[Senate Executive Report 104-28]
[From the U.S. Government Publishing Office]



104th Congress                                              Exec. Rept.
                                 SENATE

 2d Session                                                      104-28
_______________________________________________________________________


 
 EXTRADITION TREATY WITH BELGIUM AND SUPPLEMENTARY EXTRADITION TREATY 
                              WITH BELGIUM

                                _______
                                

                 July 30, 1996.--Ordered to be printed

_______________________________________________________________________


   Mr. Helms, from the Committee on Foreign Relations, submitted the 
                               following

                              R E P O R T

              [To accompany Treaty Docs. 104-7 and 104-8]

    The Committee on Foreign Relations to which was referred 
the Extradition Treaty Between the United States of America and 
the Kingdom of Belgium signed at Brussels on April 27, 1987 and 
the Supplementary Treaty on Extradition Between the United 
States of America and the Kingdom of Belgium to Promote the 
Repression of Terrorism, signed at Brussels on April 27, 1987, 
having considered the same, reports favorably thereon with one 
proviso to each treaty and recommends that the Senate give its 
advice and consent to the ratification thereof as set forth in 
this report and the accompanying resolutions of ratification.

                               I. Purpose

    Modern extradition treaties (1) identify the offenses for 
which extradition will be granted, (2) establish procedures to 
be followed in presenting extradition requests, (3) enumerate 
exceptions to the duty to extradite, (4) specify the evidence 
required to support a finding of a duty to extradite, and (5) 
set forth administrative provisions for bearing costs and legal 
representation.

                             II. Background

    On April 27, 1987, the President signed two extradition 
treaties with Belgium. The Treaties were transmitted to the 
Senate for its advice and consent to ratification on June 12, 
1995. In recent years the Departments of State and Justice have 
undertaken a modernization effort for U.S. bilateral 
extradition treaties to better combat international criminal 
activity, such as drug trafficking, terrorism and money 
laundering. The United States is a party to approximately 100 
bilateral extradition treaties. According to the Justice 
Department, during 1995 131 individuals were extradited to the 
United States and 79 individuals were extradited from the 
United States.
    The increase in international crime also has prompted the 
U.S. Government to become a party to several multilateral 
international conventions which, although not themselves 
extradition treaties, deal with international law enforcement 
and provide that the offenses which they cover shall be 
extraditable offenses in any extradition treaty between the 
parties. These include: The Convention for the Suppression of 
Unlawful Seizure of Aircraft (Hague), art. 8; the Convention to 
Discourage Acts of Violence Against Civil Aviation (Montreal), 
art. 8; the Protocol Amending the Single Convention on Narcotic 
Drugs of 1961, art. 14 amending art. 36(2)(b)(I) of the Single 
Convention; the Convention to Prevent and Punish Acts of 
Terrorism Taking the Form of Crimes Against Persons and Related 
Extortion that are of International Significance (Organization 
of American States), art. 3; the Convention on the Prevention 
and Punishment of Crimes against Internationally Protected 
Persons, including Diplomatic Agents, art. 8; the International 
Convention against the Taking of Hostages, art. 10; the 
Convention on the Physical Protection of Nuclear Materials, 
art. 11; and the United Nations Convention against Illicit 
Traffic in Narcotic Drugs and Psychotropic Substances (Vienna). 
These multilateral international agreements are incorporated by 
reference in the United States' bilateral extradition treaties.

                              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 turn over 
persons who are within its jurisdiction and who are charged 
with crimes against, or are fugitives from, the Requesting 
State. Extradition treaties can be bilateral or multilateral, 
though until recently the United States showed little interest 
in negotiating multilateral agreements dealing with 
extradition.
    The contents of recent treaties follow a standard format. 
Article 1 sets forth the obligation of contracting states to 
extradite to each other persons charged by the authorities of 
the Requesting State with, or convicted of, an extraditable 
offense. Article 2, sometimes referred to as a dual criminality 
clause, defines extraditable offenses as offenses punishable in 
both contracting states by prison terms of more than one year. 
Attempts or conspiracies to commit an extraditable offense are 
themselves extraditable. Several of the treaties provide that 
neither party shall be required to extradite its own nationals. 
The treaties carve out an exception to extraditable crimes for 
political offenses. The trend in modern extradition treaties is 
to narrow the political offense exceptions.
    The treaties include a clause allowing the Requested State 
to refuse extradition in cases where the offense is punishable 
by death in the Requesting State, unless the Requesting State 
provides assurances satisfactory to the Requested State that 
the individual sought will not be executed.
    In addition to these substantive provisions, the treaties 
also contain standard procedural provisions. These specify the 
kinds of information that must be submitted with an extradition 
request, the language in which documents are to be submitted, 
the procedures under which documents submitted are to be 
received and admitted into evidence in the Requested State, the 
procedures under which individuals shall be surrendered and 
returned to the Requesting State, and other related matters.

                    B. Summary of Primary Provisions

1. Extraditable offenses: The dual criminality clause

    Article 2 contains a standard definition of what 
constitutes an extraditable offense: an offense is extraditable 
if it is punishable under the laws of both parties by a prison 
term of at least one year. Attempts and conspiracies to commit 
such offenses, and participation in the commission of such 
offenses, are also extraditable. If the extradition request 
involves a fugitive, it shall be granted only if the remaining 
sentence to be served is more than six months.
    The dual criminality clause means, for example, that an 
offense is not extraditable if in the United States it 
constitutes a crime punishable by imprisonment of more than one 
year, but it is not a crime in the treaty partner or is a crime 
punishable by a prison term of less than one year. In earlier 
extradition treaties the definition of extraditable offenses 
consisted of a list of specific categories of crimes. This 
categorizing of crimes has resulted in problems when a specific 
crime, for example drug dealing, is not on the list, and is 
therefore not extraditable. The result has been that as 
additional offenses become punishable under the laws of both 
treaty partners the extradition treaties between them need to 
be renegotiated or supplemented. A dual criminality clause 
obviates the need to renegotiate or supplement a treaty when it 
becomes necessary to broaden the definition of extraditable 
offenses.

2. Extraterritorial offenses

    In order to extradite individuals charged with 
extraterritorial crimes (offenses committed outside the 
territory of the Requesting State) such as international drug 
traffickers and terrorists, provision must be made in 
extradition treaties. The Belgium treaty and the Supplementary 
Belgium treaty are silent on the extraditionality of 
extraterritorial offenses. The Belgium treaty applies only to 
extraditable offenses within ``the jurisdiction'' of one of the 
contracting states (art. 1). Although the term ``jurisdiction'' 
could be interpreted as referring to the power of the courts of 
the Requesting State to try the alleged offender, historically 
the United States has interpreted it as referring only to the 
territorial jurisdiction of the Requesting State.\1\ Thus, it 
would appear that the Belgium treaty applies only to offenses 
committed on the territory of one of the parties.
---------------------------------------------------------------------------
    \1\ Michael Abbell and Bruno Ristau, 4 International Judicial 
Assistance 64 (International Law Institute, 1990).
---------------------------------------------------------------------------

3. Political offense exception

    In recent years the United State has been promoting a 
restrictive view of the political offense exception in 
furtherance of its campaign against terrorism, drug 
trafficking, and money laundering. Though some of the treaties 
considered by the Committee have taken a narrower view than 
others of the political offense exception, all of them give it 
a more limited scope than earlier U.S. extradition treaties. In 
general, the political offense exception is narrower in the 
Supplementary Belgium treaty, which excludes certain violent 
crimes, (i.e. murder, kidnapping, and others) from the 
political offense exception.
    The exclusion from the political offense exception for 
crimes covered by multilateral international agreements, and 
the obligation to extradite for such crimes or submit the case 
to prosecution by the Requested State, is now a standard 
exclusion and is contained in the proposed treaty. The 
incorporation by reference of these multilateral agreements is 
intended to assure that the offenses with which they deal shall 
be extraditable under an extradition treaty. But, extradition 
for such offenses is not guaranteed. A Requested State has the 
option either to extradite or to submit the case to its 
competent authorities for prosecution. For example, a Requested 
State could refuse to extradite and instead declare that it 
will itself prosecute the offender.
    The Belgium treaty and Supplementary Belgium treaty list 
for the most part the same exclusions to the political offense 
exception as are in other treaties, but take a somewhat 
different approach in dealing with these exclusions. First, it 
should be noted that the Belgium treaty itself contains a broad 
political offense exception with an exclusion only for attacks 
on a head of state or member of his family. It is the 
Supplementary Belgium treaty, which was negotiated for the 
specific purpose of limiting the political offense exception in 
order to facilitate the extradition of terrorists, that 
contains substantially the larger list of exclusions. However, 
the Supplementary Belgium treaty provides that the categories 
of offenses excluded from the political exception shall be 
extraditable, but only at the discretion of the Requested 
State, unless they create a collective danger to the life or 
liberty of any persons, affect an innocent bystander, involve 
the use of cruel or vicious means, or involve the taking of a 
hostage. In any of these latter situations, extradition, when 
requested, shall be mandatory rather than discretionary (arts. 
2 and 3). In effect, the Supplementary Belgium treaty reserves 
for the Requested State discretion whether or not to grant 
extradition for certain types of offenses, except when they are 
considered to be part of a terrorist plot or attack, in which 
case it is under an obligation to extradite.

4. The death penalty exception

    The United States and other countries appear to have 
different views on capital punishment. Under the proposed 
treaties, Belgium may refuse extradition for an offense 
punishable by the death penalty in the Requesting State if the 
same offense is not punishable by the death penalty in the 
Requested State, unless the Requesting State gives assurances 
satisfactory to the Requested State that the death penalty will 
not be imposed or carried out.

5. The extradition of nationals

    The U.S. does not object to extraditing its own nationals 
and has sought to negotiate treaties without nationality 
restrictions. Many countries, however, refuse to extradite 
their own nationals. U.S. extradition treaties take varying 
positions on the nationality issue.
    The Belgium treaty contains the traditional nationality 
clause providing that neither party is obligated to extradite 
its own nationals, but that they may do so at their discretion 
(Belgium, art. 3). Upon a refusal to extradite, the Requested 
State may be required by the Requesting State to submit the 
case to its authorities for prosecution.\2\
---------------------------------------------------------------------------
    \2\ An article in the Washington Post, A25, of June 28, 1996, 
reported that the Constitutional Court in Italy refused to allow the 
extradition to the United States of an Italian-born U.S. citizen or 
resident under the U.S.-Italy extradition treaty for a murder he 
committed in the United States despite U.S. assurances he would not be 
subject to the death penalty.
---------------------------------------------------------------------------

6. Retroactivity

    The proposed treaty states that it shall apply to offenses 
committed before as well as after it enters into force (art. 
20). These retroactivity provisions do not violate the 
Constitution's prohibition against the enactment of ex post 
facto laws which applies only to enactments making criminal 
acts that were innocent when committed, not to the extradition 
of a defendant for acts that were criminal when committed but 
for which no extradition agreement existed at the time.

7. The rule of speciality

    The rule of speciality (or specialty), which prohibits a 
Requesting State from trying an extradited individual for an 
offense other than the one for which he was extradited, is a 
standard provision included in U.S. bilateral extradition 
treaties, including the six under consideration. The Belgium 
treaty expresses the basic prohibition and also includes the 
following exceptions: an extradited individual may be tried by 
the Requesting State for an offense other than the one for 
which he was extradited if the Requested State (which may 
request the submission of additional supporting documents) 
waives the prohibition; the extradited individual leaves the 
territory of the Requesting State and voluntarily returns to 
it; the extradited individual does not leave the territory of 
the Requesting State within 15 days of the day on which he or 
she is free to leave; or, the extradited individual voluntarily 
consents to being tried for an offense other than the one for 
which he was extradited (art. 15). These exceptions to the 
speciality rule are designed to allow a Requesting State some 
latitude in prosecuting offenders for crimes other than those 
for which they had been specifically extradited.

8. Lapse of time

    The Belgium treaty states that extradition shall be denied 
if prosecution of an offense or execution of a penalty is 
barred by the statute of limitations of the Requested State 
(art. 2(6)).

                  IV. Entry Into Force and Termination

                          a. entry into force

    Both Treaties will enter into force on the first day of the 
second month after the exchange of instruments of ratification.

                             b. termination

    Both Treaties shall terminate six months after notice by a 
Party of an intent to terminate the Treaty.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the proposed treaties on Wednesday, July 17, 1996. The hearing 
was chaired by Senator Helms. The Committee considered the 
proposed treaties on July 24, 1996, and ordered the proposed 
treaties favorably reported with one proviso to each treaty by 
voice vote, with the recommendation that the Senate give its 
advice and consent to the ratification of the proposed 
treaties.

                         VI. Committee Comments

    The Committee on Foreign Relations recommended favorably 
the proposed treaty. The Committee believes that the proposed 
treaty is in the interest of the United States and urges the 
Senate to act promptly to give its advice and consent to 
ratification. In 1996 and the years ahead, U.S. law enforcement 
officers increasingly will be engaged in criminal 
investigations that traverse international borders. Certainly, 
sovereign relationships have always been important to 
prosecution of suspected criminals. The first recorded 
extradition treaty dates as far back as 1280 B.C. under Ramses 
II, Pharaoh of Egypt. The United States entered into its first 
extradition treaty in 1794 with Great Britain. Like these early 
treaties, the basic premise of the treaties is to facilitate, 
under specified conditions, the transfer of persons who are 
within the jurisdiction of one nation, and who are charged with 
crimes against, or are fugitives from, the nation requesting 
extradition. Despite the long history of such bilateral 
treaties, the Committee believes that these treaties are more 
essential than ever to U.S. efforts to bring suspected 
criminals to justice.
    In 1995, 131 persons were extradited to the U.S. for 
prosecution for crimes committed in the U.S., and the U.S. 
extradited 79 individuals to other countries for prosecution. 
After the Senate ratified an extradition treaty with Jordan in 
1995, the U.S. Attorney General was able to take into custody 
an alleged participant in the bombing of the World Trade 
Center. His prosecution would not be possible without an 
extradition treaty. Crimes such as terrorism, transshipment of 
drugs by international cartels, and international banking fraud 
are but some of the international crimes that pose serious 
problems to U.S. law enforcement efforts. The Committee 
believes that modern extradition treaties provide an important 
law enforcement tool for combating such crimes and will advance 
the interests of the United States.
    The proposed resolution of ratification includes a proviso 
that reaffirms that ratification of this treaty does not 
require or authorize legislation that is prohibited by the 
Constitution of the United States. Bilateral extradition 
treaties rely on relationships between sovereign countries with 
unique legal systems. In as much as U.S. law is based on the 
Constitution, this treaty may not require legislation 
prohibited by the Constitution.

                 VII. Explanation of Proposed Treaties

    The following is the Technical Analysis of the Extradition 
Treaty submitted to the Committee on Foreign Relations by the 
Departments of State and Justice prior to the Committee hearing 
to consider pending extradition treaties.

  A. Technical Analysis of the Extradition Treaty Between the United 
              States of America and the Kingdom of Belgium

    On April 27, 1987, in Brussels, the United States signed a 
treaty on extradition with the Kingdom of Belgium (``the 
Treaty''). The Treaty is intended to replace the outdated 
treaties currently in force between the United States and 
Belgium \3\ with a modern agreement for facilitating the 
extradition of serious offenders. No new legislation is needed 
in Belgium or in the United States in order to implement the 
provisions of the Treaty.
---------------------------------------------------------------------------
    \3\ Extradition between the United States and Belgium is currently 
governed by the following: (1) the Treaty for the Mutual Extradition of 
Fugitives from Justice Between the United States and the Kingdom of 
Belgium (``the 1901 Treaty''), Oct. 26, 1901, 32 Stat. 1894, T.S. 409, 
5 Bevans 508; (2) the Supplementary Convention to the Extradition 
Convention of October 26, 1901, June 20, 1935, 49 Stat. 3276, T.S. 900, 
5 Bevans 566; and (3) the Supplementary Extradition Convention, Nov. 
14, 1963, 15 U.S.T. 2252, T.I.A.S. No. 5715, 522 U.N.T.S. 237 (``the 
Supplementary Conventions'').
---------------------------------------------------------------------------
    The following technical analysis of the Treaty was prepared 
by the United States delegation that conducted the 
negotiations.

Article 1--Obligation to extradite

    This article formally obligates each Contracting State to 
extradite to the other Contracting State persons charged with 
or convicted of an extraditable offense, subject to the other 
provisions of the Treaty.

Article 2--Extraditable offenses

    This article contains the basic guidelines for determining 
what constitutes an extraditable offense. The Treaty is similar 
to recent United States extradition treaties with Canada 
(Protocol), Jamaica, Italy, Ireland, Thailand, Sweden 
(Supplementary Convention), Costa Rica, Switzerland and the 
Bahamas in that it does not list the offenses for which 
extradition may be granted.
    Paragraph 1 permits extradition for any offense punishable 
under the laws of both Contracting States by deprivation of 
liberty (i.e., imprisonment or other form of detention) for 
more than one year. By defining extraditable offenses in terms 
of ``dual criminality'' rather than attempting to list each 
extraditable crime, the Treaty obviates the need to renegotiate 
or supplement it should the Contracting States pass criminal 
laws dealing with a new type of criminal activity, or should 
the list inadvertently fail to cover an important type of 
criminal activity punishable in both countries.
    If extradition is sought for the execution of a sentence, 
paragraph 2 requires that the original sentence imposed be for 
imprisonment for a period of at least one year.\4\
---------------------------------------------------------------------------
    \4\ Some recent United States extradition treaties state that 
persons who have been convicted of an extraditable offense and 
sentenced to imprisonment may be extradited only if at least a certain 
portion of the sentence (often six months) remains to be served on the 
outstanding sentence. The Treaty contains no such requirement. The 
negotiators concluded that while there is merit in attempting to limit 
extradition to serious cases because of the significant costs 
associated with the process, the sentence imposed is a better measure 
of the seriousness of the offense than the portion of the sentence 
remaining to be served.
---------------------------------------------------------------------------
    Paragraph 3, which is similar to provisions in many other 
recent United States extradition treaties, expressly provides 
that extradition be granted for attempting to commit an 
extraditable offense, being an accessory to an extraditable 
offense, and conspiring to commit an extraditable offense (in 
violation of United States law) or being a member of an 
``association of wrongdoers'' (the Belgian legal equivalent of 
a conspiracy).
    Paragraphs 4 (a) and (b) state that in determining whether 
an offense is extraditable, the Contracting States ``shall 
consider only the essential elements of the offense punishable 
under the laws of both states,'' and shall not consider as an 
essential element of an offense any element included in the 
offense (such as use of the mails or interstate transportation 
of stolen goods) for the purpose of establishing jurisdiction 
in a United States federal court. Foreign judges are often 
confused by the fact that many United States federal statutes 
require proof of certain elements solely to establish 
jurisdiction in United States federal courts. These judges know 
of no similar requirement in their own criminal law and on 
occasion have denied the extradition of fugitives sought by the 
United States on federal charges on this basis. Paragraph 4 
requires that such elements be disregarded in applying the dual 
criminality principle. Thus, this clause will ensure that 
Belgian authorities treat United States requests for 
extradition for charges such as mail fraud \5\ in the same 
manner as fraud charges under state laws, and view the federal 
crime of interstate transportation of stolen property \6\ in 
the same manner as unlawful possession of stolen property. A 
similar provision is contained in all recent United States 
extradition treaties.
---------------------------------------------------------------------------
    \5\ 18 U.S.C. Sec. 1341.
    \6\ See 18 U.S.C. Sec. 2314.
---------------------------------------------------------------------------
    Paragraph 4(c) states that the Contracting States ``shall 
disregard that the respective laws do not place the offense 
within the same category of offenses or describe the offense by 
the same terminology'' in determining whether the offense is 
extraditable. This clause requires each Contracting 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 Contracting State. This reflects the 
intention of both countries to interpret the principles of 
paragraph 1 broadly. Similar clauses are found in most recent 
United States extradition treaties.
    Paragraph 5, which is similar to provisions in most recent 
United States extradition treaties, permits extradition for 
crimes that otherwise are not extraditable under the Treaty 
solely because they are misdemeanors, when extradition is 
granted with respect to another more serious offense. This 
provision permits the early resolution of all pending charges 
in the Requesting State.\7\
---------------------------------------------------------------------------
    \7\ See, e.g., U.S.-Italy Extradition Treaty, Oct. 13, 1983, art. 
II(3) T.I.A.S. No. 10837.
---------------------------------------------------------------------------
    Paragraph 6 requires the Requested State to deny 
extradition if prosecution of the offense for which extradition 
is sought would be barred by the Requested State's statute of 
limitations. The practical effect of this provision is to 
permit the Requested State to require the Requesting State to 
comply with the requirements of the Requested State's statute 
of limitations.
    The requirements of the Requesting State's prosecution may 
not easily conform to the Requested State's statute of 
limitations; the burden imposed by paragraph 6 on the 
Requesting State, however, is lessened by the fact that this 
paragraph requires the Requested State to consider insofar as 
possible the effect of acts that in the Requesting State 
interrupt the running of the Requesting State's statute of 
limitations. For example, under United States law, a 
defendant's flight from the jurisdiction to avoid prosecution 
tolls the running of the statute of limitations. The 
negotiators intended that Belgian authorities keep this fact in 
mind when considering any United States extradition request in 
which the comparable Belgian statute of limitations arguably 
has expired.

Article 3--Nationality

    This article states that each Contracting State has the 
discretionary power to extradite its own nationals unless 
prohibited from doing so by internal legislation. This clause, 
like the clause in article IV of the 1901 Treaty which it 
replaces, permits the United States to extradite its nationals 
to Belgium in accordance with established United States policy 
favoring such extraditions.\8\ However, as Belgium is barred by 
its internal law from extraditing Belgian nationals,\9\ it is 
unlikely that Belgium will actually surrender its nationals to 
the United States under the Treaty. The Treaty therefore 
includes a requirement that if the Requested States refuses 
extradition solely on the basis of nationality, the Requested 
State must submit the case to its authorities for prosecution 
if asked to do so by the Requesting State.
---------------------------------------------------------------------------
    \8\ See generally Shearer, ``Extradition in International Law,'' 
110-14 (1970); Whiteman, ``Digest of International Law,'' 871-76 
(1968). Our policy of drawing no distinction between United States 
nationals and others in extradition matters has been underscored by 
Congress in legislation. Title 18, United States Code, Section 3196 
authorizes the Secretary of State to extradite United States citizens 
pursuant to treaties that permit but do not expressly require surrender 
of citizens as long as the other requirements of the treaty have been 
met. 18 U.S.C. Sec. 3196.
    \9\ See Loi du 15 Mars 1874 Sur Les Extraditions, Matieres Penales, 
Codes Belge, art. 1.
---------------------------------------------------------------------------
    Similar provisions are found in many recent United States 
extradition treaties.\10\
---------------------------------------------------------------------------
    \10\ See, e.g., U.S.-Costa Rica Extradition Treaty, Nov. 10, 1922, 
art. 8, 43 Stat. 1621, T.S. 668, 6 Bevans 1033; U.S.-Mexico Extradition 
Treaty, May 4, 1978, art. 9, 31 U.S.T. 5059, T.I.A.S. No. 9656.
---------------------------------------------------------------------------

Article 4--Political and military offenses

    Paragraph 1 prohibits extradition for political offenses.
    Paragraph 2 states that a murder or other criminal act 
directed against Heads of State of the Contracting States, or a 
member of their families, or an attempt to commit, conspiracy 
to commit, or being an accessory to such a crime, shall not be 
considered political offenses within the meaning of paragraph 
1.
    Paragraph 3 bars extradition when the executive authority 
of the Requested State determines that the request, although 
appearing to be for an extraditable offense, is in fact 
politically motivated. This paragraph is similar to provisions 
in other recent United States extradition treaties that permit 
denial of extradition if the Requested State determines that 
the request was made for political purposes or with political 
motivation.\11\
---------------------------------------------------------------------------
    \11\ CF. U.S.-Jamaica Extradition Treaty, June 14, 1983, art. 
III(3), T.I.A.S. No. --; U.S.-Spain Extradition Treaty, May 29, 1970, 
art. 5(5), 22 U.S.T. 737, T.I.A.S. No. 7136, 796 U.N.T.S. 245; U.S.-
Netherlands Extradition Treaty, June 24, 1980, art. 4(1), T.I.A.S. No. 
10733; U.S.-Ireland Extradition Treaty, July 13, 1983, art. IV(c), 
T.I.A.S. No. 10813.
    In the United States, longstanding law and practice have been that 
the Secretary of State alone has the discretion to determine whether or 
not a foreign country's request is based on improper political 
motivation. See Eain v. Wilkes, 641 F.2d 504, 513-18 (7th Cir.), cert. 
denied, 454 U.S. 894 (1981). Paragraph 3 follows this jurisprudence in 
specifying that the ``executive authority'' of the Requested State 
makes this determination.
---------------------------------------------------------------------------
    Paragraph 4 provides that extradition may be denied if the 
offense is an offense under military law that is not an offense 
under ordinary criminal law. An example of such a crime is 
desertion.\12\
---------------------------------------------------------------------------
    \12\ See, e.g., Matter of Extradition of Suarez-Mason, 694 F. Supp. 
676, 703 (N.D. Cal. 1988).
---------------------------------------------------------------------------
    The Treaty contains only a portion of the agreement between 
the two Contracting States concerning application of the 
political offense exception. Because of the seriousness with 
which both countries view acts of terrorism, the Contracting 
States signed the Supplementary Treaty on Extradition to 
Promote the Repression of Terrorism (``the Supplementary 
Treaty'') on March 17, 1987. The Supplementary Treaty further 
restricts the application of the political offense exception, 
making it unavailable for the offenses of murder, hostage-
taking, and other crimes typically committed by terrorists.
    Paragraph 5 establishes that when the provisions of 
paragraphs 1 through 4 conflict with provisions of the 
Supplementary Treaty, the terms of the Supplementary Treaty 
control.

Article 5--Prior jeopardy for the same offense

    Paragraph 1, which prohibits extradition if the person 
sought has been found guilty, convicted, or acquitted in the 
Requested State for the offense for which extradition is 
requested, is similar to provisions in many United States 
extradition treaties. This paragraph permits extradition, 
however, if the person sought is charged in each Contracting 
State with different offenses arising out of the same basic 
transaction.
    Paragraph 1 prohibits extradition when the person sought 
has been ``found guilty'' or ``convicted'' of the same offense 
in the Requested State. While these terms are synonymous under 
United States law, they are distinct concepts in civil law 
systems. Both terms are used in this paragraph to ensure that 
extradition is barred after either a finding of guilt or a 
conviction for the same offense under Belgian law.
    Paragraph 2 prohibits the Requested State from refusing to 
extradite a person sought on the basis that the Requested 
State's authorities declined to prosecute or instituted and 
later discontinued criminal proceedings against the person. 
This provision was included in the Treaty because a decision by 
the Requested State to forego prosecution or to drop charges 
previously filed may be the result of a failure to obtain 
sufficient evidence or witnesses for trial, while the 
prosecution in the Requesting State may not suffer from the 
same impediments. This provision should enhance the Contracting 
Parties' ability to extradite to the jurisdiction that has the 
better chance of a successful prosecution.

Article 6--Humanitarian considerations

    Paragraph 1 permits the Requested State to refuse 
extradition when the offense for which extradition is sought is 
punishable by death in the Requesting State, but not in the 
Requested State, unless the Requesting State provides 
assurances the Requested State considers sufficient that if the 
death penalty is imposed, it will not be carried out. Similar 
provisions are found in many recent United States extradition 
treaties.\13\
---------------------------------------------------------------------------
    \13\ See, e.g., U.S.-Netherlands Extradition Treaty, June 24, 1980, 
art. 7, T.I.A.S. No. 10733; US-Ireland Extradition Treaty, July 13, 
1983, art. VI T.I.A.S. No. 10813; U.S.-Mexico Extradition Treaty, May 
4, 1978, art. 8, 31 U.S.T. 5059, T.I.A.S. No. 9656.
---------------------------------------------------------------------------
    Paragraph 2 permits the executive authority of the 
Requested State broad discretion to deny extradition on 
humanitarian grounds in accordance with its internal law. 
Similar provisions are found in United States extradition 
treaties with the Netherlands, Sweden, Norway, and Finland. The 
United States does not favor including such broad discretion to 
deny extradition in our treaties; the Belgian delegation, 
however, insisted on this provision to satisfy requirements of 
Belgian law.\14\
---------------------------------------------------------------------------
    \14\ See Loi du 15 Mars 1874 Sur Les Extraditions, Matieres 
Penales, Codes Belge, art 2.
---------------------------------------------------------------------------

Article 7--Extradition procedures and required documents

    This article, which is similar to provisions in most recent 
United States extradition treaties, sets out the documentary 
and evidentiary requirements for an extradition request.
    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 the 
provisional arrest of the person sought pursuant to article 8. 
Provisional arrest requests need not be initiated through the 
diplomatic channel provided the requirements of article 8 are 
met.
    Paragraph 2 outlines the information that must accompany 
every request for extradition under the Treaty.
    Paragraph 3 lists the additional information needed when 
the person is sought for trial in the Requesting State. 
Paragraph 3(c) requires that if the person sought has not yet 
been convicted of the crime for which extradition is requested, 
the Requesting State must provide ``such evidence as would 
justify the committal for trial of the person if the offense 
had been committed in the Requested State.''
    Paragraph 4 sets forth the information needed, in addition 
to the requirements of paragraph 2, when the person sought has 
already been tried and convicted in the Requesting State.
    Under United States law, persons are committed for trial 
upon a showing of probable cause; therefore, when Belgium is 
the Requesting State, this paragraph requires that it submit 
sufficient evidence to establish probable cause that the crime 
for which extradition is requested was committed and the person 
sought committed it. As in the case of a probable cause finding 
at a preliminary hearing in the United States, the extradition 
magistrate's finding of probable cause may be based on hearsay 
evidence in whole or in part.
    Under Belgian law, the quantum of evidence needed to 
``justify the committal to trial'' of a person charged with an 
offense is essentially the equivalent of probable cause,\15\ 
although the term ``probable cause'' is not present in Belgian 
law. Thus, paragraph 3(c) has the practical effect of requiring 
the United States to provide a showing of probable cause in 
order to obtain the extradition of a fugitive from Belgium.
---------------------------------------------------------------------------
    \15\ See Chapitre I, Titre II, Matieres Penales, Codes Belge, art. 
221.
---------------------------------------------------------------------------
    Paragraph 4 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.\16\ Paragraph 4(d) states that when a person 
has been convicted but not yet sentenced, the Requesting State 
must provide a copy of the arrest warrant and must affirm that 
a sentence will be imposed.
---------------------------------------------------------------------------
    \16\ See 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).
---------------------------------------------------------------------------
    Paragraph 4(e) states that if a person sought was found 
guilty in absentia, the documentation required for extradition 
includes both proof of conviction and the same documentation 
required in cases in which no conviction has been obtained. 
This is consistent with the longstanding United States policy 
of requiring such documentation in extraditions of persons 
convicted in absentia.

Article 8--Admissibility of documents

    This article establishes that evidence submitted in support 
of an extradition request shall be admissible at an extradition 
proceeding if authenticated by one of three methods.
    Subparagraph (a) states that United States extradition 
requests to Belgium shall be authenticated by the Department of 
State, thus codifying existing practice in this matter.
    Subparagraph (b) describes the procedure for authenticating 
Belgian requests to the United States. It follows the 
authentication requirements set forth in Title 18, United 
States Code, Section 3190.\17\
---------------------------------------------------------------------------
    \17\ See 18 U.S.C. Sec. 3190.
---------------------------------------------------------------------------
    Subparagraph (c) provides a third method for authenticating 
evidence for an extradition proceeding: such evidence is 
admissible if it is authenticated in any manner accepted by the 
laws of the Requested State. This provision was inserted in 
order to prevent a situation in which relevant evidence that 
normally satisfies the evidentiary rules of the Requested State 
would be inadmissable at an extradition hearing due to an 
inadvertent error or omission in the authentication process.

Article 9--Translation

    This article follows the standard practice of requiring 
that extradition documents be written in or translated into the 
language of the Requested State. Because Belgium has two 
official languages, French and Flemish (Dutch), the United 
States has the option of translating its requests into either 
language.

Article 10--Provisional arrest

    This article describes the process by which a person sought 
in one Contracting State may be arrested and detained in the 
other while the formal extradition documentation is prepared.
    Paragraph 1 provides that a request for provisional arrest 
may be made directly between the United States Department of 
Justice and the Belgian Ministry of Justice; Interpol also may 
be used as a channel to transmit messages in this regard. 
Experience has shown that the ability to call upon Interpol 
channels in emergency situations can be crucial when a fugitive 
is poised to flee.
    Paragraph 2 sets forth the information needed from the 
Requesting State in support of its provisional arrest request.
    Paragraph 3 requires that the Requested State notify the 
Requesting State of the disposition of the provisional arrest 
request and advise it of any reasons for denial.
    Paragraph 4 provides that the person who is provisionally 
arrested shall be detained for no more than 75 days and must 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 that time period. When 
the United States is the Requested State, the executive 
authority is the Department of State.\18\ Although the person 
provisionally arrested must be released from custody if the 
documents are not received within the 75-day period, the 
proceedings against the person need not be dismissed.
---------------------------------------------------------------------------
    \18\ See Clark, 470 F. Supp. 976, 979.
---------------------------------------------------------------------------
    Paragraph 5 states that if the formal request with 
supporting documentation is presented at a later date, the 
person may be taken into custody again, and the extradition 
proceedings may be commenced anew.

Article 11--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, 
the Requested State must provide available information as to 
the reasons for the denial. If extradition is granted, article 
11 requires the Requesting State to remove the person sought 
within the time period set by the law of the Requested State, 
or else the person may be released from custody and the 
Requested State may subsequently refuse extradition for the 
same offense.

Article 12--Temporary and deferred surrender

    Paragraph 1 provides for the temporary surrender of a 
person sought 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 the Treaty 
is to 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 a successful prosecution. Such transfer may also be 
advantageous to the person sought in that: (1) it permits 
resolution of the charges sooner; (2) it may make it possible 
for any sentence to be served in the Requesting State 
concurrently with the sentence in the Requested State; and (3) 
it permits defense against the charges while favorable evidence 
is fresh and more likely to be available. Similar provisions 
are found in many recent United States extradition treaties.
    Paragraph 2 provides that the surrender of a person who is 
being prosecuted or serving a sentence in the Requested State 
may be deferred until the proceedings and execution of any 
punishment imposed are completed.

Article 13--Requests for extradition made by several states

    This article follows the practice of many recent United 
States extradition treaties in listing factors that the 
Requested State must consider in determining to which country a 
person should be surrendered when reviewing requests from two 
or more countries for the extradition of the same person. For 
the United States, the Secretary of State makes this decision.

Article 14--Seizure and surrender of property

    This article permits the seizure by the Requested State of 
all property--articles, documents and other evidence--connected 
with the offense to the extent permitted by the Requested 
State's internal law.
    Paragraph 1 also provides that these items may be 
surrendered to the Requesting State upon the granting of the 
extradition or even if extradition cannot be affected due to 
the death, disappearance or escape of the person sought.
    Paragraph 2 states that the Requested State may condition 
its surrender of the property upon satisfactory assurances that 
the property will be returned to the Requested State as soon as 
practicable. Surrender of property under this provision is 
expressly made subject to due respect for the rights of third 
parties in such property.

Article 15--Rule of specialty

    This article covers the principle known as the rule of 
specialty, a standard aspect of United States extradition 
practice. Designed to ensure 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 a sentence on different charges that might not be 
extraditable or properly documented when the request is 
granted.
    Since a variety of exceptions to the rule have developed 
over the years, this article codifies its current formulation 
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 a 
differently denominated offense based on the same facts, 
provided the offense is extraditable or a lesser included 
offense; (2) an offense committed after the extradition; or (3) 
an offense for which the executive authority of the Requested 
State consents.\19\ Paragraph 1(c)(ii) permits the Contracting 
State that is seeking consent to pursue new charges to detain 
the person extradited for at least 75 days, or for such longer 
period as the Requested State may authorize, while the 
Requested State makes its determination on the application.
---------------------------------------------------------------------------
    \19\ 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).
---------------------------------------------------------------------------
    Paragraph 2 prohibits the Requesting State from 
surrendering the person extradited to a third state without the 
consent of the state from which extradition was first obtained.
    Paragraph 3 permits the detention, trial, or punishment of 
an extradited person for additional offenses, or extradition to 
a third state, if the extradited person: (1) leaves and returns 
to the Requesting State; (2) does not leave the Requesting 
State within 15 days \20\ of being free to do so; or (3) 
voluntarily consents.
---------------------------------------------------------------------------
    \20\ Under article III of the 1901 Treaty, the extradited person 
has one month to leave the Requesting State.
---------------------------------------------------------------------------

Article 16--Waiver of extradition

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings in order to expedite 
their return to the Requesting State. This article provides 
that when a person sought waives extradition in accordance with 
the laws of the Requested State, the person may be returned to 
the Requesting State as expeditiously as possible and the rule 
of specialty does not apply. This amounts to a voluntary return 
of the fugitive to the Requesting State.
    Longstanding United States practice that the rule of 
specialty does not apply when a fugitive waives extradition and 
voluntarily returns to the Requesting State is reflected in the 
express language of this provision. A similar rule appears in 
many recent United States extradition treaties.\21\
---------------------------------------------------------------------------
    \21\ See, e.g., U.S.-Netherlands Extradition Treaty, June 24, 1980, 
art. 16, T.I.A.S. No. 10733; U.S.-Mexico Extradition Treaty, May 4, 
1978, art. 18, 31 U.S.T. 5059, T.I.A.S. No. 9656.
---------------------------------------------------------------------------

Article 17--Transit

    Paragraph 1 gives each Contracting State the power to 
authorize transit through its territory of persons being 
surrendered to the other Contracting State by third states. A 
person in transit may be detained in custody for up to 24 
hours. Requests for transit are to contain a description of the 
person being transported and a brief statement of the facts of 
the case for which the person is being surrendered. Requests 
for transit may be made through diplomatic channels or directly 
between the United States Department of Justice and the 
Ministry of Justice of Belgium. Requests for transit may be 
denied for a national of the Requested State or for a person 
sought for prosecution or to serve a sentence in the Requested 
State.
    Paragraph 2 provides that no advance authorization is 
needed if the person in transit to one Contracting State is 
travelling by aircraft 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 for up to 24 hours until a request for transit is 
received and thereafter until transit is effected.

Article 18--Representation and expenses

    Under current extradition practice, the United States 
provides for the representation of Belgium in connection with 
Belgian requests for extradition before United States courts, 
and Belgium provides for the representation of the United 
States in connection with United States extradition requests to 
Belgium. Paragraph 1 codifies this practice.
    Paragraph 2 provides that the Requested State will bear all 
expenses of extradition except those expenses relating to the 
ultimate transportation of the person surrendered to the 
Requesting State and the translation of documents. These 
expenses are to be paid by the Requesting State.
    Paragraph 3 provides that neither Contracting State shall 
make a pecuniary claim against the other in connection with 
extradition proceedings, including arrest, detention, 
examination and surrender of persons sought. This includes any 
claim by fugitives for damages or reimbursement of legal fees 
or other expenses occasioned by the execution of the 
extradition request.

Article 19--Consultation

    This article provides that the United States Department of 
Justice and the Belgian Ministry of Justice may consult with 
each other, directly or through Interpol, with regard to an 
individual extradition case or extradition procedures in 
general.

Article 20--Application

    This Treaty, like most other United States extradition 
treaties negotiated in the past two decades, is expressly made 
retroactive to cover offenses committed before the Treaty 
enters into force, provided they constituted criminal offenses 
under the laws of both Contracting States at the time they were 
committed.

Article 21--Ratification and entry into force

    This article contains standard treaty language providing 
for the exchange of instruments of ratification at Washington, 
D.C. and specifies the day on which the Treaty will enter into 
force after the exchange.
    Paragraph 3 provides that the 1901 Treaty and the 
Supplementary Conventions of 1935 and 1963 will cease to have 
effect upon the entry into force of the Treaty. Extradition 
requests pending when the Treaty enters into force, however, 
will nevertheless be processed to conclusion under the 1901 
Treaty and the Supplementary Conventions. Paragraph 3 further 
provides that articles 2, 12 and 15 of the Treaty will apply to 
extradition proceedings pending at the time of the exchange of 
instruments. Article 2 defines extraditable offenses, article 
12 provides for temporary surrender, and article 15 implements 
the rule of specialty.

Article 22--Termination

    This article contains the standard treaty language 
describing the procedure for termination of the Treaty by 
either Contracting State.

   b. technical analysis of the supplementary treaty on extradition 
  between the united states of america and the kingdom of belgium to 
                  promote the repression of terrorism

    The Supplementary Treaty on Extradition Between the United 
States of America and the Kingdom of Belgium to Promote the 
Repression of Terrorism (``the Supplementary Treaty'') was 
signed in Washington, D.C. on March 17, 1987. The Supplementary 
Treaty is designed to facilitate the extradition of terrorists 
and is similar to other protocols to our extradition treaties 
with other countries.
    The United States and Belgium also negotiated the 
Extradition Treaty Between the United States of America and the 
Kingdom of Belgium, which was signed at Brussels on April 27, 
1987 (``the 1987 Treaty''). The 1987 Treaty is intended to 
replace the outdated treaty currently in place between the two 
countries (``the 1901 Treaty'') \22\ with a modern agreement. 
The Supplementary Treaty was negotiated, however, to augment 
our extradition relations generally and without regard to 
whether negotiations for the new basic extradition treaty, the 
1987 Treaty, would be completed, or whether, if signed, the 
1987 Treaty would enter into force. In other words, the 
Supplementary Treaty was negotiated with a view towards 
amending our extradition relations under the 1901 Treaty in 
force at the time of negotiations as well as under the 1987 
Treaty which was subsequently signed on April 27, 1987.
---------------------------------------------------------------------------
    \22\ Treaty for the Mutual Extradition of Fugitives from Justice 
Between the United States and the Kingdom of Belgium, Oct. 26, 1901, 32 
Stat. 1894, T.S. 409, 5 Bevans 508.
---------------------------------------------------------------------------
    The following technical analysis of the Supplementary 
Treaty was prepared by the United States delegation that 
conducted the negotiations.

Article 1

    This article provides that the Supplementary Treaty applies 
only when a request for extradition of a fugitive would be 
denied under the basic extradition treaty currently in force 
because the offense is political or is not listed as an 
extraditable offense.
    As previously explained, the Supplementary Treaty is 
intended to amend the 1901 Treaty if that treaty is still in 
effect at the time the Supplementary Treaty enters into force. 
Thus, subparagraph (b) is necessary, together with article 6, 
to amend the 1901 Treaty by permitting extradition for offenses 
in addition to those listed in the 1901 Treaty. If and when the 
1987 Treaty enters into force, subparagraph (b) will become 
unnecessary inasmuch as the 1987 Treaty has no list of offenses 
but instead makes offenses extraditable on the basis of dual 
criminality.
    This article also establishes that the Supplementary Treaty 
by itself cannot be used to extradite a fugitive. Instead, in 
appropriate cases, the Supplementary Treaty removes particular 
obstacles to the surrender of otherwise extraditable fugitives 
that exist under the basic treaty.

Articles 2 and 3

    Articles 2 and 3 are more easily understood if read 
together.
    Article 2 specifies that the Requested State may, in its 
discretion, consider any of the following crimes not to be 
political offenses: murder, voluntary manslaughter and 
voluntary assault and battery inflicting serious bodily harm; 
kidnapping, abduction, and hostage-taking; placement or use of 
a destructive device or automatic weapons that cause or are 
capable of causing serious bodily harm or substantial property 
damage; and attempts and conspiracies to commit the foregoing 
offenses. The provision also applies to any offense for which 
both the United States and Belgium have an international 
obligation to extradite or to submit the case for prosecution, 
including aircraft hijacking,\23\ aircraft sabotage,\24\ and 
other crimes on board aircraft.\25\ This exclusion will extend 
to crimes similarly defined in future multilateral treaties.
---------------------------------------------------------------------------
    \23\ See Convention for the Suppression of Unlawful Seizure of 
Aircraft, Dec. 16, 1970, 22 U.S.T. 1641, T.I.A.S. No. 7192.
    \24\ See 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. 
No. 7570.
    \25\ See Convention on Offenses and Certain Acts Committed on Board 
Aircraft, Sept. 14, 1963, 20 U.S.t. 2941, T.I.A.S. No. 6768, 704 
U.N.T.S. 219.
---------------------------------------------------------------------------
    Article 3 specifies that the Requested State shall not 
consider any offense described in article 2 to be a political 
offense, an offense connected to a political offense, or an 
offense inspired by a political offense if the crime involves 
any of four aggravating circumstances. The aggravating 
circumstances are: (1) the crime created a danger to the life, 
liberty, or safety of a group of persons; (2) it affected a 
person who is ``foreign to the motives behind the offense'' 
(i.e., an innocent bystander); (3) if cruel or vicious means 
were used to commit it; or (4) if the crime involved the taking 
of a hostage.
    These two articles read together mandate that offenses that 
fall within one of the five categories of crimes in article 2 
shall not be considered political offenses if one of the 
aggravating circumstances in article 3 is present. If an 
aggravating circumstance in article 3 is not present, the 
executive authority of the Requested State has discretion to 
determine that an offense listed in article 2 is not a 
political offense.
    Thus, the Supplementary Treaty is similar to the recent 
United States treaties with the United Kingdom, Canada, 
Germany, and Spain,\26\ in each of which the scope of the 
political offense exception is substantially narrowed. The key 
difference between the Supplementary Treaty and the other 
supplementary treaties is that this agreement underscores that 
while courts of the Requested State must deny extradition if 
the offense is one of the terrorist-type offenses listed in 
article 2, the executive branch of the Requested State retains 
final discretion to grant or deny the request or political 
offense grounds. This discretion does not exist if one of the 
aggravating factors in article 3 is present.
---------------------------------------------------------------------------
    \26\ See U.S.-Spain Second Supplementary Extradition Treaty, Feb. 
9, 1988, T.I.A.S. No. --; U.S.-Canada Protocol Amending Extradition 
Treaty, Jan. 11, 1988, T.I.A.S. No. --; U.S.-West Germany Supplementary 
Treaty, Oct. 21, 1986, T.I.A.S. No. --; U.S.-United Kingdom 
Supplementary Extradition Treaty, June 25, 1985, T.I.A.S. No. --.
---------------------------------------------------------------------------
    The negotiators contemplated that in considering an 
extradition request and a fugitive's claim for political 
offense protection, a court in the Requested State first will 
apply the terms of the basic extradition treaty to determine 
whether the fugitive is otherwise extraditable without regard 
to the political offense provision. If the fugitive is 
otherwise extraditable, the court turns its attention to the 
Supplementary Treaty. If the offense is included in article 2 
of the Supplementary Treaty, extradition should not be denied 
as a matter of law. Instead, when the United States is the 
Requested State, the court certifies the person's 
extraditability to the Secretary of State under Title 18, 
United States Code, Section 3184, noting that the Supplementary 
Treaty removes the absolute legal barrier to extradition even 
if the fugitive is correct in contending that the offense is 
political. If the offense is not listed in article 2, the court 
continues with its analysis under the basic treaty to determine 
whether extradition should be barred by the political offense 
provision.
    Under article 2, the Secretary of State upon receipt of the 
court's certification of extraditability has discretion 
(limited only by article 3) to grant or deny the surrender of 
the fugitive as a political offender. If one of the aggravating 
factors listed in article 3 is present, the Secretary may not 
refuse the fugitive's surrender as a matter of discretion based 
upon the political nature of the offense. The Secretary, of 
course, continues to maintain any discretionary authority 
otherwise possessed to deny the surrender.

Article 4

    This article permits the Requested State to refuse 
extradition when the offense for which extradition is sought is 
punishable by death in the Requesting State, but not in the 
Requested State, unless the Requesting State provides 
assurances the Requested State considers sufficient that if the 
death penalty is imposed, it will not be carried out. A similar 
provision is found in many recent United States extradition 
treaties.\27\
---------------------------------------------------------------------------
    \27\ See, e.g., U.S.-Ireland Extradition Treaty, July 13, 1983, 
art. VI, T.I.A.S. No. 10813; U.S.-Thailand Extradition Treaty, Dec. 14, 
1983, art. 6, T.I.A.S. No. --.
---------------------------------------------------------------------------
    The 1987 Treaty has a similar provision making this article 
redundant if and when both treaties enter into force.
    The negotiators agreed that the decision whether to request 
assurances and the determination whether any assurances 
provided are sufficient will be made by the executive authority 
of the Requested State.\28\
---------------------------------------------------------------------------
    \28\ This is consistent with United States law. See Cheng Na-Yuet 
v. Hueston, 734 F. Supp. 988, 994 (S.D. Fla. 1990), aff'd, 932 F.2d 977 
(11th Cir. 1991).
---------------------------------------------------------------------------

Article 5

    This article permits the executive authority of the 
Requested State to deny extradition on humanitarian grounds in 
accordance with its domestic law.\29\ This provision is 
necessary to satisfy requirements of Belgian law.\30\ A similar 
provision is present in the 1987 Treaty as well as in our 
recent extradition treaties with the Netherlands, Sweden, 
Norway and Finland.\31\
---------------------------------------------------------------------------
    \29\ United States courts have recognized that the Secretary of 
State possesses the authority to determine whether to deny extradition 
on humanitarian grounds. See Peroff v. Hylton, 542 F.2d 1247 (4th Cir. 
1976), 563 F.2d 1099 (4th Cir. 1977).
    \30\ See Loi du 15 Mars 1874 Sur Les Extraditions, Matieres 
Penales, Codes Belge, art. 2.
    \31\ See, e.g., U.S.-Netherlands Extradition Treaty, June 24, 1980, 
art. 7(2), T.I.A.S. No. 10833; U.S.-Sweden Extradition Treaty, Oct. 24, 
1961, art. V(6), 14 U.S.T. 1845, T.I.A.S. No. 5496, 494 U.N.T.S. 141.
---------------------------------------------------------------------------

Article 6

    This article amends the list of extraditable offenses 
contained in the 1901 Treaty if the treaty remains in effect if 
and when the Supplementary Treaty enters into force. As 
discussed in the analysis of article 1, under the 1901 Treaty, 
extradition may be granted only for those offenses contained in 
the list of extraditable offenses. This list does not include 
many offenses committed by terrorists that are viewed by the 
Contracting States as so serious as to warrant prosecution 
without fail. Article 6 therefore expands the list of 
extraditable offenses in the 1901 Treaty to include all 
offenses listed in article 2 of the Supplementary Treaty.
    The 1987 Treaty will render article 6 unnecessary if and 
when the new treaty enters into force because it does not list 
specific extraditable offenses. Instead, the 1987 Treaty 
permits extradition for any offense punishable under the laws 
of both Contracting States by deprivation of liberty (i.e., 
imprisonment or other form of detention) for more than one 
year.

Article 7

    This article contains standard treaty language providing 
for the exchange of instruments of ratification at Brussels and 
specifies the day on which the Supplementary Treaty will enter 
into force after the exchange.

Article 8

    This article provides standard treaty language describing 
the procedure for termination of the Supplementary Treaty by 
either Contracting State.

             VIII. Texts of the Resolutions of Ratification

    Resolved (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Extradition Treaty Between the United 
States of America and the Kingdom of Belgium signed at Brussels 
on April 27, 1987. The Senate's advice and consent is subject 
to the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:

          Nothing in the 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.

    Resolved (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Supplementary Treaty on Extradition Between 
the United States of America and the Kingdom of Belgium to 
Promote the Repression of Terrorism, signed at Brussels on 
April 27, 1987. The Senate's advice and consent is subject to 
the following proviso, which shall not be included in the 
instrument of ratification to be signed by the President:

          Nothing in the 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.