U.S. Senate, Report on U.S.-Hong Kong Extradition Treaty, August 19, 1997

Click here to download the full report. The report begins:

The Committee on Foreign Relations to which was referred the Agreement Between the Government of the United States of America and the Government of Hong Kong for the Surrender of Fugitive Offenders signed at Hong Kong on December 20, 1996, having considered the same, reports favorably there on with two understandings, two declarations, and one proviso, and recommends that the Senate give its advice and consent to the ratification there of asset forth in this report and the accompanying resolution of ratification.

Purpose

This agreement: (1) identifies the offenses for which extradition will be granted, (2) establishes procedures to be followed in presenting extradition requests, (3) enumerates exceptions to the duty to extradite, (4) specifies the evidence required to support a finding of a duty to extradite, and (5) sets forth administrative provisions for bearing costs and legal representation

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Summary

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 crimes against, or are fugitives from, the Requesting State. The United States is a party to approximately 100 bilateral extradition treaties, and several multilateral extradition treaties.

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 ofindividuals under treaties. In l995, 131 persons were extradited tothe U.S. for prosecution for crimes committed in the U.S, and the U.S. extradited 79 individuals to other countries for prosecution.Since 1991, in Hong Kong alone, 56 persons were extradited to theU.S. for narcotics-related crimes, 12 for white collar crimes, and 23 for violent and other crimes.

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 certification 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 inthe 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 isguilty 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 maybe 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).