Revenge or retribution: Is it possible to prosecute war crimes for Syria?

A blue-ribbon panel of veteran legal experts is to unveil a blueprint for a war crimes tribunal for post-war Syria. Realistic? Naïve? Premature? Or just plain ol' essential?

Bassam Khabieh/REUTERS
Survivors from what activists say is a gas attack are seen along a street in the Duma neighborhood of Damascus, Syria, August 21, 2013.

The videos of people writhing and crying in a Damascus suburb – civilian victims of an apparent sarin gas attack – prompted international outrage and nearly resulted in missile and air strikes by the US against Syria.

Yet while there is little doubt that a war crime was committed in the Aug. 21 event, the perpetrators remain unknown and unpunished. The same is true for the litany of atrocities committed during the brutal two-plus years of the Syrian war, which has left more than 100,000 people dead and more than a million people displaced.

But an influential group of international legal experts is working to make sure that justice will come eventually to Syria. On Thursday, an elite group made up of prosecutors, judges, and law professors closely involved in creation of similar courts for Rwanda and Yugoslavia will unveil in Washington the first substantive proposal for a war crimes court for a post-conflict Syria.

Informally called the Chatauqua Blueprint, the 32-page proposal is being circulated among US government officials and has been in the works for two-plus years, engineered and supported by figures like Richard Goldstone, the chief prosecutor of the International Criminal Tribunal for the former Yugoslavia; David Scheffer, the former US ambassador-at-large for war crimes; and Cherif Bassiouni, an eminent human rights scholar who helped set up the legal infrastructure of the International Criminal Court. The group also includes veteran jurists of other war crimes tribunals like Sierra Leone, and Iraq, and includes Syrian opposition members.

“The only way for the country to move forward, and for the people to regain their society and lifestyle and be welcomed into the international community, is if they embrace justice,” says Michael Scharf, a law professor at Case Western Reserve University in Cleveland and co-chairman of the proposal’s drafting committee.

“If the conflict ends and you have groups seeking nothing but revenge, that’s not good. This is so that Syria doesn’t remain a basket case, or become a lawless country like Somalia. That’s not good for anybody,” says Mr. Scharf, who advised some of the judges at the Iraqi court that tried Saddam Hussein.

The proposal, which will be distributed to Security Council members, UN agencies, human rights groups, and others, lays out a rough outline for a special court similar to others that have been created in recent years, such as in Sierra Leone, to try Charles Taylor, or in Cambodia, to prosecute top members of the Khmer Rouge. But it leaves unresolved some essential details, such as whether judges would be Syrians, foreigners, or both; who would be targeted for prosecution; whether the death penalty would be included.

The possibility of setting up a Syrian-based tribunal, or one that has participation of international legal experts, reflects the fact that Syria isn’t a member of the ICC and it is unlikely that the UN Security Council would authorize the ICC to open a criminal case.

The open details also reflect divergent opinions between Western legal experts and Syrians, which included judges and prosecutors who currently work for the government of President Bashar al-Assad. Some of the Syrian judges participated in discussions with members of the drafting committee, for example, sneaking across the border into Turkey for meetings, Scharf says.

David Crane, a Syracuse University law professor and former chief prosecutor of the Special Court for Sierra Leone, says the fact that the war was continuing, with no foreseeable end in sight, didn’t preclude coming up with a framework for “judicial accountability” now – for either top members of the Assad regime or rebel groups.

Being prepared ahead of time, he says, also would help avoid the “Libyan result” – when Libyan leader Muammar Qaddafi was beaten and gunned down while fleeing rebel fighters in 2011.

“We’re trying to say you can get your revenge and retribution by using the rule of law, not by using the barrel of the gun,” Mr. Crane says, who also works with the Syria Accountability Project, which has been gathering evidence and laying the groundwork to help any future prosecutions.

“I’m very aware that this could be a fool’s errand, and I may wake up and Assad could end up getting asylum in Russia or Iran…. It’s certainly a real possibility,” he says.

The US State Department had no comment on the proposal on Wednesday.

Ahead of Thursday’s unveiling, some legal experts and Syrian activists voiced doubt about how realistic the tribunal would be, given how ruthless some of the documented crimes and attacks committed by government forces have been.

“We would need a new Syrian government to set up and carry out this proposed statute,” wrote Hofstra University law professor Julian Ku, on the legal blog Opinio Juris. “And to get that new Syrian government, would we have to promise some sort of immunity to the old Syrian government that committed all those horrible crimes we want to prosecute?”

Mohammad al-Abdallah, a Syrian exile who is executive director of the Hague-based Syrian Justice and Accountability Centre, says the proposal stands to be labeled as a US proposal, which would undermine its legitimacy in the eyes of many Syrians.

“The US is not the best country to announce judicial accountability mechanism for Syria,” Mr. al-Abdallah says. “It will be looked as the US version of accountability. We need accountability for everyone.”

“It’s not the right time to do this,” he says. “There’s no way to speculate what will come next, what will happen with the war…. Such a big tribunal will have big question mark about legitimacy, justice on behalf of whom?”

Last month, an investigative panel set up by the UN Human Rights Council released its latest report, documenting instances of government troops of massacring civilians, bombing hospitals, and committing other war crimes, as well as opposition forces committing executions, hostage-taking, and shelling civilian neighborhoods.

“The perpetrators of these violations and crimes, on all sides, act in defiance of international law. They do not fear accountability,” the panel’s report said. “Referral to justice is imperative.”

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