Government not keen to handle legal ‘hot potato’
‘Getting enough evidence to be confident of a conviction at home is difficult, so our preference is to leave them there’
THE difficulty of successfully prosecuting Islamic State of Iraq and the Levant (Isil) suspects returning from the battlefield has made countries such as Britain reluctant to repatriate their nationals, experts have said.
Four Britons accused of being members of Isil are currently being held in Syria, but the UK has so far refused all requests to try them at home.
The Government is keen to avoid an influx of difficult cases, and is keenly aware of the public outcry that would follow should a notorious jihadist be released due to lack of evidence.
Before any charge is launched, the prosecutor must be satisfied that there is sufficient evidence to provide a realistic prospect of conviction. This can be tricky when the evidence is in a foreign war zone.
The groups holding the British Isil suspects, known as the Syrian Democratic Forces (SDF) and the Free Syrian Army (FSA), are non-state actors with no recognised legal or judicial system. Any evidence or confessions they gather without the presence of US or UK military personnel could prove to be inadmissible. Witness statements could be used in a criminal court in the UK, but unless these are from reliable eyewitnesses much of this would likely be excluded as hearsay.
The US has had a small number of its nationals detained in Syria and Iraq, however it has not had a consistent approach in dealing with them. One suspect is to be released where he was found in Syria, according to court papers which suggested there was insufficient evidence to charge him. Another, it was revealed last week, is to be sent to the US for prosecution in a criminal court.
Shafee El-sheikh and Alexanda Kotey have been declared “specially designated global terrorists”. The pair are accused of imprisoning and torturing Western hostages, some of whom are alive and could testify against them in court. However, the captors were known to wear masks at all times around their hostages, meaning they would only be able to be identified by voice.
“Getting enough evidence to be confident of a conviction at home is difficult, so our preference is to leave them there,” one diplomat told The Daily Telegraph. “But the problem is the SDF does not have a recognised legal system. Basically it is a bit of hot potato that we want to make sure we’re not left holding.”
Tobias Ellwood, a defence minister, had suggested the fighters should be tried at The Hague, where they could face more serious charges of crimes against humanity and genocide. But this usually only happens when their country is unable to conduct a fair trial.
Some 850-900 Britons are estimated to have left the country to join Isil, around half of whom have since returned. The Home Office disclosed last year that of the 400 or so foreign fighters who had returned from Syria and Iraq, only 54 have been convicted.
Some – those who could only be charged with membership of a terrorist group – were given relatively short sentences and have already been released.
More than 300 British fighters are unaccounted for. It is feared some may still be alive and hiding in Turkey, looking for a way to travel to the UK. A handful have been prosecuted and charged in Turkey, where jihadists who managed to cross the border from neighbouring Syria ended up.
Aine Lesley Davis, a third member of the “Beatles”, was last year tried in Turkey and received a prison sentence of seven and a half years. Davis could serve as little as three years before facing deportation. The families of Davis’s victims in the UK criticised what they said was a lenient sentence. They had called for him to be extradited to face trial at home.