[Senate Executive Report 107-12]
[From the U.S. Government Publishing Office]



107th Congress                                               Exec. Rpt.
 2nd Session                SENATE                           107-12
======================================================================
 
                      EXTRADITION TREATY WITH PERU

                                _______
                                

                October 17, 2002.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                    [To accompany Treaty Doc. 107-6]

    The Committee on Foreign Relations, to which was referred 
the Extradition Treaty Between the United States of America and 
the Republic of Peru, signed at Lima on July 26, 2001 (Treaty 
Doc. 107-6), having considered the same, reports favorably 
thereon with one understanding and one condition 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 advice and consent to ratification.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................1
 II. Summary and Discussion of Key Provisions.........................1
III. Entry Into Force and Termination.................................3
 IV. Committee Action.................................................3
  V. Committee Comments...............................................3
 VI. Explanation of Extradition Treaty with Peru......................4
VII. Text of Resolution of Advice and Consent to Ratification........13

                               I. Purpose

    The purpose of the Extradition Treaty with Peru (hereafter 
``the Treaty'') is to impose mutual obligations to extradite 
fugitives at the request of a party subject to conditions set 
forth in the Treaty.

              II. Summary and Discussion of Key Provisions

    The United States is currently a party to over 100 
bilateral extradition treaties, including a treaty with Peru 
which was signed in 1899, and entered into force in 1901 (31 
Stat. 1921) (hereafter the ``1899 treaty'').
    The treaty before the Senate is designed to replace, and 
thereby modernize, the century-old extradition treaty with 
Peru. It was signed in July 2001 and submitted to the Senate on 
May 8, 2002.
    In general, the Treaty follows a form used in several other 
bilateral extradition treaties approved by the Senate in recent 
years. It contains two important features which are not in the 
1899 treaty.
    First, the Treaty contains a ``dual criminality'' clause 
which requires a party to extradite a fugitive whenever the 
offense is punishable under the laws of both parties by 
deprivation of liberty for a maximum period of more than one 
year. This provision replaces the list of offenses specifically 
identified in the 1899 treaty. This more flexible provision 
ensures that newly-enacted criminal offenses are covered by the 
Treaty, thereby obviating the need to amend it as offenses are 
criminalized by the Parties.
    Second, the Treaty provides for extradition of nationals. 
Specifically, Article III states that extradition ``shall not 
be refused on the ground that the person sought is a national 
of the Requested State.'' This contrasts with Article V of the 
1899 treaty, which does not obligate a party to extradite its 
nationals. Many countries of Latin America have, historically, 
refused to extradite nationals. The United States, by contrast, 
does extradite its nationals, and has long attempted to 
convince extradition partners to do likewise.
    The Treaty contains several other provisions worth noting.
    Consistent with U.S. policy and practice in recent years, 
the Treaty narrows the political offense exception. The 
political offense exception (an exception of long-standing in 
U.S. extradition practice) bars extradition of an individual 
for offenses of a ``political'' nature. The Treaty with Peru 
retains the political offense exception in Article IV(2), but 
provides that certain crimes shall not be considered political 
offenses, including murder or other crimes of violence against 
a Head of State (or his family) of either party, genocide, or 
offenses for which both parties have an obligation to extradite 
under a multilateral agreement, such as illicit drug 
trafficking or terrorism offenses.
    The Treaty contains a provision, in Article IV(5), allowing 
the executive authority of the Requested State to refuse 
extradition if the person sought would be tried or punished 
under ``extraordinary criminal laws or procedures in the 
Requesting State.'' This provision was included at the 
insistence of the United States, based on concerns at the time 
of the negotiations over inadequate due process in cases before 
Peru's special terrorism tribunals. Negotiators for the two 
parties understood that the language is paragraph 5 was 
specifically intended to refer to proceedings before these 
tribunals. According to testimony received from the State 
Department, these concerns have been ``assuaged considerably'' 
since the negotiations, due to the departure of former 
President Fujimori and subsequent reforms to the Peruvian legal 
system.
    Finally, the Treaty contains a provision related to the 
death penalty. Under Article V, when extradition is sought for 
an offense punishable by death in the Requesting State and is 
not punishable by death in the Requested State, the Requested 
State may refuse extradition unless the Requesting State 
provides an assurance that the person sought for extradition 
will not be executed. This provision is found in many U.S. 
extradition treaties, as many treaty partners do not impose the 
death penalty under their laws, and object to its application 
to fugitives whom they extradite to the United States.

                 III. Entry Into Force and Termination

    Under Article XIX, the Treaty enters into force upon the 
exchange of the instruments of ratification. Either party may 
terminate the treaty on written notice; termination will be 
effective six months after the date of such notice.

                          IV. Committee Action

    The Committee reviewed the Treaty at a public hearing on 
September 19, 2002, receiving testimony from representatives of 
the Departments of State and Justice (S. Hrg. 107-721). The 
Committee considered the Treaty on October 8, 2002, and ordered 
it favorably reported by voice vote, with the recommendation 
that the Senate give its advice and consent to the ratification 
of the Treaty subject to the understanding and the condition 
set forth in the resolution of advice and consent to 
ratification.

                         V. Committee Comments

    The Committee recommends favorably the Treaty with Peru. It 
modernizes a treaty that is over a century old, and provides a 
more flexible ``dual criminality'' provision which will 
incorporate a broader range of criminal offenses than is 
covered under the current treaty with Peru.
    According to the State Department's most recent human 
rights report, ``confidence among the Peruvian public in the 
judiciary is low,'' and that although the Constitution of Peru 
provides for an independent judiciary, in practice the 
judiciary ``has been subject to interference from the 
executive'' and is also subject to corruption. The State 
Department has testified that since the downfall of the 
Fujimori government in November 2000, Peru has taken steps to 
correct deficiencies in its judicial system, including by 
increasing salaries for judges and abolishing an executive 
committee which former President Fujimori used to influence the 
judiciary. The State Department testimony noted that under U.S. 
extradition law and practice, once a fugitive is found 
extraditable by a U.S. court, the Secretary of State makes the 
final decision on extradition. As part of that review, the 
Secretary ``takes into account any information available that 
may affect the defendant's ability to receive a fair trial.'' 
The Committee expects that, until judicial reforms have been 
solidified in Peru, the Secretary will give close scrutiny to 
all extradition cases to ensure that the defendant is likely to 
receive adequate due process protections.
    Following negotiation of the Rome Statute on the 
International Criminal Court in 1998, the Committee 
recommended, in the consideration of extradition treaties, that 
the Senate include in its resolutions of advice and consent an 
understanding stating that the Rule of Speciality would bar the 
retransfer of a fugitive to the International Criminal Court 
without the consent of the United States. This understanding 
also provides that the United States would not provide such 
consent unless it becomes a party to the Court under Article II 
of the U.S. Constitution. The Rome Statute has now entered into 
force. The Committee again recommends inclusion of such an 
understanding. The Committee notes, in this regard, that 
earlier this year Congress enacted legislation barring U.S. 
cooperation with the Court, including extradition (Title II of 
the Supplemental Appropriations Act for Fiscal Year 2002, P.L. 
107-206).
    Finally, the Committee notes that the State Department 
expects that parental child abduction will be an extraditable 
offense under the Treaty. The Committee strongly urges the 
Departments of Justice and State to seek extradition in such 
cases with Peru.

            VI. Explanation of Extradition Treaty with Peru

    What follows is a technical analysis of the Treaty prepared 
by the Departments of State and Justice.

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

    On July 26, 2001, the United States signed a new 
Extradition Treaty Between the Government of the United States 
of America and the Government of the Republic of Peru to 
replace a century-old treaty currently in force between them. 
\1\ The new Treaty will be implemented in both the United 
States and Peru under the procedural framework of existing 
domestic extradition laws \2\ without the need for any new 
implementing legislation.
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    \1\ Signed at Lima November 28, 1899; entered into force February 
22, 1901; 31 Stat. 1921; TS 288; 10 Bevans 1074.
    \2\ For the United States, this is Title 18, United States Code, 
Section 3184 et seq. For Peru, this is the Law of Extradition (Ley de 
Extradicion, Ley No. 24710 (1987)).
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    The Office of International Affairs, Criminal Division, 
United States Department of Justice, and the Office of the 
Legal Adviser, United States Department of State, prepared the 
following technical analysis of the new Treaty based on their 
participation in its negotiation.

                   Article I--Obligation to Extradite

    Article I of the Treaty contains a standard provision 
obligating the United States and Peru to extradite to each 
other persons whom the authorities in the Requesting State have 
charged with, found guilty of, or sentenced for an extraditable 
offense. By referring to persons wanted ``in'' the Requesting 
State, the obligation to extradite applies to fugitives from 
federal, state, or local justice. This article also makes clear 
that such obligation extends not only to persons charged with 
or sentenced for such offenses, but also to persons who have 
been found guilty but have fled prior to sentencing. Moreover, 
the negotiating delegations intended that ``charged'' persons 
include those who are sought for prosecution for an 
extraditable offense based on an outstanding warrant of arrest, 
regardless of whether such warrant was issued pursuant to an 
indictment, complaint, information, affidavit, or other lawful 
means for initiating an arrest for prosecution under the laws 
in Peru or the United States.

                   Article II--Extraditable Offenses

    This Article contains standard guidelines for determining 
which offenses are extraditable. As a general rule, it defines 
extraditable offenses as those for which the laws of both 
countries provide a maximum potential penalty of more than one 
year in prison. \3\ In addition to this broad definition, the 
Article makes clear that extradition shall be granted for 
conspiring or attempting to commit, or otherwise participating 
in, \4\ the commission of an extraditable offense. Moreover, in 
determining whether the crime would be punishable under its 
laws, the Requested State--looking only to the underlying 
criminal conduct for which extradition is sought--is required 
to disregard differences in the two countries' categorization 
of, or terminology used to describe, the offense, as well as 
certain federal jurisdictional elements, such as use of the 
mail or telephone, that are peculiar to United States federal 
law. Finally, this Article provides that, when extradition has 
been granted for an extraditable offense, it shall also be 
granted for other less serious offenses 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.
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    \3\ During the negotiations, the Peruvian delegation indicated 
that, under Peruvian law, key offenses such as drug trafficking 
(including CCE), money laundering, terrorism, and organized criminal 
activity (RICO), as well as certain tax, export, and environmental 
crimes, would meet the requirements of Article II(1) and thus be 
extraditable offenses.
    \4\ 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 18 U.S.C Sec. Sec. 2 and 3.
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    Paragraph 3(c) of this Article is particularly important in 
ensuring that transnational and extraterritorial crimes are 
extraditable. By providing that an offense will be extraditable 
regardless of where it was committed, this provision will allow 
the United States to obtain extradition for violations of U.S. 
law--including terrorist offenses--initiated or orchestrated 
from abroad, even if committed entirely outside the territory 
of the United States, and even if Peruvian law would not 
recognize jurisdiction over such offenses under the same 
circumstances.

                 Article III--Extradition of Nationals

    Article III provides that extradition shall not be refused 
on the ground that the person sought is a national of the 
Requested State. For many years, Peruvian law expressly 
prohibited the extradition of Peruvian nationals. \5\ When Peru 
updated its extradition law in 1987, this prohibition was 
omitted, but neither the 1987 law nor the 1899 U.S.-Peru 
extradition treaty provide any affirmative basis for the 
extradition of Peruvian nationals. \6\ This Article now 
provides such an affirmative obligation and will ensure the 
ability of the United States to extradite fugitives from Peru 
regardless of their nationality.
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    \5\ Article 3(1) of Extradition Law of October 23, 1888: 
``Extradition will not be granted in any case . . . [w]hen the 
individual whose extradition has been requested is a Peruvian citizen 
by birth or is a citizen naturalized before the act was committed which 
motivated the petition for extradition.''
    \6\ Article V of the 1899 treaty states that ``[n]either of the 
contracting parties shall be bound to deliver up its own citizens or 
subjects under the stipulations of this treaty.''
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              Article IV--Bases for Denial of Extradition

    This Article sets forth several bases under which the 
Requested State may deny extradition. For the most part, it 
contains standard treaty language that has been drawn as 
narrowly as possible in order to comport with the treaty's 
overarching goal of facilitating, rather than hindering, 
extradition in the vast majority of cases.
    Paragraph 1(a) contains standard ``double jeopardy'' or non 
bis in idem language prohibiting extradition if the person 
sought has been convicted or acquitted in the Requested State 
for the same offense for which extradition is requested. \7\ 
This provision 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. In 
addition, this provision makes clear that extradition will not 
be precluded by the fact that the Requested State's authorities 
have declined to prosecute, or have discontinued criminal 
proceedings against, the person sought for the same offense for 
which extradition is requested.
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    \7\ 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 
ground that the person sought has been convicted or acquitted in a 
third State.
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    Paragraph 1(b) of this Article prohibits extradition if the 
prosecution or punishment for the offense for which extradition 
is sought is barred by the statute of limitations of the 
Requesting State. This language is an improvement over 
provisions applying the Requested State's statute of 
limitations, like that contained in the 1899 extradition treaty 
in force between the United States and Peru. \8\ From the 
modern viewpoint of the United States, the Requested State's 
statute of limitations should have no relevance to offenses 
committed against the laws of the Requesting State. Like many 
countries throughout the world, Peruvian law includes time 
limitations not only within which a person must be prosecuted, 
but also within which a sentence must be served. Unlike the 
United States, all offenses, even murder, are subject to 
prescriptive periods, which correspond to the maximum 
applicable penalty for the offense, but which in no case exceed 
30 years. Moreover, although Peruvian law sets forth certain 
circumstances under which the running of the prescription 
period is interrupted, it is not, as under United States law, 
met simply upon the filing of an indictment or suspended for 
such time as the defendant remains a fugitive. Accordingly, the 
inapplicability of the Peruvian statute of limitations to 
offenses that are the subject of U.S. extradition requests 
should significantly limit potential grounds for denial of 
extradition.
---------------------------------------------------------------------------
    \8\ Article VII of the 1899 Treaty.
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    Paragraph 2 of this Article sets forth a standard political 
offense exception to extradition. The language used in this 
Article is typical in that it does not attempt to define what 
constitutes a political offense, leaving it to the courts of 
the Requested State to determine, based solely on domestic law, 
whether a particular extradition request should be denied on 
this basis. \9\ This Article, however, does set forth certain 
offenses that are not to be considered political offenses. 
These include: (1) a violent crime against the Head of State of 
the United States or Peru or members of their families; (2) 
terrorism, genocide, drug trafficking, and other offenses as 
defined in multilateral conventions to which both the United 
States and Peru are parties; \10\ and (3) a conspiracy or 
attempt to commit, or participation in any of the above 
offenses.
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    \9\ Generally, United States law recognizes two categories of 
political offenses: (1) ``pure'' political offenses, such as treason, 
sedition and espionage, which are directed solely against the integrity 
of the State; and (2) in more limited circumstances, certain so-called 
``relative'' political offenses, i.e., those containing elements of 
common crimes, but which are committed as means to political ends or 
closely linked with political events.
    \10\ Examples of conventions to which this clause would apply at 
present include: the Convention on the Prevention and Punishment of 
Crimes Against Internationally Protected Persons, Including Diplomatic 
Agents, (done at New York, December 14, 1973; entered into force 
February 20, 1977 (28 UST 1975; TIAS 8532; 1035 UNTS 167)); the 
Convention for the Suppression of Unlawful Seizure of Aircraft 
(Hijacking) (done at The Hague December 16, 1970; entered into force 
October 14, 1971 (22 UST 1641; TIAS 7192)); the Convention for the 
Suppression of Unlawful Acts Against the Safety of Civil Aviation 
(Sabotage) (done at Montreal September 23, 1971; entered into force 
January 26, 1973 (24 UST 564; TIAS 7570)); the International Convention 
for the Suppression of Terrorist Bombings (done at New York December 
15, 1997; entered into force for the United States July 26, 2002 
(Treaty Doc. 106-6)); the International Convention for the Suppression 
of the Financing of Terrorism (done at New York December 9, 1999; 
entered into force for the United States July 26, 2002 (Treaty Doc. 
106-49)); and the United Nations Convention Against Illicit Traffic in 
Narcotic Drugs and Psychotropic Substances (done at Vienna December 20, 
1988; entered into force November 11, 1990).
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    Paragraph 3 states that extradition shall not be granted if 
the executive authority of the Requested State determines that 
the extradition request was politically motivated. This 
provision applies when the offense for which extradition has 
been requested does not fall within the definition of a 
political offense, but it is shown that the extradition request 
is for the actual purpose of punishing the person sought for 
political reasons. 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.
    Paragraph 4 of this Article is a standard provision stating 
that the Requested State may refuse extradition if the request 
relates to an offense under military law that would not be an 
offense under ordinary criminal law, such as desertion or 
disobedience of orders. This provision makes clear that the 
decision whether to grant or refuse an extradition request 
based on a military offense is one exclusively in the 
discretion of the executive branch.
    Paragraph 5 of this Article gives the executive authority 
of the Requested State discretion to deny an extradition 
request when the person sought will be or has been tried under 
extraordinary laws or procedures in the Requesting State. This 
provision was included at the instance of the United States 
based on concerns at the time of the negotiations over due 
process issues in cases that were brought before Peru's special 
terrorism tribunals. Since the negotiations, those concerns 
have been assuaged considerably by the departure of former 
president Fujimori, subsequent reforms to the Peruvian legal 
system and the decline in the use of such special terrorism 
tribunals in Peru. In fact, some cases originally tried in 
special terrorism tribunals have been retried recently in the 
civilian court system. In any event, because it is 
discretionary, this provision is designed to give the executive 
branch of the Requested State sufficient flexibility so as not 
to frustrate the treaty's primary goal of bringing fugitives to 
justice. In the rare case in which this provision might apply, 
the Requested State could nevertheless agree to extradition, 
for example, upon being satisfied that the Requesting State has 
adopted adequate procedures to safeguard the due process rights 
of the accused.

                        Article V--Death Penalty

    Paragraph 1 of this Article gives the Requested State the 
discretion 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 such penalty in the 
Requested State, unless the Requesting State provides an 
assurance that the person sought will not be executed. This is 
a common provision in U.S. extradition treaties with countries, 
like Peru, that insist on its inclusion based on the abolition 
or severe restriction of the death penalty under their laws. 
Peru's constitution prohibits the death penalty as a punishment 
for all crimes except terrorism and treason. \11\
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    \11\ Article 140, Political Constitution of Peru (1993). With 
respect to these two offenses, this Article would not restrict 
extradition requests for comparable crimes punishable by death under 
U.S. law. See 18 U.S.C. Sec. Sec. 2381 and 2331 et seq.
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    Paragraph 2 of this Article provides that, aside from the 
death penalty, extradition cannot be denied nor subjected to 
conditions on the basis that the penalty for the offense is 
greater in the Requesting State than in the Requested State. 
This provision is designed to make clear that the Requested 
State cannot impose penalty-related conditions that are outside 
the scope of the express provisions in paragraph 1 of this 
Article. This provision was included at the request of the 
United States in response to a recent trend during which a 
number of countries sought assurances relating to sentences of 
life imprisonment, as well as those imposed for terms of years, 
when there was no basis in the applicable treaty for making 
such a demand.

       Article VI--Extradition Procedures and Required Documents

    This Article contains standard provisions setting forth the 
appropriate means of transmitting an extradition request and 
the required documentation and evidence to be submitted in 
support thereof.
    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. Paragraph 5 allows the Requested State 
to seek, if necessary, supplemental information from the 
Requesting State within a designated period of time.
    Among the documentation required in support of a request 
for the extradition of a person charged with, but not yet 
convicted of, a crime is evidence ``sufficient to justify the 
committal for trial'' of the person sought if the offense had 
been committed in the Requested State. This provision is 
consistent with fundamental extradition jurisprudence in the 
United States and will be interpreted by U.S. courts to require 
that Peru provide evidence sufficient to establish ``probable 
cause'' that an extraditable crime was committed by the person 
sought. The Peruvian delegation explained that, in accordance 
with Peruvian law, Peruvian courts would apply a comparable 
standard of proof to U.S. requests.
    In regard to persons who already have been found guilty of 
the offense for which extradition is sought, no showing of 
probable cause is required. The Requesting State need provide 
only a copy of the judgment of conviction and such evidence 
establishing that the person sought is the person to whom the 
conviction refers.

        Article VII--Translation and Admissibility of Documents

    This Article contains a standard treaty provision requiring 
that all documents submitted in support of an extradition 
request be translated into the language of the Requested State 
(Spanish for Peru and English for the United States). It also 
provides that properly certified and authenticated documents 
accompanying an extradition request shall be accepted as 
evidence in extradition proceedings. \12\
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    \12\ See Title 18, United States Code, Section 3190, for 
traditional means of authenticating extradition documentation. This 
provision also has the added flexibility of allowing the admissibility 
of documents that have been certified or authenticated in other ways 
accepted by the laws in the Requested State.
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                    Article VIII--Provisional Arrest

    This Article contains standard language describing the 
process by which a person may be arrested and detained in the 
Requested State while the extradition documents required by 
Article VI are being prepared and translated in the Requesting 
State.
    Provisional arrest serves the interests of justice by 
allowing for the apprehension of fugitives who, for example, 
pose a danger to the community or a risk of flight. Fleeing 
fugitives often do not stay in one place for any significant 
period of time, and frequently for less time than it takes to 
prepare and translate formal extradition documentation. 
Moreover, the ability to immediately arrest dangerous criminals 
obviates risks to the safety of the citizenry of the requested 
country by denying such criminals the opportunity to continue 
to engage in illegal activity while the full extradition 
documentation is being prepared.
    This Article also contains certain provisions to protect 
against capricious or unjustified use of provisional arrest 
authority. For example, it provides that provisional arrest may 
be effected only under urgent circumstances, requires that a 
valid warrant for the fugitive's arrest or a finding of guilt 
or judgment of conviction exist in the Requesting State, and 
imposes a 60-day time limit within which the formal extradition 
documentation must be presented to the executive authority of 
requested country or the person sought may be released from 
custody. The Article also makes clear, however, that the 
release of the person sought because of a missed deadline will 
not preclude the re-arrest of, and re-commencement of 
extradition proceedings against, the person sought if the 
formal request and supporting documentation are received at a 
later date.

 Article IX--Decision on the Extradition Request and Surrender of the 
                             Person Sought

    This Article contains standard language concerning the 
Requested State's obligation to notify the Requesting State of 
its decision on an extradition request and to provide an 
explanation if the request is denied. It also contains standard 
provisions concerning arrangements for surrendering the person 
sought to authorities of the Requesting State and consequences 
if the Requesting State fails to remove the person within the 
required time.

              Article X--Deferred and Temporary Surrender

    In the event that the person sought by the Requesting State 
is being prosecuted or serving a sentence in the Requested 
State, this Article allows the Requested State to postpone the 
extradition proceedings and surrender of that person until the 
conclusion of its own prosecution or the completion of the 
service of any sentence imposed as a result thereof. As an 
alternative, the Requested State may temporarily surrender the 
person for prosecution in the Requesting State.
    Under the terms of this Article, a person temporarily 
surrendered 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.

                    Article XI--Concurrent Requests

    When the Requested State has received an extradition 
request under this treaty, and also has received a request for 
the same person from one or more other countries, this Article 
sets forth standard factors to be considered by the Requested 
State in determining to which country it will surrender the 
person sought.

             Article XII--Seizure and Surrender of Property

    At the time of their arrest in the Requested State, persons 
are often in possession of property that is connected in some 
way to the offense for which extradition is sought. This 
Article allows such property to be surrendered to the 
Requesting State upon extradition, so that the property may be 
used as evidence at trial, returned to the victims, or 
otherwise disposed of appropriately. The Requested State, 
however, may condition the surrender of the property upon 
assurances from the Requesting State that such property will be 
returned to the Requested State as soon as practicable, and 
this Article provides that the rights of third parties in such 
property shall be respected.

                    Article XIII--Rule of Speciality

    This Article contains standard provisions relating to the 
rule of speciality, which, in general terms, 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 ploy--for example, to obtain custody of a person for trial 
or service of sentence on different charges that would not be 
extraditable under the Treaty. Paragraph 1 of this article also 
sets forth several standard exceptions to the general rule 
which allow the Requesting State to pursue: (1) lesser included 
or differently denominated offenses based on the same facts as 
the crime for which extradition was granted; \13\ (2) an 
offense committed after extradition; \14\ or (3) any offense 
for which the Requested State gives consent. \15\ 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. \16\ 
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 ten days 
of being free to do so. \17\
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    \13\ Allowing the Requesting State to proceed on such crimes does 
not offend the purpose of the rule of speciality, since the Requested 
State will have already considered the facts upon which both the 
original and the new charges are based and determined that the acts 
constituting the offenses are extraditable.
    \14\ The rule of speciality does not provide the defendant with any 
immunity for offenses committed after his or her surrender to the 
Requesting State.
    \15\ The consent exception to the rule of specialty recognizes 
that, as a Party to the Treaty, the Requested State has a right to 
waive certain of its benefits or privileges under the Treaty. The 
Requested State's consent, when no other exception applies, can prevent 
an injustice by allowing, for example, the prosecution of an extraditee 
who (the Requesting State does not discover until after extradition) 
was the perpetrator of a previously unsolved crime that was committed 
prior to the extradition from the Requested State and is completely 
separate and distinct from the offense for which extradition was 
sought. In the United States, the Secretary of State has the authority 
to consent.
    \16\ 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. It is expected that this provision 
also would apply to situations involving any international tribunal 
located in a third State. 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.
    \17\ This provision recognizes that an extraditee should not be 
allowed to benefit from the rule of speciality indefinitely and remain 
in or return to the Requesting State with impunity. In effect, if the 
extraditee chooses to return to or remain in the Requesting State, he 
or she relinquishes the benefits of the rule.
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            Article XIV--Simplified Procedure for Surrender

    This Article contains a standard provision allowing, upon 
his or her consent, the expeditious surrender of the person 
sought to the Requesting State without further proceedings. 
Persons sought for extradition frequently elect to expedite 
their return to the Requesting State under such provisions in 
order to resolve the charges against them and to spend as 
little time as possible in custody in the Requested State. 
Expedited surrender also saves the judicial and law enforcement 
authorities of the Requested State the significant expense 
associated with prolonged extradition proceedings. In cases 
where a person has waived further proceedings, and along with 
them protections in the treaty and applicable extradition 
statutes, the process is not deemed an ``extradition,'' and 
therefore the rule of speciality in Article XIII does not 
apply.

                          Article XV--Transit

    At times, law enforcement authorities escorting a 
surrendered person back to the State where he or she 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 a third State. This 
Article contains standard provisions authorizing such transits 
in 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.

                Article XVI--Representation and Expenses

    This Article provides that the Requested State shall 
advise, assist, appear in court on behalf of, and represent the 
interests of the Requesting State in extradition proceedings. 
Such representation ensures that the Requested State abides by 
its obligation under the Treaty to secure the return of every 
extraditable criminal to the Requesting State. By participating 
in the extradition proceedings, the governments also have the 
opportunity to shape extradition law and practice in a way that 
is beneficial to both themselves and their treaty partners. 
Pursuant to a February 15, 1990, exchange of diplomatic notes, 
the United States and Peru already provide representation to 
each other in extradition cases and, with this provision, 
intend to continue the current practice. In accordance with 
established practice, the Department of Justice will represent 
Peru in all aspects of extradition proceedings in the United 
States. Likewise, prosecutors from the Peruvian Public Ministry 
will represent the interests of the United States in such 
proceedings in Peru.
    This Article also contains standard provisions regarding 
extradition-related expenses and pecuniary claims against the 
Parties.

                       Article XVII--Consultation

    This standard Article serves the interests of the United 
States by promoting close cooperation with our foreign 
counterparts on extradition issues. It allows the U.S. 
Department of Justice and Peruvian Ministry of Justice to 
consult with each other directly in connection with the 
processing of individual extradition cases and in furtherance 
of maintaining and improving procedures for the implementation 
of the Treaty.

                       Article XVIII--Application

    This Article makes clear that the Treaty applies to 
offenses that occurred before, as well as after, it enters into 
force. The retroactive application of extradition treaties does 
not violate the ex post facto clause of the U.S. Constitution, 
\18\ because extradition treaties do not criminalize any act. 
They merely provide a means by which persons who committed acts 
that were criminal offenses in both countries at the time of 
their commission can be held to answer for those offenses. \19\ 
Provisions such as this Article ensure that large classes of 
criminals are not immunized from prosecution and allowed 
impunity merely by virtue of the fact that they committed their 
offenses prior to the entry into force of a particular 
bilateral extradition treaty.
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    \18\ U.S. Const., art. I, Sec. 9, cl. 3.
    \19\ See In re De Giacomo, 7 F.Cas. 366 (C.C.N.Y. 1874); See also 4 
Moore, A Digest of International Law 268 (1906).
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                       Article XIX--Final Clauses

    This Article contains standard treaty provisions regarding 
the ratification, entry into force, and termination of the 
Treaty.

     VII. Text of Resolution of Advice and Consent to Ratification

    Resolved (two-thirds of the Senators present concurring 
therein),

SECTION 1. ADVICE AND CONSENT TO RATIFICATION OF THE EXTRADITION TREATY 
                    WITH PERU, SUBJECT TO AN UNDERSTANDING AND A 
                    CONDITION.

    The Senate advises and consents to the ratification of the 
Extradition Treaty Between the United States of America and the 
Republic of Peru, signed at Lima on July 26, 2001 (Treaty Doc. 
107-6; in this resolution referred to as the ``Treaty''), 
subject to the understanding in section 2 and the condition in 
section 3.

SEC. 2. UNDERSTANDING.

    The advice and consent of the Senate under section 1 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 XIII concerning the 
        Rule of Speciality would preclude the resurrender of 
        any person extradited to the Republic of Peru from the 
        United States to the International Criminal Court, 
        unless the United States consents to such resurrender; 
        and the United States shall not consent to any such 
        resurrender unless the Statute establishing that Court 
        has entered into force for the United States by and 
        with the advice and consent of the Senate in accordance 
        with Article II, section 2 of the United States 
        Constitution.

SEC. 3. CONDITION.

    The advice and consent of the Senate under section 1 is 
subject to the condition that nothing in the Treaty requires or 
authorizes legislation or other action by the United States 
that is prohibited by the Constitution of the United States as 
interpreted by the United States.

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