[Senate Treaty Document 106-24]
[From the U.S. Government Publishing Office]



106th Congress                                              Treaty Doc.
                                 SENATE                     
 2d Session                                                      106-24
_______________________________________________________________________

                                     



 
                 EXTRADITION TREATY WITH SOUTH AFRICA

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

   EXTRADITION TREATY BETWEEN THE GOVERNMENT OF THE UNITED STATES OF 
 AMERICA AND THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA, SIGNED AT 
                    WASHINGTON ON SEPTEMBER 16, 1999





 May 18, 2000.--The Treaty was read the first time, and together with 
the accompanying papers, referred to the Committee on Foreign Relations 
          and ordered to be printed for the use of the Senate


                               __________

                    U.S. GOVERNMENT PRINTING OFFICE
79-118                     WASHINGTON : 2000

                         LETTER OF TRANSMITTAL

                              ----------                              

                                     The White House, May 18, 2000.
To the Senate of the United States:
    With a view to receiving the advice and consent of the 
Senate to ratification, I transmit herewith the Extradition 
Treaty Between the Government of the United States of America 
and the Government of the Republic of South Africa, signed at 
Washington on September 16, 1999.
    In addition, I transmit, for the information of the Senate, 
the report of the Department of State with respect to the 
Treaty. As the report explains, the Treaty will not require 
implementing legislation.
    The provisions in this Treaty follow generally the form and 
content of extradition treaties recently concluded by the 
United States.
    The Treaty is one of a series of modern extradition 
treaties being negotiated by the United States to counter 
criminal activities more effectively. Upon entry into force, 
the Treaty will replace the outdated Treaty Relating to the 
Reciprocal Extradition of Criminals signed at Washington, 
December 18, 1947, and in force between the two countries since 
April 30, 1951. Together with the Treaty Between the Government 
of the United States of America and the Government of the 
Republic of South Africa on Mutual Legal Assistance in Criminal 
Matters, also signed September 16, 1999, this Treaty will, upon 
entry into force, enhance cooperation between the law 
enforcement communities of the two countries. It will thereby 
make a significant contribution to international law 
enforcement efforts against serious offenses, including 
terrorism, organized crime, and drug-trafficking offenses.
    I recommend that the Senate give early and favorable 
consideration to the Treaty and give its advice and consent to 
ratification.

                                                William J. Clinton.
                          LETTER OF SUBMITTAL

                              ----------                              

                                       Department of State,
                                        Washington, April 19, 2000.
The President,
The White House.
    The President: I have the honor to submit to you the 
Extradition Treaty Between the Government of the United States 
of America and the Government of the Republic of South Africa, 
signed at Washington on September 16, 1999. I recommend that 
the Treaty be transmitted to the Senate for its advice and 
consent to ratification.
    The Treaty follows closely the form and content of 
extradition treaties recently concluded by the United States. 
The Treaty is the second modern extradition treaty that the 
United States has negotiated with a sub-Saharan African country 
in recent years (the other being Zimbabwe), and represents a 
major step forward in United States efforts to strengthen 
cooperation with countries in the region in combating 
terrorism, organized crime, drug trafficking and other 
offenses.
    The Treaty is an important part of a concerted effort by 
the Department of State and the Department of Justice to 
modernize the legal tools available for the extradition of 
serious offenders. Upon entry into force, the Treaty will 
replace the Treaty Relating to the Reciprocal Extradition of 
Criminals signed at Washington December 18, 1947 and entered 
into force April 30, 1951. The current treaty has become 
outmoded and the new treaty will provide significant 
improvements. The new treaty will not require any implementing 
legislation.
    Article 1 obligates the Parties to extradite to each other, 
pursuant to the provisions of the Treaty, persons who have been 
charged with or convicted of an extraditable offense.
    Article 2 concerns extraditable offenses. Article 2(1) 
defines an extraditable offense as one punishable under the 
laws in both States by deprivation of liberty for a period of 
at least one year or by a more severe penalty. Use of such a 
``dual criminality'' clause rather than a list of offenses 
covered by the Treaty obviates the need to renegotiate or 
supplement the Treaty as additional offenses become punishable 
under the laws in both States.
    Article 2(2) defines an extraditable offense further as 
including attempting or conspiring to commit or aiding, 
abetting, inducing, counseling or procuring the commission of, 
or being an accessory before or after the fact to, an 
extraditable offense.
    Additional flexibility is provided by Article 2(3), which 
provides that an offense shall be an extraditable offense 
whether or not the laws in the two States place the offense 
within the same category of offenses or describe the offense by 
the same terminology; or the offense is one for which United 
States federal law requires the showing of such matters as 
interstate transportation, or use of the mails or of other 
facilities affecting interstate or foreign commerce, such 
matters being merely for the purpose of establishing 
jurisdiction in a United States federal court.
    With regard to offenses committed outside the territory of 
the Requesting State, Article 2(4) provides that extradition 
shall be granted where the laws in the Requested State provide 
for the punishment of an offense committed outside its 
territory in similar circumstances. It also provides that the 
executive authority of the Requested State may, in its 
discretion, grant extradition where its laws do not so provide.
    Article 2(5) provides that extradition is also to be 
granted for a person convicted of but not yet sentenced, or 
convicted of and sentenced for an extraditable offense, for the 
purpose of sentence, or for enforcing such sentence or the 
remaining portion thereof, as the case may be.
    As to an offense against a law relating to taxation, 
customs duties, exchange control, or other revenue matters, 
Article 2(6) provides thatextradition may not be refused 
because the law of the Requested State does not impose the same kind of 
tax or duty or does not have the same kind of regulation as the law of 
the Requesting State.
    Finally, Article 2(7) provides that if extradition is 
granted for an extraditable offense, it shall also be granted 
for other offenses specified in the request that do not meet 
the minimum deprivation of liberty requirement, provided that 
all other extradition requirements are met.
    Article 3 provides that extradition shall not be refused on 
the ground of the nationality of the person sought.
    As is customary in extradition treaties, Article 4 
incorporates a political and military offense exception to the 
obligation to extradite. Article 4(1) states generally that 
extradition shall not be granted for political offenses. 
Article 4(2) specifies five specific categories of offenses 
that shall not be considered political offenses: (a) a murder 
or other violent crime against a Head of State or Deputy Head 
of State of the Requesting or Requested State, or a member of 
such person's family; (b) an offense for which both the 
Requesting and Requested States have the obligation pursuant to 
a multilateral international agreement to extradite the person 
sought or to submit the case to their respective competent 
authorities for decision as to prosecution (e.g., the 
Convention for the Suppression of Unlawful Seizures of 
Aircraft, done at the Hague on 16 December 1970, 22 UST 1641, 
TIAS 7192.); (c) murder; (d) an offense involving kidnapping, 
abduction, or any form of unlawful detention, including the 
taking of a hostage; and (e) attempting or conspiring to 
commit, aiding, abetting, inducing, counseling or procuring the 
commission of, or being an accessory before or after the fact 
to such offenses.
    Article 4(c) further provides that notwithstanding the five 
exceptions in Article 4(2), extradition shall not be granted if 
the executive authority of the Requested State determines that 
there are substantial grounds for believing that the request 
has been made for the purpose of prosecuting or punishing a 
person on account of that person's gender, race, religion, 
nationality, or political opinion.
    Article 4(4) requires that extradition be denied for 
offenses under military law that are not offenses under 
ordinary criminal law (for example, desertion).
    Under Article 5, when an offense for which surrender is 
sought is punishable by death under the laws in the Requesting 
State but not under the laws in the Requested State, the 
Requested State may refuse extradition unless the Requesting 
State provides assurances that the death penalty will not be 
imposed, or if imposed, will not be carried out. It further 
provides that if the Requesting State provides such an 
assurance, the death penalty, if imposed by the courts of the 
Requesting State, shall not be carried out.
    Article 6 bars extradition when the person sought has been 
convicted or acquitted in the Requested State for the same 
offense, but does not bar extradition if the competent 
authorities in the Requested State have declined to prosecute 
or have decided to discontinue criminal proceedings against the 
person sought, provided that such discontinuance does not have 
the effect of acquittal, or have decided merely to investigate 
the person for the same acts or omissions.
    Article 7 concerns temporary and deferred surrender. If a 
person whose extradition is sought is being prosecuted or is 
serving a sentence in the Requested State, the Requested State 
may postpone the extradition proceedings until its prosecution 
has been concluded or the sentence has been served.
    Alternatively, that State may temporarily surrender the 
person to the Requesting State for the purpose of prosecution. 
The person so surrendered shall be kept in custody in the 
Requesting State and returned to the Requested State after the 
conclusion of the proceedings against that person, on 
conditions agreed between the Requesting and Requested States.
    Article 8 provides that extradition shall not be granted 
when the prosecution has become barred by lapse of time 
according to the laws in the Requesting State.
    Article 9 establishes the procedures and describes the 
documents that are required to support a request for 
extradition. It requires that all requests be submitted in 
writing through the diplomatic channel. Article 9(3) provides 
that among other things a request for the extradition of a 
person sought for prosecution must be supported by such 
information as would justify committal for extradition under 
the laws of the Requested State, but that neither State is 
required to meet the higher standard of establishing a prima 
facie case.
    Article 10 establishes the procedures under which documents 
submitted pursuant to Article 9 shall be received and admitted 
into evidence in each State when it is the Requested State.
    Article 11 specifies that any extradition-related document 
that is not in English must be accompanied by an English 
translation.
    Article 12 provides that if the executive authority of the 
Requested State determines that information furnished in 
support of the request for extradition furnished in support of 
the request for extradition is insufficient to enable the 
request for extradition to be granted, it shall notify the 
Requesting State and may fix a reasonable time limit for 
furnishing additional information. The article provides further 
that nothing shall prevent the executive authority of the 
Requested State from presenting to a court of that State 
information sought or obtained after submission of the request 
to the Court or after expiration of the time fixed for 
providing additional information.
    Article 13 sets forth procedures for the provisional arrest 
and detention of the person sought in cases of urgency, pending 
receipt of the documents in support of an extradition request, 
as provided in Article 9. Article 13(4) provides that if the 
Requested State's executive authority has not received the 
documents required in Article 9 upon the expiration of sixty 
days from the date of provisional arrest, the person may be 
discharged from custody. It provides further that receipt by 
the Embassy of the Requested State located in the Requesting 
State shall constitute receipt by the executive authority of 
the Requested State. Article 13(5) explicitly provides that the 
release of a person from custody pursuant to Article 13(4) does 
not prejudice subsequent re-arrest and extradition if the 
documents required in Article 9 are delivered at a later date.
    Article 14 specifies the procedures governing surrender and 
return of persons sought. It requires the Requested State to 
provide prompt notice to the Requesting State of its decision 
on the request for extradition and to provide reasons for any 
complete or partial refusal of a request. If extradition is 
granted, the relevant authorities of the States shall agree on 
the date and place for the surrender of the person sought 
including rescheduling that date if circumstances beyond the 
control of either state prevent surrendering or receiving the 
person sought. Article 14(4) provides that if the person sought 
is not removed from the territory of the Requested State within 
the time period prescribed by the law of that State, the person 
may be discharged from custody and the Requested State, in its 
discretion, may subsequently refuse extradition for the same 
offense.
    Article 15 provides a non-exclusive list of factors to be 
considered by the Requested State in determining to which State 
to surrender a person sought by more than one State.
    Article 16 provides that if extradition is granted, the 
Requested State may, to the extent permitted under its law, 
seize and surrender to the Requesting State all properly found 
in the Requested State and acquired as a result of the offense 
or connected thereto or that may be required as evidence. Such 
property may be surrendered, upon request, even if the 
extradition cannot be carried out due to thedeath, 
disappearance, or escape of the person sought. Surrender of the 
property may be temporary, upon satisfactory assurances concerning its 
return, or may be deferred if the property is required in connection 
with pending criminal proceedings in the Requested State. Article 16(4) 
provides that any rights of the Requested State or third parties may 
have to such property must be duly respected in accordance with the law 
in the Requested State.
    Article 17 sets forth one aspect of the rule of specialty 
under international law. It provides, subject to specific 
exceptions, that a person extradited under the Treaty may not 
be detained, tried or punished in the Requesting State for any 
offense committed before his or her extradition other than for 
(a) an offense for which extradition has been granted or any 
other extraditable offense of which the person could be 
convicted on the same facts, or a lesser included offense; or 
(b) an offense for which the executive authority of the 
Requested State consents to the person's detention, trial or 
punishment. These restrictions do not apply if the person has 
had an opportunity to leave the territory of the Requesting 
state after extradition and has not done so within fifteen days 
or has left and voluntarily returned.
    Article 18 addresses another aspect of the rule of 
specialty, barring re-extradition for a crime committed prior 
to surrender under this Treaty without the consent of the 
Requested State who had surrendered the person (unless, as in 
Article 17, the person has voluntarily remained more than 
fifteen days from final discharge or has left and voluntarily 
returned). Article 18 makes clear that such re-extradition is 
prohibited not only to third states but also to international 
tribunals, consistent with the rule of specialty under 
international law.
    Article 19 permits surrender by the Requested State without 
further proceedings if the person sought consents to be 
surrendered.
    Article 20 governs that transit through the territory of 
one Sate of a person being surrendered to the other State by a 
third State when authorized by the transit State.
    Article 21 contains provisions on representation and 
expenses. Specifically, the Requested State must bear the 
expenses incurred and represent the interests of the Requesting 
State in any proceedings arising out of a request for 
extradition. The requested State must also bear expenses 
incurred in the arrest and detention of the person sought until 
that person is surrendered to the Requesting State. The 
Requesting State must pay all expenses incurred in translation 
of extradition documents and in conveying the person from the 
territory of the Requested State. Article 21(4) clarifies that 
neither State shall make any pecuniary claim against the other 
State arising out of the arrest, detention, examination, or 
surrender of persons under the Treaty.
    Article 22 provides that the United States and South 
African Departments of Justice may consult with each other 
directly or though INTERPOL in connection with the processing 
of individual cases in furtherance of efficient implementation 
of the Treaty.
    Article 23 makes the Treaty applicable to offenses 
contemplated in Article 2 whether committed before, on or after 
the date the Treaty enters into force. It also provides that 
nothing in the Treaty will require or authorize any action by 
the Requested State that is contrary to the constitution of 
that State.
    Article 24 contains final clauses dealing with the Treaty's 
entry into force and termination. It provides that the Treaty 
is subject to ratification and that the Treaty shall enter into 
force upon the exchange of instruments of ratification, which 
is to take place as soon as possible. Either State may 
terminate the Treaty by giving six months written notice to the 
other State.
    Article 24(3) provides that, upon entry into force of this 
Treaty, the Treaty Relating to the Reciprocal Extradition of 
Criminals, signed at Washington December 18, 1947, shall cease 
to have any effect. Nevertheless, that Treaty shall continue to 
apply to any extradition proceedings in which extradition 
documents have already been submitted to the courts of the 
Requested State at the time this Treaty enters into force, 
except that Article 17 and 18, addressing the rule of 
specialty, and Article 19 providing for voluntary surrender, 
shall apply to such extradition cases.
    A Technical Analysis explaining in detail the provisions of 
the Treaty is being prepared by the United States negotiating 
delegation, consisting of representatives from the Departments 
of Justice and State, and will be transmitted separately to the 
Senate Committee on Foreign Relations.
    The Department of Justice joins the Department of State in 
favoring approval of this Treaty by the Senate at an early 
date.
    Respectfully submitted,
                                                    Strobe Talbott.


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