In future we won’t be relying on US justice

Once Britain unshackles its laws from the European human rights pact, then we can deal with terrorists

The Home Secretary is right to agree to pass evidence against Islamic State terror suspects Alexanda Kotey and Shafee El-sheikh to the US Attorney General without guarantees that they will not be executed if convicted. His decision cannot have been easy.

The Government is opposed to the death penalty and has a long-standing policy of securing assurances that it will not be used by foreign governments if current (or former, in the case of Kotey and El-sheikh) British citizens are extradited. Indeed, there has been outrage against this move by human rights activists and we can expect legal challenges. But Sajid Javid is prioritising the rights and safety of innocents above the human rights of suspected terrorists. Far better for them to go to the electric chair in the US if convicted than to let them come back to Britain and murder our citizens.

For the same reason, if they can’t be successfully prosecuted in the US, they should be sent to Guantánamo Bay. Many people balk at that, but what is the alternative?

Barack Obama was elected president in 2008 with a pledge to close Guantánamo, but when he stepped down after eight years it was still open. It is the equivalent of a prisoner of war camp during conventional hostilities and, even after 17 years of the War on Terror, no one has come up with a viable alternative. Some claim that it is a recruiting sergeant for terrorism against the West, and that incarceration there, or a death sentence, would make martyrs of Kotey and El-sheikh. Maybe. But there is a greater risk if they are not dealt with effectively.

A vital purpose of judicial punishment is deterrence. What is the message to would-be jihadists if these men, accused of perpetrating the most horrific crimes imaginable – including torture and an estimated 27 beheadings – were allowed to return to our streets without so much as a trial? We have already seen videos of their cocky attitude even in captivity. Imagine them back home, swaggering about. It would reinforce perceptions of their strength and our weakness which have impelled so many jihadists to fight against us.

Of course both execution and detention without trial run contrary to British ethical principles. But history proves that, in war time, we must sometimes adapt our values to secure victory. And be in no doubt: we are at war. Even today, some have difficulty comprehending that, because this is not a conventional war with tanks rolling across the plains and dogfights in the skies.

But as successive heads of MI5 have made clear, we face a threat that will go on for generations. We need to adapt better to it than we have so far. Mr Javid’s decision indicates that the Government now realises this. But it also shines a spotlight on the weakness of our previous policies.

Why can we not bring them back to Britain to be tried? The Home Secretary, in a letter to the US Attorney General, admits that our legal processes are insufficiently robust and there is a good chance prosecutions would fail. He says he’s legislating to change that.

I remember sitting around a table with the prime minister and cabinet ministers back in 2005, in the aftermath of the waves of Islamic terrorist attacks in London, discussing exactly these issues. Tony Blair was resolved to take strong action but he was frustrated by over-cautious and over-powerful public servants. It seems they are being overridden now. Brexit enables us to leave the European Convention on Human Rights, which never contemplated the type of conflict we face and shackles our legal system in a way that costs innocent lives.

At least 400 British Muslims who fought with the Islamic State are estimated to have returned home. Of these, just 54 have been convicted, many receiving short sentences and already released. This reflects our inadequate laws. Until those laws can be changed, these people should be deported or detained and the 300 remaining survivors prevented from returning. We should not in future have to rely on the US to impose justice for us.