On October 25, the UK government disclosed that it was reconsidering its decision not to prosecute a pair of Islamic State (“ISIS”) members. The decision came after the U.S. military took custody of the two men, Alexanda Kotey and El Shafee Elsheikh, three weeks ago.
Previously, the Crown Prosecution Service (CPS), an independent public authority in England and Wales, decided not to prosecute the men and the UK had been accused of making this decision to prevent setting a precedent for mass jihadist repatriations. However, it appears as if the government has had a change of heart “Due to a change in circumstances the CPS are reviewing the evidence in accordance with the Code for Crown Prosecutors.”
The two men, also known as “The Beatles,” were stripped of their British citizenship due to their affiliation with ISIS. In fact, they were part of an ISIS cell that had suspected involvement in the murders of American and British hostages in Syria, notably the beheading of Americans James Foley, Steven Sotloff, and Peter Kassig. In early 2018, Kurdish-led Syrian Democratic Forces captured and detained the men, making their transfer to the British judicial system difficult.
However, a major development occurred three weeks ago when Kurdish allies handed the men over to a U.S. detention center in Iraq, removing an obstacle for British prosecution.
It is interesting to note that this reconsideration comes as the High Court in London announced it postponed a hearing that was originally scheduled for Tuesday, October 29. The hearing was on a case from Elsheikh’s mother, Maria Elgizouli, who wants the court to rule that her son should be tried in the UK instead of the U.S., where the death penalty could no longer apply.
Earlier this month, the plan was to transfer the two men to the United States where they would be put on trial. This move was approved by President Trump who discussed it with British Prime Minister Boris Johnson. In fact, U.S. prosecutors were preparing to bring the case against the two men and were hopeful that they could acquire evidence from UK prosecutors. This evidence included voice analysis tied to the two men and details about how they got to Syria.
In spite of the U.S.’s hopes, Elgizouli sued the government in order to force a trial in Britain, hence guaranteeing that the death penalty was no longer a possibility.
Regarding the families of the slain Americans, they do not care where the men are prosecuted—they just want justice. Diane Foley, mother of James Foley, said, “I am certainly okay with them going to the United Kingdom, they are citizens…I want to make sure that all their crimes can be assessed and can be prosecuted fully.”
When the initial decision not to prosecute the men was made, British government officials claimed that prosecutors did not have enough evidence to try the militants in the UK courts. However, in June, Elgizouli’s court case revealed that prosecutors had secretly issued an arrest warrant for Kotey in 2016 for five charges of murder and eight charges of hostage-taking. The prosecutors also admitted to Elgizouli that they had enough evidence to charge her son with membership to ISIS.
It is alleged that the Home Office publicly claimed there was no evidence to bring them home to face justice because the then-Home Secretary, Theresa May, felt it was politically problematic. As a result, UK ministers continually insisted the best chance of prosecution was to send the men to the U.S., where he was expected to be tried in Virginia.
Now that the British government believes there is substantial evidence, the situation is beginning to shift. Within the next few weeks, the Supreme Court is expected to rule on the issue of sharing evidence gathered by the British with American prosecutors.