The UK failed to assure that two ISIL suspects would not face execution in US, angering legal experts and rights groups.

The United Kingdom‘s decision to share evidence with the United States about two suspected British ISIL members without seeking assurances they would not face the death penalty if extradited sets a dangerous precedent, international human rights lawyers and groups have said.

A letter leaked to the media in July last year, revealed that the UK’s former Home Secretary Sajid Javid told US Attorney General Jeff Sessions, in consultation with the then-foreign secretary Boris Johnson, that the UK had “strong reasons for not requiring a death penalty assurance in this specific case”.

Maha Elgizouli, the mother of one of the two suspects, El-Shafee Elsheikh, has challenged the UK’s decision to share 600 witness statements gathered about her son and the other suspected member of the Islamic State of Iraq and the Levant (ISIL or ISIS) group, Alexanda Kotey, with US authorities under a mutual legal assistance (MLA) agreement.

Elgizouli lodged a claim against the decision at the High Court, but two judges ruled in January it was not unlawful.

She now hopes that after hearings which opened in the Supreme Court on Tuesday, judges will rule to review the decision.

Internationally, we are moving away from a rule-based system to a power-based system. That effectively means is that the international law rubric isn't being adhered to. Tasnime Akunjee, criminal defence solicitor

If extradited to the US without those assurances, Elsheikh and Kotey, both of whom are accused of belonging to the so-called “ISIL Beatles”, could be executed or sent to Guantanamo Bay where detainees have been held for years without trial.

“To proceed without the provision of an enforceable written assurance as to the death penalty, torture and fair trial guarantees would set a very dangerous precedent,” Toby Cadman, an international human rights lawyer and barrister, told Al Jazeera.

“It would send a message that we are prepared to disregard human rights concerns for political expediency,” added Cadman, who specialises in war crimes, extradition and human rights law.

Legal exception

Elsheikh and Kotey were allegedly responsible for killing several people, including journalists James Foley and Steven Sotloff and British aid workers Alan Henning and David Haines.

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Both suspects were stripped of their British citizenship after they were captured by Syrian Kurdish forces last January.

The move stirred debate over whether they should be returned to the UK for trial or face justice elsewhere.

MLA requests between the UK and US are subject to rules in the Overseas Security and Justice Assistance Guidance, which states that while written assurances against the use of the death penalty should be sought, there can be exceptions.

When 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,” according to the guidance.

But UK Security Minister Ben Wallace generated anger among politicians and the public when he said last year that Britain would be willing to waive its long-standing objection to the death penalty in the cases of Elsheikh and Kotey, claiming that seeking a bar on execution might “get in the way” of justice.

Assisting a country who may seek to impose the death penalty, without seeking concrete assurances that they will not, makes a mockery of the UK's claim to be opposed to it. Nadia O'Mara, Liberty policy and campaigns officer

According to Cadman, “whilst the guidance clearly states that the UK can provide MLA to a foreign state without the provision of a written assurance as to the death penalty, the mode of execution, the use of torture, fair trial considerations are all matters that should be considered”.

Tasnime Akunjee, a criminal defence solicitor in London, told Al Jazeera that the move showed that “internationally, we are moving away from a rule-based system to a power-based system. That effectively means is that the international law rubric isn’t being adhered to.”

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During a hearing in October, Elgizouli’s lawyers said that Javid’s decision, was “unprecedented and unjustified”, according to UK media.

But Akunjee, who represented Shamima Begum, a UK teenager stripped of her citizenship for travelling to ISIL-controlled Syria in 2015, said the UK has taken this decision before, but unofficially.

“This [move] has happened many times albeit … it’s not been done in this official way,” said Akunjee, adding that “those who have survived that have sought and garnered compensation.”

Human rights concerns

Britain abolished the death penalty in 1965, having carried out its last two executions the year before.

“The UK has a long, proud history of leading global opposition to the death penalty since we abolished it,” Nadia O’Mara, Liberty policy and campaigns officer, told Al Jazeera. “But assisting a country who may seek to impose the death penalty, without seeking concrete assurances that they will not, makes a mockery of the UK’s claim to be opposed to it.”

Jodie Blackstock, legal director at Justice, a UK-based law reform and human rights organisation, said: “It is usual UK policy to seek such an assurance before sharing intelligence because of the UK’s anti-capital punishment stance.”

In addition to the death penalty, advocacy groups have raised concerns over the suspects’ potential detention at Guantanamo Bay, a US camp which the UK called to close down following mounting international criticism of its conditions and the length of time detainees were held without trial.

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“Considering the UK’s official position on Guantanamo Bay is for it to be closed … the home secretary’s position is hypocritical and flies in the face of Britain’s obligations against arbitrary imprisonment, torture and the death penalty,” said Moazzam Begg, outreach director for UK advocacy group Cage.

More broadly, there are increasing concerns among activists and legal experts about the UK’s human rights policies.

“There is a growing trend from the government of backsliding on fundamental human rights obligations,” said O’Mara, referring to the UK’s decision earlier this month against establishing an independent judge-led inquiry into UK involvement in torture and rendition that took place after 9/11.

According to Cadman, the UK may be even bolder in its decision after Priti Patel – who has in the past expressed support for reinstating the death penalty – was appointed home secretary as part of Prime Minister Boris Johnson’s new cabinet.

“It is not likely that the UK government will seek to reinstate the death penalty,” he said, “but it does tend to demonstrate that the home secretary’s view on the issue is likely to be bolder than Sajid Javid’s.”