Kotey and Elsheikh were part of the ISIS Army and were stripped of their British citizenship after alleged involvement in the execution of civilians.
Currently, they’re being held by Syrian Democratic Forces in Eastern Syria – an organisation that enjoys most of its military backing from the USA, who have been coordinating information on foreign fighters, together with governments involved in the anti-ISIS coalition.
The general protocol is that these sorts of prisoners are returned to their country of origin for trial.
However, the US probably believes that Kotey and Elsheikh were part of the group that killed the American Journalist James Foley and consequently, they want them tried and punished in America.
Doing the best I can with the information available on the web, it seems that the US approached the Home Secretary, Sajid Javid, with a request for Mutual Legal Assistance (MLA) under the arrangements between the USA and the UK.
In considering the request the Home Secretary decided the UK did not need to seek assurances from the USA that the two would not suffer the death penalty if convicted.
If you are interested in reading the home office MLA guidelines, you can find them here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/415038/MLA_Guidelines_2015.pdf
Interestingly, you can read on page 15 that:
“Possible grounds for refusal include: the risk that the death penalty will be imposed for the crime under investigation.”
From his comments it seems clear the Home Secretary consulted the Government’s Human Rights Guidance contained in the “Overseas Security & Justice Assistance” (OSJA) document.
He said that there were “strong reasons for not requiring a death penalty assurance …” (see item 9 (b) on page 22 of OSJA)
Mr. Elsheikh’s mother is now seeking judicial review of the Home Secretary’s decision.
It is likely that she will be alleging that it is violation of his right to life, and the Home Secretary has agreed to suspend the MLA while the case is before the court.
As soon as that judgment is available I’ll share my thoughts and findings with you.