In what constitutes a major departure from the well-established policy of opposing the death penalty abroad “in all circumstances as a matter of principle”, the home secretary told the US attorney general, Jeff Sessions, that he would not demand a “death penalty assurance” in this particular case.
Alexanda Kotey and El Shafee Elsheikh, are said to have been members of the brutal four-man “Beatles” cell of executioners in Syria and Iraq, and are responsible for killing a series of high-profile Western captives.
The pair, who are understood to have been stripped of their British citizenship, were captured in January, sparking a row over whether they should be returned to the UK for trial or face justice in another jurisdiction.
But in a letter seen by The Daily Telegraph to Mr Sessions, the home secretary wrote last month: “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.”
“I have instructed my officials to set out the terms of our assistance and to work with your officials to action the request.
But, he added: “As you are aware, it is the long-held position of the UK to seek death penalty assurances, and our decision in this case does not reflect a change in our policy on assistance in US death penalty cases generally, nor the UK government’s stance on the global abolition of the death penalty.”
A government strategy document from 2011 states that promoting human rights and democracy is a priority for the UK and “it is the longstanding policy of the UK to oppose the death penalty of the UK to oppose the death penalty in all circumstances as a matter of principle”.
Mr Javid also said US courts were better placed to handle “foreign fighter” cases because of the risk of legal challenge in the UK.
The Home Secretary said he understood US “frustration” on the subject and added that the UK was introducing “new legislation to improve the range of offences on the statute book” to deal with the “scourge” of foreign fighters.
“Ensuring foreign fighters face justice raises a real challenge for all our jurisdictions; however, in this instance, we believe that a successful federal prosecution in the US is more likely to be possible because of differences in your statute book and the restrictions on challenges to the route by which defendants appear in US courts,” he said.
“The US currently has additional charges for terrorism offences which are not available under UK criminal law, and those offences carry long sentences.”
Along with Mohammed Emwazi - the killer nicknamed Jihadi John - and Aine Davis, Kotey and Elsheikh are thought to have been part of a group named after the '60s band because of their English accents.
Emwazi, who was killed in a US air strike in 2015, appeared in a number of videos in which captives, including British aid workers David Haines and Alan Henning and US journalists James Foley and Steven Sotloff, were killed.
Speaking on BBC Radio 4’s Today programme, Mr Foley's mother, Diane, said she was opposed to the death penalty.
“I am very against that,” she said. ”I think that would just make them martyrs in their twisted ideology.
“I would like them held accountable by being sent to prison for the rest of their lives.”
Labour’s shadow attorney general, Shami Chakrabarti, told The Independent: “ Sajid Javid appears to have secretly and unilaterally abandoned Britain's opposition to the death penalty.“
“By doing so he is not just is playing with the lives of these particular terrorists but of those other Britons - including potentially innocent ones - all over the world”
“Just as we should be persuading countries like the US and Iran to drop the death penalty, Javid appears to be encouraging this grave human rights abuse.”
The Home Office refused to comment on the leaked document but a spokesman told The Independent: “We continue to engage with the US government on this issue, as we do on a range of national security issues and in the context of our joint determination to tackle international terrorism and combat violent extremism.
“The UK government's position on Guantanamo Bay is that the detention facility should close.”
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