Sajid Javid's decision to reverse decades of British government policy is wrongheaded and reckless
Nearly all western democracies, as well as dozens of other countries, have abandoned capital punishment. There is good reason for this: none of the arguments made in its favour stand up to scrutiny. It does not deter others, nor save innocent lives by ensuring that murderers cannot kill again. It is wrong to suggest there is a moral claim for retribution. The United States is an exception, wrongly persisting with the death penalty. So it is appalling to learn that a British cabinet minister would see fit to send 2 men to stand trial in America on charges that could see them executed.
Yet this is the chain of events that the home secretary, Sajid Javid, has set in motion with a letter to the US attorney general, Jeff Sessions, published in a newspaper on Monday. In it he states that the British government is prepared to waive its usual insistence that the death penalty should not be applied in the case of two men alleged to have been part of an Islamic State execution squad, Alexanda Kotey and El Shafee Elsheikh. They are being held by US-backed Syrian Democratic Forces, and appear likely to be tried in the US with the cooperation of the UK. The murders these men are alleged to have committed alongside 2 other British men - Mohammed Emwazi, known as Jihadi John, and Aine Davis - were barbaric. The victims included 2 British aid workers, Alan Henning and David Haines, as well as three Americans, the journalists James Foley and Steven Sotloff and humanitarian worker Peter Kassig. Other westerners were held hostage and tortured. It is not an exaggeration to say the videos that the killers made, in which their captives gave statements before being beheaded, shocked the world. No doubt some people will feel that the sheer horror of such deeds means we need not worry too much about due process. Emwazi was killed by a drone strike in Raqqa in 2015, while Davis is in prison in Turkey. Kotey and Elsheikh have been stripped of their British citizenship, and since the men they are alleged to have killed included Americans, there is a case for trying them in the US.
It's not hard to see why this is Mr Javid's preferred outcome. There is no doubt that dealing with the hundreds of British fighters for Islamic State is extremely challenging. But it is deeply concerning that Mr Javid apparently believes a successful prosecution is more likely to take place in the US than in the UK, even if this includes the violation of human rights norms to which the UK has adhered for decades. It is well known that such violations, and the existence of facilities such as Guantanamo Bay, can aid and facilitate terrorists. The UK government's blanket opposition to the death penalty is a longstanding point of principle. Its abolition has been an objective of foreign policy. However heinous the crimes thought to have been committed by Kotey and Elsheikh, assurances that the death penalty would not be applied should have been sought from the US government in the usual way.
Source: The Guardian, Editorial, July 24, 2018
British readiness to allow death penalty for IS 'Beatles' suspects shows the need to strengthen the law
The British home secretary's decision to assist authorities in the US with the prosecution of 2 Islamic State terrorist suspects, without first seeking assurances that they will not face the death penalty, has attracted criticism from human rights activists, other MPs, and legal commentators. While some have suggested that Sajid Javid's actions contradict long-standing British law and policy, I believe they reveal the need to reform British law and policy regarding the death penalty.
Alexanda Kotey and El Shafee Elsheikh, from West London, are accused of being the last surviving members of the so-called "Beatles" gang of British IS fighters. They were arrested in February by Syrian Kurdish fighters. They are currently detained in Syria on suspicion of committing some horrific atrocities, including the beheadings of US and UK nationals. Britain could seek custody of the 2 men, given their links to Britain, but Javid has instead assured his American counterpart that the UK will permit their extradition to the US, and will hand over intelligence to help prosecute them over there on charges that are punishable by death.
In his letter to Jeff Sessions, the US attorney general, which was leaked to the Daily Telegraph, Javid also stated that the UK would not demand assurances that the US would not seek or impose the death penalty on the 2 men. It is this statement that has inflamed politicians of all parties, lawyers, and activists: they claim that the UK not only has a strong tradition of seeking "no death penalty" assurances, but is also legally obliged to seek such assurances.
It's certainly true that UK law, European law, and international law all prohibit states which have abolished the death penalty from extraditing individuals within their jurisdiction if there is a risk that the receiving state will impose a death sentence or carry out an execution. This much is made clear in Article 7 of the 2003 extradition treaty between the UK and the US; a decision of the European Court of Human Rights in 2010; and in multiple reports of various UN bodies (see paragraph 57).
And it's true that the UK has traditionally sought such assurances in extradition cases, including in the notorious Jens Soering case in the late 1980s. US authorities requested the extradition of Soering and his girlfriend to stand trial for murdering her parents in Virginia, and the UK duly sought assurances that Soering would not face a death sentence (his girlfriend pleaded guilty and avoided capital charges).
Rules on 'mutual legal assistance'
But when Ben Wallace, a security minister, was pressed in parliament on the alleged incompatibility of Javid's letter with the law and policy on extradition in capital cases, which could involve a death penalty, he revealed that the present case is not an extradition one. Kotey and Elsheikh used to be British citizens, but Wallace confirmed that their citizenship had been revoked. They are not within the custody of British officials either, so they are not within the jurisdiction of the UK for the purposes of extradition law.
Instead, this is a case about aiding another country with a prosecution, referred to as mutual legal assistance, and the law in this field is not quite the same. The UK's Overseas Security and Justice Assistance Guidance makes it clear that "no death penalty" assurances should be sought before providing intelligence and other assistance. The guidance also makes clear that, on occasion, officials may decide, with ministerial approval, that "there are strong reasons not to seek assurances" and that "given the specific circumstances of the case, we should nevertheless provide assistance".
In 2017, the National Crime Agency was rebuked by the High Court for providing assistance to Thai authorities in a case that resulted in the death penalty, but only because the agency didn't seek ministerial approval first. In the case involving Kotey and El-Sheikh, ministerial authorisation has been given, in the shape of Javid's letter.
Strengthen the law
The problem, then, is not so much the content of Javid's letter, but the law and policy that has enabled him to take this step. British law and policy is currently premised on a belief that the extradition of a person is qualitatively different to the provision of mutual legal assistance. However, in capital cases, it's arguable that both extradition and the provision of assistance constitute complicity with the death penalty, and it is unacceptable for an abolitionist state to ever be complicit in a practice that it has roundly condemned.
Up until Javid's letter emerged, it looked like the UK was aligning its mutual legal assistance policy with its extradition policy. In 2013, the UK followed the likes of Ireland, Germany, Austria, Denmark, Ireland and Norway in refusing to provide assistance to anti-drug trafficking initiatives in Iran when it became clear that this assistance was contributing to the execution of drug traffickers. The British government, like the European Union, has also enacted export controls to ensure that private companies cannot export the drugs that are needed for lethal injections. Again, this recognises that the UK must not in any way contribute to the use of capital punishment elsewhere, regardless of whether or not the person facing death is in our jurisdiction.
Those who have expressed disgust with Javid's letter are right to do so - it flies in the face of British moral opposition to state-sanctioned killings, and it hinders the UK's ability to promote abolition worldwide. But their anger would be better directed towards strengthening British law and policy against complicity with the death penalty.
Source: theconversation.com, Bharat Malkani, July 24, 2018. The author is Senior Lecturer, School of Law and Politics, Cardiff University.
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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