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How will Syria's war crimes be punished?

As the Syrian conflict rages on, international legal experts are already discussing how to punish those responsible for the war crimes being committed by both sides. It's a question world leaders are hoping to delay.

One thing is certain - the videos showing gas attack victims writhing in agony in a suburb of Damascus, Syria, on August 21 were not fake. Not even the Russian leadership has denied that a war crime was committed, but so far world leaders seem reluctant to find out who was responsible. Intent on passing a resolution that simply avoided military intervention, the United Nations Security Council failed to refer the crime to the International Criminal Court - the permanent war crimes tribunal in The Hague, Netherlands - leaving the atrocity that triggered the present Syrian crisis hanging in the air.

The horrors being committed by both sides of the Syrian conflict have begun to emerge thanks to a commission of inquiry on Syria by the UN's Human Rights Council. In the words of one of its members, Carla del Ponte, a former chief prosecutor at the tribunal for the former Yugoslavia: "I have never seen anything like it. I have never seen torture methods like those used in Syria - not even in the Balkan wars."

United Nations vehicles are seen arriving at a hotel in Damascus on October 1, 2013 as a chemical weapons disarmament team is due to begin the task of inventorying the country's arsenal of the banned weapons in readiness for its destruction. The 20-member team will begin an inspection mission before the arms are turned over for destruction under UN Security Council resolution 2118 adopted last week. AFP PHOTO / LOUAI BESHARA (Photo credit should read LOUAI BESHARA/AFP/Getty Images)

The UN human rights commission cannot enter Syria

Since the UN commission has been denied access to Syria by President Bashar al-Assad, its information about these crimes is based on online databases put together by Syrians in exile in contact with people inside the country - an unprecedented advantage should there be a tribunal.

"Before the war broke out, Syria was already an Internet-savvy society," Hamit Dardagan, co-director of the Every Casualty project at the Oxford Research Group in the UK, told DW. "Local groups immediately took advantage of social media to relay information out to compatriots abroad, who have the means to collect this information."

This information will prove invaluable. But the question of who to punish is complex. Syria is not a party to the ICC, which doesn't have jurisdiction over war crimes committed there unless the Security Council grants it.

'Chautauqua Blueprint'

Although the UN's work faithfully documenting war crimes is vital, it is not much use without a court to try the perpetrators. But should that court be international, as in the case of the former Yugoslavia, or domestic - as in the case of Saddam Hussein's trial in Iraq? One proposal for Syria has now been made by an international group of legal experts. They revealed last week that they had spent the last two years framing a draft statute for a special tribunal in Damascus to try top-ranking officials and soldiers suspected of atrocities.

The discussions that led to the so-called "Chautauqua Blueprint,"(PDF) which took place in the US and Istanbul, Turkey, relied on a substantial amount of bravery from sitting judges in Damascus, who risked their lives sneaking in and out of Syria to take part in the discussions. They joined opposition leaders, Syrian jurists, and international lawyers, and NGO representatives to hammer out what became a 30-page blueprint for prosecuting war criminals - should Assad's regime be toppled.

Not just revenge

Michael Scharf of Case Western Reserve University in the United States and acting as spokesman for the group explained that the blueprint was being unveiled now because of developments at the UN Security Council.

"The Security Council discussions did not talk about accountability," he told DW. "We wanted to inject the concept of accountability into the international peace discussions in a serious way. We can't just say, 'let's get rid of the weapons,' if those weapons have already been used."

U.S. Secretary of State John Kerry (L) and Russian Foreign Minister Sergei Lavrov (R) shake hands after making statements following meetings regarding Syria, at a news conference in Geneva September 14, 2013. The United States and Russia have agreed on a proposal to eliminate Syria's chemical weapons arsenal, Kerry said on Saturday after nearly three days of talks with Lavrov. REUTERS/Larry Downing (SWITZERLAND - Tags: POLITICS CIVIL UNREST)

The UN Security Council failed to refer the chemical attack to the ICC

Of course, as Anthony Dworkin of the European Council of Foreign Relations said, this court's viability "relies on the consent of whatever the successor regime is." And who knows how long it would take for this government to be established. "The big question for me is how far are you going to get when you have so little idea of what's going to emerge at the end of the conflict?"

But Scharf said that doesn't preclude having a discussion. "In some situations, after there's been a change in government, there's an effort to throw something together without much thought," said Scharf. "What we wanted to do is have something already in hand - a detailed discussion draft to be used as a blueprint."

Moreover, the draft was meant to give the opposition the chance to regain some moral initiative. "When you talk to rebels and Syrians in exile, they're often so angry that they say, 'We just want to take over and kill these madmen,'" said Scharf. "What this effort does is get them to embrace the rule of law. It's really important for the international community to see the opposition embracing something like this."

International vs. domestic

Scharf was an adviser to judges at the Iraqi High Tribunal, which tried Saddam Hussein. "Most people in the West think that Saddam's trial didn't go well, because it was a fairly messy televised trial," said Scharf. "But in Iraq, the population felt that that trial accomplished a whole lot of things that they needed in order to move on."

Similar to the Iraqi court, the tribunal proposed for Syria is primarily domestic, with most, if not all, of the judges being Syrian. "The attraction of this path is that it gives greater Syrian ownership," said Dworkin. "The attraction of the ICC is that it really is going to be impartial and not swayed by domestic politics."

The emotive aspect aside, the Syrian tribunal "is either a complement or an alternative to the ICC," said Scharf. "The ICC only prosecutes people at the very top - that's it's modus operandi - but there's a large segment, around a hundred people, according to the Syrians we've been working with, who are senior leaders who are really also very culpable."

He also points out that Assad could be indicted by the ICC but never stand trial - escaping into exile in Russia for instance - while the military leaders who actually carried out the chemical weapons attack would be left unpunished by the ICC.

An activist wearing a gas mask is seen in the Zamalka area, where activists say chemical weapons were used by forces loyal to President Bashar Al-Assad in the eastern suburbs of Damascus August 22, 2013. REUTERS/Bassam Khabieh

Internationally, no one argues that war crimes have not been committed in Syria

Death penalty conundrum

The Saddam precedent also raises the spectre of the death penalty. "That was a huge discussion for us," said Scharf. "The international experts, talking to the Syrians, told them that it's a big mistake to have the death penalty, because the international community won't fund and support the court. The human rights community will condemn it."

According to Scharf, the Syrians' response was exactly the same as that of the Iraqis: "They said, 'Look, we have the death penalty in our country, it's part of who we are, and for these types of atrocities we can't imagine not having it.'"

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