[Senate Executive Report 109-16]
[From the U.S. Government Publishing Office]



109th Congress                                              Exec. Rept.
                                 SENATE
 2d Session                                                      109-16

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



 
PROTOCOL BETWEEN THE GOVERNMENT OF THE UNITED STATES AND THE GOVERNMENT 
 OF THE STATE OF ISRAEL AMENDING THE CONVENTION ON EXTRADITION OF 1962 
                          (TREATY DOC. 109-3)

                                _______
                                

                 August 3, 2006.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                    [To accompany Treaty Doc. 109-3]

    The Committee on Foreign Relations, to which was referred 
the Protocol between the Government of the United States and 
the Government of the State of Israel Amending the Convention 
on Extradition of 1962 (Treaty Doc. 109-3) (hereafter the 
``Protocol''), signed at Jerusalem on July 6, 2005, having 
considered the same, reports favorably thereon and recommends 
that the Senate give its advice and consent to ratification 
thereof, as set forth in this report and accompanying 
resolution of advice and consent.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................1
 II. Background and Summary...........................................2
III. Implementing Legislation.........................................3
 IV. Committee Action.................................................4
  V. Committee Recommendation and Comments............................4
 VI. Resolution of Advice and Consent to Ratification.................4

                               I. Purpose

    The Protocol amends the U.S.-Israel Convention on 
Extradition of December 10, 1962 (the ``1962 Convention''), 
updating its provisions in a manner consistent with modern U.S. 
extradition practice, and would thereby enhance law enforcement 
cooperation between the two countries.

                       II. Background and Summary

    The United States is currently a party to over 100 
bilateral extradition treaties, including a treaty with Israel. 
That treaty was signed in 1962 and entered into force in 1963. 
The Protocol replaces several articles of the 1962 Convention, 
including provisions addressing: the definition of extraditable 
offenses, the extradition of nationals, political offenses, 
temporary surrender, lapse of time, and provisional arrest. 
With the exception of the provision on extradition of 
nationals, which reflects Israeli law, the new provisions are 
consistent with those of several other bilateral extradition 
treaties approved by the Senate in recent years.
    A detailed article-by-article discussion of the Protocol 
may be found in the Letter of Submittal from the Secretary of 
State to the President, which is reprinted in full in Treaty 
Document 109-3. A summary of the key provisions of the Protocol 
is set forth below.
    Article 1 of the Protocol replaces a list of extraditable 
offenses contained in Article II of the 1962 Convention with a 
modern ``dual criminality'' article defining extraditable 
offenses as those punishable in both parties by a deprivation 
of liberty of one year or by a more severe penalty. This 
provision ensures that new criminal offenses will be covered as 
they are criminalized by both parties, without a need to 
constantly amend the treaty.
    Article 2 of the Protocol replaces Article IV of the 1962 
Convention, concerning extradition of nationals, with a new 
article that reflects recent changes in Israeli law. Article IV 
of the 1962 Convention declares that a requested party shall 
not decline to extradite a person sought because such person is 
a national of the requested party. Several years after it 
entered into force, however, Israel enacted legislation 
superseding the provision and prohibiting extradition of its 
nationals. More recently, Israel amended its law to permit 
extradition of its nationals as long as resident nationals of 
Israel were returned to Israel to serve their sentences. 
Consistent with Israeli law, the new article bars refusal of 
extradition based solely on nationality, while providing that, 
where required by its law, the requested party may condition 
extradition of a resident national of the requested party upon 
assurances that he will be returned to the requested party to 
serve any term of imprisonment imposed following extradition. 
In such cases, the requested party must enforce the sentence 
imposed by the requesting party, even if the sentence imposed 
exceeds the maximum term permissible for the offense under the 
laws of the requested party.
    Article 3 of the Protocol replaces Article VI of the 1962 
Convention. That provision contains an exception to extradition 
for offenses of a political character, a long-standing 
exception in U.S. extradition practice. Consistent with U.S. 
policy and practice in recent years, however, the Protocol 
narrows this exception by precluding certain crimes of violence 
from being considered political offenses.
    Article 4 of the Protocol modernizes Article VIII of the 
1962 Convention, which allowed a requested party to defer 
extradition when the person sought is either being tried or 
serving a sentence for another crime in that country. The new 
article permits deferral of extradition of a person being 
investigated or prosecuted in the requested party until such 
investigation or prosecution is concluded. It also permits the 
requested party to temporarily surrender for proceedings in the 
requesting party a person who is being proceeded against or is 
serving a sentence in the requested party. The person is to be 
kept in custody in the requesting party and returned upon 
completion of the proceedings there. This type of temporary 
surrender provision is common in modern extradition treaties. 
It allows for prosecution closer in time to commission of the 
offense, thereby advancing the goal of securing justice. Long 
delays in commencing trial raise the danger that witnesses will 
no longer be available or that their memories will fade.
    Article 4 of the Protocol also creates a new Article VIII 
bis addressing lapse of time. This provision allows the 
requested party, if required under its law, to deny extradition 
where prosecution of the offense or execution of the penalty 
would be time-barred under its laws if the offense had been 
committed in its territory. Currently, Israeli extradition law 
requires application of Israeli lapse of time laws in 
extradition proceedings in that country. U.S. law contains no 
such requirement.
    Article 7 of the Protocol replaces Article XI of the 1962 
Convention, which authorizes provisional arrests in certain 
urgent circumstances. The new provision streamlines the process 
by permitting provisional arrest requests to be made directly 
between the U.S. Department of Justice and the Israeli Ministry 
of Justice. The description of the information to be provided 
in such requests follows the example of recent contemporary 
treaties approved by the Senate. It should be emphasized that 
these changes are not intended to effect a substantive change 
to the standard that applies for securing the provisional 
arrest of an alleged fugitive pending extradition. The 
committee agrees with the Department of Justice that the Fourth 
Amendment of the U.S. Constitution applies to provisional 
arrests under the current treaty, and under the treaty as 
revised by the Protocol. Further, the Department indicated to 
the committee that it ``does not anticipate any substantive 
change in the type or quantum of evidence that [it] submit[s] 
to our courts in support of a request for issuance of a 
provisional arrest warrant'' under the new article.

                     III. Implementing Legislation

    No new implementing legislation is required for the 
Protocol. An existing body of federal law, including the 
provisions of Chapter 209 of Title 18, United States Code, will 
suffice to implement the obligations of the Protocol.

                          IV. Committee Action

    The Committee on Foreign Relations held a public hearing on 
the Protocol on November 15, 2005, at which it heard testimony 
from representatives of the Departments of State and Justice. 
(A hearing print of this session will be forthcoming.) On June 
29, 2006, the committee considered the Protocol and ordered it 
favorably reported by voice vote with no objections, with the 
recommendation that the Senate give its advice and consent to 
its ratification.

                V. Committee Recommendation and Comments

    The Committee on Foreign Relations believes that the 
proposed Protocol is in the interest of the United States and 
urges the Senate to act promptly to give advice and consent to 
its ratification.

          VI. Resolution of Advice and Consent to Ratification

    Resolved (two-thirds of the Senators present concurring 
therein), That the Senate advise and consent to the 
ratification of the Protocol between the Government of the 
United States of America and the Government of the State of 
Israel Amending the Convention on Extradition of 1962, signed 
at Jerusalem on July 6, 2005 (Treaty Doc. 109-3).

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