Evidence Sharing Will Be Key In Prosecuting Fighters Returning From Islamic State
El Shafee Elsheikh and Alexanda Kotey may seem like familiar names. They are two of a four-man group of terrorists nicknamed the ‘ISIS Beatles’, due to their prominent and recognizable British accents in propaganda videos. Their crimes – many of which were filmed and broadcast to the public while Islamic State was growing in strength – are horrific. They are suspected of 27 beheadings at the height of the terrorist group’s powers. The remaining two of their group include the infamous Mohammed Emwazi (also known as ‘Jihadi John’) who was killed in an American air strike, and Aine Davis, who is currently in jail in Turkey.
The victims of these four terrorists include British aid workers David Haines and Alan Henning, American citizens Peter Kassig, James Foley, and Steven Sotloff, and others.
In January last year, Elsheikh and Kotey were detained by Kurdish forces in Syria. What followed was a long process of determination on which state would be responsible for their prosecution. Although they both claim to still be British, they had been stripped of their British citizenship.
In particular, Elsheikh’s mother, Maha Elgizouli, challenged the UK Home Secretary Sajid Javid’s decision to share 600 witness statements gathered by the British Metropolitan Police with the American authorities under a Mutual Legal Assistance (MLA) agreement, without seeking assurances that the men would not face the death penalty if they were extradited and tried in the United States.
Earlier last week, the court identified the central issue as one of whether it is lawful for the Home Secretary to authorize mutual legal assistance to a foreign state in support of a criminal investigation which could lead to prosecution for offences which carry the death penalty, without seeking death penalty assurances. The court upheld Home Secretary Sajid Javid’s decision to authorize the MLA request from the United States and transfer evidence in the case of Elsheikh.
Amongst other things, the court supported the Home Secretary’s decision on all grounds finding that it was not a breach of the rule of law, it was consistent with the UK’s longstanding opposition to the death penalty, and it was not a violation of the claimant’s convention rights.
Evidence collection for the purposes of prosecuting terrorists is difficult enough without added complications. Last year, I recommended that a new international legal task force be created to gather evidence on foreign fighters of Islamic State. This was later debated at the House of Lords.
The collection of evidence to build cases against individuals must be strengthened within national justice systems in Iraq, Syria, Libya, and Nigeria: terrorist ‘hot spots’ where crimes have occurred. Some have suggested that Bar Associations of the UK and the US should ‘assist’ in evidence collection and prosecution in countries where common law is practiced. However, Nigeria is the only common law country among the countries listed, therefore, Iraq, Syria, and Libya – key areas where terrorism has occurred – would be excluded from this proposal.
With more than 900 individuals from the UK travelling to engage with the conflict in Syria, we must ensure that robust evidence and legal tools are used against those who continue to pose a threat to our national security. This includes people who may want to return to be tried in the United Kingdom, but with whom we do not have the option to do so. The judgement in favor of Sajid Javid’s decision allows the US and the UK to share evidence for future trials, as it sets an important precedent for intelligence sharing and the need for robust evidence collection to prosecute for the crimes of terrorism.