The Supreme Court in the UK has found against the government’s decision to provide information to the USA to facilitate prosecution for crimes carrying the death penalty
In a unanimous decision delivered yesterday, 25 March 2020, agreed that the British government acted unlawfully in providing, or agreeing to provide, information to the United States without seeking assurances that the death penalty would not be imposed. The USA is the only country in the Americas which retains the penalty and we have highlighted in many of our posts, the poor legal process, countless mistakes and lack of proper protection for suspects during interrogations.
This appeal concerned two individuals, Shafee El Sheik and Alexandra Kotey (nicknamed the ‘Beatles by parts of the UK press at the time) who were alleged to be a part of terrorists operating in Syria and who were involved in the murder of British and US citizens.
It has never been in dispute that Mr El Sheik and Mr Kotey should face trial for the serious crimes alleged against them, but any trial, if it is to take place, should be held in the UK. We intervened in this case because we believed the earlier actions of the UK government were contrary to its long-standing approach on the death penalty and could lead to a death sentence being imposed or carried out. The importance of this decision is wider than just this case. It has implication for any individual who may be facing the death penalty and concerns what assurance the UK government must seek before deciding what help or assistance it may give. there are fundamental issues concerning the right to life. Parvais Jabbar, Co-Executive Director
It is interesting that one of the motives for leaving the EU was to ‘take back control’ and to be free of he judgements of the European Court. Yet the government has shown itself all too craven when it comes to ceding power to the US justice system.
Sajid Javid proposes allowing ISIL individuals to be sent to the USA with the risk of torture and execution
UPDATE: 1 August. Article by Bharat Malkani in British Politics and Policy published by LSE which goes into the wider aspects of British policy in connection with executions on foreign soil.
UPDATE: 26 July. Following considerable protest over this decision, the government today announced a temporary suspension of the cooperation with the US over the case.
It has been widely reported today that the Home Secretary, Sajid Javid, is withdrawing the long-standing objections the UK has had to sending people to the USA where they risk being executed. The USA is the only country in the Americas which still has the death penalty. We continue to document cases in our monthly reports.
The two individuals who are involved are Alexanda Kotey and El Shafee Elsheikh, both from West London. They were part of a group of individuals from the UK who joined ISIS and allegedly perpetrated some dreadful crimes including beheadings. They allegedly murdered two US journalists James Foley and Steven Sotloff, British aid workers David Haines and Alan Henning and aid worker and Iraq war veteran Peter Kassig. Investigations have been continuing for 4 years and the question has arisen of where they should be tried.
The UK government has a long-standing policy of opposing the death penalty abroad in all circumstances. It has also been active in trying to persuade those countries which continue to use it, to stop. Amnesty is opposed to the practice as it has a number of serious flaws. It is ineffective in preventing crime and it is not a deterrent. Mistakes cannot be put right. In the case of terrorists, it risks creating martyrs and spawning others who want to avenge the executions.
It is therefore particularly depressing to see our home secretary acceding to the request. The full text shows that it is because he believes a successful federal prosecution in the US is more likely to be possible because of differences in their statute book and the restrictions on challenges to the route by which defendants appear in US courts. In his leaked letter to Jeff Sessions, the US Attorney General, he says on the matter of sending them to the States:
[…] 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.
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. From the letter published in the Mail Online [accessed 23 July 2018]
The decision has received widespread criticism. Alan Howarth, the head of advocacy and programmes, at Amnesty International said:
This is a deeply worrying development. The home secretary must unequivocally insist that Britain’s longstanding position on the death penalty has not changed and seek cast-iron assurances from the US that it will not be used.
A failure to seek assurances on this case seriously jeopardises the UK’s position as a strong advocate for the abolition of the death penalty and its work encouraging others to abolish the cruel, inhuman and degrading practice.
Other criticisms have come from Shami Chakrabarti, Labour’s shadow Attorney General and Lord Carlile who said on the BBC the decision was extraordinary and:
It is a dramatic change of policy by a minister, secretly, without any discussion in parliament. It flies in the face of what has been said repeatedly and recently by the Home Office – including when Theresa May was home secretary – and very recently by the highly respected security minister, Ben Wallace.
Britain has always said that it will pass information and intelligence, in appropriate cases, provided there is no death penalty. That is a decades-old policy and it is not for the home secretary to change that policy. BBC Today programme 23 July 2018
There is also the question of the use of torture. Will either or both of them be sent to Guantanamo Bay to receive abusive treatment including water boarding? Coming so soon after a select committee roundly criticized the government for its role in torture and rendition, this is a surprising and disappointing development.
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On 12 January 2017 the House of Commons debated the war in Yemen for the second time in less than a month having already had a debate on it on 19 December. This has been called the ‘forgotten war’ for some time since all the media and political attention has been focused on Syria. So it is to be welcomed that this war is now getting its share of attention. This was an opposition debate led by Stephen Twigg MP.
This is a complex war difficult to summarise but essentially the two main actors are the Saudis and the Houthi rebels. Both have committed atrocities: the Houthis with massacres, the use of child soldiers and shelling across the border into Saudi territory. The Saudis by bombing civilian targets and using cluster weapons. The December debate focused on the use of these weapons, supplied by the UK before their use was banned. One thing we learned from that debate was that the UK government has offered to exchange cluster weapons for more modern Paveway bombs but it appears the Saudis have not taken up this offer.
To an extent it is a proxy war: part of the long-running Sunni/Shia feud being fought between Iran and Saudi. There are also tribal politics mixed in. Although the role of the Houthi rebels was criticised, the point was made that it was we who were arming the Saudis and RAF personnel involved at the command and control centre.
It was lengthy running to just under 3 hours. A number of points were made. A major concern was the allegations of abuses against International Humanitarian Law (IHL) and the slow pace of investigations (‘glacial’ was the word used by Stephen Twigg) by the Saudis into them. Various figures were bandied about but over a hundred seems to be the consensus but only 9 investigations have been carried out in 14 months.
There were many tributes to DFID and its contribution to Yemen but as Stephen Twigg noted:
There is a paradox at the heart of the UK’s approach to Yemen: generous on aid but we contribute to the conflict with our arms sales.
It is interesting that during the writing of this blog, the headline of the Mail on Sunday was the result of a survey which apparently revealed that 78% of people want to end overseas aid and put the funds into the health service which is experiencing a crisis at present. The Coalition government and now the Conservatives must be praised for maintaining the levels of overseas aid despite considerable pressure from some of their backbenchers and some of the media.
Chris White MP – who is chair of the Arms Export Control Committee – said that the UK should be an example to the rest of the world in terms of our licensing regime. He reminded the House of rule 2(c) which ‘forbids the authorisation of arms sales if there is a clear risk of a violation of international humanitarian law’.
It is of course welcome that the House of Commons should have given such time to this debate on Yemen – indeed as we’ve noted the second in less than a month. The government has had something of a free ride, able to do little to end the conflict and carry on allowing our arms to be sold to Saudi – some £3.3bn worth so far. It seemed to be SNP (Scottish National Party) members who were the most forthright in condemning the arms sales. Tasmina Ahmend-Sheikh saying:
If Saudi Arabia and Iran are the puppeteers, we are the quartermasters
There were several calls for a peace process but one seems unlikely at present. It was alleged that the Saudis are resisting the process, a claim denied by Tobias Ellwood the minister in FCO.
The link between our sale of arms and the devastating effects of those weapons on the people of Yemen although made, was not strongly emphasised. Part of the problem of course is that although the Conservatives are in power now, many arms sales were made as well during the Labour administrations. So both parties are tainted.
The government is in something of a bind. The value of our exports to the region and to Saudi is considerable. One is reminded of the old adage – variously attributed to John Maynard-Keynes or John Paul Getty – that if you owe the bank a million pounds you have a problem, if you owe the bank a hundred million pounds, the bank has a problem. Because billions of pounds of weapons are sold, we are not in a position to exert much control: we are too dependent on the business. One can imagine polite words being spoken but it was clear from the debate that the Saudis think they can win this so are in no haste to agree peace terms and little more than token efforts are made to limit sales of arms. Such is the murky world of arms sales anyway, that brokers can quite easily circumvent controls certainly for the more every day weapons.
In the December debate, the Defence Secretary Michael Fallon insisted the Saudis were:
on the cusp of a major reform programme of its economy and society
The debate shone a light on the problems of the country and also on the pusillanimous nature of our foreign policy. Speaker after speaker referred to the terrible state the country was in and the enormous distress of its residents as a result of the war. It was interesting to note that at least two of the MPs said they were born there presumably from when it was known as Aden. Worries were expressed about ISIS moving in.
But the fundamental moral issue of our sale of arms to a country which uses them to wreak such havoc on another nation was not rigorously pursued. The FCO and the MoD would not be seriously disturbed by this debate.
It also provides a clue to life once we leave the EU. There will be a major push to achieve business with whichever countries we can and the morality of our dealings will not get a look in. It’s good for business they will say but not good for human rights.
The debate ended with calls for an urgent independent (ie not by the Saudis who are dragging their feet) investigation into reports of breaches of IHL on both sides of the conflict.
It is reported today that the government’s use of drones to kill people overseas is to be reviewed by the Human Rights Committee. This is welcome news. Clearly, ISIS is an unpleasant organisation and is acting in a brutal and uncivilised way.
When it was revealed that a drone was used to kill two people in Raqqa in August, David Cameron said it was done as an act of ‘self defence’. Quite how someone in Syria was a threat to the UK was not explained and seemed very unlikely.
Earlier this week is was reported that the government was removing adherence to international treaties from the ministerial code. It is these treaties which prevent use of force without UN sanction or because there is a genuine need for purposes of self defence.
The Raqqa attack was the first case in the modern era that such an attack took place in a country with whom we were not at war. Caroline Lucas – the Green party MP – was reported as saying the use of a drone in this case was done ‘with a complete absence of parliamentary scrutiny or approval.’
We look forward to some serious questions being asked of ministers.
Over the last two weeks there has been considerable outrage over the gruesome execution of the American #JamesFoley by beheading allegedly by a jihadist from the UK, possibly London. That someone nurtured on these shores should go to another country and commit such a crime horrifies people in this country and of course the USA. The execution has added to the degree of urgency in the government and there are plans to bring in legislation to confiscate passports and monitor the movement back to this country of jihadists from ISIS areas of Iraq.
The barbaric and medieval nature of the crime has shocked many in the west.
In the last three weeks – between 4 and 22 August – 23 people in Saudi Arabia have been executed by beheadings. These executions take place in public and frequently, the bodies are left on public display as some kind of deterrent. Around 2000 have been executed in this fashion since 1985. Around half are foreign nationals.
The executions follow trials where confessions are read out. Many or even most of the confessions are extracted following torture. Defendants often do not have legal representation and may not be able to follow the trials such as they are. You will have to look long and hard to find much about these executions in western newspapers.
How are the two connected?
Saudi Arabia, along with Qatar, are in receipt of considerable quantities of arms from western countries including the UK. David Cameron visited the country to promote trade and arms sales. The Campaign Against the Arms Trade #CATT has found out that we exported £113 million of arms to Saudi in 2013.
With American support, both countries were arming the Syrian rebels of which the Islamic State is one. So we support and provide arms to countries which are in turn supporting the Islamic State and which carry out barbaric executions in public. Almost nothing is said about this and it receives very little coverage.
We need to be more balanced in our policies and attitudes to some of these despotic regimes. If we are going to say nothing about barbaric behaviour because it might upset an arms deal to Saudi or Qatar, it is then inconsistent to start making speeches when no arms deals are in the offing.
There were announcements by Theresa May, the Home Secretary, and by the Prime Minister last week saying that the terror threat has been raised to ‘severe,’ one down from the highest. This came about following news that people have been leaving this country to fight for the #IslamicState formerly known as #ISIS. Some are said to be returning and having been radicalised, pose an increased threat to this country.
A package of anti-terrorism measures are currently being worked on for presentation to Parliament when it reconvenes. The decision was taken following advice from the Joint Terrorism Analysis Centre.
Governments – and ours is no different – are frequently looking for more powers especially of an intelligence nature. They want to demonstrate that they care for our safety and it is a way to be seen to take action. The fact that inaction has been clear in terms of what is going on in Iraq and our policy towards it doesn’t seem to matter: at home new powers are needed and MPs will no doubt airing their views inside and outside the House of Commons.
Are these extra powers really needed? The government and its agencies already have a huge armoury of powers at their disposal enabling them to intercept messages, phone calls, internet traffic, emails and so forth. As has been shown, there is too little control being exercised by parliament over this activity and the key committee had little idea of the scale of it.
These proposals, combined with the parallel plans to make people stateless, show that there is a degree of knee-jerk reaction to events in Iraq.
The worry has to be that the proposals will represent a further erosion of our liberties. Once the new powers are enshrined into law and the terror threat is reduced, will they be removed? Unlikely on past form and they will have represented a ratcheting up of intrusion into our lives.
Our liberties and freedoms were hard won and we need to be especially vigilant when governments seek to limit or curtail them. It will be interesting to follow the debate when it happens.