Extradition Treaty with United KingdomSenate Consideration of Treaty Document 108-23
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[Senate Treaty Document 108-23] [From the U.S. Government Printing Office] 108th Congress Treaty Doc. SENATE 2d Session 108-23 _______________________________________________________________________ EXTRADITION TREATY WITH UNITED KINGDOM __________ MESSAGE from THE PRESIDENT OF THE UNITED STATES transmitting EXTRADITION TREATY BETWEEN THE UNITED STATES OF AMERICA AND THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND, AND RELATED EXCHANGES OF LETTERS, SIGNED AT WASHINGTON ON MARCH 31, 2003 April 19, 2004.--The treaty was read the first time, and together with the accompanying papers, referred to the Committee on Foreign Relations and order to be printed for the use of the Senate LETTER OF TRANSMITTAL ---------- The White House, April 19, 2004. To the Senate of the United States: With a view to receiving the advice and consent of the Senate to ratification, I transmit herewith the Extradition Treaty Between the United States of America and the United Kingdom of Great Britain and Northern Ireland, and related exchanges of letters, signed at Washington on March 31, 2003. In addition, I transmit for the information of the Senate the report of the Department of State with respect to the Treaty. As the report explains, the Treaty will not require implementing legislation. The provisions in this Treaty follow generally the form and content of modern extradition treaties recently concluded by the United States and will replace the outdated extradition treaty signed in 1972 and the supplementary treaty signed in 1985 that are currently in force between the two countries. The Treaty will, upon entry into force, enhance cooperation between the law enforcement communities of the two countries. It will thereby make a significant contribution to international law enforcement efforts against serious offenses, including terrorism, organized crime, and money laundering offenses. I recommend that the Senate give early and favorable consideration to the Treaty and give its advice and consent to ratification. George W. Bush. LETTER OF SUBMITTAL ---------- Department of State, Washington, October 3, 2003. The President, The White House. The President: I have the honor to submit to you the Extradition Treaty Between the United States of America and the United Kingdom of Great Britain and Northern Ireland (``the Treaty''), and related exchanges of letters, signed at Washington on March 31, 2003. Upon its entry into force, the Treaty would replace the outdated extradition treaty signed in 1972 and the supplementary treaty signed in 1985 that are now in force between the two countries. I recommend that the Treaty, with related exchanges of letters, be transmitted to the Senate for its advice and consent to ratification. The Treaty follows generally the form and content of other extradition treaties recently concluded by the United States. The Treaty represents a major step forward in U.S. efforts to strengthen cooperation with countries in the region in combating terrorism, organized crime, money laundering, and other offenses. It is an important part of a concerted effort by the Department of State and the Department of Justice to modernize the legal tools available for the extradition of serious offenders. The Treaty is designed to be self-executing and will not require implementing legislation. Article 1 obligates each State to extradite to the other, pursuant to the provisions of the Treaty, persons sought by the authorities in the Requesting State for trial or punishment for extraditable offenses. Article 2 concerns extraditable offenses. Article 2(1) defines an offense as extraditable if the conduct on which the offense is based is punishable under the laws in both States by deprivation of liberty for a period of one year or more or by a more severe penalty. Use of a pure ``dual criminality'' clause, rather than categories of offenses listed in the Treaty plus other offenses that are listed in relevant UK extradition law and are considered felonies under U.S. law, as in the 1972 extradition treaty, obviates the need to renegotiate or supplement the Treaty as additional offenses become punishable under the laws in both States. Under the 1972 extradition treaty, extradition is to be granted if the offense is defined as extraditable under UK law and as a felony under U.S. law, in addition to the requirement that the offense be punishable by imprisonment or other form of detention for more than one year or by the death penalty. Article 2(2) further defines an extraditable offense as including an attempt or a conspiracy to commit, participation in the commission of, aiding or abetting, counseling or procuring the commission of, or being an accessory before or after the fact to any offense described in paragraph 1 of Article 2. Additional flexibility is provided by Article 2(3), which provides that an offense shall be an extraditable offense (a) whether or not the laws in the Requesting and Requested States place the offense within the same category of offenses or describe the offense by the same terminology; or (b) whether or not the offense is one for which United States federal law requires the showing of such matters as interstate transportation, or use of the mails or of other facilities affecting interstate or foreign commerce, such matters being jurisdictional only. With regard to offenses committed outside the territory of the Requesting State, Article 2(4) provides that extradition shall be granted in accordance with the provisions of the Treaty if the laws in the Requested State provide for the punishment of such conduct committed outside its territory in similar circumstances. If the laws in the Requested State do not provide for the punishment of such conduct committed outside of its territory in similar circumstances, the executive authority of the Requested State, in its discretion, may grant extradition provided that all other requirements of the Treaty are met. Finally, Article 2(5) provides that if extradition is granted for an extraditable offense, it may also be granted for any other offense specified in the request if the latter offense is punishable by less than one year's deprivation of liberty, provided that all other requirements for extradition are met. Article 3 provides that extradition shall not be refused based on the nationality of the person sought. Article 4 sets forth bases for the denial of extradition. As is customary in extradition treaties, paragraph 1 provides that extradition shall not be granted if the offense for which extradition is requested constitutes a political offense. Article 4(2) specifies seven categories of offenses that shall not be considered to be political offenses: (a) an offense for which both Parties have the obligation pursuant to a multilateral international agreement to extradite the person sought or to submit the case to their competent authorities for decision as to prosecution; (b) a murder or other violent crime against the person of a Head of State of one of the Parties, or of a member of the Head of State's family; (c) murder, manslaughter, malicious wounding, or inflicting grievous bodily harm; (d) an offense involving kidnaping, abduction, or any form of unlawful detention, including the taking of a hostage; (e) placing or using, or threatening the placement or use of, an explosive, incendiary, or destructive device or firearm capable of endangering life, of causing grievous bodily harm, or of causing substantial property damage; (f) possession of an explosive, incendiary, or destructive device capable of endangering life, of causing grievous bodily harm, or of causing substantial property damage; and (g) an attempt or a conspiracy to commit, participation in the commission of, aiding or abetting, counseling or procuring the commission of, or being an accessory before or after the fact to any of the foregoing offenses. Article 4(3) requires that, notwithstanding the terms of paragraph 2, extradition shall not be granted if the competent authority of the Requested State determines that the request is politically motivated. In the United States, the executive branch is the competent authority for the purposes of the Article. Under the 1985 supplementary treaty, the judicial branch has the authority to consider whether an extradition request is motivated by a desire to punish the person sought on account of race, religion, nationality, or political opinions, or if the person sought would be subject to unfair treatment in UK courts or prisons after extradition. Like all other modern extradition treaties, the new Treaty grants the executive branch rather than the judiciary the authority to determine whether a request is politically motivated. Article 4(4) provides that the competent authority of the Requested State may also refuse extradition for offenses under military law that are not offenses under ordinary criminal law (e.g., desertion). In the United States, the executive branch is the competent authority for the purposes of the Article. Article 5(1) provides that extradition shall not be granted when the person sought has been convicted or acquitted in the Requested State for the offense for which extradition is requested. Additionally, under paragraph 2, the Requested State may refuse extradition when the person sought has been convicted or acquitted in a third state in respect of the conduct for which extradition is sought. Article 5(3) provides that extradition shall not be precluded by the fact that the competent authorities of the Requested State: (a) have decided not to prosecute the person sought for the acts for which extradition is requested; (b) have decided to discontinue any criminal proceedings that have been instituted against the person sought for those acts; or (c) are still investigating the person sought for the same acts for which extradition is sought. Article 6 provides that the decision by the Requested State whether to grant the request for extradition shall be made without regard to any statute of limitations in either State. Article 7 concerns capital punishment. Under Article 7, when an offense for which extradition is sought is punishable by death under the laws in the Requesting State but not under the laws in the Requested State, the executive authority in the Requested State may refuse extradition unless the Requesting State provides an assurance that the death penalty will not be imposed or, if imposed, will not be carried out. The United States has agreed to similar formulations in other modern extradition treaties (e.g., those with France, Poland, Argentina, the Republic of Korea, India, and Peru). Article 8 establishes the procedures and describes the documents that are required to support a request for extradition. All requests for extradition shall be submitted through the diplomatic channel. Among other requirements, Article 8(3) provides that a request for the extradition of a person sought for prosecution must be supported by: (a) a copy of the warrant or order of arrest issued by a judge or other competent authority; (b) a copy of the charging document, if any; and (c) for requests to the United States, such information as would provide a reasonable basis to believe that the person sought committed the offense for which extradition is sought. The Treaty will not change the evidentiary burden required for extradition requests to the United States, but the Treaty's entry into force will allow the United States to take advantage of the United Kingdom Extradition Act of 1989, which applies only to treaties that enter into force after 1989. Under the 1989 Act, the evidentiary requirements for extradition from the United Kingdom are lowered from a ``prima facie'' standard to ``evidence sufficient for issuance of a warrant,'' which is analogous to the U.S. probable cause standard. Article 9 establishes the procedures under which documents submitted to support an extradition request shall be deemed to be authentic and received in evidence. Under Article 10, if the Requested State requires additional information to enable a decision to be taken on the request for extradition, the Requesting State shall respond to the request within such time as the Requested State requires. Article 11 provides that all documents submitted under the Treaty by the Requesting State shall be in English or accompanied by a translation into English. Article 12 sets forth procedures and describes the information that is required for the provisional arrest and detention of the person sought, in an urgent situation, pending presentation of the formal request for extradition. In particular, Article 12(4) provides that if the Requested State's executive authority has not received the extradition request and supporting documents required by Article 8 within sixty (60) days from the date of provisional arrest, the person may be discharged from custody. Article 12(5) explicitly provides that such a discharge from custody shall not prejudice the subsequent re-arrest and extradition of that person if the extradition request and supporting documents are delivered at a later date. Article 13 specifies the procedures governing a decision on the extradition request and the surrender of the person sought. It requires the Requested State to promptly notify the Requesting State of its decision regarding a request. Such notification should be transmitted through the diplomatic channel directly to the competent authority designated by the Requesting State to receive such notification. If the request is denied in whole or in part, the Requested State must provide reasons for the denial and, upon request, copies of pertinent judicial decisions. If extradition is granted, the States shall agree on the time and place for the surrender of the person sought. If the person sought is not removed from the territory of the Requested State within the time period prescribed by the law of that State, the person may be discharged from custody, and the Requested State, in its discretion, may subsequently refuse extradition for the same offense(s). Article 14 addresses temporary and deferred surrender. Article 14(1) provides that if a person whose extradition is sought is being proceeded against or is serving a sentence in the Requested State, the Requested State may temporarily surrender the person to the Requesting State for the purpose of prosecution. If the Requested State requests, the Requesting State shall keep the person so surrendered in custody and shall return that person to the Requested State after the conclusion of the proceedings against that person, in accordance with conditions to be determined by mutual agreement of the States. Alternatively, under Article 14(2), the Requested State may postpone extradition proceedings against a person who is being prosecuted or who is serving a sentence in that State. The postponement may continue until the prosecution of the person sought has been concluded or until such person has served any sentence imposed. Article 15 provides a non-exclusive list of factors to be considered by the executive authority of the Requested State in determining to which State to surrender a person whose extradition is sought by more than one State. Article 16 provides that the Requested State may, to the extent permitted under its law, seize and surrender to the Requesting State all items and assets, including proceeds, that are connected with the offense in respect of which extradition is granted. Such items and assets may be surrendered even if the extradition cannot be carried out due to the death, disappearance, or escape of the person sought. The Requested State may condition the surrender of the items upon satisfactory assurances that the property will be returned to the Requested State as soon as practicable. The Requested State may also defer the surrender of such items if they are needed as evidence in the Requested State. Article 17 permits surrender as expeditiously as possible and without further proceedings if the person sought waives extradition and agrees to be surrendered to the Requesting State. Article 18 sets forth the rule of specialty under international law. Paragraph 1 provides, subject to specific exceptions set forth in paragraph 3, that a person extradited under the Treaty may not be detained, tried, or punished in the Requesting State except for: (a) Any offense for which extradition was granted, or a differently denominated offense based on the same facts as the offense for which extradition was granted, provided such offense is extraditable, or is a lesser included offense; (b) any offense committed after the extradition of the person; or (c) any offense for which the executive authority of the Requested State waives the rule of specialty and thereby consents to the person's detention, trial, or punishment. The treaty currently in place does not contain such a provision for waiver of the rule of specialty, and the preferred practice of States is not to waive the rule of specialty unless there is a treaty provision authorizing them to do so. Article 18(2) provides that a person extradited under the Treaty may not be the subject of onward extradition or surrender for any offense committed prior to the extradition to the Requesting State unless the Requested State consents. The Treaty's use of the term ``surrender'' (the operable term in the Rome Statute of the International Criminal Court) makes explicit that the United Kingdom will not surrender to the ICC any person extradited by the United States. The United Kingdom has recorded in a separate letter its understanding that the Treaty continues the protection implicit in the current treaty against surrender to the ICC of fugitives extradited by the United States and states in its letter that it will contest any request from the ICC for such surrender as being inconsistent with Article 98(2) of the Rome Statute. Under Article 18(3), these restrictions shall not prevent the detention, trial, or punishment of an extradited person, or the extradition of a person to a third State, if the extradited person leaves the territory of the Requesting State after extradition and voluntarily returns to it or fails to leave the territory of the Requesting State within twenty (20) days of being free to do so. Article 19 governs the transit through the territory of one State of a person being surrendered to the other State by a third State or from the other State to a third State. Article 20 contains provisions on representation and expenses that are similar to those found in other modern U.S. extradition treaties. Specifically, the Requested State is required to advise, assist, and appear in court on behalf of the Requesting State in any proceedings in the courts of the Requested State arising out of a request for extradition or make all necessary arrangements for the same. The Requested State also bears all expenses incurred in that State in connection with the extradition proceedings, except that the Requesting State pays expenses related to the translation of extradition documents and the transportation of the person surrendered. Article 20(3) specifies that neither State shall make any pecuniary claim against the other State arising out of the arrest, detention, examination, or surrender of persons under the Treaty. Article 21 provides that the Parties may consult with each other in connection with the processing of individual cases and in furtherance of efficient implementation of the Treaty. Article 22 concerns the application of the Treaty. Paragraph 1 makes the Treaty applicable to offenses committed before as well as after the date of entry into force. Under paragraph Article 22(2), the Treaty shall apply to the United States of America and, in relation to the United Kingdom, to Great Britain and Northern Ireland, the Channel Islands, the Isle of Man, and to any territory for whose international relations the United Kingdom is responsible and to which the Treaty has been extended by agreement of the Parties. Article 22(3) provides that the application of the Treaty to any territory in respect of which extension has been made in accordance with paragraph 2 may be terminated by either State giving six months' written notice to the other through the diplomatic channel. Pursuant to Article 22(4), a request by the United States for the extradition of an offender who is found in any of the territories to which this Treaty applies in accordance with paragraph 2 of the Article may be made to the Governor or other competent authority of that territory. A request on the part of any of the territories to which this Treaty applies in accordance with paragraph 2 of the Article for the extradition of an offender who is found in the United States of America may be made to the Government of the United States by the Governor or other competent authority of that territory. This paragraph streamlines the extradition procedures regarding requests to and from UK territories, as such requests currently must go through the United Kingdom's central authority in London. Article 23 contains clauses dealing with the Treaty's ratification and entry into force. Paragraphs 1 and 2 provide that the Treaty is subject to ratification and will enter into force upon the exchange of instruments of ratification, which is to take place as soon as possible. Article 23(3) provides that, upon entry into force of the Treaty, the Extradition Treaty signed at London on June 8, 1972, and the Supplementary Treaty signed at Washington on June 25, 1985, (together ``the prior Treaty'') shall cease to have any effect as between the United States and the United Kingdom, subject to certain exceptions. The prior Treaty shall apply to any extradition proceedings in which the extradition documents have already been submitted to the courts of the Requested State at the time the Treaty enters into force, except that Article 18 of this Treaty relating to the rule of specialty shall apply to persons found extraditable under the prior Treaty. The prior Treaty shall also apply to any territory to which it has been extended in accordance with Article II of that Treaty, until such time as the provisions of this Treaty have been extended to such a territory under Article 22(2). Article 24 provides that either State may terminate the Treaty at any time by giving written notice to the other State through the diplomatic channel. Such termination shall be effective six months after the date of receipt of such notice. The Department of Justice joins the Department of State in favoring approval of this Treaty by the Senate at the earliest possible date. Respectfully submitted. Colin L. Powell.