[Senate Treaty Document 109-3]
[From the U.S. Government Publishing Office]



109th Congress                                              Treaty Doc.
                                 SENATE                     
 1st Session                                                      109-3
_______________________________________________________________________

                                     

 
          PROTOCOL AMENDING EXTRADITION CONVENTION WITH ISRAEL

                               __________

                                MESSAGE

                                  from

                   THE PRESIDENT OF THE UNITED STATES

                              transmitting

PROTOCOL BETWEEN THE GOVERNMENT OF THE UNITED STATES AND THE GOVERNMENT 
 OF THE STATE OF ISRAEL AMENDING THE CONVENTION ON EXTRADITION, SIGNED 
                      AT JERUSALEM ON JULY 6, 2005




September 13, 2005.--The Protocol was read the first time, and together 
  with the accompanying papers, referred to the Committee on Foreign 
      Relations and order to be printed for the use of the Senate
                         LETTER OF TRANSMITTAL

                              ----------                              

                               The White House, September 13, 2005.
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 Protocol 
between the Government of the United States and the Government 
of the State of Israel, signed at Jerusalem on July 6, 2005.
    In addition, I transmit for the information of the Senate 
the report of the Department of State with respect to the 
Protocol. As the report explains, the Protocol will not require 
implementing legislation.
    The Protocol amends the Convention Relating to Extradition 
(the ``1962 Convention''), signed at Washington on December 10, 
1962. The Protocol updates the 1962 Convention in a manner 
consistent with our modern extradition treaties. The Protocol 
will, upon entry into force, enhance cooperation between the 
law enforcement communities of both nations and make a 
significant contribution to international law enforcement 
efforts.
    I recommend that the Senate give early and favorable 
consideration to the Protocol and give its advice and consent 
to ratification.

                                                    George W. Bush.
                          LETTER OF SUBMITTAL

                              ----------                              

                                       Department of State,
                                       Washington, August 15, 2005.
The President,
The White House.
    The President: I have the honor to submit to you the 
Protocol between the Government of the United States and the 
Government of the State of Israel Amending the Convention on 
Extradition (``Protocol''), signed at Jerusalem on July 6, 
2005. Upon its entry into force, the Protocol would amend the 
Convention Relating to Extradition signed at Washington on 
December 10, 1962 (``1962 Convention''). I recommend that the 
Protocol be transmitted to the Senate for its advice and 
consent to ratification.
    The Protocol updates the existing Convention in a manner 
consistent with our modern extradition treaties. The Protocol 
will enhance cooperation between the law enforcement 
communities of both nations and make a significant contribution 
to international law enforcement efforts.
    The Protocol is designed to be self-executing and will not 
require implementing legislation.
    Article 1 of the Protocol amends the 1962 Convention, by 
deleting the pre-existing Article II and replacing it with New 
Article II. New Article II(1) replaces the current list of 
extraditable offenses in Article II of the 1962 Convention with 
a modern dual criminality provision that requires that the 
offense for which a fugitive is requested be punishable under 
laws of both states for a period of one year or by a more 
severe penalty.
    New Article II(2) defines an extraditable offense to 
include also any attempt or conspiracy to commit an offense, 
participation in an offense, aiding and abetting, counseling, 
causing or procuring the commission of an offense, or being an 
accessory before or after the fact, provided that such attempt, 
conspiracy, participation, aiding and abetting, counseling, 
causing or procuring, or being an accessory is punishable under 
the laws of both Parties by deprivation of liberty for a period 
of one year or by a more severe penalty.
    Additional flexibility is provided by New Article II(3), 
which provides that an offense shall be considered an 
extraditable offense: (1) whether or not the laws of the 
parties place the offense within the same category of offenses 
or describe the offense by the same terminology; (2) whether or 
not 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.
    New Article II(4) provides that if extradition has been 
granted for an extraditable offense, it shall also be granted 
for any other offense specified in the request, even if the 
other offenses are punishable by less than one year's 
deprivation of liberty, provided that all other requirements 
for extradition have been met.
    Article 2 of the Protocol amends the 1962 Convention, by 
replacing the pre-existing Article IV with New Article IV. New 
Article IV(1), provides that, except as provided in the New 
Article IV, extradition shall not be refused on the ground that 
the person sought is a national of the Requested Party.
    New Article IV(2) states that if domestic law so requires, 
a Party may condition the extradition of a national and 
resident upon an assurance that, if the person sought is 
sentenced to a term of imprisonment after extradition, the 
person shall be returned to the Requested Party to serve the 
sentence imposed in the RequestingParty. This would allow an 
Israeli citizen to be extradited to the United States with assurances 
that the fugitive may return to Israel to serve any sentence imposed in 
the United States.
    New Article IV(3) sets out the procedures with respect to 
assurances made pursuant to New Article IV(2). New Article 
IV(3)(a) states that an assurance shall cease to have effect if 
the person agrees to serve any sentence imposed in the 
Requesting Party or refuses to consent or withdraws a prior 
consent to serve the sentence in the Requested Party.
    New Article IV(3)(b) requires that the Requesting Party 
shall promptly inform the Requested Party of the results of the 
trial or sentencing and of appeal or other judicial review of 
the judgment, if any.
    New Article IV(3)(c) states that when a prison sentence 
imposed following an Article IV(2) extradition has become 
final, the Parties shall thereafter make best efforts to 
transfer the person as expeditiously as possible. New Article 
IV(3)(d) states that if a person extradited under an Article 
IV(2) assurance is given a prison sentence and is also ordered 
to pay a fine or restitution, the Requested Party shall take 
steps to collect the fine or restitution to the extent 
possible.
    New Article IV(3)(e) provides that the return of a person 
following an Article IV(2) assurance, to the extent that it is 
not inconsistent with Article IV, shall be in accord with other 
treaties and agreement regarding the transfer of sentenced 
persons in force between the Parties, unless the Parties agree 
otherwise. Notably, both the United States and Israel are 
parties to the Council of Europe Convention on the Transfer of 
Sentenced Persons.
    New Article IV(4) and (5) provide for imposition of the 
Requesting Party's sentence even if that sentence exceeds the 
maximum penalty for such offense in the Requested Party. 
Paragraph (4) covers situations where the fugitive is 
extradited, tried and sentenced, and returned to serve that 
sentence pursuant to an assurance under paragraph (2). 
Paragraph (5) covers situations where the fugitive has fled 
after having been sentenced and is not extradited because he or 
she is a national of the Requested State and the Requested 
State will not extradite its nationals in such circumstances.
    New Article IV(6) provides that if extradition of a 
national and resident is refused because an assurance as set 
forth in New Article IV(2) has not been provided, the Requested 
Party shall, at the request of the Requesting Party, submit the 
case to its authorities for a decision as to prosecution.
    Article 3 of the Protocol replaces pre-existing Article VI 
with New Articles VI and VI bis. As is customary in extradition 
treaties, New Article VI incorporates a political offense 
exception to the obligation to extradite. New Article VI(1) 
states generally that extradition shall not be granted for 
political offenses.
    New Article VI(2) specifies six categories of offenses that 
shall not be considered to be political offenses: (a) a murder 
or other violent crime against the Head of State of a 
Contracting Party, or of a member of the Head of State's 
family; (b) an offense for which both Parties are obliged 
pursuant to a multilateral international agreement to extradite 
the person sought or to submit the case to their competent 
authorities for decision as to prosecution; (c) murder, 
manslaughter, malicious wounding, or inflicting grievous bodily 
harm; (d) an offense involving kidnapping, abduction, or any 
form of unlawful detention, including the taking of a hostage; 
(e) an offense involving the making, use or possession of a 
bomb, grenade, rocket or any other explosive, incendiary or 
destructive device with the intention to endanger life or cause 
serious damage toproperty; and (f) a conspiracy to commit any 
of the foregoing offenses, or aiding and abetting, counseling or 
participating as an accomplice of a person who commits or attempts to 
commit such offenses.
    New Article VI(3) provides that the executive authority of 
the Requested Party may refuse extradition for offenses under 
military law that are not offenses under ordinary criminal law 
(e.g. desertion).
    New Article VI(4) provides that extradition shall not be 
granted if the executive authority of the Requested Party (for 
the United States, the Secretary of State) determines that the 
request was primarily politically motivated or made for the 
primary purpose of prosecuting or punishing someone on account 
of his race or religion.
    New Article VI bis (1) bars extradition when the person 
sought has been convicted or acquitted in the Requested Party 
or another country for the same offense. New Article VI bis (2) 
provides that extradition shall not be precluded by the fact 
that competent authorities in the Requested Party have declined 
to prosecute or have decided to discontinue criminal 
proceedings against the person sought.
    Article 4 of the Protocol replaces pre-existing Article 
VIII with New Articles VIII and VIII bis. New Article VIII 
concerns temporary and deferred surrender. New Article VIII(1) 
states that if a person whose extradition is sought is being 
investigated or prosecuted in the Requested Party, that State 
may postpone extradition proceedings until its prosecution has 
been concluded. According to New Article VIII(2), if 
extradition is granted in the case of a person who is being 
proceeded against or is serving a sentence in the Requested 
Party, that State may still postpone surrender until the person 
has served any sentence imposed or may temporarily surrender 
the person sought.
    New Article VIII bis introduces a more flexible statute of 
limitations provision. The 1962 Convention provides that if an 
offense is time-barred in the Requested Party, extradition 
shall not be granted. New Article VIII bis would limit this 
exception to only those situations where the Requested Party's 
laws required the denial of extradition.
    Article 5 deletes Article IX of the 1962 Convention. The 
pre-existing Article IX provided that extradition 
determinations shall be made in accordance with the domestic 
law of the Requested Party and that the person whose 
extradition is sought shall have the right to use such remedies 
and recourses as are provided by such law. This provision has 
been removed as unnecessary and confusing.
    Article 6 of the Protocol replaces pre-existing Article X 
with New Articles X, X bis and X ter. New Article X establishes 
the procedures and describes the documents that are required to 
support a request for extradition. It requires that all 
requests be submitted through the diplomatic channel. New 
Article X bis establishes the procedures under which documents 
submitted pursuant to the Protocol shall be received and 
admitted into evidence. It streamlines the authentication 
provisions by eliminating the need for diplomatic or consular 
authentication of Israeli requests. Instead, Israeli requests 
would be authenticated by the official seal of the Israeli 
Ministry of Justice.
    New Article X ter stipulates that the request for 
extradition and all other documents submitted by the Requesting 
Party shall be translated into the language of the Requested 
Party, unless otherwise agreed.
    Article 7 of the Protocol replaces Article XI of the 
Convention. New Article XI sets forth procedures for the 
provisional arrest and detention, in case of urgency, of a 
person sought pending presentation of the formal request for 
extradition. New Article XI(1) provides that a requestfor 
provisional arrest may be transmitted through the diplomatic channel or 
directly between the United States Department of Justice and the 
Israeli Ministry of Justice. New Article XI(2) lists the components 
required for a proper provisional arrest request.
    New Article XI(3) requires that the Requesting Party shall 
be notified without delay of the disposition of its request for 
provisional arrest and the reasons for any inability to proceed 
with the request.
    New Article XI(4) provides that if the Requested Party's 
executive authority has not received the request for 
extradition and supporting documentation required in Article X 
bis within 60 days after the provisional arrest, the person may 
be discharged from custody. New Article XI(5) states that 
discharge from custody pursuant to New Article XI(4) does not 
prejudice subsequent rearrest and extradition upon later 
delivery of the extradition request and supporting documents.
    Article 8 of the Protocol replaces Article XIII of the 
Convention. New Article XIII(1) sets forth the rule of 
speciality. It provides, subject to specific exceptions, that a 
person extradited under the Treaty may not be detained, tried, 
or punished in the Requesting Party for an offense other than 
that for which extradition has been granted. This prohibition 
applies, unless (a) the offense is based on the same facts as 
the offense for which extradition was granted; (b) the offense 
was committed after the extradition of the person; or (c) the 
offense is one for which the executive authority of the 
Requested Party consents to the person's detention.
    New Article XIII(2) prohibits the Requesting Party from 
extraditing such person to a third State or surrendering such 
person to an international tribunal for an offense committed 
prior to the original surrender unless the Requested Party 
consents.
    New Article XIII(3) states that if a person leaves the 
territory of the Requesting Party after extradition and 
voluntarily returns to it or that person does not leave the 
territory of the Requesting Party within 30 days of when he is 
free to leave, then he may be detained, tried, punished, 
extradited to a third State or surrendered to an international 
tribunal.
    Article 9 replaces pre-existing Article XVII on the waiver 
of consent to extradition proceedings. New Article XVII 
specifies that if a fugitive consents to be surrendered, he 
will be extradited without further proceedings.
    Article 10 replaces pre-existing Article XVIII with New 
Articles XVIII, XVIII bis and XVIII ter. New Article XVIII 
provides that either Party may authorize transportation through 
its territory of a person surrendered to the other Party by a 
third State or from the other Party to a third State. 
Authorization is not required when air transportation is used 
by one Party and no landing is scheduled in the territory of 
the other Party. In the event of an unscheduled landing, New 
Article VIII(2) provides for a procedure by which the Party in 
which the landing occurs may require a request for transit. New 
Article VIII(3) provides that the Party requesting transit 
shall reimburse the Party through whose territory such person 
is transported for any expense incurred by the latter in 
connection with such transportation, unless otherwise agreed.
    New Article XVIII bis specifies that the Requested Party 
represents the Requesting Party in extradition proceedings and 
providing for the costs of such representation.
    New Article XVIII ter provides that the U.S. Department of 
Justice and the Ministry of Justice of Israel may consult with 
each other in connection with the processing of individual 
cases and in furtherance of efficient implementation of the 
Convention.
    Article 11 of the Protocol provides that the Protocol 
applies to offenses committed before as well as after the date 
it enters into force.
    Article 12 of the Protocol provides that the Protocol, 
which is subject to ratification, shall enter into force on the 
date of the latter of the diplomatic notes by which the Parties 
notify each other that their internal legal requirements for 
the entering into force of the Protocol have been satisfied.
    The Department of Justice joins the Department of State in 
favoring approval of this Treaty by the Senate at the earliest 
possible date.
    Respectfully Submitted.
                                                  Condoleezza Rice.


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