[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.