The British home secretary’s decision to assist authorities in the US with the prosecution of two 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 two 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 two 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).
Read more: Lessons from history on what to do with foreign fighters returning from Syria
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.