Strong Reasons
Frederick Wilmot-Smith
Alexanda Kotey and El Shafee Elsheikh are said to have been part of the terrorist cell that beheaded numerous British and American citizens, including the journalist James Foley. The pair, currently detained in Syria by Kurdish forces, are likely to stand trial for these crimes in the United States. Part of the reason Guantánamo Bay remains open is that it can be extremely difficult to secure convictions in such cases; the US will want as much evidence as possible, and the UK, which has been gathering intelligence for years, will have a lot.
The UK's policy has long been that it will not share evidence unless an assurance is given that the death penalty will not be imposed. On 22 June the home secretary, Sajid Javid, wrote to the US attorney general, Jeff Sessions, to say that no assurance will be sought in this case. That may be unprecedented: the government has not yet been able to name a single instance when it had not sought such an assurance in the past.
Diane Abbott tabled an urgent question in the House of Commons yesterday. Javid did not attend; Ben Wallace, a Home Office minister, answered on his behalf. In his letter to Sessions, Javid referred to ‘strong reasons for not requiring a death penalty assurance in this specific case’. Wallace would not say what they were: he claimed, without explanation, that this would undermine the US investigation.
Perhaps officials at the Home Office did not realise how extraordinary their position was. It is, either way, hard to envisage any reason – beyond a desire to appease the US; Javid's letter referred to their 'frustration' with the case – that an assurance would not be sought. Reference was often made to the gravity of the crimes. But why is that relevant? The government opposes the death penalty, the prime minister’s spokesman affirmed, ‘in all circumstances as a matter of principle’. Wallace sometimes spoke as if the choice were between releasing the individuals without charge, and their being charged with a risk of execution. This could only be true if the Trump administration threatened to release them should the UK insist on an assurance. Wallace seemed to deny that any such threat was made.
The episode may do diplomatic harm; the UK can no longer speak without equivocation about the death penalty. It certainly does moral harm: if the individuals are executed, the UK is complicit in the machinery of death. Javid's reasons had better turn out to be very strong.
Comments
There is nothing fundamentally irrational about ETJ. Ireland, for example, may arrest and try people for crimes committed in Northern Ireland rather than extraditing them. (This has nothing to do with the now-abandoned claim to Northern Ireland itself; it was instituted during the Troubles when extradition was politically difficult.) The British-Irish Agreement recognizes this Irish claim and makes it reciprocal: people arrested in Northern Ireland may be tried there for crimes committed in the republic.
Most claims for American ETJ involve crimes committed in international waters or airspace or in space, or else in diplomatic missions, consulates, or military bases. However, the U.S. also asserts jurisdiction over crimes committed against U.S. citizens on land that is outside the jurisdiction of any nation. Since the defendants were captured by a military that does not answer to the Syrian government, it is a question who has de facto jurisdiction, if anyone. In such a situation, a case can be made (which is not to say that I wish to make it, as an American unalterably opposed to the death penalty in all cases whatsoever) for ETJ by the nation of some of the victims. This was the situation in the famous 1904 crisis of "Perdicaris alive or Raisuli dead", where the victim was American (although, as it turned out, no longer a citizen) and his captor was a rebel against the Moroccan government who was holding him for ransom. U.S. Marines were landed, but the matter was settled peacefully.
From a legal point of view, the UK could itself assert ETJ and punish the killers appropriately (presumably by life imprisonment with a whole-life tariff) for their crimes against British citizens. That's assuming that the Kurdish force would actually turn over their prisoners to the UK, which probably does not have the power to seize them by force. Inter arma silent leges.
Joe Morison insulted him.
I'm just asking if FoolCount's reading of the law is right or wrong. (I have no idea.)
Syrian law may indeed require the handover by the Syrian Kurdish authorities of the 2 suspects, but the Kurds may not agree, or only as part of some deal. And if they don't agree, there is not much that the Syrian government, which has no control over the Kurdish-held territory, can do about it.
The suspects knew the risks they were taking in going to Syria, and I see no reason for the USA, or anyone outside Syria, to have any say in the matter. It's not an issue of international law. I hope, however, that wherever they may be held or tried, the suspects will be treated with respect and humanity.
I watched an interview of these two cretinous beheaders on VICE News recently. They did not display a speck of remorse for the murders they committed and in fact seemed quite proud. Before their interview a mother from Raqqa was interviewed and shown as she desperately searched through the cavernous jail and its cells below the city's stadium looking for some evidence of her son's whereabouts. He was one of thousands of locals jailed and almost surely executed by Kotey, Elsheikh and their ISIS cohorts before they fled the bombing and the Kurds. Watching the arrogance of these two butchers juxtaposed against the grief of that poor mother was both heartbreaking and infuriating.
But what is even more disturbing is that the bombing carried out by the U.S. on Raqqa was so savage and unrelenting that, when combined with the atrocities of ISIS during and after its occupation (it left mines planted throughout the remnants of the city), it appears to have left this once thriving metropolis in a state of devastation even worse relatively speaking than that that in Dresden, Hamburg, Tokyo, Hiroshima and Nagasaki in WWII. Let us hope the Raqqa related bloodletting will end after the Americans, with the connivance of the Brits or otherwise, have sated themselves through the executions of Kotey and Elsheikh.
Personally, I prefer not give these guys the martyrdom they were too cowardly to seek on the battlefield. I think a life sentence at a federal supermax prison would be the most appropriate justice for them. Who knows, they might find Jesus become born again Christians in time!
'Hate the sin, love the sinner' taught Augustine; or, in the words of the Buddha, 'Hatred cannot be ended with hatred. Only love can end hatred. This is an absolute truth.' This the gold at the heart of the Enlightenment and all great western literature.
All hatred does is breed more hatred, never in the history of humanity has it achieved anything else. If this lesson has been forgotten by people who call themselves progressive, their self-identifying is an obscene error and we really are headed into a new dark age.