Is the UK’s Abolitionist Stance Against the Death Penalty Still Absolute?

[Briony Potts is a Legal Adviser at the International Commission of Jurists]

Sajid Javid, UK Home secretary, has undertaken an extraordinary move that suggests an unprecedented shift in the UK’s previously held position of an absolute stance against the death penalty.

Alexanda Kotey and El Shafee Elsheikh were the last two men of a group known as “the Beatles”, so nicknamed because of their British accents, who are accused of having tortured and murdered approximately two dozen hostages in Syria. Allegations include involvement in beheadings of American journalists James Foley and Steven Sotloff and British aid workers David Haines and Alan Henning, which were filmed and distributed as Isis propaganda.

The men, formerly British citizens, were apprehended in Syria earlier this year and in which jurisdiction they should face trial has been a matter of serious debate. The US have been pushing for home countries of foreign fighters to be returned to their States for trial but the UK has consistently refused to take responsibility for these two and in February stripped them of their UK citizenship, leaving Kotey stateless and Elsheikh with Sudanese nationality, effectively abdicating responsibility for the pair.

In a letter to US Attorney General Jeff Sessions, Javid wrote that he would not demand a “death penalty” assurance in the specific case of Kotey and Elsheikh, although added that the UK’s stance on the global abolition of the death penalty has not changed.

This stance was most recently set out in a 2011 strategy paper for the abolition of the death penalty that was recommitted to in 2015. The paper states “It is the longstanding policy of the UK to oppose the death penalty in all circumstances as a matter of principle because we consider its use undermines human dignity, that there is no conclusive evidence of its deterrent value, and that any miscarriage of justice leading to its imposition is irreversible and irreparable.”

The UK abolished the death penalty for murder in 1965 via the Murder (Abolition of Death Penalty) Act 1965. Although four capital offences remained until the death penalty was completely abolished in the UK by the 1998 Human Rights and Crime and Disorder Acts, the last time anyone was sentenced to death in the UK was in 1964.

Article 6 of the International Covenant of Civil and Political Rights (ICCPR) protects the right to life. The UK is a party to the Covenant and its Second Optional Protocol, which requires States to take all necessary measures to abolish the death penalty in their jurisdiction. The UK is also party to the European Convention on Human Rights (ECHR) and its 13th Protocol, ratified by nearly all Council of Europe States, which requires States parties to abolish the death penalty in all circumstances without derogation or exception.

The application of the death penalty of course engages both the right to life and freedom from cruel, inhuman or degrading punishment. When it comes to extradition of persons from a State’s jurisdiction to another State where they may face the death penalty the legal responsibility of the UK is very clear, and has been so since at least the 1989 landmark judgment by the European Court of Human Rights in Soering v the United Kingdom. Soering set out the ‘death row phenomenon’, the extreme psychological stress and trauma from potentially years of waiting for execution, and the Court’s judgment determined that the extradition of nationals of States that were party to the ECHR to face the death penalty would constitute a violation of article 3 (prohibiting torture and inhuman or degrading treatment of punishment). Since that time, European States have generally only voluntarily transferred people to death penalty retentionist States upon assurance from those States that the death penalty will not be applied.

Article 2 of the ECHR also protects the rights to life and Article 1 of the 6^th Protocol led to the development of clear jurisprudence from the European Court of Human Rights that a State’s responsibility to protect life prohibits extradition to a State where an individual is at risk of the death penalty (Al Nashiri v Poland and F. G. v Sweden).

The Human Rights Committee has also been clear that in respect of Article 6 of the ICCPR, an abolitionist State cannot extradite a person to face criminal charges that carry the death penalty without credible and effective assurances that the death penalty will not be imposed. (Communication No. 829/1998 Judge v Canada, and Communication No. 1442/2005, Yin Fong v Australia). The Committee would go further in its working interpretation under ICCPR’s Article 6, as can be found in the Human Rights Committee’s Draft General Comment No.36 presently under discussion, according to which, in para. 38, irrespective of assurances, “States parties that abolished the death penalty cannot deport or extradite persons to a country in which they are facing criminal charges that carry the death penalty.”

However, Kotey and Elsheikh are not subject to this specific protection because as they were captured in Syria by US-backed forces they are not being extradited from the UK nor from the authority of the UK in Syria, which would come under the State’s (extra-territorial) jurisdiction and engage the UK’s obligations under the ECHR (Sanchez Ramirez v France, Al-Saadoon and Mufdhi v the United Kingdom, and Al-Skeini and Others v the United Kingdom).

The UK’s strategy for the abolition of the death penalty lists the US as among its top five priority countries on which to focus advocacy. However, the UK has also been very clear that it does not want foreign fighters for terrorist groups to be returned to the UK. One way the UK has been striving to achieve this is by the deliberate counter-terrorism policy of stripping citizenship from suspected terrorists.

Article 15 (1) of the Universal Declaration of Human Rights (UDHR) states that “(e)veryone has the right to a nationality.” However, as 15 (2) sets out the ability to deprive a person of their nationality is possible, provided this is not done arbitrarily. The UN General Assembly has affirmed that the prohibition of arbitrary deprivation of nationality is a “fundamental principle of international law.”

The UK is a State Party to the 1961 Convention on the Reduction of Statelessness. Article 8 prohibits the deprivation of nationality if it leaves an individual stateless but allows an exception under Article 8(3)(a)(ii) where an individual “has conducted himself in a manner seriously prejudicial to the vital interests of the state.”

The 1997 European Convention on Nationality Article 7(3) says that a State Party cannot deprive an individual of nationality where the result would be to leave that individual stateless, the only exception allowed to this is where nationality has been obtained fraudulently. However, the UK is not a Party to this Convention.

The right to a nationality is not included in the European Convention on Human Rights, but claims have been brought that the removal of citizenship amounts to a violation of Article 8 (right to respect for private and family life).

However, the recent case of K2 v. the United Kingdom concerning the deprivation of citizenship or a suspected terrorist, was ruled inadmissible by the European Court of Human Rights. Although the Court acknowledged that arbitrary removal of citizenship could impact on rights under Article 8, in this case removal of citizenship was deemed not to have been arbitrary.

The powers of the Home Office to remove citizenship are contained within s40 of the British Nationality Act 1981 but were not widely used by the Home Office until 2014, when the issue of foreign fighters returning from Syria became a more widespread problem. In 2014, the powers of the Home Secretary were extended to enable deprivation of naturalized citizenship even where that individual does not have dual nationality, provided the Secretary of State is satisfied that deprivation is conducive to the public good, thereby enabling the UK to render individuals stateless. The amendment was made after the European Court ruled the UK could not deprive an individual of citizenship if it left them stateless (Al-Jedda v the United Kingdom).

The judgement in K2 may have had the effect of encouraging the UK Home Office to more aggressively pursue its tactic of removing citizenship from suspected terrorists.

Although both Kotey and Elsheikh have a stronger claim to family life in the UK than K2, as both have family in the State, Elsheik’s circumstances are not so dissimilar from K2’s, as he already has Sudanese nationality. Kotey’s circumstances would make a challenge to the stripping of his UK nationality more interesting as this has left him stateless and the Court has yet to squarely address this.

The case of Kotey and Elsheikh is particularly sensitive, and there is no doubt that the men should face trial for their alleged crimes and, if found guilty, sentenced accordingly, but the suggestion in Home Secretary Javid’s letter that justice cannot be achieved without agreeing not to pursue assurances against the death penalty is not only erroneous but entirely disturbing.

The Home Office cannot contend it is committed to the abolition of the death penalty as a matter of principle but suggest that in particularly unappealing cases this principle can be set aside. The UDHR, ICCPR and ECHR, in addition to national legislation, have all put a high value on human life and provisions are in place to ensure life is protected and not something to be disposed of lightly. These human rights protections must apply to all humans, particularly to the most unsympathetic, for rule of law to be effective and for the protection of the human rights of everyone.

The UK’s strategy paper for the abolition of the death penalty notes that for priority country the USA: “We [the UK] are aiming for a reduction in numbers of executions of British nationals…” Removing nationality of those potentially facing death row is a way of manipulating statistics but is clearly against the UK’s alleged principle of opposing the death penalty.

Legally the implications of the UK’s assisting the US in prosecution of two former UK citizens suspected of terrorism, without seeking assurances against the death penalty, have yet to be determined.

However, the UK’s own strategy as set out in the 2011 paper could not be clearer: “In countries where the assistance we [the UK] offer could lead to the death penalty, the assistance we [the UK] may be able to offer will be limited.” This principle is not limited to British Nationals and cannot therefore be simply circumnavigated by removing citizenship without seriously undermining UK efforts to abolish the death penalty.

The UK claims it has acted in full accordance with the law but has agreed to temporarily halt cooperation with the US following the launch of a legal challenge for judicial review that has been submitted by Elsheikh’s mother. The call for judicial review is not about the evidence against Kotey and Elsheikh but whether the Home Secretary’s decision to share information that may lead to their convictions, without seeking assurances against the death penalty, is lawful. The Home Office has agreed it will not co-operate with the US in sharing information about Kotey and Elsheikh until a judge has had a chance to consider the application, the outcome of which may force a further suspension of UK cooperation with the US in this case.