Ministers could be ‘guilty of rendition’ if UK brings back Isis fighters from Syria, says defence secretary

Legal experts dismiss ‘latest in a string of different excuses’ for British government’s inaction

Defence secretary Ben Wallace speaks at the Tory conference (EPA)

Ministers would be guilty of “rendition” if the government brought British Isis fighters and their families back from Syria against their will, the defence secretary Ben Wallace has claimed.

Appearing to harden the government’s stance towards against repatriating jihads from refugee camps and prisons in the region, Mr Wallace also claimed there may not be enough evidence in certain cases to convict them in a court of law.

Kurdish officials have demanded the UK fulfils its “moral and legal duty” to repatriate Shamima Begum and other British Isis members detained in war-ravaged Syria.

They are being held indefinitely in squalid camps where children including Begum’s baby have died, and rampant extremism could be creating the conditions for an Isis resurgence.

US defence secretary Mark Esper has urged Boris Johnson’s government to take back jihadis held in the region, where he claimed there were more than 2,000 foreign fighters detained after the fall of Isis’s “caliphate”.

But the government has so far rebuffed the calls, instead dramatically increasing its use of controversial powers to deprive extremists of their British citizenship to prevent any return to the UK.

Asked on the fringes of the Conservative Party conference what the government should do with captured jihadis from the UK, Mr Wallace insisted the government does not provide consular services in Syria.

“I know people go around refugee camps and prisons but they are journalists and aid workers. When you go down there as a member of the crown you become a target,” he said.

Mr Wallace continued: “People say ‘bring them back, put them on trial’. If I bring someone back against their will, I’m guilty of rendition. Under international law, I can’t just swoop into a country and grab someone ... unless they come under extradition. We don’t have an extradition treaty with the Syrian regime, not surprisingly.

“Therefore it’s not as straightforward as just flying into those countries and picking people up, because the first thing that will happen when they do come back for trial, the defence will be – we won’t be able to convict them.”

Legal experts questioned Mr Wallace’s claim over rendition, which commonly refers to the extrajudicial transfer of people from one state to another for interrogation and potential torture.

The US government and Kurdish authorities holding the Isis suspects have said they would support repatriations from Syrian camps to Britain, where normal legal processes would be followed.

Maya Foa, director of the Reprieve legal charity, said Mr Wallace’s rendition argument was the “the latest in a string of different excuses” the government has used to justify its inaction.

“Each time one of these flimsy excuses is revealed as bunk, the government draws another disingenuous card from the pack,” she told The Independent.

“The US has asked time and time again that the UK repatriate its citizens from camps in northeast Syria. Rhetorical sleight of hand must not be allowed to distract from the disastrous lack of sensible policy in this area.”

Several other countries have already taken their citizens out of Syrian Democratic Forces custody, including the US, Belgium, Italy, Morocco and Bosnia.

A number of captured UK jihadis, including Begum and members of “the Beatles” Isis cell, have voiced wishes to return to Britain even if they are jailed.

Mr Wallace claimed that some evidence held on Isis jihadis could not be presented in British courts as the intelligence belongs to other nations.

The cabinet minister added: “If we could bring some of these people, and I was prepared to put at risk British soldiers and civil servants to wander around those kind of camps finding them – we could do all of that, but we might not be able to convict them.

“Then let’s see how many people want those people living next door to them. That is a big question.”

A suite of strengthened terror laws came into effect earlier this year, and Isis members can also be charged with pre-existing offences including membership of a proscribed organisation.

A Supreme Court case heard that there was enough evidence to prosecute alleged Isis “Beatles” Alexanda Kotey and El Shafee Elsheikh in Britain, after Sajid Javid suggested there was not.

Mr Wallace said when it comes to the children of Isis fighters and their wives “it is of course difficult”.

“We are compassionate to the needs of some of these children,” he said. “What we have done in the past is when those children have got to the Turkish border or to Turkey, they are given consular assistance that we provide in Turkey and those children do get the benefit of the UK.

“But the policy of providing consular services in Syria has been consistent for a long time, we won’t provide consular services.”

Some nations, including Australia, have facilitated the transfer of people to countries outside Syria where they have consular services.

Ken Clarke and former defence minister Tobias Ellwood are among the politicians raising concern over the government’s policy.

Mr Ellwood told The Independent the detention of thousands of jihadis and their families in Syria was creating conditions for an Isis resurgence.

“We’ll see Daesh 2.0,” he warned. “We’ll see a repeat of al-Qaeda regrouping and becoming a very real threat, and that threat won’t just pose itself in the Middle East, but also to Britain.”