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It’s a question hotly debated in Britain after leaked documents indicated Britain was willing to share intelligence with the United States to help with the possible prosecution of El Shafee Elsheikh and Alexanda Kotey without seeking assurances that they would not face the death penalty.
Elsheikh and Kotey, who were stripped of their British citizenship, were captured in Syria earlier this year and are held by U.S.-backed Syrian Kurdish forces. They are suspected of being involved in the execution of Western hostages, including British aid workers David Haines and Alan Henning, and American journalists James Foley and Steven Sotloff.
It remains unclear when the two former Islamic State fighters could face prosecution. But many countries, including members of the European Union, routinely demand that the United States drop capital punishment options in exchange for turning over suspects.
Britain abolished the death penalty in 1969, and there is a long-standing convention that Britain would not help foreign governments that allow capital punishment without assurances it would not be applied.
Lawmakers from all parties condemned the British government for not insisting on such a provision with the Islamic State case.
Alex Carlile, the government’s former reviewer of terrorism legislation, called the move “completely wrong.” He told LBC Radio that Britain’s Home Secretary Sajid Javid “should not have secretly changed the policy of decades without it being discussed in Parliament first.”
After days of fierce criticism, the British Home Office said Thursday that it was temporarily pausing its cooperation with U.S. authorities following a legal challenge from the family of one of the suspects.
“We have agreed to a short-term pause,” Britain’s Home Office said in a statement. “The government remains committed to bringing these people to justice and we are confident we have acted in full accordance of the law.”
The legal challenge was filed on Wednesday by lawyers representing Elsheikh’s mother.
El Shafee Elsheikh and Alexanda Kotey were part of what the media dubbed the Islamic State’s “Beatles,” named because of their British accents. The group’s ringleader, Mohammed Emwazi, also known as “Jihadi John,” was notorious for his grisly, televised beheadings. He was killed in a drone strike in 2015. Aine Davis, the fourth member of the group, was jailed in Turkey.
In a leaked letter published Monday in the Daily Telegraph, Javid made it clear to Attorney General Jeff Sessions that Britain did not want to prosecute the pair at home, but that Britain would waive opposition to the death penalty if they were convicted in the United States.
But even U.S. federal prosecutors appear conflicted about what to do. Sessions chided the British government in April for its reluctance to prosecute the men. “I have been disappointed, frankly, that the British . . . are not willing to try the cases but pretend to tell us how to try them,” he said during congressional testimony.
Reprieve, a human rights organization, said that Britain was trying to “outsource” its justice system, adding “there is no reason why people accused of murdering British citizens should not face British justice in a British court.”
Britain’s former foreign secretary Boris Johnson, who jointly made the decision not to seek assurances, has defended the move.
Writing in the Spectator magazine, Johnson said: “We had to balance two risks: the risk that they would be simply set loose, like so many other jihadis, to roam the streets of London again, or the small risk that they might receive the death penalty under the U.S. system. Sajid Javid and I decided that the first risk was worse than the second. Who really believes we were wrong?”
Peter Neumann, the director of the London-based International Centre for the Study of Radicalisation, said that one of the reasons Britain may be pushing for U.S. prosecution is because it has higher conviction rates and longer sentences for terrorism cases.
“In America, sending $200 to someone in Somalia who ends up with al-Shabab, you can get 30 years in a ‘supermax’ prison. In Britain, you’d get maximum of 2-3 years and you’d be out after two. In America, the sentences have been much longer and conviction rates are much higher.”
Nonetheless, Neumann said many were still surprised that Britain didn’t first seek assurances on the death penalty.
“It now makes it easier for some countries to undermine human rights standards on the basis that ‘even Britain does so in terrorism cases,'” he said.
“I think that’s a lot to give away in a case where that wasn’t really necessary.”