U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

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79–118

" ! SENATE 106TH CONGRESS

2d Session

TREATY DOC.

2000

106–24

EXTRADITION TREATY WITH SOUTH AFRICA

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

TRANSMITTING

EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE

UNITED STATES OF AMERICA AND THE GOVERNMENT OF THE

REPUBLIC OF SOUTH AFRICA, SIGNED AT WASHINGTON ON SEPTEMBER 16, 1999

MAY 18, 2000.—The Treaty was read the first time, and together with

the accompanying papers, referred to the Committee on Foreign Relations and ordered to be printed for the use of the Senate

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LETTER OF TRANSMITTAL

THE WHITE HOUSE, May 18, 2000.

To the Senate of the United States:

With a view to receiving the advice and consent of the Senate to

ratification, I transmit herewith the Extradition Treaty Between

the Government of the United States of America and the Government of the Republic of South Africa, signed at Washington on September 16, 1999.

In addition, I transmit, for the information of the Senate, the report of the Department of State with respect to the Treaty. As the

report explains, the Treaty will not require implementing legislation.

The provisions in this Treaty follow generally the form and content of extradition treaties recently concluded by the United States.

The Treaty is one of a series of modern extradition treaties being

negotiated by the United States to counter criminal activities more

effectively. Upon entry into force, the Treaty will replace the outdated Treaty Relating to the Reciprocal Extradition of Criminals

signed at Washington, December 18, 1947, and in force between

the two countries since April 30, 1951. Together with the Treaty

Between the Government of the United States of America and the

Government of the Republic of South Africa on Mutual Legal Assistance in Criminal Matters, also signed September 16, 1999, this

Treaty will, upon entry into force, enhance cooperation between the

law enforcement communities of the two countries. It will thereby

make a significant contribution to international law enforcement

efforts against serious offenses, including terrorism, organized

crime, and drug-trafficking offenses.

I recommend that the Senate give early and favorable consideration to the Treaty and give its advice and consent to ratification.

WILLIAM J. CLINTON.

(V)

LETTER OF SUBMITTAL

DEPARTMENT OF STATE, Washington, April 19, 2000.

The PRESIDENT,

The White House.

THE PRESIDENT: I have the honor to submit to you the Extradition Treaty Between the Government of the United States of

America and the Government of the Republic of South Africa,

signed at Washington on September 16, 1999. I recommend that

the Treaty be transmitted to the Senate for its advice and consent

to ratification.

The Treaty follows closely the form and content of extradition

treaties recently concluded by the United States. The Treaty is the

second modern extradition treaty that the United States has negotiated with a sub-Saharan African country in recent years (the

other being Zimbabwe), and represents a major step forward in

United States efforts to strengthen cooperation with countries in

the region in combating terrorism, organized crime, drug trafficking and other offenses.

The Treaty is an important part of a concerted effort by the Department of State and the Department of Justice to modernize the

legal tools available for the extradition of serious offenders. Upon

entry into force, the Treaty will replace the Treaty Relating to the

Reciprocal Extradition of Criminals signed at Washington December 18, 1947 and entered into force April 30, 1951. The current

treaty has become outmoded and the new treaty will provide significant improvements. The new treaty will not require any implementing legislation.

Article 1 obligates the Parties to extradite to each other, pursuant to the provisions of the Treaty, persons who have been charged

with or convicted of an extraditable offense.

Article 2 concerns extraditable offenses. Article 2(1) defines an

extraditable offense as one punishable under the laws in both

States by deprivation of liberty for a period of at least one year or

by a more severe penalty. Use of such a ‘‘dual criminality’’ clause

rather than a list of offenses covered by the Treaty obviates the

need to renegotiate or supplement the Treaty as additional offenses

become punishable under the laws in both States.

Article 2(2) defines an extraditable offense further as including

attempting or conspiring to commit or aiding, abetting, inducing,

counseling or procuring the commission of, or being an accessory

before or after the fact to, an extraditable offense.

Additional flexibility is provided by Article 2(3), which provides

that an offense shall be an extraditable offense whether or not the

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laws in the two States place the offense within the same category

of offenses or describe the offense by the same terminology; or the

offense is one for which United States federal law requires the

showing of such matters as interstate transportation, or use of the

mails or of other facilities affecting interstate or foreign commerce,

such matters being merely for the purpose of establishing jurisdiction in a United States federal court.

With regard to offenses committed outside the territory of the

Requesting State, Article 2(4) provides that extradition shall be

granted where the laws in the Requested State provide for the punishment of an offense committed outside its territory in similar circumstances. It also provides that the executive authority of the Requested State may, in its discretion, grant extradition where its

laws do not so provide.

Article 2(5) provides that extradition is also to be granted for a

person convicted of but not yet sentenced, or convicted of and sentenced for an extraditable offense, for the purpose of sentence, or

for enforcing such sentence or the remaining portion thereof, as the

case may be.

As to an offense against a law relating to taxation, customs duties, exchange control, or other revenue matters, Article 2(6) provides that extradition may not be refused because the law of the

Requested State does not impose the same kind of tax or duty or

does not have the same kind of regulation as the law of the Requesting State.

Finally, Article 2(7) provides that if extradition is granted for an

extraditable offense, it shall also be granted for other offenses specified in the request that do not meet the minimum deprivation of

liberty requirement, provided that all other extradition requirements are met.

Article 3 provides that extradition shall not be refused on the

ground of the nationality of the person sought.

As is customary in extradition treaties, Article 4 incorporates a

political and military offense exception to the obligation to extradite. Article 4(1) states generally that extradition shall not be

granted for political offenses. Article 4(2) specifies five specific categories of offenses that shall not be considered political offenses: (a)

a murder or other violent crime against a Head of State or Deputy

Head of State of the Requesting or Requested State, or a member

of such person’s family; (b) an offense for which both the Requesting and Requested States have the obligation pursuant to a multilateral international agreement to extradite the person sought or

to submit the case to their respective competent authorities for decision as to prosecution (e.g., the Convention for the Suppression of

Unlawful Seizures of Aircraft, done at the Hague on 16 December

1970, 22 UST 1641, TIAS 7192.); (c) murder; (d) an offense involving kidnapping, abduction, or any form of unlawful detention, including the taking of a hostage; and (e) attempting or conspiring

to commit, aiding, abetting, inducing, counseling or procuring the

commission of, or being an accessory before or after the fact to such

offenses.

Article 4(c) further provides that notwithstanding the five exceptions in Article 4(2), extradition shall not be granted if the executive authority of the Requested State determines that there are

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substantial grounds for believing that the request has been made

for the purpose of prosecuting or punishing a person on account of

that person’s gender, race, religion, nationality, or political opinion.

Article 4(4) requires that extradition be denied for offenses under

military law that are not offenses under ordinary criminal law (for

example, desertion).

Under Article 5, when an offense for which surrender is sought

is punishable by death under the laws in the Requesting State but

not under the laws in the Requested State, the Requested State

may refuse extradition unless the Requesting State provides assurances that the death penalty will not be imposed, or if imposed,

will not be carried out. It further provides that if the Requesting

State provides such an assurance, the death penalty, if imposed by

the courts of the Requesting State, shall not be carried out.

Article 6 bars extradition when the person sought has been convicted or acquitted in the Requested State for the same offense, but

does not bar extradition if the competent authorities in the Requested State have declined to prosecute or have decided to discontinue criminal proceedings against the person sought, provided

that such discontinuance does not have the effect of acquittal, or

have decided merely to investigate the person for the same acts or

omissions.

Article 7 concerns temporary and deferred surrender. If a person

whose extradition is sought is being prosecuted or is serving a sentence in the Requested State, the Requested State may postpone

the extradition proceedings until its prosecution has been concluded or the sentence has been served.

Alternatively, that State may temporarily surrender the person

to the Requesting State for the purpose of prosecution. The person

so surrendered shall be kept in custody in the Requesting State

and returned to the Requested State after the conclusion of the

proceedings against that person, on conditions agreed between the

Requesting and Requested States.

Article 8 provides that extradition shall not be granted when the

prosecution has become barred by lapse of time according to the

laws in the Requesting State.

Article 9 establishes the procedures and describes the documents

that are required to support a request for extradition. It requires

that all requests be submitted in writing through the diplomatic

channel. Article 9(3) provides that among other things a request for

the extradition of a person sought for prosecution must be supported by such information as would justify committal for extradition under the laws of the Requested State, but that neither

State is required to meet the higher standard of establishing a

prima facie case.

Article 10 establishes the procedures under which documents

submitted pursuant to Article 9 shall be received and admitted into

evidence in each State when it is the Requested State.

Article 11 specifies that any extradition-related document that is

not in English must be accompanied by an English translation.

Article 12 provides that if the executive authority of the Requested State determines that information furnished in support of

the request for extradition furnished in support of the request for

extradition is insufficient to enable the request for extradition to be

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granted, it shall notify the Requesting State and may fix a reasonable time limit for furnishing additional information. The article

provides further that nothing shall prevent the executive authority

of the Requested State from presenting to a court of that State information sought or obtained after submission of the request to the

Court or after expiration of the time fixed for providing additional

information.

Article 13 sets forth procedures for the provisional arrest and detention of the person sought in cases of urgency, pending receipt

of the documents in support of an extradition request, as provided

in Article 9. Article 13(4) provides that if the Requested State’s executive authority has not received the documents required in Article 9 upon the expiration of sixty days from the date of provisional

arrest, the person may be discharged from custody. It provides further that receipt by the Embassy of the Requested State located in

the Requesting State shall constitute receipt by the executive authority of the Requested State. Article 13(5) explicitly provides that

the release of a person from custody pursuant to Article 13(4) does

not prejudice subsequent re-arrest and extradition if the documents

required in Article 9 are delivered at a later date.

Article 14 specifies the procedures governing surrender and return of persons sought. It requires the Requested State to provide

prompt notice to the Requesting State of its decision on the request

for extradition and to provide reasons for any complete or partial

refusal of a request. If extradition is granted, the relevant authorities of the States shall agree on the date and place for the surrender of the person sought including rescheduling that date if circumstances beyond the control of either state prevent surrendering

or receiving the person sought. Article 14(4) provides that if the

person sought is not removed from the territory of the Requested

State within the time period prescribed by the law of that State,

the person may be discharged from custody and the Requested

State, in its discretion, may subsequently refuse extradition for the

same offense.

Article 15 provides a non-exclusive list of factors to be considered

by the Requested State in determining to which State to surrender

a person sought by more than one State.

Article 16 provides that if extradition is granted, the Requested

State may, to the extent permitted under its law, seize and surrender to the Requesting State all properly found in the Requested

State and acquired as a result of the offense or connected thereto

or that may be required as evidence. Such property may be surrendered, upon request, even if the extradition cannot be carried out

due to the death, disappearance, or escape of the person sought.

Surrender of the property may be temporary, upon satisfactory assurances concerning its return, or may be deferred if the property

is required in connection with pending criminal proceedings in the

Requested State. Article 16(4) provides that any rights of the Requested State or third parties may have to such property must be

duly respected in accordance with the law in the Requested State.

Article 17 sets forth one aspect of the rule of specialty under

international law. It provides, subject to specific exceptions, that a

person extradited under the Treaty may not be detained, tried or

punished in the Requesting State for any offense committed before

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his or her extradition other than for (a) an offense for which extradition has been granted or any other extraditable offense of which

the person could be convicted on the same facts, or a lesser included offense; or (b) an offense for which the executive authority

of the Requested State consents to the person’s detention, trial or

punishment. These restrictions do not apply if the person has had

an opportunity to leave the territory of the Requesting state after

extradition and has not done so within fifteen days or has left and

voluntarily returned.

Article 18 addresses another aspect of the rule of specialty, barring re-extradition for a crime committed prior to surrender under

this Treaty without the consent of the Requested State who had

surrendered the person (unless, as in Article 17, the person has

voluntarily remained more than fifteen days from final discharge

or has left and voluntarily returned). Article 18 makes clear that

such re-extradition is prohibited not only to third states but also

to international tribunals, consistent with the rule of specialty

under international law.

Article 19 permits surrender by the Requested State without further proceedings if the person sought consents to be surrendered.

Article 20 governs that transit through the territory of one Sate

of a person being surrendered to the other State by a third State

when authorized by the transit State.

Article 21 contains provisions on representation and expenses.

Specifically, the Requested State must bear the expenses incurred

and represent the interests of the Requesting State in any proceedings arising out of a request for extradition. The requested

State must also bear expenses incurred in the arrest and detention

of the person sought until that person is surrendered to the Requesting State. The Requesting State must pay all expenses incurred in translation of extradition documents and in conveying the

person from the territory of the Requested State. Article 21(4) clarifies that neither State shall make any pecuniary claim against the

other State arising out of the arrest, detention, examination, or

surrender of persons under the Treaty.

Article 22 provides that the United States and South African Departments of Justice may consult with each other directly or

though INTERPOL in connection with the processing of individual

cases in furtherance of efficient implementation of the Treaty.

Article 23 makes the Treaty applicable to offenses contemplated

in Article 2 whether committed before, on or after the date the

Treaty enters into force. It also provides that nothing in the Treaty

will require or authorize any action by the Requested State that is

contrary to the constitution of that State.

Article 24 contains final clauses dealing with the Treaty’s entry

into force and termination. It provides that the Treaty is subject to

ratification and that the Treaty shall enter into force upon the exchange of instruments of ratification, which is to take place as soon

as possible. Either State may terminate the Treaty by giving six

months written notice to the other State.

Article 24(3) provides that, upon entry into force of this Treaty,

the Treaty Relating to the Reciprocal Extradition of Criminals,

signed at Washington December 18, 1947, shall cease to have any

effect. Nevertheless, that Treaty shall continue to apply to any exVerDate 11-MAY-2000 01:48 May 20, 2000 Jkt 079118 PO 00000 Frm 00009 Fmt 7633 Sfmt 6602 E:\HR\OC\TD024.XXX pfrm03 PsN: TD024
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tradition proceedings in which extradition documents have already

been submitted to the courts of the Requested State at the time

this Treaty enters into force, except that Article 17 and 18, addressing the rule of specialty, and Article 19 providing for voluntary surrender, shall apply to such extradition cases.

A Technical Analysis explaining in detail the provisions of the

Treaty is being prepared by the United States negotiating delegation, consisting of representatives from the Departments of Justice

and State, and will be transmitted separately to the Senate Committee on Foreign Relations.

The Department of Justice joins the Department of State in favoring approval of this Treaty by the Senate at an early date.

Respectfully submitted,

STROBE TALBOTT.

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