With A Little Help From My Friends - did the UK break the law in order to help the US prosecute two members of the ISIS group known as the Beatles? To what extent has the UK violated its domestic and international legal obligations by not seeking assurances against the death penalty? Joel Mitchell ANR: 576792 SNR: 2000134 July 2019 Supervisor: Dr Jan Hendrik Valgaeren Bachelor Thesis for Tilburg University College Bachelor’s in Liberal Arts and Sciences: Major in Law !1 Abstract This thesis seeks to ascertain the extent to which the UK has violated its domestic and international legal obligations by not seeking assurances against the death penalty in the case of Kotey and El Sheikh. This has been achieved through legal analysis of the relevant legislation and case law, with analysis of the black letter law being utilised in conjunction with teleological interpretation. The history of the case provides a framework of facts and actions to which practical analysis of the relevant law can be applied. State responsibility is established before consideration of the actions of the UK and the extent to which they contravened any obligations. The juxtaposition between the legal obligations and the political complexities of the case are then considered. This thesis finds that the UK violated both its domestic and international legal obligations by not seeking assurances in the case of Kotey and El Sheikh. !2 Abstract 2 1 Introduction 4 2 Methodology 5 3 History of the case 7 3.1 Pre-capture and detention 7 3.2 Post-capture and detention 8 3.2 Initiation of proceedings 14 4 ECHR - analysis of the relevant articles 15 4.1 Interpretation of the Convention 16 4.2 Article 2 - The Right to Life 17 4.3 Article 3 - Prohibition of Torture 18 5 Jurisdiction and State Responsibility 19 6 Did the UK breach its respective domestic and international obligations? 28 6.1 Domestic obligations 28 6.2 International Obligations 37 6 Political Complexities and Solutions 44 6.1 Original decision to accede to MLA request without assurances 46 6.2 Decision as to whether assurances should be sought ex post facto 51 7 Conclusion 54 !3 1 Introduction The ‘special relationship’ between the UK and the US has been placed under increasing scrutiny in recent years, as revelations of an extensive post-9/11 US torture program1 have led to further light being shed on the complicity of the UK in such activities.2 This meant that when the Daily Telegraph published a leaked copy of Home Secretary Sajid Javid’s letter addressed to the US Attorney General Jeff Sessions (AG),3 there were immediately questions raised about its contents. The letter revealed that the UK would be acceding to a request for Mutual Legal Assistance (MLA) in a case concerning the prosecution of two ISIS fighters - Alexanda Kotey and Shafee El Sheikh - and that they would be doing so without seeking assurances against the death penalty.4 Such assurances would mean that the information provided by the UK could not be used in any case where the men being prosecuted may face the death penalty.5 It is felt by many that by failing to seek any assurances, the Home Secretary rendered the UK complicit in the use of the death penalty, thereby undermining the long-term position of the UK as a staunch abolitionist of the death penalty.6 1 European Center for Constitutional and Human Rights, ‘The US Torture Program - Approved at the Highest Levels’ (ecchr.eu, May 2019) <https://www.ecchr.eu/fileadmin/Sondernewsletter_Dossiers/ Dossier_US_Accountability_May2019_.pdf> accessed 1 July 2019. 2 Ian Cobain and Ewan MacAskill, ‘True scale of UK role in torture and rendition after 9/11 revealed’ The Guardian (28 June 2018) <https://www.theguardian.com/uk-news/2018/jun/28/uk-role-torture-kidnap-terror- suspects-after-911-revealed> 1 July 2019. 3 R. (on the application of Maha El Gizouli) v The Secretary of State for the Home Department [2019] EWHC 60 (Admin), [2019] WL 111 [35]. 4 ibid [33]. 5 ibid [7]. 6 Gaby Hinsliff, ‘The death penalty is an abomination – Sajid Javid must not condone it’ The Guardian (24 July 2018) <https://www.theguardian.com/commentisfree/2018/jul/24/death-penalty-sajid-javid-isis-beatles> accessed 1 July 2019. !4 It must be emphasised that this thesis is not merely an abstract academic endeavour. The purpose of the thesis is to address the issues raised by an ongoing case, providing a comprehensive analysis of the legality of the decision by the Home Secretary, the practical solutions that could be implemented and consequently, the conclusions reached within it are designed to have a real-world application. This thesis will look at whether failing to seek assurances placed any responsibility at the feet of the UK for the fate of the two men and if so, whether it would be in contravention of not only the domestic law of the UK, but of the European Convention on Human Rights7 (herein referred to as the ECHR or the Convention), to which the UK is a State Party. Further to this, the political nature of the decision of the Home Secretary will be discussed, along with the solutions which could have been implemented instead, before looking at the options which remain open to the UK. 2 Methodology The purpose of this thesis is to reach a conclusion which could have real-world application, which in turn requires the undertaking of applied research. In order to assess whether the UK broke the law in acceding to the MLA request and to what extent it violated its domestic and international legal obligations by not seeking assurances against the death penalty, it was necessary to look primarily at the relevant black letter law. In order to determine which legislation and caselaw would be relevant, those cited and considered by the High Court in the case of Kotey and El Sheikh, were used as the starting point. In order to narrow down which legislation and caselaw would be most useful, those 7 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR). !5 cited and considered by the Court were cross-referenced with various legal articles and blogs which focused on the case of Kotey and El Sheikh. These articles and blogs were discovered by searching for the names of the two men on Google in order to return journal articles and opinion pieces, as well as by searching for their names on legal databases such Westlaw Next. Once a core of relevant legislation and caselaw had been established, it was possible to use the citations within these works to discover further relevant information. In order to find further relevant information, combinations of key terms and concepts were entered into journal databases such as Google Scholar and WorldCat Discovery. However, there were limitations to the ability to conduct research which allowed for a decisive conclusion on the legality of the UK’s actions. This was due to the complexity of the case at hand, which deals with an unprecedented combination of facts and issues. Since the case has not reached the European Court of Human Rights (herein referred to as the ECtHR or the Court), it is not possible to determine conclusively the legality of the actions of the UK, as this can only be decided by the Court itselfs. Therefore, using the travaux préparatoires of the Court alongside extensive analysis of the Court’s caselaw, the conclusions arrived at must be hypothetical, in lieu of a ruling by the Court itself. Despite the necessity that the conclusions arrived at be hypothetical in nature, conducting research through extensive analysis of black letter law, supplemented by journal articles, provides strong justification for the conclusions arrived at throughout this thesis. !6 3 History of the case 3.1 Pre-capture and detention In June of 2015, the US government made a request of the UK government pursuant to the Treaty of Mutual Legal Assistance in Criminal Matters, a bi-lateral agreement signed between the two nations in 1994.8 The request was made in relation to a US investigation into the notorious so-called Islamic State (ISIL) cell referred to as ‘The Beatles’, known as such due to their distinctive British accents, who were suspected of having participated in the executions of US citizens. Mr Graeme Biggar, the Director of National Security in the Home Office, later described the action of the group in a witness statement: ‘This group of terrorists is associated with some of the most barbaric crimes committed during the conflict in Syria. This includes its suspected involvement in the beheading of 27 individuals, including the murders of US citizens James Foley, Steven Sotloff and Peter Kassig, and British citizens David Haines and Alan Henning. All but one of these beheadings were filmed and posted on the internet. The nature of the deaths suffered by these men (and the ongoing kidnap of others) has brought immense anguish to their families.’9 In response to the request from the US government, in October 2015 the United Kingdom Central Authority (UKCA) sought an assurance that ‘the death penalty will not 8 El Gizouli v SSHD (n 3) [5]. 9 ibid [6]. !7 be sought or imposed, or if imposed, will not be carried out against anyone found guilty of any criminal offence arising from this investigation’.10 In seeking such an assurance, the UKCA followed the Mutual Legal Assistance guidelines11 as informed by the Overseas Security and Justice Assistance Human Rights (OSJA) guidance.12 Instead of such an assurance, in March 2016 the US Department of Justice provided a ‘Direct Use’ guarantee which would not allow the information received as part of the MLA to be used in any trial where the death penalty is sought.