Anger grows over European refusal to take responsibility for foreign fighters in Syria
Fear of US outrage ‘forced UK death policy shift’
Britain was accused on Monday of abandoning its long-standing opposition to the death penalty for ISIS terror suspects in the United States, as European capitals seek to avoid the repatriation of foreign fighters from Syria.
British officials shifted the country’s stand over three months in 2018, after their ambassador in Washington stirred fears of outraging President Donald Trump, London’s High Court was told. Mr Trump could “hold a grudge” if Britain refused to allow its intelligence to be used for death penalty cases in the US, according to the diplomat.
The apparent change in policy came as Britain prepared the ground for members of an ISIS hit squad - suspected of kidnapping 27 people and beheading five westerners in Syria and Iraq - to be tried in the US.
Alexanda Kotey and El Shafee Elsheikh – two members of the squad dubbed "the Beatles" because of their English accents – were captured in Syria in January.
The pair are among up to 900 foreign fighters held in northern Syria amid signs of growing impatience from local authorities at the apparent unwillingness of their home nations to repatriate them and put them on trial.
Dr Abdulkarim Omar, head of foreign affairs for the semi-autonomous Kurdish enclave, warned that chaotic conditions in the region could allow fighters to escape, should western states continue to refuse, like Britain, to take the detainees back.
He said about 500 women and more than 1,000 children from 44 countries were being held.
Mr Omar said on Twitter the authorities would use “diplomatic means” to hand over ISIS fighters, but would take unspecified further steps if that approach failed. He did not detail other potential steps, inviting speculation that some could be freed to spark western action or used for prisoner exchanges with ISIS.
Countries such as France want foreign fighters to be prosecuted, while the Dutch and British authorities have stripped nationals of their citizenship to remove their rights of return, even before criminal convictions.
“The local authorities in northern Syria have made it very clear that they have no desire or intention to prosecute people at this point,” said Nadim Houry, head of the counter-terrorism programme at Human Rights Watch.
“This has been a series of missed opportunities. Many of them are wanted in their home countries with arrest warrants and they have key information such as leadership structures that’s essential for justice.”
Mr Elsheikh, whose British citizenship was stripped in 2014, has been implicated in the murders of three US and two British citizens, according to court papers.
Earlier this year, UK prosecutors said they were unlikely to secure a successful conviction because of his treatment while in custody and suggested US courts would have more chance
UK police compiled 600 pages of witness statements against the group. Previous UK practice was to allow their use only if the US guaranteed they would not face the death penalty.
The UK government started changing its policy from April 2018 after complaints by US Attorney General Jeff Sessions that the UK was seeking to “tie his hands” over any prosecution, according to lawyers for Mr Elsheikh's family.
The events led to the UK ambassador in Washington, Sir Kim Darroch, to issue a note in May, warning of the impact on UK-US relations of failing to change policy.
The diplomatic note said the reaction of senior members of the administration including Mr Sessions, Secretary of Defence James Mattis and Secretary of State Mike Pompeo “is likely to be something close to outrage,” the diplomat wrote.
“At worst, they will wind the president up to complain to the PM and, potentially, to hold a grudge.”
The following month, UK Home Secretary Sajid Javid wrote to Mr Sessions to confirm that Britain would help with a US prosecution and would not seek assurances the death penalty would be avoided.
But the letter to Mr Sessions was leaked, sparking a furore. MPs accused him of breaking the UK’s long-standing opposition to the death penalty, which it abolished in 1965.
The mother of Mr Elsheikh, Maha Elgizouli, responded with a legal challenge which has further delayed the exchange deal.
The diplomatic exchanges were revealed on Monday at the start of a two-day hearing as she sought to prevent her son from being exposed to “inhuman punishment” in the US.
She had not gone to court to “excuse the appalling acts with which her son has been linked” and accepted he should be punished if found guilty, said her lawyer Edward Fitzgerald QC.
“The evidence is shot through with anticipated outrage of AG Sessions and certain other political appointees,” said Mr Fitzgerald.
“The anticipated outrage of those officials was not a proper consideration as a matter of law.”
Mr Elsheikh and Mr Kotey were detained by the Syrian Democratic Forces in the north of the country.
A third member of the cell, Mohammed Emwazi - known as "Jihadi John" - was killed in a US air strike in 2015.
The fourth, Aine Davis,was jailed in Turkey. Emwazi appeared in several hostage videos in which aid workers and US journalists were killed.