Is the UK condoning the death penalty?

The UK's Foreign Office (FCO) in its annual update on human rights issues published last week said: "It is a long-standing principle of the UK to oppose the death penalty in all circumstances as a matter of principle." It added that it continues to raise concerns over the use of the death penalty in the United States.

It appears, however, that in the case of the two captured Islamic State (IS) fighters of British origin the UK government, in the form of Home Secretary Sajid Javid, has chosen to ignore its own Foreign Office.

In a leaked letter to the US attorney general, Javid said that he has "strong reasons" for not seeking assurances from US authorities that the two men in question, Alexanda Kotey and El Shafee Elsheikh, would not face the death penalty if they were to be tried in the country. The suspects are believed to have been members of a cell dubbed "The Beatles" — due to their British accents — which videotaped its decapitations of Western captives. They're currently being held in northern Syria by the Syrian Democratic Forces and have been stripped of their UK nationality.

Given the complexity in obtaining evidence, finding witnesses and establishing the exact jurisdiction, Javid argues that the laws in the US allow for a better chance of prosecution.

Is the UK passing the buck?

Ben Keith, a barrister with 5 St Andrews Hill in London who specializes in extradition, immigration and human rights cases, told DW that on the surface it is an extradition case. "The UK has undertaken a four-year investigation by its counterterrorism division on whether they're going to prosecute these two men in conjunction with the US to decide who is going to prosecute them and where," he said. "The UK has come to a decision for whatever reason that the chances of conviction are lower here then they are in the US or that our powers of prosecuting people under the jurisdiction for torture and war crimes don't extend far enough."

Read more: UK unveils revamped counterterrorism strategy

So is the UK turning a blind eye towards its death penalty policy? Ben Wallace, the UK's security minister, has confirmed to MPs that it has happened in the past, but not on his watch. And this is where the so-calledOverseas Security and Justice Assistance guidance comes into play. Wallace told MPs that the little-known guidance, which was last updated in January 2017, allows the home secretary to make an exception to the rule.

On the issue of the death penalty the guidance states: "Written assurances should be sought before agreeing to the provision of assistance that anyone found guilty would not face the death penalty. Where no assurances are forthcoming or where there are strong reasons not to seek assurances, the case should automatically be deemed 'High Risk' and FCO Ministers should be consulted to determine whether, given the specific circumstances of the case, we should nevertheless provide assistance."

Providing legal assistance to the US

However, Keith says that a separate provision, called the Mutual Legal Assistance, is even more relevant: "At the end of those four years of investigation, we've decided to let the US take the lead and do the prosecutions and so we are therefore providing the US with all of our investigation notes, statements and witness evidence."

At the same time, the Home Office has in the past always adhered to the principle that the UK doesn't provide evidence to countries where that information might lead to the execution of the suspect involved. "And so effectively were helping the US potentially execute them. It's somewhat ironic that we're opposed to Guantanamo Bay but we're not opposed to the death penalty," said Keith.

Javid has suggested that there is a difference here in as much as the two fighters are accused of kidnapping and murdering UK and US citizens and that the victims' families want to see justice done. But that haste, said Keith, is difficult to understand. "We've sought assurances in the United States in relation to death penalty cases in extradition proceedings and in mutual legal assistance and as far as I'm aware not once have they refused to give an assurance. So this might have delayed them (the UK government) by a month at most. A week to write a letter, two or three weeks for them (the US) to consider it and a letter back saying we will not ask for the death penalty.

A reversal on human rights?

As the backlash continues, questions are being raised whether Prime Minister Theresa May has tacitly signed off on the letter. Keith said he's not surprised by those reports. "You may remember that when she was home secretary she used both Abu Hamza (a firebrand cleric who was extradited to the US) and Abu Qatada, another hate preacher who was deported to Jordan, as political footballs in the House of Commons, as examples of where the Human Rights Act had helped horrible people."

The UK has long prided itself on being a staunch campaigner of and standing up for human rights, the latest FCOs report being a case in point. But MPs across the party spectrum are now wondering what the current controversy might mean for its foreign policy in terms of criticizing countries such as China or Saudi Arabia for their use of capital punishment. Keith is unequivocal as to what kind of legal precedent it would set.

"It would be the UK reversing our commitment to campaigning against the death penalty," he said.