79–115

106TH CONGRESS EXEC. REPT.

2d Session " ! SENATE 106–26

EXTRADITION TREATIES WITH BELIZE, PARAGUAY,

SOUTH AFRICA AND SRI LANKA

OCTOBER 4 (legislative day, SEPTEMBER 22), 2000.—Ordered to be printed

Mr. HELMS, from the Committee on Foreign Relations,

submitted the following

REPORT

[To accompany Treaty Docs. 106–38, 106–4, 106–24 and 106–34]

The Committee on Foreign Relations, to which were referred the

Extradition Treaty Between the Government of the United States

of America and the Government of Belize, signed at Belize on

March 30, 2000 (Treaty Doc. 106–38); the Extradition Treaty between the Government of the United States of America and the

Government of the Republic of Paraguay, signed at Washington on

November 9, 1998 (Treaty Doc. 106–4); 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 (Treaty Doc. 106–24) and the Extradition

Treaty Between the Government of the United States of America

and the Government of the Democratic Socialist Republic of Sri

Lanka, signed at Washington September 30, 1999 (Treaty Doc.

106–34) having considered the same, reports favorably thereon

with the understandings, declarations and provisos indicated in

Section VIII, 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 ratification.

CONTENTS

Page

I. Purpose ........................................................................................................... 2

II. Background .................................................................................................... 2

III. Summary ........................................................................................................ 2

IV. Entry Into Force and Termination ............................................................... 6

V. Committee Action .......................................................................................... 6

VI. Committee Recommendation and Comments .............................................. 7

VII. Explanation of Proposed Treaties ................................................................. 9

VIII. Text of Resolutions of Ratification ............................................................... 64

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I. PURPOSE

These treaties obligate the Parties to extradite fugitives at the

request of a Party subject to conditions set forth in the treaties.

II. BACKGROUND

The United States is a party to more 115 bilateral extradition

treaties. The four extradition treaties considered in this report all

update existing treaties, namely, the 1972 United States-United

Kingdom treaty that now governs U.S. extradition relations with

Belize, the 1973 treaty with Paraguay, the 1947 treaty with South

Africa and the 1931 United States-United Kingdom treaty that currently governs U.S. extradition relations with Sri Lanka. Each of

the new treaties contains the core elements sought by the United

States in modern, effective extradition treaties, namely, the dual

criminality principal, improved provisional arrest procedures, temporary surrender provisions, extradition waiver provisions,

extraterritorial scope for some offenses, retroactivity and elimination of nationality as a basis to refuse an extradition request.

Extradition relationships have long been a basis of United States

bilateral relationships. They represent a recognition by the United

States of the legitimacy of a country’s judicial system. Respect for

a treaty partner’s judicial system is essential since the parties permit the transfer of individuals to another country in order to stand

trial for alleged crimes.

III. SUMMARY

A. GENERAL

An extradition treaty is an international agreement in which the

Requested State agrees, at the request of the Requesting State and

under specified conditions, to surrender persons to the Requesting

State who are within the Requested State’s jurisdiction and who

are charged with certain crimes against, or are fugitives from, the

Requesting State.

Since the Committee’s last review of extradition treaties (see

Exec. Rept. 105–23 of October 14, 1998), the Departments of State

and Justice have continued efforts to modernize U.S. bilateral extradition treaties to better combat international criminal activity,

such as drug trafficking, terrorism and money laundering. Modern

extradition treaties share a number of common characteristics: (1)

they identify the offenses for which extradition will be granted; (2)

they establish procedures to be followed in presenting extradition

requests; (3) they enumerate exceptions to the obligation to extradite; (4) they specify the evidence which the Requesting State must

supply in order to support a finding in the Requested State of an

obligation to extradite; and (5) they set forth administrative provisions for bearing costs and legal representation.

In the United States, the legal procedures for extradition are

governed by both federal statutes and self-executing treaties. Federal statutes control the judicial process by which a U.S. judge

makes a certification to the Secretary of State that she may extradite an individual under an existing treaty. Extradition proceedings

are considered to be non-criminal in nature, and are conducted by

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U.S. judges. Habeas corpus is the only legal avenue open to fugitives seeking to challenge a certification of extraditability by a U.S.

judge. For its part, the U.S. government may not appeal a finding

by a judge, but must instead file a new petition for extradition in

that event.

U.S. courts have held that the following elements must exist in

order for a court to find that the Secretary of State may extradite:

(1) the existence of a treaty authorizing extradition for one or more

offenses for which the defendant is actually charged; (2) charges for

which extradition is sought are actually pending against the defendant in the Requesting State; (3) the defendant is the same individual sought for trial or service of sentence in the Requesting

State; (4) probable cause exists to believe that the defendant is

guilty of charges pending against him in the Requesting State; and

(5) the acts alleged to have been committed by the defendant are

punishable as criminal conduct in both the Requesting State and

under the criminal law of the United States (i.e., there is ‘‘dual

criminality’’).

After a judge has made a determination that an individual may

be extradited under U.S. law, and so certifies to the Secretary of

State, the Secretary may nevertheless decline to surrender the individual to the Requesting State on foreign policy or other grounds,

as defined in the relevant treaty or even absent an express treaty

provision. She may also decline if she believes the request was politically motivated.

B. KEY PROVISIONS

1. Extraditable Offenses—The Dual Criminality Requirement

In general, extradition agreements cover only the offenses designated in them. Older U.S. extradition agreements—so-called ‘‘list

treaties’’—designate extraditable offenses through inclusion of a

list of covered crimes. Some, but not all, of these agreements include an additional requirement that a listed offense be considered

a felony by both the requesting and the requested States. List treaties, which in some cases were negotiated at or before the beginning of the 20th century, are no longer adequate to meet the demands of modern criminality.

Modern extradition agreements either supplement or completely

replace the list method with a general dual criminality test. Under

this test, extradition may be had for any offense that is punishable

by imprisonment of at least 1 year by both the requesting State

and the requested State. All four treaties employ some variation of

the dual criminality method for determining what are extraditable

offenses, and represent substantial improvements over the agreements they replace.

2. Extraterritorial offenses

The ability of a state to extradite and to obtain the extradition

of individuals charged with international drug trafficking or terrorism offenses committed outside of its national territory can be

an important weapon in the fight against global crime. A question

thus arises over whether offenses which occur outside the territory

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of the Requesting State may be considered ‘‘extraditable offenses’’

under extradition treaties.

In general, U.S. extradition agreements concluded before 1960

limit the obligation to extradite to those crimes which are committed within the ‘‘jurisdiction’’ of the requesting State. ‘‘Jurisdiction’’ in the context of these agreements is interpreted to mean territorial jurisdiction only, not criminal jurisdiction. As U.S. criminal

law increasingly addresses extraterritorial acts, under older agreements, a disparity arises between the reach of U.S. law and the

ability of the United States to bring suspects to trial. To varying

degrees, all four of these extradition treaties include provisions

which open the door to extradition for extraterritorial offenses

which would be otherwise extraditable under the treaty.

3. Retroactivity

New extradition treaties generally apply to offenses committed

before, as well as to those committed after, they enter into force.

Application of a new treaty to crimes committed before its effective

date does not make certain conduct criminal that was not punishable when committed, which would raise possible ex post facto objections under the Constitution. Rather, application of a new treaty

to permit extradition for past crimes is a procedural provision that

merely adds a law enforcement tool to assist in the prosecution and

punishment of conduct that already was criminal when committed.

All four treaties expressly apply to offenses committed before the

entry into force of the treaty.

4. Surrender of Nationals

Many ‘‘Napoleonic Code’’ or civil law countries (e.g., Germany,

Venezuela and France) decline to extradite their own citizens to

foreign countries to face justice for their alleged criminal conduct

abroad. Instead, they prosecute their citizens locally for the offense

committed abroad. In the U.S. view, this situation is unsatisfactory. Such cases are, at best, a very low priority for the foreign

prosecutor or investigating magistrate, who often prove reluctant to

devote time and resources to prosecute or investigate conduct

which occurred thousands of miles from their jurisdiction. The historic Anglo-American view is that justice is better-served by prosecution in the venue where the offense was committed.

The United States, like many common law countries, does not object to extraditing its own citizens. The United States has sought

to negotiate treaties without nationality restrictions. Unfortunately, many civil law countries continue to restrict extradition of

their nationals under their extradition agreements, their domestic

law, or both. Among the treaties addressed in this respect, therefore, the nationality provision in the Paraguay treaty is significant:

the treaty contains an express bar on refusing to extradite on nationality grounds. The other three treaties under consideration also

bar withholding extradition on nationality grounds.

5. Political Offense Exception

As it originally evolved, the political offense exception in international extradition practice protects an individual from being sent

abroad to stand trial or face punishment for an offense of a political

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nature. Although U.S. extradition practice historically has barred

extradition for political offenses, there has been a trend during the

last 20 years to narrow the scope of the exception. Newer extradition treaties have excluded from consideration as political offenses (either by specific listing or by general reference) certain

universally condemned crimes that are subject of multilateral

agreements, such as hostage taking, air hijacking, aircraft sabotage, and attacks on heads of state. In those cases, Party States

must prosecute a person accused of a covered crime or extradite the

person for trial elsewhere.

The United States significantly departed from previous political

offense practice in 1986 with the adoption of a new supplementary

extradition treaty with the United Kingdom. Under the supplementary treaty, most serious violent crimes against individuals are

excluded from consideration as political offenses. The U.K. model

subsequently was used in some treaties concluded with democratic

allies (e.g., Canada and Germany), but other recent treaties with

democratic allies (e.g., Australia) have not narrowed the political

offense exception in line with the U.K. treaty.

The Belize, Sri Lanka, and Paraguay treaties do not limit the political offense exception as narrowly as many other recent agreements do. Still, attacks against a Head of State (or a family member) could not be considered a political offense, nor could a crime

covered by a mutually binding multilateral agreement that requires a Party to extradite or prosecute for a specific type of crime

(e.g., aircraft hijacking, etc.). The South Africa treaty is to similar

effect, but also expressly disallows murder, kidnaping, and hostage

taking as political offenses.

The Paraguay, Sri Lanka, and Belize treaties further would deny

extradition if the executive authority of a requested State determines that a request is politically motivated. The South Africa

treaty would deny extradition if the executive authority of the requested State determines that there are substantial grounds for believing that a request has been made primarily to punish or prosecute on the basis of race, religion, nationality, or political opinion.

6. Capital Punishment

Typically, foreign treaty partners decline to extradite fugitives to

the United States who face the possibility of capital punishment,

absent assurances that this penalty will not be imposed.

Capital punishment provisions have become common in recent

U.S. extradition agreements. The capital punishment provisions

generally authorize the requested State to refuse extradition whenever the extraditable offense is punishable by death in the requesting State, but not in the requested State, unless the requesting

State furnishes such assurances as the requested State considers

sufficient that the sentence will not be imposed and executed.

The new treaties with Paraguay and South Africa are typical of

this approach. The new treaty with Sri Lanka is similar to these,

but it contains an exception with respect to crimes which would

constitute murder in both States, in which case the prospect of capital punishment is irrelevant. The treaty with Belize does not contain a death penalty restriction, and hence is similar to the eight

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extradition treaties with Caribbean countries that were approved

by the Senate in 1998 (Exec. Rept. 105–23).

7. Statute of Limitations

Fugitives often attempt to avoid extradition to a requesting state

by asserting that the statute of limitations has expired (also known

as ‘‘lapse of time’’ or ‘‘prescription’’) in the requesting state, the requested state, or both, for the offense giving rise to the extradition

request. The Belize treaty states that ‘‘[e]xtradition shall not be denied because of the prescriptive laws of either the Requesting State

or the Requested State.’’ Similarly, the Sri Lanka treaty states that

extradition is not to be barred ‘‘because of the laws relating to

lapse of time of either the Requesting State or the Requested

State.’’ The Paraguay treaty is silent on the issue. The South Africa

treaty authorizes denial of extradition ‘‘when the prosecution has

become barred by lapse of time according to the law of the Requesting State.’’

8. The Rule of Speciality

The rule of speciality (also specialty) is designed to assure that

an extradited individual will be prosecuted only for the offense for

which extradition was granted and that an extradition request for

one offense is not a subterfuge for obtaining the defendant to stand

trial for unrelated matters. Though the rule applies under every

U.S. bilateral treaty, many exceptions commonly are included.

Among these are exceptions that permit additional prosecutions (1)

with the consent of the requested State, (2) for lesser included offenses, (3) for offenses committed after extradition, or (4) against

an extradited individual who has left and then returned to the requesting State, or who has remained in the requesting State for a

period of time (usually 30 or 60 days) after being free to leave. All

four of the new treaties effectively incorporate the Rule of Specialty.

IV. ENTRY INTO FORCE AND TERMINATION

A. ENTRY INTO FORCE

The Treaties generally provide for the entry into force of the

treaty either on the date of, or a short time after, the exchange of

instruments of ratification.

B. TERMINATION

The Treaties generally provide for the Parties to withdraw from

the Treaty by means of written notice to the other Party. Termination would take place six months after the date of notification.

V. COMMITTEE ACTION

The Committee on Foreign Relations held a public hearing on the

proposed Treaties on September 12, 2000 (a transcript of the hearing and questions for the record can be found in S. Hrg. 106–660,

entitled ‘‘Consideration of Pending Treaties’’). The Committee considered the proposed Treaties on September 27, 2000, and ordered

them favorably reported by voice vote, with the recommendation

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

proposed Treaties subject to the understandings, declarations and

provisos noted below.

VI. COMMITTEE RECOMMENDATION AND COMMENTS

The Committee on Foreign Relations recommends favorably the

proposed Treaties. On balance, the Committee believes that the

proposed Treaties are in the interest of the United States and

urges the Senate to act promptly to give its advice and consent to

ratification. The Committee believes that the following comments

may be useful to the Senate in its consideration of the proposed

Treaties and to the Executive Branch in its application of the Treaties.

A. RESTRICTION ON RE-EXTRADITION OF FUGITIVES TO THE

INTERNATIONAL CRIMINAL COURT

As discussed in Exec. Rept. 105–23, on July 17, 1998, a majority

of nations at the United Nations Diplomatic Conference on the Establishment of an International Criminal Court (Rome, Italy) approved a treaty that would, upon entry into force, establish an

International Criminal Court. The Court would be empowered to

investigate and prosecute war crimes, crimes against humanity,

genocide and aggression. The United States voted against this treaty.

Because of the implications for Americans involved in formulation and execution of United States foreign policy, several members

of the Committee remain deeply concerned by the prospect of an

International Criminal Court empowered to investigate the matters

referred to above that is permanent, could become politicized, and

over which there would be limited international political control.

This concern is magnified by events since adoption of Exec. Rept.

105–23, namely, International Criminal Tribunal for the Former

Yugoslavia Chief Prosecutor Carla del Ponte’s claim of jurisdiction

over United States and other NATO forces for their conduct during

the Kosovo combat operations in 1999.

In light of the Secretary of State’s expressed desire that the

United States become a ‘‘good neighbor’’ to the Court if it enters

into being, and if certain safeguards designed to protect U.S. officials and soldiers from prosecution are approved, as well as other

factors, several members of this Committee are concerned that

United States bilateral extradition treaties could become conduits

for transferring fugitives or charged persons located in the United

States to the Court (if it comes into existence) even though the

United States voted against its establishment.

Accordingly, the Committee has decided once again to insert into

each of the Resolutions of Ratification accompanying the Extradition Treaties discussed in this report an understanding relative

to an eventual International Criminal Court. Specifically, the understanding would obligate the President to restate in United

States instruments of ratification, relative to each treaty’s provision on the Rule of Specialty, that United States consent must be

obtained before a treaty partner may re-extradite a U.S.-surrendered person to a third jurisdiction. The understanding further

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states that future United States policy shall be to refuse such consent to the transfer of individuals to the International Criminal

Court unless the United States ratifies the treaty establishing the

Court pursuant to the procedures stated in Article II, section 2, of

the United States Constitution.

B. USE OF EXTRADITION TREATIES TO AGGRESSIVELY PURSUE

INTERNATIONAL PARENTAL CHILD ABDUCTORS

The Committee on Foreign Relations remains concerned about

the serious problem of international parental child abduction. Notably, a September 2000 General Accounting Office report (GAOP/

GAO/NSIAD–00–226BR) reveals that an estimated 1,000 children

are abducted by one of their parents from the United States annually. Between January 1995 and May 15, 2000, ‘‘left behind’’ American parents initiated nearly 300 cases under the 1980 Hague Convention on the Civil Aspects of International Child Abduction involving just three countries: Germany, Sweden and Austria. Well

over half of those cases are unresolved.

The Committee reiterates its grave concern over this troubling

issue. The Departments of State and Justice must redouble their

efforts to bring international parental child abduction firmly within

the scope of offenses covered by existing and future bilateral extradition treaties. Diplomatic efforts must be undertaken to obtain

commitments from our treaty partners that international child abduction—whether as an independent offense, or as an offense included within the scope of the offense of kidnaping—shall be

deemed an extraditable offense. Law enforcement efforts must be

undertaken to ensure that, in all cases of parental child abduction,

extradition requests are quickly prepared and sent to the treaty

party concerned, even when that party does not extradite its citizens, or would be otherwise unlikely to extradite. The Committee

believes that the failure to even request extradition suggests to the

treaty partner, and to the abductor, that the United States is not

serious about pursuing abductors.

C. EXTRADITION OF NATIONALS

All four of the treaties discussed in this report require the extradition of nationals. This noteworthy accomplishment continues an

important trend in extradition relationships, particularly with

countries of the civil law tradition. The Committee applauds this

accomplishment, which reflects well upon State and Justice Department negotiators.

Unfortunately, much remains to be done toward achieving such

progress on other fronts. Although many bilateral extradition treaties in force today give each party the discretion to extradite its nationals, few of these treaty partners do so owing to domestic statutory, constitutional or political obstacles reflecting civil law traditions of non-extradition of nationals.

The Committee supports the extradition of U.S. nationals in

most instances. But the Committee remains deeply concerned that

many nations around the world—including nations on our border

or in close proximity—do not readily, if ever, extradite their nationals to the United States. The Committee expects that U.S. negotiators will continue to press other nations to agree to extradite

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1 Extradition Act 1870, of 9th August 1870 (hereinafter ‘‘the Extradition Act of 1870’’). The

key sections of the Extradition Act of 1870 which are germane to the interpretation and implementation of the Treaty are discussed in more detail in this Technical Analysis. The Belize delegation stated that this Act would be amended as necessary to encompass provisions of this Treaty.

their nationals, including in existing treaty relationships. The Committee urges the Executive Branch to emphasize, in discussing new

or modernized extradition relationships with foreign states, that a

reciprocal and essentially unconditional commitment to extradite

nationals is a key desire of the United States.

Concerning Mexico in particular, the Committee recommends

that the Executive Branch approach Mexico’s new president at the

appropriate time to inform him of the strong United States desire

to modernize and improve our bilateral extradition relationship in

this area. Concerning the European Union, the Committee recommends that the Executive Branch redouble its efforts to improve

the performance of our European friends in this regard.

Finally, unless there are compelling reasons to the contrary, the

Committee maintains that the United States should never hesitate

to request the extradition of a fugitive from a native country which

does not extradite its citizens. The Committee believes that such

requests contribute to progress in this area, and rightly place the

burden of justifying its refusal on the foreign state.

VII. EXPLANATIONS OF PROPOSED TREATIES

What follow are the article-by-article technical analyses provided

by the Departments of State and Justice regarding the extradition

treaties included in this Report.

Technical Analysis of the Extradition Treaty Between the

United States of America and Belize

On March 30, 2000, the United States signed an Extradition

Treaty Between the Government of the United States of America

and the Government of Belize (the ‘‘Treaty’’). In recent years, the

United States has signed similar treaties with many other countries as part of a highly successful effort to modernize our law enforcement relations. The new extradition treaty with Belize is a

major step forward in United States efforts to win the cooperation

of countries in combatting organized crime, transnational terrorism, and international drug trafficking.

It is anticipated that the Treaty will be implemented in the

United States pursuant to the procedural framework provided by

Title 18, United States Code, Section 3184, et seq. No new implementing legislation will be needed for the United States. Belize has

its own internal legislation on extradition1 which will apply to

United States requests under the Treaty. The Government of

Belize will however, need additional implementing legislation to

give the Treaty effect. The Treaty will replace the Extradition

Treaty between the United States of America and the United Kingdom of Great Britain and Northern Ireland, signed at London June

8, 1972, which was applicable to Belize as a former dependency of

the United Kingdom.

The following technical analysis of the Treaty has been prepared

by the Office of International Affairs, United States Department of

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Justice, and the Office of the Legal Adviser, United States Department of State, based upon the negotiating history. The technical

analysis includes a discussion of U.S. law and relevant practice as

of the date of its preparation, which are, of course, subject to

change. Foreign law discussions reflect the current state of that

law, to the best of the drafters’ knowledge.

ARTICLE 1—OBLIGATION TO EXTRADITE

The first article of the Treaty, like the first article in every recent United States extradition treaty, formally obligates each Party

to extradite to the other, subject to the provisions of the remainder

of the Treaty, persons sought for prosecution or convicted of extraditable offenses. The article refers to charges ‘‘in’’ the Requesting

State rather than ‘‘of’’ the Requesting State since the obligation to

extradite, in cases arising from the United States, would include

state and local prosecutions as well as federal cases. The term ‘‘convicted’’ includes instances in which the person sought has been

found guilty but a sentence has not yet been imposed. The Treaty

clearly applies to persons who have been adjudged guilty but fled

prior to sentencing.

ARTICLE 2—EXTRADITABLE OFFENSES

This article contains the basic guidelines for determining what

are extraditable offenses. This treaty, like most recent United

States extradition treaties, makes extraditable any offense if it is

punishable under the laws in both Contracting States by deprivation of liberty (i.e., imprisonment, or other form of detention), for

a period of more than one year, or by a more severe penalty such

as capital punishment. In addition, paragraph 1 of Article 2 references a non-exhaustive list or schedule, annexed to the Treaty as

an integral part thereof of specific offenses for which extradition

may be granted provided that the listed offense is so punishable.

Defining extraditable offenses in terms of ‘‘dual criminality’’ obviates the need to renegotiate the Treaty or supplement it if both

countries pass laws dealing with a new type of criminal activity,

or if the list inadvertently fails to cover a criminal activity punishable in both countries.

The list of extraditable offenses referenced in paragraph 1 includes most of the offenses which were included in the 1972 U.S.-

U.K. treaty, as well as more modern offenses such as those relating

to money laundering, intellectual property, the environment, taxes,

immigration, consumer protection (i.e., antitrust and other offenses), and terrorism. This list was included at the insistence of

the Belizean delegation, which expressed concern that the complete

absence of an agreed list would greatly burden Belizean judges and

slow the extradition process. During the treaty negotiations, the

United States delegation received assurances from the Belizean

delegation that U.S. offenses which basically enhance penalties,

such as operating a continuing criminal enterprise (Title 21, United

States Code, Section 848) and offenses under the racketeering statutes (Title 18, United States Code, Section 1961–1968), would be

extraditable if the predicate offenses would be extraditable offenses

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2See, e.g., U.S.-Austria Extradition Treaty, signed at Washington, January 8, 1998, entered

into force January 1, 2000, art. 2(4)(B).

Paragraph 2 follows the practice of recent extradition treaties in

providing that extradition should also be granted for attempting or

conspiring to commit, aiding or abetting, counseling or procuring

the commission of, or otherwise being an accessory before or after

the fact to, an extraditable offense. Conspiracy charges are frequently used in United States criminal cases, particularly those involving complex transnational criminal activity, so it is especially

important that the Treaty be clear on this point. In any event,

paragraph 2 creates an exception to the ‘‘dual criminality’’ rule of

paragraph 1 by making conspiracy an extraditable crime if the offense which was the object of the conspiracy is an extraditable offense.

Paragraph 3 reflects the intention of both countries to interpret

the principles of this article broadly. Judges in foreign countries

are often confused by the fact that many United States federal

statutes require proof of certain elements (such as use of the mails

or interstate transportation) solely to establish jurisdiction in

United States federal courts. Because these foreign judges know of

no similar requirement in their own criminal law, they occasionally

have denied the extradition of fugitives sought by the United

States on federal charges based on an absence of dual criminality

of such jurisdictional requirements. This paragraph requires that

such jurisdictional elements be disregarded in applying the dual

criminality principle. For example, Belizean authorities must treat

United States mail fraud charges (Title 18, United States Code,

Section 1341) in the same manner as fraud charges under state

laws, and view the federal crime of interstate transportation of stolen property (Title 18, United States Code, Section 2314) in the

same manner as unlawful possession of stolen property. This paragraph also requires a Requested State to disregard differences in

the categorization of the offense in determining whether dual criminality exists, and to overlook mere differences in the terminology

used to define the offense under the laws of each country. A similar

provision is contained in all recent United States extradition treaties. Furthermore, number 29 on the list of offenses annexed to the

Treaty makes clear that offenses relating to fiscal matters, taxes or

duties, including tax evasion or fiscal fraud, shall be extraditable

offenses notwithstanding that the law of the Requested State does

not impose the same kind of tax or duty or does not contain a tax,

duty or customs regulation of the same kind as the law of the Requesting State. This provision clarifies that revenue-related offenses need not be based on identical regulations in order to be extraditable. This provision is inspired by Article 2(3) of the United

Nations Model Extradition Treaty. Similar provisions appear in

other recent U.S. extradition treaties. 2

Paragraph 4 deals with the fact that in the United States many

federal crimes involve acts committed wholly outside United States

territory. Our jurisprudence recognizes jurisdiction to prosecute offenses committed outside of the United States if the crime was intended to, or did, have effects in this country, or if the legislative

history of the statute shows clear Congressional intent to assert

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3 Restatement (Third) of the Foreign Relations Law of the United States § 402 (1987);

Blakesley, United States Jurisdiction over Extraterritorial Crime, 73 Journal of Criminal Law

and Criminology 1109 (1982). 4See, e.g., U.S.-Barbados Extradition Treaty, signed at Bridgetown February 28, 1996, entered

into force March 3, 2000, art. 2(5). 5See, generally Shearer, Extradition in International Law 110–114 (1971); 6 Whiteman, Digest

of International Law 871–872 (1968). Our policy of drawing no distinction between nationals of

the United States and those of other countries in extradition matters is underscored by Title

18, United States Code, Section 3196, which authorizes the Secretary of State to extradite U.S.

citizens even pursuant to treaties that permit (but do not require) surrender of citizens, if other

requirements of the Treaty have been met.

such jurisdiction.3 However, at the time that the treaty was negotiated, the Belizean Government did not recognize extraterritorial

jurisdiction over offenses. In light of assurances that Belize would

take steps to develop jurisdiction over extraterritorial matters, the

U.S. delegation agreed to the text of Article 2(4), which provides

that extradition shall be granted for such offenses if the Requested

State could punish an offense committed outside of its territory in

similar circumstances.

Paragraph 5 states that when extradition has been granted for

an extraditable offense, it shall also be granted for any other offense for which all of the requirements for extradition have been

met except for the requirement that the offense be punishable by

more than one year of imprisonment. For example, if Belize agrees

to extradite to the United States a fugitive wanted for prosecution

on a felony charge, the United States will also be permitted to obtain extradition for any misdemeanor offenses that have been

charged and included in the request, as long as those misdemeanors would also be recognized as criminal offenses in Belize.

This practice is generally desirable from the standpoint of both the

fugitive and the prosecuting country in that it permits all charges

against the fugitive to be disposed of more quickly, thereby facilitating trials while evidence is still fresh and permitting the possibility of concurrent sentences. Similar provisions are found in recent extradition treaties with other countries. 4

ARTICLE 3—NATIONALITY

Some countries refuse to extradite their own nationals to other

countries for trial or punishment, or are prohibited from doing so

by their statutes or constitution. The United States does not deny

extradition on the basis of the offender’s citizenship, 5 and Belize’s

extradition law contains no exception for Belizean nationals. Therefore, in Article 3 of the Treaty, each State promises not to refuse

extradition on the ground that the person sought is a national of

the Requested State.

ARTICLE 4—POLITICAL AND MILITARY OFFENSES

Paragraph 1 of this article prohibits extradition for a political offense. This is a standard provision in United States extradition

treaties.

Paragraph 2 describes three categories of offenses which shall

not be considered to be political offenses. Similar provisions appear

in most recent U.S. extradition treaties.

First, the political offense exception does not apply where there

is a murder or other willful crime against the person of a Head of

13

6Done at New York December 14, 1973, and entered into force February 20, 1977 (28 UST

1975, TIAS 8532, 1035 UNTS 167). 7There are similar provisions in many U.S. extradition treaties. See, e.g., U.S.-India Extradition Treaty, signed at Washington June 25, 1997, entered into force July 21, 1999, art. 5(2). 8See, Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir.), cert. denied, 454 U.S. 894 (1981); Koskotos

v. Roche, 744 F. Supp. 904 (D. Mass. 1990), aff’d, 931 F. 2d 169 (1st Cir. 1991). 9 An example of such a crime is desertion. Matter of Extradition of Suarez-Mason, 694 F.

Supp. 676, 702–3 (N.D. Cal. 1988). 10See, e.g., U.S.-Argentina Extradition Treaty, signed at Buenos Aires June 10, 1997, entered

into force June 13, 2000, art. 5(1).

State of the Contracting States, or a member of the Head of State’s

family.

Second, the political offense exception does not apply to offenses

which are included in a multilateral treaty, convention, or international agreement that requires the parties to either extradite the

person sought or submit the matter for decision as to prosecution.

For example this clause would apply to the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, Including Diplomatic Agents. 6

Third, the political offense exception does not apply to conspiring

or attempting to commit, or for aiding and abetting the commission

or attempted commission of, the foregoing offenses.

Article 4(3) provides that extradition shall not be granted if the

executive authority of the Requested State finds that the request

was politically motivated.7 This is consistent with the longstanding

law and practice of the United States, under which the Secretary

of State alone has the discretion to determine whether an extradition request is based on improper political motivation.8 During

negotiations, the Belizean delegation stated that it will specify in

its domestic legislation concerning extradition that ‘‘executive authority’’ means Ministry of Foreign Affairs.

The final paragraph of the article states that the executive authority of the Requested State may refuse extradition if the request

involves offenses under military law which would not be offenses

under ordinary criminal law.9

ARTICLE 5—PRIOR PROSECUTION

The first paragraph of Article 5 prohibits extradition if the offender has been convicted or acquitted in the Requested State for

the offense for which extradition is requested, and is similar to language in many United States extradition treaties.10 This provision

applies only if the offender is convicted or acquitted in the Requested State of exactly the same crime he is charged with in the

Requesting State. It would not be enough that the same facts were

involved. Thus, if an offender is accused in one State of illegally

smuggling narcotics into the country, and is charged in the other

State of unlawfully exporting the same shipment of drugs out of

that State, an acquittal or conviction in one state would not insulate the person from extradition to the other, since different crimes

are involved.

Paragraph 2 makes it clear that neither State can refuse to extradite an offender on the ground that the Requested State’s authorities declined to prosecute, or instituted criminal proceedings

against the offender and thereafter elected to discontinue the proceedings. This provision was included because the decision of the

14

11 Courts applying Title 18, United States Code, Section 3184, have long required probable

cause for international extradition. See, Restatement (Third) of the Foreign Relations Law of the

United States § 476, comment b (1987) (‘‘evidence of criminality as would justify the requested

state in holding the accused for trial’’).

Requested State to forego prosecution, or to drop charges already

filed, may have resulted from failure to obtain sufficient evidence

or witnesses available for trial, and the Requesting State may not

suffer from the same impediments. This provision should enhance

the ability to extradite to the jurisdiction which has the better

chance of a successful prosecution.

ARTICLE 6—EXTRADITION PROCEDURES AND REQUIRED DOCUMENTS

This article sets out the documentary and evidentiary requirements for an extradition request, and is similar to articles in the

most recent United States extradition treaties.

The first paragraph requires that each formal request for extradition be submitted through the diplomatic channel. A formal extradition request may be preceded by a request for provisional arrest under Article 9, and provisional arrest requests need not be

initiated through diplomatic channels if the requirements of Article

9 are met.

Article 6(2) outlines the information which must accompany

every request for extradition under the Treaty. Most of the items

listed in Article 6(2) enable the Requested State to determine

quickly whether extradition is appropriate under the Treaty. For

example, Article 6(2)(c)(i) calls for ‘‘evidence as to the provisions of

the law describing the essential elements of the offense for which

extradition is requested,’’ enabling the requested state to determine

easily whether the request meets the requirement of dual criminality under Article 2. However, some of the items listed in Article

6(2) are required strictly for informational purposes so that the Requested State will be fully informed about the charges in the Requesting State. Thus, Article 6(2)(c)(iii) calls for ‘‘evidence as to the

provisions of the law describing any time limit on the prosecution,’’

even though Article 8 of the Treaty expressly states that extradition may not be denied due to lapse of time for prosecution.

Article 6(3) describes the additional information needed when the

person is sought for trial in the Requesting State. Article 6(3)(c) requires that if the fugitive is a person who has not yet been convicted of the crime for which extradition is requested, the Requesting State must provide ‘‘such evidence as would be sufficient, according to the law of the Requested State, to justify committal for

trial of the person sought if the offense of which the person has

been accused had been committed in the Requested State.’’ In the

United States, courts require a showing of probable cause to extradite.11 In Belize, courts require a ‘‘prima facie’’ showing. The delegations agreed that the Belize standard is essentially identical to

a showing of probable cause under U.S. law, and that the language

of Article 6(3)(c) should not be interpreted to require a higher burden of proof for extradition than the probable cause standard. The

Belize delegation said that the evidence which should be provided

to Belize in meeting this standard consists of: an affidavit by the

prosecutor describing the case and defining the elements of the

charged offenses; sworn statements by some witnesses to the

15

12See, e.g., Spatola v. United States, 741 F.Supp. 362, 374 (E.D.N.Y. 1990), aff’d, 925 F.2d

615 (2nd Cir. 1991). 13Title 18, United States Code, Section 3190. 14This is consistent with settled law in the United States, which holds that lapse of time is

not a defense to extradition unless the treaty specifically provides to the contrary. Freedman

v. United States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v. Galanis, 429 F. Supp.

1215, 1224 (D. Conn. 1977).

events charged; and other evidence demonstrating a case against

the person, such as copies of fingerprints and photographs of the

person sought, photographs of the crime scene, copies of some underlying documentation (demonstrating fraud, for example).

Article 6(4) lists the additional information needed to extradite

a person who has already been convicted of an offense in the Requesting State. This paragraph makes it clear that once a conviction has been obtained, the legal standard required to be met in

paragraph 3 is no longer applicable. In essence, the fact of conviction speaks for itself, a position taken in recent United States court

decisions, even absent a specific treaty provision.12

ARTICLE 7—ADMISSIBILITY OF DOCUMENTS

Article 7 governs the authentication procedures for documents

prepared for use in extradition cases so that they will be received

and admitted as evidence in extradition proceedings.

The article states that when the United States is the Requesting

State, the documents in support of extradition must be authenticated by an officer of the United States Department of State and

certified by the principal diplomatic or consular officer of Belize

resident in the United States although the Belizean delegation

stated that this is not necessary under its domestic law. When the

request is from Belize, the documents must be certified by the principal diplomatic or consular officer of the United States resident in

Belize, consistent with United States extradition law.13

The third paragraph of the article permits documents to be admitted into evidence if they are authenticated in any other manner

acceptable by the law of the Requested State. For example, there

may be information in the Requested State itself which is relevant

to and probative of extradition, and the Requested State is free

under (c) to utilize that information if it satisfies the ordinary rules

of evidence in that state. This insures that evidence which is acceptable under the evidentiary rules of the Requested State may be

used in extradition proceedings even if it is not authenticated pursuant to the Treaty. This paragraph also should insure that relevant evidence which would normally satisfy the evidentiary rules

of the Requested State is not excluded at the extradition hearing

because of an inadvertent error or omission in the authentication

process.

ARTICLE 8—LAPSE OF TIME

Article 8 states that extradition shall not be denied because of

the ‘‘prescriptive laws,’’ meaning provisions of the law regarding

lapse of time, in either the Requesting or Requested States. The

U.S. and Belizean delegations agreed that a claim that the statute

of limitations has expired is best resolved by the courts of the Requesting State after the fugitive has been extradited.14 The

16

Belizean delegation also stated that, under the laws of Belize, the

prosecution of felonies is never barred by a statute of limitations,

except with regard to certain customs and income tax offenses,

which are controlled by a six-year limitations period.

ARTICLE 9—PROVISIONAL ARREST

This article describes the process by which a person in one country may be arrested and detained while formal extradition papers

are being prepared. Similar provisions appear in all recent U.S. extradition treaties.

Paragraph 1 expressly provides that a request for provisional arrest may be made through the diplomatic channel or directly between the United States Department of Justice and the Attorney

General in Belize. The provision also indicates that INTERPOL

may be used to transmit such a request. Experience has shown

that the ability to use such direct channels in emergency situations

can be crucial when a fugitive is poised to flee. Where a request

is not made through diplomatic channels, the Department of Justice expects that confirmation will be made through diplomatic

channels.

Paragraph 2 lists the information which the Requesting State

must provide in support of such a request.

Paragraph 3 states that the Requesting State must be advised

promptly of the outcome of its application and the reason for any

denial.

Paragraph 4 provides that the fugitive may be released from detention if the Requesting State does not file a fully documented request for extradition with the executive authority of the Requested

State within sixty days of the date on which the person was arrested pursuant to the Treaty. This paragraph further explicitly insures that arrested persons have a right of access to the courts;

therefore, they can apply for, but not necessarily be granted, bail.

When the United States is the Requested State, the term ‘‘executive authority’’ includes the Secretary of State or the U.S. Embassy

in Belize City, Belize.

Although the person sought may be released from custody if the

documents are not received within the sixty-day period or any extension thereof, the extradition proceedings against the fugitive

need not be dismissed. Article 9(5) makes it clear that the person

may be taken into custody again and the extradition proceedings

may commence when the formal request is presented.

ARTICLE 10—DECISION AND SURRENDER

This article restates the legal standard in article 6 which must

be met before extradition shall be granted: Extradition shall be

granted only if, under the law of the Requested State, the evidence

presented is found sufficient either to justify the committal for trial

of the person sought for prosecution or to prove that the person is

the identical person convicted in the courts of the Requesting State.

This article also requires that the Requested State promptly notify the Requesting State through diplomatic channels of its decision on the extradition request. If extradition is denied in whole or

in part, the Requested State must provide an explanation of the

17

15Title 18, United States Code, Section 3188. 16Jimenez v. United States District Court, 84 S. Ct. 14, 11 L.Ed 2d.30 (1963)(decided by Goldberg, J., in chambers). See, also, Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United

States, 713 F.2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th Cir. 1978). 17 Extradition Act of 1870, Section 12. 18 Under U.S. law and practice, the Secretary of State would make this decision. Koskotas v.

Roche, 740 F. Supp. 904, 920 (D. Mass. 1990), aff’d, 931 F.2d 169 (1st Cir. 1991).

reasons for the denial. If extradition is granted, the article requires

that the two States agree on a time and place for surrender of the

person. The Requesting State must remove the fugitive within the

time prescribed by the law of the Requested State, or the person

may be discharged from custody and the Requested State may subsequently refuse to extradite for the same offense. United States

law permits the person to request release if he has not been surrendered within two calendar months of having been found extraditable,15 or following the conclusion of any litigation challenging

that finding,16 whichever is later. The law in Belize permits the

person to apply to a judge for release if he has not been surrendered within two months of the first day on which he could have

been extradited.17

ARTICLE 11—TEMPORARY AND DEFERRED SURRENDER

Occasionally, a person sought for extradition already may be facing prosecution or serving a sentence in the Requested State. Article 11 provides a means for the Requested State to surrender temporarily or defer extradition in such circumstances until the conclusion of the proceedings against the person sought and the serving

of any punishment that may have been imposed. Similar provisions

appear in our recent extradition treaties with countries such as

Austria, Barbados and India.

Article 11(1) provides for the temporary surrender of a person

wanted for prosecution in the Requesting State who is being prosecuted or is serving a sentence in the Requested State. A person

temporarily transferred pursuant to this provision 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 trial of 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) it allows him

to resolve the charges sooner; (2) it may make it possible for him

to serve any sentence in the Requesting State concurrently with

the sentence in the Requested State; and (3) it permits him to defend against the charges while favorable evidence is fresh and more

likely to be available to him.

Article 11(2) provides that the executive authority of the Requested State may postpone the surrender of a person who is serving a sentence in the Requested State until the full execution of the

punishment which has been imposed.18 The provision’s wording

makes it clear that the Requested State may postpone the initiation of extradition proceedings as well as the surrender of a person facing prosecution or serving a sentence.

18

19 Cheng Na-Yuet v. Hueston, 734 F.Supp. 988 (S.D. Fla. 1990), aff’d, 932 F.2d 977 (11th Cir.

1991). 20 In the United States, the Secretary of State has the authority to grant such consent. See

Berenguer V. Vance, 473 F. Supp. 1195 (D.C.D.C. 1979).

ARTICLE 12—REQUESTS FOR EXTRADITION MADE BY SEVERAL

STATES

This article reflects the practice of many recent United States extradition treaties, and lists some of the factors which the executive

authority of the Requested State must consider in determining to

which country a person should be surrendered when reviewing requests from two or more States for the extradition of the same person. For the United States, the Secretary of State would make this

decision.19 The Belizean delegation stated that it would name the

Ministry of Foreign Affairs as its ‘‘executive authority’’ under the

Treaty.

ARTICLE 13—SEIZURE AND SURRENDER OF PROPERTY

This article provides that, to the extent permitted by its laws,

the Requested State may seize and surrender all property—articles, instruments, objects of value, documents, or other evidence—

relating to the offense for which extradition is requested. Similar

provisions are found in all recent U.S. extradition treaties. The article also provides that seized objects may be surrendered to the

Requesting State upon the granting of the extradition or even if extradition cannot be effected due to the death, disappearance, or escape of the fugitive.

The second paragraph states that the Requested State may condition its surrender of property upon satisfactory assurances that

the property will be returned as soon as practicable, or defer surrender altogether if the property is needed as evidence in the Requested State. The rights of third parties to such property must be

duly respected.

ARTICLE 14—RULE OF SPECIALITY

This article covers the principle known as the ‘‘rule of speciality’’

(or ‘‘specialty’’), which is a standard aspect of United States and

international extradition practice. Designed to insure that a fugitive surrendered for one offense is not tried for other crimes, the

rule of specialty prevents a request for extradition from being used

as a subterfuge to obtain custody of a person for trial or service of

sentence on different charges which may not be extraditable under

the Treaty or properly documented at the time that the request is

granted.

Since a variety of exceptions to the rule of specialty have developed over the years, this article codifies the current formulation of

the rule by providing that a person extradited under the Treaty

may only be detained, tried, or punished in the Requesting State:

(1) for the offense for which extradition was granted, or a differently denominated offense based on the same facts, provided the

offense is extraditable or is a lesser included offense; (2) for offenses committed after the extradition; and (3) for other offenses

for which the executive authority of the Requested State consents.20 Article 14(1)(c)(ii) permits the State which is seeking conVerDate 11-MAY-2000 20:51 Oct 04, 2000 Jkt 000000 PO 00000 Frm 00018 Fmt 6659 Sfmt 6602 EXTRAD SFRELA1 PsN: SFRELA1
19

21Thus, the provision is consistent with the provisions of all recent U.S. extradition treaties. 22 A similar provision is in all recent U.S. extradition treaties.

sent to pursue additional charges to detain the defendant for 90

days while the Requested State makes its determination on the application.

Paragraph 2 prohibits the Requesting State from surrendering

the person to a third state without the consent of the State from

which extradition was first obtained.21 Consistent with the rule of

specialty under international law, the prior consent of the United

States would be required if Belize were to seek to extradite to an

international tribunal, including the International Criminal Court

agreed to in Rome on July 17, 1998, a fugitive who had been previously extradited from the United States to Belize.

Finally, Paragraph 3 permits the detention, trial, or punishment

of an extraditee for additional offenses, or extradition to a third

State: (1) if the extraditee leaves and returns to the Requesting

State; or (2) if the extraditee does not leave the Requesting State

within ten days of being free to do so.

ARTICLE 15—WAIVER OF EXTRADITION

Persons sought for extradition frequently elect to waive their

right to extradition proceedings and to expedite their return to the

Requesting State. This article provides that when a fugitive consents to return to the Requesting State after being advised by a

competent judicial authority of the effect of such consent under the

law of the Requested State, the person may be returned to the Requesting State without further proceedings. The Parties anticipate

that in such cases there would be no need for the formal documents

described in Article 6 or further judicial proceedings of any kind.

If the person sought returns to the Requesting State before the

Secretary of State signs a surrender warrant, the United States

would not view the waiver of proceedings under this article as an

‘‘extradition,’’ and United States practice has long been that the

rule of specialty does not apply when a fugitive waives extradition

and voluntarily returns to the Requested State.

ARTICLE 16—TRANSIT

Article 16(1) gives each State the power to authorize transit

through its territory of persons being surrendered to the other

country by third countries.22 Requests for transit are to contain a

description of the person whose transit is proposed and a brief

statement of the facts of the case with respect to which he is being

surrendered to the Requesting State. The paragraph permits the

request to be transmitted either through the diplomatic channel, or

directly between the United States Department of Justice and the

Attorney General in Belize, or via INTERPOL channels.

Under paragraph 2, no advance authorization is needed if the

person in custody is in transit to one of the Parties and is traveling

by aircraft and no landing is scheduled in the territory of the other

Party. Should an unscheduled landing occur, a request for transit

may be required at that time, and the Requested State may grant

the request if, in its discretion, it is deemed appropriate to do so.

The Requested State is authorized to keep the person in custody

20

for up to 96 hours until a request for transit is received, and thereafter until transit is effected.

ARTICLE 17—REPRESENTATION AND EXPENSES

The first paragraph of this article provides that the United

States will represent Belize in connection with requests from Belize

for extradition before the courts in this country, and Belize’s Attorney General will arrange for the representation of the United

States in connection with United States extradition requests to

Belize.

Paragraph 2 provides that the Requested State will bear all expenses of extradition except those expenses relating to the ultimate

transportation of a fugitive to the Requesting State and the translation of documents, which expenses are to be paid by the Requesting State. Cases may arise in which it may be necessary for the

Requesting State to retain private counsel to assist in the presentation of the extradition request. It is anticipated that in such

cases the fees of private counsel retained by the Requesting State

must be paid by the Requesting State.

Paragraph 3 provides that neither State shall make a pecuniary

claim against the other in connection with extradition proceedings,

including arrest, detention, examination, and surrender of the fugitive. This includes any claim by or on behalf of the fugitive for

damages, reimbursement, or legal fees, or other expenses occasioned by the execution of the extradition request.

ARTICLE 18—CONSULTATION

Article 18 of the Treaty provides that the United States Department of Justice and the Attorney General’s Chambers in Belize

may consult with each other directly with regard to an individual

extradition case or on extradition procedures in general. A similar

provision is found in other recent U.S. extradition treaties.

ARTICLE 19—APPLICATION

This Treaty, like most of the other United States extradition

treaties negotiated in the past two decades, is expressly made retroactive, and covers offenses which occurred before the Treaty entered into force. It makes clear, however, that the offense must

have been an offense under the laws of both Contracting States at

the time of its commission and that nothing in the Treaty is to be

construed to criminalize any conduct that was not subject to criminal sanctions at the time the offense was committed.

ARTICLE 20—RATIFICATION AND ENTRY INTO FORCE

This article contains standard treaty language, requiring ratification and providing for the exchange of instruments of ratification

as soon as possible. The Treaty is to enter into force immediately

upon the exchange.

In Belize, treaties are executive decisions, and need not be approved by the legislature; however, because the Treaty affects private rights, it must be given effect by the legislature via implementing legislation.

21

1Signed at Asuncion on May 24, 1973, and entered into force on May 7, 1974; 25 UST 967;

TIAS 7838. 2Title XXXIV, Paraguayan Criminal Procedure Code (Co ́

digo de Procedimientos Penales), Article 590 et seq. The Paraguayan extradition law is essentially procedural in nature. Relevant

provisions of Paraguayan law are discussed in more detail in this Technical Analysis.

Upon entry into force of this Treaty, paragraph 3 provides that

the U.S.-U.K. Extradition Treaty shall cease to have any effect between the U.S. and Belize although it will remain applicable to extradition proceedings in which the extradition documents have already been submitted to the courts in the Requested State. Articles

14 and 15 of this Treaty shall, however, apply.

ARTICLE 21—TERMINATION

This Article contains the standard treaty language describing the

procedure for termination of the Treaty by either State. Termination shall become effective six months after written notice is received.

Technical Analysis of the Extradition Treaty Between The

Government of the United States of America and The Government of the Republic of Paraguay

On November 9, 1998, the United States signed a new Extradition Treaty Between the Government of the United States of

America and The Government of the Republic of Paraguay (hereinafter ‘‘the new Treaty’’ or ‘‘the Treaty’’). The new Treaty, which will

replace the treaty currently in force between the United States and

Paraguay1 (hereinafter ‘‘the 1973 treaty’’), is part of an ongoing and

successful effort to negotiate with Latin American countries modern agreements to facilitate the extradition of serious offenders, including narcotics traffickers, regardless of their nationality.

It is anticipated that the new Treaty will be implemented in the

United States pursuant to the procedural framework provided by

Title 18, United States Code, Section 3184 et seq. No new implementing legislation will be needed for the United States. Likewise,

the Treaty will be implemented in Paraguay in accordance with existing Paraguayan extradition law,2 and no additional implementing legislation will be required.

The following technical analysis of the new Treaty was prepared

by members of the United States’ negotiating delegation from the

Office of International Affairs, Criminal Division, United States

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

States Department of State, based on the negotiating history. The

technical analysis includes a discussion of U.S. law and relevant

practice as of the date of its preparation, which are, of course subject to change. The discussion of foreign law reflects the current

state of that law to the best of the drafters’ knowledge.

ARTICLE I—AGREEMENT TO EXTRADITE

Article 1 of the Treaty, like the first article in every recent

United States extradition treaty, formally obligates each Party to

extradite to the other, pursuant to the provisions of the Treaty,

22

3 E.g., a bench warrant issued sua sponte by the court for failure to appear for trial for an

extraditable offense. 4 Although this provision is intended to enable extradition from the United States to Paraguay

of a person who is the subject of a Paraguayan warrant of arrest (orden de prision) and whose

appearance in Paraguay is sought as a necessary step for subjecting such person to criminal

prosecution, it is not intended to enable extradition of a person whose appearance has been ordered for the sole purpose of giving testimony. 5See, Stanbrook and Stanbrook, Extradition: The Law and Practice, 25–26 (1979). This situation arises most often when a person pleads guilty to an offense in the United States and is

allowed to remain free on bond pending sentencing, but flees prior to, and fails to appear as

ordered for, his or her sentencing. 6During the negotiations, the Paraguayan delegation indicated that, under Paraguayan law,

key offenses such as drug trafficking (including continuing criminal enterprises), drug and nondrug related money laundering, terrorism, and organized criminal activity (RICO), as well as

certain tax, export, and environmental crimes, would meet the requirements of Article 2(1) and

thus be extraditable offenses. Escape also would be an extraditable offense, provided that it involves more than one person and the use of force.

persons sought by authorities in the Requesting State for trial or

punishment for an extraditable offense.

The negotiating delegations intended that the terms of this article be interpreted broadly. For example, persons sought ‘‘for trial’’

in the United States should include any person sought for prosecution who is the subject of an outstanding warrant of arrest for an

extraditable offense, regardless of whether the warrant was issued

pursuant to an indictment, complaint, information, or other lawful

means.3 The negotiating delegations also recognized that a large

number of cases involving persons extradited to the United States

‘‘for trial’’ may, in fact, never actually go to trial if the charges for

which extradition is granted are resolved by guilty plea or other

means.

With respect to fugitives from Paraguayan justice, such persons

may not be formally indicted under Paraguayan criminal procedure

until the latter stages of the criminal process (i.e., at the conclusion

of the ‘‘plenario’’). Therefore, this provision is intended to apply to

those fugitives from Paraguay who are ‘‘in process’’, i.e., those fugitives whose cases may not yet have reached the indictment stage,

but for whom there are pending criminal proceedings and outstanding warrants of arrest.4

The negotiating delegations also agreed that the term ‘‘punishment’’ in this Article includes not only instances in which the person sought has been sentenced, but also those situations in which

such person has been adjudged guilty, either by trial or plea, but

a sentence has not yet been imposed.5

This Article also refers to persons sought by authorities ‘‘in’’ the

Requesting State rather than ‘‘of’’ the Requesting State, since the

obligation to extradite, in cases arising from the United States,

would apply to fugitives from state and local justice, as well as

those wanted by federal authorities.

ARTICLE II—EXTRADITABLE OFFENSES

This Article contains the basic guidelines for determining what

offenses are extraditable. Like such articles in other recent United

States extradition treaties, it does not list the offenses for which

extradition may be granted. Instead, paragraph 1 of this Article

permits extradition for any offense punishable under the laws in

both countries by deprivation of liberty (i.e., imprisonment or other

form of detention) for a maximum period of more than one year,

or by a more severe penalty such as capital punishment).6 The

23

7 It was the understanding of the negotiating delegations that the six month period referred

in this provision relates to the incarceration portion of the sentence, and not to any post-confinement supervised release period. Accordingly, the person sought must have at least six months

left to serve in custody, regardless of whether a combination of the incarceration and supervised

release periods of the sentence would amount to more than six months. 8See, e.g., U.S.-Argentina Extradition Treaty, signed at Buenos Aires June 10, 1997, entered

into force June 15, 2000, art. 2(1). 9Foreign delegations, particularly those from civil law countries such as Paraguay, sometimes

insist on provisions of this kind, in part because such language is included in the U.N. model

treaty. In addition, it is not uncommon for persons to spend several months in custody pending

extradition, and, subject to the laws of the Requesting State, they may receive, upon their surrender, credit toward the completion of their sentence for the time spent in foreign custody. The

Paraguayan delegation insisted on a provision of this kind also in part because, in their view,

it is difficult to justify the expense of pursuing the extradition of a person who will likely be

released immediately upon or soon after his or her surrender to the Requesting State. 10The 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, Title 18, United States Code, Sections

2 and 3. 11 In fact, Paraguayan law does not penalize the offense of ‘‘conspiracy,’’ per se. Accordingly,

the term ‘‘conspiracy’’ is translated in the Spanish text of the Treaty as ‘‘association to commit

an offense,’’ which is the closest analogue to conspiracy under Paraguayan law. The Paraguayan

delegation assured the U.S. delegation that the U.S. offense of ‘‘conspiracy’’ would be extraditable under this definition. 12 Note that the language of paragraph 3 does not require that the conspiracy, attempt, or

participation, in itself, satisfy the dual criminality or penalty requirements of paragraph 1 so

long as the offense that was the object of such attempt, conspiracy, etc., does so.

term ‘‘maximum period’’ was included to ensure that, in regard to

offenses whose potential penalties are described in terms of a range

(e.g., 6 months to 3 years of imprisonment), the Requested State

would look only to the maximum potential penalty in determining

whether the offense meets the requirement of being punishable by

more than one year imprisonment.

Defining extraditable offenses in terms of ‘‘dual criminality’’ rather than attempting to list in the Treaty each extraditable crime obviates the need to renegotiate, amend, or supplement the Treaty if

the countries later enact laws dealing with new types of criminal

activity, or if the list inadvertently fails to cover important types

of criminal activity already punishable in both countries. Under the

dual criminality approach, once criminal laws are enacted in both

countries to punish a certain type of activity by more than one year

of imprisonment, then that criminal activity automatically is included as a an extraditable offense.

In regard to a request for a person who has already been sentenced in the Requesting State, paragraph 2 of this Article contains

an additional requirement that such person must have more than

six months of his or her sentence still to serve.7 Provisions of this

kind are not preferred by U.S. negotiating teams, but they do appear in some U.S. extradition treaties.8 In this Treaty, the Paraguayan delegation insisted on its inclusion.9

Paragraph 3 follows the practice of recent extradition treaties in

expressly providing that extradition also shall be granted for conspiring or attempting to commit, or otherwise participating in,10

the commission of an extraditable offense. Foreign laws often do

not define conspiracy or participation in an offense in the same

way as U.S. law.11 Moreover, foreign laws may provide much less

severe penalties for an attempt or conspiracy than they do for the

offense that is the object of such attempt or conspiracy.12 Accordingly, it is important that the Treaty be clear that these inchoate

offenses are extraditable, especially since they are frequently a part

24

13 Restatement (Third) of the Foreign Relations Law of the United States § 402 (1987);

Blakesley, United States Jurisdiction Over Extraterritorial Crime, 73 Journal of Criminal Law

and Criminology 1109 (1982).

of United States criminal cases, including those involving complex

transnational criminal activity.

Paragraph 4 further reflects the intention of both countries to interpret the principles of this Article broadly. Paragraph 4(a) requires the Requested State to disregard differences in the categorization of the offense in determining whether dual criminality

exists and to overlook mere differences in the terminology used to

define the offense under the laws in each country. Provisions similar to paragraph 4(a) are contained in all recent United States extradition treaties.

Paragraph 4(b) is also included to further prevent technical differences in Paraguayan and United States law from creating obstacles to extradition. Judges in foreign countries are often confused

by the fact that many United States federal statutes require proof

of certain elements (such as use of the mails or interstate transportation) solely to establish jurisdiction in the United States federal

courts. Because there is no similar requirement in their own country’s criminal law, foreign judges occasionally have denied, for a

perceived lack of dual criminality, U.S. requests for the extradition

of fugitives charged under these federal statutes. Therefore, paragraph 4(b) requires that such elements be disregarded in applying

the dual criminality principle. For example, Paraguayan authorities must treat United States mail fraud charges (Title 18, United

States Code, Section 1341) in the same manner as fraud charges

under state laws and view the federal crime of interstate transportation of stolen property (Title 18, United States Code, Section

2314) in the same manner as unlawful possession of stolen property.

By providing that extradition shall be granted for offenses even

when the illegal acts constituting the offense are committed outside

the territory of the Requesting State, Paragraph 5 of this Article

is particularly important in ensuring that the Treaty makes extraditable many significant types of modern transnational criminal activity. United States jurisprudence recognizes jurisdiction in U.S.

courts to prosecute an offense committed outside the United States

if the crime was intended to, or did, have effects in this country,

or if the legislative history of the statute shows clear Congressional

intent to assert extraterritorial jurisdiction.13 As a result, many

federal statutes (including drug laws) criminalize acts committed

wholly outside United States territory. To encompass these crimes,

the United States initially proposed language for the Treaty stating

that extradition shall be granted for an extraditable offense regardless of where the act or acts constituting the offense were committed. The Paraguayan delegation rejected the initial proposal but

was persuaded to accept an alternative formulation. This alternative formulation, set forth in paragraph 5, not only provides for

extradition for offenses committed in whole or in part in the territory of the Requesting State, but also for offenses committed outside the territory of the Requesting State if the offenses have efVerDate 11-MAY-2000 20:51 Oct 04, 2000 Jkt 000000 PO 00000 Frm 00024 Fmt 6659 Sfmt 6602 EXTRAD SFRELA1 PsN: SFRELA1
25

14The formulation contained in this Treaty is almost identical to that contained in Article 2

of the 1997 U.S.-Argentina extradition treaty. 15Paraguayan law recognizes extraterritorial jurisdiction for certain crimes against the interests or integrity of the State or committed by Paraguayan nationals abroad. Paraguayan law

also expressly recognizes jurisdiction over certain international crimes committed abroad, including terrorism and drug trafficking. See, Paraguayan Penal Code, Articles 7–9. 16See, e.g., U.S.-Barbados Extradition Treaty, signed at Bridgetown February 28, 1996, entered into force March 3, 2000, art. 2(5). 17See, generally, Shearer, Extradition in International Law 110–114 (1970); 6 Whiteman, Digest of International Law 871–876 (1968). Our policy of drawing no distinction between nationals of the United States and those of other countries in extradition matters is underscored by

Title 18, United State Code, Section 3196, which authorizes the Secretary of State to extradite

U.S. citizens even pursuant to treaties that permit (but do not require) surrender of citizens,

if other requirements of the Treaty have been met.

fects in the territory of the Requesting State.14 In addition, paragraph 5 provides for the extraditability of extraterritorial offenses

based on other theories of jurisdiction, provided that the laws of

the Requested State would recognize jurisdiction over such an offense under similar circumstances.15 Accordingly, paragraph 5 will

enable the United States to obtain extradition for a broad range of

criminal activity, including narcotics trafficking and terrorism,

which frequently is initiated or orchestrated from abroad.

Paragraph 6 of this Article establishes that when extradition has

been granted for an extraditable offense, it shall also be granted for

other less serious offenses in the request 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. Thus, if Paraguay agrees to extradite to the

United States a fugitive wanted for prosecution on a felony charge,

the United States will also be permitted to obtain extradition for

any misdemeanor offense charged and specified in the request, so

long as the misdemeanor would also be recognized as a criminal offense in Paraguay, and all other requirements of the Treaty (except

the penalty requirement of Article 2(1)) are met. This provision,

which is consistent with recent United States extradition practice,

is generally desirable from the standpoint of both the fugitive and

the prosecuting country. It permits all charges against the fugitive

to be disposed of more quickly and efficiently, by facilitating either

plea agreements, when appropriate, or trials while evidence is still

fresh, and by permitting the possibility of concurrent sentences.

Similar provisions are found in many recent United States extradition treaties.16

ARTICLE III—EXTRADITION OF NATIONALS

Article 3 provides that extradition shall not be refused on the

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

Some countries refuse to extradite their own nationals to other

countries for trial or punishment, or are prohibited from doing so

by their statutes or constitutions. The United States does not deny

extradition on the basis of the offender’s citizenship,17 and Paraguay’s extradition law and its Constitution contain no exception for

Paraguayan nationals. Therefore, in Article 3 of the Treaty, each

State promises not to refuse extradition on the ground that the person sought is a national of the Requested State.

26

18 U.S.-Argentina Extradition Treaty, signed at Buenos Aires June 10, 1997, entered into force

June 15, 2000, art. 3. Compare, U.S.-Bolivia Extradition Treaty, signed at La Paz June 27, 1995,

entered into force November 21, 1996, art. III, which mandates the extradition of nationals in

connection with specified offenses. 19The provision in this article is typical in that it does not attempt to define what constitutes

a political offense (although it does set forth certain offenses that are not political offenses). As

a result, the requested country must determine, based solely on its domestic law, whether a particular extradition request should be denied on this basis. Because the Treaty does not provide

otherwise, the judiciary decides whether the political offense exception will bar extradition in

a particular case. Eain v. Wilkes, 641 F.2d 504, 513 (7th Cir. 1981). 20Done at the Hague December 16, 1970; entered into force October 14, 1971 (22 UST 1641;

TIAS 7192).

This provision is very similar to the provision contained in the

new extradition treaty with Argentina,18 and in other modern U.S.

extradition treaties.

Although Paraguay has no constitutional provision or statute

that expressly prohibits the extradition of Paraguayan nationals,

the 1973 Treaty does not affirmatively obligate either party to extradite its nationals to the other, and Paraguay has never extradited one of its nationals to the United States. Accordingly, the

U.S. delegation made it clear from the outset of these negotiations

that a provision requiring the extradition of nationals was an indispensable part of a modern extradition relationship. The Paraguay

delegation agreed, and it is anticipated that this Article will greatly

improve the ability of the United States to secure the extradition

of Paraguayan nationals.

ARTICLE IV—BASES FOR DENIAL OF EXTRADITION

Paragraph 1 of this Article begins with a general rule that prohibits extradition for political offenses. This principle is commonly

known as the ‘‘political offense exception’’ to extradition.19

Notwithstanding this general rule, paragraph 1 continues with a

description of several categories of offenses that are not to be considered political offenses. The provisions included in paragraph 1

of this Article are common in United States extradition treaties.

First, paragraph 1(a) provides that the political offense exception

shall not apply to an attack or other willful crime against the physical integrity of a Head of State of the United States or Paraguay

or members of their families. This is the so-called ‘‘attentat clause,’’

which first began appearing in extradition treaties in the early

1900s in order to preclude lenient treatment of anarchists and assassins of Heads of State.

Second, paragraph 1(b) states that the political offense exception

shall not apply to offenses for which both Parties have the obligation to extradite or submit the case for decision as to prosecution

pursuant to a multilateral treaty such as the Convention for the

Suppression of Unlawful Seizure of Aircraft (Hijacking).20

Finally, paragraph 1(c) states that the political offense exception

shall not apply to an attempt to commit, a conspiracy or illicit association to commit, or participation in the commission of, the offenses in subparagraphs (a) and (b).

Paragraph 2 states that extradition shall not be granted if the

competent authority of the Requested State determines that the extradition request was politically motivated. Under U.S. law and

practice, a claim that the extradition request was politically motivated, unlike a claim involving the political offense exception, falls

27

21 Article XIX also records Paraguayan practice, under which political motivation is determined by the judiciary. 22 Examples of such offenses are desertion and disobedience of orders. See, Matter of SuarezMason, 694 F.Supp. 676, 703 (N.D.Cal. 1988). 23 Consideration of the Paraguayan statute of limitations in the decision whether to grant a

U.S. request for extradition could hinder the United States’ ability to secure the return of fugitives in some cases. Like many countries throughout the world, Paraguayan lapse of time provisions are tied to the maximum applicable penalty for the offense, and although Paraguayan law

enumerates certain circumstances under which the running of the prescription period is interrupted, it does not, as in U.S. law, toll the statute permanently upon the filing of an indictment

or for as long as the defendant remains a fugitive. Moreover, unlike the United States, all offenses, even murder, are subject to a prescriptive period. Subject to various interruptions and

depending upon the offense, Paraguayan law requires that a person be prosecuted and punished

within 3 to 15 years of the date of the criminal conduct. Even if interrupted, however, in no

event may a person be prosecuted or punished after the time equal to double the prescription

period for the offense has passed. For example, under Paraguayan law, a person wanted for first

degree murder must, in any event, be prosecuted and have served his or her sentence within

30 years of the date of the offense.

outside the scope of judicial review and is exclusively for the executive branch (i.e., the Secretary of State) to consider and decide, as

reflected in Article XIX.21

Paragraph 4 of this Article states that the Requested State may

refuse extradition if the request relates to an offense under military law which would not be an offense under ordinary criminal

law.22 This also is a common provision in United States extradition

treaties.

Most recent U.S. extradition treaties contain a provision addressing the relevance of a statute of limitations. Ideally, in the interest

of limiting technical bases for the denial of extradition, the Treaty

would expressly state that the decision whether to extradite shall

be made without regard to the statute of limitations of either the

Requesting or Requested States, leaving the interpretation of the

Requesting State’s laws involving such procedural obstacles to

prosecution to the appropriate authorities of the Requesting State.

The Paraguay delegation would not agree, however, to a provision

that did not prohibit extradition on the basis of the expiration of

the Requested State’s statute of limitations.23 Accordingly, the U.S.

delegation determined, and the Paraguayan delegation agreed, that

the best solution under those circumstances would be for the Treaty to remain silent on the issue. By omitting any reference to lapse

of time, the U.S. delegation intended that, at least in the context

of extradition proceedings in the United States, the decision whether to extradite would be made without regard to the statute of limitations of either the Requesting or Requested State. While current

extradition practice in Paraguay is to deny extradition in cases

where Paraguay’s statute of limitations would have expired if the

crime had been committed there, the Paraguayan delegation confirmed that absence of language to this effect in the Treaty leaves

open the possibility of greater flexibility on a case-by-case basis. In

any event, the omission is an improvement over the 1973 Treaty,

which expressly provides that extradition shall be refused if the

statute of limitations of either the Requesting or Requested State

has expired.

ARTICLE V—PRIOR PROSECUTION

Paragraph 1 of this Article prohibits extradition if the person

sought has been convicted or acquitted in the Requested State for

28

24The 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 grounds that the person sought has been

convicted or acquitted in a third State. 25See, e.g., U.S.-India Extradition Treaty, signed at Washington June 25, 1997, entered into

force July 21, 1999, article 5(2). 26The term ‘‘offense’’ in this provision means the crime, not ‘‘the act’’ for which extradition

is requested. A single set of facts may result in several different offenses being charged in different jurisdictions, and prosecution for one such offense would not bar extradition for another.

For example, a narcotics trafficker could be charged in Country A with exporting drugs and in

Country B with importing drugs based on one illegal shipment from Country A to Country B.

This interpretation is consistent with the overarching goal of the Treaty to expand, rather than

limit, the scope of extraditable offenses. 27This provision is intended to make clear that extradition shall not be precluded by the mere

fact that the fugitive is being proceeded against in the Requested State since the case is not

yet resolved. If the Requested State is prosecuting the fugitive for the same offense for which

extradition is requested, the Requested State should, pursuant to Article XII of this Treaty,

defer extradition until the domestic proceedings are over. Then the Requested State can decide,

based on the result of the domestic proceedings, whether to deny the extradition request because

of a conviction or acquittal (in accordance with paragraph 1 of this Article), or to grant extradition if the charges were resolved in a manner that does not implicate double jeopardy (such

as dismissal without prejudice). Absent these provisions in Articles V and XII, a Requested

State could charge a fugitive with the same offense for which his or her extradition is sought,

then deny the extradition request due to a pending local prosecution, and finally dismiss its domestic case—allowing the fugitive to escape prosecution altogether. 28See, e.g., U.S.-Argentina Extradition Treaty, signed at Buenos Aires June 10, 1997, entered

into force June 15, 2000, art.6.

the offense for which extradition is requested,24 and its language

is similar to that contained in many U.S. extradition treaties.25

This paragraph 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.26

Paragraph 2 of this Article makes clear that extradition shall not

be precluded by the fact that the Requested State’s authorities

have not instituted criminal proceedings against the person sought

for the same offense for which extradition is requested. Moreover,

paragraph 2 would permit extradition in situations in which the

Requested State instituted such criminal proceedings, but thereafter elected to discontinue the proceedings, provided that the laws

of the Requested State regarding double jeopardy would permit

their future re-institution.27 This provision should enhance the

ability to extradite criminals to the jurisdiction which has the better chance of a successful prosecution.

ARTICLE VI—DEATH PENALTY

Paragraph 1 of this Article permits the Requested State 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 death in the Requested State, unless the Requesting

State provides assurances that the death penalty, if imposed, will

not be carried out. Similar provisions are found in many recent

United States extradition treaties.28

Paragraph 2 provides that when the Requesting State gives assurances in accordance with paragraph 1, the assurances shall be

respected, and the death penalty, if imposed, shall not be carried

out.

The Paraguayan delegation insisted on the inclusion of this Article in the Treaty because Paraguay has abolished the death penalty. However, if Paraguay ever reestablishes the death penalty,

this Article will not prevent the United States from securing extraVerDate 11-MAY-2000 20:51 Oct 04, 2000 Jkt 000000 PO 00000 Frm 00028 Fmt 6659 Sfmt 6602 EXTRAD SFRELA1 PsN: SFRELA1
29

29 As noted in the analysis of Article 1 above, under Paraguayan criminal procedure, a formal

indictment is not normally filed until the latter stages of the prosecution after the accused is

brought before a Paraguayan court. In recognition of those instances in which Paraguay might

seek the extradition of a person for whom an indictment has not yet been filed, the negotiating

delegations agreed to include the phrase, ‘‘if any.’’ 30 United States Courts considering foreign extradition requests in accordance with Title 18,

United States Code, Section 3184, have long required probable cause for international extradition. Ex Parte Bryant, 167 U.S. 104, 105 (1897); Restatement (Third) of the Foreign Relations

Law of the United States § 476, comment b (1987).

dition for a capital offense provided that the offense is subject to

capital punishment in both states.

ARTICLE VII—EXTRADITION PROCEDURES AND REQUIRED

DOCUMENTS

This Article sets forth the appropriate means of transmitting an

extradition request and the required documentation and evidence

to be submitted in support thereof. It is similar to those in corresponding articles in the United States’ most recent extradition

treaties.

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.

Most of the items listed in paragraph 2 enable the authorities of

the Requested State to determine quickly whether extradition is

appropriate under the Treaty. For example, the ‘‘information describing the facts of the offense’’ and ‘‘the text of the law describing

the elements of, and applicable penalty for, the offense for which

extradition is requested’’ enable the Requested State to make a preliminary determination whether the dual criminality provision of

Article 2 of the Treaty appear to be met. Other items, such as the

physical description, identity information, and probable location of

the fugitive, assist the Requested State in locating and apprehending the fugitive, and in proving his or her identity at the extradition hearing.

Paragraph 3 requires that if the fugitive is a person sought for

prosecution the Requesting State must provide: (a) a copy of the

warrant or order of arrest; (b) a copy of the charging document, if

any; 29 and (c) ‘‘information or evidence that provides a reasonable

basis to believe that the person sought committed the offense for

which extradition is requested.’’ The language in paragraph 3(c) is

consistent with fundamental extradition jurisprudence in the

United States, in that it will be interpreted to require that Paraguay provide such information as is necessary to establish ‘‘probable cause.’’ 30 The Paraguayan delegation explained that this provision would comport with Paraguay’s minimum standard of proof

required for pretrial detention, which, similar to the U.S. probable

cause standard, is a reasonableness test that requires a judge to

30

31See, Article 337, Paraguayan Criminal Procedure Code (1997). The Paraguayan delegation

advised that their courts could interpret the term ‘‘committal for trial,’’ sometimes used in U.S.

extradition treaties, to require a much higher standard of proof, akin to a prima facie showing

of guilt, that is required for a formal indictment at the latter stages of the Paraguayan criminal

process. Accordingly, the delegations agreed to include the reasonable basis language to ensure

that the courts of both the United States and Paraguay would apply a similar standard of proof

in extradition cases. 32See, e.g., Spatola v. United States, 741 F.Supp. 362, 374 (E.D.N.Y. 1990), aff’d, 925 F.2d

615 (2nd Cir. 1991); United States v. Clark, 470 F.Supp. 976 (D.Vt. 1979). 33This provision is consistent with requirements imposed by United States law. For the

United States the ‘‘appropriate diplomatic or consular officer would be the ‘‘principal’’ diplomatic

or consular officer of the U.S. Embassy in Asunciθn, Paraguay. See, Title 18, United States

Code, Section 3190. Since Paraguayan law does not, however, require that the diplomatic or consular officer be the ‘‘principal’’ one, the term ‘‘appropriate’’ was included. This will render less

onerous for U.S. officials the task of obtaining authentication or certification of extradition requests to Paraguay.

find sufficient indications or ‘‘indicios suficientes’’ to believe that a

person is responsible for an offense.31

Paragraph 4 describes the information needed, in addition to

that required by paragraph 2, when the person sought has already

been convicted in the Requesting State. Paragraph 4(a) applies if

Paraguay is the Requesting State, and paragraph 4(b) applies if

the United States is the Requesting State. The two subparagraphs

contain essentially the same requirements, but were separated at

the request of the Paraguayan delegation to avoid any confusion

due to differences in Paraguayan and U.S. criminal procedure. For

example, the difference in wording between 4(a)(i) and 4(b)(i) reflects the fact that in Paraguay a person is found guilty and sentenced at the same proceeding, from which such documentation always issues. In the United States, on the other hand, a person may

be found guilty without having yet been sentenced.

Both subparagraphs (a) and (b) make clear that once a conviction

has been obtained, no showing of probable cause is required. In essence, the fact of conviction speaks for itself, a position taken in

United States court decisions, even without a specific treaty provision.32

Finally, both subparagraphs (a) and (b) require that the Requesting State provide information regarding the extent to which the

sentence, if imposed, has been carried out. This information is relevant to the requirement in Article II(2) that the person sought

have more than six months sentence left to be served.

ARTICLE VIII—TRANSLATION

This Article is a standard treaty provision which requires that all

documents submitted in support of an extradition request must be

translated into the language of the Requested State. Thus, requests

by Paraguay to the United States will be translated into English

and requests by the United States to Paraguay will be translated

into Spanish.

ARTICLE IX—ADMISSIBILITY OF DOCUMENTS

This Article governs the certification and authentication procedures for documents accompanying an extradition request. It states

that the documents shall be received and admitted as evidence in

extradition proceedings if certified or authenticated by the appropriate accredited diplomatic or consular officer of the Requested

State resident in the Requesting State.33 They are also to be admitVerDate 11-MAY-2000 20:51 Oct 04, 2000 Jkt 000000 PO 00000 Frm 00030 Fmt 6659 Sfmt 6602 EXTRAD SFRELA1 PsN: SFRELA1
31

ted if certified or authenticated in any other manner accepted by

the laws in the Requested State. For example, there may be information in the Requested State itself that is relevant and probative

to extradition, and the Requested State is free under subsection (c)

to utilize that information if the information satisfies the ordinary

rules of evidence in that state. This insures that evidence that is

acceptable under the evidentiary rules of the Requested State may

be used in extradition proceedings even if it is not authenticated

pursuant to other provisions of the treaty. This provision should

also insure that relevant evidence, which would normally satisfy

the evidentiary rules of the requested country, is not excluded at

the extradition hearing because of an inadvertent error or omission

in the authentication process.

ARTICLE X—PROVISIONAL ARREST

This Article describes the process by which a person may be arrested and detained in the Requested State while the extradition

documents required by Article VII are being prepared and translated in the Requesting State, a process which normally may take

a number of weeks. Provisional arrest serves the interests of justice

by allowing for the apprehension of fugitives who pose a risk of

flight or danger to the community. Similar articles are included in

all modern U.S. extradition treaties.

Paragraph 1 provides that provisional arrest is reserved for cases

of urgency pending presentation of the extradition request and that

a provisional arrest request shall be transmitted by any written

means either through the diplomatic channel or directly between

the United States Department of Justice and the Paraguayan Ministry of Foreign Relations.

Paragraph 2 sets forth the information that the Requesting State

must provide in support of a provisional arrest request. This paragraph makes it clear that the State requesting provisional arrest

need not submit copies of the arrest warrant, judgment of conviction, or other documentary evidence which would be necessary in

the full extradition request.

Paragraph 3 requires that the Requesting State must be promptly notified of the disposition of the provisional arrest request.

Paragraph 4 provides that a fugitive who has been provisionally

arrested may be released from custody if the Requested State does

not receive the fully documented request for extradition within

sixty (60) days from the date of the fugitive’s provisional arrest.

Finally, paragraph 5 makes clear that a person released under

paragraph 4 may be taken into custody again and the extradition

proceedings recommenced if the formal request is received at a

later date.

ARTICLE XI—DECISION AND SURRENDER

Paragraph 1 of this Article requires that the Requested State

promptly notify the Requesting State of its decision on the extradition request.

Paragraph 2 requires that, if extradition is denied in whole or in

part, the Requested State must provide a reasoned explanation for

32

34This provision is intended to comport with U.S. statutory requirements and judicial interpretations thereof. See, Title 18, United States Code, Section 3188. See, also, Jimenez v. United

States District Court, 84 S.Ct. 14 (1963) (decided by Goldberg, J., in chambers); Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713 F.2d 105 (5th Cir. 1983); Barrett v. United

States, 590 F.2d 624 (6th Cir. 1978); and McElvy v. Civiletti, 523 F.Supp. 42, 47 (S.D.Fla. 1981).

Paraguayan law is silent on the time before which an extraditee must be removed from Paraguayan territory.

the denial and, upon request, copies of the pertinent judicial decisions in the case.

Paragraph 3 provides that if extradition is granted, the Parties

shall agree on the date and place of the extraditee’s surrender.

Paragraph 4, states, however, that if the extraditee is not removed

from the territory of the Requested State within two months from

the date of the judicial decision of extraditability (or, in the event

that the extraditee initiates a legal challenge to such decision, two

months from the date of the conclusion of the legal challenge) then

the Requesting State risks the release of the extraditee from custody and subsequent refusal of extradition for the same offense.34

ARTICLE XII—TEMPORARY AND DEFERRED SURRENDERS

Occasionally, a person who is the subject of a foreign extradition

request may, at the same time, be facing prosecution on domestic

charges or serving a sentence in the Requested State. Article XII

provides a means for the Requested State to temporarily surrender

the person sought to the Requesting State for the purpose of prosecution or, in the alternative, to defer extradition in such cases

until the conclusion of the Requested State’s proceedings against

the person sought and the service of any sentence that may be imposed in connection therewith. Similar provisions appear in recent

United States extradition treaties.

Paragraph 1 of Article XII provides for the temporary surrender

of a person wanted for prosecution in the Requesting State who is

being prosecuted or is serving a sentence in the Requested State.

A person temporarily transferred pursuant to this provision 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.

Notwithstanding the above, temporary surrender may not always

be feasible, especially if it would significantly interfere with or impede the ongoing criminal proceedings in the Requested State. Accordingly, paragraph 2 of this Article provides that the Requested

State may opt to postpone the surrender of a person who is being

prosecuted or serving a sentence in the Requested State until the

conclusion of the prosecution or the completion of the service of any

33

35 Under U.S. law and practice, the Secretary of State would make the decision to temporarily

surrender the fugitive or to defer the surrender. Koskotas v. Roche, 740 F.Supp. 904, 920

(D.Mass. 1990), aff’d, 931 F.2d 169 (1st Cir. 1991). 36This provision was included at the insistence of and for the sole benefit of Paraguay, whose

negotiating delegation wished to ensure that the postponement of the surrender of Paraguayan

fugitives by the United States would not jeopardize Paraguay’s ability to prosecute those fugitives upon their eventual surrender to Paraguay. Under U.S. law, in contrast, the statute of limitations is suspended upon the filing of an indictment or other charging document. See, e.g., Title

18, United States Code, section 3282. 37 Under U.S. law, the appropriate authority within the executive branch is the Secretary of

State. Cheng Na-Yuet v. Hueston, 734 F.Supp. 988 (S.D.Fla. 1990), aff’d, 932 F.2d 977 (11th Cir.

1991).

sentence imposed.35 Paragraph 3 provides that, if surrender is

postponed, such postponement shall suspend the running of the

statute of limitations in the Requesting State for the offenses for

which extradition is sought.36

ARTICLE XIII—MULTIPLE REQUESTS

From time to time, a State will receive concurrent requests from

two or more other States for the extradition of the same person,

and thus the Requested State must decide to which of the Requesting States to surrender the person. In such situations where one

of the Parties to this Treaty, the United States or Paraguay, is the

Requested State, and the other Party to this Treaty is one of the

Requesting States, Article XIII sets forth some of the factors that

the Requested State shall consider in determining to which country

the person should be surrendered.

This Article makes clear that the Requested State is not limited

to the factors enumerated therein but should consider all relevant

factors in weighing its decision to which State to surrender the person sought.

For the United States, the Executive Branch will make the decision to which country the person should be surrendered in accordance with this Article and Article XIX.37 The Paraguayan delegation advised that, for Paraguay, the competent authority would be

the judicial branch.

ARTICLE XIV—SEIZURE AND SURRENDER OF PROPERTY

At the time of their arrest in the Requested State for the purpose

of extradition, persons are often in possession of property which

may represent the proceeds, instrumentalities, or other evidence of

the offenses of which they are accused in the Requesting State. The

Requesting State has an interest in having this property surrendered with the fugitive upon his extradition, so that the property

may be used in the prosecution of the person sought, returned to

the victims, or otherwise disposed of appropriately.

Accordingly, paragraph 1 of this Article provides that to the extent permitted by the law in the Requested State, all articles, documents, and evidence connected with the offense for which extradition is granted may be seized and surrendered to the Requesting

State. Paragraph 1 further provides that the surrender of such

property may occur even if extradition cannot be effected due to the

death, disappearance, or escape of the person sought.

Notwithstanding the above, paragraph 2 provides that the Requested State may condition the surrender of the property upon assurances from the Requesting State that the property will be reVerDate 11-MAY-2000 20:51 Oct 04, 2000 Jkt 000000 PO 00000 Frm 00033 Fmt 6659 Sfmt 6602 EXTRAD SFRELA1 PsN: SFRELA1
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38 Allowing the Requesting State to proceed on a ‘‘lesser included or differently denominated

offense’’ provides both the prosecution and defense with a measure of post-extradition flexibility

to resolve the charges. For example, it allows the defendant to plead to or be convicted at trial

of a less serious offense, or it allows the prosecution to supersede the original charges with different charges that, because of a change in circumstances may be more readily provable, so long

as they are based on the same facts as the offenses for which extradition was granted. 39 As provided in Article XIX, in the United States, the Secretary of State has the authority

to consent. See, Berenguer v. Vance, 473 F.Supp. 1195, 1199 (D.D.C. 1979). 40This 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. Consistent with the rule of specialty under international law, the prior consent of the United States would also be required if Paraguay were

to seek to extradite to an international tribunal, including the International Criminal Court

agreed to in Rome on July 17, 1998, a fugitive who had been previously extradited from the

United States to Paraguay. 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.

turned as soon as practicable and without cost to the Requested

State. Alternatively, the Requested State may defer the surrender

of the property if it is needed as evidence in that State.

Finally, paragraph 3 provides that the obligation to surrender

property under this provision shall be subject to due respect for the

rights of third parties in such property.

ARTICLE XV—RULE OF SPECIALITY AND EXTRADITION TO THIRD

STATES

This Article covers the principle known as the rule of speciality

(or ‘‘specialty’’), which is a standard aspect of U.S. and international extradition practice. Generally, the rule of specialty prohibits the prosecution of an extraditee for offenses other than those

for which extradition was 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 subterfuge

to obtain custody of a person for trial or service of sentence on different charges that may not be extraditable under the Treaty or

properly documented at the time that the request is granted. A variety of exceptions to the general rule have developed over the

years, and this Article sets forth the current formulation of the rule

and its established exceptions.

Paragraph 1 of this Article provides that a person extradited

under the Treaty may not be detained, tried, or punished in the

Requesting State except for: (1) an offense for which extradition

was granted, or a lesser included or differently denominated offense, provided that it is based on the same facts on which extradition was granted; 38 (2) an offense committed after extradition; or

(3) any offense for which the competent authority of the Requested

State gives consent.39 Paragraph 1 also provides that, in cases

where such consent is sought, the Requested State may require the

submission of the supporting documentation called for in Article

VII and the State seeking the consent may detain the person for

ninety days, or such longer period of time as the Requested State

may authorize, while the request for consent is being processed.

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.40

Finally, paragraph 3 permits the detention, trial, or punishment

of an extraditee for offenses other than those for which extradition

35

41The policy behind paragraph 3 is that an extraditee should not be allowed to benefit from

the rule of specialty indefinitely and remain in or return to the Requesting State with impunity.

Under this paragraph, if the extraditee chooses to return to or remain in the Requesting State,

he or she effectively relinquishes the benefits of the rule. See, e.g., United States v. Rauscher, 119 U.S. 407, 430 (1886); 112 ALR Fed. 473, § 28; 6 M. Whiteman, Digest of International Law, Ch. XVI, § 46 at 1100, 1105–6; and Restatement (Third) of Foreign Relations Law of the United

States, § 477, Comment e. 42This ‘‘waiver of extradition’’ benefits fugitives in that it allows them to return forthwith to

resolve the charges against them in the Requesting State and to spend as little time as possible

in custody in the Requested State. It also saves the judicial and law enforcement authorities

of the Requested State the significant expense associated with prolonged extradition proceedings. 43 A similar provision is in all recent U.S. extradition treaties.

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 twenty days of being free to do so.41

ARTICLE XVI—SIMPLIFIED EXTRADITION PROCEDURES

Persons sought for extradition frequently elect to expedite their

return to the Requesting State by consenting to their surrender

and waiving their right to extradition proceedings in the Requested

State.42 This Article provides that when a fugitive consents to surrender to the Requesting State, the person may be returned to the

Requesting State as expeditiously as possible without further proceedings. Such consent must be given before a judicial authority of

the Requested State. The Parties anticipate that in such cases

there would be no need for the formal documents described in Article VII, or further judicial or administrative proceedings of any

kind. Furthermore, in the case where the person sought elects to

return voluntarily to the Requesting State under this Article, the

process would not be deemed an ‘‘extradition,’’ and therefore the

rule of specialty in Article XV would not apply.

ARTICLE XVII—TRANSIT

At times, law enforcement authorities escorting a surrendered

person to the State where he 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 another State. This Article governs 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.43

Paragraph 1 of this Article gives each Party the power to authorize transit through its territory of persons being surrendered to the

other Party by a third country. Requests for transit under this Article are to be transmitted through the diplomatic channel or directly between the United States Department of Justice and the

Paraguayan Ministry of Foreign Relations. Transit requests must

contain a description of the person being transported and a brief

statement of the facts of the case upon which the extradition is

based. Paragraph 1 also provides that the person in transit may be

detained in custody during the period of transit.

Paragraph 2 states that no authorization is needed if air transportation is being used and no landing is scheduled in the territory

of the other Party. If an unscheduled landing occurs in the terriVerDate 11-MAY-2000 20:51 Oct 04, 2000 Jkt 000000 PO 00000 Frm 00035 Fmt 6659 Sfmt 6602 EXTRAD SFRELA1 PsN: SFRELA1
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44This also is a standard provision in all modern U.S. extradition treaties.

tory of a Party, that Party may require a request as provided in

paragraph 1 of this Article. If such request is required, it shall be

provided within ninety-six hours of the unscheduled landing, and

the person in transit may be detained until the transit is effected.

Paragraph 3 makes clear that a request for transit may be denied if the transit would prejudice the essential interests of the

Party that receives such a request. The U.S. negotiating delegation

considers this paragraph to be superfluous because the authorization of the transit of an extraditee under this Article already is

clearly discretionary, and, accordingly, may be denied by the Party

receiving a transit request for any reason such Party deems appropriate. This paragraph was included, however, at the insistence of

the Paraguayan delegation.

ARTICLE XVIII—REPRESENTATION AND EXPENSES

Paragraph 1 of this Article provides that the Requested State

shall advise, assist, and, to the fullest extent permitted by its law,

represent the Requesting State in extradition proceedings in the

Requested State. In accordance with established practice, the Department of Justice will represent Paraguay in all aspects of extradition proceedings in the United States. Likewise, Paraguayan

prosecutors (fiscales) will represent the interests of the United

States in such proceedings in Paraguay. Specifically, in a typical

case, a fiscal will issue an opinion to the Paraguayan extradition

court with a legal analysis of the case and a recommendation that

the U.S. request be granted. In cases in which the extradition court

denies the U.S. request, the fiscal can then appeal that decision to

a higher court.

Paragraph 2 provides that the Requesting State will bear expenses of extradition relating to the translation of documents and

the transportation of a fugitive to the Requesting State. The Requested State shall pay all other expenses incurred in that State

by reason of the extradition proceedings. This is a standard provision in U.S. extradition treaties.

Paragraph 3 provides that neither State shall make any pecuniary claim against the other in connection with extradition proceedings, including arrest, detention, custody, examination, or surrender of the fugitive. This includes any claim by or on behalf of

the fugitive for damages, reimbursement, or legal fees, or other expenses occasioned by the execution of the extradition request.44

ARTICLE XIX—COMPETENT AUTHORITY

The term ‘‘competent authority’’ is used in Articles IV(2), XIII,

and XV(1)(c) of the Treaty in connection with the Requested State’s

decisions concerning: (1) whether an extradition request is politically motivated; (2) to which State to surrender a fugitive in the

face of concurrent extradition requests from two or more States;

and (3) whether to consent to a surrendered person’s subsequent

prosecution in the Requesting State for offenses other than those

for which extradition was granted. Article XIX addresses the fact

that during the course of negotiations it became clear that, under

37

the respective extradition practices in the United States and Paraguay, a different governmental authority would make such decisions for the United States than would for Paraguay.

Under United States law and practice, it is well-established that

the executive branch is the competent authority for making such

decisions. On the other hand, under Paraguayan practice, such decisions traditionally have been made by the judiciary. Accordingly,

this Article simply states that, for the United States, the term

‘‘competent authority’’, as used in the Treaty, means the appropriate authorities of the executive branch, and the same term, for

Paraguay, means its appropriate judicial authorities. Because this

Article is entirely consistent with current practices in the United

States and Paraguay, it neither expands nor diminishes the powers

of the executive or judiciary in either country beyond that which

is already recognized.

ARTICLE XX—CONSULTATION

This Article provides that the Parties may consult with each

other in connection with the processing of individual extradition

cases and in furtherance of maintaining and improving procedures

for the implementation of the Treaty. This is a standard provision

in modern U.S. extradition treaties and serves the interests of the

United States in promoting close cooperation with foreign counterparts on extradition issues.

ARTICLE XXI—APPLICATION

This Article, like its counterparts in many of the other United

States extradition treaties negotiated in the past two decades, expressly makes the Treaty retroactive to cover offenses that occurred

before, as well as after, it enters into force so long as the conduct

constituted an offense under the law in both parties at the time it

occurred.

ARTICLE XXII—RATIFICATION AND ENTRY INTO FORCE

This Article contains standard treaty provisions regarding the

ratification and entry into force of the Treaty. Paragraph 1 provides that the Treaty shall be subject to ratification, and that instruments of ratification shall be exchanged at Asunciθn as soon as

possible. Paragraph 2 provides that the Treaty will enter into force

upon the exchange of the instruments of ratification. Paragraph 3

of this Article provides that the 1973 treaty shall cease to be in effect upon entry into force of this Treaty. Nevertheless, the 1973

treaty shall continue to apply to extradition proceedings in which

extradition documents have already been submitted to the courts

of the Requested State when the new Treaty enters into force.

Paragraph 3 contains an additional caveat, however, that Article

XVI of this Treaty (Simplified Extradition Procedures) shall apply

to such proceedings.

ARTICLE XXIII—TERMINATION

The final Article of the Treaty contains standard treaty language

for the termination of the Treaty by either Party through written

38

1Treaty Relating to the Reciprocal Extradition of Criminals, signed at Washington December

18, 1947, entered into force April 30, 1951 (2 UST 884, TIAS 2243, 148 UNTS 85). 2 Extradition Act, Law No. 67 of 1962 hereinafter ‘‘Extradition Act 1962’’). The key sections

of the Extradition Act 1962 which are germane to the interpretation and implementation of the

Treaty are discussed in more detail in this Technical Analysis. The South African delegation

said that under Article 231 of South Africa’s Constitution, a treaty such as this as normally

brought into force has the force and effect of law in South Africa unless the treaty is inconsistent with the Constitution or an Act of Parliament. Thus, the terms of this Treaty would be

overridden by any inconsistent internal law, apparently including pre-existing law, unless the

treaty is enacted into law in national legislation. (Such enactment would be the functional

equivalent of implementing legislation identical to the Treaty’s terms). This is important because South Africa’s law does contain some provisions that are inconsistent with the Treaty. For

instance, Section 11(b) of the Extradition Act 1962 gives the Minister of Justice broad discretion

to deny extradition if ‘‘ * * * he or she is satisfied that by reason of the trivial nature of the

offence or by reason of the surrender not being in the interests of justice or that for any other

reason it would be unjust or unreasonable or too severe a punishment to surrender the person

concerned * * * .’’ The U.S. delegation made it clear that the United States would consider it

a breach of the Treaty if South Africa were to rely on this statute to deny extradition on grounds

that are not contained in the Treaty. The South African delegation assured us that South Africa

takes its treaty obligations seriously, and agreed to consider the U.S. recommendation that this

Treaty be brought into force by enactment into law to ensure that the Treaty would supersede

any earlier, inconsistent legislation.

notice to the other Party, and states that termination shall become

effective six months after the date of such notice.

Technical Analysis of the Treaty Between the United States

of America and the Republic of South Africa on Extradition

On September 16, 1999, the United States signed an Extradition

Treaty Between the Government of the United States of America

and the Government of the Republic of South Africa (‘‘the Treaty’’)

that is intended to replace the outdated treaty currently in force

between the two countries 1 with a modern agreement on the extradition of fugitives. The new extradition treaty is the second modern

extradition treaty that the United States has negotiated with a

sub-Saharan African country in the past fifty years, and it 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.

It is anticipated that the Treaty will be implemented in the

United States pursuant to the procedural framework provided by

Title 18, United States Code, Section 3184 et seq. No new implementing legislation will be needed for the United States. South Africa has its own internal legislation on extradition 2 which will

apply to United States’ requests under the treaty.

The following technical analysis of the Treaty was prepared by

the Office of International Affairs, United States Department of

Justice, and the Office of the Legal Adviser, United States Department of State, based upon the negotiating history. The technical

analysis includes a discussion of U.S. law and relevant practice as

of the date of its preparation, which are, of course, subject to

change. Foreign law discussions reflect the current state of that

law, to the best of the drafters’ knowledge.

ARTICLE 1—OBLIGATION TO EXTRADITE

The first article of the Treaty, like the first article in every recent United States extradition treaty, formally obligates each Party

to extradite to the other persons sought for prosecution or convicted

of an extraditable offense, subject to the provisions of the remainVerDate 11-MAY-2000 20:51 Oct 04, 2000 Jkt 000000 PO 00000 Frm 00038 Fmt 6659 Sfmt 6602 EXTRAD SFRELA1 PsN: SFRELA1
39

3 Act No. 17 of 1956; Hosten Edwards Nathan Rosman, Introduction to South African Law and

Legal Theory 712–713 (1977).

der of the Treaty. The article refers to charges ‘‘in’’ the Requesting

State rather than ‘‘of’’ the Requesting State, since the obligation to

extradite, in cases arising from the United States, would include

state and local prosecutions as well as federal cases.

ARTICLE 2—EXTRADITABLE OFFENSES

This article contains the basic guidelines for determining what

offenses are extraditable. The Treaty, like most recent United

States extradition treaties, does not list the offenses for which extradition may be granted. Instead, paragraph 1 of the article makes

an offense extraditable if it is punishable under the laws of both

countries by deprivation of liberty (i.e., imprisonment, or other

form of detention), for a period of at least one year, or by a more

severe penalty such as capital punishment. Defining extraditable

offenses in terms of ‘‘dual criminality’’ rather than attempting to

list each extraditable crime obviates the need to renegotiate the

Treaty or supplement it if both countries pass laws dealing with a

new type of criminal activity, or if the list inadvertently fails to

cover a criminal activity punishable in both countries.

During the negotiations, the United States delegation received

assurances from South Africa that extradition would be possible for

such high priority offenses as drug trafficking (including operating

a continuing criminal enterprise, in violation of Title 21, United

States Code, Section 848); offenses under the racketeering statutes

(Title 18, United States Code, Section 1961–1968); money laundering; terrorism; crimes against environmental protection laws;

and many antitrust violations.

Paragraph 2 follows the practice of recent extradition treaties in

providing that extradition should also be granted for attempting or

conspiring to commit, aiding, abetting, inducing, counseling or procuring the commission of, or otherwise being an accessory before or

after the fact to, an extraditable offense. Conspiracy charges are

frequently used in United States criminal cases, particularly those

involving complex transnational criminal activity, so it is especially

important that the treaty be clear on this point. The South African

delegation indicated that there is a statutory provision for conspiracy in South African law, similar to Title 18, United States

Code, Section 371. 3 In any event, paragraph 2 creates an exception

to the ‘‘dual criminality’’ rule of paragraph 1 by making conspiracy

an extraditable crime if the offense which was the object of the conspiracy is an extraditable offense.

Paragraph 3 reflects the intention of both countries to interpret

the principles of this article broadly. Judges in foreign countries

are often confused by the fact that many U.S. federal statutes require proof of certain elements (such as use of the mails or interstate transportation) solely to establish jurisdiction in the U.S. federal courts. Because these foreign judges know of no similar requirement in their own criminal law, they occasionally have denied

the extradition of fugitives sought by the United States on federal

charges on this basis. This paragraph requires that such elements

be disregarded in applying the dual criminality principle. For exVerDate 11-MAY-2000 20:51 Oct 04, 2000 Jkt 000000 PO 00000 Frm 00039 Fmt 6659 Sfmt 6602 EXTRAD SFRELA1 PsN: SFRELA1
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4 Restatement (Third) of the Foreign Relations Law of the United States, Section 402 (1987);

Blakesley, ‘‘United States Jurisdiction over Extraterritorial Crime,’’ 73 Journal of Criminal Law

and Criminology 1109 (1982). 5See, Stanbrook and Stanbrook, Extradition: The Law and Practice, 25–26 (1979). 6See, e.g., U.S.-Austria Extradition Treaty, signed at Washington, January 8, 1998, entered

into force January 1, 2000, art. 2(4)(b).

ample, South African authorities must treat U.S. mail fraud

charges (Title 18, United States Code, Section 1341) in the same

manner as fraud charges under state laws, and view the federal

crime of interstate transportation of stolen property (Title 18,

United States Code, Section 2314) in the same manner as unlawful

possession of stolen property under state law. This paragraph also

requires the Requested State to disregard differences in the categorization of the offense in determining whether dual criminality

exists, and to overlook mere differences in the terminology used to

define the offense under the laws of each country. A similar provision is contained in all recent United States extradition treaties.

Paragraph 4 deals with the fact that many federal crimes involve

acts committed wholly outside United States territory. Our jurisprudence recognizes jurisdiction in U.S. courts to prosecute offenses

committed outside of the United States if the crime was intended

to, or did, have effects in this country, or if the legislative history

of the statute shows clear Congressional intent to assert such jurisdiction. 4 In South Africa, however, the Government’s ability to

prosecute extraterritorial offenses is much more limited. Article

2(4) reflects South Africa’s agreement to recognize United States

jurisdiction to prosecute offenses committed outside of the United

States if South Africa’s law would permit it to prosecute similar offenses committed outside its territory in similar circumstances. If

the Requested State’s laws do not provide for such jurisdiction, the

final sentence of the paragraph provides the executive authority of

the Requested State with discretion to grant extradition.

Paragraph 5 states that extradition shall be granted for persons

convicted of but not yet sentenced for extraditable offenses, and of

persons convicted of and sentenced for extraditable offenses. The

negotiators intended to make it clear that the Treaty, like other

modern extradition treaties, applies to persons who have been adjudged guilty but fled prior to sentencing as well as to those who

have fled after sentencing but before completing service of their

sentence. 5

Paragraph 6 states that when extradition has been sought for an

offense against a law relating to taxation, customs duties, exchange

control, or other revenue matters, it shall not be refused on the

ground that the Requested State does not have a tax, customs

duty, or exchange regulation of the same kind as that in the Requesting State. Similar to paragraphs 3(a) and 3(b) of this article,

this provision clarifies that revenue-related offenses, which are still

subject to the general dual criminality requirement of this article,

need not be based on identical regulations in order to be extraditable. This provision is inspired by Article 2(3) of the United Nations Model Extradition Treaty, and memorializes the fact that

South Africa and the U.S. both extradite for tax and fiscal offenses.

Similar provisions appear in other recent U.S. extradition treaties. 6

41

7See, e.g., U.S.-Barbados Extradition Treaty, signed at Bridgetown February 28, 1996, entered

into force March 3, 2000, art. 2(5). 8See, generally Shearer, Extradition in International Law 110–114 (1970); 6 Whiteman, Digest

of International Law 871–876 (1968). The U.S. Government’s policy of drawing no distinction

between nationals of the United States and those of other countries in extradition matters is

underscored by Title 18, United States Code, Section 3196, which authorizes the Secretary of

State to extradite U.S. citizens even pursuant to treaties that permit (but do not require) surrender of citizens, if other requirements of the Treaty have been met. 9 A similar provision appears in other recent U.S. treaties, many of which state that extradition shall not be refused ‘‘on the ground that the person sought is a national of the Requested

State.’’ The South African treaty has slightly different wording intended to convey the idea that

nothing with respect to the nationality of the person sought, regardless of the country involved,

can be used to deny extradition.

Paragraph 7 states that when extradition has been granted for

an extraditable offense it shall also be granted for any other offense

for which all of the requirements for extradition have been met except for the requirement that the offense be punishable by at least

one year of imprisonment. For example, if South Africa agrees to

extradite to the United States a fugitive wanted for prosecution on

a felony charge, the United States will also be permitted to obtain

extradition for any misdemeanor offenses with which the fugitive

has been charged, as long as those misdemeanors would also be

recognized as criminal offenses in South Africa and other requirements for extradition are met. This practice is generally desirable

from the standpoint of both the fugitive and the prosecuting country in that it permits all charges against the fugitive to be disposed

of more quickly, thereby facilitating trials while evidence is still

fresh and permitting the possibility of concurrent sentences. Similar provisions are found in other recent extradition treaties. 7

ARTICLE 3—NATIONALITY

Some countries refuse to extradite their own nationals to other

countries for trial or punishment, or are prohibited from doing so

by their statutes or constitution. The United States does not deny

extradition on the basis of the offender’s citizenship, 8 and South

Africa’s extradition law contains no exception for South African nationals. Therefore, in Article 3 of the Treaty, each State promises

that extradition shall not be refused on the ground of the nationality of the person sought. 9

ARTICLE 4—POLITICAL AND MILITARY OFFENSES

Paragraph 1 of this article prohibits extradition for a political offense. This is a standard provision in U.S. extradition treaties.

Paragraph 2 describes five categories of offenses which shall not

be considered to be political offenses.

First, the political offense exception does not apply where there

is a murder or other violent crime against the person of a Head of

State or Deputy Head of State of the Requesting or Requested

State, or a member of such person’s family. This clause covers a

Deputy Head of State because in South Africa the Deputy Head of

State acts as Head of State in the Head of State’s absence or incapacity.

Second, the political offense exception does not apply to offenses

which are included in a multilateral treaty, convention, or international agreement which requires the parties to either extradite

42

10Similar exceptions are found in our extradition treaties with countries including the United

Kingdom and Hungary. See, Supplemental Treaty Concerning the Extradition Treaty Between

the United States and the United Kingdom, signed at Washington June 25, 1985, entered into

force December 23, 1986, art. 1; U.S.-Hungary Extradition Treaty, signed at Budapest December

1, 1994, entered into force March 18, 1997, art. 4. 11There are similar provisions in a number of U.S. extradition treaties. See, e.g., U.S.-Jamaica

Extradition Treaty, signed at Kingston June 14, 1983, entered into force September 24, 1984,

art. III(3). 12Section 11(b)(iv), Extradition Act 1962. 13See, Eain v. Wilkes, 641 F.2d 504, 513–518 (7th Cir.) cert. denied 454 U.S. 894 (1981);

Koskotos v. Roche, 744 F. Supp. 904 (D. Mass. 1990), aff’d 931 F. 2d 169 (1st Cir. 1991). 14 An example of such a crime is desertion. Matter of Extradition of Suarez-Mason, 694 F.

Supp. 676, 702–703 (N.D. Cal. 1988). Most recent U.S. extradition treaties permit extradition

to be denied for military offenses of this kind, but do not require denial. South Africa insisted

that its practice is to treat denial of extradition as mandatory in these cases. Cf. Art. 3(c),

United Nations Model Extradition Treaty Article 3(c), 30 I.L.M. 1407 (1991) 15See, e.g., U.S.-Austria Extradition Treaty, signed at Washington January 8, 1998, entered

into force January 1, 2000, art. 8.

the person sought or submit the matter for decision as to prosecution including, for instance, the Convention for the Suppression of

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

1970 (entered into force for South Africa 29 June 1972), 22 UST

1641, TIAS 7192.

The third and fourth categories of exceptions establish that the

political offense exception does not apply to any offense that constitutes murder, or an offense involving kidnapping, abduction, or

any form of unlawful detention, including the taking of a hostage. 10

Finally, the political offense exception does not apply to conspiring or attempting to commit, or for aiding, abetting, inducing,

counseling or procuring the commission of, or being an accessory

before or after the fact to, the foregoing offenses.

Paragraph 3 provides that notwithstanding Paragraph 2, extradition shall not be granted if the executive authority of the Requested State determines that there are substantial grounds for believing that the request was made for the purpose of prosecuting

or punishing the person sought on account of that person’s gender,

race, religion, nationality, or political opinion. 11 This paragraph is

based on South African law, 12 and is consistent with the longstanding law and practice of the United States, under which the

Secretary of State alone has the discretion to determine whether

an extradition request is based on improper political motivation. 13

The final paragraph of the article states that the executive authority of the Requested State shall refuse extradition if the request involves offenses under military law which would not be offenses under ordinary criminal law. 14

ARTICLE 5—CAPITAL PUNISHMENT

Paragraph 1 permits the Requested State 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

death in the Requested State, unless the Requesting State provides

assurances that the death penalty will not be imposed or, if imposed, will not be carried out. Similar provisions are found in many

recent United States extradition treaties. 15

Paragraph 2 provides that when the Requesting State gives assurances in accordance with paragraph 1, the assurances shall be

respected, and the death penalty, if imposed, shall not be carried

out.

43

16See, e.g., U.S.-Argentina Extradition Treaty, signed at Buenos Aires June 10, 1997, entered

into force June 15, 2000, art. 5(1). 17 Under U.S. law and practice, the Secretary of State would make this decision. Koskotas v.

Roche, 740 F. Supp. 904, 920 (D. Mass. 1990), aff’d 931 F.2d 169 (1st Cir. 1991).

The South African delegation insisted on this provision because

South Africa has abolished the death penalty. Its extradition law

is silent on the topic, but the delegation felt that South African

courts might conclude that it is unconstitutional to extradite a person to the United States to face capital punishment when such

punishment could not lawfully be imposed in South Africa.

ARTICLE 6—NON BIS IN IDEM

The first paragraph of Article 6 prohibits extradition if the offender has been convicted or acquitted in the Requested State for

the offense for which extradition is requested, and is similar to language present in many United States extradition treaties. 16 The

delegations agreed that this provision applies only if the offender

is convicted or acquitted in the Requested State of exactly the same

crime he is charged with in the Requesting State. It would not be

enough that the same facts were involved. Thus, if an offender is

accused in one State of illegally smuggling narcotics into the country, and is charged in the other State of unlawfully exporting the

same shipment of drugs out of that State, an acquittal or conviction

in either of the States would not insulate the person from extradition to the other, since different crimes are involved.

Paragraph 2 makes it clear that neither State can refuse to extradite an offender on the ground that the Requested State’s authorities declined to prosecute the offender, or instituted criminal

proceedings against the offender and thereafter elected to discontinue the proceedings, provided that the discontinuance does

not constitute an acquittal, or the authorities merely decided to investigate. This provision was included because the decision of the

Requested State to forego prosecution, or to drop charges already

filed, may have resulted, for example, from failure to obtain sufficient evidence or witnesses available for trial, and the Requesting

State may not suffer from the same impediments. This provision

should enhance the ability to extradite to the jurisdiction which

has the better chance of a successful prosecution.

ARTICLE 7—TEMPORARY AND DEFERRED SURRENDER

Occasionally, a person sought for extradition may be already facing prosecution or serving a sentence on other charges in the Requested State. Article 7 provides a means for the Requested State

to temporarily surrender or defer extradition in such circumstances

until the conclusion of the proceedings against the person sought

and the service of any punishment that may have been imposed.

Similar provisions appear in our recent extradition treaties with

countries such as Austria, Barbados and India.

Paragraph 1 provides that the executive authority of the Requested State may postpone the surrender of a person who is serving a sentence in the Requested State until the full execution of the

punishment which has been imposed. 17 The provision’s wording

makes it clear that the Requested State may postpone the initiVerDate 11-MAY-2000 20:51 Oct 04, 2000 Jkt 000000 PO 00000 Frm 00043 Fmt 6659 Sfmt 6602 EXTRAD SFRELA1 PsN: SFRELA1
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18Thus, the treaty provides more flexibility than Article 4 of the 1947 U.S.-South Africa Treaty, which flatly requires that extradition be deferred until the conclusion of the trial and the

full execution of any punishment awarded * * * ’’ 19The treaty now in force requires that extradition be denied if the statute of limitations has

run or would have run in either the Requesting or Requested State. Article 5, U.S.-South Africa

Treaty, supra, note 1, even though neither U.S. law or South Africa’s Extradition Act 1962 requires this rule. In fact, it is settled law in the United States that lapse of time is not a defense

to extradition at all unless the treaty specifically provides to the contrary. Freedman v. United

States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v. Galanis, 429 F. Supp. 1215, 1224

(D. Conn. 1977).

ation of extradition proceedings as well as the surrender of a person facing prosecution or serving a sentence. 18

Paragraph 2 provides that a person wanted for prosecution in the

Requesting State who is being prosecuted or is serving a sentence

in the Requested State may be surrendered temporarily. A person

temporarily transferred pursuant to this provision 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 trial of 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) it allows him

to resolve the charges sooner; (2) it may make it possible for him

to serve any sentence in the Requesting State concurrently with

the sentence in the Requested State; and (3) it permits him to defend against the charges while favorable evidence is fresh and more

likely to be available to him.

ARTICLE 8—LAPSE OF TIME

Article 8 states that extradition shall not be granted when the

prosecution has become barred by lapse of time according to the

law of the Requesting State. 19 Similar provisions are found in recent U.S. extradition treaties with Austria, India, Poland, Spain,

and other countries. This provision must be read together with Article 9(2)(d), which states that the documents in support of each extradition request must contain a statement from the Requesting

State describing the applicable lapse of time provisions in that

State, and that statement will be conclusive proof of whether the

prosecution has become barred by lapse of time.

ARTICLE 9—EXTRADITION PROCEDURES AND REQUIRED DOCUMENTS

This article sets out the documentary and evidentiary requirements for an extradition request, and is generally similar to articles in the most recent United States extradition treaties.

The first paragraph requires that all requests for extradition be

made in writing and submitted through the diplomatic channel. A

formal extradition request may be preceded by a request for provisional arrest under Article 13, and provisional arrest requests need

not be initiated through diplomatic channels if the requirements of

Article 13 have been satisfied.

Paragraph 2 outlines the information which must accompany

every request for extradition under the Treaty. Most of the items

listed in this paragraph enable the Requested State to determine

quickly whether extradition is appropriate under the treaty. For

example, Article 9(2)(c) calls for ‘‘a statement or text of the relevant

45

20See, e.g., U.S.-Jordan Extradition Treaty, signed at Washington March 28, 1995, entered

into force June 29, 1995, art. 8(3)(c). 21 Courts applying Title 18, United States Code, Section 3184 have long required probable

cause for international extradition. Restatement (Third) of the Foreign Relations Law of the

United States Section 476, comment b. 22See, e.g., Spatola v. United States, 741 F.Supp. 362, 374 (E.D.N.Y. 1990), aff’d, 925 F.2d 615

(2nd Cir. 1991); United States v. Clark, 470 F.Supp. 976 (D.VT. 1979). 23Section 9(3), Extradition Act 1962.

law prescribing maximum punishment for the offence(s)’’ enabling

the requested state to determine easily whether the request satisfies the requirement for dual criminality under Article 2.

Paragraph 3 describes the additional information needed when

the person is sought for trial in the Requesting State. Paragraph

3(c) requires that if the fugitive is a person who has not yet been

convicted of the crime for which extradition is requested, the Requesting State must provide ‘‘such information as would justify

committal for extradition under the laws of the Requested State,

but neither State is required to establish a prima facie case.’’ This

is consistent with extradition law in the United States, and is similar to language in other United States extradition treaties. 20 This

provision will alleviate one of the major practical problems with extradition from South Africa. The Treaty currently in force permits

extradition only if ‘‘ * * * the evidence be found sufficient, according to the law of the High Contracting Party applied to, * * * to

justify the committal of the prisoner for trial, in case the crime has

been committed in the territory of such High Contracting Party

* * * ’’ South African courts have interpreted this clause to require

that a prima facie case against the defendant be proven in South

Africa before extradition will be granted. By contrast, U.S. law permits extradition if there is probable cause to believe that an extraditable offense was committed and the offender committed it. 21

South Africa’s agreement to extradite under the new Treaty based

on the lower probable cause standard eliminates this imbalance in

the burden of proof for extradition, and should dramatically improve the United States’ ability to extradite from South Africa.

Paragraph 4 lists the information, in addition to the requirements of paragraph 2, needed to extradite a person who has already been convicted of an offense in the Requesting State. This

paragraph makes it clear that once a conviction has been obtained,

no showing of probable cause is required. In essence, the fact of

conviction speaks for itself, a position taken in recent United States

court decisions, even absent a specific treaty provision. 22

ARTICLE 10—ADMISSIBILITY OF DOCUMENTS

Article 10 governs the authentication procedures for documents

prepared for use in extradition cases.

The article states that in the case of a request from the United

States, the documents must be received in evidence at extradition

proceedings if they are accompanied by an apostille or authenticated by the signature and seal of office of either certain South African diplomatic or consular officers, or certain specified government authorities of the United States or other authorized persons.

The provision is based on the provisions of South African extradition law. 23

46

24Title 18, United States Code, Section 3190. 25See, e.g., U.S.-Costa Rica Extradition Treaty, signed at San Jose December 4, 1982, entered

into force October 11, 1991, art. 10.

The second paragraph states that when the request is from

South Africa, the documents must be certified by the principal diplomatic or consular officer of the United States resident in South

Africa, consistent with United States extradition law. 24

The third subparagraph of the article requires documents to be

admitted into evidence if they are authenticated in any other manner acceptable by the laws in the Requested State. For example,

there may be information in the Requested State itself which is relevant and probative to extradition, and the Requested State is free

under subsection (c) to utilize that information if the information

satisfies the ordinary rules of evidence in that state. This insures

that evidence which is acceptable under the evidentiary rules of the

Requested State may be used in extradition proceedings even if it

is not authenticated pursuant to other provisions of the treaty.

This paragraph also should insure that relevant evidence, which

would normally satisfy the evidentiary rules of the requested country, is not excluded at the extradition hearing because of an inadvertent error or omission in the authentication process.

ARTICLE 11—TRANSLATION

This article requires that any document that is not in English

and is produced in relation to extradition proceedings under this

Treaty shall be accompanied by a translation in English. South Africa has eleven official languages: English, Afrikaans, Zulu, Xhosa,

Sotho, Venda, Tswana, Tsonga, Pedi, Shangan, and Ndebele. It was

decided that it would be more convenient for both Parties if extradition documents were prepared in English in all cases.

ARTICLE 12—ADDITIONAL INFORMATION

This article states that if the Requested State considers the information furnished in support of the request for extradition insufficient under its law with respect to extradition, it shall notify the

Requesting State so that it may submit supplementary information; the Requested State may establish a reasonable length of time

for such submission. Paragraph three then provides that nothing

shall prevent the executive authority of the Requested State from

presenting to a court of that State such supplemental material

sought or obtained after its initial submission or after expiration of

any time limit established by it. This article is intended to permit

the Requesting State to cure defects in the request and accompanying materials that are found by a court in the Requesting

State or by the attorney acting on behalf of the Requesting State,

and to permit the court, in appropriate cases, to grant a reasonable

continuance to obtain, translate, and transmit additional materials.

A similar provision is found in other United States extradition

treaties. 25

47

26Title 18, United States Code, Section 3188. 27Jimenez v. United States District Court, 84 S. Ct. 14, 11 L.Ed. 2d 30 (1963)(decided by Goldberg, J., in chambers). See, also, Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United

States, 713 F.2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th Cir. 1978).

ARTICLE 13—PROVISIONAL ARREST

This article describes the process by which a person in one country may be arrested and detained while the formal extradition papers are being prepared.

Paragraph 1 expressly provides that a request for provisional arrest may be made through the diplomatic channel or directly between the Departments of Justice in the United States and South

Africa. The provision also indicates that Interpol may be used to

transmit such a request, and that the application may also be

transmitted via post, telegraph, telefax, or any other means, such

as email. Experience has shown that the ability to use such direct

channels can be crucial in emergency situations.

Paragraph 2 states the information which the Requesting State

must provide in support of such a request.

Paragraph 3 states that prompt attention shall be given to the

provisional arrest application, and the Requesting State must be

notified promptly of the outcome of its application and, if applicable, the reason for any inability to proceed with the application.

Paragraph 4 provides that the person who has been provisionally

arrested may be released if the Requesting State does not file a

fully documented request for extradition with the executive authority of the Requested State within sixty days of the date on which

the person was arrested. The paragraph also specifies that receipt

of the documents by the Embassy of the Requested State located

in the Requesting State (i.e., for a U.S. request, receipt by the

South African embassy in Washington, D.C.) shall constitute receipt by the executive authority. This is consistent with U.S. law

on this issue.

Paragraph 5 makes it clear that the person released under paragraph 4 may be taken into custody again and the extradition proceedings may commence when the formal request is presented.

ARTICLE 14—DECISION AND SURRENDER

This article requires that the Requested State promptly notify

the Requesting State through diplomatic channels of its decision on

the extradition request. If extradition is denied in whole or in part,

the Requested State must provide an explanation of the reasons for

the denial. If extradition is granted, the article requires that the

two States agree on a time and place for surrender of the person

and, under paragraph 5, under certain circumstances, may seek to

agree on a new date for surrender. The Requesting State must remove the fugitive within the time prescribed by the law of the Requested State, or the person may be discharged from custody, and

the Requested State may subsequently refuse to extradite for the

same offense. United States law permits the person to apply for release if he has not been surrendered within two calendar months

of having been found extraditable, 26 or of the conclusion of any litigation challenging that finding, 27 whichever is later. The law in

48

28 Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990), aff’d, 932 F.2d 977 (11th Cir.

1991).

South Africa does not contain any specific time period within which

a person must be removed after having been found extraditable.

ARTICLE 15—CONCURRENT REQUESTS

This article reflects the practice of many recent United States extradition treaties and lists some of the factors which the executive

authority of the Requested State must consider in determining to

which country a person should be surrendered when reviewing requests from two or more States for the extradition of the same person. For the United States, the Secretary of State would make this

decision. 28

ARTICLE 16—SEIZURE AND SURRENDER OF PROPERTY

This article provides that to the extent permitted by its laws the

requested state may seize and surrender all property—articles, instruments, objects of value, documents, or other evidence—relating

to the offense for which extradition is requested.

The second paragraph of the article provides that these objects

may be surrendered to the Requesting State even if extradition

cannot be effected due to the death, disappearance, or escape of the

fugitive.

The third paragraph enables the Requested State to temporarily

surrender the property to the Requesting State with assurances

that the property will be returned within a fixed period of time or

as soon as practicable, where the property is liable to seizure or

confiscation in the Requested State. It may also defer surrender if

the property is needed in connection with pending criminal proceedings in the Requested State.

The final paragraph states that the obligation to surrender property under this provision is subject to due respect for any rights

that the Requested State or any third parties may have to such

property.

ARTICLE 17—RULE OF SPECIALITY

This article covers the principle known as the rule of speciality

(or ‘‘specialty’’), which is a standard aspect of United States and

international extradition practice. Designed to insure that a fugitive surrendered for one offense is not tried for other crimes, the

rule of specialty prevents a request for extradition from being used

as a subterfuge to obtain custody of a person for trial or service of

sentence on different charges which may not be extraditable under

the treaty or properly documented at the time that the request is

granted.

Since a variety of exceptions to the rule have developed over the

years, paragraph 1 of this article codifies the current formulation

of the rule by providing that a person extradited under the Treaty

may only be detained, tried, or punished in the Requesting State

for (1) the offense for which extradition was granted, or any other

extraditable offense of which the person could be convicted upon

proof of the same facts upon which the extradition was granted, or

49

29 In the United States, the Secretary of State has the authority to grant such consent. See,

Berenguer v. Vance, 473 F. Supp. 1195 (D.D.C. 1979).

a lesser included offense; and (2) for offenses committed after the

extradition; and (3) any other offenses for which the executive authority of the Requested State consents. 29 Article 17(1)(b) permits

the Requested State to require the documents described in Article

9 when it is asked for its consent to pursue additional charges.

Paragraph 2 removes the restrictions imposed by paragraph 1 if

(1) the person leaves and voluntarily returns to the Requesting

State, or (2) the person does not leave the Requesting State within

fifteen days of being free to do so.

ARTICLE 18—SURRENDER TO A THIRD STATE OR AN INTERNATIONAL

TRIBUNAL

This article provides that a person extradited to either State cannot be surrendered to a third state or an international tribunal for

a crime committed prior to surrender under this Treaty unless (a)

the Requested State consents to that surrender or (b) the person

has had an opportunity to leave the territory of the Requesting

State and has not done so within fifteen days of final discharge in

respect of the offense for which extradited, or has returned to the

territory of the Requesting State after leaving it. The reference to

international tribunals in this article records the fact that, consistent with the rule of specialty under international law, the prior

consent of the United States would be required if South Africa

were to seek to extradite to the International Criminal Court

agreed to in Rome on July 17, 1998, or to any other international

tribunal, a fugitive who had been previously extradited from the

United States to South Africa under this Treaty.

Paragraph 2 provides that the Requested State may request relevant information before acceding to a request for consent.

ARTICLE 19—WAIVER OF EXTRADITION

Persons sought for extradition frequently elect to waive their

right to extradition proceedings to expedite their return to the Requesting State. This article provides that when a fugitive consents

to return to the Requesting State the person may be surrendered

to the Requesting State without further proceedings. The Parties

anticipate that in such cases therewould be no need for the formal

documents described in Article 9 or further judicial proceedings of

any kind.

If the person sought returns to the Requesting State before the

Secretary of State signs a surrender warrant, the United States

would not view the waiver of proceedings under this article as an

‘‘extradition,’’ and U.S. practice has long been that the rule of specialty does not apply when a fugitive waives extradition and voluntarily returns to the Requested State.

ARTICLE 20—TRANSIT

Paragraph 1 gives each State the discretion to authorize transit

through its territory of persons being surrendered to the other

State by third countries.

50

Paragraph 2 specifies that the transit request is to be transmitted either through the diplomatic channel, or directly between

the Departments of Justice in the United States and South Africa,

or, in cases of urgency, via Interpol channels.

Paragraph 3 provides that requests for transit are to contain a

description of the person whose transit is proposed, including information concerning nationality, and a brief statement of the facts of

the case with respect to which he is being surrendered to the Requesting State. Paragraph 4 makes clear that permission to effect

transit shall include permission for the person to be held in custody

during the transit, subject to the law of the Requested State. If

transportation is not continued in a reasonable time, the executive

authority of the transit State may order the person’s release.

Paragraph 5 states that no advance authorization is required if

the person in custody is being transported by air by one State to

a third country and no landing is scheduled in the territory of the

other State. Should an unscheduled landing occur, a request for

transit may be required at that time. The Treaty provides that the

person may be kept in custody for up to 96 hours until a request

for transit is received, and thereafter until it is executed.

ARTICLE 21—REPRESENTATION AND EXPENSES

The first paragraph of this article provides that the United

States will make all necessary arrangements and meet the cost of

any proceedings, and will represent South Africa in connection with

a request from South Africa for extradition before the courts in this

country. South Africa undertakes the same obligations including

representation of the United States in connection with United

States extradition requests to South Africa. In some cases, the Requested State may wish to retain private counsel to assist in the

presentation of the extradition request. It is anticipated that in

those cases the fees of private counsel retained by the Requested

State would be paid by the Requested State.

Paragraph 2 provides that the Requested State will bear the expenses of extradition incurred in its jurisdiction until the fugitive

is surrendered.

Paragraph 3 states that the costs of the translation of documents

and the costs of conveying the person from the territory of the Requested State are to be paid by the Requesting State.

Paragraph 4 provides that neither State shall make a pecuniary

claim against the other in connection with extradition proceedings,

including arrest, detention, examination, and surrender of the fugitive. This includes any claim by or on behalf of the fugitive for

damages, reimbursement, or legal fees, or other expenses occasioned by the execution of the extradition request.

ARTICLE 22—CONSULTATION

Article 22 of the treaty provides that the Departments of Justice

in the United States and South Africa may consult with one another with regard to an individual extradition case or on extradition procedures in general. A similar provision is found in other

recent U.S. extradition treaties.

51

1 Extradition Treaty between the United States and the United Kingdom, signed at London

December 22, 1931; entered into force June 24, 1935, 47 Stat. 2122, T.S. 849, 12 Bevans 482,

163 L.N.T.S. 59 (the ‘‘1931 Treaty’’)(applicable to Sri Lanka in accordance with Article 6 of the

External Affairs Agreement between the United Kingdom and Ceylon, signed at Colombo November 11, 1947, T.I.F. 9433). 2See, Extradition Law, No. 8 of1977 of The National State Assembly, 1977 (hereinafter the

‘‘Sri Lanka Extradition Act’’).

ARTICLE 23—APPLICATION

This Treaty, like most of the other United States extradition

treaties negotiated in the past two decades, is expressly made retroactive, and covers offenses which occurred before, on, or after the

date upon which the Treaty entered into force. The article specifies

that nothing in this Treaty shall be deemed to require or authorize

any action by the Requested State that is contrary to the constitution of that State.

ARTICLE 24—RATIFICATION, ENTRY INTO FORCE, AND TERMINATION

This article contains standard treaty language providing that it

is subject to ratification and calling for the exchange of instruments of ratification as soon as possible. The Treaty is to enter into

force immediately upon such exchange and may be terminated with

six months written notice by either State. Upon entry into force,

the 1947 Treaty will cease to have any effect. Paragraph 3 provides, however, that the prior Treaty shall apply to any extradition

proceedings in which the extradition documents have already been

submitted to the courts, except that waiver of extradition under Article 19 shall be available and Articles 17 and 18 concerning the

rule of specialty and surrender to a third State or international tribunal shall also apply.

Technical Analysis of the Extradition Treaty Between the

United States of America and the Democratic Socialist Republic of Sri Lanka

On September 30, 1999, the United States signed an Extradition

Treaty Between the Government of the United States of America

and the Government of the Democratic Socialist Republic of Sri

Lanka (the ‘‘Treaty’’). In recent years, the United States has signed

similar treaties with many other countries as part of an ongoing effort to modernize our law enforcement relations. The Treaty is intended to replace the current extradition treaty in force with respect to the two countries. That treaty, the Treaty for the Mutual

Extradition of Criminals between the United States of America and

Great Britain, signed at London December 22, 1931 (‘‘the 1931

Treaty’’) became applicable to Sri Lanka by virtue of Article 6 of

the External Affairs Agreement between the United Kingdom and

Ceylon, signed at Colombo on November 11, 1947.1

It is anticipated that the Treaty will be implemented in the

United States pursuant to the procedural framework provided by

Title 18, United States Code, Section 3184 et seq. No new implementing legislation will be needed for the United States. Sri Lanka

has extradition legislation that will apply to U.S. requests under

the Treaty.2

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3 U.S. law allows extradition without judicial charges pending in the foreign country. In Re

Assarsson, 635 F. 2d 1237 (7th Cir. 1980).

The following technical analysis of the Treaty was prepared by

the Office of International Affairs, United States Department of

Justice, and the Office of the Legal Adviser, United States Department of State, based upon the negotiating history. The technical

analysis includes a discussion of U.S. law and relevant practice as

of the date of its preparation, which are, of course, subject to

change. Foreign law discussions reflect the current state of that

law, to the best of the drafters’ knowledge.

ARTICLE 1—OBLIGATION TO EXTRADITE

This article formally obligates both parties to the Treaty to extradite to each other persons sought by the authorities in the Requesting State for trial or punishment for an extraditable offense. The

phrase ‘‘sought by the authorities . . . for an extraditable offense’’

is used rather than ‘‘charged with an extraditable offense’’ to provide for the submission and consideration of extradition requests

for persons wanted for prosecution but not yet formally charged. In

Sri Lanka a warrant is issued for an accused person, but formal

judicial charges are not filed until the defendant is in custody and

brought before a judge.3

Article 1 refers to persons sought by authorities ‘‘in’’ the Requesting State rather than ‘‘of’’ the Requesting State, thereby obligating

Sri Lanka to extradite fugitives sought by authorities of the United

States or any political subdivision thereof.

ARTICLE 2—EXTRADITABLE OFFENSES

Article 2 defines an extraditable offense. The article permits extradition for any offense punishable under the laws of both Contracting States by deprivation of liberty for a period of more than

one year or by a more severe penalty. Termed ‘‘dual criminality,’’

this method of defining extraditable offenses was used in lieu of

listing each extraditable offense as in the 1931 treaty. Dual criminality eliminates the need to renegotiate or supplement the Treaty

if both Contracting States pass laws creating a new type of criminal offense, or if the list inadvertently fails to include a criminal

activity punishable by both Contracting States. Sri Lanka and the

United States determine whether a crime is punishable under the

laws of both contracting states by assessing the fugitive’s underlying acts, not by comparing the elements of crimes. During the negotiations, both sides discussed certain crimes such as narcotics

trafficking, terrorism, degradation of the environment, money laundering, racketeering, anti-trust, export control violations, tax violations, child molestation, securities law violations, and parental kidnapping and concluded that such crimes were offenses in both

countries.

Paragraph 2 of Article 2 provides that extradition shall also be

granted for an attempt or a conspiracy to commit, aiding or abetting, counseling or procuring the commission of, or being an accessory before or after the fact to, any extraditable offense. This is significant because conspiracy charges are frequently used in U.S.

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4 Restatement (Third) of the Foreign Relations Law of the United States, § 402 (1987);

Blakesley, United States Jurisdiction over Extraterritorial Crime, 73 Journal of Criminal Law

and Criminology 1109 (1982). Some U.S. criminal laws specifically provide for jurisdiction over

crimes committed abroad.

tivity. This creates an exception to the dual criminality rule of

paragraph 1 since any offense included in Article 2 Paragraph 2 is

extraditable, even if found only within the laws of the Requesting

State, so long as the underlying offense satisfies the requirements

of paragraph 1.

Paragraph 3 reflects the intention of the Contracting States to

interpret the principles of this article broadly. Similar provisions

are contained in all recent U.S. extradition treaties.

Paragraph 3(a) requires a Requested State to disregard differences in the categorization of, or terminology used to describe

the offense when determining whether dual criminality exists. In

determining whether an offense is extraditable, the focus is on the

acts constituting the offense rather than a comparison of the U.S.

and Sri Lanka criminal code provisions defining the offenses.

Paragraph 3(b) is included to make clear that elements such as

the use of the mails or interstate transportation are merely jurisdictional and provide no basis for denying extradition. Judges in

foreign countries are often confused by the fact that many United

States federal statutes require proof of certain elements (such as

use of the mails or interstate transportation) solely to establish jurisdiction in the United States federal courts. Because these foreign

judges know of no similar requirement in their own criminal law,

they occasionally have denied the extradition of fugitives sought by

the United States on federal charges on this basis. This paragraph

requires that such elements be disregarded in determining dual

criminality. For example, Sri Lankan authorities must treat United

States federal mail fraud charges (Title 18, United States Code,

Section 1341) in the same manner as fraud charges under state

laws, and view the federal crime of interstate transportation of stolen property (Title 18, United States Code, Section 2314) in the

same manner as unlawful possession of stolen property.

Paragraph 4 recognizes that extraditable crimes can involve acts

committed wholly outside the territory of the Requesting State.

United States jurisprudence recognizes jurisdiction to prosecute

certain offenses committed outside of the United States if the crime

was intended to, or did, have effects in this country, or if the legislative history of the statute shows clear Congressional intent to assert such jurisdiction.4 This paragraph reflects the fact that the Requested State shall not inquire into the extraterritorial jurisdictional basis of the Requesting State’s prosecution. If the dual criminality and other requirements of the Treaty are satisfied, extradition shall be granted regardless of where the act or acts constituting the offense occurred.

Paragraph 5 provides that if extradition for one offense has been

granted, extradition shall also be granted for any other offense

punishable by less than one year’s deprivation of liberty, so long as

the lesser offenses meet all other requirements for extradition. For

example, if Sri Lanka agrees to extradite to the United States a fugitive wanted for prosecution of a felony, Sri Lanka must also

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5See, e.g., U.S.-Barbados Extradition Treaty, signed at Bridgetown, February 28, 1996, entered into force March 3, 2000, art. 2(5). 6See, generally Shearer, Extradition in International Law 110–14 (1970); 6 Whiteman, Digest

of International Law 871–76 (1968). U.S. policy of drawing no distinction between nationals of

the United States and those of other countries in extradition matters is underscored by Title

18, United States Code, Section 3196, which authorizes the Secretary of State to extradite U.S.

citizens even pursuant to treaties that permit (but do not require) surrender of citizens, if other

requirements of the Treaty have been met. 7See, Sri Lanka Extradition Act § I(7). 8See, Sri Lanka Extradition Act § 7(a). 9 Convention on the Suppression of Unlawful Seizures of Aircraft, Dec. 16, 1970 22 U.S.T

1641., T.I.A.S. 7192. 10 Convention for the Suppression of Unlawful Acts Against the Safety of Civil Aviation Sept.

23, 1971, 24 U.S.T. 564, T.I.A.S. 7570. 11 Convention on the Prevention and Punishment of Crimes against Internationally Protected

Persons Dec. 14, 1973, 28 U.S.T. 1975, T.I.A.S. No. 8532, 1035 U.N.T.S. 167. 12 Protocol for the Suppression of Unlawful Acts of Violence at Airports Serving International

Civil Aviation, supplementary to the Convention for the Suppression of Unlawful Acts Against

the Safety of Civil Aviation, Dec. 17, 1979, T.I.A.S. No. 11081.

tive is sought, so long as those misdemeanors would also be recognized as criminal offenses in Sri Lanka and are included in the request. This practice is generally desirable to both the fugitive and

the prosecuting party as it permits all charges against the fugitive

to be adjudicated more quickly, thereby facilitating trials while evidence is still fresh and permitting the possibility of concurrent sentences. Similar provisions are found in other recent extradition

treaties.5

ARTICLE 3—NATIONALITY

Authorities in some countries, because of statutory or constitutional prohibitions or as a matter of policy, do not extradite nationals to another country. Neither the United States 6 nor Sri Lanka 7

denies extradition on the basis of the fugitive’s nationality. Therefore, in Article 3 the Contracting States agree not to refuse extradition because the person sought is a national of the Requested

State.

ARTICLE 4—POLITICAL AND MILITARY OFFENSES

Paragraph 1 of this article prohibits extradition for a political offense. This is a standard provision in U.S. extradition treaties and

is incorporated in the Sri Lanka Extradition Act.8

Paragraph 2 designates specific offenses which, for the purposes

of the Treaty, shall not be considered political offenses. Under subparagraph 2(a) murder or other violent crime against the person of

a Head of State or Government of a Contracting State, or a member of the family of such Head of State or Government is not to be

considered a political offense.

The next five subparagraphs exclude offenses from the political

offense exception that are the subject of multilateral treaties, conventions, or international treaties to which both Contracting States

are parties and which obligate them to extradite the person sought

or submit the matter for prosecution. Paragraphs 2(b) through 2(e)

list specific offenses in this category including: aircraft hijacking; 9

aviation sabotage; 10 any crime against an internationally protected

person; 11 and violence at airports,12 and paragraph 2(f) covers any

other such offense.

Finally, under 2(g), a conspiracy or attempt to commit any of the

foregoing offenses, or aiding or abetting a person who commits or

55

13There are similar provisions in many U.S. extradition treaties. See, e.g., U.S.-India Extradition Treaty, signed at Washington June 25, 1997, entered into force July 21, 1999, art. 5(2). 14See, Eain v. Wilkes, 641 F. 2d 504, 513 (7th Cir.), cert. denied, 454 U.S. 894 (1981); Koskotos

v. Roche, 931 F. 2d 169, 174. See, also, Title 18, United States Code, Section 3186. 15 An example of such an offense is desertion. Matter of Extradition of Suarez-Mason, 694 F.

Supp. 676, 702–03 (N.D. Cal. 1988). 16Language used in this article is similar to that used in many recent U.S. extradition Treaties. See, e.g., U.S.-India Extradition Treaty, signed at Washington June 25, 1997, entered into

force July 21, 1999, art. 6.

attempts to commit such offenses is not considered a political offense.

Paragraph 3 of this article provides for denial of extradition

when the executive authority of the Requested State determines

that the request is politically motivated, notwithstanding the exceptions in paragraph 2.13 In Sri Lanka, a finding that a request

was politically motivated may come from either a minister in the

executive branch or the courts. Whether such a finding comes from

the courts or the executive, the executive authorities are responsible for the implementation and administration of that decision.

Due to this responsibility, the Sri Lankan delegation assured us

that a decision of the courts would still be considered to be ‘‘determined by the executive authority.’’ Under longstanding law and

practice of the United States, the Secretary of State alone has the

discretion to determine whether an extradition request is based on

improper political motivation.14

Paragraph 4 of this article permits refusal of an extradition request for acts which constitute an offense under military law, but

not ordinary criminal law.15

ARTICLE 5—PRIOR PROSECUTION

Paragraph 1 prohibits extradition if the person sought has been

convicted or acquitted in the Requested State for the offense for

which extradition is requested.16 This provision serves to prevent

extradition only when the person sought has been convicted or acquitted in the Requested State for the same crime that is charged

in the Requesting State. The term ‘‘offense’’ in this provision means

the crime and does not mean the act for which the extradition is

requested. A single set of facts may result in different offenses in

different jurisdictions, and a prosecution for one such offense

should not bar extradition for another. For instance, if an offender

is accused in one State of illegally smuggling narcotics into the

country, and is charged in the other State of unlawfully exporting

the same shipment of drugs out of that State, an acquittal or conviction in either one of the States would not insulate the person

from extradition to the other, since different crimes are involved.

Further, this provision does not permit a state to refuse extradition

because the fugitive has been convicted or acquitted in a third

state.

Paragraph 2 makes it clear that neither Contracting State can

refuse to extradite on the grounds that the Requested State’s authorities declined to prosecute or pardoned the offender, or instituted criminal proceedings against the offender and thereafter

elected to discontinue the proceedings. For example the Requested

State may have decided to forego prosecution, or to dismiss

charges, because of a failure to obtain sufficient evidence for trial,

56

17See, Sri Lanka Extradition Act § 7(2). 18This is consistent with settled law in the United States, which holds that lapse of time is

not a defense to extradition unless the treaty specifically provides to the contrary. Freedman

v. United States, 437 F. Supp. 1252, 1263 (D. Ga. 1977); United States v. Galanis, 429 F. Supp.

1215, 1224 (D. Conn. 1977). 19See, e.g., U.S.-Barbados Extradition Treaty, signed at Bridgetown February 28, 1996, entered into force March 3, 2000, art. 8. 20Similar provisions are found in many recent U.S. extradition treaties. See, e.g., U.S.-India

Extradition Treaty, signed at Washington June 25, 1997, entered into force July 21, 1999, art.

8. 21 A similar article appears in most recent U.S. extradition treaties.

whereas substantial evidence may be available in the Requesting

State.17 This provision should enhance the ability of the Contracting States to extradite to the jurisdiction with the better

chance of a successful prosecution.

ARTICLE 6—LAPSE OF TIME

Article 6 provides that the decision by the Requested State

whether to grant the request for extradition shall be made without

regard to statutes of limitations of either state.18 The 1931 Treaty

contains a bar to extradition when prosecution has become barred

by lapse of time according to the law of either State. However, the

preferred modern approach is not to bar extradition on this basis.

The parties agreed to leave resolution of such issues to the courts

of the Requesting State. This approach is contained in many modern U.S. extradition treaties.19

ARTICLE 7—CAPITAL PUNISHMENT

Paragraph 1 permits the Requested State to refuse to extradite

a fugitive in cases in which the offense for which extradition is

sought is punishable by death in the Requesting State, but is not

punishable by death in the Requested State, unless (a) the extraditable offense constitutes murder under the laws of the Requested

State; or (b) the Requesting State provides assurances, which the

Requested State considers sufficient, that the death penalty will

not be imposed or, if imposed, will not be carried out.20

Paragraph 2 provides that when the Requesting State gives acceptable assurances in accordance with Paragraph 1(b) of this Article, those assurances shall be honored and the death penalty, if imposed, shall not be carried out.

ARTICLE 8—EXTRADITION PROCEDURES AND REQUIRED DOCUMENTS

This article sets forth the procedural, documentary and evidentiary requirements to support an extradition request.21

Paragraph 1 requires that each formal request for extradition be

submitted through the diplomatic channel. A formal extradition request may be preceded by a request for provisional arrest under

Article 11, which, in exceptional cases of unusual urgency, need not

be initiated through diplomatic channels.

Paragraph 2 details the information which must accompany a request for extradition. Some requirements delineated in Article 8(2)

enable a Requested State to more easily ascertain the proper identity and whereabouts of a fugitive. Other requirements facilitate

the assessment of whether extradition is appropriate. For example,

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22 Courts applying Title 18, United States Code, Section 3184 have long required probable

cause for international extradition. Restatement (Third) of the Foreign Relations Law of the

United States § 476, comment b (1987). 23See, e.g., Spatola v. United States, 741 F. Supp. 362, 374 (E.D.N.Y. 1990), aff’d, 925 F.2d

615 (2d Cir. 1991); United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979).

sential elements of the offense for which extradition is requested’’

and 8(2)(d) requires a statement of the provisions of the law prescribing punishment for offense. Such information should enable

the Requested State to determine whether the dual criminality requirement under Article 2 has been met.

Paragraph 3 describes the additional information needed when

the person is sought for prosecution. Such requests must be supported by a copy of the warrant or arrest order and a copy of the

charging document, if those documents exist. In addition, the Requesting State must provide sufficient information to support ‘‘a

reasonable basis to believe that the person to be extradited committed the offense for which extradition is requested and is the person named in the warrant of arrest.’’ This evidentiary requirement

is consistent with fundamental U.S. extradition jurisprudence,

which mandates sufficient evidence to establish probable cause before finding a fugitive extraditable.22 The delegations agreed that

the language ‘‘a reasonable basis to believe. . .’’ in Article 8(3)(c)

should not be interpreted to require a higher burden of proof for

extradition than the probable cause standard. The Requested State

need not provide proof sufficient to convict the offender, a much

higher standard, in order to find him/her extraditable.

Paragraph 4 contains the requirements for documents and information which must accompany a request to extradite a person who

has been found guilty of the offense for which extradition is sought.

This paragraph makes clear that once a person has been found

guilty, no showing of the relevant burden of proof as described in

paragraph 3 is required. In essence, a finding of guilt speaks for

itself, a position taken in U.S. court decisions even absent a specific

treaty provision.23

Subsection (d) of paragraph 4 states that if the person sought

was found guilty in absentia, the documentation and information

required under paragraph 3 must be submitted with the extradition request. In other words, information sufficient for a showing

of probable cause must accompany a request for extradition of a

person found guilty in absentia.

ARTICLE 9—ADMISSIBILITY OF DOCUMENTS

Article 9 sets forth the authentication conditions for receiving

and admitting extradition documents into evidence.

Subparagraph (a) states that evidence intended for use in extradition proceedings in Sri Lanka shall be admissible if they are

signed or certified by a judge, magistrate, or an official of the

United States, and sealed with the official seal of a competent authority of the United States. This language was crafted to meet the

requirements of Sri Lankan law on the authentication of documents to be used as evidence in extradition proceedings (Section 14

(2) of the Sri Lankan Extradition Act). The standard Department

of Justice certification and sealing of extradition documents already

meets the requirements of the subparagraph in general, and should

58

24See, Sri Lanka Extradition Act § 14(2). 25See, Title 18, United States Code, Section 3190.

ensure the admissibility of U.S. extradition documents in Sri

Lankan extradition proceedings. In addition, however, Sri Lanka

recommended that individual affidavits contained in our extradition packages be sworn before a judge or magistrate in the

United States rather than a notary public.24

Subparagraph (b) states that evidence intended for use in extradition proceedings in the United States shall be admissible if certified by the principal diplomatic or consular officer of the United

States resident in Sri Lanka, consistent with U.S. extradition

law.25

Subparagraph (c) provides an alternative method for authenticating evidence in an extradition proceeding, by permitting such

evidence to be admitted if it is authenticated in any manner acceptable by the law of the Requested State. For example, there may be

information in the Requested State itself which is relevant and probative to extradition. The Requested State would be free under

subparagraph (c) to utilize that information if it is admissible

under the ordinary rules of evidence in the Requested State. Moreover, subparagraph (c) should insure that relevant evidence, which

would normally satisfy the evidentiary rules of the Requested

State, is not excluded at the extradition hearing because of an inadvertent error or omission in the authentication process.

ARTICLE 10—LANGUAGE

All documents submitted by the Requesting State in support of

an extradition request shall be in the English language. While

there are three recognized languages in Sri Lanka (Singhalese,

Tamil and English), the Sri Lankan delegation agreed that it would

submit only documents prepared or translated into English to the

United States and that extradition documents submitted by the

United States in English would be acceptable, and if translation

into one of the other Sri Lankan languages is required, it would be

done by Sri Lankan authorities at their expense.

ARTICLE 11—PROVISIONAL ARREST

This article describes the process, known as provisional arrest,

by which a fugitive in one country may be arrested and detained

before the formal extradition request supported by the full set of

documents is completed and submitted by the Requesting State.

Paragraph 1 provides that a request for provisional arrest may

be made through the diplomatic channel but that in exceptional

cases of unusual urgency requests may also be transmitted directly

between the U.S. Justice Department and the Sri Lankan Ministry

of Justice and that INTERPOL facilities may also be used to transmit such requests. Provisional arrest requests transmitted other

than through the diplomatic channel will normally be confirmed by

a diplomatic note.

Paragraph 2 lists the information that the Requesting State

must provide in its request for provisional arrest. Supporting documentation is not required.

59

26See, United States v. Wiebe, 733 F.2d 549 (8th Cir. 1984); United States v. Clark, 470 F.

Supp. 976 (D. Vt. 1979). The Sri Lankan Extradition Act provides for holding persons in custody

for a ‘‘reasonable time.’’ The Sri Lankan delegation informed the U.S. delegation that, in the

case of a challenge by a provisionally arrested person, Sri Lankan authorities should have no

difficulty convincing a Sri Lankan court that a period of incarceration of 60 days prior to the

submission of the formal extradition request is a ‘‘reasonable time.’’ Moreover, the Sri Lankan

delegation pointed out that Section 3 of the Extradition Act permits modifications necessary to

implement extradition treaties so long as the treaties create no direct conflict with the Act ’’

thus the 60 day period in the Treaty would constitute a permissible modification of the ‘‘reasonable time’’ provision in the Act. 27Title 18, United States Code, Section 3188 provides that, after two calendar months, any

U.S. court, upon application may discharge from custody a person so committed, unless sufficient cause is shown why such discharge should not take place. 28Jimenez v. United States District Court, 84 S. Ct. 14, 11 L.Ed 2d 30 (1963) (decided by Goldberg, J., in chambers). See, also, Liberto v. Emery, 724 F. 2d 23 (2d Cir. 1983); In Re United

States, 713 F.2d 105 (5th Cir. 1983); see, also, Barrett v. United States, 590 F. 2d 624 (6th Cir.

1978). 29See, Sri Lanka Extradition Act § 11(2).

Paragraph 3 states that the Requesting State must be advised

promptly of the outcome of its application and the reason for any

denial.

Paragraph 4 provides that the fugitive may be discharged from

custody if the executive authority of the Requested State does not

receive a fully documented extradition request within sixty days of

the provisional arrest. When the United States is the Requested

State, the ‘‘executive authority’’ for the purposes of paragraph 4

would include the Secretary of State or the U.S. Embassy in Sri

Lanka.26

Although the person arrested according to this article may be released from custody if a fully documented extradition request is not

received within sixty days, Paragraph 5 establishes that the fugitive may be rearrested and the extradition proceedings continued

when the formal, documented request is presented at a later date.

ARTICLE 12—DECISION AND SURRENDER

This article requires the Requested State to promptly notify the

Requesting State through the diplomatic channel of its decision regarding the extradition request. If extradition is denied in whole or

in part, the Requested State must provide the reasons for the denial. The Requested State shall also provide any pertinent judicial

opinions if the Requesting State so requests. If the extradition request is granted, the article requires that the Contracting States

agree on a time and place for the surrender of the fugitive.

Pursuant to Paragraph 4, if the fugitive is not removed from the

territory of the Requested State within the time prescribed by the

law of the Requested State, the person may be discharged from

custody and the Requested State may subsequently refuse to extradite for the same offense. U.S. law provides the possibility of discharge from custody of persons who are not surrendered within two

calendar months of the finding of extraditability,27 or of the conclusion of any litigation challenging that finding,28 whichever is later.

The Sri Lanka Extradition Act provides that extradition shall not

occur ‘‘until the expiration of a period of fifteen days commencing

on the day on which the court order for his committal is made; and

if an application for habeas corpus is made to the Supreme Court,

so long as proceedings on that application are pending.’’ 29 In Sri

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30See, Sri Lanka Extradition Act § 12 (1). 31See, Sri Lanka Extradition Act § 13(1). 32This is a discretionary provision exercisable by the Requested State only; it does not create

any right which a fugitive may exercise. 33 Under United States law and practice, the Secretary of State makes this decision. Koskotas

v. Roche, 740 F. Supp. 904 (D. Mass. 1990), aff’d, 931 F.2d 169 (1st Cir. 1991). The United

States may elect to extradite a fugitive prior to the completion of a sentence. U.S. v. Buekes,

888 F. Supp. 465 (EDNY 1995).

dited.30 In addition, in Sri Lanka a person may apply to the Supreme Court for his release upon the expiration of a two month period commencing at the conclusion of the fifteen day waiting period

described above, or at the conclusion of a one month period commencing on the day on which a warrant for extradition was

issued.31

ARTICLE 13—TEMPORARY AND DEFERRED SURRENDER

A person sought for extradition may be already facing prosecution or serving a sentence in the Requested State. Article 13 provides under appropriate circumstances for the temporary surrender

of such persons. This article also provides a means for the Requested State to defer extradition in such circumstances until the

conclusion of the proceedings against the person and the full execution of any punishment imposed.32

Paragraph 1 provides for the temporary surrender of a person

‘‘for the purpose of prosecution’’ in the Requesting State who is

being prosecuted or is serving a sentence in the Requested State.

‘‘The purpose of prosecution’’ could include the temporary transfer

of a person to stand trial or to enter a plea of guilty, or receive a

sentence. A person temporarily transferred pursuant to the Treaty

shall be kept in custody by the Requesting State and returned to

the Requested State at the conclusion of the proceedings in the Requesting State. The Contracting States shall determine the conditions of the fugitive’s return to the Requested State. Such temporary surrender furthers the interests of justice by allowing a trial

of the person sought while evidence and witnesses are more likely

to be available, thereby increasing the likelihood of a successful

prosecution. Such a transfer may also be advantageous to the person sought in that it: (1) facilitates resolution of the charges; (2)

permits the concurrent serving of sentences in the Requesting and

Requested States; (3) allows for a defense while favorable evidence

is fresh and more readily available. Current Sri Lankan law does

not permit temporary surrenders. Consequently, the words, ‘‘subject to its laws’’ are included in the paragraph to provide for such

surrender should Sri Lankan law be changed.

Paragraph 2 provides that the Requested State may also postpone the extradition proceedings against a person who is being

prosecuted or serving a sentence in the Requested State until the

conclusion of the prosecution or the full execution of the punishment which has been imposed.33

ARTICLE 14—REQUESTS FOR EXTRADITION MADE BY SEVERAL

STATES

Article 14 addresses the situation when requests are made by

different countries for extradition of the same person. The article

61

34 Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990) aff’d, 932 F.2d 977 (11th Cir.

1991). 35See, Sri Lanka Extradition Act §§ 8(1) & 12(5). 36Similar provisions are found in all recent U.S. extradition treaties. 37See, Sri Lanka Extradition Act § 17(2). 38 In the United States the Secretary of State has the authority to consent to a waiver of the

rule of specialty. See, Berenguer v. Vance, 473 F. Supp. 1195, 1199 (D.D.C. 1979). In Sri Lanka

the Minister of Justice has the authority to consent to a waiver of the rule of specialty. Sri

Lanka Extradition Act § 7(3)(c).

grants the executive authority of the Requested State the authority

to determine which country will receive the fugitive. For the United

States, the Secretary of State makes this decision.34 In Sri Lanka,

such decisions are made by the Minister of Justice.35

ARTICLE 15—SEIZURE AND SURRENDER OF PROPERTY

This article permits the seizure by the Requested State, and surrender to the Requesting State, of all property relating to the offense for which extradition is requested, to the extent permitted by

the law of the Requested State.36 Examples of such property include, but are not limited to, articles, instruments, objects of value,

and documents. Article 15 also provides that these articles may be

so surrendered even if extradition cannot be effected due to the

death, disappearance, or escape of the fugitive.

Paragraph 2 states that the Requested State may condition its

surrender of property upon satisfactory assurances that the property will be returned as soon as practicable, or may defer surrender

if the property is needed as evidence in the Requested State.

Pursuant to Paragraph 3, the rights of third parties in surrendered property shall be duly respected.

ARTICLE 16—RULE OF SPECIALITY

Article 16 incorporates into the Treaty the principle known as

the rule of speciality (or ‘‘specialty’’), which is a standard component of U.S. and international extradition practice. Designed to insure that a fugitive surrendered for one offense is not tried in the

Requesting State for other crimes, the rule of specialty prevents an

extradition request from being used as a subterfuge to obtain custody of a person for trial or service of sentence on different charges

that may not be extraditable or properly documented at the time

that the request is granted.37

As a variety of exceptions to the rule have developed over time,

this article codifies in the Treaty the internationally accepted formulation of the rule. Paragraph 1 provides that a person extradited

under the Treaty may not be detained, tried or punished in the Requesting State except for (a) the offense for which extradition was

granted, or a differently denominated offense based on the same

facts, provided the offense is extraditable or is a lesser included offense; (b) an offense committed after the extradition; or (c) an offense for which the executive authority of the Requested State consents.38

Paragraph 1(c)(i) provides that before giving such consent, the

Requested State may require the Requesting State to document its

request as for a new extradition request under the Treaty. Paragraph 1(c)(ii) permits the Requesting State to detain the person for

90 days, or for a longer period authorized by the Requested State,

62

39This language makes clear, for example, that, consistent with the rule of specialty under

international law, prior consent of the United States would be required if Sri Lanka proposed

to transfer a person, extradited from the United States, to the International Criminal Court

agreed to in Rome on July 17, 1998. 40See, Sri Lanka Extradition Act §§ 12(2) & 17(3). 41The Sri Lanka Extradition Act does not explicitly provide for such waivers, however, the

Sri Lankan delegation expressed confidence that Sri Lankan law would permit fugitives wanted

by U.S. authorities to consent to surrender, and that Sri Lankan authorities could keep such

persons in custody and return them to the United States without the documents or proceedings

required for a formal extradition. For fugitives in the United States who wish to waive extradition, the practice is to submit the waiver to the presiding judge who determines whether the

fugitive is proceeding voluntarily. 42 A similar provision is found in all recent U.S. extradition treaties.

while the Requested State makes its determination on the application.

Paragraph 2 prohibits the Requesting State from surrendering

the person to a third State or an international tribunal for a crime

committed prior to his surrender without the consent of the Requested State.39

Paragraph 3 provides that the restrictions of paragraphs 1 and

2 shall not apply if the extradited person (1) leaves and returns to

the Requesting State, or (2) does not leave the territory of the Requesting State within ten days of being free to do so, if the Requesting State is the United States, or within forty-five days of

being free to do so, if the Requesting State is Sri Lanka. The longer

period provided for departure from Sri Lanka prior to proceeding

for additional offenses is the result of the forty-five day period set

out in that country’s domestic extradition law.40

ARTICLE 17—WAIVER OF EXTRADITION

Persons sought for extradition frequently elect to waive their

right to extradition proceedings to expedite their return to the Requesting State. This article provides that when a fugitive consents

to return to the Requesting State, subject to the laws of the Requested State,41 the person may be returned without further proceedings. In such cases there would be no need for any further formal documentation or judicial proceedings.

If the person sought for extradition returns to the Requesting

State before the signing of a surrender warrant or completion of

the extradition process, the United States would not view the waiver of proceedings under this Article as an ‘‘extradition.’’ U.S. practice has long been that the rule of specialty does not apply when

a fugitive waives extradition and voluntarily returns to the Requesting State. The Sri Lankan delegation to the Treaty negotiation stated that the practice would be the same in Sri Lanka—the

rule of specialty would not apply to fugitives who waive extradition

and return voluntarily to the Requesting State.

ARTICLE 18—TRANSIT

Paragraph 1 gives each Contracting State the discretion to authorize transit through its territory of persons being surrendered to

the other Contracting State by third States, and to hold such persons in custody during the period of transit.42 Requests for transit,

which are to be made through the diplomatic channel or directly

between the U.S. Department of Justice and the Sri Lankan Ministry of Justice, or may be transmitted via INTERPOL, must conVerDate 11-MAY-2000 20:51 Oct 04, 2000 Jkt 000000 PO 00000 Frm 00062 Fmt 6659 Sfmt 6602 EXTRAD SFRELA1 PsN: SFRELA1
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43This provision is standard in modern United States Extradition Treaties. See, e.g., U.S.-Jordan Extradition Treaty, signed at Washington March 28, 1995, entered into force July 29, 1995,

art. 21.

tain a description of the person whose transit is proposed and a

brief statement of the facts of the case which occasioned his surrender to the Requesting State.

Under Paragraph 2 no authorization is needed if the person in

custody is being moved by air and no landing is scheduled in the

territory of the other Contracting State. Should an unscheduled

landing occur, a request for transit may be required at that time.

The Treaty ensures that the person will be kept in custody until

a request for transit is received and the transit is effected, so long

as the request is received within 96 hours of the unscheduled landing.

ARTICLE 19—REPRESENTATION AND EXPENSES

Paragraph 1 provides that in extradition proceedings under the

Treaty, the Requested State shall advise, assist, appear in court

and represent the interests of the Requesting State. Thus, Department of Justice attorneys will represent Sri Lanka in connection

with its requests for extradition before U.S. courts, and the Attorney General of Sri Lanka will perform reciprocal services on behalf

of the United States before Sri Lankan courts. Although under the

Sri Lankan law their Attorney General technically appears as amicus curiae rather than in a formal representation role on behalf of

the United States, the Sri Lankan delegation assured us that the

Attorney General will provide full advocacy in support of our extradition requests at every stage in the Sri Lankan extradition proceedings.

Paragraph 2 provides that the Requested State will bear all expenses of extradition except those expenses relating to the ultimate

transportation of a fugitive to the Requesting State and the translation of documents, which are paid by the Requesting State.

Paragraph 3 provides that neither Contracting State shall make

a pecuniary claim against the other arising out of the arrest, detention, examination, or surrender of any fugitive. This includes any

claim brought on behalf of the fugitive for damages, reimbursement

or legal fees, or other expenses occasioned by the execution of the

extradition request.

ARTICLE 20—CONSULTATION

This article provides that the Department of Justice and the Attorney General’s Department of Sri Lanka may consult with each

other regarding an individual extradition case or extradition procedures in general.

ARTICLE 21—APPLICATION

This article makes the Treaty retroactive. Consequently, requests

for extradition for offenses committed before entry into force can be

made under the Treaty.43

64

ARTICLE 22—RATIFICATION AND ENTRY INTO FORCE

Article 22 contains standard treaty language providing for ratification and the exchange of instruments of ratification as soon as

possible. The Treaty shall enter into force immediately upon this

exchange.

Paragraph 3 provides that when the Treaty enters into force, the

1931 Treaty will cease to have effect upon the Contracting States.

However, if extradition documents have already been submitted to

the courts of the Requested State at the time the Treaty enters into

force, the 1931 Treaty will remain applicable to such proceedings,

although Article 16 of this Treaty (addressing the Rule of Specialty) will apply.

ARTICLE 23—TERMINATION

This Article contains standard treaty language describing the

procedure for termination of the Treaty after its entry into force.

Either Contracting State may terminate the Treaty at any time by

giving written notice to the other Contracting State. The termination shall become effective six months after the date of the notice.

VIII. TEXT OF THE RESOLUTIONS OF RATIFICATION

Treaty with Belize:

Resolved (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the ratification of the Extradition Treaty between the Government of the United States of

America and the Government of Belize, signed at Belize on March

30, 2000 (Treaty Doc. 106–38), subject to the understanding of subsection (a), the declaration of subsection (b) and the proviso of subsection (c).

(a) UNDERSTANDING.—The Senate’s advice and consent 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 14 concerning the Rule of Specialty

would preclude the resurrender of any person extradited to

Belize from the United States to the International Criminal

Court contemplated in the Statute adopted in Rome, Italy, on

July 17, 1998, unless the United States consents to such resurrender; and the United States shall not consent to the transfer

of any person extradited to Belize by the United States to said

International Criminal Court unless the Statute establishing

that Court has entered into force for the United States by and

with the advice and consent of the Senate, as required by Article II, section 2 of the United States Constitution.

(b) DECLARATION.—The Senate’s advice and consent is subject to

the following declaration, which shall be binding on the President:

TREATY INTERPRETATION.—The Senate affirms the applicability to all treaties of the constitutionally based principles of

treaty interpretation set forth in Condition (1) of the resolution

of ratification of the INF Treaty, approved by the Senate on

65

May 27, 1988, and Condition (8) of the resolution of ratification

of the Document Agreed Among the States Parties to the Treaty on Conventional Armed Forces in Europe, approved by the

Senate on May 14, 1997.

(c) PROVISO.— The resolution of ratification is subject to the following proviso, which shall not be included in the instrument of

ratification:

SUPREMACY OF THE CONSTITUTION.—Nothing in this Treaty

requires or authorizes legislation or other action by the United

States of America that is prohibited by the Constitution of the

United States as interpreted by the United States.

Treaty with Paraguay:

Resolved (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the ratification of the Extradition Treaty between the Government of the United States of

America and the Government of the Republic of Paraguay, signed

at Washington on November 9, 1998 (Treaty Doc. 106–4), subject

to the understanding of subsection (a), the declaration of subsection

(b) and the proviso of subsection (c).

(a) UNDERSTANDING.—The Senate’s advice and consent is subject

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

PROHIBITION OF EXTRADITION TO THE INTERNATIONAL CRIMI- NAL COURT.—The United States understands that the protections contained in Article XV concerning the Rule of Specialty

would preclude the resurrender of any person extradited to the

Republic of Paraguay from the United States to the International Criminal Court contemplated in the Statute adopted

in Rome, Italy, on July 17, 1998, unless the United States consents to such resurrender; and the United States shall not consent to the transfer of any person extradited to the Republic

of Paraguay by the United States to said International Criminal Court unless the Statute establishing that Court has entered into force for the United States by and with the advice

and consent of the Senate, as required by Article II, section 2

of the United States Constitution.

(b) DECLARATION.—The Senate’s advice and consent is subject to

the following declaration, which shall be binding on the President:

TREATY INTERPRETATION.—The Senate affirms the applicability to all treaties of the constitutionally based principles of

treaty interpretation set forth in Condition (1) of the resolution

of ratification of the INF Treaty, approved by the Senate on

May 27, 1988, and Condition (8) of the resolution of ratification

of the Document Agreed Among the States Parties to the Treaty on Conventional Armed Forces in Europe, approved by the

Senate on May 14, 1997.

(c) PROVISO.— The resolution of ratification is subject to the following proviso, which shall not be included in the instrument of

ratification:

SUPREMACY OF THE CONSTITUTION.—Nothing in this Treaty

requires or authorizes legislation or other action by the United

States of America that is prohibited by the Constitution of the

United States as interpreted by the United States.

66

Treaty with South Africa:

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

That the Senate advise and consent to the ratification of 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 (Treaty Doc. 106–24),

subject to the understanding of subsection (a), the declaration of

subsection (b) and the proviso of subsection (c).

(a) UNDERSTANDING.—The Senate’s advice and consent 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 18 concerning the surrender to a

third State of an International Tribunal would preclude the resurrender of any person extradited to the Republic of South Africa from the United States to the International Criminal

Court contemplated in the Statute adopted in Rome, Italy, on

July 17, 1998, unless the United States consents to such resurrender; and the United States shall not consent to the transfer

of any person extradited to the Republic of South Africa by the

United States to said International Criminal Court unless the

Statute establishing that Court has entered into force for the

United States by and with the advice and consent of the Senate, as required by Article II, section 2 of the United States

Constitution.

(b) DECLARATION.—The Senate’s advice and consent is subject to

the following declaration, which shall be binding on the President:

TREATY INTERPRETATION.—The Senate affirms the applicability to all treaties of the constitutionally based principles of

treaty interpretation set forth in Condition (1) of the resolution

of ratification of the INF Treaty, approved by the Senate on

May 27, 1988, and Condition (8) of the resolution of ratification

of the Document Agreed Among the States Parties to the Treaty on Conventional Armed Forces in Europe, approved by the

Senate on May 14, 1997.

(c) PROVISO.— The resolution of ratification is subject to the following proviso, which shall not be included in the instrument of

ratification:

SUPREMACY OF THE CONSTITUTION.—Nothing in this Treaty

requires or authorizes legislation or other action by the United

States of America that is prohibited by the Constitution of the

United States as interpreted by the United States.

Treaty with Sri Lanka:

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

That the Senate advise and consent to the ratification of the Extradition Treaty between the Government of the United States of

America and the Government of the Democratic Socialist Republic

of Sri Lanka, signed at Washington on September 30, 1999 (Treaty

Doc. 106–34), subject to the understanding of subsection (a), the

declaration of subsection (b) and the proviso of subsection (c).

67

(a) UNDERSTANDING.—The Senate’s advice and consent is subject

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

PROHIBITION OF EXTRADITION TO THE INTERNATIONAL CRIMI- NAL COURT.—The United States understands that the protections contained in Article 16 concerning the Rule of Specialty

would preclude the resurrender of any person extradited to the

Democratic Socialist Republic of Sri Lanka from the United

States to the International Criminal Court contemplated in the

Statute adopted in Rome, Italy, on July 17, 1998, unless the

United States consents to such resurrender; and the United

States shall not consent to the transfer of any person extradited to the Democratic Socialist Republic of Sri Lanka by the

United States to said International Criminal Court unless the

Statute establishing that Court has entered into force for the

United States by and with the advice and consent of the Senate, as required by Article II, section 2 of the United States

Constitution.

(b) DECLARATION.—The Senate’s advice and consent is subject to

the following declaration, which shall be binding on the President:

TREATY INTERPRETATION.—The Senate affirms the applicability to all treaties of the constitutionally based principles of

treaty interpretation set forth in Condition (1) of the resolution

of ratification of the INF Treaty, approved by the Senate on

May 27, 1988, and Condition (8) of the resolution of ratification

of the Document Agreed Among the States Parties to the Treaty on Conventional Armed Forces in Europe, approved by the

Senate on May 14, 1997.

(c) PROVISO.— The resolution of ratification is subject to the following proviso, which shall not be included in the instrument of

ratification:

SUPREMACY OF THE CONSTITUTION.—Nothing in this Treaty

requires or authorizes legislation or other action by the United

States of America that is prohibited by the Constitution of the

United States as interpreted by the United States.

Æ