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ISIS Beatles: The UK government should not facilitate their execution just because it falls under another jurisdiction

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What’s the point of having no death penalty in Britain if we extradite people to countries where they do?

Image credit: Sky News

In previous cases Britain has asked for a guarantee that convicts will not suffer the death penalty when they are extradited to other countries. What is unusual in the case of Kotey and Elsheikh, two Brits who are said to be members of the Beatles cell of ISIS, is that Britain has made no such demand this time.

The two accused were captured in Syria by the US-backed Syrian Democratic Forces in January. They are believed to be part of the Beatles group in which the third member is dead and the fourth is being held in Turkey. Overall the Beatles captured a range of foreign hostages earning millions of dollars in ransom payments. Allegations of the pair include videotaping beheadings, exploitation and execution of Western detainees, and having links to the British terrorist called ‘Jihadi John’. The case has since stirred up quite a lot of attention around the world.

A letter from the Home Secretary to the US Attorney General regarding this case has now been leaked to the media. Sajid Javid has been heavily criticised for noting that they would not demand a ‘no death penalty’ assurance this time. Understandably, this has upset quite a lot of human rights groups and civil liberties campaigners. Does this signal a departure of Britain from their long stance on death penalty abolition?

So, what is happening politically? Despite the Home Secretary privately approving this, Theresa May is now refusing to back the execution. Shami Chakrabarti, Labour’s shadow attorney general, also disapproves and comments that Javid appears to be encouraging this human rights abuse. Amnesty International is right to be worried that this development will cast doubt around the world whether Britain continues to advocate abolishment of the cruel and degrading practice of death sentencing. There seems to be chaos in the media as politicians scramble to come up with a response to this issue and human rights groups are launching criticism at the Home Office.

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Whilst this case raises several human rights issues, including the fact that the pair might be sent to controversial Guantanamo Bay, the most significant is how easily Britain departs from its opposition to the death penalty. When even the mother of a son beheaded by the IS cell is against the idea of a death penalty for the accused, we know that something must be wrong. The danger with the death penalty is that there is always the chance that an innocent man or woman may die because of a failure in the system. It is scary to think about the number of people that have had convictions overturned because of aid from organisations like the UK Innocence Project. However, these will be of no help to a person that is dead.

The Home Secretary’s defence to the criticism appears to be that the US has additional charges for terrorism that the UK currently doesn’t. His line of argument therefore appears to be that they are more equipped to handle the trial. However, this can surely be no defence to not demanding a ‘no death penalty’ assurance. His statement that he is “of the view that there are strong reasons for not requiring a death penalty assurance in this specific case” are worryingly vague.

He also argues that despite this decision they continue their policy to not assist in US death penalty cases generally. This does nothing to eliminate my concern because if they can make one exception, they can easily find reasons for making others. Norway’s opposition to the death penalty was made especially clear when they even refused to impose the death penalty on the biggest Norwegian terrorist we have seen. Yes, the UK is not considering re-introducing the death penalty to their own criminal justice system. Is allowing it to happen and looking the other way any different though? I would strongly argue that it is not.

We cannot facilitate the inhuman execution of this pair just because it is under another jurisdiction. Terrorist cells of ISIS are breaching human rights in the most horrible ways, but we should not sink to their level. It is in the UK Government’s best interest right now to come up with a real response and make their stance on death penalty clear to the rest of the world.

Kristin Klungtveit is a first year undergraduate law student at the University of East Anglia.

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Please bear in mind that the authors of many Legal Cheek Journal pieces are at the beginning of their career. We'd be grateful if you could keep your comments constructive.

37 Comments

Anonymous

Some one failed EU law – because of of the requirement for joining the EU is that you get rid of the death penalty.

Anonymous

More likely that someone hasn’t taken it yet given that the author is a first year.

The big problem is that they are technically stateless.

Anonymous

Isn’t it the case that the UK can’t strip someone of their citizenship if they would otherwise be stateless? Presumably they had dual nationality?

Anonymous

Yes – that’s exactly how it works! Don’t know why you got down voted, it’s just another pretext of EU membership. Cannot make someone who would otherwise be an EU citizen stateless, unless they have citizenship for another country.

Anonymous

Member state citizenship is within the competence of member states; EU citizenship is parasitic on MS citizenship. Not sure it’s an EU law matter tbh.

Anonymous

Page 8, 6th line down in the document you posted.

Anonymous

fucking shit damnit i read that wrong

donald duck

of of

Anonymous

Proposition: “Executing a murderer brings society down to their level and makes us as bad as them”.

If so:

Does fining a thief “make us as bad as them”?

Does imprisoning a defendant for kidnap and false imprisonment “make us as bad as them”?

Discuss.

There will be a death penalty referendum within a decade.

John Smith

I think you mean a requirement for signing up to ECHR…

Anonymous

Doesn’t matter – they committed crimes under another jurisdiction where they should face the punishment of that land. When will Britain stop it’s superiority complex of enforcing our ideology onto other nations?

On a side note: I couldn’t care less if they get executed considering what they have done in Syria/Iraq.

Anonymous

Not sure what the fuss is about? Does anyone care about the human rights of the victims the group killed in unspeakable ways?

They forefited their human rights when they stopped acting like humans and deserve more than a lethal injection in my opinion. Perhaps flaying?

Anonymous

It’s entirely possible to care about more than one things at a time, e.g. the human rights of these two and the terrible fate of their victims. Even taken as a piece of rhetoric (rather than a statement of law), it is simply false to state that they forfeited their human rights. They did not.

The Majority

Yes, they did!

Anonymous

Oh, OK – your advocacy has won me round

Anonymous

A) Their UK nationality has been removed. B) They are neither in this country nor in our custody abroad, so there is no question of our ‘extraditing’ them.

Anonymous

Yes. The media appears to have overlooked this. They weren’t captured by British forces and they’re no longer British in any event. I’d be interested to know why the UK’s position on this has any bearing at all.

Anonymous

The UK’s position on this is relevant because the question is whether the trial should take place in Britain or the US:

“According to the Telegraph, Javid wrote to US Attorney General Jeff Sessions and said Britain was not intending to request that the two men be sent to the United Kingdom, saying a successful prosecution in the United States was more likely”

Anonymous

Every dead Islamist terrorist makes the world a better place.

Corbyn.Sympathiser

poor chaps. they are nice people really. typical islamaphobic tory judicial murder. nothing has changed since the C18 Black Acts.

Time for Change for the many not the…(ahem well i’d better not say)

Mammy Briscoe

BLACK Acts???

DASS RAYSISS!!!!!!!!!!!!

Teresa

There is a split in the Conservative party. Some of us are taking a medium term view now, to align with the global power of Putin and Trump.

This view takes into consideration that those men and their countries will not convert to Islam , even in the long term, and that , if necessary, some of the 266 billion pounds worth of US NATO weapons and their Soviet equivalent would be deployed in that regard.

It seems that the Home Secretary takes this view. He is MP for Bromsgrove.

I take the view that I will struggle to win Maidenhead next time if I follow the Putin / Trump model, Sajid is ok to follow it.

We all have our powerbases. This is true in Parliament as it is amongst middle class students at university who start their publishing career early.

You make your allegiance, you write your narrative accordingly.

The test here would be does Chami Chakrabati consider it a civil liberty to fight for your religious belief and return here, like George Orwell did in 1936 against fascism, or does she consider it a crime, even if that belief in 2018 is the revival of the caliphate which Kemil Attaturk wrongly secularised to nothing in Turkey in approx 1924 ?

At the moment “Yes I do” can be hidden behind “I do not believe in execution.” But Is “Yes I do”, there?

That is intended to be fair comment, not hate speech.

It would be interesting to know Chami’s answer and the response of the real Corbyn.sympathiser.

Anonymous

I wonder what practical use the US and ‘soviet’ nuclear stock could be put to in preventing individuals from converting their religion…

Anonymous

Yep – threats of violence are notoriously successful in getting people to give up or change their religious views…Teresa writes like an A level politics student who has just got stuck into their first couple of journals. To be fair she may well be!

Anonymous

I’d be surprised if your 266 billion is all nuclear. I would be surprised if Russia do not have precise conventional weapons.

I’d be surprised if the US hawks would hold back from bombing and regenerating London, like they will do with Baghdad, on the grounds of “oh it is London.” If Putin was given a cut, he might ally or abstain.

Maidenhead , being close to Slough, is likely to turn for Khan and Labour soon.

Trump and Putin do not have this demographic Achilles heel.

May does.

Javid has backed the new world order as of July 2018 , May is taking the more established demographic without a war world view which existed prior to the Trump Putin summit. Chakrabati likewise.

Isis are trying to restore the caliphate by force. They must do this, it is doctrinal. It is not the only method of war being deployed to restore It, though.

Anonymous

I’ve never seen a proper justification of the ‘no extradition in the face of the death penalty’ argument. (I get the point about this not even applying in this case: I’m talking generally.)

If we doubt that a foreign legal system is capable of proper process and reliable justice we (arguably) shouldn’t extradite at all. But if the other jurisdiction does have an acceptable system of criminal trial but punishes differently what business is it of ours?

Going abroad, committing crime and then relying on domestic law to avoid the consequences seems indefensible.

Particularly as we – as in the Privy Council – still hear capital appeals.

Joob

Very interesting article, but I think you skip over a few important things and make a few false comparisons which really dent your argument.

First, the notion that there are zero justifiable exceptions to a governmental policy against a death penalty is tenuous at best. EU states (in vehement opposition of the death penalty) will orchestrate wars and authorise the use of lethal force against combatants whose level of ‘criminality’ is never going to be ascertained until after the trigger is pulled. This nonsense about making a policy-altering exception to the rule is just a slippery slope argument garnished with false equivalency.

Secondly, as far as I have seen, these two chaps have had their UK citizenship revoked (I think Ben Wallace confirmed this yesterday) so the UK Government are not extraditing anyone anywhere. The main issue is that we do not posses as much evidence against these men as the US does and so that is why we have elected not to try them in the UK, and are instead providing the evidence we hold to the US. If we doubt the veracity of another jurisdiction’s criminal proceedings, why would we allow them to stand trial there at all? Could that be, perhaps, why we wouldn’t allow them to be tried by the Kurds or by the Syrian judiciary?

I would also be careful about how far you go in stating your point, e.g. in your last paragraph you say “we should not sink to their level”. I get what you’re trying to say here, but you’re equating the unspeakable horrors that daesh inflicts upon innocent men, women and children; the murder, rape and other torture that they will continue to to inflict if not stopped, to the potential deaths of two individuals whose guilt (and even, perhaps, direct involvement in these aforementioned acts of horror) will need to be proven beyond all reasonable doubt?

Anonymous

Less emotions and feelings, more laws and lawings pls.

Also: “The danger with the death penalty is that there is always the chance that an innocent man or woman may die because of a failure in the system” is not an effective argument when we all know what barbaric things those men have done.

Anonymous

Too right – we don’t need to bother with any kind of process in the cases of people who have done such awful and barbaric things, and are clearly not innocent. In fact, we could just execute all the people who do barbaric things without bothering to consider their possible innocence. All we would need is some process for filtering out the people who might be innocent first.

Bar Warrior

You all seem to forget, this pair of freaks are not British Citizens, and they ruthlessly tortured, beheaded and burned their hostages. Why should we show an ounce of mercy to them? Not our problem Comrades. The legal profession is becoming swamped with leftard luvvies, opposing everything for the sake of it. These 2 monsters deserve all they get – death penalty included. Bye bye terrorist wasters. Lets see if your false promises of 21 Heavenly virgins was worth it.

Anonymous

Typical leftie showing mercy to terrorists, only a left-wing snowflake student could be so naive to the political realities that countries like the UK need to do MORE to deter terrorism. Whether it’s the UK or another country that carries out the death penalty, there’s no tears from me. I’m sure the author probably advocates for open borders while being far detached from the areas which have been torn apart by mass immigration

Anonymous

In response to the opening paragraph: what’s the point of claiming we adhere to the rule of law if we try our damndest to subvert it just because we don’t like the legal position of another state?

Scep Tick

” What is unusual in the case of Kotey and Elsheikh, two Brits who are said to be members of the Beatles cell of ISIS, is that Britain has made no such demand this time.”

They’re no longer British. Citizenship stripped. They put themselves under someone else’s flag.

CM

Some people don’t deserve punishment… they deserve gunishment.

abcdefg

If you cut someone’s head off you’re a very mean person and you should be put in a room with nice paintings and given the right to visit a library twice a week, have family visits and maybe in a few years you can come out and you won’t be mean and cut people’s heads off anymore

Dianne Abbott

This ^

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