Memorandum Prepared in the Division of Near Eastern Affairs
Proposed Extradition Treaty Between the United States and Egypt
The United States has always maintained that the Extradition Treaty of 1874 between the United States and the Ottoman Empire, a copy of which is attached, applied to Egypt. Prior to the World War the Egyptian authorities were inclined to the opinion that the treaty did not apply to Egypt since they had never been informed thereof by the Ottoman Porte. Since the War there has been no real test of the question, but it is probable that the Egyptians have not changed the opinion [Page 842] which they held previously. In any event the treaty of 1874 with the Ottoman Empire is obsolete and covers only a limited number of offenses and crimes.
Since Egypt is an extraterritorial country, it might be thought that an extradition treaty is unnecessary, but it has not been the practice of this Government, with two notable exceptions during and immediately after the Civil War, to seize its nationals in extraterritorial countries without extradition formalities and return them to the United States for trial or sentence.
The United States exercises extraterritorial jurisdiction in Egypt through the minister and consuls of the United States. In connection with the question of whether or not it is necessary to proceed, in countries where extraterritorial jurisdiction is exercised, under the terms of an extradition treaty in order to return fugitives from justice to the United States, the following statements from Moore on Extradition. Volume I, pages 100–103,3 may be cited:
“Where by treaty or by custom foreign nations exercise in a particular country extraterritorial jurisdiction through their minister or consuls, it is the rule to regard the recovery of their fugitive subjects, charged with ordinary crimes, as an incident of such jurisdiction. Such has been the case with respect to the dominions of the Ottoman Porte, China, Japan, and other countries where extraterritorial jurisdiction is exercised. The United States, however, has not generally sought to enjoy this privilege, but has, on the other hand, in two cases, those of the Ottoman Empire in 1874, and Japan in 1886,4 entered into treaties of extradition with the governments of countries in which citizens of the United States are entitled to extraterritoriality.”
This statement regarding the practice of the United States is correct and so far as the Department is aware there have been but two exceptions to this rule of practice. One exception was the case of John H. Surratt, who was arrested at Alexandria, Egypt, in 1866, and sent to the United States on an American man-of-war by Mr. Hale, the United States Consul at that port. Surratt was accused of complicity in the assassination of President Lincoln and this may well account for the departure in this case from the practice of this Government. It may be noted that this occurred eight years before our Extradition Treaty of 1874 with the Ottoman Empire.
The other exception is that of the case of Messrs. Myers and Tunstall, two American citizens who were members of the crew of the Confederate steamer, Sumter, and who in February, 1862, were arrested by the United States Consul in Tangier, Morocco, and placed on board an American man-of-war for transportation to the United States. (Moore’s [Page 843] International Law Digest, Volume II, page 663 .) The existence at that time of a state of civil war in this country may well account for the departure in this case from the usual practice.
The fact that an extradition treaty with the Ottoman Empire was negotiated as long ago as 1874, when the capitulations were in full force in Turkey, is evidence that the Department considered an extradition treaty with extraterritorial countries necessary.
With a view to the conclusion of a comprehensive extradition treaty between the United States and Egypt, the Department instructed the Minister at Cairo, Egypt, under date of June 4, 1931, to present to the Egyptian Foreign Office a draft of such a treaty with a request that consideration be given to its conclusion at an early date.
It may be pointed out that if and when the proposed treaty comes into effect the Department may find that it will be possible to extradite from Egypt only American nationals and the nationals of non-capitulatory Powers, since Article VIII provides that neither party shall be obliged to surrender its own nationals (consequently we shall not be able in practice to obtain the extradition of Egyptian nationals) and since there is little doubt that the Egyptian Government is not competent to seize and turn over to us the nationals of capitulatory Powers.
The new treaty will be advantageous to us in that it will definitely establish the basis for extradition from Egypt and will increase considerably the list of offenses for which we can request extradition from that country.