The British government purports to be re-establishing the UK as an independent nation state by leaving the EU, but British power and ability to decide its own policies are continuing to ebb in the real world. The latest evidence of this is the decision by the Home Secretary Sajid Javid to give precedence to the US in putting on trial two alleged ISIS members from London, who belonged to the notorious “Beatles” group in Syria that specialised in torturing and beheading their captives.
The humiliating admission by a country that it is incapable of dealing effectively and legally with its worst criminals is normally made by states like Colombia and Mexico, which extradite drug lords to the US. Their governments are implicitly confessing that they are too feeble and corrupt to punish their most powerful lawbreakers.
The British authorities are encouraging the Syrian Kurds holding El Shafee Elsheik and Alexanda Kotey to extradite them to the US rather than Britain. The declared motive for this is that there is a better chance of a speedy trial and exemplary sentence before a US court than in a British one, though the record in the US since 9/11 makes this a dubious argument.
What does come across is that Britain is in a messy situation regarding Isis prisoners and the return of jihadis to UK, with which it is unable to cope. The decision is now being reviewed by a judge in the UK.
As with Mexico and Colombia, the overall impression left by Javid’s actions is one of weakness and incapacity.
First, he made the baffling and unexplained decision to drop the usual British condition that the UK would provide evidence and intelligence for a trial only if the death penalty was ruled out. Moreover, he not only abandoned the longheld British principle of opposing state executions but did so in secret, suggesting the government knew all too well the significance of its change of policy.
The simplest explanation for not seeking a “death penalty assurance” from the US is that Theresa May, Javid and Boris Johnson, foreign secretary when the decision was made, saw the “Beatles” as a political hot potato.
They would be squeezed between those who demand that Elsheik and Kotey be punished with extreme rigour, and those who believe that the worst way to respond to Isis is to be lured into some form of lynch law. It is possible that the Trump administration unofficially insisted that Britain step back from its open opposition to the death penalty.
An alternative solution would be to hand over the two accused men to the International Criminal Court in the Hague – the only real objection to this being that the US refuses to recognise the court and the British priority in the age of Brexit is, above all else, to keep onside with Washington.
Isis benefits from the imbroglio over these Beatles because its atrocities have always aimed at instilling fear, but at the same time provoking an over-reaction by those it targets. This strategy worked well for al-Qaeda after 9/11 when US judicial credibility was damaged beyond repair in the eyes of the world by rendition, waterboarding, imprisonment without trial at Guantanamo and ritualised mistreatment of prisoners at Abu Ghraib.
At every stage in the conflicts in Syria, Iraq, Libya and Afghanistan, successive British governments have made unforced errors. They never seem to grasp the nature of these civil wars and how difficult it is to give a fair trial to anybody caught up in them because anybody detained on the vaguest suspicion may be sent to prison, tortured into a confession and summarily executed.
I was in Taji, a Sunni Arab area north of Baghdad in June this year, a place which used to be an Isis stronghold. A farmer told me that several of his neighbours have not made the hour-long journey to Baghdad for 10 years because they are frightened of being detained at government checkpoints, imprisoned and forced into false confessions.
The same fears are pervasive in Syrian government areas. Several years ago, I was talking to Sunni Arab refugees living in a school in the partly ruined city of Homs, where fighting was particularly intense. I said that it must be dangerous for any man of military age to move on the roads.
This was greeted with bitter laughter from the older men who said they were in just as much danger as their younger relatives.
Often the only way to get out of prison is not proof of innocence, but a bribe to the right officials. This is expensive and does not always work because the bribe-takers do not necessarily deliver on their promises. Iraqis and Syrians commonly believe that those most likely to buy their way out of prison are Isis militants who can come up with large sums of money and are too dangerous to be short-changed by officials they have bribed.
After the capture of Mosul, the de facto Isis capital in Iraq, in 2017, local people told me they were aghast at seeing former Isis officials back on their streets after a short detention. They claimed that this was because of the wholesale bribery of Baghdad government security forces.
Iraqi soldiers in the front line were equally cynical and concluded that there was no point sending live prisoners back to Baghdad so they executed them on the spot.
The Beatles are more famous because they killed and mistreated Westerners, but otherwise they were no different from other cruel and murderous Isis gangs. It is claimed that one reason they could not be tried in Britain is that information from the intelligence agencies could not be used without compromising sources. This might be true but whenever secret intelligence from government agencies has been revealed by public inquiries over the past 15 years, it has turned out to be far shakier and less compelling than originally claimed.
Knowing who really was in Isis and what they did there is impossible in countries where torture is pervasive and false confessions the norm. The time to have dealt with British jihadis and the tens of thousands of other fanatical foreign fighters was several years ago when they were freely crossing the Turkish border into Syria.
But the British government and its allies showed little concern because the priority then was forcing regime change in Damascus, an aim shared by the jihadis.
Sajid Javid pretends that the principle of government opposition to the death penalty will only be set aside in this single exceptional case, though principles that can be discarded so easily at convenient moments automatically cease to be principles.
The controversy over the legal fate of the “Beatles” underlines once again the truth of Cicero’s saying that “the laws are silent in times of war”.