Last week Third Secretary Allen called at the Foreign Office to
inquire regarding the status of the case. He was informed that the
draft treaty had been referred to Bedaoui Pasha, the Legal Adviser
to the President of the Council of Ministers. Mr. Allen asked
whether it might be appropriate for him to call on Bedaoui Pasha in
order to ascertain what consideration was being given to the treaty
and how soon a reply might be expected. The Foreign Office thought
that the negotiations might be hastened by such a visit and arranged
an interview for Mr. Allen with Bedaoui Pasha.
There is enclosed herewith a memorandum of the conversation which
took place at this interview.
[Enclosure]
Memorandum by the Third Secretary of
Legation (Allen)
Cairo, November 10, 1937.
I called this evening, by appointment made through the Foreign
Office, on Badaoui Pasha, Legal Adviser to the President of the
Council of Ministers, to inquire regarding the draft extradition
treaty, which had been submitted to the Egyptian Government on
August
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30, 1937.
Badaoui Pasha said that the draft had been sent to his office to
study several weeks ago, and apologized for the fact that his
assistants had not referred the matter to him sooner. He said
that he had just obtained the file, as a result of the
Legation’s request for an interview.
During our conversation, discussion was based largely on the five
points raised by the Egyptian Government during the negotiations
of 1931–1933 (Legation’s despatch no. 604 of November 22,
193262).
Badaoui Pasha stated that the first observation made by the
Egyptian Government in 1932, regarding certain special
provisions which might be necessary in the Treaty because of the
capitulatory régime then in force could now be entirely
disregarded and the Treaty negotiated without consideration of
any limitations on Egyptian sovereignty.
In 1932 the Egyptian Government suggested that to include in the
Treaty a list of extraditable crimes (Article 2) would be to
risk incompleteness. Egypt preferred a general formula providing
for extradition in case of crimes involving a year’s
imprisonment or more. Badaoui Pasha was inclined to believe that
the Egyptian suggestion was still valid. I pointed out to him
that although he would understand that I was not in a position
to discuss the details of the Treaty and had called principally
for the purpose of finding out the status of the case, I might
say that in examining most of the recent extradition treaties
the United States had negotiated, including one in 1932 [1931] with Great Britain,63 I had observed that a
list of extraditable crimes was usually included in the Treaty,
and that experience must have proved that there was a valid
reason therefor. I suggested that the criterion of a year’s
imprisonment might not be satisfactory due to the wide
divergence of penalties in different countries, and that there
was an obvious advantage to be gained from having all of our
extradition treaties on the same general plan. I said that the
United States had been one of the foremost countries interested
in the matter of extradition, and that I would presume that
uniformity in our treaties was desirable in order that advantage
might be taken of the great body of judicial interpretations
which had doubtlessly developed in the United States regarding
the treaties already in force.
Badaoui Pasha said that he could appreciate the argument for
uniformity, particularly as regards judicial interpretations. He
said that in the only full extradition treaty which Egypt has
yet attempted to negotiate, that with Palestine a few years ago,
the formula of crimes involving one year’s imprisonment had been
decided upon, but he indicated that the Egyptian Government
might be brought to appreciate the advantage of including a
specific list of crimes in the Treaty with us.
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(The Palestine Treaty was never ratified.)
In 1932 the Egyptian Government suggested that the American
formula for political crimes (Article 3) was not sufficiently
inclusive in its exemption of attempts against the person of the
King. Badaoui Pasha asked if I could say anything on this point.
I replied that I could only say that the provision regarding
political crimes in our recent treaty with Great Britain, also a
constitutional monarchy, appeared to make no exemptions
whatsoever regarding attacks against the head of the State.
Badaoui Pasha said that he would be very interested to see the
British Treaty.
In 1932 the Egyptian Government pointed out that our draft
(Article 5) provides that there shall be no grounds for
extradition if, according to the laws of the country within the
territory of which the crime was committed, the fugitive could
not be prosecuted or punished because of lapse of time. Badaoui
Pasha thought that the statute of limitations in both the
country applying for extradition and the country applied to
should be taken into consideration. I replied that I was not in
a position to make any observations on this point.
In 1932 the Egyptian Government had objected to the provision in
article 11 of our draft making the treaty applicable to all
territory under the control of the high contracting parties.
Badaoui Pasha stated that the question of the Sudan was still in
the minds of the Egyptians, and that the method of making
treaties applicable to the Sudan had still not been entirely
established. He said that in the past the British Government has
made treaties applicable to the Sudan and has simply notified
the Egyptian Government of its action. He said that as a result
of the recent Anglo-Egyptian Treaty of Alliance,64 the former method of making
treaties applicable to the Sudan might not be sufficient. He
said that he presumed that in the present instance the American
Government was primarily interested in an extradition treaty
with Egypt and that if the Egyptian Government did not desire to
enter into the question, at the present time, of the negotiation
of treaties applicable to the Sudan, it might be supposed that
the American Government would prefer a treaty applicable to
Egypt alone rather than no treaty at all. I said that I felt
confident that the American Government desired to have all parts
of the world Covered by an extradition treaty, and suggested
that Egypt might sign a treaty applicable to all territory under
Egyptian control, it being naturally understood that such a
treaty would run to the same extent and degree as Egyptian
sovereignty. Bedaoui Pasha said that the question would be given
most careful consideration and that he felt
[Page 677]
sure that the question of the
Sudan would not prevent the conclusion of the proposed
treaty.
In 1932, the Egyptian Government expressed its inability to
understand why a difference was made in Article 7 of the draft
treaty regarding the period of time within which extradition
documents should arrive after provisional arrest. (The draft
provides that Egyptian extradition documents must arrive in the
United States within two months after the date of commitment,
and that American documents must arrive in Egypt within two
months after the date of arrest). Bedaoui Pasha said he still
did not understand the divergence. I suggested that the Egyptian
interpretation of the term “commitment” might not be correct,
since “commitment” as used in Article 7 might not refer to the
commitment of the crime, as the Egyptian Government had
interpreted it, but to some legal meaning of the term, such as
“commitment to jail”. I reiterated the fact that my discussion
of these points was entirely unofficial so far as the American
Government was concerned, and that I had no background regarding
the terminology of the treaty.
Bedaoui Pasha expressed full appreciation for the visit, and said
he was glad that the Legation had reminded him of the
negotiations, which the Government, now freed from consideration
of capitulatory problems, would actively pursue. He said that no
other power had yet approached Egypt regarding an extradition
treaty, but that there was no country better than the United
States with which to begin their negotiations. In answer to a
question, he said that he saw no reason why our treaty should
not be proceeded with now to its conclusion and that the
Egyptian Government would not have to wait until it had received
proposals from other powers. He asked me if I would let him have
copies of two or three of our more recent extradition treaties,
including that with Great Britain and at least one with a
country following the Civil Code legal system, such as France or
Italy. I agreed to send the copies to him.
