European human rights judges would rule Britain’s plan to waive death penalty assurances for two suspected members of the Isil ‘Beatles’ terror cell illegal, experts say, and could order the UK to seek US guarantees and even pay the men damages.
The decision by Sajid Javid, the Home Secretary, has already been challenged with a judicial review in the High Court.
Even if British justices decide the failure to seek guarantees for Alexanda Kotey and El Shafee Elsheikh is legal, a case could be brought to the European Court of Human Rights (ECHR) in Strasbourg, France.
“The Home Secretary’s decision in this case is in the clearest possible breach of the European Convention on Human Rights,” Ben Emmerson QC, the former UN Special Rapporteur on Counter-Terrorism and Human Rights, who currently sits as a judge for the UN International Criminal Tribunals, told The Telegraph.
The Convention has a protocol that abolishes the death penalty in all circumstances and an article guaranteeing the right to life.
Article 3 of the Convention, which forbids “inhuman and degrading treatment” has been used in the past to fight extraditions from Britain to the US because a prisoner would face the death penalty. The Convention is given force in British law in the Human Rights Act 1998.
“The Home Secretary’s decision in this case is subject to a general provision of that statute that makes it unlawful for a minister to take a decision that is incompatible with the Convention rights,” said Mr Emmerson, of Matrix Chambers, London.
Ben Keith, a human rights barrister at 5 St Andrew’s Hill said “If the High Court was to refuse to hear or dismiss the challenge, European proceedings could follow quite quickly, in a matter of months,” he said.
“To my knowledge the US has never failed to give assurances to Britain over the death penalty when asked,” he added, “It is bizaare, surreal they have not been asked to provide them.”
The court is not a European Union institution but associatied with the Council of Europe, a separate international body to the EU with 47 member states.