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107TH CONGRESS EXEC. RPT. " SENATE ! 2nd Session 107–12

EXTRADITION TREATY WITH PERU 

OCTOBER 17, 2002.—Ordered to be printed 

Mr. BIDEN, from the Committee on Foreign Relations,

submitted the following 

R E P O R T 

[To accompany Treaty Doc. 107–6]

The Committee on Foreign Relations, to which was referred the 

Extradition Treaty Between the United States of America and the 

Republic of Peru, signed at Lima on July 26, 2001 (Treaty Doc. 

107–6), having considered the same, reports favorably thereon with 

one understanding and one condition and recommends that the 

Senate give its advice and consent to the ratification thereof as set 

forth in this report and the accompanying resolution of advice and 

consent to ratification.

CONTENTS

Page

I. Purpose ........................................................................................................... 1

II. Summary and Discussion of Key Provisions ............................................... 1

III. Entry Into Force and Termination ............................................................... 3

IV. Committee Action .......................................................................................... 3

V. Committee Comments ................................................................................... 3

VI. Explanation of Extradition Treaty with Peru ............................................. 4

VII. Text of Resolution of Advice and Consent to Ratification .......................... 13

I. PURPOSE

The purpose of the Extradition Treaty with Peru (hereafter ‘‘the 

Treaty’’) is to impose mutual obligations to extradite fugitives at 

the request of a party subject to conditions set forth in the Treaty.

II. SUMMARY AND DISCUSSION OF KEY PROVISIONS

The United States is currently a party to over 100 bilateral extradition treaties, including a treaty with Peru which was signed 

in 1899, and entered into force in 1901 (31 Stat. 1921) (hereafter 

the ‘‘1899 treaty’’). 
2

The treaty before the Senate is designed to replace, and thereby 

modernize, the century-old extradition treaty with Peru. It was 

signed in July 2001 and submitted to the Senate on May 8, 2002. 

In general, the Treaty follows a form used in several other bilateral extradition treaties approved by the Senate in recent years. It 

contains two important features which are not in the 1899 treaty. 

First, the Treaty contains a ‘‘dual criminality’’ clause which requires a party to extradite a fugitive whenever the offense is punishable under the laws of both parties by deprivation of liberty for 

a maximum period of more than one year. This provision replaces 

the list of offenses specifically identified in the 1899 treaty. This 

more flexible provision ensures that newly-enacted criminal offenses are covered by the Treaty, thereby obviating the need to 

amend it as offenses are criminalized by the Parties. 

Second, the Treaty provides for extradition of nationals. Specifically, Article III states that extradition ‘‘shall not be refused on the 

ground that the person sought is a national of the Requested 

State.’’ This contrasts with Article V of the 1899 treaty, which does 

not obligate a party to extradite its nationals. Many countries of 

Latin America have, historically, refused to extradite nationals. 

The United States, by contrast, does extradite its nationals, and 

has long attempted to convince extradition partners to do likewise. 

The Treaty contains several other provisions worth noting. 

Consistent with U.S. policy and practice in recent years, the 

Treaty narrows the political offense exception. The political offense 

exception (an exception of long-standing in U.S. extradition practice) bars extradition of an individual for offenses of a ‘‘political’’ nature. The Treaty with Peru retains the political offense exception 

in Article IV(2), but provides that certain crimes shall not be considered political offenses, including murder or other crimes of violence against a Head of State (or his family) of either party, genocide, or offenses for which both parties have an obligation to extradite under a multilateral agreement, such as illicit drug trafficking 

or terrorism offenses. 

The Treaty contains a provision, in Article IV(5), allowing the executive authority of the Requested State to refuse extradition if the 

person sought would be tried or punished under ‘‘extraordinary 

criminal laws or procedures in the Requesting State.’’ This provision was included at the insistence of the United States, based on 

concerns at the time of the negotiations over inadequate due process in cases before Peru’s special terrorism tribunals. Negotiators 

for the two parties understood that the language is paragraph 5 

was specifically intended to refer to proceedings before these tribunals. According to testimony received from the State Department, 

these concerns have been ‘‘assuaged considerably’’ since the negotiations, due to the departure of former President Fujimori and 

subsequent reforms to the Peruvian legal system. 

Finally, the Treaty contains a provision related to the death penalty. Under Article V, when extradition is sought for an offense 

punishable by death in the Requesting State and is not punishable 

by death in the Requested State, the Requested State may refuse 

extradition unless the Requesting State provides an assurance that 

the person sought for extradition will not be executed. This provision is found in many U.S. extradition treaties, as many treaty 

partners do not impose the death penalty under their laws, and ob-
3

ject to its application to fugitives whom they extradite to the 

United States.

III. ENTRY INTO FORCE AND TERMINATION

Under Article XIX, the Treaty enters into force upon the exchange of the instruments of ratification. Either party may terminate the treaty on written notice; termination will be effective six 

months after the date of such notice.

IV. COMMITTEE ACTION

The Committee reviewed the Treaty at a public hearing on September 19, 2002, receiving testimony from representatives of the 

Departments of State and Justice (S. Hrg. 107–721). The Committee considered the Treaty on October 8, 2002, and ordered it favorably reported by voice vote, with the recommendation that the 

Senate give its advice and consent to the ratification of the Treaty 

subject to the understanding and the condition set forth in the resolution of advice and consent to ratification.

V. COMMITTEE COMMENTS

The Committee recommends favorably the Treaty with Peru. It 

modernizes a treaty that is over a century old, and provides a more 

flexible ‘‘dual criminality’’ provision which will incorporate a broader range of criminal offenses than is covered under the current 

treaty with Peru. 

According to the State Department’s most recent human rights 

report, ‘‘confidence among the Peruvian public in the judiciary is 

low,’’ and that although the Constitution of Peru provides for an 

independent judiciary, in practice the judiciary ‘‘has been subject to 

interference from the executive’’ and is also subject to corruption. 

The State Department has testified that since the downfall of the 

Fujimori government in November 2000, Peru has taken steps to 

correct deficiencies in its judicial system, including by increasing 

salaries for judges and abolishing an executive committee which 

former President Fujimori used to influence the judiciary. The 

State Department testimony noted that under U.S. extradition law 

and practice, once a fugitive is found extraditable by a U.S. court, 

the Secretary of State makes the final decision on extradition. As 

part of that review, the Secretary ‘‘takes into account any information available that may affect the defendant’s ability to receive a 

fair trial.’’ The Committee expects that, until judicial reforms have 

been solidified in Peru, the Secretary will give close scrutiny to all 

extradition cases to ensure that the defendant is likely to receive 

adequate due process protections. 

Following negotiation of the Rome Statute on the International 

Criminal Court in 1998, the Committee recommended, in the consideration of extradition treaties, that the Senate include in its resolutions of advice and consent an understanding stating that the 

Rule of Speciality would bar the retransfer of a fugitive to the 

International Criminal Court without the consent of the United 

States. This understanding also provides that the United States 

would not provide such consent unless it becomes a party to the 

Court under Article II of the U.S. Constitution. The Rome Statute 
4

1Signed at Lima November 28, 1899; entered into force February 22, 1901; 31 Stat. 1921; TS 

288; 10 Bevans 1074. 2For the United States, this is Title 18, United States Code, Section 3184 et seq. For Peru, 

this is the Law of Extradition (Ley de Extradicion, Ley No. 24710 (1987)). 

has now entered into force. The Committee again recommends inclusion of such an understanding. The Committee notes, in this regard, that earlier this year Congress enacted legislation barring 

U.S. cooperation with the Court, including extradition (Title II of 

the Supplemental Appropriations Act for Fiscal Year 2002, P.L. 

107–206). 

Finally, the Committee notes that the State Department expects 

that parental child abduction will be an extraditable offense under 

the Treaty. The Committee strongly urges the Departments of Justice and State to seek extradition in such cases with Peru.

VI. EXPLANATION OF EXTRADITION TREATY WITH PERU

What follows is a technical analysis of the Treaty prepared by 

the Departments of State and Justice.

Technical Analysis of the Extradition Treaty Between the 

Government of the United States of America and the Government of the Republic of Peru 

On July 26, 2001, the United States signed a new Extradition 

Treaty Between the Government of the United States of America 

and the Government of the Republic of Peru to replace a centuryold treaty currently in force between them. 1 The new Treaty will 

be implemented in both the United States and Peru under the procedural framework of existing domestic extradition laws 2 without 

the need for any new implementing legislation. 

The Office of International Affairs, Criminal Division, United 

States Department of Justice, and the Office of the Legal Adviser, 

United States Department of State, prepared the following technical analysis of the new Treaty based on their participation in its 

negotiation. 

ARTICLE I—OBLIGATION TO EXTRADITE

Article I of the Treaty contains a standard provision obligating 

the United States and Peru to extradite to each other persons 

whom the authorities in the Requesting State have charged with, 

found guilty of, or sentenced for an extraditable offense. By referring to persons wanted ‘‘in’’ the Requesting State, the obligation to 

extradite applies to fugitives from federal, state, or local justice. 

This article also makes clear that such obligation extends not only 

to persons charged with or sentenced for such offenses, but also to 

persons who have been found guilty but have fled prior to sentencing. Moreover, the negotiating delegations intended that 

‘‘charged’’ persons include those who are sought for prosecution for 

an extraditable offense based on an outstanding warrant of arrest, 

regardless of whether such warrant was issued pursuant to an indictment, complaint, information, affidavit, or other lawful means 

for initiating an arrest for prosecution under the laws in Peru or 

the United States. 
5

3During the negotiations, the Peruvian delegation indicated that, under Peruvian law, key offenses such as drug trafficking (including CCE), money laundering, terrorism, and organized 

criminal activity (RICO), as well as certain tax, export, and environmental crimes, would meet 

the requirements of Article II(1) and thus be extraditable offenses. 4The negotiating delegations intended that ‘‘participation in’’ an offense includes, at a minimum, being an accessory before or after the fact, or aiding, abetting, counseling, commanding, 

inducing, or procuring the commission of an offense. See 18 U.S.C §§2 and 3. 5 Article 3(1) of Extradition Law of October 23, 1888: ‘‘Extradition will not be granted in any 

case . . . [w]hen the individual whose extradition has been requested is a Peruvian citizen by 

birth or is a citizen naturalized before the act was committed which motivated the petition for 

extradition.’’ 6 Article V of the 1899 treaty states that ‘‘[n]either of the contracting parties shall be bound 

to deliver up its own citizens or subjects under the stipulations of this treaty.’’

ARTICLE II—EXTRADITABLE OFFENSES

This Article contains standard guidelines for determining which 

offenses are extraditable. As a general rule, it defines extraditable 

offenses as those for which the laws of both countries provide a 

maximum potential penalty of more than one year in prison. 3 In 

addition to this broad definition, the Article makes clear that extradition shall be granted for conspiring or attempting to commit, or 

otherwise participating in, 4 the commission of an extraditable offense. Moreover, in determining whether the crime would be punishable under its laws, the Requested State—looking only to the 

underlying criminal conduct for which extradition is sought—is required to disregard differences in the two countries’ categorization 

of, or terminology used to describe, the offense, as well as certain 

federal jurisdictional elements, such as use of the mail or telephone, that are peculiar to United States federal law. Finally, this 

Article provides that, when extradition has been granted for an extraditable offense, it shall also be granted for other less serious offenses with which the person is charged but which, standing alone, 

would not be extraditable for the sole reason that they are not punishable by more than one year of imprisonment. 

Paragraph 3(c) of this Article is particularly important in ensuring that transnational and extraterritorial crimes are extraditable. 

By providing that an offense will be extraditable regardless of 

where it was committed, this provision will allow the United States 

to obtain extradition for violations of U.S. law—including terrorist 

offenses—initiated or orchestrated from abroad, even if committed 

entirely outside the territory of the United States, and even if Peruvian law would not recognize jurisdiction over such offenses 

under the same circumstances. 

ARTICLE III—EXTRADITION OF NATIONALS

Article III provides that extradition shall not be refused on the 

ground that the person sought is a national of the Requested State. 

For many years, Peruvian law expressly prohibited the extradition 

of Peruvian nationals. 5 When Peru updated its extradition law in 

1987, this prohibition was omitted, but neither the 1987 law nor 

the 1899 U.S.-Peru extradition treaty provide any affirmative basis 

for the extradition of Peruvian nationals. 6 This Article now provides such an affirmative obligation and will ensure the ability of 

the United States to extradite fugitives from Peru regardless of 

their nationality. 
6

7The express use of the phrase ‘‘convicted or acquitted’’ in this paragraph prevents the Requested State from refusing extradition on the basis that it has unilaterally immunized the fugitive from prosecution by pardon or granting of clemency. Moreover, nothing in this provision 

enables the Requested State to bar extradition on the ground that the person sought has been 

convicted or acquitted in a third State. 8 Article VII of the 1899 Treaty. 

9Generally, United States law recognizes two categories of political offenses: (1) ‘‘pure’’ political offenses, such as treason, sedition and espionage, which are directed solely against the integrity of the State; and (2) in more limited circumstances, certain so-called ‘‘relative’’ political 

offenses, i.e., those containing elements of common crimes, but which are committed as means 

to political ends or closely linked with political events. 

ARTICLE IV—BASES FOR DENIAL OF EXTRADITION

This Article sets forth several bases under which the Requested 

State may deny extradition. For the most part, it contains standard 

treaty language that has been drawn as narrowly as possible in 

order to comport with the treaty’s overarching goal of facilitating, 

rather than hindering, extradition in the vast majority of cases. 

Paragraph 1(a) contains standard ‘‘double jeopardy’’ or non bis in 

idem language prohibiting extradition if the person sought has 

been convicted or acquitted in the Requested State for the same offense for which extradition is requested. 7 This provision will permit extradition in situations in which the fugitive is charged with 

different offenses in both countries arising out of the same basic illegal transaction. In addition, this provision makes clear that extradition will not be precluded by the fact that the Requested 

State’s authorities have declined to prosecute, or have discontinued 

criminal proceedings against, the person sought for the same offense for which extradition is requested. 

Paragraph 1(b) of this Article prohibits extradition if the prosecution or punishment for the offense for which extradition is sought 

is barred by the statute of limitations of the Requesting State. This 

language is an improvement over provisions applying the Requested State’s statute of limitations, like that contained in the 

1899 extradition treaty in force between the United States and 

Peru. 8 From the modern viewpoint of the United States, the Requested State’s statute of limitations should have no relevance to 

offenses committed against the laws of the Requesting State. Like 

many countries throughout the world, Peruvian law includes time 

limitations not only within which a person must be prosecuted, but 

also within which a sentence must be served. Unlike the United 

States, all offenses, even murder, are subject to prescriptive periods, which correspond to the maximum applicable penalty for the 

offense, but which in no case exceed 30 years. Moreover, although 

Peruvian law sets forth certain circumstances under which the running of the prescription period is interrupted, it is not, as under 

United States law, met simply upon the filing of an indictment or 

suspended for such time as the defendant remains a fugitive. Accordingly, the inapplicability of the Peruvian statute of limitations 

to offenses that are the subject of U.S. extradition requests should 

significantly limit potential grounds for denial of extradition. 

Paragraph 2 of this Article sets forth a standard political offense 

exception to extradition. The language used in this Article is typical in that it does not attempt to define what constitutes a political 

offense, leaving it to the courts of the Requested State to determine, based solely on domestic law, whether a particular extradition request should be denied on this basis. 9 This Article, however, does set forth certain offenses that are not to be considered 
7

10 Examples of conventions to which this clause would apply at present include: the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, 

Including Diplomatic Agents, (done at New York, December 14, 1973; entered into force February 20, 1977 (28 UST 1975; TIAS 8532; 1035 UNTS 167)); the Convention for the Suppression 

of Unlawful Seizure of Aircraft (Hijacking) (done at The Hague December 16, 1970; entered into 

force October 14, 1971 (22 UST 1641; TIAS 7192)); the Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation (Sabotage) (done at Montreal September 23, 

1971; entered into force January 26, 1973 (24 UST 564; TIAS 7570)); the International Convention for the Suppression of Terrorist Bombings (done at New York December 15, 1997; entered 

into force for the United States July 26, 2002 (Treaty Doc. 106–6)); the International Convention 

for the Suppression of the Financing of Terrorism (done at New York December 9, 1999; entered 

into force for the United States July 26, 2002 (Treaty Doc. 106–49)); and the United Nations 

Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (done at Vienna December 20, 1988; entered into force November 11, 1990). 

political offenses. These include: (1) a violent crime against the 

Head of State of the United States or Peru or members of their 

families; (2) terrorism, genocide, drug trafficking, and other offenses as defined in multilateral conventions to which both the 

United States and Peru are parties; 10 and (3) a conspiracy or attempt to commit, or participation in any of the above offenses. 

Paragraph 3 states that extradition shall not be granted if the 

executive authority of the Requested State determines that the extradition request was politically motivated. This provision applies 

when the offense for which extradition has been requested does not 

fall within the definition of a political offense, but it is shown that 

the extradition request is for the actual purpose of punishing the 

person sought for political reasons. Under U.S. law and practice, a 

claim that the extradition request was politically motivated, unlike 

a claim involving the political offense exception, falls outside the 

scope of judicial review and is exclusively for the executive branch 

(i.e., the Secretary of State) to consider and decide. 

Paragraph 4 of this Article is a standard provision stating that 

the Requested State may refuse extradition if the request relates 

to an offense under military law that would not be an offense 

under ordinary criminal law, such as desertion or disobedience of 

orders. This provision makes clear that the decision whether to 

grant or refuse an extradition request based on a military offense 

is one exclusively in the discretion of the executive branch. 

Paragraph 5 of this Article gives the executive authority of the 

Requested State discretion to deny an extradition request when the 

person sought will be or has been tried under extraordinary laws 

or procedures in the Requesting State. This provision was included 

at the instance of the United States based on concerns at the time 

of the negotiations over due process issues in cases that were 

brought before Peru’s special terrorism tribunals. Since the negotiations, those concerns have been assuaged considerably by the departure of former president Fujimori, subsequent reforms to the 

Peruvian legal system and the decline in the use of such special 

terrorism tribunals in Peru. In fact, some cases originally tried in 

special terrorism tribunals have been retried recently in the civilian court system. In any event, because it is discretionary, this provision is designed to give the executive branch of the Requested 

State sufficient flexibility so as not to frustrate the treaty’s primary 

goal of bringing fugitives to justice. In the rare case in which this 

provision might apply, the Requested State could nevertheless 

agree to extradition, for example, upon being satisfied that the Requesting State has adopted adequate procedures to safeguard the 

due process rights of the accused. 
8

11 Article 140, Political Constitution of Peru (1993). With respect to these two offenses, this 

Article would not restrict extradition requests for comparable crimes punishable by death under 

U.S. law. See 18 U.S.C. §§2381 and 2331 et seq.

ARTICLE V—DEATH PENALTY

Paragraph 1 of this Article gives the Requested State the discretion to refuse extradition in cases in which the offense for which 

extradition is sought is punishable by death in the Requesting 

State, but is not punishable by such penalty in the Requested 

State, unless the Requesting State provides an assurance that the 

person sought will not be executed. This is a common provision in 

U.S. extradition treaties with countries, like Peru, that insist on its 

inclusion based on the abolition or severe restriction of the death 

penalty under their laws. Peru’s constitution prohibits the death 

penalty as a punishment for all crimes except terrorism and treason. 11

Paragraph 2 of this Article provides that, aside from the death 

penalty, extradition cannot be denied nor subjected to conditions on 

the basis that the penalty for the offense is greater in the Requesting State than in the Requested State. This provision is designed 

to make clear that the Requested State cannot impose penalty-related conditions that are outside the scope of the express provisions 

in paragraph 1 of this Article. This provision was included at the 

request of the United States in response to a recent trend during 

which a number of countries sought assurances relating to sentences of life imprisonment, as well as those imposed for terms of 

years, when there was no basis in the applicable treaty for making 

such a demand. 

ARTICLE VI—EXTRADITION PROCEDURES AND REQUIRED

DOCUMENTS

This Article contains standard provisions setting forth the appropriate means of transmitting an extradition request and the required documentation and evidence to be submitted in support 

thereof. 

Paragraph 1 of this Article requires that all requests for extradition be submitted in writing through the diplomatic channel. 

Paragraph 2 outlines the information that must accompany every 

request for extradition under the Treaty. Paragraph 3 describes the 

information needed, in addition to the requirements of paragraph 

2, when the person is sought for prosecution in the Requesting 

State. Paragraph 4 describes the information needed, in addition to 

the requirements of paragraph 2, when the person sought has already been convicted in the Requesting State. Paragraph 5 allows 

the Requested State to seek, if necessary, supplemental information from the Requesting State within a designated period of time. 

Among the documentation required in support of a request for 

the extradition of a person charged with, but not yet convicted of, 

a crime is evidence ‘‘sufficient to justify the committal for trial’’ of 

the person sought if the offense had been committed in the Requested State. This provision is consistent with fundamental extradition jurisprudence in the United States and will be interpreted 

by U.S. courts to require that Peru provide evidence sufficient to 

establish ‘‘probable cause’’ that an extraditable crime was committed by the person sought. The Peruvian delegation explained 
9

12See Title 18, United States Code, Section 3190, for traditional means of authenticating extradition documentation. This provision also has the added flexibility of allowing the admissibility of documents that have been certified or authenticated in other ways accepted by the laws 

in the Requested State. 

that, in accordance with Peruvian law, Peruvian courts would 

apply a comparable standard of proof to U.S. requests. 

In regard to persons who already have been found guilty of the 

offense for which extradition is sought, no showing of probable 

cause is required. The Requesting State need provide only a copy 

of the judgment of conviction and such evidence establishing that 

the person sought is the person to whom the conviction refers. 

ARTICLE VII—TRANSLATION AND ADMISSIBILITY OF DOCUMENTS

This Article contains a standard treaty provision requiring that 

all documents submitted in support of an extradition request be 

translated into the language of the Requested State (Spanish for 

Peru and English for the United States). It also provides that properly certified and authenticated documents accompanying an extradition request shall be accepted as evidence in extradition proceedings. 12

ARTICLE VIII—PROVISIONAL ARREST

This Article contains standard language describing the process 

by which a person may be arrested and detained in the Requested 

State while the extradition documents required by Article VI are 

being prepared and translated in the Requesting State. 

Provisional arrest serves the interests of justice by allowing for 

the apprehension of fugitives who, for example, pose a danger to 

the community or a risk of flight. Fleeing fugitives often do not 

stay in one place for any significant period of time, and frequently 

for less time than it takes to prepare and translate formal extradition documentation. Moreover, the ability to immediately arrest 

dangerous criminals obviates risks to the safety of the citizenry of 

the requested country by denying such criminals the opportunity to 

continue to engage in illegal activity while the full extradition documentation is being prepared. 

This Article also contains certain provisions to protect against capricious or unjustified use of provisional arrest authority. For example, it provides that provisional arrest may be effected only 

under urgent circumstances, requires that a valid warrant for the 

fugitive’s arrest or a finding of guilt or judgment of conviction exist 

in the Requesting State, and imposes a 60-day time limit within 

which the formal extradition documentation must be presented to 

the executive authority of requested country or the person sought 

may be released from custody. The Article also makes clear, however, that the release of the person sought because of a missed 

deadline will not preclude the re-arrest of, and re-commencement 

of extradition proceedings against, the person sought if the formal 

request and supporting documentation are received at a later date. 

ARTICLE IX—DECISION ON THE EXTRADITION REQUEST AND

SURRENDER OF THE PERSON SOUGHT

This Article contains standard language concerning the Requested State’s obligation to notify the Requesting State of its deci-
10

sion on an extradition request and to provide an explanation if the 

request is denied. It also contains standard provisions concerning 

arrangements for surrendering the person sought to authorities of 

the Requesting State and consequences if the Requesting State 

fails to remove the person within the required time. 

ARTICLE X—DEFERRED AND TEMPORARY SURRENDER

In the event that the person sought by the Requesting State is 

being prosecuted or serving a sentence in the Requested State, this 

Article allows the Requested State to postpone the extradition proceedings and surrender of that person until the conclusion of its 

own prosecution or the completion of the service of any sentence 

imposed as a result thereof. As an alternative, the Requested State 

may temporarily surrender the person for prosecution in the Requesting State. 

Under the terms of this Article, a person temporarily surrendered will be kept in custody while in the Requesting State and 

will be returned to the Requested State at the conclusion of the 

proceedings in the Requesting State. Such temporary surrender 

furthers the interests of justice in that it permits the Requesting 

State to try the person sought while evidence and witnesses are 

more likely to be available, thereby increasing the likelihood of successful prosecution. Such transfer may also be advantageous to the 

person sought in that: (1) he or she might resolve all outstanding 

charges sooner; (2) subject to the laws of each State, he or she may 

be able to serve concurrently the sentences imposed by the Requesting and Requested States; and (3) he or she can defend 

against the charges while favorable evidence is fresh and more 

likely to be available to the defense. 

ARTICLE XI—CONCURRENT REQUESTS

When the Requested State has received an extradition request 

under this treaty, and also has received a request for the same person from one or more other countries, this Article sets forth standard factors to be considered by the Requested State in determining 

to which country it will surrender the person sought. 

ARTICLE XII—SEIZURE AND SURRENDER OF PROPERTY

At the time of their arrest in the Requested State, persons are 

often in possession of property that is connected in some way to the 

offense for which extradition is sought. This Article allows such 

property to be surrendered to the Requesting State upon extradition, so that the property may be used as evidence at trial, returned to the victims, or otherwise disposed of appropriately. The 

Requested State, however, may condition the surrender of the property upon assurances from the Requesting State that such property 

will be returned to the Requested State as soon as practicable, and 

this Article provides that the rights of third parties in such property shall be respected. 

ARTICLE XIII—RULE OF SPECIALITY

This Article contains standard provisions relating to the rule of 

speciality, which, in general terms, prohibits the prosecution of an 

extraditee for offenses other than those for which extradition was 
11

13 Allowing the Requesting State to proceed on such crimes does not offend the purpose of the 

rule of speciality, since the Requested State will have already considered the facts upon which 

both the original and the new charges are based and determined that the acts constituting the 

offenses are extraditable. 14The rule of speciality does not provide the defendant with any immunity for offenses committed after his or her surrender to the Requesting State. 15The consent exception to the rule of specialty recognizes that, as a Party to the Treaty, the 

Requested State has a right to waive certain of its benefits or privileges under the Treaty. The 

Requested State’s consent, when no other exception applies, can prevent an injustice by allowing, for example, the prosecution of an extraditee who (the Requesting State does not discover 

until after extradition) was the perpetrator of a previously unsolved crime that was committed 

prior to the extradition from the Requested State and is completely separate and distinct from 

the offense for which extradition was sought. In the United States, the Secretary of State has 

the authority to consent. 16This provision prohibiting re-extradition is intended to prevent the State to which a person 

is extradited from subsequently extraditing the person to a third State to which the Requested 

State would not have agreed to extradite. It is expected that this provision also would apply 

to situations involving any international tribunal located in a third State. This provision thus 

enables the Requested State to retain a measure of control over the ultimate destination of the 

person surrendered. A similar provision is contained in all recent U.S. extradition treaties. 17This provision recognizes that an extraditee should not be allowed to benefit from the rule 

of speciality indefinitely and remain in or return to the Requesting State with impunity. In effect, if the extraditee chooses to return to or remain in the Requesting State, he or she relinquishes the benefits of the rule. 

granted. By limiting prosecution to those offenses for which extradition was granted, the rule is intended to prevent a request for extradition from being used as a ploy—for example, to obtain custody 

of a person for trial or service of sentence on different charges that 

would not be extraditable under the Treaty. Paragraph 1 of this article also sets forth several standard exceptions to the general rule 

which allow the Requesting State to pursue: (1) lesser included or 

differently denominated offenses based on the same facts as the 

crime for which extradition was granted; 13 (2) an offense committed after extradition; 14 or (3) any offense for which the Requested State gives consent. 15 Paragraph 2 of this Article prohibits 

the Requesting State from surrendering the person to a third State 

for a crime committed prior to extradition under this Treaty without the consent of the State from which extradition was first obtained. 16 Finally, paragraph 3 permits the detention, trial, or punishment of an extraditee for offenses other than those for which extradition was granted, or the extradition of that person to a third 

State, if: (1) the extraditee leaves the Requesting State and voluntarily returns to it; or (2) the extraditee does not leave the Requesting State within ten days of being free to do so. 17

ARTICLE XIV—SIMPLIFIED PROCEDURE FOR SURRENDER

This Article contains a standard provision allowing, upon his or 

her consent, the expeditious surrender of the person sought to the 

Requesting State without further proceedings. Persons sought for 

extradition frequently elect to expedite their return to the Requesting State under such provisions in order to resolve the charges 

against them and to spend as little time as possible in custody in 

the Requested State. Expedited surrender also saves the judicial 

and law enforcement authorities of the Requested State the significant expense associated with prolonged extradition proceedings. In 

cases where a person has waived further proceedings, and along 

with them protections in the treaty and applicable extradition statutes, the process is not deemed an ‘‘extradition,’’ and therefore the 

rule of speciality in Article XIII does not apply. 
12

18 U.S. Const., art. I, §9, cl. 3. 19See In re De Giacomo, 7 F.Cas. 366 (C.C.N.Y. 1874); See also 4 Moore, A Digest of International Law 268 (1906). 

ARTICLE XV—TRANSIT

At times, law enforcement authorities escorting a surrendered 

person back to the State where he or she is wanted for trial or punishment are unable to take such person directly from the surrendering State to the receiving State and must make a stop, scheduled or unscheduled, in a third State. This Article contains standard provisions authorizing such transits in those situations in 

which one Party to this Treaty is the receiving State and the other 

Party is the State through which the surrendered person must 

transit. 

ARTICLE XVI—REPRESENTATION AND EXPENSES

This Article provides that the Requested State shall advise, assist, appear in court on behalf of, and represent the interests of the 

Requesting State in extradition proceedings. Such representation 

ensures that the Requested State abides by its obligation under the 

Treaty to secure the return of every extraditable criminal to the 

Requesting State. By participating in the extradition proceedings, 

the governments also have the opportunity to shape extradition 

law and practice in a way that is beneficial to both themselves and 

their treaty partners. Pursuant to a February 15, 1990, exchange 

of diplomatic notes, the United States and Peru already provide 

representation to each other in extradition cases and, with this provision, intend to continue the current practice. In accordance with 

established practice, the Department of Justice will represent Peru 

in all aspects of extradition proceedings in the United States. Likewise, prosecutors from the Peruvian Public Ministry will represent 

the interests of the United States in such proceedings in Peru. 

This Article also contains standard provisions regarding extradition-related expenses and pecuniary claims against the Parties. 

ARTICLE XVII—CONSULTATION

This standard Article serves the interests of the United States by 

promoting close cooperation with our foreign counterparts on extradition issues. It allows the U.S. Department of Justice and Peruvian Ministry of Justice to consult with each other directly in connection with the processing of individual extradition cases and in 

furtherance of maintaining and improving procedures for the implementation of the Treaty. 

ARTICLE XVIII—APPLICATION

This Article makes clear that the Treaty applies to offenses that 

occurred before, as well as after, it enters into force. The retroactive application of extradition treaties does not violate the ex 

post facto clause of the U.S. Constitution, 18 because extradition 

treaties do not criminalize any act. They merely provide a means 

by which persons who committed acts that were criminal offenses 

in both countries at the time of their commission can be held to answer for those offenses. 19 Provisions such as this Article ensure 

that large classes of criminals are not immunized from prosecution 
13

and allowed impunity merely by virtue of the fact that they committed their offenses prior to the entry into force of a particular bilateral extradition treaty. 

ARTICLE XIX—FINAL CLAUSES

This Article contains standard treaty provisions regarding the 

ratification, entry into force, and termination of the Treaty.

VII. TEXT OF RESOLUTION OF ADVICE AND CONSENT TO

RATIFICATION

Resolved (two-thirds of the Senators present concurring therein),

SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE EXTRADITION TREATY WITH PERU, SUBJECT TO AN UNDERSTANDING AND A CONDITION.

The Senate advises and consents to the ratification of the Extradition Treaty Between the United States of America and the Republic of Peru, signed at Lima on July 26, 2001 (Treaty Doc. 107–

6; in this resolution referred to as the ‘‘Treaty’’), subject to the understanding in section 2 and the condition in section 3.

SEC. 2. UNDERSTANDING.

The advice and consent of the Senate under section 1 is subject 

to the following understanding, which shall be included in the instrument of ratification:

PROHIBITION OF EXTRADITION TO THE INTERNATIONAL CRIMINAL COURT.—The United States understands that the protections contained in Article XIII concerning the Rule of Speciality 

would preclude the resurrender of any person extradited to the 

Republic of Peru from the United States to the International 

Criminal Court, unless the United States consents to such resurrender; and the United States shall not consent to any such 

resurrender unless the Statute establishing that Court has entered into force for the United States by and with the advice 

and consent of the Senate in accordance with Article II, section 

2 of the United States Constitution.

SEC. 3. CONDITION.

The advice and consent of the Senate under section 1 is subject 

to the condition that nothing in the Treaty requires or authorizes 

legislation or other action by the United States that is prohibited 

by the Constitution of the United States as interpreted by the 

United States.

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