne Hausknecht: 34:43  It’s not. It’s not fun. It’s an extremely honest and inspiring account of what she went through.

Stephanie: 34:49  Yvonne?

Yvonne McDermott Rees: 34:49  Usually I like to read fiction online, but there’s two, there are two really good nonfiction books that I’ve really enjoyed recently, and one that is kind of tangentially related to this. “Careless People” by Sarah Wynn-Williams. I don’t know if you know about it. It’s the inside story. She was the head of global policy at Meta and it’s sort of the inside story. It’s been quite controversial. Meta have sued her, and the result of that is that she’s been prevented from publicising this book in any way. So she recently was at the Hay Festival in Wales, where she had to sit in silence on the stage and not nod or, you know, blink, so, while two other people discussed her book. But it’s, you know, it’s really compellingly written and she, you know, tells a good story. It’s bizarrely, it’s quite funny in parts, so I’d definitely recommend that. I also really enjoyed Patrick Radden Keefe’s latest one, “London Falling,” which is really good. And then, podcast I’ve really been enjoying recently is called “The Expert Witness.” It’s by CBC. Have you seen that? Yeah

Stephanie: 35:58  I am fascinated by that.

Yvonne McDermott Rees: 36:01  Yeah, yeah, yeah, and related to what we’ve just been talking about, because this new thing called CyberCheck was suddenly being introduced in domestic criminal trials. And, you know, it sounded all very high-tech, it was like we use machine learning, we use, you know, hashing and cryptographic this and that. And it turned out basically, it was nonsense, and it was being used against people and very difficult to sort of argue against because it was purportedly an AI system. So yeah, I think thats a cautionary tale, that podcast.

Stephanie: 36:30  It really is. It’s especially indeed about they would just say it’s AI, and the AI would essentially look at all your social media and whatever you did online and then kind of make this footprint and place people digitally at the scene of crimes, and it was used to convict. And when it got to the courtroom, none of the judges or prosecutors could really parse it or challenge it, and there were no expert witnesses to explain what it did because whenever they got to kind of the secret sauce of the AI, the person would be, who was doing it would be like, “well this is protected, this is mine and we’re not sharing this,” which is, you know, one of the big problems with AI: there’s no visibility about the algorithm, which we’ve talked about in other podcasts. But it’s really fascinating how it then gets kind of used and people accept it for what it is and you really have to have these Don Quixote-type prosecutors who go against it. But it’s a fascinating podcast, it’s “The Expert Witness” by CBC podcast. We’ll link to it.

Janet: 37:39  Great. Now, Anne and Yvonne, thank you so much for making time to have a chat to us and help us along with our AI series and i’m not sure where we’re going to go next, but I’m sure we’ll come up with different ones. Don’t hesitate to let us know if you think we should be doing some specific topic, not necessarily related to your one. Thank you so much. Thanks for making the time, Yvonne, really appreciate, and stay safe.

Yvonne McDermott Rees: 38:03  Thank you.

Janet: 38:05  Thanks, Anne. Bye-Bye.

Anne Hausknecht: 38:06  Thank you. 

Stephanie: 38:08  Thank you.

[OUTRO MUSIC]

This was asymmetrical haircuts, your internationa​​l justice podcast, created and presented by Janet Anderson and Stephanie van den Berg. This episode was created in partnership with Justiceinfo.net, an independent site covering justice efforts for mass violence, and with the Hague Humanity Hub. 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.

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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 MUSIC]

Narrator: 0:01  Asymmetrical Haircuts: Justice Update with Janet Anderson and Stephanie van den Berg, in partnership with JusticeInfo.net.

Janet: 0:10  Hi Stef.

Stephanie: 0:11  Hi Janet.

Janet: 0:12  So this is the last in the series that we’ve been doing for the last few months about universal jurisdiction.

Stephanie: 0:18  I’m sure that you have something in mind when we start again in September, right?

Janet: 0:22  Oh yes, yes. Of course, we’ve hardly scratched the surface on Europe, and we have so many more places to do in Latin America. And of course, we have our own beloved Netherlands to do, and I think there’s plenty to say on that, and we’ll keep that right from the end. Yeah, this is the last one for the moment.

Stephanie: 0:40  And what’s on our agenda for this month?

Janet: 0:42  Well, after last month looking at universal jurisdiction directly from the Rwandan perspective, we’re staying in Africa, and this time we’re heading to Kenya.

Stephanie: 0:52  And we’ve talked about Kenya before on the pod, but so much of what we discussed was related to post-election violence in the first half of the 2000s. I remember one of our first podcasts was on sexual violence survivors working on reparations and children born of rape, and we’ll link to that in the show notes.

Janet: 1:12  Yeah, we’ve done a couple of episodes on that, so we’ve got different things to link to. In that first lot of post-election violence in the late 2000s, reparations have finally been agreed for a small number of people, so we will plan to look at the issue of reparations.

Stephanie: 1:32  We also looked at the alleged crimes against humanity perpetrated by Kenya police in another presidential election in 2017, and we looked at the first ever application of the 2008 International Crimes Act in what was known as the Baby Pendo case, where police are alleged to have killed a six-month-old baby, Samantha Pendo, who was at home and in the arms of her mother at the time.

Janet: 1:58  Yeah, we’re going to hear a lot about this International Crimes Act because that’s at the heart of today’s podcast. Now, though, we have the first ever, under that Act, potential war crimes case. And the war concerned is not in Kenya, which, as you know, is not at war, but next-door neighbour Sudan is. The victim applicants are from Sudan and the accused are Sudanese, so it’s slap-bang universal jurisdiction.

Stephanie: 2:27  And who is behind the effort of bringing this, besides the victims and the accused, obviously? Because we know there’s always these organisations that help these cases come to the court.

Janet: 2:40  Yeah, the people with the strategic idea to do this are Legal Action Worldwide. Antonia Mulvey, as she told me, there are ten Sudanese victims. I’ll let her explain what she can about it. Then maybe you and I, Stef, can have a chat later about the broader picture of potential avenues for accountability for everything going on in Sudan. But after Antonia, we also hear from Owiso Owiso, who’s an international lawyer based in Kenya, and he is counsel in this attempt at a case on war crimes under the International Crimes Act. And as you’ll hear, he’s also involved in the Baby Pendo case, and he speaks about the realities of how you push this boulder up the hill of the Kenyan justice system. So first, here’s Antonia.

Antonia Mulvey: 3:31  There are ten brave Sudanese men and women that filed the complaint. They were in and around Khartoum when the crimes happened, and I must say it took real courage to file this. One of the women that we represent told me, “I’m filing this complaint because I don’t want what happened to me to happen to any other women.” Now, we’ve protected their identity. There are very serious risks of retaliation to them. Their identity will remain protected, so I can’t tell you where they are, but we’ve taken the security risks very seriously.

Janet: 4:17  I mean, I will press on that—not on the security risk—but if you can’t say where they are, what is the connection with Kenya?

Antonia Mulvey: 4:25  The connection with Kenya is in relation to the persons of interest. So we’ve identified ten persons of interest, all from the Rapid Support Forces, who are mid- to senior-level commanders, and a number of them have ties to Kenya. They move freely in and out of Kenya. They have reported citizenship as well as other ties, including financial ties. We’ve seen in the Kenyan media that there’s been a lot of public outrage at the fact that these war criminals are moving freely in and out of the country. So that is the direct link. 

Kenya has the legal framework under the 2008 International Crimes Act to allow for investigation and prosecution for war crimes and crimes against humanity. And there are some other points here as well. Kenya is the neighbouring country, and Sudanese have fled the war, which, as we know, has been ongoing for years, and are in Kenya as well. So we’ve got multiple reasons that tie Kenya to this complaint and to the crimes that are taking place. And also, we see time and time again African solutions for African problems, and we want to bring these cases nearer to where the crimes are taking place, nearer to where the victims and the survivors are, and, importantly, where the perpetrators are.

Janet: 6:02 What kinds of crimes are we talking about? Because I know that Legal Action Worldwide has done your reports particularly on conflict-related sexual violence, but the most recent ones I read were more to do with El Fasher, which we’ve podcasted about before. Yet you say these are crimes in Khartoum. So what kinds of crimes are we talking about? Are we talking about direct perpetration, and if not, is it linkage evidence? I don’t know how much you’re allowed to tell me.

Antonia Mulvey: 6:35  We’re talking about war crimes and crimes against humanity that took place in and around detention facilities in and around Khartoum. So Soba Prison, Riyadh Complex and other informal detention sites. Murder, imprisonment, sexual violence, rape, sexual slavery. They witnessed their family members being killed, torture, persecution. The complaint does not look at genocide because this complaint is not related to the crimes that are taking place in Darfur and are continuing, actually, in Darfur. And yes, a number of those that we represent, men and women, were subjected to horrific sexual violence when they were being detained. Now, the allegations are both against, as I mentioned, senior- and mid-level RSF commanders who both directly perpetrated the crimes, but also those with command responsibility. But I can’t tell you more than that.

Janet: 7:45  But you’ve also done reporting on and suggested that there should be some accountability, some action to do with the RSF and the funding of the RSF, particularly from foreign sources, because we know that this war is being continued and perpetrated because the weapons are flowing in, because other countries are being involved. So how far up the chain are you going, or would you be prepared to go?

Antonia Mulvey: 8:15  Look, let’s put it this way. The RSF, for years, have been committing horrific crimes. But, as we know, the report that we brought out looked at the flow of arms and the transfer of arms to the RSF, primarily from the United Arab Emirates. So we’re looking at multiple aspects and want to send the message that there’s going to be no safe haven for criminals and for those who are supporting them. We have also filed a complaint with the International Criminal Court on behalf of Sudanese women who suffered horrific sexual violence in Darfur. We will continue to support the ICC in their investigations in that matter. Also, the report that we brought out looks at the flow and transfer of arms. We need to halt the transfer of these arms, which have facilitated the crimes and have facilitated the sexual violence that took place in Darfur. In particular, we focused on El Fasher and said that individual RSF commanders have also committed the crime of genocide.

Janet: 9:31  So you’ve got the ICC, and now you’ve got this application in Kenya. Where else are you looking to try to get some forms of accountability? Or is that all a little bit secret still at the moment?

Antonia Mulvey: 9:42  That is a little bit secret, Janet. But let’s put it this way—we haven’t stopped. More cases will be coming. We know that multiple actors have committed crimes in Sudan. We’re led by the evidence, and we’re led by what the victims and survivors, what the communities, are asking for. They’re asking for justice and accountability. We want to be able to deliver that. We want to send a message that these crimes are being watched, where people travel is being watched. So we will continue. More is to come.

Janet: 10:19  As you heard from Antonia, it’s limited what she can say about it. And I kind of pushed the door a little bit on El Fasher, which is in Darfur, not in Khartoum. And I pushed a bit on United Arab Emirates involvement. But again, I suggest we park that for the end of the pod, Janet, when we discuss avenues to accountability. Can I just give you the warning—we’re going to require some Stefapedia.

Stephanie: 10:46  I have just yesterday spoken to somebody about the ICC in Sudan, so I hope I’m up to snuff for a Stefapedia on this.

Janet: 10:54  Excellent. Thumbs up from my side. So let’s focus instead, again, on the International Crimes Act, the ICA. And so I asked Owiso Owiso, the Kenyan lawyer involved, how it is that Kenya actually has an International Crimes Act, because not everywhere has. And he explained to me that, of course, Kenya was one of those countries that signed up to the Rome Statute, joined the International Criminal Court. But this Act was, in fact, part of the domestic solution that they came up with at the end of the 2000s to try to help stop and deal with the post-election violence in 2007 and 2008. And because this pod is actually about universal jurisdiction, I do kind of push a little bit on the legalese and the technical side and explore how it is that Kenya can be a venue for Sudanese victims in a war crimes prosecution where there are no Kenyan victims involved. So here’s Owiso explaining how Kenya got an International Crimes Act.

Owiso Owiso: 12:02  It was not necessarily because of the ICC. The context of it is, I mean, Kenya was in no rush to domesticate the Rome Statute. We had ratified it, and the country said, “OK, we’ve done our bit. That’s it. We’re moving on.” But 2007 happened and we had post-election violence. As part of the negotiation process, the accountability bit of it was that, yes, you have to, as a country, have a domestic system or mechanism for prosecuting the crimes against humanity that occurred in December 2007 and January 2008.

Janet: 12:35  So it became part of that. I remember the huge debate in Kenya at that time. Are we doing enough locally to avoid, essentially, a prosecution in The Hague?

Owiso Owiso: 12:45  Yes. So actually, The Hague was not the first conversation. The first conversation was, “We have to do this domestically.” So that was, in fact, part of the—I don’t want to call it a peace agreement—but the sort of agreement that ended the violence, that there would be a domestic process of accountability. So the ICC was sort of something at the back of the whole conversation. If the domestic process doesn’t kick off, then the ICC comes in. So in order to have a domestic process going, we needed to have a legislative framework. Because we had already ratified the Rome Statute, it was just easier to domesticate that, come up with an International Crimes Act that both domesticates the Rome Statute but also provides a legal basis for Kenya to prosecute international crimes domestically, regardless of where they are committed. And I would imagine, or I would like to say, that because of the context of the enactment of that particular legislation, I don’t quite suppose that Kenya was very concerned about crimes happening elsewhere. That was not necessarily the concern. The concern was, “OK, stuff has happened here. We need to deal with it here.” So I think that is why it was slightly easier for that legislation to include a provision that Kenya would have jurisdiction regardless of where these crimes are committed. I don’t think our legislators thought about that particular provision, because if they had, I suppose the debate would have been a bit more difficult.

Janet: 14:08  Just to say, we did one podcast on the application on crimes against humanity in relation to Kenyan police, the investigations that were going on into some terrible cases. So I was kind of aware of it domestically. So what about this international part to it? Not only international crimes, but international application. Has Kenya ever gone down this road before?

Owiso Owiso: 14:36  No, actually. In fact, the entire Act itself, even domestically, has not exactly been successfully applied. The first time it was applied domestically was with respect to protests that happened in 2017 following elections, where the police committed certain crimes—sexual violence, they murdered a couple of people, including the so-called Baby Pendo, a six-month-old child. That process has taken a long time. The trial is just kicking off somehow. So that is actually the first time the International Crimes Act is being tested domestically with respect to domestic crimes. But with respect to crimes committed elsewhere, outside Kenya’s territorial boundaries, it’s never been done before. Yes, the Act provides that it’s possible to do it, but we have not tested it. So if this goes through, this would be the first time that’s being tested.

Janet: 15:26  Okay, well, in the Kenyan system, which I imagine is at least partly derived from the British system—as far as I remember, everybody wears horsehair wigs in your courts—what are the kind of things that we need to understand? Because we spent quite some time looking at some of these other jurisdictions, France and Argentina, where you have this whole role of victims and ways that people can apply, what roles they can play, who gets to appeal, and so on. How does it work in Kenya? Who starts and who decides?

Owiso Owiso: 15:59  Well, thankfully, we don’t wear wigs around here anymore. It’s a common law jurisdiction, yes, but we didn’t borrow literally everything. We discarded the wig part, thankfully. But it’s generally a common law system with the usual common law procedural aspects of criminal law and all that. But this being an international criminal justice process—even most common law systems, even the UK, where we borrowed most of these things from, at the time these things were borrowed in the ’60s, the UK was not dealing with international criminal justice. So this is sort of new to everyone. While it has procedural aspects of common law, it’s a bit diluted in the sense that we are developing this as we go, and we are, of course, adopting the international procedural aspects of international criminal justice. This has also been made easier because in 2010 Kenya came up with a new Constitution, which overhauled the entire constitutional framework that was inherited from the colonial system. That new constitutional framework expands the scope in terms of vindicating rights. So first, of course, direct victims have a right to approach courts, those who are directly affected. In the context of the International Crimes Act, you do not have to be Kenyan to approach the Kenyan courts with this. But at the same time, recognising that sometimes victims may not necessarily be in a position to represent themselves, anybody else representing victims can also invoke this process. Then there’s also a third layer to it. You don’t even have to be related to the victims. As long as that particular issue is of public interest, you can also invoke the system. So either direct victims, persons representing victims directly, or anybody else acting in the public interest.

Janet: 17:48  How did it work in this case? How have you tried to test those boundaries?

Owiso Owiso: 17:54  Right. So this is still the very beginning of the process. It’s still very early days in the process. But this is how we anticipate it to unfold, especially considering the procedural process. The first thing you do is approach the Director of Public Prosecutions, the DPP, with a complaint, because they have operational independence. They have the authority to make the decision whether or not to prosecute. So the DPP can do one of three things. If the DPP looks at your complaint and determines, “Well, there is enough here for me to commence a prosecution,” they can do that. They will straight up file charges at the High Court. Secondly, if they determine there is something here but they don’t yet have enough evidence, they can direct the Inspector General of Police to conduct an investigation. That’s the second thing they can do. The third thing the DPP can do is simply say, “Well, I have looked at your complaint and there’s nothing here. I am not going to prosecute.” So either the DPP can say that expressly and write to you saying, “We’ve looked at what you’ve sent us. There’s nothing here. We’re not going to prosecute,” or they can constructively do that simply by keeping quiet.

Janet: 19:08  So if they—whatever decision they make—what rights do you have after that? Can you then go to court and say, “Oi, you’ve got to reverse that decision,” or whatever?

Owiso Owiso: 19:17  Yes. So if the DPP determines that there’s enough to file charges, they file charges. But the victims then also have a right to be represented in the system. We have a robust—relatively new, but robust—victim participation framework. The victims can directly appear in court, either by themselves or through counsel. They will not be prosecuting the matter if the DPP takes it up, but they will be represented. They will have all the rights that victims have, for example at the ICC, to cross-examine witnesses and present evidence and all that. But in the event that the DPP refuses to prosecute, then the victims, either themselves directly or through their counsel, can approach the High Court to ask the High Court one of two things: either to compel the DPP to re-examine that decision. Of course, the High Court can’t direct the DPP to prosecute. But the best the High Court can do at that stage is say, “Well, either you didn’t give reasons, or there’s no rational decision made here, so please re-examine that.” But the second thing the High Court can do—which the victims can also ask directly in that application—is this: “The DPP has determined they cannot prosecute, but according to us, there is enough evidence for a prosecution to be launched. So please give us authority, or permission, to launch a private prosecution.” That can happen. So you can’t, as victims, directly do that once the DPP refuses to prosecute. But you have the right to go to the High Court and ask the High Court: “Hey, we asked the DPP to launch prosecutions with respect to international crimes committed here and there. The DPP refused to do so. But we believe that there’s enough evidence for us to do this ourselves.” If the High Court then gives you permission, you can launch your own private prosecution.

And in that case, the victims will be acting as prosecutors. Of course, if that happens, the DPP still has a right to come in at any point of the process and take it over and prosecute it. But, of course, not to take it over and terminate it—that’s a different story. The DPP can still come in and take it over and prosecute it. But if the DPP doesn’t do that, then once you have permission from the High Court, you can launch a private prosecution by yourself. This private prosecution is relatively common in this jurisdiction, but only with respect to what I would call ordinary domestic crimes. We’ve not tried it before for international crimes, except, as I mentioned earlier, the so-called Baby Pendo case involving police officers. So what the DPP did in that respect is first file charges against about eleven or twelve police officers. Then, at some point down the line, the DPP withdrew charges against most of them and left only four. So what we have then done—because I’m also counsel in that case—three months ago, is we have gone to the High Court asking the High Court either to compel the DPP to review that decision and bring those names back onto the charge sheet, or to allow us to prosecute them ourselves. It’s also the first time it’s being tested in an international crimes context. And in the context of this filing with regard to the RSF, if the DPP does not make a favourable decision, then, of course, the victims would still have a right to go to the High Court and ask for that specific permission to launch private prosecutions. It’s a long, long road. Yeah, just the beginning.

Janet: 22:44  And I was just wondering whether Kenya particularly positions itself as a UN city, and it sometimes gets involved in things like peace talks. I imagine, in relation to Sudan, that Kenya might be involved in some kind of negotiations between the Government of Sudan and the RSF. We have a decision that you will have come across at the ICC from judges saying that arrest warrants could be suspended because of peace talks. We think that’s in relation to Ukraine, and we think that’s in relation to potential talks in Geneva, because there’s an arrest warrant against the Russian president and some others that could affect them. I’m just wondering, how do you see that political aspect playing out in Kenya?

Owiso Owiso: 23:36  Well, I believe there are two things to it. There are two things I can say with respect to that. In the early days, the Kenyan Government was quite involved in, or at least attempted to be involved in, the peace process from what would have appeared to be a neutral position. But that façade quickly fell off. Where we are at the moment is that while the Kenyan Government would pretend to be quite concerned about the peace process in Sudan, it is in the public domain that the current administration is actually very supportive of the RSF politically and in terms of business. They do business together and all that. Politically, not so long ago, the Kenyan Government hosted the RSF in Nairobi in their attempt to form a parallel government. Because of that process, the Sudanese Government actually withdrew the ambassador. So there’s a lot of bad blood between the Kenyan Government at the moment and the Government of Sudan. That is the government. So Kenya is not considered a neutral party in any peace process. Of course, the Intergovernmental Authority on Development, IGAD, of which Kenya is a very important member, is at the forefront of peace negotiations in Sudan. But I would not say that Kenya is playing any direct and significant role in that process. In any case, actually, quite the contrary. Kenya is viewed in that context as having taken sides. So the political backlash I would anticipate is not with respect to the peace process itself.

Janet: 25:10  No, I’ve got it wrong entirely, haven’t I? I mean, it’s going to be in respect to the Kenyan authorities saying, “Get off. We don’t want you to touch our RSF business partners.”

Owiso Owiso: 25:22  Exactly. So that’s why I said the political backlash we anticipate is not with respect to the peace process but with respect to the Kenyan Government trying to protect its allies, because they’ve been adversely mentioned. I would imagine that in that complaint, the persons the DPP would be looking at—and even the entity itself—implicate quite a number of senior government officials in the current regime. So that is the political angle that I see, not with respect to the peace process, because with respect to the peace process, whatever claims the Kenyan Government could make, it’s not playing any significant role in that peace process. It’s actually considered—I would venture to say—that the Kenyan Government is considered part of the RSF when it comes to those peace negotiations. So that is a whole different ballgame.

Janet: 26:08  So how independent is the DPP from the government itself? Will there be political pressure on him or her?

Owiso Owiso: 26:15  Well, I’ll say two things. Legally speaking, the DPP is very independent because the Office of the DPP is a constitutional office that is not answerable to the executive or to anyone. It’s independent. That is the legal position. So the DPP can make, or should make, decisions without being instructed by anyone. But the reality of it is that the executive plays quite a significant role, especially with respect to certain cases that are sensitive to the executive or to members of the executive. So, of course, at this point we are treating the DPP—we are giving the DPP a lot of grace and the benefit of the doubt, and we hope that the DPP will pleasantly surprise us because, at this particular point, the best we can do is act in good faith. The reality of it is quite different. But we do expect, because it’s been about twenty days since we filed the complaint, that we will receive a decision in the next maybe ten or so days. If not, then, of course, we will have to prompt the fellows. So we’ll wait and see. We can take this up again after that. It’s a long one. It’s going to take a while. This is just the beginning. I probably believe that in the next three or four years we’ll still be talking about the same thing. It’s a long road.

Stephanie: 27:24  I’m just going to add here a quick update. Owiso said that they were waiting to hear the results, and those still haven’t come in. So here’s the Stefapedia charts. So I mentioned El Fasher, which is very far from where we’re speaking about Khartoum, and it’s over in Darfur, right over in the west of Sudan. That’s where horrendous crimes were alleged, I think it was last year into 2025. But I’m sure you’ll correct me, Stef, as we come to that, when the Rapid Support Forces, the RSF, managed to actually take it over. We’ve had reports from everybody, including the UN, doing work on that. So, Stef, let’s take it. What can we actually say about this bigger picture of the war? What kind of accountability efforts are we seeing in relation to Sudan?

Stephanie: 28:19  Well, we are notably, in our world, seeing the ICC looking into Darfur—not the whole of Sudan, but Darfur particularly comes under ICC jurisdiction because the UN Security Council, way back in 2005, when we had the first accusations of genocide against African tribes in Darfur, referred the situation in Darfur to the International Criminal Court. And they have, from that period—over twenty years, twenty years, twenty years—been going at it for twenty years.

Janet: 28:54  They’ve had how many trials? Just remind me.

Stephanie: 28:56   They have had one trial, which has just finished, and they have outstanding arrest warrants. The only public arrest warrants that we know of for accusations of genocide are against the Sudanese now ex-president, Omar al-Bashir. I know that the ICC is still very involved in looking at what is going on currently in Darfur, and especially around El Fasher and El Geneina. They have issued repeated warnings that what is happening there, and the crimes that are alleged, do fall under their jurisdiction, and they are looking at it very closely. Reuters did a big story—I think a video report—on El Fasher just a couple of weeks ago. We’ll link to that in the show notes, where they basically charted the takeover of the city by the Rapid Support Forces and the massacres that are alleged to have happened afterwards, linking them to certain people. And when that was put out, I got some interested phone calls and approaches by people at the ICC saying, “We’re going through this with a fine-tooth comb to see what you have. We need your evidence. Give us your evidence, guys.” Which is, yeah, one of those things that news agencies don’t really do. You can take what we have on the web, but at the moment that journalists get perceived as providing direct evidence for war crimes courts, it makes it dangerous for our colleagues.

Janet: 30:24  So what about the bigger geopolitical side of things? Because that’s also what I mentioned with Antonia, and I have seen a lot of reporting around that. What is alleged is that the United Arab Emirates has been very heavily involved. I believe it’s no longer kind of a secret because it seems like everybody and their mother is writing reports on this. They’ve been supplying the RSF, but then we’ve also got other countries working with the Sudanese Government. There’s a big movement, as far as I can see, to talk about what it means in terms of potential accountability avenues on arms supplies. I don’t know exactly what that would mean, but there are at least one court—maybe two courts, maybe just one court. You say, Stef, what may be involved in the Hague. 

Stephanie: 31:18  What we saw last year is that Sudan itself brought a case against the United Arab Emirates for violating the Genocide Convention by allegedly supplying RSF troops with weapons.

Janet: 31:32  That was at the International Court of Justice, but it didn’t quite work?

Stephanie: 31:37  No. The problem there is that Sudan asked for provisional measures—you know, the kind of emergency thing, “Please stop doing what you’re doing while we look at this case.” But the United Arab Emirates has a reservation to the Genocide Convention, which essentially means that you cannot take it to the ICJ for violations. So we had those hearings, and Sudan got a public forum to say what it accuses the United Arab Emirates of. But then, in the end, the judges said, “Sorry, they didn’t sign the right bits of the Convention,” and so we’re going to chuck this case and scrap it from the roster.

Stephanie: 32:13  Jurisdiction, jurisdiction, jurisdiction.

Janet: 32:16  Yeah, I was speaking to an international lawyer about another case earlier this week, and he said that you’ll carry on seeing people knocking at this door, whichever countries are involved, because of this sense that, “How can any country have a reservation on genocide? You just can’t.” So people will carry on arguing that, but the judges so far aren’t convinced. But I also had something kind of pass through my email, and I decided to pass it on to our great colleague Margarita Capacci. She is covering this now—an Article 15 application, a set of documentation at the International Criminal Court. Do you want to just run through the outline of what we know there?

Stephanie: 33:00  Yeah, so this is—as we know, Article 15 communications, the Court gets tons and tons of them. But when they’re really, really good and put together by able lawyers, it’s sometimes interesting. So what I do when I get these Article 15 communications is I try to check if it could potentially go anywhere. Again, when I spoke to one ICC contact, they seemed quite interested to know what would be in this Article 15 communication, and also the link to other states, so maybe that’s just their special interest. On the other hand, it leads me to believe that maybe somebody will take a closer look at this at the Prosecutor’s Office. So what happened with this Article 15 communication is this group of lawyers and NGOs urged prosecutors to investigate criminal responsibility for actors under the articles of the Rome Statute which make it possible to prosecute those who aid and abet, or knowingly contribute to, crimes committed by a group acting with a common purpose, as it’s called.

Janet: 34:05  Again, these submissions—I agree—sometimes they’re more interesting. Sometimes they feel to me a little bit like spaghetti, and my reference there is the traditional idea of throwing spaghetti at the wall to see what will stick. But we have seen in completely different cases that the spaghetti does stick. Somehow you get jurisdiction. This particular one also names a really wide range. Apart from the United Arab Emirates, I caught up with it and it said Libya, Ethiopia, Chad, Somalia, Kenya and Uganda. Kenya—there we go again. But also, on the other side, ideas of who’s funding the Sudanese side, who are also accused of various atrocities, and that’s Iran, Turkey and Egypt. What do you think about spaghetti stuff?

Stephanie: 34:55  I think sometimes, as you say, if you have a bright idea, it kind of sticks. I think this is another attempt to throw everything at the wall. What we’ve seen in reporting is a lot of accusations of United Arab Emirates involvement. I wonder—I know that the ICC, as always, is overstretched and cash-strapped and under political pressure as well.

Janet: 35:22  I mean, we’ve got sanctions on this, and suddenly they’re meant to take on yet another sort of big country. I mean, they have taken on Russia and they have taken on Israel, so maybe they’re up for taking on yet another non-member state and saying, “You know, we don’t need your support. We’ll just…” What was it Fatou Bensouda used to call it? “Without fear or favour.”

Stephanie: 35:43 Without fear or favour, yeah. I mean, they could do that. I think, looking at the reality of that, there are no, that we know of, applications or arrest warrants yet for current events in Darfur where there are people who have been identified as potential perpetrators. I think it’s maybe a leap to think that they will go for this complicated, potentially also politically fraught, idea to target this other big country. But, as we’ve said in earlier pods, the rules around arrest warrants and applying for arrest warrants have changed. The Office of the Prosecutor can no longer decide to make them public. They are secret by default, and only a judge can make them public. The same applies if an arrest warrant is issued. It used to be public by default and then you had to make it secret. Now it’s secret by default, and a judge or panel of judges has to decide to make it public. So I think with the pushback they’ve gotten on their public arrest warrants, maybe now the Court is kind of keeping everything under wraps. It’s really hard to say what’s going on. But I feel that if they haven’t done the more recent Darfur cases on the kind of local perpetrator level, would they immediately level up to the involvement of a foreign actor? I mean, that’s hard, right? You would think, if you look at how you build cases, you start with the crime base and the atrocities and somebody who’s responsible, and when you have that person, you can maybe link them to receiving arms from abroad. So in terms of technically building a case…

Janet: 37:23  Yeah, but I mean, let’s look at what the Court has done in the last couple of years. That’s not building a case—that’s going straight for the top a lot of the time. So I can see it, but I agree with you, I can also not see it. So one to watch. See you for the last week, which will be our last week’s podcast in a couple of weeks’ time, and then we’ll be taking a break in August. So speak to you again soon.

Stephanie: 37:48  Thank you. Bye.

[OUTRO TUNE]

Narrator: 37:51  This was asymmetrical haircuts, your international justice podcast created and presented by Janet Anderson and Stephanie van den Bergh. This episode was created in partnership with JusticeInfo.net, an independent site covering justice efforts for mass violence, and 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.

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