The last two so-called “Jihadi Beatles,” Alexanda Kotey and El Shafee Elsheikh, were captured in the middle of January, by Kurdish militia. The British legal system now faces a problem. With Aine Lesley Davis already in Turkish jail and Mohammed Emwazi ‘evaporated,’ to take the unsavoury word of a US official, by drones, what do we do with these two criminals?
The thing that captured the public’s attention about these terrorists, making them pause in front of their Metro and look at the figure bedecked in black, slyly eyeing his knife, was that this figure of casual menace was British, too. Perhaps more than the crucifixions, the water-boarding, the psychological abuse and videos of alien and brutal acts committed in the Syrian dust, it was this sense of false and uncanny understanding that the men capable of these acts came from the same island, the same city, the same street as us, which led to the heightened disgust towards them. Were they Syrian or even from continental Europe, their narrative would not have given the same effect of looking in the mirror at the appallingly murderous potentiality of man, British man, under the spell of a sadistic ideology.
Now, this Britishness underlines the problem of what to do with them. Should they be brought back to Britain and given the “fair and public hearing by an independent and impartial tribunal” that Article 10 of the Universal Declaration of Human Rights enshrines, giving them the justice and respect that they never gave to their victims, via a Western charter of rights they spent their adult life in contravention and political opposition to? Home Secretary Amber Rudd is tentatively leaning towards this superficially appropriate route. However, she has received a lot of backlash, for what Kotey and Elsheikh did were not standard crimes. Would this really be justice for their victims, if the two of them and what they represent are treated like other less public, less murderously inexcusable criminals? It seems ethically strange to have to put a value-judgement on such acts. Worse, the lack of evidence available to London prosecution lawyers, seeing as a Warzone doesn’t quite have the preservational integrity of a forensic lab, might mean the pair gets released. This route is clearly then flawed, too disconnected from the reality of their crimes to offer any satisfactory conclusion for their victims.
However, the other options are not attractive either. Their British citizenship has been rebuked and so they could be tried at the ICC in The Hague, which is neither efficient (three defendants have been successfully convicted in its entire history), nor recognised, by countries like America, where many of the victims come from. It is a very real possibility that they could then be condemned to Guantanamo purgatory, with no trial forthcoming, and have their human rights abused in the good old-fashioned American way. Those with a desire for revenge and an Old Testament view of justice might prefer this way, for there are those that simply want them shot and have done with it. Yet in a liberal and open society this should not sit comfortably, for Kotey and Elsheikh are humans. Though their inhumanity has made it easy to take up an altered view of them, it would undermine any actual alterity if the West were to deal with them as they dealt with their victims.
Moreover, Guantanamo would mean Kotey and Elsheikh either get forgotten about, or feed into the narrative of the West as anti-Islamic, which Daesh (formally known as ISIS) feed off. Indeed, a chief consideration in the handling of the two should be the prevention of other vulnerable British youths from joining the fading Daesh Caliphate or otherwise engaging in terrorist activity. The ideologies that ensnared them can and are ensnaring others. Therefore, they need to be held accountable and made an example of in some way. The bubble glamour, which the appellation “Jihadi Beatles” has imbued them with, needs to be punctured, in a public way, that cannot be twisted into a form of martyrdom, as has happened in the past.
And so, we have reached the chief crux of the issue: how to ensure both justice and the inalienable human rights of the terrorists are upheld, in a way that sets a precedent. Times like this, like the Nuremberg Trials, where the old moral-legal stringencies that we defer meaning to, the codes and charters, which blanket the world in black-and-whites, become suddenly daubed in the grey of a newly de-centred era, reveal the ethical complexity of reality. No punishment for Kotey and Elsheikh will be appropriate; no law can wield the depth of the subject adequately. Lord High Chancellor David Gauke illustrates this problem by calling for the two terrorists to face “due process,” placing meaning in a phrase that does little to elucidate the situation – the idea of due process was not made with the horrors of Syria in mind, but with the agrarian and barony disputes of the Middle Ages; what are these terrorists due? It is an ethically impossible question to answer, but equally important to ask.
Even the act of justice here is something of a vanity. There is something absurd about it, because the overarching irony of the whole situation is that if they were not found in Syria by Western forces, they would have simply been droned like Emwazi was. There would be no pretence of justice for either the victims or the terrorists. Now, in reality, the fates of the two will lie in one of the procedures I have outlined above, but, whichever one it is, it will be unsatisfactory, until the West systematises an effective and utilitarian way of dealing with captured terrorists.