What should be done with European nationals who went to fight with ISIS?

Sajid Javid is an able Home Secretary; he is also an ambitious one. His decision to use what are supposed to be emergency powers to deprive Shamima Begum of her British citizenship undoubtedly reflects public opinion and will do him no harm if and when there is a Conservative leadership election. He claims that, by according priority to national security over the human rights of an individual, he is acting in the public interest.

But the courts are unlikely to uphold this decision. In TheArticle, Britain’s most distinguished and experienced human rights lawyer Geoffrey Robertson QC writes that Javid’s decision would render Ms Begum stateless, “which is contrary to law and likely to be struck down by the courts”. The Home Secretary also “overlooked her baby,” Robertson writes, who was “British at the time of his birth and thus entitled to return and take legal action to force the Government to bring back his mother”.

Robertson argues that, rather than leaving Ms Begum and her child to face almost certain death at the hands of the Assad regime, it would be preferable to allow her to return. She should be arrested, interrogated, prosecuted and perhaps imprisoned. But as a teenage bride of an Isis thug, he suggests, she should be treated like the Korean “comfort women” who served Japanese soldiers during the Second World War — in other words, as a victim rather than a perpetrator. It is true that she volunteered for this role, but she was 15 at the time and her legal responsibility is limited by her status as a minor. He questions whether the Sky interview on which the Home Secretary relies for his decision to exclude her from her homeland as a terrorist threat would even be admissible in court.

Geoffrey Robertson has humiliated many a Home Secretary before in human rights cases. Moreover, other lawyers such as Philippe Sands QC agree with his critique of Javid’s decision. Sands questions whether “serious lawyers of the kind one finds at the Foreign Office, or the Attorney General, could have signed off on the Home Secretary’s decision”. It is likely that Javid took into account secret intelligence about the threat posed by returning Isis prisoners. But such evidence, even if it were admissible in court, does not necessarily trump human rights in the eyes of a British judge and jury. Ever since the battles over habeas corpus in the 17th and 18th centuries, courts have tended to give the benefit of the doubt to individuals, even those of dubious loyalty, when the state seeks to strip them of their liberty. That is what the rule of law, England’s greatest legacy to the world, really means.

The fact remains that we have permitted numerous former Isis supporters to return to the UK. Few have been prosecuted and the authorities admit that they cannot all be kept under surveillance. The cost of processing hundreds more British ex-Isis captives could be astronomical. Robertson suggests that the United Nations Security Council, of which Britain is a permanent member, could take the initiative by declaring that all these prisoners from Islamic State will be tried in The Hague under the auspices of the International Criminal Court (ICC). He argues that the present situation has similarities with the problem faced by the Allies after the defeat of Germany in 1945. The response then was to create the Nuremberg war crimes tribunal, which put leading Nazis on trial and punished them within a year. The death penalty was then regarded as a legitimate response to the unprecedented scale of Nazi crimes against humanity. Today, even the atrocities committed in the name of the “caliphate” could only be punished by imprisonment. Then, a special prison was erected in Spandau to incarcerate the Nazis. Today, the ICC might need to look much farther afield to find a place appropriate for the killers of Isis. Robertson suggests St Helena, where Napoleon ended his days. That solution has at least one advantage: escape from the South Atlantic would be well-nigh impossible.

It is hard to imagine the wheels of international justice grinding nearly as quickly as the Nuremberg trials nowadays, especially as the Trump administration has little regard for the ICC. But the problem is an urgent one. Britain should take a lead in proposing a comprehensive solution, rather than leaving it to ministers to play to the gallery.