[Senate Executive Report 109-16]
[From the U.S. Government Publishing Office]
109th Congress Exec. Rept.
SENATE
2d Session 109-16
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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).