What are the philosophical and moral implications of sending ISIS terror suspects who until recently possessed British passports to stand trial in the US, and so condemning them to capital punishment? Are the acts of El Shafee Elsheikh and Alexanda Kotey so horrific that we may revise our views on the death penalty?

The debate over Elsheikh's and Kotey's cases, after raging for much of the summer, has heated up again after recent charges that British Home Secretary Sajid Javid's decision to drop the UK's objection to the death penalty in these cases was to avoid the 'outrage' of the Trump administration. Elsheikh and Kotey, who were until recently British citizens, are currently being held by UK allies in Syria. They are believed to be members of the notorious Isis cell nicknamed ‘the Beatles’ and are suspected of taking part in public beheadings, waterboarding, and other serious crimes. They would likely face the death penalty if convicted by a U.S. court, whereas the UK abolished capital punishment in 1998.

Elsheikh’s and Kotey’s cases are troubling in a number of ways. Most importantly, Javid’s decision departs from a UK government policy of not sending people to foreign countries for trial, or aiding investigations of them, without assurances that the death penalty will not be used. Supporters of the government’s decision insist that this case represents only an exception to the UK’s longstanding policy regarding the death penalty, not a revision of it. In a leaked letter published in July by the Daily Telegraph, Javid told U.S. Attorney General Jeff Sessions that the decision not to seek death penalty assurances in Kotey’s and Elsheikh’s cases ‘does not reflect a change in our policy on assistance in U.S. death penalty cases generally, nor the UK Government’s stance on the global abolition of the death penalty.’

But if this is so, then why are exceptions being made in Kotey’s and Elsheikh’s cases? The government is in effect sending the message that the UK favours global abolition of the death penalty except in cases when it is okay. The great virtue of living under the rule of law is that it protects people against being subject to the arbitrary control of other individuals. But this means that a society that cares about the rule of law can't pick and choose to whom it extends its protections.

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"We don’t have empirical evidence that capital punishment deters crime more effectively than other forms of punishment."

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One explanation, suggested by the legal counsel representing Elsheikh’s mother in a legal challenge to the UK’s cooperation with the US on the case, is that Javid was afraid of angering the American government. Edward Fitzgerald QC, who represents Elsheikh’s mother, said that Javid’s departure from seeking death penalty assurances was ‘in large part because of anticipated outrage among political appointments in the Trump administration.’ This explanation, if correct, is especially troubling. The UK would be effectively amending its stated support of global abolition of capital punishment to make exceptions when this stance would upset the United States, or perhaps whenever it is politically inconvenient.