04:36, July 24 59 0 theguardian.com

2018-07-24 04:36:05
UK may face legal challenge over US extradition of Isis pair

UK ministers could face a legal challenge to the decision to assist the US extradition of two former British Islamic State terrorists without demanding they do not face the death penalty, as Downing Street backed Sajid Javid’s decision to allow the move.

No 10 has said Theresa May backed the decision by the home secretary to waive the long-standing convention.

The men, Alexanda Kotey and El Shafee Elsheik who have been stripped of their British citizenship, are being held by Kurdish forces in Syria and are set to be extradited to the US, but prosecutors have said British evidence is needed to secure conviction, which Javid has offered without seeking the normal reassurances about possible execution.

Ben Emmerson QC, a former UN special rapporteur on human rights and counter-terrorism who sat as a judge on the international criminal tribunals for Rwanda and the former Yugoslavia, said it was “largely an unprecedented situation”.

He called it “unprincipled, incompetent and almost certainly unlawful” for the decision to have been taken and said it could be challenged in the courts.

“Historically it has been the British government’s position in all cases to oppose the death penalty in all circumstances,” he told BBC Radio 4’s Today programme.

“And that has translated to an absolute rule, which is legally enforceable, not to extradite an individual to a country where they are at serious risk of the death penalty without an assurance that the penalty will not be carried out.”

May was “aware of these plans and supports the way that this has been handled,” her spokeswoman said. “The ultimate aim for all of us in our discussions with the US is to make sure that these men face the rest of their lives in prison. That is also what the victims’ families want,” she said.

The decision, taken by Javid and the former foreign secretary Boris Johnson, was revealed in a leaked letter by the Telegraph, in which Javid told the US attorney general, Jeff Sessions, he would not to seek a “death penalty assurance” before the men were extradited to the US to face a federal trial.

The men have been stripped of British citizenship, the security minister, Ben Wallace, confirmed on Monday.

Emmerson said it was “immaterial” that the men were no longer British citizens. “It is passing information to a foreign power where they know the consequences are going to be a fundamental human rights abuse of this kind,” he said.

The pair were members of a British terror cell known as “the Beatles” and believed to be responsible for the gruesome killing of more than 20 hostages, including Britons and Americans.

“All assistance and material will be provided on the condition that it may only be used for the purpose sought in that request, namely a federal criminal investigation or prosecution,” Javid wrote.

“Furthermore, I am of the view that there are strong reasons for not requiring a death penalty assurance in this specific case, so no such assurances will be sought.”

Johnson warned in a briefing document circulated to the department and ministers that such a move could have an effect on Britain’s leverage to demand a death penalty exemption in future, but suggested the benefits of a US federal trial outweighed that risk.

The justice secretary, David Gauke, also defended the decision on Tuesday. “We have to bear in mind the government is determined to ensure the two individuals are properly brought to justice and the decision was made on the details of their particular cases,” he said.

“I don’t think anybody wants to see those two individuals walk free because there’s insufficient evidence to bring a case against them.”

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