European human rights judges would rule Britain’s plan to waive death penalty assurances for two suspected members of the Isil ‘Beatles’ terror cell illegal, experts say, and could order the UK to seek US guarantees and even pay the men damages.
The decision by Sajid Javid, the Home Secretary, has already been challenged with a judicial review in the High Court.
Even if British justices decide the failure to seek guarantees for Alexanda Kotey and El Shafee Elsheikh is legal, a case could be brought to the European Court of Human Rights (ECHR) in Strasbourg, France.
“The Home Secretary’s decision in this case is in the clearest possible breach of the European Convention on Human Rights,” Ben Emmerson QC, the former UN Special Rapporteur on Counter-Terrorism and Human Rights, who currently sits as a judge for the UN International Criminal Tribunals, told The Telegraph.
The Convention has a protocol that abolishes the death penalty in all circumstances and an article guaranteeing the right to life.
Article 3 of the Convention, which forbids “inhuman and degrading treatment” has been used in the past to fight extraditions from Britain to the US because a prisoner would face the death penalty. The Convention is given force in British law in the Human Rights Act 1998.
“The Home Secretary’s decision in this case is subject to a general provision of that statute that makes it unlawful for a minister to take a decision that is incompatible with the Convention rights,” said Mr Emmerson, of Matrix Chambers, London.
Ben Keith, a human rights barrister at 5 St Andrew’s Hill said “If the High Court was to refuse to hear or dismiss the challenge, European proceedings could follow quite quickly, in a matter of months,” he said.
“To my knowledge the US has never failed to give assurances to Britain over the death penalty when asked,” he added, “It is bizarre, surreal they have not been asked to provide them.”
The court is not a European Union institution but associated with the Council of Europe, a separate international body to the EU with 47 member states.
Theresa May has suggested the UK could leave the Convention in the past, which according to Council sources, would take just six months.
Her Brexit White Paper promises European Union negotiators that Britain will never leave the Convention to win their backing for a UK-EU extradition treaty to replace the European Arrest Warrant after Britan leaves the bloc.
“If it is still too difficult to prosecute here at home those who have gone to work for or to assist Daesh/ISIL abroad, and if that is because of some obligation under the European convention on human rights, is it not time to take back control?”, demanded Michael Fallon MP in the House of Commons on Monday.
After a landmark 1990 ECHR case, Jen Soering, a German national facing double murder charges, was only extradited from Britain to the US once death penalty assurances were offered.
In 2010, the ECHR overturned a High Court decision and ordered the UK to pay damages to Faisal al-Saadoon and Khalef Hussain Mufdhi ,two Iraqis accused of murdering capitive British soldiers. They faced the death penalty after the army handed them over to Iraqi authorities for trial.
In 2014, the ECHR ordered Poland to seek assurances from the US that two terror suspects would not face the death penalty after they were allegedly transported from a Polish CIA black site to Guantanamo Bay.
European Convention on Human Rights
An international treaty ratified in 1950 intended to safeguard human rights and freedoms in Europe. It was drafted by the Council of Europe, a post-WWII supranational organisation that should not be confused with the European Union.
European Court of Human Rights
The Strasbourg court formed to enforce the terms of the Convention. It adjudicates on cases involving states that are alleged to have breached their human rights obligations. Its judgements have the power to strike down secondary legislation in the UK (ie. anything short of an Act of Parliament) and UK judges are obliged to take into consideration its case law when deciding relevant cases.
Charter of Fundamental Rights of the European Union
Legislation brought in by the EU to make the Convention on Human Rights enforceable by European Union courts. It achieved the force of law in 2009. The Charter means that EU institutions and member states must obey the Convention when implementing new laws. This has implications for the UK post-Brexit, if it is brought into UK law via the Great Repeal Bill.
Human Rights Act 1998
The HRA incorporated the rights of the European Convention into British domestic law. It enabled British human rights cases be be decided in British courts; it enforced public sector adherence to Convention rules; the UK Parliament will seek to avoid secondary legislation that would be struck down by the European Court.
British Bill of Rights
A long-held Conservative Party ambition (since 2005) is to replace the HRA with legislation that would allow the UK more leeway in interpreting human rights law. There is little detail publically available, but points of the HRA that this Act could modify:
Source: The Telegraph, James Crisp, July 28, 2018Theresa May has suggested the UK could leave the Convention in the past, which according to Council sources, would take just six months.
Her Brexit White Paper promises European Union negotiators that Britain will never leave the Convention to win their backing for a UK-EU extradition treaty to replace the European Arrest Warrant after Britan leaves the bloc.
“If it is still too difficult to prosecute here at home those who have gone to work for or to assist Daesh/ISIL abroad, and if that is because of some obligation under the European convention on human rights, is it not time to take back control?”, demanded Michael Fallon MP in the House of Commons on Monday.
After a landmark 1990 ECHR case, Jen Soering, a German national facing double murder charges, was only extradited from Britain to the US once death penalty assurances were offered.
In 2010, the ECHR overturned a High Court decision and ordered the UK to pay damages to Faisal al-Saadoon and Khalef Hussain Mufdhi ,two Iraqis accused of murdering capitive British soldiers. They faced the death penalty after the army handed them over to Iraqi authorities for trial.
In 2014, the ECHR ordered Poland to seek assurances from the US that two terror suspects would not face the death penalty after they were allegedly transported from a Polish CIA black site to Guantanamo Bay.
The UK’s human rights regime
European Convention on Human Rights
An international treaty ratified in 1950 intended to safeguard human rights and freedoms in Europe. It was drafted by the Council of Europe, a post-WWII supranational organisation that should not be confused with the European Union.
European Court of Human Rights
The Strasbourg court formed to enforce the terms of the Convention. It adjudicates on cases involving states that are alleged to have breached their human rights obligations. Its judgements have the power to strike down secondary legislation in the UK (ie. anything short of an Act of Parliament) and UK judges are obliged to take into consideration its case law when deciding relevant cases.
Charter of Fundamental Rights of the European Union
Legislation brought in by the EU to make the Convention on Human Rights enforceable by European Union courts. It achieved the force of law in 2009. The Charter means that EU institutions and member states must obey the Convention when implementing new laws. This has implications for the UK post-Brexit, if it is brought into UK law via the Great Repeal Bill.
Human Rights Act 1998
The HRA incorporated the rights of the European Convention into British domestic law. It enabled British human rights cases be be decided in British courts; it enforced public sector adherence to Convention rules; the UK Parliament will seek to avoid secondary legislation that would be struck down by the European Court.
British Bill of Rights
A long-held Conservative Party ambition (since 2005) is to replace the HRA with legislation that would allow the UK more leeway in interpreting human rights law. There is little detail publically available, but points of the HRA that this Act could modify:
- Inability of the Home Office to deport nationals who face persecution in their own countries
- Lack of discretion in negotiating various rights of EU nationals in the UK
- Constitutional muddle, which allows the UK Supreme Court to effectively ignore the European Court, while putting Parliament under that same court's jurisdiction. The Supreme Court should always hold less power than Parliament.
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde