22 June 2018
An internal government memo dated 22 June 2018, leaked to The Daily Telegraph and marked ‘Official Sensitive,’ noted that UK ministers would not oppose the US government sending two British terror suspects, Alexanda Kotey and Shafee El-Sheikh, to Guantanamo, although at the same time acknowledging that ‘GTMO is seen by many as acting as a recruiting sergeant for extremists intent on undermining Western values.’ The report added that ‘there are also wider reputational risks of HMG seemingly undermining our publicly stated desire to see GTMO closed…..’1
The dossier’s wording implied that British officials had come under pressure from Washington and the resulting agreement, made secretly and without any reference to parliament, went against repeated government assurances that any suspect British jihadists in Syria would be brought back to face justice in British courts. One diplomat admitted to The Daily Telegraph that it was about finding a country where their conviction could be virtually guaranteed, since ‘getting enough evidence to be confident of a conviction at home is difficult.’2 The government knew that evidence against at least one of the suspects was desperately weak and that there was little prospect that any court in Britain would find him guilty on the evidence available. 3
The briefing paper attributed the decision to hand Kotey and El-Sheikh over to America, jointly to Home Secretary Sajid Javid and Foreign Secretary Boris Johnson but noted that the prime minister, Theresa May, was aware and therefore presumably approved of this new position. Within hours of the leak being published on 23 July, Number 10 confirmed this was the case. In a separate document, also dated 22 June, the government agreed to reverse its long standing position on never assisting in the extradition of suspects who might face the death penalty, again in secret and without any consultation with parliament. Referring to the two suspects, Javid informed Jeff Sessions, the US Attorney General, that he was 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.’4 Johnson also agreed, despite admitting that ‘not seeking assurances… could damage our ability to secure adequate assurances from the US and other countries in future.’5
The British concession, was in the words of Ben Emmerson QC, a British lawyer specializing in human rights law, ‘the clearest possible breach of the European Convention on human rights.’6 It also went against the wishes of many of the relatives of terror victims, who openly opposed such a move including Diane Foley, the mother of murdered Journalist James Foley, who reasoned that a death penalty would only fulfill their ‘desire for martyrdom and heroic afterlife.’7
The Daily Telegraph, having leaked the documents, subsequently lauded the government’s secret decision, declaring that as Javid searched for ‘a jurisdiction that would allow a fair trial…. the obvious place would be the United States,’ neglecting to mention the possibility of referring the case to the International Criminal Court at the Hague, although this of course would be difficult if the court didn’t agree with the government’s assertion that it would be unreasonable to bring a case against the suspects in the United Kingdom. 8
- Ben Riley-Smith, ‘Javid tells US: We won’t block death penalty for Isil ‘”Beatles,”’ The Daily Telegraph, 23 July 2018, p. 1 and p. 5.
- Josie Ensor, ‘Government not keen to handle legal “hot potato,”‘ The Daily Telegraph, 23 July 2018, p. 5.
- Francis Elliott and Oliver Wright, ‘May Willing to Let Jihad Britons Face Execution,’ The Times, 24 July 2018, p1.
- Ben Riley-Smith, 23 July 2018, Ibid., p. 1.
- ‘Johnson Warned of Isil Death Penalty Risk,’ The Daily Telegraph, 24 July 2018, p. 1.
- Ben Emmerson QC cited in James Crisp and Ben Riley-Smith, ‘Isil “Beatles” human rights challenge,’ The Sunday Telegraph, 29 July 2018, p. 2
- Ben Riley Smith, 23 July 2018, Ibid p. 5.
- ‘Sajid Javid took the right decision,’ The Daily Telegraph, 24 July 2018, p. 15.
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