[Senate Executive Report 106-26]
[From the U.S. Government Publishing Office]



106th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                      106-26

======================================================================



 
 EXTRADITION TREATIES WITH BELIZE, PARAGUAY, SOUTH AFRICA AND SRI LANKA

                                _______
                                

October 4 (legislative day, September 22), 2000.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

      [To accompany Treaty Docs. 106-38, 106-4, 106-24 and 106-34]

    The Committee on Foreign Relations, to which were referred 
the Extradition Treaty Between the Government of the United 
States of America and the Government of Belize, signed at 
Belize on March 30, 2000 (Treaty Doc. 106-38); the Extradition 
Treaty between the Government of the United States of America 
and the Government of the Republic of Paraguay, signed at 
Washington on November 9, 1998 (Treaty Doc. 106-4); the 
Extradition Treaty Between the Government of the United States 
of America and the Government of the Republic of South Africa, 
signed at Washington on September 16, 1999 (Treaty Doc. 106-24) 
and the Extradition Treaty Between the Government of the United 
States of America and the Government of the Democratic 
Socialist Republic of Sri Lanka, signed at Washington September 
30, 1999 (Treaty Doc. 106-34) having considered the same, 
reports favorably thereon with the understandings, declarations 
and provisos indicated in Section VIII, 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..........................................................2
 II. Background.......................................................2
III. Summary..........................................................2
 IV. Entry Into Force and Termination.................................6
  V. Committee Action.................................................6
 VI. Committee Recommendation and Comments............................7
VII. Explanation of Proposed Treaties.................................9
VIII.Text of Resolutions of Ratification.............................64


                               I. Purpose

    These treaties obligate the Parties to extradite fugitives 
at the request of a Party subject to conditions set forth in 
the treaties.

                             II. Background

    The United States is a party to more 115 bilateral 
extradition treaties. The four extradition treaties considered 
in this report all update existing treaties, namely, the 1972 
United States-United Kingdom treaty that now governs U.S. 
extradition relations with Belize, the 1973 treaty with 
Paraguay, the 1947 treaty with South Africa and the 1931 United 
States-United Kingdom treaty that currently governs U.S. 
extradition relations with Sri Lanka. Each of the new treaties 
contains the core elements sought by the United States in 
modern, effective extradition treaties, namely, the dual 
criminality principal, improved provisional arrest procedures, 
temporary surrender provisions, extradition waiver provisions, 
extraterritorial scope for some offenses, retroactivity and 
elimination of nationality as a basis to refuse an extradition 
request.
    Extradition relationships have long been a basis of United 
States bilateral relationships. They 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 parties permit the transfer of individuals 
to another country in order to stand trial for alleged crimes.

                              III. Summary


                               A. GENERAL

    An extradition treaty is an international agreement in 
which the Requested State agrees, at the request of the 
Requesting State and under specified conditions, to surrender 
persons to the Requesting State who are within the Requested 
State's jurisdiction and who are charged with certain crimes 
against, or are fugitives from, the Requesting State.
    Since the Committee's last review of extradition treaties 
(see Exec. Rept. 105-23 of October 14, 1998), the Departments 
of State and Justice have continued efforts to modernize U.S. 
bilateral extradition treaties to better combat international 
criminal activity, such as drug trafficking, terrorism and 
money laundering. Modern extradition treaties share a number of 
common characteristics: (1) they identify the offenses for 
which extradition will be granted; (2) they establish 
procedures to be followed in presenting extradition requests; 
(3) they enumerate exceptions to the obligation to extradite; 
(4) they specify the evidence which the Requesting State must 
supply in order to support a finding in the Requested State of 
an obligation to extradite; and (5) they set forth 
administrative provisions for bearing costs and legal 
representation.
    In the United States, the legal procedures for extradition 
are governed by both federal statutes and self-executing 
treaties. Federal statutes control the judicial process by 
which a U.S. judge makes a certification to the Secretary of 
State that she may extradite an individual under an existing 
treaty. Extradition proceedings are considered to be non-
criminal in nature, and are conducted by U.S. judges. Habeas 
corpus is the only legal avenue open to fugitives seeking to 
challenge a certification of extraditability by a U.S. judge. 
For its part, the U.S. government may not appeal a finding by a 
judge, but must instead file a new petition for extradition in 
that event.
    U.S. 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 authorizing 
extradition for one or more offenses for which the defendant is 
actually charged; (2) charges for which extradition is sought 
are actually pending against the defendant in the Requesting 
State; (3) the defendant is the same individual sought for 
trial or service of sentence in the Requesting State; (4) 
probable cause exists to believe that the defendant is guilty 
of charges pending against him in the Requesting State; and (5) 
the acts alleged to have been committed by the defendant are 
punishable as criminal conduct in both the Requesting State and 
under the criminal law of the United States (i.e., there is 
``dual criminality'').
    After a judge has made a determination that an individual 
may be extradited under U.S. law, and so certifies to the 
Secretary of State, the Secretary may nevertheless decline to 
surrender the individual to the Requesting State on foreign 
policy or other grounds, as defined in the relevant treaty or 
even absent an express treaty provision. She may also decline 
if she believes the request was politically motivated.

                           B. KEY PROVISIONS

1. Extraditable Offenses--The Dual Criminality Requirement

    In general, extradition agreements cover only the offenses 
designated in them. Older U.S. extradition agreements--so-
called ``list treaties''--designate extraditable offenses 
through inclusion of a list of covered crimes. Some, but not 
all, of these agreements include an additional requirement that 
a listed offense be considered a felony by both the requesting 
and the requested States. List treaties, which in some cases 
were negotiated at or before the beginning of the 20th century, 
are no longer adequate to meet the demands of modern 
criminality.
    Modern extradition agreements either supplement or 
completely replace the list method with a general dual 
criminality test. Under this test, extradition may be had for 
any offense that is punishable by imprisonment of at least 1 
year by both the requesting State and the requested State. All 
four treaties employ some variation of the dual criminality 
method for determining what are extraditable offenses, and 
represent substantial improvements over the agreements they 
replace.

2. Extraterritorial offenses

    The ability of a state to extradite and to obtain the 
extradition of individuals charged with international drug 
trafficking or terrorism offenses committed outside of its 
national territory can be an important weapon in the fight 
against global crime. A question thus arises over whether 
offenses which occur outside the territory of the Requesting 
State may be considered ``extraditable offenses'' under 
extradition treaties.
    In general, U.S. extradition agreements concluded before 
1960 limit the obligation to extradite to those crimes which 
are committed within the ``jurisdiction'' of the requesting 
State. ``Jurisdiction'' in the context of these agreements is 
interpreted to mean territorial jurisdiction only, not criminal 
jurisdiction. As U.S. criminal law increasingly addresses 
extraterritorial acts, under older agreements, a disparity 
arises between the reach of U.S. law and the ability of the 
United States to bring suspects to trial. To varying degrees, 
all four of these extradition treaties include provisions which 
open the door to extradition for extraterritorial offenses 
which would be otherwise extraditable under the treaty.

3. Retroactivity

    New extradition treaties generally apply to offenses 
committed before, as well as to those committed after, they 
enter into force. Application of a new treaty to crimes 
committed before its effective date does not make certain 
conduct criminal that was not punishable when committed, which 
would raise possible ex post facto objections under the 
Constitution. Rather, application of a new treaty to permit 
extradition for past crimes is a procedural provision that 
merely adds a law enforcement tool to assist in the prosecution 
and punishment of conduct that already was criminal when 
committed. All four treaties expressly apply to offenses 
committed before the entry into force of the treaty.

4. Surrender of Nationals

    Many ``Napoleonic Code'' or civil law countries (e.g., 
Germany, Venezuela and France) decline to extradite their own 
citizens to foreign countries to face justice for their alleged 
criminal conduct abroad. Instead, they prosecute their citizens 
locally for the offense committed abroad. In the U.S. view, 
this situation is unsatisfactory. Such cases are, at best, a 
very low priority for the foreign prosecutor or investigating 
magistrate, who often prove reluctant to devote time and 
resources to prosecute or investigate conduct which occurred 
thousands of miles from their jurisdiction. The historic Anglo-
American view is that justice is better-served by prosecution 
in the venue where the offense was committed.
    The United States, like many common law countries, does not 
object to extraditing its own citizens. The United States has 
sought to negotiate treaties without nationality restrictions. 
Unfortunately, many civil law countries continue to restrict 
extradition of their nationals under their extradition 
agreements, their domestic law, or both. Among the treaties 
addressed in this respect, therefore, the nationality provision 
in the Paraguay treaty is significant: the treaty contains an 
express bar on refusing to extradite on nationality grounds. 
The other three treaties under consideration also bar 
withholding extradition on nationality grounds.

5. Political Offense Exception

    As it originally evolved, the political offense exception 
in international extradition practice protects an individual 
from being sent abroad to stand trial or face punishment for an 
offense of a political nature. Although U.S. extradition 
practice historically has barred extradition for political 
offenses, there has been a trend during the last 20 years to 
narrow the scope of the exception. Newer extradition treaties 
have excluded from consideration as political offenses (either 
by specific listing or by general reference) certain 
universally condemned crimes that are subject of multilateral 
agreements, such as hostage taking, air hijacking, aircraft 
sabotage, and attacks on heads of state. In those cases, Party 
States must prosecute a person accused of a covered crime or 
extradite the person for trial elsewhere.
    The United States significantly departed from previous 
political offense practice in 1986 with the adoption of a new 
supplementary extradition treaty with the United Kingdom. Under 
the supplementary treaty, most serious violent crimes against 
individuals are excluded from consideration as political 
offenses. The U.K. model subsequently was used in some treaties 
concluded with democratic allies (e.g., Canada and Germany), 
but other recent treaties with democratic allies (e.g., 
Australia) have not narrowed the political offense exception in 
line with the U.K. treaty.
    The Belize, Sri Lanka, and Paraguay treaties do not limit 
the political offense exception as narrowly as many other 
recent agreements do. Still, attacks against a Head of State 
(or a family member) could not be considered a political 
offense, nor could a crime covered by a mutually binding 
multilateral agreement that requires a Party to extradite or 
prosecute for a specific type of crime (e.g., aircraft 
hijacking, etc.). The South Africa treaty is to similar effect, 
but also expressly disallows murder, kidnaping, and hostage 
taking as political offenses.
    The Paraguay, Sri Lanka, and Belize treaties further would 
deny extradition if the executive authority of a requested 
State determines that a request is politically motivated. The 
South Africa treaty would deny extradition if the executive 
authority of the requested State determines that there are 
substantial grounds for believing that a request has been made 
primarily to punish or prosecute on the basis of race, 
religion, nationality, or political opinion.

6. Capital Punishment

    Typically, foreign treaty partners decline to extradite 
fugitives to the United States who face the possibility of 
capital punishment, absent assurances that this penalty will 
not be imposed.
    Capital punishment provisions have become common in recent 
U.S. extradition agreements. The capital punishment provisions 
generally authorize the requested State to refuse extradition 
whenever the extraditable offense is punishable by death in the 
requesting State, but not in the requested State, unless the 
requesting State furnishes such assurances as the requested 
State considers sufficient that the sentence will not be 
imposed and executed.
    The new treaties with Paraguay and South Africa are typical 
of this approach. The new treaty with Sri Lanka is similar to 
these, but it contains an exception with respect to crimes 
which would constitute murder in both States, in which case the 
prospect of capital punishment is irrelevant. The treaty with 
Belize does not contain a death penalty restriction, and hence 
is similar to the eight extradition treaties with Caribbean 
countries that were approved by the Senate in 1998 (Exec. Rept. 
105-23).

7. Statute of Limitations

    Fugitives often attempt to avoid extradition to a 
requesting state by asserting that the statute of limitations 
has expired (also known as ``lapse of time'' or 
``prescription'') in the requesting state, the requested state, 
or both, for the offense giving rise to the extradition 
request. The Belize treaty states that ``[e]xtradition shall 
not be denied because of the prescriptive laws of either the 
Requesting State or the Requested State.'' Similarly, the Sri 
Lanka treaty states that extradition is not to be barred 
``because of the laws relating to lapse of time of either the 
Requesting State or the Requested State.'' The Paraguay treaty 
is silent on the issue. The South Africa treaty authorizes 
denial of extradition ``when the prosecution has become barred 
by lapse of time according to the law of the Requesting 
State.''

8. The Rule of Speciality

    The rule of speciality (also specialty) is designed to 
assure that an extradited individual will be prosecuted only 
for the offense for which extradition was granted and that an 
extradition request for one offense is not a subterfuge for 
obtaining the defendant to stand trial for unrelated matters. 
Though the rule applies under every U.S. bilateral treaty, many 
exceptions commonly are included. Among these are exceptions 
that permit additional prosecutions (1) with the consent of the 
requested State, (2) for lesser included offenses, (3) for 
offenses committed after extradition, or (4) against an 
extradited individual who has left and then returned to the 
requesting State, or who has remained in the requesting State 
for a period of time (usually 30 or 60 days) after being free 
to leave. All four of the new treaties effectively incorporate 
the Rule of Specialty.

                  IV. Entry Into Force and Termination


                          A. ENTRY INTO FORCE

    The Treaties generally provide for the entry into force of 
the treaty either on the date of, or a short time after, the 
exchange of instruments of ratification.

                             B. TERMINATION

    The Treaties generally provide for the Parties to withdraw 
from the Treaty by means of written notice to the other Party. 
Termination would take place six months after the date of 
notification.

                          V. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the proposed Treaties on September 12, 2000 (a transcript of 
the hearing and questions for the record can be found in S. 
Hrg. 106-660, entitled ``Consideration of Pending Treaties''). 
The Committee considered the proposed Treaties on September 27, 
2000, and ordered them favorably reported by voice vote, with 
the recommendation that the Senate give its advice and consent 
to the ratification of the proposed Treaties subject to the 
understandings, declarations and provisos noted below.

               VI. Committee Recommendation and Comments

    The Committee on Foreign Relations recommends favorably the 
proposed Treaties. On balance, the Committee believes that the 
proposed Treaties are in the interest of the United States and 
urges the Senate to act promptly to give its advice and consent 
to ratification. The Committee believes that the following 
comments may be useful to the Senate in its consideration of 
the proposed Treaties and to the Executive Branch in its 
application of the Treaties.

  A. RESTRICTION ON RE-EXTRADITION OF FUGITIVES TO THE INTERNATIONAL 
                             CRIMINAL COURT

    As discussed in Exec. Rept. 105-23, on July 17, 1998, a 
majority of nations at the United Nations Diplomatic Conference 
on the Establishment of an International Criminal Court (Rome, 
Italy) approved a treaty that would, upon entry into force, 
establish an International Criminal Court. The Court would be 
empowered to investigate and prosecute war crimes, crimes 
against humanity, genocide and aggression. The United States 
voted against this treaty.
    Because of the implications for Americans involved in 
formulation and execution of United States foreign policy, 
several members of the Committee remain deeply concerned by the 
prospect of an International Criminal Court empowered to 
investigate the matters referred to above that is permanent, 
could become politicized, and over which there would be limited 
international political control. This concern is magnified by 
events since adoption of Exec. Rept. 105-23, namely, 
International Criminal Tribunal for the Former Yugoslavia Chief 
Prosecutor Carla del Ponte's claim of jurisdiction over United 
States and other NATO forces for their conduct during the 
Kosovo combat operations in 1999.
    In light of the Secretary of State's expressed desire that 
the United States become a ``good neighbor'' to the Court if it 
enters into being, and if certain safeguards designed to 
protect U.S. officials and soldiers from prosecution are 
approved, as well as other factors, several members of this 
Committee are concerned that United States bilateral 
extradition treaties could become conduits for transferring 
fugitives or charged persons located in the United States to 
the Court (if it comes into existence) even though the United 
States voted against its establishment.
    Accordingly, the Committee has decided once again to insert 
into each of the Resolutions of Ratification accompanying the 
Extradition Treaties discussed in this report an understanding 
relative to an eventual International Criminal Court. 
Specifically, the understanding would obligate the President to 
restate in United States instruments of ratification, relative 
to each treaty's provision on the Rule of Specialty, that 
United States consent must be obtained before a treaty partner 
may re-extradite a U.S.-surrendered person to a third 
jurisdiction. The understanding further states that future 
United States policy shall be to refuse such consent to the 
transfer of individuals to the International Criminal Court 
unless the United States ratifies the treaty establishing the 
Court pursuant to the procedures stated in Article II, section 
2, of the United States Constitution.

  B. USE OF EXTRADITION TREATIES TO AGGRESSIVELY PURSUE INTERNATIONAL 
                        PARENTAL CHILD ABDUCTORS

    The Committee on Foreign Relations remains concerned about 
the serious problem of international parental child abduction. 
Notably, a September 2000 General Accounting Office report 
(GAOP/GAO/NSIAD-00-226BR) reveals that an estimated 1,000 
children are abducted by one of their parents from the United 
States annually. Between January 1995 and May 15, 2000, ``left 
behind'' American parents initiated nearly 300 cases under the 
1980 Hague Convention on the Civil Aspects of International 
Child Abduction involving just three countries: Germany, Sweden 
and Austria. Well over half of those cases are unresolved.
    The Committee reiterates its grave concern over this 
troubling issue. The Departments of State and Justice must 
redouble their efforts to bring international parental child 
abduction firmly within the scope of offenses covered by 
existing and future bilateral extradition treaties. Diplomatic 
efforts must be undertaken to obtain commitments from our 
treaty partners that international child abduction--whether as 
an independent offense, or as an offense included within the 
scope of the offense of kidnaping--shall be deemed an 
extraditable offense. Law enforcement efforts must be 
undertaken to ensure that, in all cases of parental child 
abduction, extradition requests are quickly prepared and sent 
to the treaty party concerned, even when that party does not 
extradite its citizens, or would be otherwise unlikely to 
extradite. The Committee believes that the failure to even 
request extradition suggests to the treaty partner, and to the 
abductor, that the United States is not serious about pursuing 
abductors.

                      C. EXTRADITION OF NATIONALS

    All four of the treaties discussed in this report require 
the extradition of nationals. This noteworthy accomplishment 
continues an important trend in extradition relationships, 
particularly with countries of the civil law tradition. The 
Committee applauds this accomplishment, which reflects well 
upon State and Justice Department negotiators.
    Unfortunately, much remains to be done toward achieving 
such progress on other fronts. Although many bilateral 
extradition treaties in force today give each party the 
discretion to extradite its nationals, few of these treaty 
partners do so owing to domestic statutory, constitutional or 
political obstacles reflecting civil law traditions of non-
extradition of nationals.
    The Committee supports the extradition of U.S. nationals in 
most instances. But the Committee remains deeply concerned that 
many nations around the world--including nations on our border 
or in close proximity--do not readily, if ever, extradite their 
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 or modernized extradition 
relationships with foreign states, that a reciprocal and 
essentially unconditional commitment to extradite nationals is 
a key desire of the United States.
    Concerning Mexico in particular, the Committee recommends 
that the Executive Branch approach Mexico's new president at 
the appropriate time to inform him of the strong United States 
desire to modernize and improve our bilateral extradition 
relationship in this area. Concerning the European Union, the 
Committee recommends that the Executive Branch redouble its 
efforts to improve the performance of our European friends in 
this regard.
    Finally, unless there are compelling reasons to the 
contrary, the Committee maintains that the United States should 
never hesitate to request the extradition of a fugitive from a 
native country which does not extradite its citizens. The 
Committee believes that such requests contribute to progress in 
this area, and rightly place the burden of justifying its 
refusal on the foreign state.

                 VII. Explanations of Proposed Treaties

    What follow are the article-by-article technical analyses 
provided by the Departments of State and Justice regarding the 
extradition treaties included in this Report.

Technical Analysis of the Extradition Treaty Between the United States 
                         of America and Belize

    On March 30, 2000, the United States signed an Extradition 
Treaty Between the Government of the United States of America 
and the Government of Belize (the ``Treaty''). In recent years, 
the United States has signed similar treaties with many other 
countries as part of a highly successful effort to modernize 
our law enforcement relations. The new extradition treaty with 
Belize is a major step forward in United States efforts to win 
the cooperation of countries in combatting organized crime, 
transnational terrorism, and international drug trafficking.
    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. 
Belize has its own internal legislation on extradition\1\ which 
will apply to United States requests under the Treaty. The 
Government of Belize will however, need additional implementing 
legislation to give the Treaty effect. The Treaty will replace 
the Extradition Treaty between the United States of America and 
the United Kingdom of Great Britain and Northern Ireland, 
signed at London June 8, 1972, which was applicable to Belize 
as a former dependency of the United Kingdom.
---------------------------------------------------------------------------
    \1\ Extradition Act 1870, of 9th August 1870 (hereinafter ``the 
Extradition Act of 1870''). The key sections of the Extradition Act of 
1870 which are germane to the interpretation and implementation of the 
Treaty are discussed in more detail in this Technical Analysis. The 
Belize delegation stated that this Act would be amended as necessary to 
encompass provisions of this Treaty.
---------------------------------------------------------------------------
    The following technical analysis of the Treaty has been 
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 
history. 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 Party to extradite to the other, subject to the 
provisions of the remainder of the Treaty, persons sought for 
prosecution or convicted of extraditable offenses. The article 
refers to charges ``in'' the Requesting State rather than 
``of'' 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. The term 
``convicted'' includes instances in which the person sought has 
been found guilty but a sentence has not yet been imposed. The 
Treaty clearly applies to persons who have been adjudged guilty 
but fled prior to sentencing.

                    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, makes extraditable any 
offense if it is 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. In addition, 
paragraph 1 of Article 2 references a non-exhaustive list or 
schedule, annexed to the Treaty as an integral part thereof of 
specific offenses for which extradition may be granted provided 
that the listed offense is so punishable. Defining extraditable 
offenses in terms of ``dual criminality'' 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.
    The list of extraditable offenses referenced in paragraph 1 
includes most of the offenses which were included in the 1972 
U.S.-U.K. treaty, as well as more modern offenses such as those 
relating to money laundering, intellectual property, the 
environment, taxes, immigration, consumer protection (i.e., 
antitrust and other offenses), and terrorism. This list was 
included at the insistence of the Belizean delegation, which 
expressed concern that the complete absence of an agreed list 
would greatly burden Belizean judges and slow the extradition 
process. During the treaty negotiations, the United States 
delegation received assurances from the Belizean delegation 
that U.S. offenses which basically enhance penalties, such as 
operating a continuing criminal enterprise (Title 21, United 
States Code, Section 848) and offenses under the racketeering 
statutes (Title 18, United States Code, Section 1961-1968), 
would be extraditable if the predicate offenses would be 
extraditable offenses
    Paragraph 2 follows the practice of recent extradition 
treaties in providing that extradition should also be granted 
for attempting or conspiring to commit, aiding or abetting, 
counseling or procuring the commission of, or otherwise being 
an accessory before or after the fact to, 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. In any event, paragraph 
2 creates an exception to the ``dual criminality'' rule of 
paragraph 1 by making conspiracy an extraditable crime if the 
offense which was the object of the conspiracy is an 
extraditable offense.
    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 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 based on an absence of 
dual criminality of such jurisdictional requirements. This 
paragraph requires that such jurisdictional elements be 
disregarded in applying the dual criminality principle. For 
example, Belizean 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. Furthermore, number 29 on the list 
of offenses annexed to the Treaty makes clear that offenses 
relating to fiscal matters, taxes or duties, including tax 
evasion or fiscal fraud, shall be extraditable offenses 
notwithstanding that the law of the Requested State does not 
impose the same kind of tax or duty or does not contain a tax, 
duty or customs regulation of the same kind as the law of the 
Requesting State. This provision clarifies that revenue-related 
offenses 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. Similar provisions 
appear in other recent U.S. extradition treaties. \2\
---------------------------------------------------------------------------
    \2\ See, e.g., U.S.-Austria Extradition Treaty, signed at 
Washington, January 8, 1998, entered into force January 1, 2000, art. 
2(4)(B). /
---------------------------------------------------------------------------
    Paragraph 4 deals with the fact that in the United States 
many federal crimes involve acts committed wholly outside 
United States territory. Our jurisprudence recognizes 
jurisdiction 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.\3\ However, at the time that the treaty was 
negotiated, the Belizean Government did not recognize 
extraterritorial jurisdiction over offenses. In light of 
assurances that Belize would take steps to develop jurisdiction 
over extraterritorial matters, the U.S. delegation agreed to 
the text of Article 2(4), which provides that extradition shall 
be granted for such offenses if the Requested State could 
punish an offense committed outside of its territory in similar 
circumstances.
---------------------------------------------------------------------------
    \3\ 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).
---------------------------------------------------------------------------
    Paragraph 5 states that when extradition has been granted 
for an extraditable offense, it shall also be granted for any 
other offense for which all of the requirements for extradition 
have been met except for the requirement that the offense be 
punishable by more than one year of imprisonment. For example, 
if Belize 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 and included in the 
request, as long as those misdemeanors would also be recognized 
as criminal offenses in Belize. 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 other countries. \4\
---------------------------------------------------------------------------
    \4\ See, e.g., U.S.-Barbados Extradition Treaty, signed at 
Bridgetown February 28, 1996, entered into force March 3, 2000, art. 
2(5).
---------------------------------------------------------------------------

                         Article 3--Nationality

    Some countries refuse to extradite their own nationals to 
other countries for trial or punishment, or are prohibited from 
doing so by their statutes or constitution. The United States 
does not deny extradition on the basis of the offender's 
citizenship, \5\ and Belize's extradition law contains no 
exception for Belizean nationals. Therefore, in Article 3 of 
the Treaty, each State promises not to refuse extradition on 
the ground that the person sought is a national of the 
Requested State.
---------------------------------------------------------------------------
    \5\ See, generally Shearer, Extradition in International Law 110-
114 (1971); 6 Whiteman, Digest of International Law 871-872 (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, United States Code, Section 3196, which authorizes the 
Secretary of State to extradite U.S. citizens even pursuant to treaties 
that permit (but do not require) surrender of citizens, if other 
requirements of the Treaty have been met.
---------------------------------------------------------------------------

               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. Similar 
provisions appear in most recent U.S. extradition treaties.
    First, the political offense exception does not apply where 
there is a murder or other willful crime against the person of 
a Head of State of the Contracting States, or a member of the 
Head of State's family.
    Second, the political offense exception does not apply to 
offenses which are included in a multilateral treaty, 
convention, or international agreement that requires the 
parties to either extradite the person sought or submit the 
matter for decision as to prosecution. For example this clause 
would apply to the Convention on the Prevention and Punishment 
of Crimes Against Internationally Protected Persons, Including 
Diplomatic Agents. \6\
---------------------------------------------------------------------------
    \6\ Done at New York December 14, 1973, and entered into force 
February 20, 1977 (28 UST 1975, TIAS 8532, 1035 UNTS 167).
---------------------------------------------------------------------------
    Third, the political offense exception does not apply to 
conspiring or attempting to commit, or for aiding and abetting 
the commission or attempted commission of, the foregoing 
offenses.
    Article 4(3) provides that extradition shall not be granted 
if the executive authority of the Requested State finds that 
the request was politically motivated.\7\ This 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.\8\ During negotiations, the Belizean 
delegation stated that it will specify in its domestic 
legislation concerning extradition that ``executive authority'' 
means Ministry of Foreign Affairs.
---------------------------------------------------------------------------
    \7\ There are similar provisions in many U.S. extradition treaties. 
See, e.g., U.S.-India Extradition Treaty, signed at Washington June 25, 
1997, entered into force July 21, 1999, art. 5(2).
    \8\ See, Eain v. Wilkes, 641 F.2d 504, 513 (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.\9\
---------------------------------------------------------------------------
    \9\ An example of such a crime is desertion. Matter of Extradition 
of Suarez-Mason, 694 F. Supp. 676, 702-3 (N.D. Cal. 1988).
---------------------------------------------------------------------------

                      Article 5--Prior Prosecution

    The first paragraph of Article 5 prohibits extradition if 
the offender has been convicted or acquitted in the Requested 
State for the offense for which extradition is requested, and 
is similar to language in many United States extradition 
treaties.\10\ 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.
---------------------------------------------------------------------------
    \10\ See, e.g., U.S.-Argentina Extradition Treaty, signed at Buenos 
Aires June 10, 1997, entered into force June 13, 2000, art. 5(1).
---------------------------------------------------------------------------
    Paragraph 2 makes it clear that neither State can refuse to 
extradite an offender on the ground that the Requested State's 
authorities declined to prosecute, or instituted criminal 
proceedings against the offender and thereafter elected to 
discontinue the proceedings. This provision was included 
because the decision of the Requested State to forego 
prosecution, or to drop charges already filed, may have 
resulted from failure to obtain sufficient evidence or 
witnesses available for trial, and the Requesting State may not 
suffer from the same impediments. This provision should enhance 
the ability to extradite to the jurisdiction which has the 
better chance of a successful prosecution.

        Article 6--Extradition Procedures and Required Documents

    This article sets out the documentary and evidentiary 
requirements for an extradition request, and is similar to 
articles in the most recent United States extradition treaties.
    The first paragraph requires that each formal request for 
extradition be submitted through the diplomatic channel. A 
formal extradition request may be preceded by a request for 
provisional arrest under Article 9, and provisional arrest 
requests need not be initiated through diplomatic channels if 
the requirements of Article 9 are met.
    Article 6(2) outlines the information which must accompany 
every request for extradition under the Treaty. Most of the 
items listed in Article 6(2) enable the Requested State to 
determine quickly whether extradition is appropriate under the 
Treaty. For example, Article 6(2)(c)(i) calls for ``evidence as 
to the provisions of the law describing the essential elements 
of the offense for which extradition is requested,'' enabling 
the requested state to determine easily whether the request 
meets the requirement of dual criminality under Article 2. 
However, some of the items listed in Article 6(2) are required 
strictly for informational purposes so that the Requested State 
will be fully informed about the charges in the Requesting 
State. Thus, Article 6(2)(c)(iii) calls for ``evidence as to 
the provisions of the law describing any time limit on the 
prosecution,'' even though Article 8 of the Treaty expressly 
states that extradition may not be denied due to lapse of time 
for prosecution.
    Article 6(3) describes the additional information needed 
when the person is sought for trial in the Requesting State. 
Article 6(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 ``such evidence 
as would be sufficient, according to the law of the Requested 
State, to justify committal for trial of the person sought if 
the offense of which the person has been accused had been 
committed in the Requested State.'' In the United States, 
courts require a showing of probable cause to extradite.\11\ In 
Belize, courts require a ``prima facie'' showing. The 
delegations agreed that the Belize standard is essentially 
identical to a showing of probable cause under U.S. law, and 
that the language of Article 6(3)(c) should not be interpreted 
to require a higher burden of proof for extradition than the 
probable cause standard. The Belize delegation said that the 
evidence which should be provided to Belize in meeting this 
standard consists of: an affidavit by the prosecutor describing 
the case and defining the elements of the charged offenses; 
sworn statements by some witnesses to the events charged; and 
other evidence demonstrating a case against the person, such as 
copies of fingerprints and photographs of the person sought, 
photographs of the crime scene, copies of some underlying 
documentation (demonstrating fraud, for example).
---------------------------------------------------------------------------
    \11\ Courts applying Title 18, United States Code, Section 3184, 
have long required probable cause for international extradition. See, 
Restatement (Third) of the Foreign Relations Law of the United States 
Sec.  476, comment b (1987) (``evidence of criminality as would justify 
the requested state in holding the accused for trial'').
---------------------------------------------------------------------------
    Article 6(4) lists the additional 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, the legal standard 
required to be met in paragraph 3 is no longer applicable. In 
essence, the fact of conviction speaks for itself, a position 
taken in recent United States court decisions, even absent a 
specific treaty provision.\12\
---------------------------------------------------------------------------
    \12\ 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).
---------------------------------------------------------------------------

                 Article 7--Admissibility of Documents

    Article 7 governs the authentication procedures for 
documents prepared for use in extradition cases so that they 
will be received and admitted as evidence in extradition 
proceedings.
    The article states that when the United States is the 
Requesting State, the documents in support of extradition must 
be authenticated by an officer of the United States Department 
of State and certified by the principal diplomatic or consular 
officer of Belize resident in the United States although the 
Belizean delegation stated that this is not necessary under its 
domestic law. When the request is from Belize, the documents 
must be certified by the principal diplomatic or consular 
officer of the United States resident in Belize, consistent 
with United States extradition law.\13\
---------------------------------------------------------------------------
    \13\ Title 18, United States Code, Section 3190.
---------------------------------------------------------------------------
    The third paragraph of the article permits documents to be 
admitted into evidence if they are authenticated in any other 
manner acceptable by the law of the Requested State. For 
example, there may be information in the Requested State itself 
which is relevant to and probative of extradition, and the 
Requested State is free under (c) to utilize that information 
if it satisfies the ordinary rules of evidence in that state. 
This insures that evidence which is acceptable under the 
evidentiary rules of the Requested State may be used in 
extradition proceedings even if it is not authenticated 
pursuant to the Treaty. This paragraph also should insure that 
relevant evidence which would normally satisfy the evidentiary 
rules of the Requested State is not excluded at the extradition 
hearing because of an inadvertent error or omission in the 
authentication process.

                        Article 8--Lapse of Time

    Article 8 states that extradition shall not be denied 
because of the ``prescriptive laws,'' meaning provisions of the 
law regarding lapse of time, in either the Requesting or 
Requested States. The U.S. and Belizean delegations agreed that 
a claim that the statute of limitations has expired is best 
resolved by the courts of the Requesting State after the 
fugitive has been extradited.\14\ The Belizean delegation also 
stated that, under the laws of Belize, the prosecution of 
felonies is never barred by a statute of limitations, except 
with regard to certain customs and income tax offenses, which 
are controlled by a six-year limitations period.
---------------------------------------------------------------------------
    \14\ This is consistent with settled law in the United States, 
which holds that lapse of time is not a defense to extradition 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).
---------------------------------------------------------------------------

                     Article 9--Provisional Arrest

    This article describes the process by which a person in one 
country may be arrested and detained while formal extradition 
papers are being prepared. Similar provisions appear in all 
recent U.S. extradition treaties.
    Paragraph 1 expressly provides that a request for 
provisional arrest may be made through the diplomatic channel 
or directly between the United States Department of Justice and 
the Attorney General in Belize. The provision also indicates 
that INTERPOL may be used to transmit such a request. 
Experience has shown that the ability to use such direct 
channels in emergency situations can be crucial when a fugitive 
is poised to flee. Where a request is not made through 
diplomatic channels, the Department of Justice expects that 
confirmation will be made through diplomatic channels.
    Paragraph 2 lists the information which the Requesting 
State must provide in support of such a request.
    Paragraph 3 states that the Requesting State must be 
advised promptly of the outcome of its application and the 
reason for any denial.
    Paragraph 4 provides that the fugitive may be released from 
detention if the Requesting State does not file a fully 
documented request for extradition with the executive authority 
of the Requested State within sixty days of the date on which 
the person was arrested pursuant to the Treaty. This paragraph 
further explicitly insures that arrested persons have a right 
of access to the courts; therefore, they can apply for, but not 
necessarily be granted, bail. When the United States is the 
Requested State, the term ``executive authority'' includes the 
Secretary of State or the U.S. Embassy in Belize City, Belize.
    Although the person sought may be released from custody if 
the documents are not received within the sixty-day period or 
any extension thereof, the extradition proceedings against the 
fugitive need not be dismissed. Article 9(5) makes it clear 
that the person may be taken into custody again and the 
extradition proceedings may commence when the formal request is 
presented.

                   Article 10--Decision and Surrender

    This article restates the legal standard in article 6 which 
must be met before extradition shall be granted: Extradition 
shall be granted only if, under the law of the Requested State, 
the evidence presented is found sufficient either to justify 
the committal for trial of the person sought for prosecution or 
to prove that the person is the identical person convicted in 
the courts of the Requesting State.
    This article also 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,\15\ or following the conclusion of any 
litigation challenging that finding,\16\ whichever is later. 
The law in Belize permits the person to apply to a judge for 
release if he has not been surrendered within two months of the 
first day on which he could have been extradited.\17\
---------------------------------------------------------------------------
    \15\ Title 18, United States Code, Section 3188.
    \16\ 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).
    \17\ Extradition Act of 1870, Section 12.
---------------------------------------------------------------------------

              Article 11--Temporary and Deferred Surrender

    Occasionally, a person sought for extradition already may 
be facing prosecution or serving a sentence in the Requested 
State. Article 11 provides a means for the Requested State to 
surrender temporarily or defer extradition in such 
circumstances until the conclusion of the proceedings against 
the person sought and the serving of any punishment that may 
have been imposed. Similar provisions appear in our recent 
extradition treaties with countries such as Austria, Barbados 
and India.
    Article 11(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.
    Article 11(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.\18\ 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.
---------------------------------------------------------------------------
    \18\ Under U.S. 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 12--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.\19\ The Belizean 
delegation stated that it would name the Ministry of Foreign 
Affairs as its ``executive authority'' under the Treaty.
---------------------------------------------------------------------------
    \19\ Cheng Na-Yuet v. Hueston, 734 F.Supp. 988 (S.D. Fla. 1990), 
aff'd, 932 F.2d 977 (11th Cir. 1991).
---------------------------------------------------------------------------

             Article 13--Seizure and Surrender of Property

    This article provides that, to the extent permitted by its 
laws, the Requested State may seize and surrender all 
property--articles, instruments, objects of value, documents, 
or other evidence--relating to the offense for which 
extradition is requested. Similar provisions are found in all 
recent U.S. extradition treaties. The article also provides 
that seized objects may be surrendered to the Requesting State 
upon the granting of the extradition or even if extradition 
cannot be effected due to the death, disappearance, or escape 
of the fugitive.
    The second paragraph states that the Requested State may 
condition its surrender of property upon satisfactory 
assurances that the property will be returned as soon as 
practicable, or defer surrender altogether if the property is 
needed as evidence in the Requested State. The rights of third 
parties to such property must be duly respected.

                     Article 14--Rule of Speciality

    This article covers the principle known as the ``rule of 
speciality'' (or ``specialty''), which is a standard aspect of 
United States and international extradition practice. Designed 
to insure that a fugitive surrendered for one offense is not 
tried for other crimes, the rule of specialty prevents a 
request for extradition from being used as a subterfuge to 
obtain custody of a person for trial or service of 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 of specialty 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: (1) for the offense for which extradition 
was granted, or a differently denominated offense based on the 
same facts, provided the offense is extraditable or is a lesser 
included offense; (2) for offenses committed after the 
extradition; and (3) for other offenses for which the executive 
authority of the Requested State consents.\20\ Article 
14(1)(c)(ii) permits the State which is seeking consent to 
pursue additional charges to detain the defendant for 90 days 
while the Requested State makes its determination on the 
application.
---------------------------------------------------------------------------
    \20\ In the United States, the Secretary of State has the authority 
to grant such consent. See Berenguer V. Vance, 473 F. Supp. 1195 
(D.C.D.C. 1979).
---------------------------------------------------------------------------
    Paragraph 2 prohibits the Requesting State from 
surrendering the person to a third state without the consent of 
the State from which extradition was first obtained.\21\ 
Consistent with the rule of specialty under international law, 
the prior consent of the United States would be required if 
Belize were to seek to extradite to an international tribunal, 
including the International Criminal Court agreed to in Rome on 
July 17, 1998, a fugitive who had been previously extradited 
from the United States to Belize.
---------------------------------------------------------------------------
    \21\ Thus, the provision is consistent with the provisions of all 
recent U.S. extradition treaties.
---------------------------------------------------------------------------
    Finally, Paragraph 3 permits the detention, trial, or 
punishment of an extraditee for additional offenses, or 
extradition to a third State: (1) if the extraditee leaves and 
returns to the Requesting State; or (2) if the extraditee does 
not leave the Requesting State within ten days of being free to 
do so.

                   Article 15--Waiver of 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 after 
being advised by a competent judicial authority of the effect 
of such consent under the law of the Requested State, the 
person may be returned to the Requesting State without further 
proceedings. The Parties anticipate that in such cases there 
would be no need for the formal documents described in Article 
6 or further judicial proceedings of any kind.
    If the person sought returns to the Requesting State before 
the Secretary of State signs a surrender warrant, the United 
States would not view the waiver of proceedings under this 
article as an ``extradition,'' and United States practice has 
long been that the rule of specialty does not apply when a 
fugitive waives extradition and voluntarily returns to the 
Requested State.

                          Article 16--Transit

    Article 16(1) gives each State the power to authorize 
transit through its territory of persons being surrendered to 
the other country by third countries.\22\ Requests for transit 
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 permits the request to be transmitted 
either through the diplomatic channel, or directly between the 
United States Department of Justice and the Attorney General in 
Belize, or via INTERPOL channels.
---------------------------------------------------------------------------
    \22\ A similar provision is in all recent U.S. extradition 
treaties.
---------------------------------------------------------------------------
    Under paragraph 2, no advance authorization is needed 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 Requested 
State is authorized to keep the person in custody for up to 96 
hours until a request for transit is received, and thereafter 
until transit is effected.

                Article 17--Representation and Expenses

    The first paragraph of this article provides that the 
United States will represent Belize in connection with requests 
from Belize for extradition before the courts in this country, 
and Belize's Attorney General will arrange for the 
representation of the United States in connection with United 
States extradition requests to Belize.
    Paragraph 2 provides that the Requested State will bear all 
expenses of extradition except those expenses relating to the 
ultimate transportation of a fugitive to the Requesting State 
and the translation of documents, which expenses are to be paid 
by the Requesting State. Cases may arise in which it may be 
necessary for the Requesting State to retain private counsel to 
assist in the presentation of the extradition request. It is 
anticipated that in such cases the fees of private counsel 
retained by the Requesting State must be paid by the Requesting 
State.
    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 includes any 
claim by or on behalf of the fugitive for damages, 
reimbursement, or legal fees, or other expenses occasioned by 
the execution of the extradition request.

                        Article 18--Consultation

    Article 18 of the Treaty provides that the United States 
Department of Justice and the Attorney General's Chambers in 
Belize may consult with each other directly 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 19--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 the Treaty entered into force. It makes clear, however, 
that the offense must have been an offense under the laws of 
both Contracting States at the time of its commission and that 
nothing in the Treaty is to be construed to criminalize any 
conduct that was not subject to criminal sanctions at the time 
the offense was committed.

             Article 20--Ratification and Entry Into Force

    This article contains standard treaty language, requiring 
ratification and providing for the exchange of instruments of 
ratification as soon as possible. The Treaty is to enter into 
force immediately upon the exchange.
    In Belize, treaties are executive decisions, and need not 
be approved by the legislature; however, because the Treaty 
affects private rights, it must be given effect by the 
legislature via implementing legislation.
    Upon entry into force of this Treaty, paragraph 3 provides 
that the U.S.-U.K. Extradition Treaty shall cease to have any 
effect between the U.S. and Belize although it will remain 
applicable to extradition proceedings in which the extradition 
documents have already been submitted to the courts in the 
Requested State. Articles 14 and 15 of this Treaty shall, 
however, apply.

                        Article 21--Termination

    This Article contains the standard treaty language 
describing the procedure for termination of the Treaty by 
either State. Termination shall become effective six months 
after written notice is received.
                                ------                                


Technical Analysis of the Extradition Treaty Between The Government of 
  the United States of America and The Government of the Republic of 
                                Paraguay

    On November 9, 1998, the United States signed a new 
Extradition Treaty Between the Government of the United States 
of America and The Government of the Republic of Paraguay 
(hereinafter ``the new Treaty'' or ``the Treaty''). The new 
Treaty, which will replace the treaty currently in force 
between the United States and Paraguay\1\ (hereinafter ``the 
1973 treaty''), is part of an ongoing and successful effort to 
negotiate with Latin American countries modern agreements to 
facilitate the extradition of serious offenders, including 
narcotics traffickers, regardless of their nationality.
---------------------------------------------------------------------------
    \1\ Signed at Asuncion on May 24, 1973, and entered into force on 
May 7, 1974; 25 UST 967; TIAS 7838.
---------------------------------------------------------------------------
    It is anticipated that the new 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. Likewise, the Treaty will be implemented in Paraguay in 
accordance with existing Paraguayan extradition law,\2\ and no 
additional implementing legislation will be required.
---------------------------------------------------------------------------
    \2\ Title XXXIV, Paraguayan Criminal Procedure Code (Codigo de 
Procedimientos Penales), Article 590 et seq. The Paraguayan extradition 
law is essentially procedural in nature. Relevant provisions of 
Paraguayan law are discussed in more detail in this Technical Analysis.
---------------------------------------------------------------------------
    The following technical analysis of the new Treaty was 
prepared by members of the United States' negotiating 
delegation from the Office of International Affairs, Criminal 
Division, United States Department of Justice, and the Office 
of the Legal Adviser, United States Department of State, based 
on the negotiating history. 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. The 
discussion of foreign law reflects the current state of that 
law to the best of the drafters' knowledge.

                   Article I--Agreement to Extradite

    Article 1 of the Treaty, like the first article in every 
recent United States extradition treaty, formally obligates 
each Party to extradite to the other, pursuant to the 
provisions of the Treaty, persons sought by authorities in the 
Requesting State for trial or punishment for an extraditable 
offense.
    The negotiating delegations intended that the terms of this 
article be interpreted broadly. For example, persons sought 
``for trial'' in the United States should include any person 
sought for prosecution who is the subject of an outstanding 
warrant of arrest for an extraditable offense, regardless of 
whether the warrant was issued pursuant to an indictment, 
complaint, information, or other lawful means.\3\ The 
negotiating delegations also recognized that a large number of 
cases involving persons extradited to the United States ``for 
trial'' may, in fact, never actually go to trial if the charges 
for which extradition is granted are resolved by guilty plea or 
other means.
---------------------------------------------------------------------------
    \3\ E.g., a bench warrant issued sua sponte by the court for 
failure to appear for trial for an extraditable offense.
---------------------------------------------------------------------------
    With respect to fugitives from Paraguayan justice, such 
persons may not be formally indicted under Paraguayan criminal 
procedure until the latter stages of the criminal process 
(i.e., at the conclusion of the ``plenario''). Therefore, this 
provision is intended to apply to those fugitives from Paraguay 
who are ``in process'', i.e., those fugitives whose cases may 
not yet have reached the indictment stage, but for whom there 
are pending criminal proceedings and outstanding warrants of 
arrest.\4\
---------------------------------------------------------------------------
    \4\ Although this provision is intended to enable extradition from 
the United States to Paraguay of a person who is the subject of a 
Paraguayan warrant of arrest (orden de prision) and whose appearance in 
Paraguay is sought as a necessary step for subjecting such person to 
criminal prosecution, it is not intended to enable extradition of a 
person whose appearance has been ordered for the sole purpose of giving 
testimony.
---------------------------------------------------------------------------
    The negotiating delegations also agreed that the term 
``punishment'' in this Article includes not only instances in 
which the person sought has been sentenced, but also those 
situations in which such person has been adjudged guilty, 
either by trial or plea, but a sentence has not yet been 
imposed.\5\
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    \5\ See, Stanbrook and Stanbrook, Extradition: The Law and 
Practice, 25-26 (1979). This situation arises most often when a person 
pleads guilty to an offense in the United States and is allowed to 
remain free on bond pending sentencing, but flees prior to, and fails 
to appear as ordered for, his or her sentencing.
---------------------------------------------------------------------------
    This Article also refers to persons sought by authorities 
``in'' the Requesting State rather than ``of'' the Requesting 
State, since the obligation to extradite, in cases arising from 
the United States, would apply to fugitives from state and 
local justice, as well as those wanted by federal authorities.

                   Article II--Extraditable Offenses

    This Article contains the basic guidelines for determining 
what offenses are extraditable. Like such articles in other 
recent United States extradition treaties, it does not list the 
offenses for which extradition may be granted. Instead, 
paragraph 1 of this Article permits extradition for any offense 
punishable under the laws in both countries by deprivation of 
liberty (i.e., imprisonment or other form of detention) for a 
maximum period of more than one year, or by a more severe 
penalty such as capital punishment).\6\ The term ``maximum 
period'' was included to ensure that, in regard to offenses 
whose potential penalties are described in terms of a range 
(e.g., 6 months to 3 years of imprisonment), the Requested 
State would look only to the maximum potential penalty in 
determining whether the offense meets the requirement of being 
punishable by more than one year imprisonment.
---------------------------------------------------------------------------
    \6\ During the negotiations, the Paraguayan delegation indicated 
that, under Paraguayan law, key offenses such as drug trafficking 
(including continuing criminal enterprises), drug and non-drug related 
money laundering, terrorism, and organized criminal activity (RICO), as 
well as certain tax, export, and environmental crimes, would meet the 
requirements of Article 2(1) and thus be extraditable offenses. Escape 
also would be an extraditable offense, provided that it involves more 
than one person and the use of force.
---------------------------------------------------------------------------
    Defining extraditable offenses in terms of ``dual 
criminality'' rather than attempting to list in the Treaty each 
extraditable crime obviates the need to renegotiate, amend, or 
supplement the Treaty if the countries later enact laws dealing 
with new types of criminal activity, or if the list 
inadvertently fails to cover important types of criminal 
activity already punishable in both countries. Under the dual 
criminality approach, once criminal laws are enacted in both 
countries to punish a certain type of activity by more than one 
year of imprisonment, then that criminal activity automatically 
is included as a an extraditable offense.
    In regard to a request for a person who has already been 
sentenced in the Requesting State, paragraph 2 of this Article 
contains an additional requirement that such person must have 
more than six months of his or her sentence still to serve.\7\ 
Provisions of this kind are not preferred by U.S. negotiating 
teams, but they do appear in some U.S. extradition treaties.\8\ 
In this Treaty, the Paraguayan delegation insisted on its 
inclusion.\9\
---------------------------------------------------------------------------
    \7\ It was the understanding of the negotiating delegations that 
the six month period referred in this provision relates to the 
incarceration portion of the sentence, and not to any post-confinement 
supervised release period. Accordingly, the person sought must have at 
least six months left to serve in custody, regardless of whether a 
combination of the incarceration and supervised release periods of the 
sentence would amount to more than six months.
    \8\ See, e.g., U.S.-Argentina Extradition Treaty, signed at Buenos 
Aires June 10, 1997, entered into force June 15, 2000, art. 2(1).
    \9\ Foreign delegations, particularly those from civil law 
countries such as Paraguay, sometimes insist on provisions of this 
kind, in part because such language is included in the U.N. model 
treaty. In addition, it is not uncommon for persons to spend several 
months in custody pending extradition, and, subject to the laws of the 
Requesting State, they may receive, upon their surrender, credit toward 
the completion of their sentence for the time spent in foreign custody. 
The Paraguayan delegation insisted on a provision of this kind also in 
part because, in their view, it is difficult to justify the expense of 
pursuing the extradition of a person who will likely be released 
immediately upon or soon after his or her surrender to the Requesting 
State.
---------------------------------------------------------------------------
    Paragraph 3 follows the practice of recent extradition 
treaties in expressly providing that extradition also shall be 
granted for conspiring or attempting to commit, or otherwise 
participating in,\10\ the commission of an extraditable 
offense. Foreign laws often do not define conspiracy or 
participation in an offense in the same way as U.S. law.\11\ 
Moreover, foreign laws may provide much less severe penalties 
for an attempt or conspiracy than they do for the offense that 
is the object of such attempt or conspiracy.\12\ Accordingly, 
it is important that the Treaty be clear that these inchoate 
offenses are extraditable, especially since they are frequently 
a part of United States criminal cases, including those 
involving complex transnational criminal activity.
---------------------------------------------------------------------------
    \10\ The negotiating delegations intended that ``participation in'' 
an offense includes, at a minimum, being an accessory before or after 
the fact, or aiding, abetting, counseling, commanding, inducing, or 
procuring the commission of an offense. See, Title 18, United States 
Code, Sections 2 and 3.
    \11\ In fact, Paraguayan law does not penalize the offense of 
``conspiracy,'' per se. Accordingly, the term ``conspiracy'' is 
translated in the Spanish text of the Treaty as ``association to commit 
an offense,'' which is the closest analogue to conspiracy under 
Paraguayan law. The Paraguayan delegation assured the U.S. delegation 
that the U.S. offense of ``conspiracy'' would be extraditable under 
this definition.
    \12\ Note that the language of paragraph 3 does not require that 
the conspiracy, attempt, or participation, in itself, satisfy the dual 
criminality or penalty requirements of paragraph 1 so long as the 
offense that was the object of such attempt, conspiracy, etc., does so.
---------------------------------------------------------------------------
    Paragraph 4 further reflects the intention of both 
countries to interpret the principles of this Article broadly. 
Paragraph 4(a) requires the 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 in each country. Provisions similar to paragraph 4(a) 
are contained in all recent United States extradition treaties.
    Paragraph 4(b) is also included to further prevent 
technical differences in Paraguayan and United States law from 
creating obstacles to extradition. 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 there 
is no similar requirement in their own country's criminal law, 
foreign judges occasionally have denied, for a perceived lack 
of dual criminality, U.S. requests for the extradition of 
fugitives charged under these federal statutes. Therefore, 
paragraph 4(b) requires that such elements be disregarded in 
applying the dual criminality principle. For example, 
Paraguayan 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.
    By providing that extradition shall be granted for offenses 
even when the illegal acts constituting the offense are 
committed outside the territory of the Requesting State, 
Paragraph 5 of this Article is particularly important in 
ensuring that the Treaty makes extraditable many significant 
types of modern transnational criminal activity. United States 
jurisprudence recognizes jurisdiction in U.S. courts to 
prosecute an offense committed outside 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 extraterritorial 
jurisdiction.\13\ As a result, many federal statutes (including 
drug laws) criminalize acts committed wholly outside United 
States territory. To encompass these crimes, the United States 
initially proposed language for the Treaty stating that 
extradition shall be granted for an extraditable offense 
regardless of where the act or acts constituting the offense 
were committed. The Paraguayan delegation rejected the initial 
proposal but was persuaded to accept an alternative 
formulation. This alternative formulation, set forth in 
paragraph 5, not only provides for extradition for offenses 
committed in whole or in part in the territory of the 
Requesting State, but also for offenses committed outside the 
territory of the Requesting State if the offenses have effects 
in the territory of the Requesting State.\14\ In addition, 
paragraph 5 provides for the extraditability of 
extraterritorial offenses based on other theories of 
jurisdiction, provided that the laws of the Requested State 
would recognize jurisdiction over such an offense under similar 
circumstances.\15\ Accordingly, paragraph 5 will enable the 
United States to obtain extradition for a broad range of 
criminal activity, including narcotics trafficking and 
terrorism, which frequently is initiated or orchestrated from 
abroad.
---------------------------------------------------------------------------
    \13\ 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).
    \14\ The formulation contained in this Treaty is almost identical 
to that contained in Article 2 of the 1997 U.S.-Argentina extradition 
treaty.
    \15\ Paraguayan law recognizes extraterritorial jurisdiction for 
certain crimes against the interests or integrity of the State or 
committed by Paraguayan nationals abroad. Paraguayan law also expressly 
recognizes jurisdiction over certain international crimes committed 
abroad, including terrorism and drug trafficking. See, Paraguayan Penal 
Code, Articles 7-9.
---------------------------------------------------------------------------
    Paragraph 6 of this Article establishes that when 
extradition has been granted for an extraditable offense, it 
shall also be granted for other less serious offenses in the 
request with which the person is charged, but which, standing 
alone, would not be extraditable for the sole reason that they 
are not punishable by more than one year of imprisonment. Thus, 
if Paraguay 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 offense charged and specified in the request, so 
long as the misdemeanor would also be recognized as a criminal 
offense in Paraguay, and all other requirements of the Treaty 
(except the penalty requirement of Article 2(1)) are met. This 
provision, which is consistent with recent United States 
extradition practice, is generally desirable from the 
standpoint of both the fugitive and the prosecuting country. It 
permits all charges against the fugitive to be disposed of more 
quickly and efficiently, by facilitating either plea 
agreements, when appropriate, or trials while evidence is still 
fresh, and by permitting the possibility of concurrent 
sentences. Similar provisions are found in many recent United 
States extradition treaties.\16\
---------------------------------------------------------------------------
    \16\ See, e.g., U.S.-Barbados Extradition Treaty, signed at 
Bridgetown February 28, 1996, entered into force March 3, 2000, art. 
2(5).
---------------------------------------------------------------------------

                 Article III--Extradition of Nationals

    Article 3 provides that extradition shall not be refused on 
the ground that the person sought is a national of the 
Requested State.
    Some countries refuse to extradite their own nationals to 
other countries for trial or punishment, or are prohibited from 
doing so by their statutes or constitutions. The United States 
does not deny extradition on the basis of the offender's 
citizenship,\17\ and Paraguay's extradition law and its 
Constitution contain no exception for Paraguayan nationals. 
Therefore, in Article 3 of the Treaty, each State promises not 
to refuse extradition on the ground that the person sought is a 
national of the Requested State.
---------------------------------------------------------------------------
    \17\ 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, United State Code, Section 3196, which authorizes the 
Secretary of State to extradite U.S. citizens even pursuant to treaties 
that permit (but do not require) surrender of citizens, if other 
requirements of the Treaty have been met.
---------------------------------------------------------------------------
    This provision is very similar to the provision contained 
in the new extradition treaty with Argentina,\18\ and in other 
modern U.S. extradition treaties.
---------------------------------------------------------------------------
    \18\ U.S.-Argentina Extradition Treaty, signed at Buenos Aires June 
10, 1997, entered into force June 15, 2000, art. 3. Compare, U.S.-
Bolivia Extradition Treaty, signed at La Paz June 27, 1995, entered 
into force November 21, 1996, art. III, which mandates the extradition 
of nationals in connection with specified offenses.
---------------------------------------------------------------------------
    Although Paraguay has no constitutional provision or 
statute that expressly prohibits the extradition of Paraguayan 
nationals, the 1973 Treaty does not affirmatively obligate 
either party to extradite its nationals to the other, and 
Paraguay has never extradited one of its nationals to the 
United States. Accordingly, the U.S. delegation made it clear 
from the outset of these negotiations that a provision 
requiring the extradition of nationals was an indispensable 
part of a modern extradition relationship. The Paraguay 
delegation agreed, and it is anticipated that this Article will 
greatly improve the ability of the United States to secure the 
extradition of Paraguayan nationals.

              Article IV--Bases for Denial of Extradition

    Paragraph 1 of this Article begins with a general rule that 
prohibits extradition for political offenses. This principle is 
commonly known as the ``political offense exception'' to 
extradition.\19\
---------------------------------------------------------------------------
    \19\ The provision in this article is typical in that it does not 
attempt to define what constitutes a political offense (although it 
does set forth certain offenses that are not political offenses). As a 
result, the requested country must determine, based solely on its 
domestic law, whether a particular extradition request should be denied 
on this basis. Because the Treaty does not provide otherwise, the 
judiciary decides whether the political offense exception will bar 
extradition in a particular case. Eain v. Wilkes, 641 F.2d 504, 513 
(7th Cir. 1981).
---------------------------------------------------------------------------
    Notwithstanding this general rule, paragraph 1 continues 
with a description of several categories of offenses that are 
not to be considered political offenses. The provisions 
included in paragraph 1 of this Article are common in United 
States extradition treaties.
    First, paragraph 1(a) provides that the political offense 
exception shall not apply to an attack or other willful crime 
against the physical integrity of a Head of State of the United 
States or Paraguay or members of their families. This is the 
so-called ``attentat clause,'' which first began appearing in 
extradition treaties in the early 1900s in order to preclude 
lenient treatment of anarchists and assassins of Heads of 
State.
    Second, paragraph 1(b) states that the political offense 
exception shall not apply to offenses for which both Parties 
have the obligation to extradite or submit the case for 
decision as to prosecution pursuant to a multilateral treaty 
such as the Convention for the Suppression of Unlawful Seizure 
of Aircraft (Hijacking).\20\
---------------------------------------------------------------------------
    \20\ Done at the Hague December 16, 1970; entered into force 
October 14, 1971 (22 UST 1641; TIAS 7192).
---------------------------------------------------------------------------
    Finally, paragraph 1(c) states that the political offense 
exception shall not apply to an attempt to commit, a conspiracy 
or illicit association to commit, or participation in the 
commission of, the offenses in subparagraphs (a) and (b).
    Paragraph 2 states that extradition shall not be granted if 
the competent authority of the Requested State determines that 
the extradition request was politically motivated. Under U.S. 
law and practice, a claim that the extradition request was 
politically motivated, unlike a claim involving the political 
offense exception, falls outside the scope of judicial review 
and is exclusively for the executive branch (i.e., the 
Secretary of State) to consider and decide, as reflected in 
Article XIX.\21\
---------------------------------------------------------------------------
    \21\ Article XIX also records Paraguayan practice, under which 
political motivation is determined by the judiciary.
---------------------------------------------------------------------------
    Paragraph 4 of this Article states that the Requested State 
may refuse extradition if the request relates to an offense 
under military law which would not be an offense under ordinary 
criminal law.\22\ This also is a common provision in United 
States extradition treaties.
---------------------------------------------------------------------------
    \22\ Examples of such offenses are desertion and disobedience of 
orders. See, Matter of Suarez-Mason, 694 F.Supp. 676, 703 (N.D.Cal. 
1988).
---------------------------------------------------------------------------
    Most recent U.S. extradition treaties contain a provision 
addressing the relevance of a statute of limitations. Ideally, 
in the interest of limiting technical bases for the denial of 
extradition, the Treaty would expressly state that the decision 
whether to extradite shall be made without regard to the 
statute of limitations of either the Requesting or Requested 
States, leaving the interpretation of the Requesting State's 
laws involving such procedural obstacles to prosecution to the 
appropriate authorities of the Requesting State. The Paraguay 
delegation would not agree, however, to a provision that did 
not prohibit extradition on the basis of the expiration of the 
Requested State's statute of limitations.\23\ Accordingly, the 
U.S. delegation determined, and the Paraguayan delegation 
agreed, that the best solution under those circumstances would 
be for the Treaty to remain silent on the issue. By omitting 
any reference to lapse of time, the U.S. delegation intended 
that, at least in the context of extradition proceedings in the 
United States, the decision whether to extradite would be made 
without regard to the statute of limitations of either the 
Requesting or Requested State. While current extradition 
practice in Paraguay is to deny extradition in cases where 
Paraguay's statute of limitations would have expired if the 
crime had been committed there, the Paraguayan delegation 
confirmed that absence of language to this effect in the Treaty 
leaves open the possibility of greater flexibility on a case-
by-case basis. In any event, the omission is an improvement 
over the 1973 Treaty, which expressly provides that extradition 
shall be refused if the statute of limitations of either the 
Requesting or Requested State has expired.
---------------------------------------------------------------------------
    \23\ Consideration of the Paraguayan statute of limitations in the 
decision whether to grant a U.S. request for extradition could hinder 
the United States' ability to secure the return of fugitives in some 
cases. Like many countries throughout the world, Paraguayan lapse of 
time provisions are tied to the maximum applicable penalty for the 
offense, and although Paraguayan law enumerates certain circumstances 
under which the running of the prescription period is interrupted, it 
does not, as in U.S. law, toll the statute permanently upon the filing 
of an indictment or for as long as the defendant remains a fugitive. 
Moreover, unlike the United States, all offenses, even murder, are 
subject to a prescriptive period. Subject to various interruptions and 
depending upon the offense, Paraguayan law requires that a person be 
prosecuted and punished within 3 to 15 years of the date of the 
criminal conduct. Even if interrupted, however, in no event may a 
person be prosecuted or punished after the time equal to double the 
prescription period for the offense has passed. For example, under 
Paraguayan law, a person wanted for first degree murder must, in any 
event, be prosecuted and have served his or her sentence within 30 
years of the date of the offense.
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                      Article V--Prior Prosecution

    Paragraph 1 of this Article prohibits extradition if the 
person sought has been convicted or acquitted in the Requested 
State for the offense for which extradition is requested,\24\ 
and its language is similar to that contained in many U.S. 
extradition treaties.\25\ This paragraph will permit 
extradition in situations in which the fugitive is charged with 
different offenses in both countries arising out of the same 
basic illegal transaction.\26\
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    \24\ The express use of the phrase ``convicted or acquitted'' in 
this paragraph prevents the Requested State from refusing extradition 
on the basis that it has unilaterally immunized the fugitive from 
prosecution by pardon or granting of clemency. Moreover, nothing in 
this provision enables the Requested State to bar extradition on the 
grounds that the person sought has been convicted or acquitted in a 
third State.
    \25\ See, e.g., U.S.-India Extradition Treaty, signed at Washington 
June 25, 1997, entered into force July 21, 1999, article 5(2).
    \26\ The term ``offense'' in this provision means the crime, not 
``the act'' for which extradition is requested. A single set of facts 
may result in several different offenses being charged in different 
jurisdictions, and prosecution for one such offense would not bar 
extradition for another. For example, a narcotics trafficker could be 
charged in Country A with exporting drugs and in Country B with 
importing drugs based on one illegal shipment from Country A to Country 
B. This interpretation is consistent with the overarching goal of the 
Treaty to expand, rather than limit, the scope of extraditable 
offenses.
---------------------------------------------------------------------------
    Paragraph 2 of this Article makes clear that extradition 
shall not be precluded by the fact that the Requested State's 
authorities have not instituted criminal proceedings against 
the person sought for the same offense for which extradition is 
requested. Moreover, paragraph 2 would permit extradition in 
situations in which the Requested State instituted such 
criminal proceedings, but thereafter elected to discontinue the 
proceedings, provided that the laws of the Requested State 
regarding double jeopardy would permit their future re-
institution.\27\ This provision should enhance the ability to 
extradite criminals to the jurisdiction which has the better 
chance of a successful prosecution.
---------------------------------------------------------------------------
    \27\ This provision is intended to make clear that extradition 
shall not be precluded by the mere fact that the fugitive is being 
proceeded against in the Requested State since the case is not yet 
resolved. If the Requested State is prosecuting the fugitive for the 
same offense for which extradition is requested, the Requested State 
should, pursuant to Article XII of this Treaty, defer extradition until 
the domestic proceedings are over. Then the Requested State can decide, 
based on the result of the domestic proceedings, whether to deny the 
extradition request because of a conviction or acquittal (in accordance 
with paragraph 1 of this Article), or to grant extradition if the 
charges were resolved in a manner that does not implicate double 
jeopardy (such as dismissal without prejudice). Absent these provisions 
in Articles V and XII, a Requested State could charge a fugitive with 
the same offense for which his or her extradition is sought, then deny 
the extradition request due to a pending local prosecution, and finally 
dismiss its domestic case--allowing the fugitive to escape prosecution 
altogether.
---------------------------------------------------------------------------

                       Article VI--Death Penalty

    Paragraph 1 of this Article 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, 
unless the Requesting State provides assurances that the death 
penalty, if imposed, will not be carried out. Similar 
provisions are found in many recent United States extradition 
treaties.\28\
---------------------------------------------------------------------------
    \28\ See, e.g., U.S.-Argentina Extradition Treaty, signed at Buenos 
Aires June 10, 1997, entered into force June 15, 2000, art.6.
---------------------------------------------------------------------------
    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.
    The Paraguayan delegation insisted on the inclusion of this 
Article in the Treaty because Paraguay has abolished the death 
penalty. However, if Paraguay ever reestablishes the death 
penalty, this Article will not prevent the United States from 
securing extradition for a capital offense provided that the 
offense is subject to capital punishment in both states.

       Article VII--Extradition Procedures and Required Documents

    This Article sets forth the appropriate means of 
transmitting an extradition request and the required 
documentation and evidence to be submitted in support thereof. 
It is similar to those in corresponding articles in the United 
States' most recent extradition treaties.
    Paragraph 1 of this Article requires that all requests for 
extradition be submitted in writing through the diplomatic 
channel. Paragraph 2 outlines the information that must 
accompany every request for extradition under the Treaty. 
Paragraph 3 describes the information needed, in addition to 
the requirements of paragraph 2, when the person is sought for 
prosecution 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 convicted 
in the Requesting State.
    Most of the items listed in paragraph 2 enable the 
authorities of the Requested State to determine quickly whether 
extradition is appropriate under the Treaty. For example, the 
``information describing the facts of the offense'' and ``the 
text of the law describing the elements of, and applicable 
penalty for, the offense for which extradition is requested'' 
enable the Requested State to make a preliminary determination 
whether the dual criminality provision of Article 2 of the 
Treaty appear to be met. Other items, such as the physical 
description, identity information, and probable location of the 
fugitive, assist the Requested State in locating and 
apprehending the fugitive, and in proving his or her identity 
at the extradition hearing.
    Paragraph 3 requires that if the fugitive is a person 
sought for prosecution the Requesting State must provide: (a) a 
copy of the warrant or order of arrest; (b) a copy of the 
charging document, if any; \29\ and (c) ``information or 
evidence that provides a reasonable basis to believe that the 
person sought committed the offense for which extradition is 
requested.'' The language in paragraph 3(c) is consistent with 
fundamental extradition jurisprudence in the United States, in 
that it will be interpreted to require that Paraguay provide 
such information as is necessary to establish ``probable 
cause.'' \30\ The Paraguayan delegation explained that this 
provision would comport with Paraguay's minimum standard of 
proof required for pretrial detention, which, similar to the 
U.S. probable cause standard, is a reasonableness test that 
requires a judge to find sufficient indications or ``indicios 
suficientes'' to believe that a person is responsible for an 
offense.\31\
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    \29\ As noted in the analysis of Article 1 above, under Paraguayan 
criminal procedure, a formal indictment is not normally filed until the 
latter stages of the prosecution after the accused is brought before a 
Paraguayan court. In recognition of those instances in which Paraguay 
might seek the extradition of a person for whom an indictment has not 
yet been filed, the negotiating delegations agreed to include the 
phrase, ``if any.''
    \30\ United States Courts considering foreign extradition requests 
in accordance with Title 18, United States Code, Section 3184, have 
long required probable cause for international extradition. Ex Parte 
Bryant, 167 U.S. 104, 105 (1897); Restatement (Third) of the Foreign 
Relations Law of the United States Sec.  476, comment b (1987).
    \31\ See, Article 337, Paraguayan Criminal Procedure Code (1997). 
The Paraguayan delegation advised that their courts could interpret the 
term ``committal for trial,'' sometimes used in U.S. extradition 
treaties, to require a much higher standard of proof, akin to a prima 
facie showing of guilt, that is required for a formal indictment at the 
latter stages of the Paraguayan criminal process. Accordingly, the 
delegations agreed to include the reasonable basis language to ensure 
that the courts of both the United States and Paraguay would apply a 
similar standard of proof in extradition cases.
---------------------------------------------------------------------------
    Paragraph 4 describes the information needed, in addition 
to that required by paragraph 2, when the person sought has 
already been convicted in the Requesting State. Paragraph 4(a) 
applies if Paraguay is the Requesting State, and paragraph 4(b) 
applies if the United States is the Requesting State. The two 
subparagraphs contain essentially the same requirements, but 
were separated at the request of the Paraguayan delegation to 
avoid any confusion due to differences in Paraguayan and U.S. 
criminal procedure. For example, the difference in wording 
between 4(a)(i) and 4(b)(i) reflects the fact that in Paraguay 
a person is found guilty and sentenced at the same proceeding, 
from which such documentation always issues. In the United 
States, on the other hand, a person may be found guilty without 
having yet been sentenced.
    Both subparagraphs (a) and (b) make 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 United States court decisions, even without 
a specific treaty provision.\32\
---------------------------------------------------------------------------
    \32\ 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).
---------------------------------------------------------------------------
    Finally, both subparagraphs (a) and (b) require that the 
Requesting State provide information regarding the extent to 
which the sentence, if imposed, has been carried out. This 
information is relevant to the requirement in Article II(2) 
that the person sought have more than six months sentence left 
to be served.

                       Article VIII--Translation

    This Article is a standard treaty provision which requires 
that all documents submitted in support of an extradition 
request must be translated into the language of the Requested 
State. Thus, requests by Paraguay to the United States will be 
translated into English and requests by the United States to 
Paraguay will be translated into Spanish.

                 Article IX--Admissibility of Documents

    This Article governs the certification and authentication 
procedures for documents accompanying an extradition request. 
It states that the documents shall be received and admitted as 
evidence in extradition proceedings if certified or 
authenticated by the appropriate accredited diplomatic or 
consular officer of the Requested State resident in the 
Requesting State.\33\ They are also to be admitted if certified 
or authenticated in any other manner accepted by the laws in 
the Requested State. For example, there may be information in 
the Requested State itself that is relevant and probative to 
extradition, and the Requested State is free under subsection 
(c) to utilize that information if the information satisfies 
the ordinary rules of evidence in that state. This insures that 
evidence that is acceptable under the evidentiary rules of the 
Requested State may be used in extradition proceedings even if 
it is not authenticated pursuant to other provisions of the 
treaty. This provision should also insure that relevant 
evidence, which would normally satisfy the evidentiary rules of 
the requested country, is not excluded at the extradition 
hearing because of an inadvertent error or omission in the 
authentication process.
---------------------------------------------------------------------------
    \33\ This provision is consistent with requirements imposed by 
United States law. For the United States the ``appropriate diplomatic 
or consular officer would be the ``principal'' diplomatic or consular 
officer of the U.S. Embassy in Asunci"n, Paraguay. See, Title 18, 
United States Code, Section 3190. Since Paraguayan law does not, 
however, require that the diplomatic or consular officer be the 
``principal'' one, the term ``appropriate'' was included. This will 
render less onerous for U.S. officials the task of obtaining 
authentication or certification of extradition requests to Paraguay.
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                     Article X--Provisional Arrest

    This Article describes the process by which a person may be 
arrested and detained in the Requested State while the 
extradition documents required by Article VII are being 
prepared and translated in the Requesting State, a process 
which normally may take a number of weeks. Provisional arrest 
serves the interests of justice by allowing for the 
apprehension of fugitives who pose a risk of flight or danger 
to the community. Similar articles are included in all modern 
U.S. extradition treaties.
    Paragraph 1 provides that provisional arrest is reserved 
for cases of urgency pending presentation of the extradition 
request and that a provisional arrest request shall be 
transmitted by any written means either through the diplomatic 
channel or directly between the United States Department of 
Justice and the Paraguayan Ministry of Foreign Relations.
    Paragraph 2 sets forth the information that the Requesting 
State must provide in support of a provisional arrest request. 
This paragraph makes it clear that the State requesting 
provisional arrest need not submit copies of the arrest 
warrant, judgment of conviction, or other documentary evidence 
which would be necessary in the full extradition request.
    Paragraph 3 requires that the Requesting State must be 
promptly notified of the disposition of the provisional arrest 
request.
    Paragraph 4 provides that a fugitive who has been 
provisionally arrested may be released from custody if the 
Requested State does not receive the fully documented request 
for extradition within sixty (60) days from the date of the 
fugitive's provisional arrest.
    Finally, paragraph 5 makes clear that a person released 
under paragraph 4 may be taken into custody again and the 
extradition proceedings recommenced if the formal request is 
received at a later date.

                   Article XI--Decision and Surrender

    Paragraph 1 of this Article requires that the Requested 
State promptly notify the Requesting State of its decision on 
the extradition request.
    Paragraph 2 requires that, if extradition is denied in 
whole or in part, the Requested State must provide a reasoned 
explanation for the denial and, upon request, copies of the 
pertinent judicial decisions in the case.
    Paragraph 3 provides that if extradition is granted, the 
Parties shall agree on the date and place of the extraditee's 
surrender. Paragraph 4, states, however, that if the extraditee 
is not removed from the territory of the Requested State within 
two months from the date of the judicial decision of 
extraditability (or, in the event that the extraditee initiates 
a legal challenge to such decision, two months from the date of 
the conclusion of the legal challenge) then the Requesting 
State risks the release of the extraditee from custody and 
subsequent refusal of extradition for the same offense.\34\
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    \34\ This provision is intended to comport with U.S. statutory 
requirements and judicial interpretations thereof. See, Title 18, 
United States Code, Section 3188. See, also, Jimenez v. United States 
District Court, 84 S.Ct. 14 (1963) (decided by Goldberg, J., in 
chambers); 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); and McElvy v. Civiletti, 523 F.Supp. 42, 47 
(S.D.Fla. 1981). Paraguayan law is silent on the time before which an 
extraditee must be removed from Paraguayan territory.
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             Article XII--Temporary and Deferred Surrenders

    Occasionally, a person who is the subject of a foreign 
extradition request may, at the same time, be facing 
prosecution on domestic charges or serving a sentence in the 
Requested State. Article XII provides a means for the Requested 
State to temporarily surrender the person sought to the 
Requesting State for the purpose of prosecution or, in the 
alternative, to defer extradition in such cases until the 
conclusion of the Requested State's proceedings against the 
person sought and the service of any sentence that may be 
imposed in connection therewith. Similar provisions appear in 
recent United States extradition treaties.
    Paragraph 1 of Article XII 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 kept in custody while in the Requesting 
State, and 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 the Requesting State to try 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) he or she might resolve all outstanding charges sooner; (2) 
subject to the laws of each State, he or she may be able to 
serve concurrently the sentences imposed by the Requesting and 
Requested States; and (3) he or she can defend against the 
charges while favorable evidence is fresh and more likely to be 
available to the defense.
    Notwithstanding the above, temporary surrender may not 
always be feasible, especially if it would significantly 
interfere with or impede the ongoing criminal proceedings in 
the Requested State. Accordingly, paragraph 2 of this Article 
provides that the Requested State may opt to postpone the 
surrender of a person who is being prosecuted or serving a 
sentence in the Requested State until the conclusion of the 
prosecution or the completion of the service of any sentence 
imposed.\35\ Paragraph 3 provides that, if surrender is 
postponed, such postponement shall suspend the running of the 
statute of limitations in the Requesting State for the offenses 
for which extradition is sought.\36\
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    \35\ Under U.S. law and practice, the Secretary of State would make 
the decision to temporarily surrender the fugitive or to defer the 
surrender. Koskotas v. Roche, 740 F.Supp. 904, 920 (D.Mass. 1990), 
aff'd, 931 F.2d 169 (1st Cir. 1991).
    \36\ This provision was included at the insistence of and for the 
sole benefit of Paraguay, whose negotiating delegation wished to ensure 
that the postponement of the surrender of Paraguayan fugitives by the 
United States would not jeopardize Paraguay's ability to prosecute 
those fugitives upon their eventual surrender to Paraguay. Under U.S. 
law, in contrast, the statute of limitations is suspended upon the 
filing of an indictment or other charging document. See, e.g., Title 
18, United States Code, section 3282.
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                    Article XIII--Multiple Requests

    From time to time, a State will receive concurrent requests 
from two or more other States for the extradition of the same 
person, and thus the Requested State must decide to which of 
the Requesting States to surrender the person. In such 
situations where one of the Parties to this Treaty, the United 
States or Paraguay, is the Requested State, and the other Party 
to this Treaty is one of the Requesting States, Article XIII 
sets forth some of the factors that the Requested State shall 
consider in determining to which country the person should be 
surrendered.
    This Article makes clear that the Requested State is not 
limited to the factors enumerated therein but should consider 
all relevant factors in weighing its decision to which State to 
surrender the person sought.
    For the United States, the Executive Branch will make the 
decision to which country the person should be surrendered in 
accordance with this Article and Article XIX.\37\ The 
Paraguayan delegation advised that, for Paraguay, the competent 
authority would be the judicial branch.
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    \37\ Under U.S. law, the appropriate authority within the executive 
branch is the Secretary of State. Cheng Na-Yuet v. Hueston, 734 F.Supp. 
988 (S.D.Fla. 1990), aff'd, 932 F.2d 977 (11th Cir. 1991).
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             Article XIV--Seizure and Surrender of Property

    At the time of their arrest in the Requested State for the 
purpose of extradition, persons are often in possession of 
property which may represent the proceeds, instrumentalities, 
or other evidence of the offenses of which they are accused in 
the Requesting State. The Requesting State has an interest in 
having this property surrendered with the fugitive upon his 
extradition, so that the property may be used in the 
prosecution of the person sought, returned to the victims, or 
otherwise disposed of appropriately.
    Accordingly, paragraph 1 of this Article provides that to 
the extent permitted by the law in the Requested State, all 
articles, documents, and evidence connected with the offense 
for which extradition is granted may be seized and surrendered 
to the Requesting State. Paragraph 1 further provides that the 
surrender of such property may occur even if extradition cannot 
be effected due to the death, disappearance, or escape of the 
person sought.
    Notwithstanding the above, paragraph 2 provides that the 
Requested State may condition the surrender of the property 
upon assurances from the Requesting State that the property 
will be returned as soon as practicable and without cost to the 
Requested State. Alternatively, the Requested State may defer 
the surrender of the property if it is needed as evidence in 
that State.
    Finally, paragraph 3 provides that the obligation to 
surrender property under this provision shall be subject to due 
respect for the rights of third parties in such property.

     Article XV--Rule of Speciality and Extradition to Third States

    This Article covers the principle known as the rule of 
speciality (or ``specialty''), which is a standard aspect of 
U.S. and international extradition practice. Generally, the 
rule of specialty prohibits the prosecution of an extraditee 
for offenses other than those for which extradition was 
granted. By limiting prosecution to those offenses for which 
extradition was granted, the rule is intended to prevent 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 that may not be extraditable under the Treaty 
or properly documented at the time that the request is granted. 
A variety of exceptions to the general rule have developed over 
the years, and this Article sets forth the current formulation 
of the rule and its established exceptions.
    Paragraph 1 of this Article provides that a person 
extradited under the Treaty may not be detained, tried, or 
punished in the Requesting State except for: (1) an offense for 
which extradition was granted, or a lesser included or 
differently denominated offense, provided that it is based on 
the same facts on which extradition was granted; \38\ (2) an 
offense committed after extradition; or (3) any offense for 
which the competent authority of the Requested State gives 
consent.\39\ Paragraph 1 also provides that, in cases where 
such consent is sought, the Requested State may require the 
submission of the supporting documentation called for in 
Article VII and the State seeking the consent may detain the 
person for ninety days, or such longer period of time as the 
Requested State may authorize, while the request for consent is 
being processed.
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    \38\ Allowing the Requesting State to proceed on a ``lesser 
included or differently denominated offense'' provides both the 
prosecution and defense with a measure of post-extradition flexibility 
to resolve the charges. For example, it allows the defendant to plead 
to or be convicted at trial of a less serious offense, or it allows the 
prosecution to supersede the original charges with different charges 
that, because of a change in circumstances may be more readily 
provable, so long as they are based on the same facts as the offenses 
for which extradition was granted.
    \39\ As provided in Article XIX, in the United States, the 
Secretary of State has the authority to consent. See, Berenguer v. 
Vance, 473 F.Supp. 1195, 1199 (D.D.C. 1979).
---------------------------------------------------------------------------
    Paragraph 2 of this Article prohibits the Requesting State 
from surrendering the person to a third State for a crime 
committed prior to extradition under this Treaty without the 
consent of the State from which extradition was first 
obtained.\40\
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    \40\ This provision prohibiting re-extradition is intended to 
prevent the State to which a person is extradited from subsequently 
extraditing the person to a third State to which the Requested State 
would not have agreed to extradite. Consistent with the rule of 
specialty under international law, the prior consent of the United 
States would also be required if Paraguay were to seek to extradite to 
an international tribunal, including the International Criminal Court 
agreed to in Rome on July 17, 1998, a fugitive who had been previously 
extradited from the United States to Paraguay. This provision thus 
enables the Requested State to retain a measure of control over the 
ultimate destination of the person surrendered. A similar provision is 
contained in all recent U.S. extradition treaties.
---------------------------------------------------------------------------
    Finally, paragraph 3 permits the detention, trial, or 
punishment of an extraditee for offenses other than those for 
which extradition was granted, or the extradition of that 
person to a third State, if: (1) the extraditee leaves the 
Requesting State and voluntarily returns to it; or (2) the 
extraditee does not leave the Requesting State within twenty 
days of being free to do so.\41\
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    \41\ The policy behind paragraph 3 is that an extraditee should not 
be allowed to benefit from the rule of specialty indefinitely and 
remain in or return to the Requesting State with impunity. Under this 
paragraph, if the extraditee chooses to return to or remain in the 
Requesting State, he or she effectively relinquishes the benefits of 
the rule. See, e.g., United States v. Rauscher, 119 U.S. 407, 430 
(1886); 112 ALR Fed. 473, Sec.  28; 6 M. Whiteman, Digest of 
International Law, Ch. XVI, Sec.  46 at 1100, 1105-6; and Restatement 
(Third) of Foreign Relations Law of the United States, Sec.  477, 
Comment e.
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             Article XVI--Simplified Extradition Procedures

    Persons sought for extradition frequently elect to expedite 
their return to the Requesting State by consenting to their 
surrender and waiving their right to extradition proceedings in 
the Requested State.\42\ This Article provides that when a 
fugitive consents to surrender to the Requesting State, the 
person may be returned to the Requesting State as expeditiously 
as possible without further proceedings. Such consent must be 
given before a judicial authority of the Requested State. The 
Parties anticipate that in such cases there would be no need 
for the formal documents described in Article VII, or further 
judicial or administrative proceedings of any kind. 
Furthermore, in the case where the person sought elects to 
return voluntarily to the Requesting State under this Article, 
the process would not be deemed an ``extradition,'' and 
therefore the rule of specialty in Article XV would not apply.
---------------------------------------------------------------------------
    \42\ This ``waiver of extradition'' benefits fugitives in that it 
allows them to return forthwith to resolve the charges against them in 
the Requesting State and to spend as little time as possible in custody 
in the Requested State. It also saves the judicial and law enforcement 
authorities of the Requested State the significant expense associated 
with prolonged extradition proceedings.
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                         Article XVII--Transit

    At times, law enforcement authorities escorting a 
surrendered person to the State where he is wanted for trial or 
punishment are unable to take such person directly from the 
surrendering State to the receiving State and must make a stop, 
scheduled or unscheduled, in another State. This Article 
governs those situations in which one Party to this Treaty is 
the receiving State and the other Party is the State through 
which the surrendered person must transit.\43\
---------------------------------------------------------------------------
    \43\ A similar provision is in all recent U.S. extradition 
treaties.
---------------------------------------------------------------------------
    Paragraph 1 of this Article gives each Party the power to 
authorize transit through its territory of persons being 
surrendered to the other Party by a third country. Requests for 
transit under this Article are to be transmitted through the 
diplomatic channel or directly between the United States 
Department of Justice and the Paraguayan Ministry of Foreign 
Relations. Transit requests must contain a description of the 
person being transported and a brief statement of the facts of 
the case upon which the extradition is based. Paragraph 1 also 
provides that the person in transit may be detained in custody 
during the period of transit.
    Paragraph 2 states that no authorization is needed if air 
transportation is being used and no landing is scheduled in the 
territory of the other Party. If an unscheduled landing occurs 
in the territory of a Party, that Party may require a request 
as provided in paragraph 1 of this Article. If such request is 
required, it shall be provided within ninety-six hours of the 
unscheduled landing, and the person in transit may be detained 
until the transit is effected.
    Paragraph 3 makes clear that a request for transit may be 
denied if the transit would prejudice the essential interests 
of the Party that receives such a request. The U.S. negotiating 
delegation considers this paragraph to be superfluous because 
the authorization of the transit of an extraditee under this 
Article already is clearly discretionary, and, accordingly, may 
be denied by the Party receiving a transit request for any 
reason such Party deems appropriate. This paragraph was 
included, however, at the insistence of the Paraguayan 
delegation.

               Article XVIII--Representation and Expenses

    Paragraph 1 of this Article provides that the Requested 
State shall advise, assist, and, to the fullest extent 
permitted by its law, represent the Requesting State in 
extradition proceedings in the Requested State. In accordance 
with established practice, the Department of Justice will 
represent Paraguay in all aspects of extradition proceedings in 
the United States. Likewise, Paraguayan prosecutors (fiscales) 
will represent the interests of the United States in such 
proceedings in Paraguay. Specifically, in a typical case, a 
fiscal will issue an opinion to the Paraguayan extradition 
court with a legal analysis of the case and a recommendation 
that the U.S. request be granted. In cases in which the 
extradition court denies the U.S. request, the fiscal can then 
appeal that decision to a higher court.
    Paragraph 2 provides that the Requesting State will bear 
expenses of extradition relating to the translation of 
documents and the transportation of a fugitive to the 
Requesting State. The Requested State shall pay all other 
expenses incurred in that State by reason of the extradition 
proceedings. This is a standard provision in U.S. extradition 
treaties.
    Paragraph 3 provides that neither State shall make any 
pecuniary claim against the other in connection with 
extradition proceedings, including arrest, detention, custody, 
examination, or surrender of the fugitive. This includes any 
claim by or on behalf of the fugitive for damages, 
reimbursement, or legal fees, or other expenses occasioned by 
the execution of the extradition request.\44\
---------------------------------------------------------------------------
    \44\ This also is a standard provision in all modern U.S. 
extradition treaties.
---------------------------------------------------------------------------

                    Article XIX--Competent Authority

    The term ``competent authority'' is used in Articles IV(2), 
XIII, and XV(1)(c) of the Treaty in connection with the 
Requested State's decisions concerning: (1) whether an 
extradition request is politically motivated; (2) to which 
State to surrender a fugitive in the face of concurrent 
extradition requests from two or more States; and (3) whether 
to consent to a surrendered person's subsequent prosecution in 
the Requesting State for offenses other than those for which 
extradition was granted. Article XIX addresses the fact that 
during the course of negotiations it became clear that, under 
the respective extradition practices in the United States and 
Paraguay, a different governmental authority would make such 
decisions for the United States than would for Paraguay.
    Under United States law and practice, it is well-
established that the executive branch is the competent 
authority for making such decisions. On the other hand, under 
Paraguayan practice, such decisions traditionally have been 
made by the judiciary. Accordingly, this Article simply states 
that, for the United States, the term ``competent authority'', 
as used in the Treaty, means the appropriate authorities of the 
executive branch, and the same term, for Paraguay, means its 
appropriate judicial authorities. Because this Article is 
entirely consistent with current practices in the United States 
and Paraguay, it neither expands nor diminishes the powers of 
the executive or judiciary in either country beyond that which 
is already recognized.

                        Article XX--Consultation

    This Article provides that the Parties may consult with 
each other in connection with the processing of individual 
extradition cases and in furtherance of maintaining and 
improving procedures for the implementation of the Treaty. This 
is a standard provision in modern U.S. extradition treaties and 
serves the interests of the United States in promoting close 
cooperation with foreign counterparts on extradition issues.

                        Article XXI--Application

    This Article, like its counterparts in many of the other 
United States extradition treaties negotiated in the past two 
decades, expressly makes the Treaty retroactive to cover 
offenses that occurred before, as well as after, it enters into 
force so long as the conduct constituted an offense under the 
law in both parties at the time it occurred.

            Article XXII--Ratification and Entry Into Force

    This Article contains standard treaty provisions regarding 
the ratification and entry into force of the Treaty. Paragraph 
1 provides that the Treaty shall be subject to ratification, 
and that instruments of ratification shall be exchanged at 
Asunci"n as soon as possible. Paragraph 2 provides that the 
Treaty will enter into force upon the exchange of the 
instruments of ratification. Paragraph 3 of this Article 
provides that the 1973 treaty shall cease to be in effect upon 
entry into force of this Treaty. Nevertheless, the 1973 treaty 
shall continue to apply to extradition proceedings in which 
extradition documents have already been submitted to the courts 
of the Requested State when the new Treaty enters into force. 
Paragraph 3 contains an additional caveat, however, that 
Article XVI of this Treaty (Simplified Extradition Procedures) 
shall apply to such proceedings.

                       Article XXIII--Termination

    The final Article of the Treaty contains standard treaty 
language for the termination of the Treaty by either Party 
through written notice to the other Party, and states that 
termination shall become effective six months after the date of 
such notice.
                                ------                                


 Technical Analysis of the Treaty Between the United States of America 
            and the Republic of South Africa on Extradition

    On September 16, 1999, the United States signed an 
Extradition Treaty Between the Government of the United States 
of America and the Government of the Republic of South Africa 
(``the Treaty'') that is intended to replace the outdated 
treaty currently in force between the two countries 
1 with a modern agreement on the extradition of 
fugitives. The new extradition treaty is the second modern 
extradition treaty that the United States has negotiated with a 
sub-Saharan African country in the past fifty years, and it 
represents a major step forward in United States efforts to 
strengthen cooperation with countries in the region in 
combating terrorism, organized crime, drug trafficking, and 
other offenses.
---------------------------------------------------------------------------
    \1\ Treaty Relating to the Reciprocal Extradition of Criminals, 
signed at Washington December 18, 1947, entered into force April 30, 
1951 (2 UST 884, TIAS 2243, 148 UNTS 85).
---------------------------------------------------------------------------
    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. 
South Africa has its own internal legislation on extradition 
2 which will apply to United States' requests under 
the treaty.
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    \2\ Extradition Act, Law No. 67 of 1962 hereinafter ``Extradition 
Act 1962''). The key sections of the Extradition Act 1962 which are 
germane to the interpretation and implementation of the Treaty are 
discussed in more detail in this Technical Analysis. The South African 
delegation said that under Article 231 of South Africa's Constitution, 
a treaty such as this as normally brought into force has the force and 
effect of law in South Africa unless the treaty is inconsistent with 
the Constitution or an Act of Parliament. Thus, the terms of this 
Treaty would be overridden by any inconsistent internal law, apparently 
including pre-existing law, unless the treaty is enacted into law in 
national legislation. (Such enactment would be the functional 
equivalent of implementing legislation identical to the Treaty's 
terms). This is important because South Africa's law does contain some 
provisions that are inconsistent with the Treaty. For instance, Section 
11(b) of the Extradition Act 1962 gives the Minister of Justice broad 
discretion to deny extradition if `` * * * he or she is satisfied that 
by reason of the trivial nature of the offence or by reason of the 
surrender not being in the interests of justice or that for any other 
reason it would be unjust or unreasonable or too severe a punishment to 
surrender the person concerned * * * .'' The U.S. delegation made it 
clear that the United States would consider it a breach of the Treaty 
if South Africa were to rely on this statute to deny extradition on 
grounds that are not contained in the Treaty. The South African 
delegation assured us that South Africa takes its treaty obligations 
seriously, and agreed to consider the U.S. recommendation that this 
Treaty be brought into force by enactment into law to ensure that the 
Treaty would supersede any earlier, inconsistent legislation.
---------------------------------------------------------------------------
    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 
history. 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 Party to extradite to the other persons sought 
for prosecution or convicted of an extraditable offense, 
subject to the provisions of the remainder of the Treaty. The 
article refers to charges ``in'' the Requesting State rather 
than ``of'' 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 offenses are extraditable. The 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 makes an offense extraditable if it is punishable 
under the laws of both countries by deprivation of liberty 
(i.e., imprisonment, or other form of detention), for a period 
of at least 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 South Africa that extradition would be 
possible for such high priority 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); money laundering; terrorism; 
crimes against environmental protection laws; and many 
antitrust violations.
    Paragraph 2 follows the practice of recent extradition 
treaties in providing that extradition should also be granted 
for attempting or conspiring to commit, aiding, abetting, 
inducing, counseling or procuring the commission of, or 
otherwise being an accessory before or after the fact to, 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 South 
African delegation indicated that there is a statutory 
provision for conspiracy in South African law, similar to Title 
18, United States Code, Section 371. 3 In any event, 
paragraph 2 creates an exception to the ``dual criminality'' 
rule of paragraph 1 by making conspiracy an extraditable crime 
if the offense which was the object of the conspiracy is an 
extraditable offense.
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    \3\ Act No. 17 of 1956; Hosten Edwards Nathan Rosman, Introduction 
to South African Law and Legal Theory 712-713 (1977).
---------------------------------------------------------------------------
    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 U.S. 
federal statutes require proof of certain elements (such as use 
of the mails or interstate transportation) solely to establish 
jurisdiction in the U.S. 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, South 
African authorities must treat U.S. 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 under state law. This paragraph 
also requires the 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 U.S. 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 South Africa, however, the Government's ability 
to prosecute extraterritorial offenses is much more limited. 
Article 2(4) reflects South Africa's agreement to recognize 
United States jurisdiction to prosecute offenses committed 
outside of the United States if South Africa's law would permit 
it to prosecute similar offenses committed outside its 
territory in similar circumstances. If the Requested State's 
laws do not provide for such jurisdiction, the final sentence 
of the paragraph provides the executive authority of the 
Requested State with discretion to grant extradition.
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    \4\ Restatement (Third) of the Foreign Relations Law of the United 
States, Section 402 (1987); Blakesley, ``United States Jurisdiction 
over Extraterritorial Crime,'' 73 Journal of Criminal Law and 
Criminology 1109 (1982).
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    Paragraph 5 states that extradition shall be granted for 
persons convicted of but not yet sentenced for extraditable 
offenses, and of persons convicted of and sentenced for 
extraditable offenses. The negotiators intended to make it 
clear that the Treaty, like other modern extradition treaties, 
applies to persons who have been adjudged guilty but fled prior 
to sentencing as well as to those who have fled after 
sentencing but before completing service of their sentence. 
5
---------------------------------------------------------------------------
    \5\ See, Stanbrook and Stanbrook, Extradition: The Law and 
Practice, 25-26 (1979).
---------------------------------------------------------------------------
    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 South Africa and the U.S. both extradite for tax and 
fiscal offenses. Similar provisions appear in other recent U.S. 
extradition treaties. 6
---------------------------------------------------------------------------
    \6\ See, e.g., U.S.-Austria Extradition Treaty, signed at 
Washington, January 8, 1998, entered into force January 1, 2000, art. 
2(4)(b).
---------------------------------------------------------------------------
    Paragraph 7 states that when extradition has been granted 
for an extraditable offense it shall also be granted for any 
other offense for which all of the requirements for extradition 
have been met except for the requirement that the offense be 
punishable by at least one year of imprisonment. For example, 
if South Africa 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 with which the fugitive has been charged, 
as long as those misdemeanors would also be recognized as 
criminal offenses in South Africa and other requirements for 
extradition are met. 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 other 
recent extradition treaties. 7
---------------------------------------------------------------------------
    \7\ See, e.g., U.S.-Barbados Extradition Treaty, signed at 
Bridgetown February 28, 1996, entered into force March 3, 2000, art. 
2(5).
---------------------------------------------------------------------------


                         Article 3--Nationality

    Some countries refuse to extradite their own nationals to 
other countries for trial or punishment, or are prohibited from 
doing so by their statutes or constitution. The United States 
does not deny extradition on the basis of the offender's 
citizenship, 8 and South Africa's extradition law 
contains no exception for South African nationals. Therefore, 
in Article 3 of the Treaty, each State promises that 
extradition shall not be refused on the ground of the 
nationality of the person sought. 9
---------------------------------------------------------------------------
    \8\ See, generally Shearer, Extradition in International Law 110-
114 (1970); 6 Whiteman, Digest of International Law 871-876 (1968). The 
U.S. Government's policy of drawing no distinction between nationals of 
the United States and those of other countries in extradition matters 
is underscored by Title 18, United States Code, Section 3196, which 
authorizes the Secretary of State to extradite U.S. citizens even 
pursuant to treaties that permit (but do not require) surrender of 
citizens, if other requirements of the Treaty have been met.
    \9\ A similar provision appears in other recent U.S. treaties, many 
of which state that extradition shall not be refused ``on the ground 
that the person sought is a national of the Requested State.'' The 
South African treaty has slightly different wording intended to convey 
the idea that nothing with respect to the nationality of the person 
sought, regardless of the country involved, can be used to deny 
extradition.
---------------------------------------------------------------------------

               Article 4--Political and Military Offenses

    Paragraph 1 of this article prohibits extradition for a 
political offense. This is a standard provision in U.S. 
extradition treaties.
    Paragraph 2 describes five 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 violent crime against the person of 
a Head of State or Deputy Head of State of the Requesting or 
Requested State, or a member of such person's family. This 
clause covers a Deputy Head of State because in South Africa 
the Deputy Head of State acts as Head of State in the Head of 
State's absence or incapacity.
    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 decision as to prosecution including, for instance, 
the Convention for the Suppression of Unlawful Seizures of 
Aircraft, done at the Hague on 16 December 1970 (entered into 
force for South Africa 29 June 1972), 22 UST 1641, TIAS 7192.
    The third and fourth categories of exceptions establish 
that the political offense exception does not apply to any 
offense that constitutes murder, or an offense involving 
kidnapping, abduction, or any form of unlawful detention, 
including the taking of a hostage. 10
---------------------------------------------------------------------------
    \10\ Similar exceptions are found in our extradition treaties with 
countries including the United Kingdom and Hungary. See, Supplemental 
Treaty Concerning the Extradition Treaty Between the United States and 
the United Kingdom, signed at Washington June 25, 1985, entered into 
force December 23, 1986, art. 1; U.S.-Hungary Extradition Treaty, 
signed at Budapest December 1, 1994, entered into force March 18, 1997, 
art. 4.
---------------------------------------------------------------------------
    Finally, the political offense exception does not apply to 
conspiring or attempting to commit, or for aiding, abetting, 
inducing, counseling or procuring the commission of, or being 
an accessory before or after the fact to, the foregoing 
offenses.
    Paragraph 3 provides that notwithstanding Paragraph 2, 
extradition shall not be granted if the executive authority of 
the Requested State determines that there are substantial 
grounds for believing that the request was made for the purpose 
of prosecuting or punishing the person sought on account of 
that person's gender, race, religion, nationality, or political 
opinion. 11 This paragraph is based on South African 
law, 12 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. 
13
---------------------------------------------------------------------------
    \11\ There are similar provisions in a number of U.S. extradition 
treaties. See, e.g., U.S.-Jamaica Extradition Treaty, signed at 
Kingston June 14, 1983, entered into force September 24, 1984, art. 
III(3).
    \12\ Section 11(b)(iv), Extradition Act 1962.
    \13\ 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 shall refuse 
extradition if the request involves offenses under military law 
which would not be offenses under ordinary criminal law. 
14
---------------------------------------------------------------------------
    \14\ An example of such a crime is desertion. Matter of Extradition 
of Suarez-Mason, 694 F. Supp. 676, 702-703 (N.D. Cal. 1988). Most 
recent U.S. extradition treaties permit extradition to be denied for 
military offenses of this kind, but do not require denial. South Africa 
insisted that its practice is to treat denial of extradition as 
mandatory in these cases. Cf. Art. 3(c), United Nations Model 
Extradition Treaty Article 3(c), 30 I.L.M. 1407 (1991)
---------------------------------------------------------------------------

                     Article 5--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, unless 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. 15
---------------------------------------------------------------------------
    \15\ See, e.g., U.S.-Austria Extradition Treaty, signed at 
Washington January 8, 1998, entered into force January 1, 2000, art. 8.
---------------------------------------------------------------------------
    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.
    The South African delegation insisted on this provision 
because South Africa has abolished the death penalty. Its 
extradition law is silent on the topic, but the delegation felt 
that South African courts might conclude that it is 
unconstitutional to extradite a person to the United States to 
face capital punishment when such punishment could not lawfully 
be imposed in South Africa.

                       Article 6--Non Bis in Idem

    The first paragraph of Article 6 prohibits extradition if 
the offender has been convicted or acquitted in the Requested 
State for the offense for which extradition is requested, and 
is similar to language present in many United States 
extradition treaties. 16 The delegations 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 either of the States would not 
insulate the person from extradition to the other, since 
different crimes are involved.
---------------------------------------------------------------------------
    \16\ See, e.g., U.S.-Argentina Extradition Treaty, signed at Buenos 
Aires June 10, 1997, entered into force June 15, 2000, art. 5(1).
---------------------------------------------------------------------------
    Paragraph 2 makes it clear that neither State can refuse to 
extradite an offender on the ground that the Requested State's 
authorities declined to prosecute the offender, or instituted 
criminal proceedings against the offender and thereafter 
elected to discontinue the proceedings, provided that the 
discontinuance does not constitute an acquittal, or the 
authorities merely decided to investigate. This provision was 
included because the decision of the Requested State to forego 
prosecution, or to drop charges already filed, may have 
resulted, for example, from failure to obtain sufficient 
evidence or witnesses available for trial, and the Requesting 
State may not suffer from the same impediments. This provision 
should enhance the ability to extradite to the jurisdiction 
which has the better chance of a successful prosecution.

              Article 7--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 7 provides a means for 
the Requested State to temporarily surrender or 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 Austria, Barbados and India.
    Paragraph 1 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. 
17 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. 18
---------------------------------------------------------------------------
    \17\ Under U.S. 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).
    \18\ Thus, the treaty provides more flexibility than Article 4 of 
the 1947 U.S.-South Africa Treaty, which flatly requires that 
extradition be deferred until the conclusion of the trial and the full 
execution of any punishment awarded * * * ''
---------------------------------------------------------------------------
    Paragraph 2 provides that a person wanted for prosecution 
in the Requesting State who is being prosecuted or is serving a 
sentence in the Requested State may be surrendered temporarily. 
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.

                        Article 8--Lapse of Time

    Article 8 states that extradition shall not be granted when 
the prosecution has become barred by lapse of time according to 
the law of the Requesting State. 19 Similar 
provisions are found in recent U.S. extradition treaties with 
Austria, India, Poland, Spain, and other countries. This 
provision must be read together with Article 9(2)(d), which 
states that the documents in support of each extradition 
request must contain a statement from the Requesting State 
describing the applicable lapse of time provisions in that 
State, and that statement will be conclusive proof of whether 
the prosecution has become barred by lapse of time.
---------------------------------------------------------------------------
    \19\ The treaty now in force requires that extradition be denied if 
the statute of limitations has run or would have run in either the 
Requesting or Requested State. Article 5, U.S.-South Africa Treaty, 
supra, note 1, even though neither U.S. law or South Africa's 
Extradition Act 1962 requires this rule. In fact, 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).
---------------------------------------------------------------------------

        Article 9--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 most recent United States 
extradition treaties.
    The first paragraph requires that all requests for 
extradition be made in writing and submitted through the 
diplomatic channel. A formal extradition request may be 
preceded by a request for provisional arrest under Article 13, 
and provisional arrest requests need not be initiated through 
diplomatic channels if the requirements of Article 13 have been 
satisfied.
    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 ``a statement or 
text of the relevant law prescribing maximum punishment for the 
offence(s)'' enabling the requested state to determine easily 
whether the request satisfies the requirement for dual 
criminality under Article 2.
    Paragraph 3 describes the additional information needed 
when the person is sought for trial 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 ``such 
information as would justify committal for extradition under 
the laws of the Requested State, but neither State is required 
to establish a prima facie case.'' This is consistent with 
extradition law in the United States, and is similar to 
language in other United States extradition treaties. 
20 This provision will alleviate one of the major 
practical problems with extradition from South Africa. The 
Treaty currently in force permits extradition only if `` * * * 
the evidence be found sufficient, according to the law of the 
High Contracting Party applied to, * * * to justify the 
committal of the prisoner for trial, in case the crime has been 
committed in the territory of such High Contracting Party * * * 
'' South African courts have interpreted this clause to require 
that a prima facie case against the defendant be proven in 
South Africa before extradition will be granted. By contrast, 
U.S. law permits extradition if there is probable cause to 
believe that an extraditable offense was committed and the 
offender committed it. 21 South Africa's agreement 
to extradite under the new Treaty based on the lower probable 
cause standard eliminates this imbalance in the burden of proof 
for extradition, and should dramatically improve the United 
States' ability to extradite from South Africa.
---------------------------------------------------------------------------
    \20\ See, e.g., U.S.-Jordan Extradition Treaty, signed at 
Washington March 28, 1995, entered into force June 29, 1995, art. 
8(3)(c).
    \21\ Courts applying Title 18, United States Code, Section 3184 
have long required probable cause for international extradition. 
Restatement (Third) of the Foreign Relations Law of the United States 
Section 476, comment b.
---------------------------------------------------------------------------
    Paragraph 4 lists the information, in addition to the 
requirements of paragraph 2, 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. 22
---------------------------------------------------------------------------
    \22\ 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).
---------------------------------------------------------------------------

                 Article 10--Admissibility of Documents

    Article 10 governs the authentication procedures for 
documents prepared for use in extradition cases.
    The article states that in the case of a request from the 
United States, the documents must be received in evidence at 
extradition proceedings if they are accompanied by an apostille 
or authenticated by the signature and seal of office of either 
certain South African diplomatic or consular officers, or 
certain specified government authorities of the United States 
or other authorized persons. The provision is based on the 
provisions of South African extradition law. 23
---------------------------------------------------------------------------
    \23\ Section 9(3), Extradition Act 1962.
---------------------------------------------------------------------------
    The second paragraph states that when the request is from 
South Africa, the documents must be certified by the principal 
diplomatic or consular officer of the United States resident in 
South Africa, consistent with United States extradition law. 
24
---------------------------------------------------------------------------
    \24\ Title 18, United States Code, Section 3190.
---------------------------------------------------------------------------
    The third subparagraph of the article requires documents to 
be admitted into evidence if they are authenticated in any 
other manner acceptable by the laws in the Requested State. For 
example, there may be information in the Requested State itself 
which is relevant and probative to extradition, and the 
Requested State is free under subsection (c) to utilize that 
information if the information satisfies the ordinary rules of 
evidence in that state. This insures that evidence which is 
acceptable under the evidentiary rules of the Requested State 
may be used in extradition proceedings even if it is not 
authenticated pursuant to other provisions of the treaty. This 
paragraph also should insure that relevant evidence, which 
would normally satisfy the evidentiary rules of the requested 
country, is not excluded at the extradition hearing because of 
an inadvertent error or omission in the authentication process.

                        Article 11--Translation

    This article requires that any document that is not in 
English and is produced in relation to extradition proceedings 
under this Treaty shall be accompanied by a translation in 
English. South Africa has eleven official languages: English, 
Afrikaans, Zulu, Xhosa, Sotho, Venda, Tswana, Tsonga, Pedi, 
Shangan, and Ndebele. It was decided that it would be more 
convenient for both Parties if extradition documents were 
prepared in English in all cases.

                   Article 12--Additional Information

    This article 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 shall notify the Requesting State so that it 
may submit supplementary information; the Requested State may 
establish a reasonable length of time for such submission. 
Paragraph three then provides that nothing shall prevent the 
executive authority of the Requested State from presenting to a 
court of that State such supplemental material sought or 
obtained after its initial submission or after expiration of 
any time limit established by it. This article 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. 25
---------------------------------------------------------------------------
    \25\ See, e.g., U.S.-Costa Rica Extradition Treaty, signed at San 
Jose December 4, 1982, entered into force October 11, 1991, art. 10.
---------------------------------------------------------------------------

                     Article 13--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 South Africa. The provision also indicates that 
Interpol may be used to transmit such a request, and that the 
application may also be transmitted via post, telegraph, 
telefax, or any other means, such as email. Experience has 
shown that the ability to use such direct channels can be 
crucial in emergency situations.
    Paragraph 2 states the information which the Requesting 
State must provide in support of such a request.
    Paragraph 3 states that prompt attention shall be given to 
the provisional arrest application, and the Requesting State 
must be notified promptly of the outcome 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 released if the Requesting State 
does not file a fully documented request for extradition with 
the executive authority of the Requested State within sixty 
days of the date on which the person was arrested. The 
paragraph also specifies that receipt of the documents by the 
Embassy of the Requested State located in the Requesting State 
(i.e., for a U.S. request, receipt by the South African embassy 
in Washington, D.C.) shall constitute receipt by the executive 
authority. This is consistent with U.S. law on this issue.
    Paragraph 5 makes it clear that the person released under 
paragraph 4 may be taken into custody again and the extradition 
proceedings may commence when the formal request is presented.

                   Article 14--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 and, under paragraph 
5, under certain circumstances, may seek to agree on a new date 
for surrender. 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 apply for 
release if he has not been surrendered within two calendar 
months of having been found extraditable, 26 or of 
the conclusion of any litigation challenging that finding, 
27 whichever is later. The law in South Africa does 
not contain any specific time period within which a person must 
be removed after having been found extraditable.
---------------------------------------------------------------------------
    \26\ Title 18, United States Code, Section 3188.
    \27\ 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).
---------------------------------------------------------------------------

                    Article 15--Concurrent Requests

    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. 28
---------------------------------------------------------------------------
    \28\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990), 
aff'd, 932 F.2d 977 (11th Cir. 1991).
---------------------------------------------------------------------------

             Article 16--Seizure and Surrender of Property

    This article provides that to the extent permitted by its 
laws the requested state may seize and surrender all property--
articles, instruments, objects of value, documents, or other 
evidence--relating to the offense for which extradition is 
requested.
    The second paragraph of the article 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.
    The third paragraph enables the Requested State to 
temporarily surrender the property to the Requesting State with 
assurances that the property will be returned within a fixed 
period of time or as soon as practicable, where the property is 
liable to seizure or confiscation in the Requested State. It 
may also defer surrender if the property is needed in 
connection with pending criminal 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 the Requested State or any third parties may have 
to such property.

                     Article 17--Rule of Speciality

    This article covers the principle known as the rule of 
speciality (or ``specialty''), which is a standard aspect of 
United States and international extradition practice. Designed 
to insure that a fugitive surrendered for one offense is not 
tried for other crimes, the rule of specialty prevents a 
request for extradition from being used as a subterfuge to 
obtain custody of a person for trial or service of 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, paragraph 1 of 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 (1) 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 a lesser 
included offense; and (2) for offenses committed after the 
extradition; and (3) any other offenses for which the executive 
authority of the Requested State consents. 29 
Article 17(1)(b) permits the Requested State to require the 
documents described in Article 9 when it is asked for its 
consent to pursue additional charges.
---------------------------------------------------------------------------
    \29\ 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 removes the restrictions imposed by paragraph 1 
if (1) the person leaves and voluntarily returns to the 
Requesting State, or (2) the person does not leave the 
Requesting State within fifteen days of being free to do so.

  Article 18--Surrender to a Third State or an International Tribunal

    This article provides that a person extradited to either 
State cannot be surrendered to a third state or an 
international tribunal for a crime committed prior to surrender 
under this Treaty unless (a) the Requested State consents to 
that surrender or (b) the person has had an opportunity to 
leave the territory of the Requesting State and has not done so 
within fifteen days of final discharge in respect of the 
offense for which extradited, or has returned to the territory 
of the Requesting State after leaving it. The reference to 
international tribunals in this article records the fact that, 
consistent with the rule of specialty under international law, 
the prior consent of the United States would be required if 
South Africa were to seek to extradite to the International 
Criminal Court agreed to in Rome on July 17, 1998, or to any 
other international tribunal, a fugitive who had been 
previously extradited from the United States to South Africa 
under this Treaty.
    Paragraph 2 provides that the Requested State may request 
relevant information before acceding to a request for consent.

                   Article 19--Waiver of Extradition

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings 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 surrendered to the Requesting State without further 
proceedings. The Parties anticipate that in such cases 
therewould be no need for the formal documents described in 
Article 9 or further judicial proceedings of any kind.
    If the person sought returns to the Requesting State before 
the Secretary of State signs a surrender warrant, the United 
States would not view the waiver of proceedings under this 
article as an ``extradition,'' and U.S. practice has long been 
that the rule of specialty does not apply when a fugitive 
waives extradition and voluntarily returns to the Requested 
State.

                          Article 20--Transit

    Paragraph 1 gives each State the discretion to authorize 
transit through its territory of persons being surrendered to 
the other State by third countries.
    Paragraph 2 specifies that the transit request is to be 
transmitted either through the diplomatic channel, or directly 
between the Departments of Justice in the United States and 
South Africa, or, in cases of urgency, via Interpol channels.
    Paragraph 3 provides that requests for transit are to 
contain a description of the person whose transit is proposed, 
including information concerning nationality, and a brief 
statement of the facts of the case with respect to which he is 
being surrendered to the Requesting State. Paragraph 4 makes 
clear that permission to effect transit shall include 
permission for the person to be held in custody during the 
transit, subject to the law of the Requested State. If 
transportation is not continued in a reasonable time, the 
executive authority of the transit State may order the person's 
release.
    Paragraph 5 states that no advance authorization is 
required if the person in custody is being transported by air 
by one State to a third country and no landing is scheduled in 
the territory of the other State. Should an unscheduled landing 
occur, a request for transit may be required at that time. The 
Treaty provides that the person may be kept in custody for up 
to 96 hours until a request for transit is received, and 
thereafter until it is executed.

                Article 21--Representation and Expenses

    The first paragraph of this article provides that the 
United States will make all necessary arrangements and meet the 
cost of any proceedings, and will represent South Africa in 
connection with a request from South Africa for extradition 
before the courts in this country. South Africa undertakes the 
same obligations including representation of the United States 
in connection with United States extradition requests to South 
Africa. 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 Requested State will bear the 
expenses of extradition incurred in its jurisdiction until the 
fugitive is surrendered.
    Paragraph 3 states that the costs of the translation of 
documents and the costs of conveying the person from the 
territory of the Requested State are to be paid by the 
Requesting State.
    Paragraph 4 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 includes any 
claim by or on behalf of the fugitive for damages, 
reimbursement, or legal fees, or other expenses occasioned by 
the execution of the extradition request.

                        Article 22--Consultation

    Article 22 of the treaty provides that the Departments of 
Justice in the United States and South Africa 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 23--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, on, or after the date upon which the Treaty entered 
into force. The article specifies that nothing in this Treaty 
shall be deemed to require or authorize any action by the 
Requested State that is contrary to the constitution of that 
State.

      Article 24--Ratification, Entry Into Force, and Termination

    This article contains standard treaty language providing 
that it is subject to ratification and calling for the exchange 
of instruments of ratification as soon as possible. The Treaty 
is to enter into force immediately upon such exchange and may 
be terminated with six months written notice by either State. 
Upon entry into force, the 1947 Treaty will cease to have any 
effect. Paragraph 3 provides, however, that the prior Treaty 
shall apply to any extradition proceedings in which the 
extradition documents have already been submitted to the 
courts, except that waiver of extradition under Article 19 
shall be available and Articles 17 and 18 concerning the rule 
of specialty and surrender to a third State or international 
tribunal shall also apply.
                                ------                                


Technical Analysis of the Extradition Treaty Between the United States 
     of America and the Democratic Socialist Republic of Sri Lanka

    On September 30, 1999, the United States signed an 
Extradition Treaty Between the Government of the United States 
of America and the Government of the Democratic Socialist 
Republic of Sri Lanka (the ``Treaty''). In recent years, the 
United States has signed similar treaties with many other 
countries as part of an ongoing effort to modernize our law 
enforcement relations. The Treaty is intended to replace the 
current extradition treaty in force with respect to the two 
countries. That treaty, the Treaty for the Mutual Extradition 
of Criminals between the United States of America and Great 
Britain, signed at London December 22, 1931 (``the 1931 
Treaty'') became applicable to Sri Lanka by virtue of Article 6 
of the External Affairs Agreement between the United Kingdom 
and Ceylon, signed at Colombo on November 11, 1947.\1\
---------------------------------------------------------------------------
    \1\ Extradition Treaty between the United States and the United 
Kingdom, signed at London December 22, 1931; entered into force June 
24, 1935, 47 Stat. 2122, T.S. 849, 12 Bevans 482, 163 L.N.T.S. 59 (the 
``1931 Treaty'')(applicable to Sri Lanka in accordance with Article 6 
of the External Affairs Agreement between the United Kingdom and 
Ceylon, signed at Colombo November 11, 1947, T.I.F. 9433).
---------------------------------------------------------------------------
    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. 
Sri Lanka has extradition legislation that will apply to U.S. 
requests under the Treaty.\2\
---------------------------------------------------------------------------
    \2\ See, Extradition Law, No. 8 of1977 of The National State 
Assembly, 1977 (hereinafter the ``Sri Lanka Extradition Act'').
---------------------------------------------------------------------------
    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 
history. 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

    This article formally obligates both parties to the Treaty 
to extradite to each other persons sought by the authorities in 
the Requesting State for trial or punishment for an 
extraditable offense. The phrase ``sought by the authorities . 
. . for an extraditable offense'' is used rather than ``charged 
with an extraditable offense'' to provide for the submission 
and consideration of extradition requests for persons wanted 
for prosecution but not yet formally charged. In Sri Lanka a 
warrant is issued for an accused person, but formal judicial 
charges are not filed until the defendant is in custody and 
brought before a judge.\3\
---------------------------------------------------------------------------
    \3\ U.S. law allows extradition without judicial charges pending in 
the foreign country. In Re Assarsson, 635 F. 2d 1237 (7th Cir. 1980).
---------------------------------------------------------------------------
    Article 1 refers to persons sought by authorities ``in'' 
the Requesting State rather than ``of'' the Requesting State, 
thereby obligating Sri Lanka to extradite fugitives sought by 
authorities of the United States or any political subdivision 
thereof.

                    Article 2--Extraditable Offenses

    Article 2 defines an extraditable offense. The article 
permits extradition for any offense punishable under the laws 
of both Contracting States by deprivation of liberty for a 
period of more than one year or by a more severe penalty. 
Termed ``dual criminality,'' this method of defining 
extraditable offenses was used in lieu of listing each 
extraditable offense as in the 1931 treaty. Dual criminality 
eliminates the need to renegotiate or supplement the Treaty if 
both Contracting States pass laws creating a new type of 
criminal offense, or if the list inadvertently fails to include 
a criminal activity punishable by both Contracting States. Sri 
Lanka and the United States determine whether a crime is 
punishable under the laws of both contracting states by 
assessing the fugitive's underlying acts, not by comparing the 
elements of crimes. During the negotiations, both sides 
discussed certain crimes such as narcotics trafficking, 
terrorism, degradation of the environment, money laundering, 
racketeering, anti-trust, export control violations, tax 
violations, child molestation, securities law violations, and 
parental kidnapping and concluded that such crimes were 
offenses in both countries.
    Paragraph 2 of Article 2 provides that extradition shall 
also be granted for an attempt or a conspiracy to commit, 
aiding or abetting, counseling or procuring the commission of, 
or being an accessory before or after the fact to, any 
extraditable offense. This is significant because conspiracy 
charges are frequently used in U.S. criminal prosecutions 
involving complex transnational criminal activity. This creates 
an exception to the dual criminality rule of paragraph 1 since 
any offense included in Article 2 Paragraph 2 is extraditable, 
even if found only within the laws of the Requesting State, so 
long as the underlying offense satisfies the requirements of 
paragraph 1.
    Paragraph 3 reflects the intention of the Contracting 
States to interpret the principles of this article broadly. 
Similar provisions are contained in all recent U.S. extradition 
treaties.
    Paragraph 3(a) requires a Requested State to disregard 
differences in the categorization of, or terminology used to 
describe the offense when determining whether dual criminality 
exists. In determining whether an offense is extraditable, the 
focus is on the acts constituting the offense rather than a 
comparison of the U.S. and Sri Lanka criminal code provisions 
defining the offenses.
    Paragraph 3(b) is included to make clear that elements such 
as the use of the mails or interstate transportation are merely 
jurisdictional and provide no basis for denying extradition. 
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 
determining dual criminality. For example, Sri Lankan 
authorities must treat United States federal 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.
    Paragraph 4 recognizes that extraditable crimes can involve 
acts committed wholly outside the territory of the Requesting 
State. United States jurisprudence recognizes jurisdiction to 
prosecute certain 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\ This paragraph reflects the fact that the 
Requested State shall not inquire into the extraterritorial 
jurisdictional basis of the Requesting State's prosecution. If 
the dual criminality and other requirements of the Treaty are 
satisfied, extradition shall be granted regardless of where the 
act or acts constituting the offense occurred.
---------------------------------------------------------------------------
    \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). Some U.S. criminal laws specifically provide for jurisdiction 
over crimes committed abroad.
---------------------------------------------------------------------------
    Paragraph 5 provides that if extradition for one offense 
has been granted, extradition shall also be granted for any 
other offense punishable by less than one year's deprivation of 
liberty, so long as the lesser offenses meet all other 
requirements for extradition. For example, if Sri Lanka agrees 
to extradite to the United States a fugitive wanted for 
prosecution of a felony, Sri Lanka must also grant extradition 
for any misdemeanor offenses for which the fugitive is sought, 
so long as those misdemeanors would also be recognized as 
criminal offenses in Sri Lanka and are included in the request. 
This practice is generally desirable to both the fugitive and 
the prosecuting party as it permits all charges against the 
fugitive to be adjudicated more quickly, thereby facilitating 
trials while evidence is still fresh and permitting the 
possibility of concurrent sentences. Similar provisions are 
found in other recent extradition treaties.\5\
---------------------------------------------------------------------------
    \5\ See, e.g., U.S.-Barbados Extradition Treaty, signed at 
Bridgetown, February 28, 1996, entered into force March 3, 2000, art. 
2(5).
---------------------------------------------------------------------------

                         Article 3--Nationality

    Authorities in some countries, because of statutory or 
constitutional prohibitions or as a matter of policy, do not 
extradite nationals to another country. Neither the United 
States \6\ nor Sri Lanka \7\ denies extradition on the basis of 
the fugitive's nationality. Therefore, in Article 3 the 
Contracting States agree not to refuse extradition because the 
person sought is a national of the Requested State.
---------------------------------------------------------------------------
    \6\ See, generally Shearer, Extradition in International Law 110-14 
(1970); 6 Whiteman, Digest of International Law 871-76 (1968). U.S. 
policy of drawing no distinction between nationals of the United States 
and those of other countries in extradition matters is underscored by 
Title 18, United States Code, Section 3196, which authorizes the 
Secretary of State to extradite U.S. citizens even pursuant to treaties 
that permit (but do not require) surrender of citizens, if other 
requirements of the Treaty have been met.
    \7\ See, Sri Lanka Extradition Act Sec.  I(7).
---------------------------------------------------------------------------

               Article 4--Political and Military Offenses

    Paragraph 1 of this article prohibits extradition for a 
political offense. This is a standard provision in U.S. 
extradition treaties and is incorporated in the Sri Lanka 
Extradition Act.\8\
---------------------------------------------------------------------------
    \8\ See, Sri Lanka Extradition Act Sec.  7(a).
---------------------------------------------------------------------------
    Paragraph 2 designates specific offenses which, for the 
purposes of the Treaty, shall not be considered political 
offenses. Under subparagraph 2(a) murder or other violent crime 
against the person of a Head of State or Government of a 
Contracting State, or a member of the family of such Head of 
State or Government is not to be considered a political 
offense.
    The next five subparagraphs exclude offenses from the 
political offense exception that are the subject of 
multilateral treaties, conventions, or international treaties 
to which both Contracting States are parties and which obligate 
them to extradite the person sought or submit the matter for 
prosecution. Paragraphs 2(b) through 2(e) list specific 
offenses in this category including: aircraft hijacking; \9\ 
aviation sabotage; \10\ any crime against an internationally 
protected person; \11\ and violence at airports,\12\ and 
paragraph 2(f) covers any other such offense.
---------------------------------------------------------------------------
    \9\ Convention on the Suppression of Unlawful Seizures of Aircraft, 
Dec. 16, 1970 22 U.S.T 1641., T.I.A.S. 7192.
    \10\ Convention for the Suppression of Unlawful Acts Against the 
Safety of Civil Aviation Sept. 23, 1971, 24 U.S.T. 564, T.I.A.S. 7570.
    \11\ Convention on the Prevention and Punishment of Crimes against 
Internationally Protected Persons Dec. 14, 1973, 28 U.S.T. 1975, 
T.I.A.S. No. 8532, 1035 U.N.T.S. 167.
    \12\  Protocol for the Suppression of Unlawful Acts of Violence at 
Airports Serving International Civil Aviation, supplementary to the 
Convention for the Suppression of Unlawful Acts Against the Safety of 
Civil Aviation, Dec. 17, 1979, T.I.A.S. No. 11081.
---------------------------------------------------------------------------
    Finally, under 2(g), a conspiracy or attempt to commit any 
of the foregoing offenses, or aiding or abetting a person who 
commits or attempts to commit such offenses is not considered a 
political offense.
    Paragraph 3 of this article provides for denial of 
extradition when the executive authority of the Requested State 
determines that the request is politically motivated, 
notwithstanding the exceptions in paragraph 2.\13\ In Sri 
Lanka, a finding that a request was politically motivated may 
come from either a minister in the executive branch or the 
courts. Whether such a finding comes from the courts or the 
executive, the executive authorities are responsible for the 
implementation and administration of that decision. Due to this 
responsibility, the Sri Lankan delegation assured us that a 
decision of the courts would still be considered to be 
``determined by the executive authority.'' Under longstanding 
law and practice of the United States, the Secretary of State 
alone has the discretion to determine whether an extradition 
request is based on improper political motivation.\14\
---------------------------------------------------------------------------
    \13\ There are similar provisions in many U.S. extradition 
treaties. See, e.g., U.S.-India Extradition Treaty, signed at 
Washington June 25, 1997, entered into force July 21, 1999, art. 5(2).
    \14\ See, Eain v. Wilkes, 641 F. 2d 504, 513 (7th Cir.), cert. 
denied, 454 U.S. 894 (1981); Koskotos v. Roche, 931 F. 2d 169, 174. 
See, also, Title 18, United States Code, Section 3186.
---------------------------------------------------------------------------
    Paragraph 4 of this article permits refusal of an 
extradition request for acts which constitute an offense under 
military law, but not ordinary criminal law.\15\
---------------------------------------------------------------------------
    \15\ An example of such an offense is desertion. Matter of 
Extradition of Suarez-Mason, 694 F. Supp. 676, 702-03 (N.D. Cal. 1988).
---------------------------------------------------------------------------

                      Article 5--Prior Prosecution

    Paragraph 1 prohibits extradition if the person sought has 
been convicted or acquitted in the Requested State for the 
offense for which extradition is requested.\16\ This provision 
serves to prevent extradition only when the person sought has 
been convicted or acquitted in the Requested State for the same 
crime that is charged in the Requesting State. The term 
``offense'' in this provision means the crime and does not mean 
the act for which the extradition is requested. A single set of 
facts may result in different offenses in different 
jurisdictions, and a prosecution for one such offense should 
not bar extradition for another. For instance, 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 either one of the States would not 
insulate the person from extradition to the other, since 
different crimes are involved. Further, this provision does not 
permit a state to refuse extradition because the fugitive has 
been convicted or acquitted in a third state.
---------------------------------------------------------------------------
    \16\ Language used in this article is similar to that used in many 
recent U.S. extradition Treaties. See, e.g., U.S.-India Extradition 
Treaty, signed at Washington June 25, 1997, entered into force July 21, 
1999, art. 6.
---------------------------------------------------------------------------
    Paragraph 2 makes it clear that neither Contracting State 
can refuse to extradite on the grounds that the Requested 
State's authorities declined to prosecute or pardoned the 
offender, or instituted criminal proceedings against the 
offender and thereafter elected to discontinue the proceedings. 
For example the Requested State may have decided to forego 
prosecution, or to dismiss charges, because of a failure to 
obtain sufficient evidence for trial, whereas substantial 
evidence may be available in the Requesting State.\17\ This 
provision should enhance the ability of the Contracting States 
to extradite to the jurisdiction with the better chance of a 
successful prosecution.
---------------------------------------------------------------------------
    \17\ See, Sri Lanka Extradition Act Sec.  7(2).
---------------------------------------------------------------------------

                        Article 6--Lapse of Time

    Article 6 provides that the decision by the Requested State 
whether to grant the request for extradition shall be made 
without regard to statutes of limitations of either state.\18\ 
The 1931 Treaty contains a bar to extradition when prosecution 
has become barred by lapse of time according to the law of 
either State. However, the preferred modern approach is not to 
bar extradition on this basis. The parties agreed to leave 
resolution of such issues to the courts of the Requesting 
State. This approach is contained in many modern U.S. 
extradition treaties.\19\
---------------------------------------------------------------------------
    \18\ This is consistent with settled law in the United States, 
which holds that lapse of time is not a defense to extradition 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).
    \19\ See, e.g., U.S.-Barbados Extradition Treaty, signed at 
Bridgetown February 28, 1996, entered into force March 3, 2000, art. 8.
---------------------------------------------------------------------------

                     Article 7--Capital Punishment

    Paragraph 1 permits the Requested State to refuse to 
extradite a fugitive 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, 
unless (a) the extraditable offense constitutes murder under 
the laws of the Requested State; or (b) the Requesting State 
provides assurances, which the Requested State considers 
sufficient, that the death penalty will not be imposed or, if 
imposed, will not be carried out.\20\
---------------------------------------------------------------------------
    \20\ Similar provisions are found in many recent U.S. extradition 
treaties. See, e.g., U.S.-India Extradition Treaty, signed at 
Washington June 25, 1997, entered into force July 21, 1999, art. 8.
---------------------------------------------------------------------------
    Paragraph 2 provides that when the Requesting State gives 
acceptable assurances in accordance with Paragraph 1(b) of this 
Article, those assurances shall be honored and the death 
penalty, if imposed, shall not be carried out.

        Article 8--Extradition Procedures and Required Documents

    This article sets forth the procedural, documentary and 
evidentiary requirements to support an extradition request.\21\
---------------------------------------------------------------------------
    \21\  A similar article appears in most recent U.S. extradition 
treaties.
---------------------------------------------------------------------------
    Paragraph 1 requires that each formal request for 
extradition be submitted through the diplomatic channel. A 
formal extradition request may be preceded by a request for 
provisional arrest under Article 11, which, in exceptional 
cases of unusual urgency, need not be initiated through 
diplomatic channels.
    Paragraph 2 details the information which must accompany a 
request for extradition. Some requirements delineated in 
Article 8(2) enable a Requested State to more easily ascertain 
the proper identity and whereabouts of a fugitive. Other 
requirements facilitate the assessment of whether extradition 
is appropriate. For example, Article 8(2)(c) requires ``a 
statement of the laws describing the essential elements of the 
offense for which extradition is requested'' and 8(2)(d) 
requires a statement of the provisions of the law prescribing 
punishment for offense. Such information should enable the 
Requested State to determine whether the dual criminality 
requirement under Article 2 has been met.
    Paragraph 3 describes the additional information needed 
when the person is sought for prosecution. Such requests must 
be supported by a copy of the warrant or arrest order and a 
copy of the charging document, if those documents exist. In 
addition, the Requesting State must provide sufficient 
information to support ``a reasonable basis to believe that the 
person to be extradited committed the offense for which 
extradition is requested and is the person named in the warrant 
of arrest.'' This evidentiary requirement is consistent with 
fundamental U.S. extradition jurisprudence, which mandates 
sufficient evidence to establish probable cause before finding 
a fugitive extraditable.\22\ The delegations agreed that the 
language ``a reasonable basis to believe. . .'' in Article 
8(3)(c) should not be interpreted to require a higher burden of 
proof for extradition than the probable cause standard. The 
Requested State need not provide proof sufficient to convict 
the offender, a much higher standard, in order to find him/her 
extraditable.
---------------------------------------------------------------------------
    \22\ Courts applying Title 18, United States Code, Section 3184 
have long required probable cause for international extradition. 
Restatement (Third) of the Foreign Relations Law of the United States 
Sec.  476, comment b (1987).
---------------------------------------------------------------------------
    Paragraph 4 contains the requirements for documents and 
information which must accompany a request to extradite a 
person who has been found guilty of the offense for which 
extradition is sought. This paragraph makes clear that once a 
person has been found guilty, no showing of the relevant burden 
of proof as described in paragraph 3 is required. In essence, a 
finding of guilt speaks for itself, a position taken in U.S. 
court decisions even absent a specific treaty provision.\23\
---------------------------------------------------------------------------
    \23\ See, e.g., Spatola v. United States, 741 F. Supp. 362, 374 
(E.D.N.Y. 1990), aff'd, 925 F.2d 615 (2d Cir. 1991); United States v. 
Clark, 470 F. Supp. 976 (D. Vt. 1979).
---------------------------------------------------------------------------
    Subsection (d) of paragraph 4 states that if the person 
sought was found guilty in absentia, the documentation and 
information required under paragraph 3 must be submitted with 
the extradition request. In other words, information sufficient 
for a showing of probable cause must accompany a request for 
extradition of a person found guilty in absentia.

                 Article 9--Admissibility of Documents

    Article 9 sets forth the authentication conditions for 
receiving and admitting extradition documents into evidence.
    Subparagraph (a) states that evidence intended for use in 
extradition proceedings in Sri Lanka shall be admissible if 
they are signed or certified by a judge, magistrate, or an 
official of the United States, and sealed with the official 
seal of a competent authority of the United States. This 
language was crafted to meet the requirements of Sri Lankan law 
on the authentication of documents to be used as evidence in 
extradition proceedings (Section 14 (2) of the Sri Lankan 
Extradition Act). The standard Department of Justice 
certification and sealing of extradition documents already 
meets the requirements of the subparagraph in general, and 
should ensure the admissibility of U.S. extradition documents 
in Sri Lankan extradition proceedings. In addition, however, 
Sri Lanka recommended that individual affidavits contained in 
our extradition packages be sworn before a judge or magistrate 
in the United States rather than a notary public.\24\
---------------------------------------------------------------------------
    \24\ See, Sri Lanka Extradition Act Sec.  14(2).
---------------------------------------------------------------------------
    Subparagraph (b) states that evidence intended for use in 
extradition proceedings in the United States shall be 
admissible if certified by the principal diplomatic or consular 
officer of the United States resident in Sri Lanka, consistent 
with U.S. extradition law.\25\
---------------------------------------------------------------------------
    \25\ See, Title 18, United States Code, Section 3190.
---------------------------------------------------------------------------
    Subparagraph (c) provides an alternative method for 
authenticating evidence in an extradition proceeding, by 
permitting such evidence to be admitted if it is authenticated 
in any manner acceptable by the law of the Requested State. For 
example, there may be information in the Requested State itself 
which is relevant and probative to extradition. The Requested 
State would be free under subparagraph (c) to utilize that 
information if it is admissible under the ordinary rules of 
evidence in the Requested State. Moreover, subparagraph (c) 
should insure that relevant evidence, which would normally 
satisfy the evidentiary rules of the Requested State, is not 
excluded at the extradition hearing because of an inadvertent 
error or omission in the authentication process.

                          Article 10--Language

    All documents submitted by the Requesting State in support 
of an extradition request shall be in the English language. 
While there are three recognized languages in Sri Lanka 
(Singhalese, Tamil and English), the Sri Lankan delegation 
agreed that it would submit only documents prepared or 
translated into English to the United States and that 
extradition documents submitted by the United States in English 
would be acceptable, and if translation into one of the other 
Sri Lankan languages is required, it would be done by Sri 
Lankan authorities at their expense.

                     Article 11--Provisional Arrest

    This article describes the process, known as provisional 
arrest, by which a fugitive in one country may be arrested and 
detained before the formal extradition request supported by the 
full set of documents is completed and submitted by the 
Requesting State.
    Paragraph 1 provides that a request for provisional arrest 
may be made through the diplomatic channel but that in 
exceptional cases of unusual urgency requests may also be 
transmitted directly between the U.S. Justice Department and 
the Sri Lankan Ministry of Justice and that INTERPOL facilities 
may also be used to transmit such requests. Provisional arrest 
requests transmitted other than through the diplomatic channel 
will normally be confirmed by a diplomatic note.
    Paragraph 2 lists the information that the Requesting State 
must provide in its request for provisional arrest. Supporting 
documentation is not required.
    Paragraph 3 states that the Requesting State must be 
advised promptly of the outcome of its application and the 
reason for any denial.
    Paragraph 4 provides that the fugitive may be discharged 
from custody if the executive authority of the Requested State 
does not receive a fully documented extradition request within 
sixty days of the provisional arrest. When the United States is 
the Requested State, the ``executive authority'' for the 
purposes of paragraph 4 would include the Secretary of State or 
the U.S. Embassy in Sri Lanka.\26\
---------------------------------------------------------------------------
    \26\ See, United States v. Wiebe, 733 F.2d 549 (8th Cir. 1984); 
United States v. Clark, 470 F. Supp. 976 (D. Vt. 1979). The Sri Lankan 
Extradition Act provides for holding persons in custody for a 
``reasonable time.'' The Sri Lankan delegation informed the U.S. 
delegation that, in the case of a challenge by a provisionally arrested 
person, Sri Lankan authorities should have no difficulty convincing a 
Sri Lankan court that a period of incarceration of 60 days prior to the 
submission of the formal extradition request is a ``reasonable time.'' 
Moreover, the Sri Lankan delegation pointed out that Section 3 of the 
Extradition Act permits modifications necessary to implement 
extradition treaties so long as the treaties create no direct conflict 
with the Act '' thus the 60 day period in the Treaty would constitute a 
permissible modification of the ``reasonable time'' provision in the 
Act.
---------------------------------------------------------------------------
    Although the person arrested according to this article may 
be released from custody if a fully documented extradition 
request is not received within sixty days, Paragraph 5 
establishes that the fugitive may be rearrested and the 
extradition proceedings continued when the formal, documented 
request is presented at a later date.

                   Article 12--Decision and Surrender

    This article requires the Requested State to promptly 
notify the Requesting State through the diplomatic channel of 
its decision regarding the extradition request. If extradition 
is denied in whole or in part, the Requested State must provide 
the reasons for the denial. The Requested State shall also 
provide any pertinent judicial opinions if the Requesting State 
so requests. If the extradition request is granted, the article 
requires that the Contracting States agree on a time and place 
for the surrender of the fugitive.
    Pursuant to Paragraph 4, if the fugitive is not removed 
from the territory of the Requested State within the time 
prescribed by the law of the Requested State, the person may be 
discharged from custody and the Requested State may 
subsequently refuse to extradite for the same offense. U.S. law 
provides the possibility of discharge from custody of persons 
who are not surrendered within two calendar months of the 
finding of extraditability,\27\ or of the conclusion of any 
litigation challenging that finding,\28\ whichever is later. 
The Sri Lanka Extradition Act provides that extradition shall 
not occur ``until the expiration of a period of fifteen days 
commencing on the day on which the court order for his 
committal is made; and if an application for habeas corpus is 
made to the Supreme Court, so long as proceedings on that 
application are pending.'' \29\ In Sri Lanka, following a 
finding of extraditability by the Court, the government may 
issue a warrant ordering the fugitive to be extradited.\30\ In 
addition, in Sri Lanka a person may apply to the Supreme Court 
for his release upon the expiration of a two month period 
commencing at the conclusion of the fifteen day waiting period 
described above, or at the conclusion of a one month period 
commencing on the day on which a warrant for extradition was 
issued.\31\
---------------------------------------------------------------------------
    \27\ Title 18, United States Code, Section 3188 provides that, 
after two calendar months, any U.S. court, upon application may 
discharge from custody a person so committed, unless sufficient cause 
is shown why such discharge should not take place.
    \28\ 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); see, also, Barrett v. United States, 590 F. 2d 624 
(6th Cir. 1978).
    \29\ See, Sri Lanka Extradition Act Sec.  11(2).
    \30\ See, Sri Lanka Extradition Act Sec.  12 (1).
    \31\ See, Sri Lanka Extradition Act Sec.  13(1).
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              Article 13--Temporary and Deferred Surrender

    A person sought for extradition may be already facing 
prosecution or serving a sentence in the Requested State. 
Article 13 provides under appropriate circumstances for the 
temporary surrender of such persons. This article also provides 
a means for the Requested State to defer extradition in such 
circumstances until the conclusion of the proceedings against 
the person and the full execution of any punishment 
imposed.\32\
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    \32\ This is a discretionary provision exercisable by the Requested 
State only; it does not create any right which a fugitive may exercise.
---------------------------------------------------------------------------
    Paragraph 1 provides for the temporary surrender of a 
person ``for the purpose of prosecution'' in the Requesting 
State who is being prosecuted or is serving a sentence in the 
Requested State. ``The purpose of prosecution'' could include 
the temporary transfer of a person to stand trial or to enter a 
plea of guilty, or receive a sentence. A person temporarily 
transferred pursuant to the Treaty shall be kept in custody by 
the Requesting State and returned to the Requested State at the 
conclusion of the proceedings in the Requesting State. The 
Contracting States shall determine the conditions of the 
fugitive's return to the Requested State. Such temporary 
surrender furthers the interests of justice by allowing a trial 
of the person sought while evidence and witnesses are more 
likely to be available, thereby increasing the likelihood of a 
successful prosecution. Such a transfer may also be 
advantageous to the person sought in that it: (1) facilitates 
resolution of the charges; (2) permits the concurrent serving 
of sentences in the Requesting and Requested States; (3) allows 
for a defense while favorable evidence is fresh and more 
readily available. Current Sri Lankan law does not permit 
temporary surrenders. Consequently, the words, ``subject to its 
laws'' are included in the paragraph to provide for such 
surrender should Sri Lankan law be changed.
    Paragraph 2 provides that the Requested State may also 
postpone the extradition proceedings against a person who is 
being prosecuted or serving a sentence in the Requested State 
until the conclusion of the prosecution or the full execution 
of the punishment which has been imposed.\33\
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    \33\ Under United States law and practice, the Secretary of State 
makes this decision. Koskotas v. Roche, 740 F. Supp. 904 (D. Mass. 
1990), aff'd, 931 F.2d 169 (1st Cir. 1991). The United States may elect 
to extradite a fugitive prior to the completion of a sentence. U.S. v. 
Buekes, 888 F. Supp. 465 (EDNY 1995).
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      Article 14--Requests for Extradition Made by Several States

    Article 14 addresses the situation when requests are made 
by different countries for extradition of the same person. The 
article grants the executive authority of the Requested State 
the authority to determine which country will receive the 
fugitive. For the United States, the Secretary of State makes 
this decision.\34\ In Sri Lanka, such decisions are made by the 
Minister of Justice.\35\
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    \34\ Cheng Na-Yuet v. Hueston, 734 F. Supp. 988 (S.D. Fla. 1990) 
aff'd, 932 F.2d 977 (11th Cir. 1991).
    \35\ See, Sri Lanka Extradition Act Sec. Sec.  8(1) & 12(5).
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             Article 15--Seizure and Surrender of Property

    This article permits the seizure by the Requested State, 
and surrender to the Requesting State, of all property relating 
to the offense for which extradition is requested, to the 
extent permitted by the law of the Requested State.\36\ 
Examples of such property include, but are not limited to, 
articles, instruments, objects of value, and documents. Article 
15 also provides that these articles may be so surrendered even 
if extradition cannot be effected due to the death, 
disappearance, or escape of the fugitive.
---------------------------------------------------------------------------
    \36\ Similar provisions are found in all recent U.S. extradition 
treaties.
---------------------------------------------------------------------------
    Paragraph 2 states that the Requested State may condition 
its surrender of property upon satisfactory assurances that the 
property will be returned as soon as practicable, or may defer 
surrender if the property is needed as evidence in the 
Requested State.
    Pursuant to Paragraph 3, the rights of third parties in 
surrendered property shall be duly respected.

                     Article 16--Rule of Speciality

    Article 16 incorporates into the Treaty the principle known 
as the rule of speciality (or ``specialty''), which is a 
standard component of U.S. and international extradition 
practice. Designed to insure that a fugitive surrendered for 
one offense is not tried in the Requesting State for other 
crimes, the rule of specialty prevents an extradition request 
from being used as a subterfuge to obtain custody of a person 
for trial or service of sentence on different charges that may 
not be extraditable or properly documented at the time that the 
request is granted.\37\
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    \37\ See, Sri Lanka Extradition Act Sec.  17(2).
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    As a variety of exceptions to the rule have developed over 
time, this article codifies in the Treaty the internationally 
accepted formulation of the rule. Paragraph 1 provides that a 
person extradited under the Treaty may not be detained, tried 
or punished in the Requesting State except for (a) the offense 
for which extradition was granted, or a differently denominated 
offense based on the same facts, provided the offense is 
extraditable or is a lesser included offense; (b) an offense 
committed after the extradition; or (c) an offense for which 
the executive authority of the Requested State consents.\38\
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    \38\ In the United States the Secretary of State has the authority 
to consent to a waiver of the rule of specialty. See, Berenguer v. 
Vance, 473 F. Supp. 1195, 1199 (D.D.C. 1979). In Sri Lanka the Minister 
of Justice has the authority to consent to a waiver of the rule of 
specialty. Sri Lanka Extradition Act Sec.  7(3)(c).
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    Paragraph 1(c)(i) provides that before giving such consent, 
the Requested State may require the Requesting State to 
document its request as for a new extradition request under the 
Treaty. Paragraph 1(c)(ii) permits the Requesting State to 
detain the person for 90 days, or for a longer period 
authorized by the Requested State, while the Requested State 
makes its determination on the application.
    Paragraph 2 prohibits the Requesting State from 
surrendering the person to a third State or an international 
tribunal for a crime committed prior to his surrender without 
the consent of the Requested State.\39\
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    \39\ This language makes clear, for example, that, consistent with 
the rule of specialty under international law, prior consent of the 
United States would be required if Sri Lanka proposed to transfer a 
person, extradited from the United States, to the International 
Criminal Court agreed to in Rome on July 17, 1998.
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    Paragraph 3 provides that the restrictions of paragraphs 1 
and 2 shall not apply if the extradited person (1) leaves and 
returns to the Requesting State, or (2) does not leave the 
territory of the Requesting State within ten days of being free 
to do so, if the Requesting State is the United States, or 
within forty-five days of being free to do so, if the 
Requesting State is Sri Lanka. The longer period provided for 
departure from Sri Lanka prior to proceeding for additional 
offenses is the result of the forty-five day period set out in 
that country's domestic extradition law.\40\
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    \40\ See, Sri Lanka Extradition Act Sec. Sec.  12(2) & 17(3).
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                   Article 17--Waiver of Extradition

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings to expedite their return 
to the Requesting State. This article provides that when a 
fugitive consents to return to the Requesting State, subject to 
the laws of the Requested State,\41\ the person may be returned 
without further proceedings. In such cases there would be no 
need for any further formal documentation or judicial 
proceedings.
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    \41\ The Sri Lanka Extradition Act does not explicitly provide for 
such waivers, however, the Sri Lankan delegation expressed confidence 
that Sri Lankan law would permit fugitives wanted by U.S. authorities 
to consent to surrender, and that Sri Lankan authorities could keep 
such persons in custody and return them to the United States without 
the documents or proceedings required for a formal extradition. For 
fugitives in the United States who wish to waive extradition, the 
practice is to submit the waiver to the presiding judge who determines 
whether the fugitive is proceeding voluntarily.
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    If the person sought for extradition returns to the 
Requesting State before the signing of a surrender warrant or 
completion of the extradition process, the United States would 
not view the waiver of proceedings under this Article as an 
``extradition.'' U.S. practice has long been that the rule of 
specialty does not apply when a fugitive waives extradition and 
voluntarily returns to the Requesting State. The Sri Lankan 
delegation to the Treaty negotiation stated that the practice 
would be the same in Sri Lanka--the rule of specialty would not 
apply to fugitives who waive extradition and return voluntarily 
to the Requesting State.

                          Article 18--Transit

    Paragraph 1 gives each Contracting State the discretion to 
authorize transit through its territory of persons being 
surrendered to the other Contracting State by third States, and 
to hold such persons in custody during the period of 
transit.\42\ Requests for transit, which are to be made through 
the diplomatic channel or directly between the U.S. Department 
of Justice and the Sri Lankan Ministry of Justice, or may be 
transmitted via INTERPOL, must contain a description of the 
person whose transit is proposed and a brief statement of the 
facts of the case which occasioned his surrender to the 
Requesting State.
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    \42\ A similar provision is found in all recent U.S. extradition 
treaties.
---------------------------------------------------------------------------
    Under Paragraph 2 no authorization is needed if the person 
in custody is being moved by air and no landing is scheduled in 
the territory of the other Contracting State. Should an 
unscheduled landing occur, a request for transit may be 
required at that time. The Treaty ensures that the person will 
be kept in custody until a request for transit is received and 
the transit is effected, so long as the request is received 
within 96 hours of the unscheduled landing.

                Article 19--Representation and Expenses

    Paragraph 1 provides that in extradition proceedings under 
the Treaty, the Requested State shall advise, assist, appear in 
court and represent the interests of the Requesting State. 
Thus, Department of Justice attorneys will represent Sri Lanka 
in connection with its requests for extradition before U.S. 
courts, and the Attorney General of Sri Lanka will perform 
reciprocal services on behalf of the United States before Sri 
Lankan courts. Although under the Sri Lankan law their Attorney 
General technically appears as amicus curiae rather than in a 
formal representation role on behalf of the United States, the 
Sri Lankan delegation assured us that the Attorney General will 
provide full advocacy in support of our extradition requests at 
every stage in the Sri Lankan extradition proceedings.
    Paragraph 2 provides that the Requested State will bear all 
expenses of extradition except those expenses relating to the 
ultimate transportation of a fugitive to the Requesting State 
and the translation of documents, which are paid by the 
Requesting State.
    Paragraph 3 provides that neither Contracting State shall 
make a pecuniary claim against the other arising out of the 
arrest, detention, examination, or surrender of any fugitive. 
This includes any claim brought on behalf of the fugitive for 
damages, reimbursement or legal fees, or other expenses 
occasioned by the execution of the extradition request.

                        Article 20--Consultation

    This article provides that the Department of Justice and 
the Attorney General's Department of Sri Lanka may consult with 
each other regarding an individual extradition case or 
extradition procedures in general.

                        Article 21--Application

    This article makes the Treaty retroactive. Consequently, 
requests for extradition for offenses committed before entry 
into force can be made under the Treaty.\43\
---------------------------------------------------------------------------
    \43\ This provision is standard in modern United States Extradition 
Treaties. See, e.g., U.S.-Jordan Extradition Treaty, signed at 
Washington March 28, 1995, entered into force July 29, 1995, art. 21.
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             Article 22--Ratification and Entry into Force

    Article 22 contains standard treaty language providing for 
ratification and the exchange of instruments of ratification as 
soon as possible. The Treaty shall enter into force immediately 
upon this exchange.
    Paragraph 3 provides that when the Treaty enters into 
force, the 1931 Treaty will cease to have effect upon the 
Contracting States. However, if extradition documents have 
already been submitted to the courts of the Requested State at 
the time the Treaty enters into force, the 1931 Treaty will 
remain applicable to such proceedings, although Article 16 of 
this Treaty (addressing the Rule of Specialty) will apply.

                        Article 23--Termination

    This Article contains standard treaty language describing 
the procedure for termination of the Treaty after its entry 
into force. Either Contracting State may terminate the Treaty 
at any time by giving written notice to the other Contracting 
State. The termination shall become effective six months after 
the date of the notice.

             VIII. Text of the Resolutions of Ratification


Treaty with Belize:

    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 Belize, 
signed at Belize on March 30, 2000 (Treaty Doc. 106-38), 
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 of Extradition to the International 
        Criminal Court.--The United States understands that the 
        protections contained in Article 14 concerning the Rule 
        of Specialty would preclude the resurrender of any 
        person extradited to Belize from the United States to 
        the International Criminal Court contemplated in the 
        Statute adopted 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 Belize by the United States 
        to said International Criminal Court unless the Statute 
        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:
          Supremacy of the Constitution.--Nothing in this 
        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.

Treaty with Paraguay:

    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 the 
Republic of Paraguay, signed at Washington on November 9, 1998 
(Treaty Doc. 106-4), 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 of Extradition to the International 
        Criminal Court.--The United States understands that the 
        protections contained in Article XV concerning the Rule 
        of Specialty would preclude the resurrender of any 
        person extradited to the Republic of Paraguay from the 
        United States to the International Criminal Court 
        contemplated in the Statute adopted 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 Paraguay by the United States to said 
        International Criminal Court unless the Statute 
        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:
          Supremacy of the Constitution.--Nothing in this 
        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.

Treaty with South Africa:

    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 the 
Republic of South Africa, signed at Washington on September 16, 
1999 (Treaty Doc. 106-24), 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 of Extradition to the International 
        Criminal Court.--The United States understands that the 
        protections contained in Article 18 concerning the 
        surrender to a third State of an International Tribunal 
        would preclude the resurrender of any person extradited 
        to the Republic of South Africa from the United States 
        to the International Criminal Court contemplated in the 
        Statute adopted 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 South 
        Africa by the United States to said International 
        Criminal Court unless the Statute 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:
          Supremacy of the Constitution.--Nothing in this 
        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.

Treaty with Sri Lanka:

    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 the 
Democratic Socialist Republic of Sri Lanka, signed at 
Washington on September 30, 1999 (Treaty Doc. 106-34), 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 of Extradition to the International 
        Criminal Court.--The United States understands that the 
        protections contained in Article 16 concerning the Rule 
        of Specialty would preclude the resurrender of any 
        person extradited to the Democratic Socialist Republic 
        of Sri Lanka from the United States to the 
        International Criminal Court contemplated in the 
        Statute adopted 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 Democratic Socialist 
        Republic of Sri Lanka by the United States to said 
        International Criminal Court unless the Statute 
        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:
          Supremacy of the Constitution.--Nothing in this 
        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.

                                  
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