Sajid Javid took the right decision
What should happen to the two former British men alleged to have carried out appalling murders in Syria? This was the practical question facing Sajid Javid, the Home Secretary, after being advised that if they were brought to the UK they might not even face trial, let alone conviction. We can argue over why the UK’S law is insufficiently robust to deal with this eventuality, despite the promises of successive governments to ensure that it would be. Mr Javid was confronted with the position as it is, rather than how we might like it to be.
There were several options. They could be tried in Syria where they are being held by the predominantly Kurdish Syrian Democratic Forces. But in such a lawless area this is hardly practical. A special war crimes court could have been constituted at The Hague, but this is normally reserved for state players accused of crimes against humanity. They could be returned to the UK, but if there was a strong likelihood that a trial would not be possible, how would that be justice for the victims and their relatives?
Mr Javid chose another option – to find a jurisdiction that would allow a fair trial but which has the statutory basis to hear evidence that would not be admissible here. The obvious place was the United States; but that brought its own problems since the charges they face would carry the death penalty. The UK has for many years taken the view that it would not extradite its citizens to a jurisdiction that might lead to their execution.
But this is not an extradition case. Indeed, so opaque is this whole process that it has only now been officially acknowledged that these men are no longer UK citizens. They were stripped of their nationality, thereby rendering them stateless. In that case, however, why is the Government even required to seek assurances about the use of the death penalty in order to hand over intelligence to the US courts? Moreover, this is about sharing information – Mutual Legal Assistance – with a friendly power to facilitate a fair trial.
On balance, Mr Javid took the right decision in the interests of justice and public security, so it is somewhat surprising that Downing Street could not offer its immediate unambiguous support. Perhaps Theresa May was mindful of the controversy this would stir among MPS and campaigners. But not among voters. If these two men walk free without trial, the public will find that impossible to understand.