[DOCID: f:er023.105]
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105th Congress                                              Exec. Rept.
                                 SENATE

 2d Session                                                      105-23
_______________________________________________________________________


 
    EXTRADITION TREATIES WITH ARGENTINA, AUSTRIA, BARBADOS, CYPRUS, 
 FRANCE, INDIA, LUXEMBOURG, MEXICO, POLAND, SPAIN, TRINIDAD & TOBAGO, 
ZIMBABWE, ANTIGUA & BARBUDA, DOMINICA, GRENADA, ST. KITTS & NEVIS, ST. 
                LUCIA, AND ST. VINCENT & THE GRENADINES

                                _______
                                

 October 14 (legislation day, October 2), 1998.--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. 105-10; 105-13; 105-14; 105-15; 105-16; 105-
    18; 105-19; 105-20; 105-21; 105-30; 105-33; 105-46; and 105-50.]

    The Committee on Foreign Relations, to which was referred 
the Extradition Treaty Between the Government of the United 
States of America and the Government of the Grand Duchy of 
Luxembourg, signed at Washington on October 1, 1996 (Treaty 
Doc. 105-10); the Extradition Treaty between the United States 
of America and France, which includes an Agreed Minute, signed 
at Paris on April 23, 1996 (Treaty Doc. 105-13); the 
Extradition Treaty Between the United States of America and the 
Republic of Poland, signed at Washington on July 10, 1996 
(Treaty Doc. 105-14); the Third Supplementary Extradition 
Treaty Between the United States of America and the Kingdom of 
Spain, signed at Madrid on March 12, 1996 (Treaty Doc. 105-15); 
the Extradition Treaty Between the Government of the United 
States of America and the Government of the Republic of Cyprus, 
signed at Washington on June 17, 1996 (Treaty Doc. 105-16); the 
Extradition Treaty Between the United States of America and the 
Argentine Republic, signed at Buenos Aires on June 10, 1997 
(Treaty Doc. 105-18); the Extradition Treaties Between the 
Government of the United States of America and the Governments 
of Six Countries Comprising the Organization of Eastern 
Caribbean States (Collectively, the ``Treaties''). The Treaties 
are with: Antigua and Barbuda, signed at St. John's on June 3, 
1996; Dominica, signed at Roseau on October 10, 1996; Grenada, 
signed at St. George's on May 30, 1996; St. Lucia, signed at 
Castries on April 18, 1996; St. Kitts and Nevis, signed
at Basseterre on September 18, 1996; and St. Vincent and the 
Grenadines, signed at Kingstown on August 15, 1996 (Treaty Doc. 
105-19); Extradition Treaty Between the Government of the 
United States of America and the Government of Barbados, signed 
at Bridgetown on February 28, 1996 (Treaty Doc. 105-20); the 
Extradition Treaty Between the Government of the United States 
of America and the Government of Trinidad and Tobago, signed at 
Port of Spain on March 4, 1996 (Treaty Doc. 105-21); the 
Extradition Treaty Between the Government of the United States 
of America and the Government of the Republic of India, signed 
at Washington on June 25, 1997 (Treaty Doc. 105-30); the 
Extradition Treaty Between the Government of the United States 
of America and the Government of the Republic of Zimbabwe, 
signed at Harare on July 25, 1997 (Treaty Doc. 105-33); the 
Protocol to the Extradition Treaty Between the United States of 
America and the United Mexican States of May 4, 1978, signed at 
Washington on November 13, 1997 (Treaty Doc. 105-46); and the 
Extradition Treaty Between the Government of the United States 
of America and the Government of the Republic of Austria, 
signed at Washington on January 8, 1998 (Treaty Doc. 105-50), 
having considered the same, reports favorably thereon, each 
with one understanding, one declaration and one proviso, 
(except two Protocols with one declaration and one proviso) and 
recommends that the Senate give its advice and consent to the 
ratification thereof as set forth in this report and the 
accompanying resolutions of ratification.

                                CONTENTS

                                                                   Page

  I. Purpose..........................................................2
 II. Background.......................................................2
III. Summary..........................................................3
 IV. Entry Into Force and Termination.................................6
  V. Committee Action.................................................6
 VI. Committee Comments...............................................6
VII. Explanation of Proposed Treaties.................................9
VIII.Text of Resolutions of Ratification............................200


                               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 than 100 bilateral 
extradition treaties. Of the 13 extradition treaties considered 
in this report, only the treaty with Zimbabwe represents a new 
treaty relationship. Ten of the treaties with the Caribbean 
countries, India, and Cyprus replace 1931 or 1972 Treaties 
between the United States and the United Kingdom, which 
continued to apply to these countries even after their 
independence. The other treaties modernize older treaties to 
ensure that all criminal acts punishable in both countries by 
more than one year in prison are covered by the treaties. Two 
of the treaties--those with Spain and Mexico--are Protocols to 
existing treaties.
    Extradition relationships have long been a basis of 
bilateral relationships, and 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 treaties permit the transfer of individuals to 
another country in order to stand trial for alleged crimes. The 
treaty with Zimbabwe, therefore, signals an important 
advancement in the U.S. relationship with that country.

                              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 turn over 
persons who are within its jurisdiction and who are charged 
with certain crimes against, or are fugitives from, the 
Requesting State.
    In recent years the Departments of State and Justice have 
led an effort to modernize U.S. bilateral extradition treaties 
to better combat international criminal activity, such as drug 
trafficking, terrorism and money laundering. Modern extradition 
treaties: (1) identify the offenses for which extradition will 
be granted, (2) establish procedures to be followed in 
presenting extradition requests, (3) enumerate exceptions to 
the duty to extradite, (4) specify the evidence required to 
support a finding of a duty to extradite, and (5) set forth 
administrative provisions for bearing costs and legal 
representation.
    The importance of extradition treaties as a tool for law 
enforcement is reflected in the increase in the number of 
extraditions of individuals under treaties. Since September 
l997, 185 persons were extradited to the United States for 
prosecution for crimes committed in the United States, and the 
United States extradited 73 individuals to other countries for 
prosecution.
    In the United States, the legal procedures for extradition 
are governed by both federal statute and self-executing 
treaties. Federal statute controls the judicial process for 
making a determination to the Secretary of State that she may 
extradite an individual under an existing treaty. 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 enumerating crimes with which a 
defendant is charged; (2) charges for which extradition is 
sought are actually pending against the defendant in the 
requesting nation and are extraditable under the treaty; (3) 
the defendant is the same individual sought for trial in the 
requesting nation; (4) probable cause exists to believe that 
the defendant is guilty of charges pending against him in the 
requesting nation; and (5) the acts alleged to have been 
committed by the defendant are punishable as criminal conduct 
in the requesting nation and under the criminal law of the 
United States.
    Once a court has made a determination that an individual 
may be extradited under U.S. law, and so certifies to the 
Secretary of State, she may still refrain from extraditing an 
individual on foreign policy grounds, as defined in the 
treaties themselves (or even absent express treaty provisions).

                           b. key provisions

1. Extraditable Offenses: The Dual Criminality Clause

    Each of the extradition treaties contains a standard 
definition of what constitutes an extraditable offense: an 
offense is extraditable if it is punishable under the laws of 
both parties by a prison term of more than (or at least) one 
year. Attempts and conspiracies to commit such offenses, and 
participation in the commission of such offenses, are also 
extraditable. In many of the treaties, if the extradition 
request involves a fugitive, it shall be granted only if the 
remaining sentence to be served is more than six months.
    With minor variations, this definition of an extraditable 
offense appears in each of the treaties under consideration. 
The dual criminality clause means, for example, that an offense 
is not extraditable if in the United States it constitutes a 
crime punishable by imprisonment of more than one year, but it 
is not a crime in the treaty partner or is a crime punishable 
by a prison term of less than one year. In earlier extradition 
treaties the definition of extraditable offenses consisted of a 
list of specific categories of crimes. This categorizing of 
crimes has resulted in problems when a specific crime, for 
example drug dealing, is not on the list, and is therefore not 
extraditable. The result has been that as additional offenses 
become punishable under the laws of both treaty partners the 
extradition treaties between them need to be renegotiated or 
supplemented. A dual criminality clause obviates the need to 
renegotiate or supplement a treaty when it becomes necessary to 
broaden the definition of extraditable offenses.

2. Extraterritorial Offenses

    A separate question arises as to whether offenses committed 
outside the territory of the Requesting State are extraditable 
under the treaties. To be able to extradite individuals for 
extraterritorial crimes can be an important weapon in the fight 
against international drug traffickers and terrorists. Only 
three of the pending treaties (Austria, India, and Luxembourg) 
permit extradition regardless of where the offense is 
committed. However the rest permit extradition for 
extraterritorial crimes if extradition would be permitted in 
both the Requesting and Receiving State. Even if both States do 
not permit extradition in those instances, extradition for 
crimes committed outside both territories remains a matter of 
discretion in most of the treaties.

3. Political Offense Exception

    In recent years the United States has been promoting a 
restrictive view of the political offense exception in 
furtherance of its campaign against terrorism, drug 
trafficking, and money laundering. Though some of the treaties 
under consideration take a narrower view than others of the 
political offense exception, all of them give it a more limited 
scope than earlier U.S. extradition treaties.
    The exclusion of certain violent crimes, (i.e. murder, 
kidnaping, and others) from the political offense exception 
reflects the concern of the United States government and 
certain other governments with international terrorism.
    The exclusion from the political offense exception for 
crimes covered by multilateral international agreements, and 
the obligation to extradite for such crimes or submit the case 
to prosecution by the Requested State, is now a standard 
exclusion and is contained in each of the treaties under 
consideration.
    The multilateral international agreement exception clause 
serves to incorporate by reference certain multilateral 
agreements to which the United States is a party and which deal 
with international law enforcement in drug dealing, terrorism, 
airplane hijacking and smuggling of nuclear material. These 
agreements require that the offenses with which they deal shall 
be extraditable under any extradition treaty between countries 
that are parties to the multilateral agreements. The 
incorporation by reference of these multilateral agreements is 
intended to assure that the offenses with which they deal shall 
be extraditable under an extradition treaty. But, extradition 
for such offenses is not guaranteed. A Requested State has the 
option either to extradite or to submit the case to its 
competent authorities for prosecution.
    It should perhaps be noted that the incorporation by 
reference of multilateral international agreements that deal 
with international law enforcement can have significance only 
if the parties to an extradition treaty are also parties to 
such multilateral agreements.

4. The Death Penalty Exception

    The United States and other countries often have different 
views on capital punishment, though some countries do impose 
the death penalty for certain crimes, such as drug trafficking. 
Most of the treaties under consideration permit the countries 
to refuse extradition for an offense punishable by the death 
penalty in the Requesting State if the same offense is not 
punishable by the death penalty in the Requested State, unless 
the Requesting State gives assurances satisfactory to the 
Requested State that the death penalty will not be imposed or 
carried out.

5. The Extradition of Nationals

    The U.S. does not object to extraditing its own nationals 
and has sought to negotiate treaties without nationality 
restrictions. Many countries, however, refuse to extradite 
their own nationals. The treaties under consideration take 
varying positions on the nationality issue.

6. Retroactivity

    Each of the treaties states that it shall apply to offenses 
committed before as well as after it enters into force. These 
retroactivity provisions do not violate the Constitution's 
prohibition against the enactment of ex post facto laws, which 
applies only to enactments making criminal acts that were 
innocent when committed, not to the extradition of a defendant 
for acts that were criminal when committed but for which no 
extradition agreement existed at the time.

7. The Rule of Speciality

    The rule of speciality (or specialty), which prohibits a 
Requesting State from trying an extradited individual for an 
offense other than the one for which he was extradited, is a 
standard provision included in U.S. bilateral extradition 
treaties. The treaties include language reflecting the basic 
prohibition as well as clauses setting forth certain 
exceptions. With minor variations, the treaties express the 
basic prohibition and also include the following exceptions: an 
extradited individual may be tried by the Requesting State for 
an offense other than the one for which he was extradited if 
the Requested State (which may request the submission of 
additional supporting documents) waives the prohibition; the 
extradited individual leaves the territory of the Requesting 
State and voluntarily returns to it; the extradited individual 
does not leave the territory of the Requesting State within a 
limited period of time on which he or she is free to leave; or, 
the extradited individual voluntarily consents to being tried 
for an offense other than the one for which he was extradited. 
These exceptions to the speciality rule are designed to allow a 
Requesting State some latitude in prosecuting offenders for 
crimes other than those for which they had been specifically 
extradited.

8. Lapse of Time

    Some of the treaties include rules that preclude 
extradition of offenses barred by an applicable statute of 
limitations.

                  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 15, 1998. The Committee 
considered the proposed Treaties on October 14, 1998, and 
ordered the proposed Treaties favorably reported, with the 
recommendation that the Senate give its advice and consent to 
the ratification of each of the proposed Treaties subject to 
one understanding, one declaration, and two provisos (except 
two Protocols with one declaration and one proviso).

                         VI. Committee 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. Several issues did arise in the course of the 
Committee's consideration of the Treaties, and the Committee 
believes that the following comments may be useful to the 
Senate in its consideration of the proposed Treaties and to the 
State Department.

  a. restriction on transfer of extraditees to international criminal 
                                 court

    On July 17, 1998 a majority of nations at the U.N. 
Diplomatic Conference in Rome, Italy, on the Establishment of 
an International Criminal Court voted 120-7, with 21 
abstentions, in favor of a treaty that would establish an 
international criminal court. The court is empowered to 
investigate and prosecute war crimes, crimes against humanity, 
genocide and aggression. The United States voted against the 
treaty.
    Each of the Resolutions of Ratification accompanying the 
Extradition Treaties contains an understanding relative to the 
international court. Specifically, regarding the ``Rule of 
Specialty'' the United States shall restate in its instrument 
of ratification its understanding of the provision, which 
requires that the United States consent to any retransfer of 
persons extradited to the Treaty Partner 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. 
This restriction is binding on the President, and would be 
vitiated only in the event that the United States ratifies the 
treaty establishing the court, pursuant to the Constitutional 
procedures as contained in Article II, section 2 of the United 
States Constitution.
    This provision makes clear that both Parties understand 
that individuals extradited to the other Party may not be 
transferred to the international court. Members of the 
Committee are concerned that these treaties could become 
conduits for transferring suspects located in the United States 
to the international criminal court, even though the United 
States has rejected the court.

   b. use of treaties to aggressively pursue international parental 
                               kidnaping

    On October 1, 1998, the Committee on Foreign Relations 
convened a hearing to consider U.S. Responses to International 
Parental Kidnaping. The Attorney General, Janet Reno, testified 
before the Committee, as did four parents whose children were 
abducted or wrongfully detained in international jurisdictions. 
The parents recounted their frustration with the current level 
of U.S. Government assistance in seeking the return of their 
children.
    Although the Attorney General pointed to limitations in the 
ability of the U.S. Government to resolve many cases of 
international parental abduction, she also recognized that the 
United States could do better in assisting in the return of 
abducted children and pledged to take steps to improve 
coordination between the Departments of State and Justice. She 
also indicated that an interagency working group, which has 
been studying this issue during the past year, will produce a 
report in January with recommendations for improvements in U.S. 
policy regarding international parental kidnaping.
    As this working group completes its work, the Committee 
expects that one area related to these treaties that the 
working group should comment upon is the current practice of 
extradition of parental kidnappers. Under current practice the 
United States does not seek extradition if they do not think 
that a country will extradite--whether because a country does 
not have an extradition treaty with the United States, does not 
extradite its nationals, or would simply be unlikely to 
extradite under the circumstances. The Committee believes that 
failure to even request extradition may create the 
misperception that the United States is not interested in 
pursuing such individuals.
    The State and Justice Departments have testified that these 
treaties are essential in order to ensure that no individual is 
able to evade the justice system by travel to a foreign 
country. This same principle should be true of parents who take 
their children from the United States in violation of the 1993 
International Parental Kidnaping Act. The Committee expects, 
therefore, that State and Justice Department officials will 
seek extradition unless it will hinder U.S. law enforcement 
efforts. The Committee also expects that State and Justice 
Department officials will raise this issue in the course of 
negotiation of all bilateral law enforcement treaties and in 
other bilateral diplomatic exchanges. The Committee 
anticipates, also, that this issue will be given great scrutiny 
in the issuance of passports, with a special eye towards 
passport or visa fraud.

                      c. extradition of nationals

    The treaties with Antigua and Barbuda, Argentina, Barbados, 
Dominica, Grenada, India, St. Kitts and Nevis, St. Lucia, St. 
Vincent and the Grenadines, Trinidad and Tobago, and Zimbabwe 
require the extradition of their nationals. Such provisions 
reflect an important trend in extradition relationships, 
particularly with countries in the Western Hemisphere. The 
Committee applauds this progress by State and Justice 
Department negotiators.
    Unfortunately, such progress has been much more difficult 
for the United States to achieve in agreements with European 
allies. Although the treaties with Austria, Cyprus, Luxembourg, 
and Poland give each party the discretion to extradite its 
nationals, each of these countries is prohibited by statute or 
constitution from doing so. The treaty with France prohibits 
extradition of nationals outright.
    The Committee supports the extradition of U.S. nationals in 
most instances. Criminal suspects should not be given safe 
haven in this country. The alternative--trying them in this 
country--is often not a realistic option, for two reasons. 
First, U.S. courts often lack jurisdiction over the crime, 
because not many crimes are subject to extraterritorial 
jurisdiction under U.S. law. Second, prosecuting such cases in 
the United States is often extremely difficult, particularly 
when the evidence and many of the witnesses are not located in 
this country, as would often be the case.
    The Committee is deeply concerned that many nations around 
the world, particularly those in Europe, do not agree to 
extradite their own 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 extradition 
relationships with foreign states, that a reciprocal duty to 
extradite nationals is a key U.S. negotiating objective.
    In addition, the United States could request extradition of 
nationals in some circumstances. In response to a question for 
the record, the State Department indicated that it might 
request extradition of nationals in an effort to encourage the 
country to exercise discretion available under its domestic 
law. The Committee anticipates that the United States will err 
on the side of making requests, unless U.S. law enforcement 
efforts would be compromised, in order to continue to force 
treaty partners to respond to U.S. requests for extradition of 
nationals.

                    d. extradition treaty with india

    The Committee believes that special concerns are raised in 
the Extradition Treaty with India, as evidenced by an exchange 
of letters accompanying the Treaty (See Treaty Doc. 105-30, at 
pages 18-19). The concern arises because when the treaty was 
under negotiation, India had in effect a special law, the 
Terrorist and Disruptive (Prevention) Act, which, according to 
the Department of State, ``limited the rights of a defendant 
accorded under ordinary Indian criminal law in a number of 
important respects.'' The limits on a defendant's rights 
included permitting detention for a year without charge, trial 
proceedings in camera, permitting the court to keep secret the 
identity of witnesses, reversing the burden of proof in certain 
situations, and limiting the right to appeal. The Act lapsed on 
May 23, 1995, and has not been replaced, but it continues to 
have effect with respect to cases under investigation and trial 
as of that date.
    In an exchange of letters signed the same day as the 
Extradition Treaty, the United States and India agreed to an 
understanding that, as a general matter, persons extradited 
under the treaty will be prosecuted or punished under the 
ordinary criminal laws of the Requesting State. The Parties 
further agreed that if either party is considering prosecution 
or punishment under other laws, the ``Requesting State shall 
request consultations and shall make such a request only upon 
the agreement of the Requested State.''
    During the hearing before the Committee, Deputy Legal 
Adviser Jamison Borek testified that there would be a 
``presumption'' against extraditing a criminal suspect in the 
event that a request is made by India under this act or any 
similar law. In response to a question for the record, the 
Executive Branch indicated that while it could not ``rule out 
the possibility that a [such a request] might merit serious 
consideration'' it did not anticipate being presented with such 
a case, at least based on information currently available.
    It is evident from a brief review of the limitations set 
forth in Terrorist and Disruptive (Prevention) Act that many of 
its provisions do not accord with basic due process rights that 
are central to American notions of justice and fundamental 
fairness. It is difficult to envision a case that would warrant 
extradition under such circumstances. Accordingly, the 
Committee expects that it will be the rare case--a matter of 
the gravest consequence--in which extradition would be granted 
by the United States in matters that may be prosecuted under 
this or a similar law.

                 VII. Explanations of Proposed Treaties

    The following are the article-by-article technical analyses 
provided by the Departments of State and Justice regarding the 
extradition treaties.

Technical Analysis of the Extradition Treaty Between the United States 
                   of America and Antigua and Barbuda

    On June 3, 1996, the United States signed a treaty on 
extradition with Antigua and Barbuda (hereinafter ``the 
Treaty''), which 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 one of twelve treaties that the United States 
negotiated under the auspices of the Organization of Eastern 
Caribbean States to modernize our law enforcement relations in 
the Eastern Caribbean. It represents a major step forward in 
the United States' efforts to strengthen cooperation with 
countries in the region in combating 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. 
Antigua and Barbuda has its own internal legislation on 
extradition, \2\ which will apply to United States' requests 
under the treaty.
    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 
notes. 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. 
It was agreed that the term ``convicted'' includes instances in 
which the person has been found guilty but a sentence has not 
yet been imposed. \3\ The negotiators intended to make it clear 
that the Treaty applies to persons adjudged guilty who flee 
prior to sentencing.

                    Article 2--Extraditable Offenses

    This article contains the basic guidelines for determining 
what offenses are extraditable. This Treaty, like most recent 
United States extradition treaties, including those with 
Jamaica, Jordan, Italy, Ireland, Thailand, Sweden 
(Supplementary Convention), and Costa Rica, does not list the 
offenses for which extradition may be granted. Instead, 
paragraph 1 of the article permits extradition for any offense 
punishable under the laws of both countries by deprivation of 
liberty (i.e., imprisonment, or other form of detention), for 
more than 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 the Antigua and Barbuda delegation 
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), if the 
predicate offense would be an extraditable offense; money 
laundering; terrorism; crimes against environmental protection 
laws; and antitrust violations punishable in both states by 
more than one year of imprisonment.
    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. Antigua and Barbuda has 
no general conspiracy statute like Title 18, United States 
Code, Section 371. Therefore, 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 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 
applying the dual criminality principle. For example, Antigua 
and Barbuda 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.
    Paragraph 4 deals with the fact that many federal crimes 
involve acts committed wholly outside United States territory. 
Our jurisprudence recognizes jurisdiction in our 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 
Antigua and Barbuda, however, the Government's ability to 
prosecute extraterritorial offenses is much more limited. 
Therefore, Article 2(4) reflects Antigua and Barbuda's 
agreement to recognize United States jurisdiction to prosecute 
offenses committed outside of the United States if Antigua and 
Barbuda's law would permit it to prosecute similar offenses 
committed outside of it in corresponding circumstances. If the 
Requested State's laws do not so provide, the final sentence of 
the paragraph states that extradition may be granted, but the 
executive authority of the Requested State has the discretion 
to deny the request.
    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 Antigua and Barbuda 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, as long as 
those misdemeanors would also be recognized as criminal 
offenses in Antigua and Barbuda. Thus, the Treaty incorporates 
recent United States extradition practice by permitting 
extradition for misdemeanors committed by a fugitive when the 
fugitive's extradition is granted for a more serious 
extraditable offense. 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 countries such as Australia, Ireland, 
Italy, and Costa Rica.
    Some U.S. extradition treaties provide that persons who 
have been convicted and sentenced for an extraditable offense 
may be extradited only if at least a certain specified portion 
of the sentence (often six months) remains to be served. This 
Treaty, like most U.S. extradition treaties in the past two 
decades, contains no such requirement. \5\ Thus, any concerns 
about whether a particular case justifies the time and expense 
of invoking the machinery of international extradition should 
be resolved between the Parties through the exercise of wisdom 
and restraint rather than through arbitrary limits imposed in 
the Treaty itself.

                         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, \6\ and the Antigua and Barbuda extradition law 
contains no exception for Antiguan nationals. Therefore, 
Article 3 of the Treaty provides that extradition is not to be 
refused based on the nationality of the person sought.

               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. \7\
    Paragraph 2 describes three 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 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 that 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 prosecution, such as the United Nations Convention 
Against the Illicit Traffic in Narcotic Drugs and Psychotropic 
Substances. \8\
    Third, the political offense exception does not apply to 
conspiring or attempting to commit, or to aiding and abetting 
the commission or attempted commission of the foregoing 
offenses.
    Paragraph 3 provides that extradition shall not be granted 
if the executive authority of the Requested State finds that 
the request was politically motivated. \9\ This is consistent 
with the long-standing 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. \10\
    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. \11\

                      Article 5--Prior Prosecution

    This article will permit extradition in situations in which 
the fugitive is charged in each country with different offenses 
arising out of the same basic transaction.
    The first paragraph 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. 
\12\ The parties 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 one 
state would not insulate the person from extradition to the 
other, since different crimes are involved.
    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. This provision was 
included because a decision of the Requested State to forego 
prosecution, or to drop charges already filed, could result 
from failure to obtain sufficient evidence or witnesses 
available for trial, whereas the Requesting State might 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 generally 
similar to corresponding articles in the United States' most 
recent 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.
    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 6(2)(c)(i) calls for ``information 
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 satisfies the requirement for dual criminality under 
Article 2. Some of the items listed in paragraph 2, however, 
are required strictly for informational purposes. Thus, Article 
6(2)(c)(iii) calls for ``information as to the provisions of 
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. The United 
States and Antigua and Barbuda delegations agreed that Article 
6(2)(c)(iii) should require this information so that the 
Requested State would be fully informed about the charges in 
the Requesting State.
    Paragraph 3 describes the additional information required 
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 provide a reasonable basis to believe that 
the person sought committed the offense for which extradition 
is requested.'' This provision will alleviate one of the major 
practical problems with extradition from Antigua and Barbuda. 
The Treaty currently in force permits extradition only if ``. . 
.the evidence be found sufficient, according to the laws of the 
High Contracting Party applied to, either to justify the 
committal of the prisoner for trial, in the case the crime or 
offense had been committed in the territory of such High 
Contracting party, or to prove that the person is the identical 
person convicted by the courts of the High Contracting Party 
who makes the requisition  . . .''. \13\ Antigua and Barbuda's 
courts have interpreted this clause to require that a prima 
facie case against the defendant be shown before extradition 
will be granted. \14\ 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. \15\ 
Antigua and Barbuda's agreement to extradite under this new 
Treaty on a ``reasonable basis'' standard eliminates this 
imbalance on the burden of proof for extradition and should 
dramatically improve the United States' ability to extradite 
from Antigua and Barbuda.
    Paragraph 4 lists the information required 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. \16\

                 Article 7--Admissibility of Documents

    Article 7 governs the authentication procedures for 
documents prepared for use in extradition cases.
    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 Antigua and Barbuda resident in the United States. 
This is intended to replace the cumbersome and complicated 
procedures for authenticating extradition documents applicable 
under the current treaty. \17\ When the request is from Antigua 
and Barbuda, the documents must be certified by the principal 
diplomatic or consular officer of the United States resident in 
Barbados accredited to Antigua and Barbuda, pursuant to United 
States extradition law. \18\
    The third subparagraph 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 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 ensures that evidence which is 
acceptable under the evidentiary rules of the Requested State 
may be used in extradition proceedings even if it is not 
otherwise authenticated pursuant to the treaty. This paragraph 
also should ensure that relevant evidence, which would normally 
satisfy the evidentiary rules of the requested country, is not 
excluded at the extradition hearing merely because of an 
inadvertent error or omission in the authentication process.

                        Article 8--Lapse of Time

    Article 8 states that the decision to deny an extradition 
request must be made without regard to provisions of the law 
regarding lapse of time in either the requesting or requested 
states. \19\ The U.S. and Antiguan 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.

                     Article 9--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 by the Requesting State. 
\20\
    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 Antigua and Barbuda. The provision also 
indicates that INTERPOL may be used to transmit such a request.
    Paragraph 2 states 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 provisional arrest be 
terminated if the Requesting State does not file a fully 
documented request for extradition within forty-five days of 
the date on which the person was arrested. This period may be 
extended for up to an additional fifteen days. When the United 
States is the Requested State, it is sufficient for purposes of 
this paragraph if the documents are received by the Secretary 
of State or the U.S. Embassy in Bridgetown, Barbados. \21\
    Paragraph 5 makes it clear that in such cases the person 
may be taken into custody again and the extradition proceedings 
may commence if the formal request is presented subsequently.

                   Article 10--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 provides that the two States shall 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 currently 
permits the person to request release if he has not been 
surrendered within two calendar months of having been found 
extraditable, \22\ or of the conclusion of any litigation 
challenging that finding, \23\ whichever is later. The law in 
Antigua and Barbuda 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. \24\

              Article 11--Deferred and Temporary Surrender

    Occasionally, a person sought for extradition may already 
be facing prosecution or serving a sentence on other charges in 
the Requested State. Article 11 provides a means for the 
Requested State to 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.
    Paragraph 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) subject to the 
laws in each state, 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. Similar provisions are 
found in many recent extradition treaties.
    Paragraph 2 provides that the executive authority of the 
Requested State may postpone the extradition proceedings 
against a person who is serving a sentence in the Requested 
State until the full execution of the punishment that has been 
imposed. \25\ The provision's wording makes it clear that the 
Requested State may also postpone the surrender of a person 
facing prosecution or serving a sentence in that State, even if 
all necessary extradition proceedings have been completed.

      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. \26\

             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. \27\ The article also provides that these objects 
shall 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.
    Paragraph 2 states that the Requested State may condition 
its surrender of property in such a way as to ensure that the 
property is returned as soon as practicable. This paragraph 
also permits the Requested State to defer surrender altogether 
if the property is needed as evidence in the Requested State.
    Paragraph 3 makes the surrender of property expressly 
subject to due respect for the rights of third parties to such 
property.

                     Article 14--Rule of Speciality

    This article covers the principle known as the rule of 
speciality, which is a standard aspect of United States 
extradition practice. Designed to ensure that a fugitive 
surrendered for one offense is not tried for other crimes, the 
rule of speciality 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.
    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 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. \28\ Article 14(1)(c)(ii) permits the State 
which is seeking consent to pursue new charges to detain the 
defendant for 90 days while the Requested State makes its 
determination on the application.
    Paragraph 2 prohibits the Requesting State from 
surrendering the person to a third State for a crime committed 
prior to his extradition under this Treaty, without the consent 
of the State from which extradition was first obtained. \29\
    Finally, paragraph 3 removes the restrictions of paragraphs 
1 and 2 on 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 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 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. \30\
    If a person sought from the United States returns to the 
Requesting State before the Secretary of State signs a 
surrender warrant, the United States would not view the return 
pursuant to a waiver of proceedings under this article as an 
``extradition.'' United States practice has long been that the 
rule of speciality does not apply when a fugitive waives 
extradition and voluntarily returns to the Requested State.

                          Article 16--Transit

    Paragraph 1 gives each State the power to authorize transit 
through its territory of persons being surrendered to the other 
country by third countries. \31\ 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 Antigua and 
Barbuda, or via INTERPOL channels. The negotiators agreed that 
the diplomatic channels will be employed as much as possible 
for requests of this nature. A person may be detained in 
custody during the period of transit.
    Paragraph 2 provides that 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 such a 
request. This paragraph also permits the transit State to 
detain a fugitive and a request for transit as received and 
executed, so long as the request is received within 96 hours of 
the unscheduled landing.
    Antigua and Barbuda does not appear to have specific 
legislation on this matter, and the Antigua and Barbuda 
delegation stated that its Government would seek implementing 
legislation for this article in due course.

                Article 17--Representation and Expenses

    The first paragraph of this article provides that the 
United States will represent Antigua and Barbuda in connection 
with a request from Antigua and Barbuda for extradition before 
the courts in this country, and that Antigua and Barbuda will 
arrange for the representation of the United States in 
connection with United States extradition requests to Antigua 
and Barbuda.
    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. The negotiators agreed that in some 
cases the Requested State might wish to retain private counsel 
to assist it in the presentation of the extradition request. 
The Attorney General of Antigua and Barbuda has a very small 
staff, and might need to enlist outside counsel to aid in 
handling a complex, contested international extradition 
proceeding. It is anticipated that in such cases the fees of 
private counsel retained by the Requested State would be paid 
by the Requested State. The negotiators also recognized that 
cases might arise in which the Requesting State would wish to 
retain its own private counsel to advise it on extradition 
matters or even assist in presenting the case, if the Requested 
State agrees. 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, or surrender of the fugitive. This includes any 
claim by 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 
Antigua and Barbuda may consult with each other 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. \32\
    The article also states that consultations shall include 
issues involving training and technical assistance. At the 
request of Antigua and Barbuda, the United States delegation 
promised to recommend training and technical assistance to 
better educate and equip prosecutors and legal officials in 
Antigua and Barbuda to implement this Treaty.
    During the negotiations, the Antigua and Barbuda delegation 
also expressed concern that the United States might invoke the 
Treaty much more often than Antigua and Barbuda, resulting in 
an imbalance in the financial obligations occasioned by 
extradition proceedings. While no specific Treaty language was 
adopted, the United States agreed that consultations between 
the Parties under Article 18 could address extraordinary 
expenses arising from the execution of individual extradition 
requests or requests in general.

                        Article 19--Application

    This Treaty, like most United States extradition treaties 
negotiated in the past two decades, is expressly made 
retroactive, and accordingly covers offenses that occurred 
before the Treaty entered into force, provided that they were 
offenses under the laws of both States at the time that they 
were committed.

             Article 20--Ratification and Entry Into Force

    This article contains standard treaty language providing 
for the exchange of instruments of ratification at Washington 
D.C. The Treaty is to enter into force immediately upon the 
exchange.
    Paragraph 3 provides that the 1972 Treaty will cease to 
have any effect upon the entry into force of the Treaty, but 
extradition requests pending when the Treaty enters into force 
will nevertheless be processed to conclusion under the 1972 
Treaty. Nonetheless, Article 15 (waiver of extradition) of this 
Treaty will apply in such proceedings, and Article 14 (rule of 
speciality) also applies to persons found extraditable under 
the prior Treaty.

                        Article 21--Termination

    This Article contains standard treaty language on the 
procedure for terminating the Treaty. Termination shall become 
effective six months after notice of termination is received.
    The following are the article-by-article technical analysis 
provided by the Departments of State and Justice regarding the 
mutual legal assistance treaties.

Technical Analysis of the Extradition Treaty Between The United States 
       of America and the Argentine Republic signed June 10, 1997

    On June 10, 1997, at Buenos Aires, Argentina, the United 
States signed a new extradition treaty with Argentina 
(hereinafter ``the new Treaty,'' ``the Treaty,'' or ``this 
Treaty''). In recent years, the United States has signed 
similar treaties with many other countries, as part of an 
ongoing and highly successful effort to modernize our 
international law enforcement relations. The new Treaty will 
replace the treaty currently in force between the United States 
and Argentina \33\ (hereinafter ``the 1972 treaty'') with a 
modern agreement to facilitate the extradition of serious 
offenders, including narcotics traffickers, regardless of their 
nationality.
    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.
    With regard to Argentina, once the Treaty is approved by 
the Argentine Congress, a law published in the ``Official 
Bulletin'' will render the Treaty applicable under Argentine 
law and subject to implementation upon completion of the 
Treaty's requirements for entry into force (i.e., exchange of 
instruments of ratification). No additional or special 
legislation will be required in Argentina for implementation of 
the Treaty.
    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 
notes. 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

    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 and conditions of the Treaty, persons ``charged 
with'' or ``found guilty'' of an extraditable offense.
    The negotiating delegations intended that the term 
``charged with'' be interpreted broadly to include those 
persons who, being the subject of an outstanding warrant of 
arrest in the Requesting State, are sought for prosecution. 
Accordingly, for fugitives from the United States, this 
provision is intended to apply to those persons for whom a 
warrant of arrest has been issued, whether the warrant was 
issued pursuant to an indictment, complaint, information, or 
other means. In addition, under Argentine criminal procedure, a 
person may not be formally indicted until after he is in 
custody and brought before a judge in Argentina. Therefore, 
this provision is also intended to apply to those fugitives 
from Argentina whose cases may not yet have reached the 
indictment stage, but for whom there are pending criminal 
proceedings and outstanding warrants of arrest. \34\
    It also was agreed by the negotiating delegations that the 
term ``found guilty'' in this Article includes instances in 
which the person has been convicted, either by trial or guilty 
plea, but a sentence has not yet been imposed. Accordingly, the 
negotiators intended to make it clear that the Treaty applies 
not only to charged and sentenced persons, but also to persons 
adjudged guilty who flee prior to sentencing. \35\
    This Article also refers to offenses ``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. This Treaty, like other recent 
United States extradition treaties, \36\ 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). The term ``maximum'' 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.
    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 
an important type of criminal activity punishable in both 
countries. For example, at this time, Argentine law 
criminalizes money laundering only as it relates to narcotics 
trafficking. However, once laws are enacted in Argentina, like 
those in the United States, to cover the laundering of proceeds 
from other types of criminal activity, such offenses will 
automatically be included as extraditable offenses under the 
dual criminality provision without having to amend the Treaty.
    During the negotiations, the Argentine delegation indicated 
that key offenses such as drug trafficking and related money 
laundering and organized criminal activity (RICO) would be 
extraditable.
    In regard to a request for a person who has already been 
sentenced in the Requesting State, paragraph 1 of this Article 
contains an additional requirement that such person must have 
more than six months of his or her sentence still to serve.
    Paragraph 2 follows the practice of recent extradition 
treaties in providing that extradition shall also be granted 
for attempting or conspiring to commit, or otherwise 
participating in, the commission of 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. For the same reasons, 
the negotiating delegations agreed that ``illicit 
association'', which is the closest analogue to conspiracy 
under Argentine law, should also be expressly included as an 
extraditable offense. \37\ Accordingly, paragraph 2(b) 
specifies that the offense of conspiracy, as defined under 
United States law, and the offense of illicit association, as 
defined under Argentine law, shall be extraditable.
    Paragraph 3 reflects the intention of both countries to 
interpret the principles of this Article broadly. Paragraph 
3(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 3(a) are contained in 
many recent United States extradition treaties. \38\
    Paragraph 3(b) is also included to further prevent 
technical differences in Argentine 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 the extradition of U.S. 
fugitives charged under these federal statutes on the basis of 
lack of dual criminality. Therefore, paragraph 3(b) requires 
that such elements be disregarded in applying the dual 
criminality principle. For example, Argentine 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.
    Paragraph 4 ensures that extradition shall be granted for 
offenses even when the illegal acts constituting the offense 
are committed outside the territory of the Requesting State. 
United States jurisprudence recognizes jurisdiction in our 
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 extraterritorial 
jurisdiction. \39\ Accordingly, many federal statutes 
(including drug laws) criminalize acts committed wholly outside 
United States territory, and it was very important to the U.S. 
negotiating delegation that such offenses be extraditable. The 
United States initially proposed language for this provision 
stating that extradition shall be granted for an extraditable 
offense regardless of where the act or acts constituting the 
offense were committed. \40\ During the negotiations, no U.S. 
proposal received more vehement opposition from the Argentine 
delegation, but the U.S. delegation was able to persuade the 
Argentine delegation to accept an alternative formulation. This 
alternative formulation, set forth in paragraph 4, 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. \41\ In addition, paragraph 4 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. Accordingly, paragraph 4 
will greatly improve the ability of the United States to obtain 
extradition for a great number of offenses, including narcotics 
trafficking and terrorism, which frequently are initiated or 
orchestrated from abroad.
    Paragraph 5 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. Thus, if Argentina 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 specified in the request, so long as those misdemeanors 
would also be recognized as criminal offenses in Argentina, and 
all other requirements of the Treaty (except the minimum 
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. \42\

                         Article 3--Nationality

    Article 3 provides that extradition and surrender shall not 
be refused on the ground that the person sought is a national 
of the Requested Party.
    Although Argentina has no constitutional provision or 
statute which expressly prohibits the extradition of Argentine 
nationals, in our experience, securing the extradition of 
Argentine citizens from Argentina has been extremely difficult. 
The 1972 treaty does not mandate the extradition of nationals, 
and, in the absence of such an affirmative obligation to do so, 
Argentine courts have interpreted Argentine law to allow 
Argentine citizens who have been found extraditable to the 
United States to choose whether they wish to be extradited or, 
in the alternative, to stand trial in Argentina for the 
offenses committed in the United States. It is the policy of 
the United States to extradite its citizens for offenses 
committed abroad. \43\
    The Argentine delegation agreed to the U.S. proposal in 
Article 3, which clearly provides for the mandatory extradition 
of nationals with no restrictions or exceptions. \44\ This 
provision will greatly improve the ability of the United States 
to secure the extradition of Argentine citizens who violate 
state or federal criminal laws in the United States and 
thereafter seek haven in Argentina.

               Article 4--Political and Military Offenses

    Paragraph 1 of this Article contains a general rule that 
prohibits extradition for political offenses. This principle is 
commonly known as the ``political offense exception'' to 
extradition. \45\
    Notwithstanding the general rule in paragraph 1, paragraph 
2 describes several categories of offenses that shall not be 
considered to be political offenses. This is a common provision 
in United States extradition treaties. \46\
    First, paragraph 2(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 Argentina or a member 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. Recent U.S. treaties have broadened its coverage to 
include attacks against a Head of State's family as well. The 
phrase ``attack or other willful crime against the physical 
integrity'' was used to limit this clause's coverage to violent 
crimes.
    Second, paragraph 2(b) states that the political offense 
exception shall not apply to offenses for which both Parties 
have, pursuant to a multilateral treaty, the obligation to 
extradite or prosecute. This clause is included to ensure that 
the political offense exception does not conflict with and 
frustrate international obligations that the United States and 
Argentina have undertaken, or will undertake, in other treaties 
to ensure that persons accused of certain serious, 
internationally recognized crimes are brought to justice. 
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; \47\ the International Convention 
Against the Taking of Hostages; \48\ the Convention for the 
Suppression of Unlawful Seizure of Aircraft (Hijacking); \49\ 
and the Convention for the Suppression of Unlawful Acts Against 
the Safety of Civil Aviation (Sabotage). At the instance of the 
Argentine delegation and to stress the seriousness of those 
offenses, the delegations included specific reference to 
treaties relating to genocide, acts of terrorism, and narcotics 
trafficking.
    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. \50\ This also is a common provision in United 
States extradition treaties. \51\
    Finally, paragraph 2, subparagraphs (c), (d), and (e), 
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 3 states that extradition shall not be granted if 
the competent 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 foreign State's 
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.

                      Article 5--Prior Prosecution

    Paragraph 1 of this Article prohibits extradition if the 
offender has been convicted or acquitted in the Requested State 
for the offense for which extradition is requested, \52\ and 
its language is similar to that contained in many United States 
extradition treaties. \53\ This paragraph will permit 
extradition in situations in which the activities of the 
fugitive result in his being charged with different offenses in 
both countries arising out of the same basic transaction. \54\
    Paragraph 2 of this Article makes clear that extradition 
shall not be precluded by the fact that the Requested State's 
authorities declined to prosecute 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 reinstitution.\55\ This provision 
should enhance the ability to extradite criminals to the 
jurisdiction which has the better chance of a successful 
prosecution.

                        Article 6--Death Penalty

    This Article permits the Requested State to refuse 
extradition in cases where the offense for which extradition is 
sought is punishable by death in the Requesting State but not 
so punishable in the Requested State, unless the Requesting 
State provides assurances that the person sought will not be 
executed. The Argentine delegation insisted on this provision 
because Argentina has abolished the death penalty and would not 
sign a treaty that would obligate it to contravene its law and 
policy against the death penalty. Similar provisions are found 
in many recent United States extradition treaties. \56\
    If Argentina ever re-establishes the death penalty, this 
Article would 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 7--Lapse of Time

    This Article provides that extradition shall not be denied 
on the basis that the prosecution or penalty would be barred 
under the statute of limitations of the Requested State.
    This Article embodies the U.S. preferred view that, 
provided the other conditions of the Treaty are met, 
extradition should not be barred on the technicality that the 
time period established by the statute of limitations of the 
Requested State has expired. Rather, this Article recognizes 
that statutes of limitations, which may vary greatly between 
different countries and jurisdictions, are procedural obstacles 
to prosecution, often with complicated rules for their 
interruption, and due deference should be given to the laws of 
the Requesting State and its courts in determining whether the 
time for prosecution or punishment has lapsed.
    The 1972 treaty provides that extradition may be refused if 
the statute of limitations of either the Requesting or 
Requested State has expired. The new Treaty would require that 
the Requesting State include in the documentation accompanying 
extradition requests a statement that the statute of 
limitations has not expired under the Requesting State's law. 
The Requested State will be bound to accept such statement and, 
moreover, will not be permitted to consider whether its own 
statute of limitations would have run. It is expected that this 
will prevent extradition from being refused in cases where the 
Requested State's statute of limitations is shorter than that 
in the Requesting State, or where the two States' rules 
regarding the tolling (suspension) of the statute of 
limitations are different.

        Article 8--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. 
Basically, this Article contains similar provisions to 
corresponding articles in the United States' most recent 
extradition treaties. \57\
    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 
``summary of the facts of the offense'' and ``the text of the 
law or laws describing the offense for which extradition is 
requested'' called for in paragraph 2(b) and (c) enable the 
Requested State to make a preliminary determination whether 
lack of dual criminality would be a basis for denying 
extradition under Article 2. Other items, such as the physical 
description and probable location of the fugitive required 
under paragraph 2(a), assist the Requested State in locating 
and apprehending the fugitive, and in proving his identity at 
the extradition hearing.
    Paragraph 2(d) requires the Requesting State to provide a 
statement that neither the prosecution nor punishment of the 
person sought is barred by the Requesting State's statute of 
limitations. Because Article 7 of the Treaty precludes 
consideration of the Requested State's statute of limitations 
in the decision on extradition, this subparagraph was included 
to provide a minimum degree of reassurance to the Requested 
State that authorities in the Requesting State have reviewed 
their own statute of limitations, and that such statute will 
not bar prosecution or punishment once the fugitive is returned 
to the Requesting State.
    Paragraph 3 requires that if the fugitive is a person 
sought for prosecution (i.e., pre-conviction), the Requesting 
State must provide: (a) a copy of the warrant of arrest; (b) a 
copy of the charging document, if any; \58\ and (c) ``such 
information as would justify the detention of the person if the 
offense had been committed in the Requested State.'' 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 Argentina provide such 
information as is necessary to establish ``probable cause'' to 
believe that a crime was committed and the person sought 
committed it.\59\ The Argentine delegation assured the United 
States delegation that, under Argentine law, the evidentiary 
standard for a court to order the ``detention'' of a person for 
an alleged criminal offense in Argentina, and thus the standard 
to be applied in Argentina to extradition requests under the 
Treaty, is in fact very much akin to our probable cause 
requirement.\60\
    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. Recognizing 
that a person may have been found guilty but not yet sentenced, 
Paragraph 4(a) requires that the Requested State provide a copy 
of the judgment of conviction, only if available.\61\ The 
paragraph makes clear that once a finding of guilt has been 
made, 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 without a specific 
treaty provision.\62\ Under paragraph 4(b), the Requesting 
State is merely required to provide evidence which establishes 
that the person sought is the person to whom the finding of 
guilt refers. Finally, paragraph 4(c) requires that the 
Requesting State provide information regarding the sentence 
imposed (if the person has been sentenced) and the extent to 
which the sentence has been carried out. This information is 
relevant to the Requested State's determination under Article 
2(1) whether the person sought has a sufficient portion of his 
or her sentence left to serve to justify extradition.

                         Article 9--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 Argentina to the United States will be 
translated into English and requests by the United States to 
Argentina will be translated into Spanish.

                 Article 10--Admissibility of Documents

    This Article governs the certification and authentication 
procedures for documents accompanying an extradition request. 
It states that the documents shall be accepted 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,\63\ or if 
certified or authenticated in any other manner accepted by the 
laws in the Requested State.

                     Article 11--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 8 are being prepared 
and translated in the Requesting State, a process which 
normally may take a number of weeks. Similar articles are 
included in all modern U.S. extradition treaties.
    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. 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, the Article provides that provisional 
arrest may be effected only under urgent circumstances, 
requires that a valid warrant for the fugitive's arrest be 
outstanding in the requesting country, and imposes a time limit 
within which the formal extradition documentation must be 
presented to the requested country. These provisions are 
discussed in greater detail below.
    Paragraph 1 provides that provisional arrest is reserved 
for cases of urgency and such a request shall be transmitted by 
any written means either through the diplomatic channel or 
directly between the United States Department of Justice and 
the Argentine 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 requires that the Requested State be provided 
with: (1) a description of the person sought; (2) his or her 
location, if known; (3) a brief statement of the facts of the 
case; (4) a citation to the laws allegedly violated; (5) 
statement of the existence of an arrest warrant or judgment of 
conviction; (6) an explanation of the reasons for the urgency 
of the request; and (7) a statement that the formal extradition 
request will be presented.
    Paragraph 3 states 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, although the person sought may be released from 
custody if the full extradition documentation is not received 
within the sixty day period, paragraph 5 makes clear that in 
such cases the person may be taken into custody again and the 
extradition proceedings recommenced if the formal request is 
received at a later date.

 Article 12--Decision on Extradition and Surrender of the Person Sought

    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, a copy of the 
pertinent decisions by its judicial authorities.
    Paragraph 3 provides that if, pursuant to Article 6, the 
Requested State requires assurances regarding the death 
penalty, such assurances shall be provided by the Requesting 
State prior to the surrender of the person sought.
    Paragraph 4 provides that if extradition is granted, the 
Parties shall agree on the date and place of the fugitive's 
surrender. However, if the fugitive is not removed within 
thirty (30) days of the notification described in paragraph 1 
or within the time prescribed by the law of the Requested 
State, whichever is longer,\64\ then the Requesting State risks 
the release of the person from custody and subsequent refusal 
of extradition for the same offense.

             Article 13--Temporary and Deferred Surrenders

    Occasionally, a person sought for extradition may be facing 
prosecution or serving a sentence on other charges in the 
Requested State. Article 13 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.\65\
    Paragraph 1 of Article 13 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) it allows him to resolve the charges sooner; (2) subject to 
the laws of each State, 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.
    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.\66\
    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.\67\

                    Article 14--Concurrent 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 Argentina, is the Requested State, and the other 
Party to this Treaty is one of the Requesting States, Article 
14 sets forth factors that the Requested State shall consider 
in determining to which country the person should be 
surrendered. Such factors include: (1) whether the requests 
were made pursuant to a treaty; (2) the place where each 
offense for which extradition is requested was committed; (3) 
the gravity of the respective offenses for which extradition is 
requested; (4) the respective interests of the Requesting 
States; (5) the possibility of further extradition between the 
Requesting States; and (6) the chronological order in which the 
requests were received from the Requesting States.
    This Article makes clear that the Requested State is not 
limited to the above enumerated factors but should consider all 
relevant factors in weighing its decision to which State to 
surrender the person sought. The enumerated factors, however, 
are intended to provide guidance to the Requested State and 
prevent arbitrary decisions. Among other things, the enumerated 
factors recognize: (1) the precedence of requests for which 
there is a treaty obligation to extradite over requests for 
which there is no such obligation; (2) the importance of 
surrendering the person to the State where the principal 
individual or societal harm was done as a result of the 
offenses, where the most serious charges are being pursued, or 
where there is otherwise the greatest interest in prosecuting 
the person sought; (3) the importance of each Requesting 
State's ability to subsequently extradite the person to another 
Requesting State for prosecution, so as to ensure that the 
person can be prosecuted to the fullest extent possible; and 
(4) the precedence of a request received first in time.
    For the United States, the Executive Branch will make the 
decision to which country the person should be surrendered in 
accordance with this Article.\68\ The Argentine delegation 
advised that, for Argentina, the competent authority would 
likely be the judicial branch.

             Article 15--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. As such, 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 to the Requested State as soon as practicable. 
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 16--Rule of Speciality

    This Article covers the principle known as the rule of 
speciality, which is a standard aspect of United States 
extradition practice. Generally, the rule of speciality 
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. 
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 differently denominated or 
less serious offense that nonetheless is based on the same 
facts as the offense for which extradition was granted provided 
such offense is extraditable;\69\ (2) an offense committed 
after extradition\70\; or (3) any other offense for which the 
Requested State gives consent.\71\ 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 8 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.
    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.\72\
    Finally, paragraph 3 removes the restrictions of paragraphs 
1 and 2 on 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.\73\

                   Article 17--Waiver of Extradition

    Persons sought for extradition frequently elect to waive 
their right to extradition proceedings in order to expedite 
their return to the Requesting State.\74\ 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 8, 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, 
it would not be deemed an ``extradition'', and therefore the 
rule of speciality in Article 16 would not apply.

                          Article 18--Transit

    At times, law enforcement authorities escorting a 
surrendered person back 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 be transited.\75\
    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 Argentine Ministry of Foreign 
Relations or through the facilities of the International 
Criminal Police Organization (INTERPOL). Transit requests must 
contain a description of the person being transported and a 
brief statement of the facts of the case upon which his 
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.

                Article 19--Representation and Expenses

    Paragraph 1 of this Article provides that authorized 
representatives of the Requested State shall advise, assist, 
appear in court on behalf of, and represent the interests of 
the Requesting State in any proceedings related to a request 
for extradition.\76\
    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.
    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 the fugitive for damages, reimbursement, or legal 
fees, or other expenses occasioned by the execution of the 
extradition request.\77\

                    Article 20--Competent Authority

    This Article states that, for the United States, the term 
``competent authority'', as used in the Treaty, means the 
appropriate authorities of the executive branch.
    The term ``competent authority'' is used in Articles 4, 14, 
and 16 of the Treaty, and this provision was included to make 
clear that the executive branch of the United States will make 
the decisions under those Articles concerning: (1) whether an 
extradition request was 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.
    Under United States law and practice, it is well-
established that the executive branch is the competent 
authority for making such decisions. Accordingly, this Article 
neither expands the power of the executive nor diminishes the 
power of the judiciary beyond that which is already recognized 
in U.S. extradition law.
    This Article was made to apply only to the United States 
because the Argentine delegation maintained that, under 
Argentine extradition practice, the ``competent authority'' as 
used in the Treaty may in some cases be the Argentine judicial 
branch.

                        Article 21--Consultation

    This Article provides that the Parties may 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. 
This is a standard provision in modern U.S. extradition 
treaties.\78\

                        Article 22--Application

    This Article, like its counterparts in many of the other 
United States extradition treaties negotiated in the past two 
decades,\79\ expressly makes the Treaty retroactive to cover 
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.\80\ Extradition treaties do not, of course, make 
acts crimes. They merely provide a means by which persons who 
committed acts that were criminal offenses at the time of their 
commission can be held to answer for those offenses.\81\

      Article 23--Ratification, Entry Into Force, and Termination

    This Article contains standard treaty provisions regarding 
the ratification, entry into force, and termination of the 
Treaty. Paragraph 1 provides that the Treaty shall be subject 
to ratification, and that instruments of ratification shall be 
exchanged as soon as possible. Paragraph 2 provides that the 
Treaty will enter into force the day after the date of the 
exchange of the instruments of ratification.
    Paragraph 3 of this Article provides that the 1972 treaty 
shall cease to be in effect upon entry into force of this 
Treaty. Nevertheless, the 1972 treaty shall continue to apply 
to extradition proceedings in which extradition documents have 
already been submitted to the courts when this Treaty enters 
into force. Paragraph 3 contains additional caveats, however, 
that Article 17 of this Treaty (waiver of extradition) shall 
apply to such proceedings,\82\ and Article 16 of this Treaty 
(rule of speciality) shall apply to persons found extraditable 
under the 1972 treaty.\83\
    Paragraph 4 of this Article 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 Extradition Treaty Between The United States 
     of America and the Republic of Austria signed January 8, 1998

    On January 8, 1998, the United States signed a treaty on 
extradition with the Republic of Austria (hereinafter ``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 will replace the treaty now in 
force,\84\ and constitutes a major step forward in the United 
States' efforts to win the cooperation of key foreign countries 
in combating transnational organized crime, terrorism, and 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. The Republic of 
Austria has its own internal law\85\ that will apply to United 
States' requests under the Treaty.
    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 
notes. 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, like the first article in every recent United 
States extradition treaty, formally obligates each Contracting 
State to extradite to the other Contracting State persons 
charged with or found guilty of an extraditable offense, 
subject to the provisions of the Treaty. The article refers to 
authorities ``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 
authorities as well as federal cases. The term ``found guilty'' 
was used instead of ``convicted'' because in Austria a person 
is not considered convicted until a sentence has been imposed, 
whereas in the United States, a sentence is ordinarily not 
imposed on a convicted person until after a presentence report 
has been prepared and reviewed. Thus, sentencing in the United 
States may occur at some considerable time after there has been 
a finding of guilt. The negotiators intended to make it clear 
that the Treaty applies to persons adjudged guilty who flee 
prior to sentencing.\86\

                    Article 2--Extraditable Offenses

    This article contains the basic guidelines for determining 
what constitutes an extraditable offense. The Treaty, like the 
recent United States extradition treaties with Jamaica, Jordan, 
Italy, Ireland, Thailand, Sweden (Supplementary Convention) and 
Costa Rica, does not list the offenses for which extradition 
may be granted. Instead, paragraph 1 permits extradition for 
any offense which is subject under the laws in both Contracting 
States to deprivation of liberty (i.e., imprisonment or other 
form of detention) for more than one year, or by a more severe 
penalty (such as capital punishment under the laws in the 
United States). 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 Contracting States pass laws dealing 
with a new type of criminal activity, or if the list 
inadvertently fails to cover a type of criminal activity 
punishable in both nations.
    Paragraph 2 requires that if the person has already been 
convicted and sentenced, the person must have at least three 
months of that sentence still to serve. Most U.S. extradition 
treaties signed in recent years do not contain such a 
requirement, but provisions of this kind do appear in some 
recent United States extradition treaties.\87\
    Paragraph 3 states that when extradition has been granted 
for an extraditable offense, it shall also be granted for any 
other offense even if the time conditions in Paragraphs 1 and 2 
do not apply, provided that all of the other requirements for 
extradition are met. For example, if Austria agrees to 
extradite to the United States a fugitive wanted for 
prosecution on a felony charge (punishable by more than one 
year of imprisonment), the United States may also obtain 
extradition for any misdemeanor offenses (punishable by a 
shorter sentence) that have been charged, as long as those 
misdemeanors are also recognized as criminal offenses in the 
Republic of Austria. Thus, the Treaty incorporates recent 
United States extradition practice by permitting extradition 
for misdemeanors committed by a fugitive when the fugitive's 
extradition is granted for a more serious extraditable offense. 
This practice is generally desirable from the standpoint of the 
Requesting State in that it permits all charges to be disposed 
of more quickly, thereby facilitating trials while evidence is 
fresh and a concurrent sentence is possible. Similar clauses 
are found in our recent extradition treaties with Australia, 
Ireland, Italy, and Costa Rica.
    Paragraph 4 reflects the intention of the Contracting 
States to interpret the principles of this article broadly. 
Subparagraph (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 of the Contracting States. Subparagraph (B) prevents 
extradition from being denied in tax, customs duties, or import 
or export of commodities solely because the Requested State 
does not have the same taxes, currency controls, or import-
export laws. This was included to override Section 15(2) of 
Austrian Extradition Law, which would otherwise forbid 
extradition for crimes that are exclusively tax, customs, or 
import offenses. Subparagraph (C) was included because judges 
in foreign countries often are 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 judges know of no similar 
requirements 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, Austria's authorities must treat United 
States mail fraud charges\88\ in the same manner as fraud 
charges under state laws, and view the federal crime of 
interstate transportation of stolen property\89\ as they would 
unlawful possession of stolen property.
    Paragraph 5 follows the practice of recent extradition 
treaties in providing that extradition be granted for 
attempting or conspiring to commit, or otherwise participating 
in the commission of an extraditable offense. As conspiracy 
charges are frequently used in United States criminal cases, 
particularly those involving complex transnational criminal 
activity, it is especially important that the Treaty be clear 
on this point. Thus, Paragraph 5 makes it clear that crimes, 
such as attempts and conspiracy, that might be considered 
inchoate are extraditable if the related offense is an 
extraditable one pursuant to paragraph 1.
    Paragraph 6 deals with the fact that federal crimes may 
involve acts committed wholly outside United States territory 
by providing that either State may grant extradition for an 
extraditable offense regardless of where the act or acts 
constituting the offense were committed. Our jurisprudence 
recognizes the jurisdiction of our courts to hear criminal 
cases involving offenses 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 such jurisdiction.\90\ The 
Austrian Government's ability to prosecute extraterritorial 
offenses is also quite wide, for its law gives it extensive 
jurisdiction to prosecute for extraterritorial offenses and an 
obligation to prosecute offenses committed by Austrian 
nationals anywhere in the world provided that the acts 
constituting the offense were punishable at the place of 
commission.\91\ Paragraph 6 reflects the Parties' agreement 
that either State may grant extradition to each other for 
extraterritorial offenses regardless of where the offense was 
committed.\92\ A similar provision is contained in other recent 
U.S. extradition treaties.\93\

                         Article 3--Nationality

    Article 3 states that neither State shall be bound to 
extradite its own nationals, but the executive authority of the 
Requested State shall have the power to do so [if, in its 
discretion, it be deemed proper to do so and] provided that the 
law of the Requested State does not so preclude. The United 
States does not deny extradition on the basis of the offender's 
citizenship.\94\ Our long-standing policy is to draw no 
distinction between citizens and others for extradition 
purposes. Austria, however is specifically prohibited under its 
extradition law from extraditing its nationals.\95\ Therefore, 
it is unlikely that Austria will actually surrender its 
nationals to the United States under the Treaty unless 
Austria's law and policy changes.
    Paragraph 2 states that if the Requested State denies 
extradition solely on the basis of the nationality of the 
offender, that State must submit the case to its authorities 
for prosecution if requested to do so by the Requesting State. 
Similar provisions are in many of our extradition treaties.\96\

               Article 4--Political and Military Offenses

    Paragraph 1 prohibits extradition if the offense for which 
extradition is requested is a political offenses.\97\ This is a 
standard provision in recent United States extradition 
treaties.
    Paragraph 2 describes three categories of offenses that 
shall not be considered political offenses.
    First, the political offense exception does not apply to 
murder, against any person or under any circumstances.
    Second, the offense does not apply to any other willful 
crimes against the person of a Head of State of one of the 
Contracting States, or a member of the Head of State's family.
    Third, the political offense exception does not apply to 
offenses for which both Contracting States have an obligation 
pursuant to a multilateral international agreement either to 
extradite the person sought or to submit the case to their 
competent authorities for decision regarding prosecution, such 
as the 1988 UN Convention Against the Illicit Traffic in 
Narcotic Drugs and Psychotropic Substances.\98\
    Paragraph 3 provides that extradition shall not be granted 
if the executive authority of the Requested State determines 
that the request is politically motivated.\99\ United States 
law and practice have been that the Secretary of State has the 
sole discretion to determine whether an extradition request is 
based on improper political motivation.\100\
    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.\101\

             Article 5--Jurisdiction of the Requested State

    Paragraph 1 permits the Requested State to refuse 
extradition if the person sought is being prosecuted in the 
Requested State for the offense for which extradition is 
requested. This provision was included to keep the treaty 
consistent with Austrian law.\102\
    Paragraph 2 makes it clear that either Party may grant 
extradition where the Requested State's authorities have 
declined to prosecute the offender, or have instituted criminal 
proceedings against the offender and thereafter elected to 
discontinue the proceedings. This provision was included 
because a decision by the Requested State to forego 
prosecution, or to drop charges already filed, could be the 
result of a failure to obtain sufficient evidence or witnesses 
for trial, whereas the prosecution in the Requesting State 
might not suffer from the same impediments. This provision 
should enhance the ability to extradite to the jurisdiction 
with the better chance of a successful prosecution.\103\

                       Article 6--Non Bis in Idem

    This article permits extradition when the person sought is 
charged by each Contracting State with different offenses 
arising out of the same basic transaction.
    Paragraph 1, which prohibits extradition if the person 
sought has been convicted or discharged with final and binding 
effect in the Requested State for the offense for which 
extradition is requested, is similar in effect to language 
present in many United States extradition treaties. This 
provision applies only when the person sought has been 
convicted or acquitted in the Requested State of exactly the 
same crime that is charged in the Requesting State. It is not 
enough that the same facts were involved. Thus, if the person 
sought is accused by one Contracting State of illegally 
smuggling narcotics into that country, and is charged by the 
other Contracting State with unlawfully exporting the same 
shipment of drugs, an acquittal or conviction in one 
Contracting State does not insulate that person from 
extradition because different crimes are involved.
    Paragraph 2 states that an acquittal or discharge for lack 
of jurisdiction is not an obstacle to extradition. This 
provision avoids the possibility of a miscarriage of justice if 
the Requested State were to attempt to prosecute a suspect over 
which it has no jurisdiction, discover that it cannot proceed, 
then use its error as a basis for shielding the suspect from 
extradition to the State that does have jurisdiction and wishes 
to prosecute.

                        Article 7--Lapse of Time

    Article 7 states that extradition shall not be granted if 
the prosecution or the carrying out of the sentence has become 
barred by lapse of time under the laws of the Requesting State. 
The reference to ``the carrying out of the sentence'' reflects 
the fact that Austria, like many civil law countries, has a 
statute of limitations relating to such matters, in addition to 
a statute of limitation on prosecutions.
    Under this provision a court in the Requested State will 
not apply the Requested State's statute of limitations under 
the erroneous belief that it should do so in order to determine 
whether dual criminality exists. The article permits 
extradition to be denied only if the Requesting State's statute 
of limitations bars prosecution or enforcement of the sentence. 
Several recent U.S. extradition treaties contain similar 
provisions.\104\

                     Article 8--Capital Punishment

    This article was the subject of extensive discussion 
between the two delegations, inasmuch as the revision of this 
provision of the 1930 Convention was an important objective for 
the Austrian delegation. Austria's Constitution forbids the 
death penalty,\105\ and Austria regards the extradition of a 
person from Austria to face execution or even the imposition of 
the death penalty in the United States as inconsistent with its 
Constitution. Austrian law explicitly requires that ``in 
respect of an offense punishable by the death penalty according 
to the law of the requesting state [extradition] shall be 
allowed only if it is guaranteed that the death penalty will 
not be pronounced. An extradition for enforcement of the death 
penalty shall not be allowed.''\106\
    Paragraph 1 permits the Requested State to refuse to 
extradite when 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 an assurance that the death penalty 
will not be imposed (in the case of a person sought for trial) 
or carried out (in the case of a person already sentenced to 
death at the time extradition is requested). The Austrian 
delegation told the United States delegation that it is 
virtually inconceivable that Austria would ever grant 
extradition without the assurances described in this paragraph, 
which is similar in spirit and effect to provisions found in 
other recent United States extradition treaties.\107\
    Paragraph 2 provides that when the Requesting State gives 
assurances in accordance with paragraph 1, extradition shall be 
granted, and the assurances shall be binding on the Requesting 
State.

                   Article 9--Convictions in Absentia

    This article states that if the person sought was convicted 
in absentia, the Requesting State's executive authority may 
refuse extradition unless the Requesting State supplies 
information demonstrating that the person has been given an 
adequate opportunity to present a defense to the charges. This 
paragraph will enable the Secretary of State to carry out the 
long-standing United States policy of extraditing persons who 
were convicted in absentia only when the person has had or will 
have a meaningful opportunity in the Requesting State to be 
heard on the issue of guilt or innocence. A similar provision 
is found in some other U.S. extradition treaties.\108\

       Article 10--Extradition Procedures and Required Documents

    This article sets forth the documentary and evidentiary 
requirements for an extradition request. Similar articles are 
present in most recent United States 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 the 
provisional arrest of the person sought pursuant to Article 13. 
Provisional arrest requests need not be initiated through the 
diplomatic channel provided that the requirements of Article 13 
are met.
    Paragraph 2 outlines the information that must accompany 
every request for extradition under the Treaty. Paragraph 3 
describes the additional information needed when the person is 
sought for trial 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 tried and 
found guilty in the Requesting State.
    Most of the items listed in paragraph 2 enable the 
Requested State to determine quickly whether extradition is 
appropriate under the Treaty. For example, paragraph 2(c) calls 
for ``the text of the law describing the essential elements of 
the offense for which extradition is requested,'' which enables 
the Requested State to determine easily whether the request 
satisfies the requirement for dual criminality.
    Paragraph 3 requires that if the fugitive has not yet been 
convicted of the crime for which extradition is requested, the 
Requesting State must provide a copy of the arrest warrant, a 
copy of the charging document, if available, and ``documents 
setting forth sufficient information to provide 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 provision is meant to 
satisfy the standard of ``probable cause,'' under which our 
courts permit extradition if there is probable cause to believe 
that an extraditable offense was committed and that the 
fugitive committed it.\109\
    Paragraph