GERMANY – Supplementary
BILATERAL EXTRADITION TREATIES
GERMANY – SUPPLEMENTARY
SUPPLEMENTARY EXTRADITION TREATY WITH THE FEDERAL REPUBLIC OF GERMANY
EXEC. REPT. 102-28
1986 U.S.T. LEXIS 159
October 21, 1986, Date-Signed
[NO LONG-GERMANY – Supplementary IN ORIGINAL]
TEXT:
102D CONGRESS
SENATE
Mr. PELL, from the Committee on Foreign Relations, submitted the following
REPORT
[To accompany Treaty Doc. 100-6]
The Committee on Foreign Relations to which was referred the Supplementary Treaty to the Treaty between the United States of America and the Federal Republic of Germany Concerning Extradition signed at Washington on October 21, 1986, having considered the same, reports favorably thereon without amendment and recommends that the Senate give its advice and consent to ratification thereof.
PURPOSE
A Supplementary Extradition Treaty with the Federal Republic of Germany, signed at Washington on October 21, 1986 was transmitted by President Reagan on June 25, 1987.
The United States’ first extradition relationship was contained in article 27 of the Jay Treaty with Great Britain in 1794, by which the United States re-established friendly relations after the War of Independence. The United States currently has extradition agreements with over 100 countries.
This treaty is part of the administration’s continued effort to modernize the legal tools available [*2] for the extradition of serious offenders such as narcotics traffickers and terrorists. The administration has informed the committee that the treaty is intended to be self-executing in the United States.
The treaty adopts a dual criminality approach in determining whether a particular offense is extraditable and eliminates the outdated list of extraditable offenses contained in the existing treaty with Germany. A dual criminality clause permits extradition for any criminal conduct that is punishable under the law of both states, whether dual criminality follows from Federal or State laws. In addition, dual criminality may include offenses based upon participation in an association whose aims and activities include the commission of extraditable offenses, such as an association involved in racketeering or criminal enterprise under the laws of the United States. Inclusion of a dual criminality clause obviates the need to renegotiate or supplement the treaty as offenses, such as computerrelated crimes or money laundering, become punishable under the laws of both states. This approach was most recently incorporated in the amendment to the Extradition Treaty with Canada (Treaty Doc. 101-17) [*3] approved by the Senate in 1991. It is also part of recent treaties with Costa Rica, Ireland, Italy, Jamaica, and Thailand.
POLITICAL OFFENSE EXCEPTION
The extradition treaty with Germany narrows the political offense exception to extradition requests to pure political and nonviolent crimes. This approach is the same as that contained in the Second Supplementry Extradition Treaty with Canada approved by the Senate in 1991. It does so by excluding specific crimes of violence, typically committed by terrorists, from the scope of the political offense exception to extradition (for example, murder, manslaughter, malicious wounding, inflicting grievous bodily harm, kidnaping, abduction, hostage taking, unlawful detention, illegal use of explosives and incendiary or destructive devices or substances; and attempt or conspiracy to commit such offenses).
The administration has stated that these changes reflect the basic principle that terrorist violence should not be tolerated against stable democracies, in which the political process is available to redress legitimate grievances and in which the judicial system provides fair treatment to an accused. The administration’s statement and the application [*4] of this narrower approach to the political offense exception to Germany appears to be consistent with this committee’s 1986 declaration, approved by the Senate in the Supplementary Extradition Treaty with the United Kingdom (Exec. Rept. 99-17), that this narrower exception not be included in treaties with countries considered to be totalitarian or nondemocratic.
This treaty also excludes from the political offense exception any offense for which the respective countries have an international obligation to extradite the person or submit a case for prosecution (for example, aircraft hijacking, aircraft sabotage, crimes against internationally protected persons, including diplomats, hostage taking, and narcotic trafficking).
COMMITTEE ACTION
On April 8, 1992, the committee held a hearing on this treaty. Testimony was received by Mr. Alan J. Kreczko, Deputy Legal Adviser, Department of State and Robert S. Mueller III, Assistant Attorney General, Criminal Division, Department of Justice.
The committee voted to report favorably the treaty, and recommend that the Senate give its advice and consent to ratification thereof, by a vote of 19 to 0 at a meeting on May 7, 1992. Those voting in [*5] the affirmative were Senators Pell, Biden, Sarbanes, Cranston, Dodd, Kerry, Simon, Sanford, Moynihan, Robb, Wofford, Helms, Lugar, Kassebaum, Pressler, Murkowski, McConnell, Brown, and Jeffords.
TEXT OF RESOLUTION OF RATIFICATION
Resolved, (two-thirds of the Senators present concurring therein), That the Senate advise and consent to the ratification of the Supplementary Treaty to the Treaty between the United States of America and the Federal Republic of Germany Concerning Extradition signed at Washington on October 21, 1986.
ADMINISTRATION STATEMENT
The administration has informed the committee that the extradition treaty currently in force with the Federal Republic already applies, and the pending Supplementary Treaty upon entering into force would also apply throughout Germany, including the five new eastern states which became a part of the Federal Republic upon unification on October 3, 1990. The Federal Republic of Germany has completed the internal steps necessary to ratify this treaty and is prepared to exchange instruments of ratification as soon as the United States internal ratification process is complete.
U.S. DEPARTMENT OF STATE,
Washington, DC, March 30, 1992 [*6] .
Hon. CLAIBORNE PELL,
Chairman, Foreign Relations Committee, U.S. Senate, Washington, DC.
DEAR MR. CHAIRMAN: On June 4, 1987, the President transmitted to the Senate for advice and consent to ratification the Supplementary Treaty to the Treaty Between the United States of America and the Federal Republic of Germany Concerning Extradition, signed at Washington on October 21, 1986. The Department of State hopes that this Treaty can be scheduled for early consideration by the Senate Foreign Relations Committee. The Supplementary Treaty with the Federal Republic of Germany represents an important step in improving bilateral law enforcement cooperation and, in particular, in enhancing cooperation between our two countries in the international effort to combat transnational crimes such as drug trafficking and terrorism. Cooperation between our two countries in these fields is close, excellent and ever-increasing.
The Department has received an inquiry from the committee staff concerning the implications that German unification may have for the application of this Treaty. Under international law, a treaty applies within the entire territory of each party, unless the treaty provides otherwise. [*7] Accordingly, the Extradition Treaty currently in force with the Federal Republic already applies, and this Supplementary Treaty upon entry into force would also apply, throughout Germany, including the five new eastern states which became a part of the Federal Republic upon unification on October 3, 1990.
As a matter of internal law, a unified criminal justice system based upon the West German criminal code, procedural rules and court system now extends throughout Germany pursuant to Article 8 of the Unification Treaty between the Federal Republic of Germany and the German Democratic Republic. Accordingly, the United States anticipates no problem with respect to full implementation of this Treaty throughout Germany.
The Federal Republic of Germany has completed the internal steps necessary to ratify this Treaty and is prepared to exchange instruments of ratification as soon as the United States’ internal ratification process is complete. Given the importance of this Treaty to our effort to enhance international cooperation in law enforcement, as well as the quality of our relations with the Federal Republic, the Department requests that the Senate Foreign Relations Committee include [*8] this Treaty in its consideration of Extradition Treaties on April 8 and give early and favorable consideration to its advice and consent.
Sincerely,
JANET G. MULLINS,
Assistant Secretary, Legislative Affairs.