Q&A: International Law and Justice

Sam Sasan Shoamanesh, JSM ’12, the former Chef de Cabinet to the Prosecutor at the International Criminal Court, discusses his decades-long career at the forefront of international law.

War is hell, as Sam Sasan Shoamanesh knows too well.

The turbulence of Iran’s Revolution of 1979 and the Iran-Iraq War that soon followed formed the touchstones of his early life.

Born in Iran in 1976, he recalls the war’s sirens warning of imminent rocket attacks, bombs blasting whole neighborhoods, chemical attacks—the killing and maiming. Later, he and his family became part of one of history’s many battle-weary diasporas, emigrants who eventually settled in Canada, where he has made his home ever since.

“These experiences stay with you. Even to this day, when my wife and I hear an alarm that sounds something like those air raid sirens we experienced as children, memories come back and we instinctively react,” he says in the interview that follows.

Those early experiences gave way to a deep-rooted drive to help make a positive change—and a passion for the rule of law and peaceful settlement of disputes.

Q&A: International Law and Justice

He set his sights on a career in international law, forgoing an offer from a prestigious law firm to work with the UN International Criminal Tribunal for the former Yugoslavia (ICTY) and then the International Criminal Court (ICC) in The Hague, which was established in 2002 as the first and only permanent international court dedicated to the investigation and prosecution of those responsible for committing genocide, crimes against humanity, war crimes, and the crime of aggression. He began a career with the ICC in 2005 and, while holding various positions including Chef de Cabinet to the Prosecutor (2013-2021), has helped to influence its development and leave his mark on it—and indeed on international justice. Known as the “Chef of all Chefs de Cabinets” and her “right arm” by the former ICC Chief Prosecutor Dr. Fatou Bensouda, he stood firm against unprecedented pressure and threats aimed at undermining prosecutorial independence and played a key role in the successes achieved during her term, including in some of the court’s most politically sensitive cases. He currently provides general counsel  services to the Office of the Prosecutor, where he, among other achievements, negotiated more than 30 million euros in voluntary contributions from ICC member states in support of the office’s work.

In tandem with his work with the ICC, Shoamanesh, JSM ’12, has built a reputation as a thought leader in the field, writing scholarly papers and policy analyses on topics such as the need for an indigenously driven inclusive regional security framework in the Middle East. He is the founding vice president of The Institute for 21st Century Questions, a vision and strategy think tank, and co-founder and managing editor of Global Brief, an influential international affairs magazine.

In the interview that follows, Shoamanesh discusses (in his personal capacity) the ICC’s many challenges and accomplishments, including its novel support for the participation of victims in court proceedings and successes prosecuting traditionally under-reported crimes such as sexual and gender-based crimes and the deliberate destruction of cultural heritage sites. The interview was conducted by Gulika Reddy, assistant professor at Stanford Law School and director of its International Human Rights and Conflict Resolution Clinic. Reddy has conducted human rights advocacy around the world and focuses on inequality, discrimination, armed conflict, peacebuilding, and the role of education in unlearning bias and fostering inclusion.
— by Sharon Driscoll

Gulika Reddy: You’ve held many roles at the ICC and elsewhere. What brought you to this work?

Sam Sasan Shoamanesh: With the benefit of hindsight and at the risk of sounding clichéd, I can say that I always had a strong innate sense of justice, even as a child. This is something intrinsic to me, a strong sense of right and wrong and the need to right wrongs, especially when perpetrated against the vulnerable.

Two major historical events in my formative years have had a profound impact on my life. The first being the 1979 revolution in my country of birth, which brought about tectonic social and political changes in the country. The rest is history.

And, of course, the Iran-Iraq War, which broke out in 1980.

There was a phase of the war infamously called the “War of the Cities” that I remember as being particularly traumatic for me as a child, which entailed Scud missiles being indiscriminately fired at major cities in Iran and regular aerial bombardments. These experiences stay with you. Even to this day, when my wife and I hear an alarm that sounds something like those air raid sirens we experienced as children, memories come back and we instinctively react. These experiences also instilled in me the importance of finding other ways of addressing international disputes through peaceful means, as well as the importance of international law, protection of human rights, and diplomacy and multilateralism to resolve conflicts and preempt destructive hot wars. War is often the failure of leadership and human imagination to do better.

Reddy: What was your path to the ICC?

Shoamanesh: I had been at the UN ICTY, which was created pursuant to a resolution of the United Nations Security Council. The ICC, on the other hand, is treaty-based. I chose to move to the ICC in 2005 because of the immense potential it has to address and deter atrocity crimes within its jurisdiction across the globe as a permanent international court of last resort. The opportunity to contribute to institution building and the court’s evolution was an exciting prospect.

The position that was presented to me at the time was to help with the work of the Counsel Support Section at the ICC and build up the section, which deals mainly with the provision of legal aid to indigent persons and helps facilitate legal representation for the defense guided by the principle of equality of arms and due process rights of accused persons and also for victims’ participation. Empowering victims to actively participate in ICC proceedings is an important innovation and crucial to ensuring that justice is done and seen to be done.

As part of the section’s work, we also developed and organized trainings for external counsel and their team members—for various reasons. First, to provide enhanced training opportunities on the law, procedure, and practice of the ICC to legal professionals admitted to practice before the court. Second, part of the court’s mission is to cultivate a culture of understanding and awareness of the ICC and benefiting from different systems and exchange of expertise, whether it be from India to places in Africa or elsewhere. We therefore engaged in a lot of raising awareness missions and training for members of the legal profession, in particular women, to get involved in different capacities before the ICC. I had the honor of actively participating in such efforts, encouraging more women lawyers, in particular from the African continent, to join the growing lists of lawyers eligible to practice before the ICC.

Reddy: Can you talk about some of the ways in which the ICC evolved during your time there?

Q&A: International Law and Justice 2
Dr. Fatou Bensouda and Sam Sasan Shoamanesh, JSM ’12, brief the Security Council on the situation in Darfur, Sudan, in 2019. (Photo by UN PHOTO/LOEY FELIPE)

Shoamanesh: Well, from an international court that had just been established with no cases before it, the ICC evolved into a fully functional international jurisdiction with a growing number of member states, active cases in the court’s docket, over 1,000 personnel, with teething pains and many ups and downs along the way.

I came back to the ICC after taking time off to pursue graduate studies at Stanford, and I applied to work with the then newly elected Chief Prosecutor Dr. Fatou Bensouda, a former minister of justice and attorney general in The Gambia, and I joined her team as Chef de Cabinet.

The first prosecutor had tried to set up the office and its first cases, which all related to situations in Africa. The mandate of the Office of the Prosecutor is multifaceted and challenging. Criticism, justified or not, is very much part of the equation. By the time Prosecutor Bensouda assumed office, there was a perception of African bias, that the court is only “going after” perpetrators in Africa. Of course, this simple narrative was not based on the facts, and the office had been and continues to work on all situations where it has jurisdiction, whether in Africa or elsewhere. With limited resources, we had the weight of great expectations on our shoulders with countless files in either the preliminary examination, investigation, or trial phases, many with their own unique challenges and difficult operational contexts.

During Prosecutor Bensouda’s term, the office instituted major reforms, policy innovations and managerial initiatives. The office’s activities expanded to cover 14 investigations and preliminary examinations in conflicts around the world to advance accountability for atrocity crimes, including successes in court with respect to charges of sexual and gender-based crimes, crimes against children and deliberate destruction of cultural heritage. A number of preliminary examination files saw important progress and reached conclusion with many resulting in decisions whether to open an investigation including in Mali, Georgia, Ukraine,Myanmar-Bangladesh, Afghanistan, and Palestine.

The important work of the Office of the Prosecutor has since progressed with major developments under Prosecutor Karim A.A. Khan.

“The ICC is the first permanent international criminal court in human history, so a historic first, and it is evolving and constantly improving. Its very existence puts potential perpetrators on notice.”

Sam Sasan Shoamanesh, JSM ’12, Former Chef de Cabinet to ICC Prosecutor

Reddy: What are some of the challenges the ICC is experiencing with prosecuting or investigating major conflicts around the world?

Shoamanesh: The ICC is a colossal undertaking, and expectations are incredibly high for an organization that’s funded by its member states and given a relatively meager budget. Yet demand keeps growing because of the state of the world. We’re not seeing a lessening of conflict and the commission of international crimes but an increase.

The UN ad hoc tribunals dealt with one single situation at a time. You can only imagine the magnitude of the task at the ICC having to deal with countless conflict and post-conflict situations around the globe with a modest budget trying to make a dent.

So, there’s a mismatch between expectations and capability, not because of a lack of qualitative competence. It’s rather a question of resources, need for prioritization, and operational or institutional constraints. For example, we don’t have our own police force. If you look at how criminal cases are prosecuted at the domestic country level, you need the full cooperation from the local police to execute arrests, et cetera. We rely on the cooperation of ICC state parties to do that. Even where we manage to gather the evidence needed to meet the evidentiary thresholds through the conduct of our investigation—which can often be a difficult task, typically played out in the midst of an ongoing conflict and lack of resources—you need the cooperation of states to facilitate your investigations and to execute warrants of arrest. We receive such support, but at times it could be stronger—and more consistent.

Understandably, states also have their own financial issues, especially given the post-pandemic financial recovery. They have to prioritize how much they can give. Of course, it’s incumbent on the ICC to ensure that it demonstrates its value and that it’s doing the job efficiently—by the book. That way, you gain the trust of your stakeholders, first and foremost, the states that fund us. But I think certain tensions will be there just by virtue of the nature of the court’s mandate, the magnitude of the undertaking, and the different actors that are part of the Rome Statute system.

Reddy: Can you talk about challenges in prosecuting cases, including those where some of the parties are not signatories to the Rome Statute?

Shoamanesh: The Office can only act where it has jurisdiction under the Rome Statute, the ICC’s founding treaty. When you are dealing, for instance, with situations of ongoing conflict, apart from the political sphere, which I can’t speak to, there are operational challenges. Our job as a prosecuting office is to collect the evidence professionally—in the golden hour of investigations, where possible—and make sure we take the necessary measures to preserve the evidence, protect witnesses, and avoid retraumatizing victims and witnesses. These can be difficult in a normal circumstance. Can you imagine trying to conduct that work when you need but don’t have access to the territory? There are security concerns and obligations vis-à-vis witnesses and the Office’s own personnel.

What’s more, depending on the situation, whoever we interact with in the context of investigations, we could possibly put at risk because there are potent forces that may feel threatened by the work that we do. So, we need to have the capability and operational feasibility to be able to protect those witnesses. There are methods, procedures, and ways we have devised to get around these challenges. All these things translate into tactical, strategic, and operational questions that we must take very seriously and execute in a responsible manner.

Q&A: International Law and Justice 1
Gulika Reddy, assistant professor and director, International Human Rights and Conflict Resolution Clinic (Photo by Scott MacDonald)

Reddy: What about the challenges that investigations face with new technologies related to AI, deepfakes, and cyberattacks?

Shoamanesh: Technology is a double-edged sword. We use technology to help us in our work. For one of our cases, we built the case largely on the basis of evidence obtained through social media. Of course, you collect the evidence, and you have to be very careful because you have to corroborate it and ensure it’s not altered. And technology comes into that as well to make sure that forensically, you’re absolutely sure that what you’re seeing, hearing, and reading is authenticated, corroborated and can withstand judicial scrutiny.

Now, the flip side is that technology can also be used by others for nefarious purposes. Technologically inclined malefactors, for instance, engage in cyberattacks, and technology can be used to manipulate evidence, and more. As was publicly reported, in 2023, the ICC was the direct target of a sophisticated cyberattack “with the objective of espionage.” Opponents of the court are becoming increasingly technologically savvy and using technology to penetrate our systems. The ICC is building its technological resilience in order to protect confidentiality, meet its obligations towards witnesses, its personnel, and so on.

Reddy: Can you talk about the ways in which the ICC centers the needs and priorities of victims?

Shoamanesh: It’s a matter of law under the Rome Statute that victims are not only witnesses in criminal proceedings but can also be participants to the proceedings in order to present their views and concerns when their personal interests are affected. While inspired by civil law jurisdictions, it is a rather sui generis process at the ICC. Victims have effectively been given their own voice in the proceedings before the court.

Then they have a dual hat, so to speak. They can come as witnesses before the court, but also as victims. They are provided legal representation with lawyers assisting them to participate in those proceedings. If there’s a conviction and it’s upheld, there’s also a phase for compensation or reparations in ICC parlance. The court has established the facilities to ensure that the indigent accused and victims benefit from legal representation, but also funds and support services in order to advance their respective rights in ICC proceedings.

All this, as it concerns victims’ participation, is incredibly novel and has not happened in such a robust way at other international criminal jurisdictions.

Reddy: Have there been barriers to adopting a victim-centered approach?

Shoamanesh: There have been some difficulties and growing pains. For instance, some defense counsel from countries with a common law adversarial system initially had difficulty understanding or fully accepting the role of victims in the proceedings vis-à-vis the presumption of innocence and due process rights of a defense. The Rome Statute is, however, clear that the right of victims to participate in ICC proceedings should not be prejudicial or inconsistent with the rights of the accused and a fair and impartial trial.

The substantive and procedural rights of victims at the ICC, as well as the institutional support for these rights, continue to be shaped and enhanced. I believe the ICC is in a much better place today in this regard.

Reddy: Can you talk about the importance of prevention in international criminal law?

Shoamanesh: Just like the domestic criminal justice system has general and specific deterrence as key objectives, so does the international criminal justice field. The ICC is the first permanent international criminal court in human history, so a historic first, and it is evolving and constantly improving. Its very existence puts potential perpetrators on notice. And the more successful prosecutions we have, the more deterrence we build. With each case, we demonstrate that an international crime can be prosecuted; that sets a positive precedent and hopefully contributes to prevention.

The ICC was established in 2002 when the Rome Statute was entered into force following 60 ratifications. More countries have since ratified the Rome Statute. Armenia recently joined, for example. Today, the ICC has 124 state parties. Increasing membership not only gets us closer to universal jurisdiction but also expands the reach of the ICC. So that also contributes to the court’s deterrence. The ICC does not, however, compete with national jurisdictions. In fact, states have primacy of jurisdiction, so the obligation is on them in the first instance to genuinely investigate and prosecute. The ICC only steps in when they fail in that duty because they are either unwilling or unable to do so. So, in theory, under the shadow of the ICC, states are incentivized to investigate and prosecute, not least because states want to protect their sovereignty. That jurisdictional relationship the ICC has with member states, which we call “complementarity,” is helpful for deterrence too.

“The ICC is a colossal undertaking, and expectations are incredibly high for an organization that’s funded by its member states and given a relatively meager budget. Yet demand keeps growing because of the state of the world.”

Sam Sasan Shoamanesh, JSM ’12, Former Chef de Cabinet to ICC Prosecutor

Reddy: What were some key successes at the ICC when you served as Chef de Cabinet?

Shoamanesh: We had a number of successes when I served under the former prosecutor’s term, from a management perspective to refining our working methods and advancing the core mandate, including in the courtroom. For example, we had the win in the Ahmad Al Faqi Al Mahdi case, where we prosecuted Al Mahdi for intentionally directing attacks against religious and historic sites in Timbuktu, Mali. We benefited from the helpful cooperation of UNESCO in the case. That conviction set an important precedent for this traditionally neglected criminality.

We made novel advances when it came to pushing the envelope of international humanitarian law in terms of sexual slavery. International humanitarian law normally protects non-combatants, and combatants in terms of crimes committed against the other side. But we got the chambers, and the appeals chamber upheld it, in the case of sexual slavery, to say no, if an armed group commits these crimes against members of their own group, they can be held accountable.

We secured an important conviction in the Ongwen case [a senior leader with the Lord’s Resistance Army in Uganda] for attacks on the civilian population, sexual slavery, forced marriage and forced pregnancy, conscription of children to be used in hostilities, murder, torture, pillaging, and other atrocities. The accused was sentenced to 25 years of imprisonment, upheld on appeal.

We made steady progress in other files. As previously mentioned, we implemented a rigorous process of preliminary examinations to determine whether jurisdictional requirements are met to open investigations with respect to a number of situations—in Colombia, Venezuela, Georgia, Myanmar-Bangladesh, Guinea, Ukraine, and Afghanistan, for example. We also advanced the preliminary examinations with respect to the situation in Palestine, another incredibly difficult and politically fraught situation. The investigation in that situation was opened in March 2021, notwithstanding all types of unprecedented attempts to interfere with prosecutorial independence. We robustly engaged with all stakeholders in all these situations in good faith and did this work with utmost commitment, independence, objectivity, and professional rigor.

We also reviewed our internal processes and made advances in the way we conduct investigations and prosecutions. We implemented a number of very important first policy frameworks under the Rome Statute when it comes to sexual and gender-based crimes, as well as crimes against children in armed conflict, and the protection of cultural heritage in times of war, to name a few. Critically, after reviewing and updating or creating new policies, we put them into practice, as the cases I mentioned demonstrate. The portfolio was very large, and I was privileged to have the trust and confidence of the prosecutor to make my contribution to that team effort.

Reddy: Is there something from your time at the ICC that you feel particularly proud of?

Shoamanesh: Let me speak more generally rather than to specific accomplishments. In this field, integrity is crucially important. I have always prided myself on my unshaken professional integrity. Given the nature of the court’s work operating in highly politically charged situations, everyone’s integrity will be tested—especially as the stakes get higher and we face challenges of unbelievable magnitude. If you don’t have the force of your conviction, if you don’t believe in higher ideals, in the importance of doing the right thing, with integrity to back you, to help you through the challenges, you will crumble or worse. I’ve always been a professional in every piece of advice that I’ve given, big or small. When the court was under serious pressure, in my previous role as Chef de Cabinet, notwithstanding being the subject of personal threats, I tried to be a pillar of strength for the prosecutor, my colleagues, the office, and for the institution to help manage the unprecedented attacks we faced for honorably executing the ICC’s mandate, without fear or favor.

If the ICC—and international criminal justice writ large—has any chance of succeeding and maintaining credibility, it must shield itself from political manipulation and just do its job clinically and professionally always with integrity, as dictated by the Rome Statute. And first and foremost, have the victims of these horrendous crimes squarely in view. The institution was born of the ashes and untold human suffering in thousands of years of human history of war and conflict, but also in the hope that victims will have recourse to justice when there’s no other place they can turn to when these heinous crimes are committed.

We must not lose sight of the progress we have made to date, but aspire for a more just world where impunity for atrocity crimes is no longer tolerated in our civilizational ethos and accountability for such crimes is lived in practice in a consistent and principled manner.

Reddy: Are you hopeful about the future of the international criminal justice field, and human rights more broadly?

Shoamanesh: I started my career with much optimism. I’ve since seen a lot and have been through a lot personally, in terms of being an eyewitness to the struggles of trying to make international criminal justice work at a very deep level, and that is wearying. The challenges are there, and I don’t think they’re going to go away anytime soon. But advancements in human history did not happen because people gave up hope. “Hope is the engine that drives human endeavor,” once stated my late friend and colleague Benjamin Ferencz, the former chief prosecutor of the Einsatzgruppen trial at Nuremberg.

I strive to remain optimistic because I need to have hope.  For thousands of years, we didn’t even talk about “human rights” as a universal concept—there was no such thing in our consciousness, while these are inherent, inalienable rights simply because we are members of the human species. And then, through trial and horror, there was an awakening and people finally said, “Enough,” and demanded these fundamental rights to be respected. We’ve since made great strides, but ample work remains to be done.

Reddy: Do you have any career advice for law students?

Shoamanesh: The journey to success is a personal one and seldom achieved without the trinity of passion, commitment, and hard work. As with the chronicles of life, there will be ups and downs. Being true to yourself and having the courage of your convictions will pull you through. If you’re interested in pursuing a career in international law, seek out opportunities and test the experience to see if it is a good personal fit. The world is the limit, and your journey has just begun. Make it count.

Reddy: Thank you, Sam. It was such a joy to speak with you.

Shoamanesh: It’s really for me to thank you. SL