[Senate Executive Report 106-13]
[From the U.S. Government Publishing Office]
106th Congress Exec. Rpt.
SENATE
1st Session 106-13
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EXTRADITION TREATY WITH THE REPUBLIC OF KOREA
_______
November 3, 1999.--Ordered to be printed
_______
Mr. Helms, from the Committee on Foreign Relations,
submitted the following
R E P O R T
[To accompany Treaty Doc. 106-2]
The Committee on Foreign Relations, to which was referred
the Extradition Treaty between the Government of the United
States of America and the Government of Republic of Korea,
signed at Washington on June 9, 1998 (Treaty Doc. 106-2),
having considered the same, reports favorably thereon, with one
understanding, one declaration and one proviso, and recommends
that the Senate give its advice and consent to the ratification
thereof as set forth in this report and the accompanying
resolution of ratification.
CONTENTS
Page
I. Purpose..........................................................1
II. Background.......................................................2
III. Summary of Key Provisions........................................2
IV. Entry Into Force and Termination.................................5
V. Committee Action.................................................5
VI. Committee Comments...............................................5
VII. Explanation of Proposed Treaty...................................8
VIII.Resolution of Ratification......................................22
IX. Annex...........................................................25
I. Purpose
The proposed extradition treaty: (1) identifies the
offenses for which extradition will be granted, (2) establishes
procedures to be followed in presenting extradition requests,
(3) enumerates exceptions to the duty to extradite, (4)
specifies the evidence required to support a finding of a duty
to extradite, and (5) sets forth administrative provisions for
bearing costs and legal representation.
II. Background
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. The United States is a party to approximately 100
bilateral extradition treaties, and several multilateral
treaties which require extradition.
In recent years the Departments of State and Justice have
led an effort to modernize U.S. bilateral extradition treaties
to better combat international criminal activity, such as drug
trafficking, terrorism and money laundering.
The importance of extradition treaties as a tool for law
enforcement is reflected in the increase in the number of
extraditions of individuals under treaties. Between September
1997 and 1998, 185 persons were extradited to the United States
for prosecution for crimes committed in the United States, and
the United States extradited 73 individuals to other countries
for prosecution. (The Republic of Korea, by contrast, began
negotiating bilateral extradition treaties only recently. The
number of such treaties it has signed did not reach a dozen
until May 1999, when it signed a bilateral treaty with
Mongolia.)
In the United States, the legal procedures for extradition
are governed by both federal statute and self-executing
treaties. Federal statute controls the judicial process for
making a determination to the Secretary of State that she may
extradite an individual under an existing treaty. Courts have
held that the following elements must exist in order for a
court to find that the Secretary of State may extradite: (1)
the existence of a treaty enumerating crimes with which a
defendant is charged; (2) charges for which extradition is
sought are actually pending against the defendant in the
requesting nation and are extraditable under the treaty; (3)
the defendant is the same individual sought for trial in the
requesting nation; (4) probable cause exists to believe that
the defendant is guilty of charges pending against him in the
requesting nation; and (5) the acts alleged to have been
committed by the defendant are punishable as criminal conduct
in the requesting nation and under the criminal law of the
United States.
Once a court has made a determination that an individual
may be extradited under U.S. law, and so certifies to the
Secretary of State, she may still refrain from extraditing an
individual on foreign policy grounds, as defined in the
treaties themselves (or even absent express treaty provisions).
III. Summary of Key Provisions
1. Extraditable Offenses: The Dual Criminality Clause
The South Korean treaty, like all modern U.S. extradition
treaties, 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
more than one year. Attempts and conspiracies to commit such
offenses, and participation in the commission of such offenses,
are also extraditable.
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
A separate question arises as to whether offenses committed
outside the territory of the Requesting State are extraditable
under the treaty. To be able to extradite individuals charged
with extraterritorial crimes can be an important weapon in the
fight against international drug traffickers and terrorists.
The Treaty with the Republic of Korea (in Art. 2(4)) directs
that extradition may proceed for an extraterritorial offense if
the individual sought is a national of the Requesting State or
if the criminal law of the Requested State would reach
extraterritorial acts of the type covered by the extradition
request. In addition, the Requested State retains discretion to
grant extradition for extraterritorial crime even if neither of
the foregoing conditions pertains, or to refuse an otherwise
extraditable extraterritorial crime if the crime was committed
in part within its territory and it has initiated prosecution.
3. Political Offense Exception
In recent years the United States has been promoting a
restrictive view of the political offense exception in
furtherance of its campaign against terrorism, drug
trafficking, and money laundering. The exclusion of certain
violent crimes, (i.e., murder, kidnaping, and others) from the
political offense exception reflects the concern of the United
States government and certain other governments with
international terrorism.
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 with the
Republic of Korea.
The multilateral international agreement exception clause
serves to incorporate by reference certain multilateral
agreements to which the United States is a party and which deal
with international law enforcement in drug dealing, terrorism,
airplane hijacking and smuggling of nuclear material. These
agreements require that the offenses with which they deal shall
be extraditable under any extradition treaty between countries
that are parties to the multilateral agreements. 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.
It should be noted that the incorporation by reference of
multilateral international agreements that deal with
international law enforcement can have significance only if the
Republic of Korea is Party to such multilateral agreement.
4. The Death Penalty Exception
The United States and other countries often have different
views on capital punishment, though some countries do impose
the death penalty for certain crimes, such as drug trafficking.
The Treaty with the Republic of Korea permits the parties to
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. (Art. 7). In addition, in cases where the offense
constitutes murder in the Requested State the imposition of
capital punishment is not grounds for refusal.
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. The Treaty with the Republic of Korea does
not require extradition of nationals, but leaves the decision
to the discretion of the Requested State. (Art. 3).
6. Retroactivity
The Treaty with the Republic of Korea applies to offenses
committed before as well as after it enters into force. (Art.
20). This retroactivity provision does not violate the
Constitution's prohibition of ex post facto laws, which applies
only to enactments making criminal those acts that were not
illegal 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. The Treaty with the Republic of Korea expresses the
basic prohibition and also includes the following exceptions:
(1) 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) consents; (2)
the offense is a lesser included offense; (3) the extradited
individual leaves the territory of the Requesting State and
voluntarily returns to it; (4) the extradited individual does
not leave the territory of the Requesting State within 25 days
after he or she is free to leave; or, (5) the extradited
individual voluntarily consents to being tried for an offense
other than the one for which he was extradited. 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 were specifically
extradited.
8. Lapse of Time
The Treaty with the Republic of Korea precludes extradition
of offenses barred by an applicable statute of limitations.
However, time during which a fugitive has fled prosecution is
not to be counted toward the applicable limitation period, or
is any other time that would suspend the limitation period
under the law of either the Requesting or Requested State.
IV. Entry Into Force and Termination
a. Entry into force
The Treaty shall enter into force upon the exchange of the
instruments of ratification.
b. Termination
Either Party may terminate this Treaty at any time by
giving written notice to the other Party, and the termination
shall be effective six months after the date of such notice.
V. Committee Action
The Committee on Foreign Relations held a public hearing on
the proposed Treaty on October 20, 1999 (a transcript of the
hearing can be found in the annex to this report). The
Committee considered the proposed Treaty on November 3, 1999,
and ordered the proposed Treaty favorably reported by voice
vote, with the recommendation that the Senate give its advice
and consent to the ratification of the proposed Treaty subject
to one understanding, one declaration, and one proviso.
VI. Committee Comments
The Committee on Foreign Relations recommends favorably the
proposed Treaty. On balance, 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. Several issues did arise in the course of the
Committee's consideration of the Treaty, and the Committee
believes that the following comments may be useful to the
Senate in its consideration of the proposed Treaty and to the
State and Justice Departments.
A. Restriction on Transfer of Extraditees to International Criminal
Court
On July 17, 1998 a majority of nations at the U.N.
Diplomatic Conference in Rome, Italy, on the Establishment of
an International Criminal Court voted 120-7, with 21
abstentions, in favor of a treaty that would establish an
international criminal court. The court is empowered to
investigate and prosecute war crimes, crimes against humanity,
genocide and aggression. The United States voted against the
treaty.
The Resolution of Ratification accompanying the Extradition
Treaty contains an understanding relative to the international
court. Specifically, regarding the ``Rule of Speciality'' the
United States shall restate in its instrument of ratification
its understanding of the provision, which requires that the
United States consent to any retransfer of persons extradited
to the Treaty Partner to a third jurisdiction. The
understanding further states that future United States policy
shall be to refuse consent to the transfer of any person
extradited to Korea by the United States to the International
Criminal Court. This restriction is binding on the President,
and would be vitiated only in the event that the United States
ratifies the treaty establishing the court, pursuant to the
Constitutional procedures as contained in Article II, section 2
of the United States Constitution.
This provision makes clear that both Parties understand
that individuals extradited to the other Party may not be
transferred to the international court. Members of the
Committee are concerned that the treaty could become conduits
for transferring suspects to the international criminal court,
even though the United States has rejected the court.
B. Extradition of nationals
Under Article 3 of the proposed treaty, neither Party is
bound to extradite its own nationals. However, either Party may
extradite its national ``if, in its discretion, it is deemed
proper to do so.'' Permitting such broad discretion to
extradite nationals is not the preferred U.S. requirement. The
United States seeks in its negotiations to treat extradition of
nationals in the same manner as extradition of other
individuals.
The technical analysis prepared by the U.S. treaty
negotiators, which is set forth in this report, states that the
Korean delegation assured the U.S. delegation that it did not
foresee that the discretion not to extradite would be used
frequently.
The Committee supports the extradition of U.S. nationals.
Criminal suspects should not be given safe haven in this
country. The alternative--trying them in this country--is often
not a realistic option, for two reasons. First, U.S. courts
often lack jurisdiction over the crime, because not many crimes
are subject to extraterritorial jurisdiction under U.S. law.
Second, prosecuting such cases in the United States is often
extremely difficult, particularly when the evidence and many of
the witnesses are not located in this country, as would often
be the case.
The Committee is deeply concerned that many nations around
the world do not agree to extradite their own nationals to the
United States. The Committee expects that U.S. negotiators will
continue to press other nations to agree to extradite their
nationals, including in existing treaty relationships. The
Committee urges the Executive Branch to emphasize, in
discussing new extradition relationships with foreign states,
that a reciprocal duty to extradite nationals is a key U.S.
negotiating objective.
Under current practice the United States on occasion may
not seek extradition if it does not think that a country will
extradite, whether because a country does not have an
extradition treaty with the United States, does not extradite
its nationals, or would simply be unlikely to extradite under
the circumstances. The Committee believes that failure to even
request extradition may create the false perception that the
United States is not interested in pursuing such individuals.
The Committee anticipates that the United States will err on
the side of making requests for extradition of nationals,
unless law enforcement efforts would be compromised, in order
to continue to require treaty partners to respond to U.S.
requests for extradition of nationals.
C. Use of treaties to aggressively pursue international parental
kidnaping
On October 1, 1998, the Committee on Foreign Relations
convened a hearing to consider U.S. Responses to International
Parental Kidnaping. The Attorney General, Janet Reno, testified
before the Committee, as did four parents whose children were
abducted or wrongfully detained in international jurisdictions.
The parents recounted their frustration with the current level
of U.S. Government assistance in seeking the return of their
children.
Although the Attorney General pointed to limitations in the
ability of the U.S. Government to resolve many cases of
international parental abduction, she also recognized that the
United States could do better in assisting in the return of
abducted children and pledged to take steps to improve
coordination between the Departments of State and Justice.
The State and Justice Departments have testified that the
Treaty with the Republic of Korea is designed to ensure that no
individual can evade the justice system by travel to a foreign
country. This same principal should be true of parents who take
their children from the United States in violation of the 1993
International Parental Kidnaping Act. The Committee expects,
therefore, that State and Justice Department officials will
seek extradition unless it will hinder the law enforcement
efforts. The Committee also expects that State and Justice
Department officials will raise this issue in the course of
negotiation of all bilateral law enforcement treaties and in
other bilateral diplomatic exchanges. The Committee
anticipates, also, that this issue will be given great scrutiny
in the issuance of passports, with a special eye towards
passport or visa fraud.
D. National Security Law in Korea
The Republic of Korea has long had in place the ``National
Security Law.'' According to the State Department's Country
Reports on Human Rights Practices for 1998, the law
permits the authorities to detain and arrest persons
who commit acts viewed as supportive of North Korea and
therefore dangerous to the Republic of Korea.
Authorities arrested not only persons spying on behalf
of North Korea but also those who praised North Korea,
its former leader Kim Il Sung, or its ``self-reliance''
political philosophy.
. . . The [law] permits the imprisonment of up to 7
years of anyone who `with knowledge that he might
endanger the existence or security of the State or the
basic order of free democracy, praised, encouraged,
propagandized for, or sided with the activities of an
antistate organization.'
It is long been recognized that aspects of the National
Security Law do not comport with basic civil liberties,
particularly the right to free speech or free association.
During the Committee's hearing on the Treaty, the Executive
Branch witnesses affirmed that cases under the National
Security Law that involve restrictions on civil liberties would
not qualify under the ``dual criminality'' provision of the
Treaty, in that the United States does not criminalize certain
of the behavior proscribed by the National Security Law. In
addition, as the technical analysis emphasizes, such ``crime''
would fall under the political offense exception of Article
4(1), or the political motivation exception in Article 4(4).
The Committee expects the State Department to be vigilant in
ensuring that extradition is not permitted in such cases.
VII. Explanation of Proposed Treaty
Technical Analysis of the Extradition Treaty Between the United States
of America and the Republic of Korea
On June 9, 1998, the United States signed a treaty on
extradition with the Republic of Korea (``the Treaty''). The
Treaty, which will be the first extradition treaty to enter
into force between the United States and this important ally in
the Western Pacific, represents a major step forward in the
United States' efforts to strengthen cooperation with countries
on the Pacific Rim in combating organized crime, transnational
terrorism, international drug trafficking, and other offenses.
It is anticipated that the Treaty will be implemented in
the United States pursuant to the procedural framework provided
by Title 18, United States Code, Section 3184 et seq. No new
implementing legislation will be needed for the United States.
The Republic of Korea has its own extradition legislation \1\
which will apply to United States' requests under the Treaty.
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\1\ Extradition Act, Law No. 4015 of August 5, 1988 (hereinafter
``Extradition Act 1988'') The key sections of the Extradition Act 1988
that are germane to the interpretation and implementation of the Treaty
are discussed in more detail in this Technical Analysis. During the
negotiations, the Korean delegation said that in Korea a treaty
supersedes inconsistent legislation, so the terms of the treaty would
override the Extradition Act 1988, but that they as negotiators had
been instructed to make the treaty consistent with Korean law as much
as possible.
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The following technical analysis of the Treaty was prepared
by the Office of International Affairs, United States
Department of Justice, and the Office of the Legal Adviser,
United States Department of State, based upon the negotiating
notes. The technical analysis includes a discussion of U.S. law
and relevant practice as of the date of its preparation, which
are, of course, subject to change. Foreign law discussions
reflect the current state of that law, to the best of the
drafters' knowledge.
Article 1--Obligation to Extradite
The first article of the Treaty, like the first article in
every recent United States extradition treaty, formally
obligates each Contracting State to extradite to the other
persons sought for prosecution, trial, or imposition or
execution of punishment for an extraditable offense, pursuant
to the provisions of the remainder of the Treaty. The article
refers to persons wanted ``in'' the Requesting State rather
than ``by'' the Requesting State, since the obligation to
extradite, in cases arising from the United States, would
include state and local prosecutions as well as federal cases.
Article 2--Extraditable Offenses
This article contains the basic guidelines for determining
what are extraditable offenses. This Treaty, like most recent
United States extradition treaties, does not list the offenses
for which extradition may be granted. Instead, paragraph 1 of
the article permits extradition for any offense punishable
under the laws in both Contracting States by deprivation of
liberty (i.e., imprisonment, or other form of detention), for a
period of more than one year, or by a more severe penalty such
as capital punishment. Defining extraditable offenses in terms
of ``dual criminality'' rather than attempting to list each
extraditable crime obviates the need to renegotiate the Treaty
or supplement it if both countries pass laws dealing with a new
type of criminal activity, or if the list inadvertently fails
to cover a criminal activity punishable in both countries.
During the negotiations, the United States delegation
received assurances from the Koreans that extradition would be
possible for such offenses as drug trafficking (including
operating a continuing criminal enterprise, in violation of
Title 21, United States Code, Section 848); offenses under the
racketeering statutes (Title 18, United States Code, Section
1961-1968); drug money laundering; \2\ terrorism; tax offenses;
crimes against environmental protection laws; and any antitrust
violations punishable in both states by more than one year of
imprisonment.
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\2\ Korean law currently does not prohibit the laundering of
proceeds of non-drug offenses, but the Korean Ministry of Justice is
exploring drafting comprehensive non-drug money laundering legislation.
During the negotiations, the Korean delegation said that extradition
might be granted to the U.S. for a non-drug money laundering offense if
the offender were viewed as having ``participated'' in the underlying
crime.
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Paragraph 2 follows the practice of recent extradition
treaties in providing that extradition should also be granted
for attempting or conspiring to commit, or otherwise
participating in, an extraditable offense. Conspiracy charges
are frequently used in United States criminal cases,
particularly those involving complex transnational criminal
activity, so it is especially important that the treaty be
clear on this point. The Koreans told us that there is no
statutory provision for conspiracy in Republic of Korea law,
similar to Title 18, United States Code, Section 371. Some U.S.
treaties handle this matter by creating an exception to dual
criminality and expressly make extraditable both ``conspiracy''
and its closest analogue under the law of our treaty partner.
That approach proved unnecessary in this Treaty because the
Korean delegation assured the U.S. delegation that Korea would
not deny extradition on dual criminality grounds if
``conspiracy'' charges were included in the U.S. request for
most major crimes covered by the Treaty.\3\
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\3\ In Korea, conspiracy to commit an offense is punishable only if
specified by statute, and conspiracy to commit the most serious crimes
(e.g., murder, drug trafficking, robbery, kidnapping, or larceny) is
punishable, as is conspiracy to sponsor foreign aggression, join an
organized crime group, use explosives, aid fugitives to escape or
harbor criminals, commit arson, sabotage or obstruct traffic, tamper
with drinking water, or counterfeit currency or securities. It is our
understanding that if the U.S. charged a conspiracy to commit a crime
and no precisely equivalent conspiracy offense exists under Korean law,
extradition might be possible nonetheless if the facts amounted to
``participation'' in the substantive offense under Korean law.
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Paragraph 3 reflects the intention of both countries to
interpret the principles of this article broadly. Judges in
foreign countries are often confused by the fact that many
United States federal statutes require proof of certain
elements (such as use of the mails or interstate
transportation) solely to establish jurisdiction in the United
States federal courts. Because these foreign judges know of no
similar requirement in their own criminal law, they
occasionally have denied the extradition of fugitives sought by
the United States on federal charges on this basis. This
paragraph requires that such elements be disregarded in
applying the dual criminality principle. For example, Korean
authorities must treat United States mail fraud charges (Title
18, United States Code, Section 1341) in the same manner as
fraud charges under state laws, and view the federal crime of
interstate transportation of stolen property (Title 18, United
States Code, Section 2314) in the same manner as unlawful
possession of stolen property. This paragraph also requires a
Requested State to disregard differences in the categorization
of the offense in determining whether dual criminality exists,
and to overlook mere differences in the terminology used to
define the offense under the laws of each country. A similar
provision is contained in all recent United States extradition
treaties.
Paragraph 4 deals with the fact that many federal crimes
involve acts committed wholly outside United States territory.
Our jurisprudence recognizes jurisdiction in our courts to
prosecute offenses committed outside of the United States if
the crime was intended to, or did, have effects in this
country, or if the legislative history of the statute shows
clear Congressional intent to assert such jurisdiction.\4\ In
the Republic of Korea, however, the Government's ability to
prosecute extraterritorial offenses is much more limited.
Therefore, Article 2(4) reflects the Republic of Korea's
agreement to recognize United States jurisdiction to prosecute
offenses committed outside of the United States if the Korean
law would permit it to prosecute similar offenses committed
outside of it in corresponding circumstances and also obligates
the Requested State to extradite for extraterritorial crimes
committed by a national of the Requesting State. If the
Requested State's laws do not so provide, the second sentence
of the paragraph states that extradition may be granted, but
the executive authority of the Requested State has the
discretion to deny the request. The final sentence in the
paragraph was necessitated by the fact that Korea's extradition
law expressly gives the Minister of Justice the discretion to
deny extradition if the offense was committed in Korean
territory.\5\ The Korean delegation suggested that the Treaty
give each Contracting State the discretion to deny extradition
in such circumstances. In the view of the United States,
however, there is still no reason to deny extradition if the
crime was committed in the Requested State's territory but the
Requested State is not in fact prosecuting that offense. The
compromise reached was to provide that extradition may be
denied when the offense for which extradition is sought was
committed in the territory of the Requested State and a
prosecution for that offense is pending in that State.\6\
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\4\ Restatement (Third) of the Foreign Relations Law of the United
States Sec. 402 (1987); Blakesley, ``United States Jurisdiction over
Extraterritorial Crime,'' 73 Journal of Criminal Law and Criminology
1109 (1982).
\5\ Section 9(2), Korean Extradition Act 1988. The law also allows
denial of extradition if the offense is subject to pending prosecution
in Korea. Section 9(3), Korean Extradition Act.
\6\ It was understood between the delegations that the Requested
State may postpone the extradition proceedings against the person
sought while that person is being prosecuted for an offense in the
Requested State, and it was recognized that once the prosecution is
completed the Requested State may have no alternative to denying the
extradition request under Article 5 if the person sought was convicted
or acquitted.
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Paragraph 5 states that when extradition has been granted
for an extraditable offense it shall also be granted for any
other offense specified in the request even if the latter
offense is punishable by less than one year's imprisonment. For
example, if Korea agrees to extradite to the United States a
fugitive wanted for prosecution on a felony charge, the United
States will also be permitted to obtain extradition for any
misdemeanor offenses that have been charged, as long as those
misdemeanors would also be recognized as criminal offenses in
Korea. Thus, the Treaty incorporates recent United States
extradition practice by permitting extradition for misdemeanors
committed by a fugitive when the fugitive's extradition is
granted for a more serious extraditable offense. This practice
is generally desirable from the standpoint of both the fugitive
and the prosecuting country in that it permits all charges
against the fugitive to be disposed of more quickly, thereby
facilitating trials while evidence is still fresh and
permitting the possibility of concurrent sentences. Similar
provisions are found in recent extradition treaties with
countries such as Cyprus and the Philippines.\7\
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\7\ See Art. 2(5), U.S.-Cyprus Extradition Treaty, signed June 17,
1996, entered into force September 14, 1999; Art. 2(5), U.S.-
Philippines Extradition Treaty, signed November 13, 1994, entered into
force November 22, 1996.
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Paragraph 6 states that when extradition has been sought
for an offense against a law relating to taxation, customs
duties, exchange control, or other revenue matters, it shall
not be refused on the ground that the Requested State does not
have a tax, customs duty, or exchange regulation of the same
kind as that in the Requesting State. Similar to paragraphs
3(a) and 3(b) of this article, this provision clarifies that
revenue-related offenses, which are still subject to the
general dual criminality requirement of this article, need not
be based on identical regulations in order to be extraditable.
This provision is inspired by Article 2(3) of the United
Nations Model Extradition Treaty, and memorializes the fact
that the Republic of Korea and the U.S. both extradite for tax
and fiscal offenses. Similar provisions appear in recent U.S.
extradition treaties with Austria, France, India, Poland, and
Trinidad and Tobago.\8\
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\8\ See Art. 2(4)(b), U.S.-Austria Extradition Treaty, signed
January 8, 1998; Art. 2(6), U.S.-France Extradition Treaty, signed
April 23, 1996; Art. 2(3)(c), U.S.-India Extradition Treaty, signed
June 25, 1997, entered into force July 21, 1999; Art. 3, U.S.-Poland
Extradition Treaty, signed July 10, 1996, entered in force August 18,
1999; Art. 2(6), U.S.-Trinidad and Tobago Extradition Treaty, signed
March 4, 1996.
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Paragraph 7 provides that a person who has already been
sentenced in the Requesting State may be extradited only if
more than four months of the sentence remain to be served. Most
U.S. extradition treaties signed in recent years do not contain
such a requirement, but provisions of this kind do appear in
some recent U.S. extradition treaties.\9\
---------------------------------------------------------------------------
\9\ See Art. 2(2), U.S.-Luxembourg Extradition Treaty, signed Oct.
1, 1996; Art. 2(1), U.S.-France Extradition Treaty, signed April 15,
1996; Art. 2(1), U.S.-Argentina Extradition Treaty, signed June 10,
1997; Art. 2(2), U.S.-Bolivia Extradition Treaty, signed June 27, 1995,
entered into force Nov. 21, 1996.
---------------------------------------------------------------------------
Article 3--Nationality
Paragraph 1 states that neither Contracting State shall be
bound to extradite its own nationals, but the Requested State
shall have the power to do so if, in its discretion, it be
deemed proper to do so. As a matter of longstanding policy, the
U.S. Government extradites U.S. nationals. \10\ However, Korean
law gives the Minister of Justice the discretion to deny
extradition if the person sought is a Korean national, \11\ and
the Korean delegation insisted that the discretion to do so be
reflected in the Treaty so that the Treaty would be consistent
with Korean law. The Korean delegation assured the U.S.
delegation that although the discretion to refuse extradition
of nationals was important to it, it did not foresee that that
discretion would be used frequently. Similar provisions appear
in some other recent U.S. extradition treaties.\12\
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\10\ See generally Shearer, Extradition in International Law, 110-
114 (1970); 6 Whiteman, Digest of International Law, 871-876 (1968).
Our policy of drawing no distinction between nationals of the United
States and those of other countries in extradition matters is
underscored by Title 18, U.S. Code, Section 3196, which authorizes the
Secretary of State to extradite U.S. citizens pursuant to treaties that
permit (but do not require) surrender of citizens, if other
requirements of the Treaty have been met.
\11\ Section 9(1), Extradition Law 1988.
\12\ See Art. 3, U.S.-Malaysia Extradition Treaty, signed August 3,
1995, entered into force June 2, 1997; Art. V., U.S.-Japan Extradition
Treaty, signed March 3, 1978, entered into force March 26, 1980, 31 UST
892; Art. V, U.S.-Australia Extradition Treaty, signed May 14, 1974,
entered into force May 8, 1976, as amended by Protocol, dated September
4, 1990, entered into force December 21, 1992; Art. VII., U.S.-Jamaica
Extradition Treaty, signed June 14, 1983, entered into force July 7,
1991.
---------------------------------------------------------------------------
Paragraph 2 requires that if extradition is refused solely
on the basis of the nationality of the person sought, the
Requested State, at the request of the Requesting State, shall
submit the case to its authorities for prosecution. The
negotiators agreed that the Requested State is obliged to
consider prosecuting the person, but is not obliged to
prosecute if it determines, in its sound prosecutorial
discretion, that the facts do not make out a criminal offense
under its law or it lacks jurisdiction to prosecute or if there
are other reasons not to do so, thus preserving the important
principle of prosecutorial discretion in the United States.
Paragraph 3 states that nationality shall be determined at
the time of the commission of the offense for which extradition
is requested. In other words, for purposes of this article, the
nationality of the person sought at the time of the commission
of the offense governs, not the nationality at the time of the
extradition hearing. This is to avoid the unfairness that would
result when a person escapes extradition by acquiring the
nationality of the Requested State after the crime was
committed.
Article 4--Political and Military Offenses
Paragraph 1 of this article prohibits extradition for a
political offense. This is a standard provision in United
States extradition treaties.
Paragraph 2 describes three categories of offenses which
shall not be considered to be political offenses.
First, the political offense exception does not apply where
there is a murder or other willful violent crime against the
person of a Head of State of one of the Contracting States, or
a member of the such person's family.
Second, the political offense exception does not apply to
offenses which are included in a multilateral treaty,
convention, or international agreement, which requires the
parties to either extradite the person sought or submit the
matter for prosecution, including but not limited to such
agreement relating to genocide, terrorism, or kidnapping. The
conventions to which this clause would apply at present
include, for example, the Convention for the Suppression of
Unlawful Seizure of Aircraft (Hijacking).\13\
---------------------------------------------------------------------------
\13\ Done at the Hague on 16 December 1970, entered into force 14
October 1971, 22 UST 1641, TIAS 7192.
---------------------------------------------------------------------------
Third, the political offense exception does not apply to
conspiring or attempting to commit, or participating in the
commission of, any of the foregoing offenses.
Paragraph 3 provides that extradition shall not be granted
if the executive authority of the Requested State determines
that the request, though purporting to be made for an offense
for which surrender may be granted, was in fact made for the
primary purpose of prosecuting or punishing the person sought
on account of that person's race, religion, nationality, or
political opinion,\14\ or that extradition was requested for
political purposes. This paragraph is based on Republic of
Korea law,\15\ and is consistent with the longstanding law and
practice of the United States, under which the Secretary of
State alone has the discretion to determine whether an
extradition request is based on improper political
motivation.\16\
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\14\ There are similar provisions in many U.S. extradition
treaties. See Art. III(3), U.S.-Jamaica Extradition Treaty, signed June
14, 1983, entered into force September 24, 1984; Art. 5(4), U.S.-Spain
Extradition Treaty, signed May 29, 1970, entered into force June 16,
1971 (22 UST 737, TIAS 7136, 796 UNTS 245); Art. 4, U.S.-Netherlands
Extradition Treaty, signed June 24, 1980, entered into force September
15, 1983 (TIAS 10733); and Art. IV(c), U.S.-Ireland Extradition Treaty,
signed July 13, 1983, entered into force Dec. 15, 1984 (TIAS 10813).
\15\ Section 7(4), Extradition Act 1988.
\16\ See Eain v. Wilkes, 641 F.2d 504, 513-518 (7th Cir.), cert.
denied, 454 U.S. 894 (1981); Koskotos v. Roche, 744 F. Supp. 904 (D.
Mass. 1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
---------------------------------------------------------------------------
The final paragraph of the article states that the
executive authority of the Requested State may refuse
extradition if the request involves offenses under military law
which would not be offenses under ordinary criminal law.\17\
---------------------------------------------------------------------------
\17\ An example of such a crime is desertion. Matter of Extradition
of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal. 1988).
---------------------------------------------------------------------------
Article 5--Prior Prosecution
This article prohibits extradition if the offender has been
convicted or acquitted in the Requested State for the offense
for which extradition is requested. Similar language appears in
many United States extradition treaties.\18\ The Korean
delegation urged that this provision be expanded because Korean
law explicitly requires the Minister of Justice to deny
extradition if the person sought is being proceeded against in
Korea,\19\ even if the person has not yet been convicted or
acquitted. The U.S. delegation did not accept this proposal,
but understands that in such cases the Republic of Korea will
likely postpone action on the extradition request pursuant to
Article 12, and may then take action under Article 5 as soon as
the Korean proceedings are completed.
---------------------------------------------------------------------------
\18\ See, e.g., Art. 5, U.S.-Jordan Extradition Treaty, signed at
Washington March 28, 1995, entered into force July 29, 1995.
\19\ Section 7(2), Extradition Law 1988.
---------------------------------------------------------------------------
The parties agreed that this provision applies only if the
offender is convicted or acquitted in the Requested State of
exactly the same crime he is charged with in the Requesting
State. It would not be enough that the same facts were
involved. Thus, if an offender is accused in one State of
illegally smuggling narcotics into the country, and is charged
in the other State of unlawfully exporting the same shipment of
drugs out of that State, an acquittal or conviction in one
State would not insulate the person from extradition to the
other, since different crimes are involved.
Article 6--Lapse of Time
Article 6 states that extradition may be denied when the
prosecution would have been barred by lapse of time according
to the law of the Requested State had the same offense been
committed in the Requested State.\20\ Similar provisions are
found in recent U.S. extradition treaties with Japan, France,
and Luxembourg.\21\
---------------------------------------------------------------------------
\20\ It is settled law in the United States, that lapse of time is
not a defense to extradition at all unless the treaty specifically
provides to the contrary. Freedman v. United States, 437 F. Supp. 1252,
1263 (D. Ga. 1977); United States v. Galanis, 429 F. Supp. 1215, 1224
(D. Conn. 1977).
\21\ See Art. IV(3), U.S.-Japan Extradition Treaty, signed March 3,
1978, entered into force March 26, 1980, 31 UST 892; Art. 9(1), U.S.-
France Extradition Treaty, signed April 23, 1996; Art. 2(6), U.S.-
Luxembourg Extradition Treaty, signed Oct. 1, 1996.
---------------------------------------------------------------------------
Korea insisted on this provision because Korean law demands
that extradition be denied if the statute of limitations would
have expired in either Korea or in the Requesting State.\22\
However, the delegations were sensitive to the fact that U.S.
and Korean statutes of limitations are so different that this
provision could be very difficult to implement. For example, in
the United States, the statute of limitations becomes
irrelevant when criminal charges are filed. In Korea, however,
the statute of limitations for prosecution continues to run
even when charges have been filed. Instead, each official act
by the prosecution evidencing an intent to prosecute the
defendant or capture and re-incarcerate the escapee
``interrupts'' the period of prescription and restarts the
applicable period of prescription. Therefore, the Treaty
provides that a request may be denied if it would be timebarred
in the Requested State, but that acts or circumstances that
would toll the statute of limitation in either state would be
applied by the Requested State.
---------------------------------------------------------------------------
\22\ Section 7(1), Korea Extradition Law 1988.
---------------------------------------------------------------------------
In the United States, the statute of limitations is tolled
during the period that a defendant is a fugitive from justice.
In Korea, however, the flight of the defendant or escape of a
convict does not toll the applicable period of prescription.
The second sentence of the paragraph adopts the U.S. standard,
stating that the period during which the person for whom
extradition is sought fled from justice does not count towards
the running of the statute of limitations. In addition, the
final sentence of the article states that acts or circumstances
that would suspend the expiration of the statute of limitations
in either State shall be given effect by the Requested State,
and in this regard the Requesting State shall provide a written
statement of the relevant provisions of its statute of
limitations, which shall be conclusive.
Article 7--Capital Punishment
Paragraph 1 permits the Requested State to refuse
extradition in cases in which the offense for which extradition
is sought is punishable by death in the Requesting State, but
is not punishable by death in the Requested State. This article
provides two exceptions to this general rule:
Under subparagraph (a), the extraditable offenses
constitutes murder under the laws of the Requested
State; or
Under subparagraph (b), the Requesting State provides
assurances that the death penalty will not be imposed
or, if imposed, will not be carried out.
Similar provisions are found in many recent United States
extradition treaties.\23\
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\23\ See, e.g., Art. 8, U.S.-India Extradition Treaty, signed June
25, 1997, entered into force July 21, 1999; Art. 6, U.S.-Thailand
Extradition Treaty, signed December 14, 1983, entered into force May
17, 1991.
---------------------------------------------------------------------------
Paragraph 2 provides that when the Requesting State gives
assurances in accordance with paragraph 1, the assurances shall
be respected, and the death penalty, if imposed, shall not be
carried out.
Article 8--Extradition Procedures and Required Documents
This article sets out the documentary and evidentiary
requirements for an extradition request, and is generally
similar to articles in the United States' most recent
extradition treaties.
The first paragraph requires that all requests for
extradition be submitted in writing and through the diplomatic
channel. A formal extradition request may be preceded by a
request for provisional arrest under Article 10, which may be
initiated through diplomatic channels, or directly between the
respective justice ministries.
Paragraph 2 outlines the information which must accompany
every request for extradition under the Treaty. Most of the
items listed in this paragraph enable the Requested State to
determine quickly whether extradition is appropriate under the
Treaty. For example, Article 9(2)(c) calls for ``the text of
the law describing the essential elements of the offense for
which extradition is requested,'' enabling the Requested State
to determine easily whether there would be a basis for denying
extradition for lack of dual criminality under Article 2.
Paragraph 3 describes the additional information needed
when the person is sought for trial in the Requesting State;
Paragraph 4 describes the information needed, in addition to
the requirements of paragraph 2, when the person sought has
already been tried and convicted in the Requesting State.
Paragraph 3(c) requires that if the fugitive is a person
who has not yet been convicted of the crime for which
extradition is requested, the Requesting State must provide
``reasonable grounds to believe that the person sought has
committed the offense for which extradition is requested.''
This is consistent with extradition law in the United
States,\24\ and is similar to language in other United States
extradition treaties.\25\
---------------------------------------------------------------------------
\24\ Courts applying Title 18, United States Code, Section 3184
have long required probable cause for international extradition. See
discussion in Restatement (Third) of the Foreign Relations Law of the
United States Sec. 476, comment b (1987).
\25\ See, e.g., Art. 8(3)(c), U.S.-Jordan Extradition Treaty,
signed March 28, 1995, entered into force June 29, 1995.
---------------------------------------------------------------------------
Paragraph 4 lists the information needed to extradite a
person who has already been convicted of an offense in the
Requesting State. This paragraph makes it clear that once a
conviction has been obtained, 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.\26\
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\26\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2nd Cir. 1991); United States v.
Clark, 470 F. Supp. 976 (D. Vt. 1979).
---------------------------------------------------------------------------
Paragraph 5 states that if the Requested State considers
the information furnished in support of the request for
extradition insufficient under its law with respect to
extradition, it may ask that the Requesting State submit
supplementary information within a reasonable length of time as
it specifies. This paragraph is intended to permit the
Requesting State to cure defects in the request and
accompanying materials that are found by a court in the
Requesting State or by the attorney acting on behalf of the
Requesting State, and to permit the court, in appropriate
cases, to grant a reasonable continuance to obtain, translate,
and transmit additional materials. A similar provision is found
in other United States extradition treaties.\27\
---------------------------------------------------------------------------
\27\ See, e.g., Art. 8(5), U.S.-Cyprus Extradition Treaty, signed
June 17, 1996, entered into force September 14, 1999; Art. 11, U.S.-
Austria Extradition Treaty, signed January 8, 1998.
---------------------------------------------------------------------------
Paragraph 6 states that all documents be translated into
the language of the Requested State.
Article 9--Admissibility of Documents
Article 9 states that the documents that accompany an
extradition request shall be received and admitted as evidence
in the extradition proceedings if they are certified by the
principal diplomatic or consular officer of the Requested State
resident in the Requesting State \28\ or if they are certified
or authenticated in any other manner accepted by the law of the
Requested State.
---------------------------------------------------------------------------
\28\ Thus, the article creates a method of certification for both
States that is identical to that provided for in U.S. law. See Title
18, United States Code, Section 3190.
---------------------------------------------------------------------------
Article 10--Provisional Arrest
This article describes the process by which a person in one
country may be arrested and detained while the formal
extradition papers are being prepared. Paragraph 1 expressly
provides that a request for provisional arrest may be made
through the diplomatic channel or directly between the
Departments of Justice in the United States and the Republic of
Korea.
Paragraph 2 states the information which the Requesting
State must provide in support of such a request.
Paragraph 3 states that the Requesting State must be
notified promptly of the disposition of its application and, if
applicable, the reason for any inability to proceed with the
application.
Paragraph 4 provides that the person who has been
provisionally arrested may be discharged if the Requesting
State does not file a fully documented request for extradition
with the executive authority of the Requested State within two
months of the date on which the person was arrested. The
delegations agreed that receipt of the documents by the Embassy
of the Requested State shall constitute receipt by the
executive authority. Similar provisions appear in all recent
U.S. extradition treaties.
Paragraph 5 makes it clear that the discharge of the person
shall not prejudice the subsequent rearrest and extradition of
that person if the extradition request and supporting documents
are delivered later than the two months indicated in paragraph
4.
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
in whole or in part, the Requested State must provide an
explanation of the reasons for the denial. If extradition is
granted, the article requires that the two States agree on a
time and place for surrender of the person. The Requesting
State must remove the fugitive within the time prescribed by
the law of the Requested State, or the person may be discharged
from custody and the Requested State may subsequently refuse to
extradite for the same offense. United States law permits the
person to request release if he has not been surrendered within
two calendar months of having been found extraditable,\29\ or
of the conclusion of any litigation challenging that
finding,\30\ whichever is later. Republic of Korea law requires
that the person be released if he is not removed within thirty
days after the Minister of Justice issues the surrender
order.\31\
---------------------------------------------------------------------------
\29\ Title 18, United States Code, Section 3188.
\30\ Jimenez v. United States District Court, 84 S. Ct. 14, 11
L.Ed. 2d 30 (1963)(decided by Goldberg, J., in chambers). See also
Liberto v. Emery, 724 F.2d 23 (2d Cir. 1983); In Re United States, 713
F.2d 105 (5th Cir. 1983); Barrett v. United States, 590 F.2d 624 (6th
Cir. 1978).
\31\ Section 35(2), Extradition Law 1988.
---------------------------------------------------------------------------
Article 12--Temporary and Deferred Surrender
Occasionally, a person sought for extradition may be
already facing prosecution or serving a sentence on other
charges in the Requested State. Article 12 provides a means for
the Requested State to defer extradition in such circumstances
until the conclusion of the proceedings against the person
sought and the service of any punishment that may have been
imposed. Similar provisions appear in our recent extradition
treaties with countries such as Jordan, the Bahamas, and
Australia.\32\
---------------------------------------------------------------------------
\32\ See Art. 13, U.S.-Jordan Extradition Treaty, signed at
Washington March 28, 1995, entered into force July 29, 1995; Art. 12,
U.S.-Bahamas Extradition Treaty, signed March 9, 1990, entered into
force September 22, 1994; Art. IX, U.S.-Australia Extradition Treaty,
signed May 14, 1974, entered into force May 8, 1976, as amended by
Protocol, dated September 4, 1990, entered into force December 21,
1992.
---------------------------------------------------------------------------
Paragraph 1 provides for the temporary surrender of a
person wanted for prosecution in the Requesting State who is
being prosecuted or is serving a sentence in the Requested
State. A person temporarily transferred pursuant to this
provision will be returned to the Requested State at the
conclusion of the proceedings in the Requesting State. Such
temporary surrender furthers the interests of justice in that
it permits trial of the person sought while evidence and
witnesses are more likely to be available, thereby increasing
the likelihood of successful prosecution. Such transfer may
also be advantageous to the person sought in that: (1) it
allows him to resolve the charges sooner; (2) it may make it
possible for him to serve any sentence in the Requesting State
concurrently with the sentence in the Requested State; and (3)
it permits him to defend against the charges while favorable
evidence is fresh and more likely to be available to him.
Similar provisions are found in many recent extradition
treaties.
Paragraph 2 provides that the executive authority of the
Requested State may postpone the surrender of a person who is
serving a sentence in the Requested State until the full
execution of the punishment which has been imposed.\33\ The
provision's wording makes it clear that the Requested State may
postpone the initiation of extradition proceedings as well as
the surrender of a person facing prosecution or serving a
sentence.
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\33\ Under United States law and practice, the Secretary of State
would make this decision. Koskotas v. Roche, 740 F. Supp. 904, 920 (D.
Mass. 1990), aff'd, 931 F.2d 169 (1st Cir. 1991).
---------------------------------------------------------------------------
Article 13--Requests for Extradition Made by Several States
This article reflects the practice of many recent United
States extradition treaties and lists some of the factors which
the executive authority of the Requested State must consider in
determining to which country a person should be surrendered
when reviewing requests from two or more States for the
extradition of the same person. For the United States, the
Secretary of State would make this decision.\34\
---------------------------------------------------------------------------
\34\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990),
aff'd, 932 F.2d 977 (11th Cir. 1991).
---------------------------------------------------------------------------
Article 14--Seizure and Surrender of Property
The first paragraph of the article provides that to the
extent permitted by its laws the Requested State may seize and
surrender all articles, documents, and evidence connected with
the offense for which extradition is requested.\35\ The second
sentence of the paragraph provides that these objects may be
surrendered to the Requesting State even if extradition cannot
be effected due to the death, disappearance, or escape of the
fugitive. Similar provisions are found in all recent U.S.
extradition treaties.
---------------------------------------------------------------------------
\35\ The Korean delegation told the U.S. delegation that seizure
and surrender of evidence in extradition matters is governed by Section
17(2) of the Extradition Law 1988, and that seizures pursuant to this
Article would be carried out under Sections 106 and 215 of Korea's
Criminal Procedure Code.
---------------------------------------------------------------------------
The second paragraph states that the Requested State may
obtain assurances from the Requesting State to enable it to
temporarily surrender the property in such a way as to insure
that the property is returned free of charge to the Requested
State as soon as practicable, or may defer surrender if the
property is needed in connection with pending proceedings in
the Requested State.
The final paragraph states that the obligation to surrender
property under this provision is subject to due respect for any
rights that third parties may have to such property.
Article 15--Rule of Speciality
This article covers the principle known as the rule of
speciality, which is 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 speciality prevents a request for extradition from
being used as a subterfuge to obtain custody of a person for
trial or service of sentence on different charges which may not
be extraditable under the treaty or properly documented at the
time that the request is granted.
Since a variety of exceptions to the rule have developed
over the years, this article codifies the current formulation
of the rule by providing that a person extradited under the
Treaty may only be detained, tried, or punished in the
Requesting State for (a) the offense for which extradition was
granted, or any other extraditable offense of which the person
could be convicted upon proof of the same facts upon which the
extradition was granted; or (b) for offenses committed after
the extradition; and (c) any other offenses for which the
executive authority of the Requested State consents.\36\
Article 15(c)(i) permits the Requested State to require the
documents described in Article 8 when it is asked for its
consent to pursue new charges; requires that a legal record of
any statements made by the extradited person with respect to
the offense be submitted to the Requested State; and provides
that the person extradited may be detained by the Requesting
State while the request is being processed, for as long as the
Requested State authorizes.
---------------------------------------------------------------------------
\36\ In the United States, the Secretary of State has the authority
to grant such consent. See Berenguer v. Vance, 473 F. Supp. 1195
(D.D.C. 1979).
---------------------------------------------------------------------------
Paragraph 2 prohibits extradition to a third state for an
offense committed prior to extradition without the consent of
the surrendering State.\37\
---------------------------------------------------------------------------
\37\ This provision is consistent with the provisions in all recent
U.S. extradition treaties.
---------------------------------------------------------------------------
Paragraph 3 permits the detention, trial, or punishment of
an extraditee for additional offenses if (1) the extraditee
leaves and voluntarily returns to the Requesting State, or (2)
the extraditee does not leave the Requesting State within 25
days of being free to do so.
Article 16--Simplified Extradition
Persons sought for extradition frequently elect to waive
their right to extradition proceedings and to expedite their
return to the Requesting State. This article provides that when
a fugitive consents to return to the Requesting State, the
person may be returned to the Requesting State without further
proceedings. It is anticipated that in such cases there would
be no need for the formal documents described in Article 8 or
further judicial proceedings of any kind.
United States practice has long been that the rule of
speciality does not apply when a fugitive waives extradition
and voluntarily returns to the Requested State.\38\ The second
sentence of Article 16 incorporates this practice, and
specifies that Article 15, relating to the rule of speciality,
shall not apply when a person waives extradition under Article
16.
---------------------------------------------------------------------------
\38\ Cf. Art. 16, U.S.-Netherlands Treaty, signed June 24, 1980,
entered into force Sept. 15, 1983, TIAS 10733.
---------------------------------------------------------------------------
Article 17--Transit
Paragraph 1 gives each Contracting State the discretion to
authorize transit through its territory of persons being
surrendered to the other country by third countries.\39\
Requests for transit may be transmitted either through the
diplomatic channel, or directly between the Departments of
Justice in the United States and the Republic of Korea, and are
to contain a description of the person whose transit is
proposed and a brief statement of the facts of the case with
respect to which he is being surrendered to the Requesting
State. The paragraph specifies that the person may be detained
in custody during the period of transit.
---------------------------------------------------------------------------
\39\ A similar provision is in all recent U.S. extradition
treaties.
---------------------------------------------------------------------------
Paragraph 2 states that no advance authorization is
required if the person in custody is in transit to one of the
Parties and is traveling by aircraft and no landing is
scheduled in the territory of the other Party. Should an
unscheduled landing occur, a request for transit may be
required at that time, and the Requested State may grant the
request if, in its discretion, it is deemed appropriate to do
so. The Treaty specifies that the Requested State is to detain
the person for up to 96 hours until a request for transit is
received, and thereafter until it is executed.
Paragraph 3 states that permission for the transit shall
include permission for the accompanying officials to seek and
obtain assistance from appropriate authorities in the Requested
State in order to maintain the person in custody. Thus, the
Korean National Police might enlist the aid of the U.S.
Marshals Service or the Federal Bureau of Investigation in
effecting the transit of a prisoner en route to Korea via the
United States.
Paragraph 4 states that if the transit is not accomplished
within a reasonable time the Contracting State in whose
territory the person is held may direct that the person be
released.
Article 18--Representation and Expenses
The first paragraph of this article provides that the
Requested State shall advise, assist, appear in court on behalf
of the Requesting State, and represent the interests of the
Requesting State in any proceedings arising out of an
extradition request. Thus, the United States will represent the
Republic of Korea before the courts in this country in
connection with a request from Korea for extradition, and the
Republic of Korea will arrange for the representation of the
United States in connection with United States extradition
requests to the Republic of Korea. In some cases, the Requested
State may wish to retain private counsel to assist in the
presentation of the extradition request. It is anticipated that
in those cases the fees of private counsel retained by the
Requested State would be paid by the Requested State.
Paragraph 2 provides that the Requesting State will bear
the expenses of the translation of documents and the costs of
conveying the person from the territory of the Requested State.
The Requested State is to pay all other expenses incurred in
that State by reason of the extradition proceedings. This is
consistent with other U.S. extradition treaties and U.S. law on
the subject.\40\
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\40\ See, e.g., Art. 19, U.S.-Jordan Extradition Treaty, signed
March 28, 1995, entered into force June 29, 1995; Art. 20, U.S.-India
Extradition Treaty, signed June 25, 1997, entered into force July 21,
1999.
---------------------------------------------------------------------------
Paragraph 3 provides that neither State shall make a
pecuniary claim against the other in connection with
extradition proceedings, including arrest, detention,
examination, and surrender of the fugitive. This would include
any claim by the fugitive for damages, reimbursement, or legal
fees, or other expenses occasioned by the execution of the
extradition request.
Article 19--Consultation
The first paragraph of this article provides that the
Contracting States shall consult, at the request of either,
concerning the application or interpretation of the treaty.
This mandatory consultation requirement was added at the
request of the United States delegation to address concerns
regarding the relationship between this treaty and Korea's
National Security Law (NSL).
The NSL, as amended in 1980, restricts ``anti-state
activities'' that endanger ``the state or the lives and freedom
of the citizenry.'' Previous Governments in Seoul used the law
not only against espionage and sabotage but also to control and
punish domestic dissent, such as the publication of
unauthorized political commentary, art, or literature, on the
grounds that such expressions benefited an ``antistate
organization.'' In divided Korea, almost any act of opposition
to the Republic of Korea Government could be characterized as
benefiting North Korea. The United States has consistently
expressed to the Republic of Korea government its strong
concerns that the NSL could be used to infringe individual
civil liberties, including the right to free expression.
During the extradition treaty negotiations, the U.S.
delegation made it clear that the United States does not
anticipate extraditing any person to Korea who is charged under
the NSL with offenses that would implicate freedom of speech or
assembly in the United States and does not anticipate that
Korea would make a request for extradition for such an offense.
The Korean delegation acknowledged that it understood the
United States position. In fact, the United States and Korean
delegations agreed that offenses that intruded on freedom of
speech or assembly would not be extraditable under the Treaty.
First, there would almost certainly be no comparable offense in
the U.S. and thus the request would not satisfy the basic
requirement of dual criminality to establish the obligation to
extradite under Article 2(1). The request would also likely
fall within one of the exceptions to the extradition
obligation, e.g. the crime would be a political offense for
which extradition is prohibited under Article 4(1), or the
request would be politically motivated, subject to denial under
Article 4(4). If Korea were to make such a request for
extradition, the United States would use the mandatory
provisions of Article 19 to require consultations with Korea in
order to confirm its understanding of the applicable law in the
Republic of Korea, and to make clear its reading of the treaty
on these matters.
Article 19 of the treaty provides that the Departments of
Justice in the United States and the Republic of Korea may
consult with one another with regard to an individual
extradition case or on extradition procedures in general. A
similar provision is found in other recent U.S. extradition
treaties.
Article 20--Application
This Treaty, like most of the other United States
extradition treaties negotiated in the past two decades, is
expressly made retroactive, and covers offenses which occurred
before as well as after the date upon which the Treaty enters
into force.
Article 21--Ratification, Entry Into Force, and Termination
This article contains standard treaty language providing
for the exchange of instruments of ratification as soon as
possible. The Treaty is to enter into force upon the exchange
of instruments of ratification.
This article also contains the standard treaty language
describing the procedure for giving notice of termination of
the Treaty. Termination shall become effective six months after
the date of notice.
VIII. Resolution 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 Government
of the United States of America and the Government of Republic
of Korea, signed at Washington on June 9, 1998 (Treaty Doc.
106-2), subject to the understanding of subsection (a), the
declaration of subsection (b), and the proviso of subsection
(c).
(a) Understanding.--The Senate's advice and consent is
subject to the following understanding, which shall be included
in the instrument of ratification:
Prohibition on Extradition To the International
Criminal Court.--The United States understands that the
protections contained in Article 15 concerning the Rule
of Speciality would preclude the resurrender of any
person from the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the United States consents to such
resurrender; and the United States shall not consent to
the transfer of any person extradited to the Republic
of Korea by the United States to the International
Criminal Court agreed to in Rome, Italy, on July 17,
1998, unless the treaty establishing that Court has
entered into force for the United States by and with
the advice and consent of the Senate, as required by
Article II, section 2 of the United States
Constitution.
(b) Declaration.--The Senate's advice and consent is
subject to the following declaration, which shall be binding on
the President:
Treaty Interpretation.--The Senate affirms the
applicability to all treaties of the constitutionally
based principles of treaty interpretation set forth in
Condition (1) of the resolution of ratification of the
INF Treaty, approved by the Senate on May 27, 1988, and
Condition (8) of the resolution of ratification of the
Document Agreed Among the States Parties to the Treaty
on Conventional Armed Forces in Europe, approved by the
Senate on May 14, 1997.
(c) Proviso.--The resolution of ratification is subject
to the following proviso, which shall not be included in the
instrument of ratification to be signed by the President:
Supremacy of the Constitution.--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.
IX. Annex
----------
EXTRADITION TREATY WITH SOUTH KOREA (TREATY DOCUMENT 106-2)
----------
WEDNESDAY, OCTOBER 20, 1999
U.S. Senate,
Committee on Foreign Relations,
Washington, DC.
The committee met, pursuant to notice, at 2:15 p.m. in room
SD-419, Dirksen Senate Office Building, Hon. Rod Grams,
presiding.
Present: Senators Grams and Biden.
Senator Grams. Thank you very much. Sorry we are a little
late, but I wanted to get the hearing started to consider the
U.S. Extradition Treaty with South Korea.
Today the committee is considering the Extradition Treaty
between the Government of the United States and the Government
of the Republic of Korea.
This treaty is intended to facilitate the extradition of
individuals to stand trial in the countries where they are
accused of committing felonies, thereby curbing the ability of
international fugitives to find safe haven.
The committee has taken the unusual step of considering
this extradition treaty ahead of the standard biennial schedule
for consideration of law enforcement treaties in light of a
pending request for extradition of an international fugitive
currently in South Korea who is being sought by the U.S.
District Attorney in Philadelphia to stand trial for murder.
The United States has extradition relationships with more
than 110 countries. Extradition treaties have long been a basis
for furthering bilateral relationships and represent a
recognition by the United States of the legitimacy of a
country's judicial system.
Respect for a treaty partner's judicial system is essential
since the treaties permit the transfer of individuals to
another country in order to stand trial for alleged crimes. The
treaty with South Korea, therefore, signals an important
advancement in the U.S.-South Korean relationship.
This extradition treaty will also add to a growing web of
relationships by the United States that makes it increasingly
difficult for criminals to find a safe haven from criminal
prosecution. While economic opportunities are created by the
increasing globalization of the economy, this openness also
facilitates transborder criminal activity, such as the
terrorist attacks on our embassies in East Africa just last
year.
Extradition of criminals, particularly those wanted for
terrorism, drug trafficking, and violent crime, has become
increasingly important to insure that perpetrators of such
heinous crimes are brought to justice.
When the Senate last considered international extradition
treaties in the wake of approval of the Rome Treaty and the
International Criminal Court, which was adopted by more than
100 countries in July 1998, each treaty's instrument of
ratification included a prohibition on the transfer of
Americans extradited under the treaty to an international
criminal court. The resolution of ratification for the treaty
with South Korea will also insure that the transfer of subjects
extradited to South Korea will not be made to that misconceived
court.
Today the committee will hear from Jamison S. Borek, Deputy
Legal Advisor for the Department of State, and also Mr. John E.
Harris, Acting Director of the Office of International Affairs
of the Department of Justice.
I want to welcome you here to this hearing today.
Now I would like to take a moment and turn it over to
Senator Biden for any opening comments he may have.
Senator Biden. Thank you, Mr. Chairman. I am grateful that
you are holding this hearing. I asked Senator Helms whether he
would move this up, and I thank him as well for being willing
to do that.
If this extradition treaty with South Korea is approved, I
think it will add a new dimension to a 50 year relationship
with South Korea that has been growing and getting better.
Ours is an alliance forged in blood, and a sometimes
desperate struggle against common adversaries. But it is
fitting, it seems to me, that we should complement our
extensive security and economic ties by expanding the
cooperation area in law enforcement.
This treaty is important for two reasons. First, it
acknowledges the tremendous changes which have occurred in
South Korea as the country has emerged from years of
authoritarian rule to become a thriving multi-party democracy.
President Kim Dae Jung has made democracy and accountability a
hallmark of his administration, launching sweeping reforms not
only in the economic sector but also in the political and
judicial realms.
Although the reforms are still underway, the changes in
South Korea I think are dramatic and I think are plain to see.
Thus, I think it is appropriate that we take note of the
reforms and the increased confidence they inspire in Korean
courts.
Second, this treaty will pay important and immediate
dividends for U.S. law enforcement. Even as we sit here in
Washington, a murder suspect, a fugitive from justice wanted
for trial in Philadelphia, is now free in South Korea. The only
thing preventing him from being returned to the United States
to stand trial is the absence of an extradition treaty with
South Korea.
Moreover, the treaty is a critical component for overall
law enforcement cooperation with South Korean authorities,
cooperation which I believe will help combat organized crime,
drug smuggling, and international terrorism, as the chairman
has mentioned.
Mr. Chairman, by giving its advice and consent to this
treaty, the Senate, I hope it will be clear, will be sending a
strong signal to the people of South Korea that we value our
alliance and we have confidence in their judicial system. We do
not sign extradition treaties with countries in whose judicial
systems we have little confidence.
It will also send a message to criminals who might seek
refuge by fleeing to either country. You can run, but, if
apprehended, you can not hide from eventual prosecution.
Mr. Chairman, I look forward to our hearing and again thank
you for moving on this as quickly as you have. I welcome the
witnesses and am looking forward to hearing their testimony.
Senator Grams. Thank you, Senator Biden.
Ms. Borek, if you have any opening statement that you would
like to make, please proceed.
STATEMENT OF JAMISON S. BOREK, DEPUTY LEGAL ADVISER, DEPARTMENT
OF STATE
Ms. Borek. Thank you, Mr. Chairman. If I may, I will
shorten my statement and ask that the full document be accepted
for the record.
Senator Grams. It will be so entered.
Ms. Borek. Thank you, Mr. Chairman, Senator Biden. Thank
you for giving us the opportunity to testify in support of the
Extradition Treaty with the Government of the Republic of Korea
today.
We greatly appreciate this opportunity to move toward
ratification of this treaty, which was signed on June 9 of last
year. The growth in transport of criminal activity, especially
violent crime, terrorism, drug trafficking, and the laundering
of proceeds of organized crime, has confirmed the need for an
increased international law enforcement cooperation effort.
Extradition treaties, such as the Treaty with the Republic of
Korea, are essential tools in that effort.
This will become the first bilateral extradition treaty
between the United States and the Republic of Korea. We do not
currently have an extradition treaty in place. This provides
the opportunity for fugitives from justice to use each of our
countries as a haven from the other, an increasing problem
given the continuing rise in transnational crime and ease of
travel across borders.
Taken together with the Mutual Legal Assistance Treaty with
the Republic of Korea, to which you gave advice and consent and
which entered into force in May 1997, this will be the basis
for significant expanded law enforcement cooperation.
This is a fairly standard treaty in the modern line. It
provides for dual criminality, so that all offenses which are
criminal, serious crimes in both countries will be covered.
Second, it does cover extraditable offenses committed
before entry into force. So it will permit us to seek
extradition of persons who have already committed crimes, such
as were mentioned by Senator Biden.
It has other improvements which we find in modern treaties.
It does contain a provision making the extradition of nationals
discretionary. However, in this case, we have to note that the
Korean Government does not expect to refuse extradition on the
basis of nationality as a matter of policy. There is discretion
under their law for the Minister of Justice to refuse
extradition in some cases and, therefore, they believe this
discretion should be reflected in the treaty. But we were
assured that they do not expect to use this discretion on any
sort of frequent or regular basis. They do not have a
principled problem with the extradition of nationals.
As you know, this is in other countries a problem which we
are striving to overcome with the Department of Justice.
I will not go on with that. It is basically a modern treaty
in the modern form. It will be a very useful and important
treaty, and we hope very much that you will give it your advice
and consent.
I will close here and take your questions.
[The prepared statement of Ms. Borek follows:]
Prepared Statement of Jamison S. Borek
Mr. Chairman and members of the Committee:
I am pleased to appear before you today to testify in support of
the extradition treaty between the Government of the United States of
America and the Government of the Republic of Korea.
The Department of State greatly appreciates this opportunity to
move toward ratification of this important treaty, which was signed on
June 9, 1998. The growth in trans-border criminal activity, especially
violent crime, terrorism, drug trafficking, and the laundering of
proceeds of organized crime, has confirmed the need for increased
international law enforcement cooperation. Extradition treaties such as
the treaty with the Republic of Korea now under consideration by this
Committee are essential tools in that effort.
Upon entry into force, this will become the first bilateral
extradition treaty between the United States and the Republic of Korea.
The current absence of an extradition treaty provides the opportunity
for fugitives from justice to use each of our countries as a haven from
the other, an increasing problem given the continuing rise of
transnational crime and the ease of travel across borders. Taken
together with the Mutual Legal Assistance Treaty with the Republic of
Korea, which entered into force in May 23, 1997, the extradition treaty
will provide the basis for significant expanded law enforcement
cooperation between our two countries.
Most of the Treaty's provisions are those typically found in other
recently negotiated bilateral extradition treaties. The overall Treaty
provides significant advantages to the United States, particularly when
compared to the absence of any treaty on these issues. The following
are some of these important features.
First, the Treaty defines extraditable offenses to include conduct
that is punishable by imprisonment or deprivation of liberty for a
period of one year or more in both states, or by a more severe penalty.
This is the so-called ``dual criminality'' approach. Treaties
negotiated before the 1970s typically provided for extradition only for
offenses appearing on a list contained in the instrument. As time
passed, these lists grew increasingly out of date. The dual criminality
approach obviates the need to renegotiate treaties to cover new
offenses in instances in which both states pass laws to address new
types of criminal activity.
Second, the Treaty will permit extraditions whether the
extraditable offense is committed before or after their entry into
force. This provision is particularly useful and important, since it
will ensure that persons who have already committed crimes can be
extradited under the new treaties from each of the new treaty partners
after the treaty enters into force.
Third, the Treaty provides a clear statement of the documentation
and other information that will be needed to support extradition
requests in either country. Like the analogous provisions in other
recent U.S. extradition treaties, this statement will provide
prosecutors of both countries with clear guidance on the material
needed to make the treaty work effectively and efficiently.
Fourth, the Treaty contains a provision that permits the temporary
surrender of a fugitive to the Requesting State when that person is
facing prosecution for, or serving a sentence on, charges within the
Requested State. This provision can be important to the Requesting
State and in some cases the fugitive for instance, so that: 1) charges
pending against the person can be resolved earlier while the evidence
is fresh; or 2) where the person sought is part of a criminal
enterprise, he can be made available for assistance in the
investigation and prosecution of other participants in the enterprise.
The Treaty also addresses the important issue of extradition of
nationals of the Requested State. As a matter of longstanding policy,
the U.S. Government extradites United States nationals. The treaty with
Korea does not require each State to extradite its nationals, but
empowers each State to do so in its discretion. Should a Requested
State refuse extradition on the basis of nationality, it is obliged
upon request of the Requesting State to submit the case to its
authorities for prosecution. The U.S. delegation pursued mandatory
extradition of nationals during the negotiations, but Korean law gives
the Korean Minister of Justice the discretion to deny extradition if
the person sought is a Korean national, and the Government of Korea
insisted that the Minister's discretion needed to be reflected in the
Treaty so that it would not be inconsistent with this aspect of Korean
law. The provision on nationality is thus similar to that we have
included in U.S. extradition treaties with Japan, Australia, Jamaica,
and Malaysia. The Korean delegation assured the U.S. delegation that
although the discretion to refuse extradition of nationals was
important to it, it did not foresee that that discretion would be used
frequently.
We will continue our efforts to convince Korea and all other
countries to remove remaining restrictions on the extradition of
nationals. The U.S. Government has made it a high priority to convince
states to change their constitutions and laws and agree to extradite
their nationals. As we have discussed with this Committee before,
however, this is a very sensitive and deep-seated issue and we have not
succeeded in obtaining unqualified approval in all circumstances.
A second issue that often arises in modern extradition treaties
involves extraditions in cases in which the fugitive may be subject to
the death penalty in the Requesting State. A number of recent U.S.
extradition treaties have contained provisions under which a Requested
State may request an assurance from the Requesting State that the
fugitive will not face the death penalty. A provision of this sort
appears in the extradition treaty with Korea.
In sum, Mr. Chairman, the proposed Treaty with the Republic of
Korea will create a crucially important first-ever legal framework for
extradition relations with an important law enforcement partner. We
appreciate the Committee's decision to convene this hearing to consider
the treaty.
I will be happy to answer any questions the Committee may have.
Senator Grams. Thank you very much, Ms. Borek.
Mr. Harris.
STATEMENT OF JOHN E. HARRIS, ACTING DIRECTOR, OFFICE OF
INTERNATIONAL AFFAIRS, CRIMINAL DIVISION, DEPARTMENT OF JUSTICE
Mr. Harris. Thank you, Mr. Chairman.
With your permission, I, too, would like to shorten my
statement and submit the full text for the record.
Senator Grams. It will be so entered.
Mr. Harris. Thank you.
Mr. Chairman and members of the committee, I am very
pleased to appear here today to present the views of the
Department of Justice in support of the new Extradition Treaty
between the United States and the Republic of Korea. The
Department of Justice participated in the negotiation of the
treaty, works closely with Federal, State, and local
prosecutors across the country in preparing extradition
requests, and is happy to join with the Department of State in
urging the committee to report favorably to the Senate and
recommend advice and consent to this important agreement.
This extradition treaty is relatively standard, as Ms.
Borek indicated. In our statements we have described in more
detail some of the standard features in extradition treaties
that are also found in this agreement--things like dual
criminality, coverage for conspiracy, which is an important
tool for prosecutors in insuring that criminals are brought to
justice, and coverage for charges that involve offenses
committed outside of the United States' territory,
extraterritorial offenses. Under some of our older treaties,
there is difficulty in securing extradition for those crimes.
This treaty has specific language that clarifies the ground
rules for such extradition requests. Also, not least, there is
provision for retroactive application of the treaty to crimes
that were committed before the treaty was approved.
We are especially pleased by the language in the treaty
that makes it possible to secure the extradition of nationals
of both countries.
As you know, it is U.S. policy to avoid arbitrary
restrictions on the extradition of nationals, and we place no
small amount of importance on the Republic of Korea's
assurances that the discretionary language on extradition of
nationals does not reflect any intention to routinely deny
extradition requests that involve Korean nationals.
The only other point that I would like to stress, Mr.
Chairman, is that, as has been indicated, this treaty is of
particular interest to the Department of Justice because there
are real cases out there of criminals who could be brought to
justice if the treaty were in place. We see frequent inquiries
from prosecutors across the country who are looking into cases
involving fugitives that are in Korea.
Some of these cases we believe can be queued up for prompt
action as soon as this treaty enters into place. I have already
asked my staff to begin reaching out to Federal, State, and
local prosecutors so that other cases can be prepared for
processing. In other words, this treaty presents an opportunity
for the United States to advance its law enforcement interests
at the same time we strengthen an important relationship with
an important ally.
The last point that I think is worth keeping in mind, as
has been indicated, is that this is the first bilateral
extradition treaty between the United States and Korea, but it
is by no means the beginning of our bilateral law enforcement
relationship. The Mutual Legal Assistance Treaty, to which the
Senate gave its approval in August 1996 and which entered into
force in May 1997, has worked well. It has provided an
opportunity for us to get a sense of the value of our improved
and strengthened law enforcement relationship in this important
area of the world.
The Mutual Legal Assistance Treaty makes it easier to
obtain evidence that is necessary to bring charges against
criminals. The next logical step in the process is the putting
into place of an effective, modern extradition treaty.
We compliment the committee for moving the treaty to
consideration and bringing attention to it. We look forward to
prompt and, we hope favorable action on it.
Thank you.
[The prepared statement of Mr. Harris follows:]
Prepared Statement of John E. Harris
Mr. Chairman and members of the Committee, I am pleased to appear
before you today to present the views of the Department of Justice in
support of a new extradition treaty between the United States and the
Republic of Korea. The Department of Justice participated in the
negotiation of this treaty, and today joins the Department of State in
urging the Committee to report favorably to the Senate and recommend
its advice and consent to ratification.
Upon ratification, this will be the first extradition treaty to
enter into force between the United States and this important ally in
Asia. The treaty will improve upon the network of modern extradition
treaties the United States has in force with others in the region,
including Japan, Thailand, the Philippines, and the Hong Kong Special
Administrative Region. It represents a major step forward in the United
States' efforts to strengthen cooperation with countries of the Pacific
Rim in combating organized crime, transnational terrorism,
international drug trafficking, and other offenses. In addition, the
extradition treaty will join the Mutual Legal Assistance Treaty (MLAT)
between the United States and the Republic of Korea, which entered into
force in 1997, to form an important set of tools for prosecutors and
law enforcement authorities to use to obtain the return of
international fugitives and the evidence necessary to convict them at
trial.
Inasmuch as the Departments of Justice and State have prepared a
detailed technical analysis of the treaty, I would like to speak today
in more general terms about why we view this treaty as an important
mechanism in investigating and prosecuting serious offenses.
The extradition treaty between the United States and the Republic
of Korea represents a continuing effort by the Department of Justice
and the Department of State to modernize our international extradition
relations and deny ``safe haven'' to criminals wherever in the world
they may seek refuge. The treaty further reflects our effort to
conclude agreements that incorporate the most modern and efficient
approaches to international extradition, like those contained in the
treaties presented to the Committee last year. A brief review of some
of the salient features follows.
First, this treaty, like most recent United States extradition
treaties, is not limited by a list of offenses for which extradition
may be granted. Instead, it permits extradition for any offense that is
punishable in both countries by more than one year's imprisonment, or
by a more severe penalty. This modern ``dual criminality'' approach
makes it unnecessary to renegotiate the treaty or supplement it when
laws relating to new crimes are enacted. During the negotiations, the
United States delegation received assurances from their Korean
counterparts that extradition would be possible for such offenses as
drug trafficking, including operating a continuing criminal enterprise;
racketeering; drug money laundering; terrorism; tax offenses; crimes
against environmental protection laws; and antitrust violations. The
Korean delegation also indicated that non-drug money laundering,
although not currently a crime in Korea, might be extraditable if the
offender were viewed as having ``participated'' in the underlying
crime. The Korean Ministry of Justice is exploring the drafting of
comprehensive non-drug money laundering legislation.
Second, this treaty provides that extradition should be granted for
attempting or conspiring to commit, or otherwise participating in, an
extraditable offense. This ensures that extradition is possible for
certain drug-related offenses and crimes under our Continuing Criminal
Enterprise (CCE) and Racketeer Influenced and Corrupt Organizations
(RICO) statutes. The treaty also permits extradition for any offense
specified in a request, even if it is punishable by less than one
year's imprisonment, when extradition has been granted for an
extraditable offense.
The Republic of Korea's ability to prosecute extraterritorial
offenses is more limited than that of the United States. Our
jurisprudence recognizes jurisdiction in U.S. courts to prosecute
offenses committed outside of the United States if the crime was
intended to have effects in this country, or did have such effects, or
if there was clear Congressional intent to assert such jurisdiction. In
the treaty, the United States' more expansive approach is accommodated
by the Koreans' agreement to recognize United States jurisdiction to
prosecute offenses committed outside its territory if Korean law would
permit it to prosecute offenses committed outside the Republic of Korea
in similar circumstances or if the offense has been committed by a
national of the Requesting State. If the laws in the Requested State do
not so provide, the executive authority of the Requested State has the
discretion to grant extradition, provided that the requirements of the
treaty are met.
Third, the treaty permits the extradition of nationals on a
discretionary basis. The U.S. Government extradites United States
nationals, and places a high priority on securing the mandatory
extradition of nationals in its modern extradition treaty negotiations,
as it did during the talks with Korea. This treaty contains a
discretionary formulation at the insistence of the Korean delegation,
in order to make the treaty provision consistent with Korean law. The
Korean delegation assured the United States delegation that they did
not foresee the frequent use of this discretion when determining
whether to extradite Korean nationals to the United States. This treaty
provision also requires that if extradition is refused solely on the
basis of the nationality of the person sought, the Requested State,
when asked by the Requesting State, shall submit the case to its
authorities for prosecution.
The new extradition treaty also incorporates a variety of
procedural improvements over the practice in some of our older
treaties. For example, it clarifies the procedure for ``provisional
arrest,'' the process by which a fleeing fugitive can be arrested upon
request, pending the preparation of documents in support of
extradition. Further, the treaty allows each State to temporarily
transfer for trial a person who is already serving a sentence in one
State. Once the trial is completed, the person will be returned to
finish the original sentence and then will finally be surrendered if he
or she is convicted and sentenced to a period of incarceration with
respect to the offense for which temporary surrender was granted. In
appropriate cases, the ability to surrender fugitives temporarily will
serve the interests ofjustice by avoiding prolonged delays prior to
surrender, by which time the evidence in the other country may no
longer be compelling or even available. Procedural improvements of this
kind allow the legal framework for extradition to operate more
efficiently.
It is important to note that this treaty will apply to offenses
committed both before and after the date it enters into force. In
establishing a first-time extradition relationship with the Republic of
Korea, it will significantly enhance our ability to combat
transnational crime in the region, both in terms of current and
emerging challenges to law enforcement. For these reasons, I request
that you approve the treaty promptly.
I will be happy to answer any questions the Committee may have.
Senator Grams. Thank you very much, Mr. Harris.
I have just a quick couple of questions.
The proposed treaty with South Korea represents a new
bilateral extradition treaty relationship with that country.
Ms. Borek, what specific events led to the negotiations of this
treaty?
Ms. Borek. Thank you, Mr. Chairman. Mr. Harris may want to
add to this.
I think we have been interested in an extradition treaty
relationship with Korea for some time because this is an area
in which we do not want to have a safe haven possibility. I
think, as Senator Biden mentioned, there were some prior
concerns about the legal system which posed an impediment to
perhaps putting it on a priority list for moving forward.
I think the democratic reforms and the tremendous progress
that has been made in the Republic of Korea in recent years
have really answered these concerns and questions and,
therefore, we are comfortable now and quite happy to move
forward with a treaty that, certainly from a law enforcement
point of view, will be very important to us.
Senator Grams. Mr. Harris, did you have anything to add to
that?
Mr. Harris. I don't think I really have anything to add.
One thing the Justice Department takes into account when we
work with the State Department in selecting priorities for
negotiation is the number of fugitives that would be
apprehended under the treaty. With the increase in Korean
immigration to the United States, increased business and
commercial ties, and a general close relationship between the
two countries, we did reach a point where it was clear that
Korea was one of the countries where both governments would
benefit from an improved ability to secure the extradition of
fugitives. That, coupled with the democratic reforms, made this
a logical step in the expansion of U.S. relations.
Senator Grams. Ms. Borek, I understand that in some
instances the treaty deviates from the model. The proposed
treaty follows the U.S.-Japan Extradition Treaty. Is the U.S.-
Japan treaty in effect the model for all extradition treaties
in Asia?
Ms. Borek. With your permission, I might defer that
question to Mr. Harris, who was actually personally involved in
this negotiation.
Mr. Harris. Thank you.
I think the answer is no, the U.S.-Japan Treaty is not the
model for our extradition negotiations in Asia. But it is a
good treaty. It has proven to be a workable relationship and,
given the similarity in some aspects of Korean and Japanese
law, it made sense that it was consulted in determining what
the proper language should be in the treaty with Korea.
But I think it is fair to say that both governments during
the negotiations did approach this with an effort to craft the
best agreement for the U.S. and Korea with the Japanese treaty
merely one of several points of reference, one with which I
think it is fair to say the Korean Government is especially
comfortable. This is not, by any means, the only reference
point.
Senator Grams. Senator Biden mentioned and so did I in our
opening statements that consideration of this treaty has been
expedited in order to facilitate the return of an individual
that is charged with murder in Philadelphia. What assurances do
you have that the South Koreans will, in fact, extradite this
individual, given that there is discretion to deny extradition
since he is a national of the Republic of Korea?
Mr. Harris.
Mr. Harris. That is a good question. Of course, we are not
able to predict with absolute certainty the outcome of a
judicial or executive request in a country before the treaty is
in place. But we have worked closely with the prosecutors in
Philadelphia. We have talked with the appropriate authorities
in the Republic of Korea. Assuming that the Commonwealth of
Pennsylvania, working with the Department of Justice, submits
the documents in support of a request for this individual's
extradition, consistent with the terms of the treaty, we have
been assured that the request will be positively considered by
the Republic of Korea.
They further stated that, at this time, they see no
impediments or problems with prospective extradition.
Senator Grams. Ms. Borek, did you want to comment?
Ms. Borek. I might just add that we have already had, I
think, a very positive, cooperative relationship with the
Government of the Republic of Korea on this case. There is an
official ban on the exit of the individual from the country so
as to minimize the flight risk. At one point they did offer
even to prosecute him themselves.
So, as Mr. Harris says, I think we have established a
cooperative relationship and we do understand that they will
look at this in a very positive light.
Of course, even in our case we would not say what U.S.
courts would do. But we are not aware of any reason why there
should be a problem. Certainly nationality is not such a
reason.
Senator Grams. Thank you.
Senator Biden.
Senator Biden. I only have a couple of questions.
Mr. Harris, it is good to see you again. I am used to
seeing you in the Judiciary Committee in the past.
This question is for either or both of you if you wish to
comment. It concerns dual criminality. This has been one of the
staples in our extradition treaties.
There are provisions in South Korean that do not comport
with ours, provisions in South Korean law that do not comport
with what we consider constitutionally permissible conduct.
Their National Security Law limits, broadly I might add,
political speech of a certain category, that is, speech which
might be construed as supportive of North Korea.
Am I right in understanding that most cases brought under
the National Security Law would not be extraditable?
Ms. Borek. Yes, Senator. This certainly was a focus of
attention during the negotiation because we were concerned
specifically about that law. We definitely concluded that the
dual criminality requirement would be a bar to the kinds of
cases that we were worried about, which involved what we would
consider to be undue infringement on freedom of speech and
political association.
There is also, of course, the political offense exception
which could come into play in a particular case.
Senator Biden. Give me an example of how that would come
into play.
Ms. Borek. Well, to the extent that there is a particular
offense involved in what would be considered political
activity, you could invoke the political offense exception
directly. But that is really a more specialized exception, and
the dual criminality requirement I think would take care of it
before you even got to that particular political offense
exception.
Senator Biden. Yesterday, I met with the South Korean
ambassador--an impressive fellow, by the way. I was very
impressed with not only how articulate he was but his sense of
circumstance in South Korea as well as in the region. But that
is just an aside.
He indicated that South Korea and the South Korean people
are very interested in this treaty. I am sure no one in America
has any idea about this treaty. Notwithstanding your
significant positions, this is not going to make the press.
This is not going to be something people are going to talk
about.
But as he says, in South Korea the Korean Government has a
very high level of interest in this treaty as well as,
apparently, there is an interest that goes beyond just
government circles.
Do you have a sense, Ms. Borek, about this. First, is that
true, if you know? I do not expect you necessarily to know
this, but I would be curious if you do know. Is it true and,
second, why so?
Ms. Borek. Well, I would have to say, and I am speculating
here, that I think it may be because of the factors that you
mentioned in your initial statement and that I mentioned in
response to the question. There has been a hesitation about
having an extradition treaty with the Republic of Korea in the
past due to some aspects of concerns we had about the judicial
system and what might happen in terms of rights of individuals.
To say now that we really don't have these concerns is an
endorsement, in a sense, of the judicial system. It is
something to which we pay attention, always, in any case, with
an extradition treaty. So it could be that, from this point of
view, this is a sign of progress that has been made.
Also, just from a practical point of view, I think they do
want to make some extradition requests. So I think there is
also a law enforcement interest on the part of the Korean
Government as well.
Senator Biden. To get back to the extradition request,
let's assume there is someone who is a Korean national who
violated, without any question, their National Security Law by
praising the North or calling for a unified country under the
North, or whatever, who fled to the United States. Is that the
kind of crime for which we would extradite?
Ms. Borek. No, sir. That would not meet the dual
criminality criterion.
I might say that we have not had problems with this kind of
case in our extradition relationship, and I certainly would not
expect it in this case. I think the Government of Korea
perfectly well understands what the issues are in this area and
they were discussed. I don't expect that there would even be a
problem.
Senator Biden. I don't have any doubt about it, either.
But, quite frankly, I think that is the one thing that would be
raised in opposition to this treaty by some, unless we
affirmatively outline at the front end that that is not a crime
for which the United States would believe the person is
extraditable under this treaty. If we do not say it, I am sure
there will be some talk show host somewhere who will suggest
that that is what we are doing. This is why I wanted it on the
record.
Maybe it is unfair to say ``talk show host.'' I have a
friend who says that ``assumption is the mother of all screw-
ups.'' I think for us to assume that people would know that we
would not do that and that the treaty would not compel us to do
that would be a mistake. That is why I bothered to ask the
question. I realize you knew that I knew the answer. I could
tell by looking at your face which suggested you thought ``why
is he asking me that question?'' That is the reason I asked the
question.
The last point I will make is this. It is not a question. I
think, just to give you one person's opinion, first of all, I
think you did a good job in negotiating this treaty. I think it
is a very positive step. I think the more we establish the
notion of the rule of law binding nations that have economic,
as well as political relationships, that nations are ultimately
bound and tied by the rule of law, this, ultimately, is the
security that the relationship will be, will stay firm.
I would just note parenthetically one Senator's view. I
think that Korea's attention to our willingness to sign an
extradition treaty with them, which is at least a maturation of
our position from the past, is evidence of the fact that moral
suasion makes a difference; that those who suggest that
treaties we sign with other nations--and here everyone in the
press is now going to think I am talking about the conference
on the Test Ban Treaty, because I am so preoccupied with that.
But I am not merely talking about that. I am talking about the
role of moral suasion in international relations. I think that
countries who wish to become part of the international
community in a way that is accepted across the board
increasingly understand that the rule of law, commitment to
treaties, court systems that function, and judicial systems
that are fair, that these ultimately are a sine qua non for any
further legitimization.
I think that is the reason why it is important in my view--
this is just me--why I think it is so important for the Korean
Government. But I also think it is evidence of the fact that we
should not refrain, as a Nation, from making clear what our
minimum standards are, no matter what the economic, political,
or security benefits there are in dealing with a nation.
Ultimately, to become a full fledged partner with the United
States of America, you must accede to the basic rule of law and
have court systems that function.
I think Korea has done that, as I said at the outset. This
is pure dicta on my part, but I think that is the reason why
the Korean Government understands that this is an important
deal in terms of our recognition of their, the legitimacy of
their judicial system.
So I do not think we should underestimate the impact that
we have when we abide by and insist others abide by the rule of
law.
At any rate, I don't have any further questions. But I
thank you both for the professional way in which you went about
negotiating this treaty and the way in which you have presented
the case.
I have no further questions, Mr. Chairman.
Senator Grams. Thank you, Senator Biden.
I have just a few followup questions, especially on the
extradition of nationals. In the proposed treaty, extradition
of nationals is discretionary rather than mandatory.
Ms. Borek, did you discuss with the Korean delegation the
types of instances in which they would not foresee extraditing
their nationals?
Ms. Borek. I know the general issue was discussed. I
believe, and Mr. Harris can correct me, that they did not have
in mind a particular kind of case in which they would not
extradite nationals. It was more a question that under their
law the Minister of Justice had certain discretion and they
could not override that legal discretion by having an absolute
provision in the treaty.
So it was a hypothetical need to preserve a theoretical
prerogative, rather than a particular kind of case where they
saw a problem.
Senator Grams. Who will decide that discretion?
Ms. Borek. Well, it will certainly be up to the Government
of Korea in a given case if we are requesting someone from
them. But under their law, it is the Minister of Justice who
would have the discretion, ultimately.
Senator Grams. Mr. Harris, will this treaty have any effect
on the large U.S. armed forces presence in South Korea or in
the surrounding region?
Mr. Harris. That was one of the issues discussed during the
negotiations, and our conclusion was that it would not.
Senator Grams. It would not?
Mr. Harris. It would not.
There is, of course, a Status of Forces Agreement that
governs the extent to which criminal jurisdiction is available
in those cases. This treaty does not interfere with or obstruct
the operation of that.
Senator Grams. In another area, in the past, the Justice
Department witnesses have referred to the United States as
being on, and I quote, ``the cutting edge of criminalizing
newly emerging criminal activities, such as money laundering,
computer related abuses, and environmental crimes.''
Does the proposed treaty adequately allow the United States
to reach individuals who commit these types of crimes that
maybe some other countries do not recognize?
Mr. Harris. It does, Senator. I am happy to report that
during the negotiations, we carefully went through with the
Republic of Korea the high priority offenses that the Justice
Department is interested in making sure are covered by modern
extradition treaties. We were persuaded that, for the
overwhelming majority of them, there is dual criminality and
there is, indeed, the wherewithal for effective extradition
arrangements.
Senator Grams. Ms. Borek, during consideration of a number
of extradition treaties last year, the Senate added an
understanding regarding the ``rule of speciality'' that is
contained in all treaties, which insures that no persons are
tried for crimes for which they are not extradited. The
prohibition extends to the transfer of an individual without
the consent of the original requested State.
Does the State Department continue to support the inclusion
of an understanding that no U.S. citizen extradited under the
treaty may be transferred to the International Criminal Court
if that court is established without the United States
ratification of the treaty creating the court?
Ms. Borek. Yes, Senator.
Senator Grams. It does cover that?
Ms. Borek. Yes.
Senator Grams. And what does the Justice Department say,
Mr. Harris?
Mr. Harris. Yes, Senator.
Senator Grams. Great. I wanted to make sure we had that on
record.
I just wanted to ask one final question dealing with the
statute of limitations.
Article 6 of the proposed treaty bars extradition in cases
where the law of the requested State would have barred the
crime due to a statute of limitations having run out.
Now South Korea, unlike other treaty partners with similar
commitments, also allows the time to continue running on the
time limitation, even when charges are filed. Actions that
would toll the statute of limitations, therefore, will apply
under this treaty.
So the question is are you confident that this article of
the treaty adequately insures that fugitives cannot simply run
out the clock by fleeing to Korea?
Mr. Harris. Senator, this article of the treaty was the
subject of considerable negotiation. As you may recall, of the
treaties that were before the Senate last fall, most of them
had slightly different language. Many of our most modern
extradition treaties flatly state that the statute of
limitations of the requesting State will apply.
We have a few in which it was not possible to reach that
resolution. In this case, because of the specific provisions of
Korean law, we did agree that the statute of limitations of the
requested State would apply. But, as you have indicated, the
specific language in the article is crafted so that those
factors which toll the statute of limitations under the law of
the requesting State would be given weight.
So when the United States is making a request to Korea,
there should be the ability to prevent a miscarriage of justice
by the statute of limitations of Korea having expired before
extradition can be accomplished.
Senator Grams. Is there anything either of you would like
to add?
Ms. Borek.
Of course, that is usually what gets you into trouble, that
last added statement.
Ms. Borek. No, thank you, sir. I was just going to say
thank you for holding this hearing today.
Senator Grams. I remember that, having been a reporter,
that was always the last question--is there anything you would
like to add?
Mr. Harris. I would like to thank you, Mr. Chairman, and
the committee for holding this hearing and allowing this to go
forward.
Senator Grams. Thank you. I appreciate both of you being
here for your statements and also for your answers.
Just one final note. We will leave the record open for
three business days and other members of the committee might
have questions that they would like to enter in writing. We
would ask for a prompt response if you do receive those. We
appreciate that.
Thank you very much for being here today.
The hearing is concluded.
[Whereupon, at 2:48 p.m., the hearing was concluded.]