Two UK citizens, Kotey and Elsheikh, were captured by US backed Kurdish forces (part of the Syrian Democratic Forces) in January 2018 and handed over to US Special Forces. Kotey and Elsheikh were part of Islamic State’s execution cell and worked with two other UK citizens, Emwazi (also known as Jihadi John)who was killed in a drone attack in Syria November 2015 and Aine Davis, who was convicted of terrorism offences in as Turkish criminal court in May 2017.
The execution cell was responsible for torturing and killing its captives, including captives from Europe and the US, notably killing David Haines and Alan Henning from the UK and James Foley, Alan Sotloff and Peter Kessig from the US. It is reported that Kotey and Elsheikh allegedly took part in mock executions, waterboarding and crucifixions of their captives as well as being party to the killing that took place.
The question is how should they be dealt with? Effectively being in US custody they could be transferred to the detention centre in Guantanamo Bay, but this would not be a positive move due to the Centre’s reputation. If the US does this it could be counterproductive and be used as propaganda by Islamic State and other Islamist inspired groups to show that there is one rule for US citizens and one for Muslims from other states. This can be a powerful recruitment tool.
The best move the US can make is to transfer them to the US to face trial in a criminal court for the murder of the US citizens killed by Islamic State’s execution cell. It would still be a terrorist trial as the alleged motive behind their actions would be the Islamist cause, which is a terrorist cause. Many states like the US, the UK, Canada and Australia have legally defined terrorism to include terrorism in states around the world. Even if no evidence can be found that either Kotey or Elsheikh actually killed the captives, their involvement with Emwazi who did will through the criminal law principle of joint criminal enterprise be sufficient to try them for murder.
By having a potential criminal trial will not just ensure due process takes palace, it will demonstrate to the world that justice is being done as Kotey and Elsheikh’s rights will be carried out. They will have access to qualified defence lawyer, have trial by jury and in the US criminal trials they have very strict rules in appointing jurors to ensure a fair trial. Also, in a criminal trial Kotey and Elsheikh will have the opportunity to present their evidence. In my opinion this would be the preferred approach in dealing with these two men.
Should they go to Guantanamo Bay the UK government should take steps to extradite Kotey and Elsheikh to the UK to face trial for the murder of David Haines and Alan Henning. One factor involved in this process would be the US government, in particular the current US President. Donal Trump has taken a strong stance against Islamist inspired terrorism, both in the US and abroad. He has expressed strident views on this issue, especially via his personal Twitter account. This included retweeting three tweets made by the extreme far right group Britain First. This did cause a diplomatic incident between the US and the UK, but President Trump has since states that he had no idea who the group were when he retweeted their tweets.
If President Trump wants to demonstrate to the world how the US deals with terrorists, having a criminal trial will show how rights in western states’ democracies apply to all by being dealt with fairly and equitably. As Lord Justice Gordon Hewart said in R v Sussex Justices ex parte McCarthy (1924), ‘Not only must justice be done; it must also be seen to be done’.
I discuss the legal issues contained in this blog in more detail in my book ‘Terrorism: Law & Policy’ being published by Routledge in March 2018.
I discuss this news story and the legal issues in my interview with BBC News Channel.