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.


  • 24 July 2018 at 1:15pm
    FoolCount says:
    I do not understand why do they have to be tried in the US? In fact, I see zero legal basis for that. They committed their crimes in Syria, they are detained in Syrian territory, and that is where they should be tried under Syrian law. I doubt that a Syrian court would need (or even be interested in getting) any evidence from UK in order to convict, sentence to death and promptly execute them. I would argue that their Kurdish captors are legally obliged to hand them over to Syrian authorities, rather than to any foreign power which has no business or legal right to even be present in Syria.

    • 25 July 2018 at 9:01am
      Joe Morison says: @ FoolCount
      That third 'o' in your name is redundant.

    • 31 July 2018 at 7:53pm
      Chrisdf says: @ FoolCount
      Why are they not being tried in the Hague for war crimes?

    • 31 July 2018 at 8:37pm
      John Cowan says: @ FoolCount
      The answer is complex, but yes, extraterritorial jurisdiction (ETJ) is recognized in international law. For example, France claims the right to try its citizens for crimes committed anywhere in the world, and what is more, to try and punish crimes committed against its citizens by anyone, French or not, anywhere in the world. Whether and how often France actually exercises this claimed right is a question.

      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.

    • 31 July 2018 at 8:41pm
      John Cowan says: @ Chrisdf
      The general answer in terms of international law is that universal jurisdiction (the right of any state to try crimes committed anywhere by anyone) applies only when neither local nor extraterritorial jurisdiction (as by the state of the victims, the Eichmann trial being an example) is sufficient to do justice. That is quite enough without any political or military considerations.

    • 31 July 2018 at 8:59pm
      John Cowan says: @ John Cowan
      I should add that I am not a lawyer, international or otherwise, and this is certainly not legal advice. It is based on ordinary Internet research.

  • 25 July 2018 at 10:22am
    SamGamgee says:
    But is his (or her) reading of international law correct?

    • 25 July 2018 at 2:41pm
      Stu Bry says: @ SamGamgee
      International law is an ass when the USA can flatten Raqqa and Mosul and use a proxy army to occupy a quarter of Syria and steal the natural resources.

  • 26 July 2018 at 9:22am
    Camus says:
    And simply refuse to accept international law

  • 26 July 2018 at 4:26pm
    SamGamgee says:
    FoolCount made a comment on the blog post.
    Joe Morison insulted him.
    I'm just asking if FoolCount's reading of the law is right or wrong. (I have no idea.)

    • 26 July 2018 at 5:33pm
      Joe Morison says: @ SamGamgee
      I don’t think I’ve ever insulted anybody on this blog before, I’ve been rude about some people’s opinions but never the person. However, for FoolCount, with his defence of the journalist murdering autocrat Putin and his desire to see these people executed without even a fair trial (he might express it in terms of international law, but his first sentence and the tone of his comment reveals his sympathies), I am happy to have made an exception. I’d also say he’s an obvious troll and is not worthy of serious reply.

  • 27 July 2018 at 6:24am
    FoolCount says:
    In my view, you are the troll and not me. I just expressed my honest opinion. You insulted me, apparently without having anything to say on the subject of this discussion. That's exactly how trolls behave. I did defend Putin, but I did it in an entirely different thread, and will happily do it again, if the subject and tone of the discussion will warrant such defence. This thread, however, has nothing to do with Putin. It is about legality of prosecuting ISIS criminals in US, and my opinion is that it would have no legal basis and prosecuting them in Syria under Syrian law would be totally appropriate. I will have zero problem with this criminals being executed by Syrian authorities for their crimes, which are well documented by multiple witnesses and videos. Now, if you have an opinion on this - be my guest. But my guess is that like most trolls you don't and can be safely ignored which is what I will be doing from now on.

  • 31 July 2018 at 4:02pm
    Coldish says:
    Thanks, FoolCount, for your calm and polite response to an unwarranted insult and off-topic remarks from another commenter, who might indeed from now on be best ignored.
    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.

  • 31 July 2018 at 5:52pm
    kynolover says:
    As for the applicability of international law in this case, the determinative principles were established by the Nuremberg Trials. They demonstrated that victor's justice and might makes right are the most relevant considerations in this case. Thus, if the U.S. wants to prosecute and execute these two jihadists, it can and will do so notwithstanding any jurisdictional impediments. (Moreover, the murder of an American citizen even on foreign soil is enough of a jurisdictional nexus for our unprincipled courts.) And since the America's proxy army captured and currently holds Alexanda Kotey and El Shafee Elsheikh, I'd say it's a reasonably good likelihood they'll be sent to the U.S. or Guantanamo and tried here.

    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!

  • 31 July 2018 at 6:00pm
    Jimmy Mack says:
    I don't care where the pair are tried so long as it is fair. By 'fair' I mean they are given the chance to claim mistaken identity, coercion, temporary insanity or whatever other defence they might choose to erect. If and when they are found guilty I don't care if they are hanged, shot or electrocuted. I would care if they are allowed to live out the long life they denied their victims. This was the justice meted out at Nuremburg to people who equally flouted civilised norms. Don't say that makes me as bad as them - I want them to have a fair trial. Don't say it plays into the hands of terrorists. They depend on our weakness and lack of resolve and are encouraged rather than impressed by our 'scruples'.

    • 31 July 2018 at 8:55pm
      John Cowan says: @ Jimmy Mack
      That is an attitude which our country shares (regrettably, in my view) with a small number of other countries, many of which our President has (regrettably, in my view) described as "s*******." Legal systems that impose the death penalty simply don't live up to civilized standards any more. Even we do not sentence people who get drunk and kill people with their cars to be ceremonially run over by the public executioner, though the victims of such incidents are just as dead as if they were shot, stabbed, or beheaded. (For one thing, the American people don't have the stomach for imposing ten death penalties a day.)

  • 2 August 2018 at 7:04am
    Joe Morison says:
    Perhaps I have misjudged FoolCount, I thought his poisonous ideas were just a provocation to wind up LRB readers; but judging by the support he has got here, perhaps this is the new normal among the young on the left. If so, I find it immensely depressing. Do these people not read? What was the point of the Enlightenment? Why did Tolstoy and Dostoevsky and Hugo and Proust bother if such callousness has entered the hearts of those who should know better? It's all of a piece with Trump and right wing populism - no better and just as convinced of its own rectitude.

    '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.

  • 6 August 2018 at 6:00pm
    deadsparrow says:
    If they are tried in the US they are more likely to spend the rest of their lives in the sensory-deprivation prison reserved for terrorists and similar murderers, ADX Florence in Colorado. Those of us who worry ceaselessly about terrorists being subject to the death penalty can be relieved.

    • 7 August 2018 at 5:23am
      Joe Morison says: @ deadsparrow
      As Dostoyevsky so accurately put it, “The degree of civilization in a society can be judged by entering its prisons.”

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