Mexico’s threats to take legal action against the US for El Paso, explained

Mexico’s threats to take legal action against the US for El Paso, explained
HORIZON CITY, TEXAS - AUGUST 05: Mourners embrace at a vigil honoring Horizon High School sophomore Javier Amir Rodriguez, who lost his life in a mass shooting in nearby El Paso, on August 5, 2019 in Horizon City, Texas. The vigil was held at the school's football field. At least 22 people were killed at the shooting August 3. A 21-year-old male suspect remains in custody in El Paso which sits along the U.S.-Mexico border. President Donald Trump plans to visit the city August 7. (Photo by Mario Tama/Getty Images)

At least seven of the 22 people murdered in the mass shooting at a Walmart in El Paso, Texas, on Saturday were Mexican nationals, making it a tragedy that spans both sides of the US-Mexico border.

And Mexico’s government is promising to respond.

“We consider this an act of terrorism against the Mexican-American community and Mexican nationals in the United States,” Mexican Foreign Minister Marcelo Ebrard said Sunday at a press conference. “Mexico is outraged. But we aren’t proposing to meet hate with hate. We will act with reason and according to the law and with firmness.”

Mexico has said it will increase protections for its citizens in the United States and has also threatened to take legal action — including potentially filing a lawsuit against the seller of the assault weapon used in the attack and possibly seeking the extradition of the 21-year-old suspected shooter on terrorism charges.

Experts I spoke to say it’s unlikely Mexico would triumph if it chose to pursue extradition. But as mounting evidence suggests this was a racially motivated attack, the Mexican government may have reason to at least attempt it and put even a little pressure on the United States.

“For Mexico, this individual is a terrorist”

Ebrard on Sunday outlined a set of actions Mexico would take in response to the attack, including providing support for victims and their families and sending a diplomatic note to Washington asking the administration to take a strong stand against hate crimes.

He also said Mexico would try to get greater access to the US’s investigation into the El Paso suspect and the shooting, and that he would be asking Mexico’s attorney general to consider whether to seek the suspect’s extradition to Mexico so he could be tried on terrorism charges in that country.

An extradition request would certainly be a substantial ask on the part of the Mexican government.

“The US and Mexico have a very vibrant extradition treaty that is used all the time,” Emily Edmonds-Poli, a professor of political science and international relations at the University of San Diego, told me. “But it is generally the case that it’s the United States extraditing people from Mexico. It’s more of a one-way street.”

Mexico does have some legitimate legal standing, but it’s tricky

Scott R. Anderson, a fellow at the Brookings Institution think tank in Washington, told me that while countries traditionally handle the prosecution of crimes that happen on their own territories, that’s shifted a bit in recent years with the focus on transnational crime, including terrorism and drug cartels — an obvious example being the case of El Chapo.

The Mexico-US extradition treaty, he said, does allow for certain cases of extraterritorial jurisdiction — that is, instances where a country can prosecute crimes that happen outside of its borders. The first would be if the perpetrator came from the country making the extradition request, which would mean the shooter was a Mexican national, which doesn’t apply in this case.

The second is a trickier and involves crimes that both the requesting state (in this case, Mexico) and the state getting the request (in this case, the United States) recognize.

So there may be an argument there: The US can prosecute extraterritorial murders in certain instances, but it usually only steps in if the local jurisdiction doesn’t.

And, according to Anderson, the treaty also states that neither Mexico nor the US is obligated to extradite its own nationals, though both are obligated to prosecute them if possible — and the El Paso shooter will definitely face prosecution in the US, making Mexico’s argument difficult to make. The US also very rarely extradites its own citizens — the case being that the American legal system is robust enough that the accused will have a fair trial in the US.

“While the mechanisms are definitely there, and if the two countries wanted to do it, it could certainly happen, my gut reaction is it definitely won’t,” Edmonds-Poli said.

Foreign Minister Ebrand also said that Mexico would consider filing suit against the seller of the weapon used in the El Paso shooting, including investigating whether all the laws were followed or if any red flags were ignored.

Lawsuits brought by US citizens against gun sellers and gun manufacturers after mass shootings have had limited success in UScourts, so it’s unlikely that Mexico will get much traction there, either.

But Gustavo Flores-Macías, an associate professor at Cornell University, pointed out to me that these lawsuits could still put pressure on the US government and the authorities investigating the shooting to find out if the US failed to follow warnings or enforce background checks. Essentially, these lawsuits would serve to call attention to the US’s loopholes and lax regulations on firearms.

Any extradition request is as much a political question as a legal one

The El Paso shooter will likely spend the rest of his life in prison or face the death penalty in the United States — something the Mexican government is almost certainly aware of.

So why pursue extradition?

Some of it might have to do with the tense relationship between the US and Mexico. Mexico’s leftist President Andrés Manuel López Obrador, also known as “AMLO,” has faced pressure from the Trump administration throughout his tenure and has gone along with the United States on its immigration plans, including implementing the controversial “Remain in Mexico”policy under which the US forces asylum seekers to wait in Mexico while their US asylum claims are processed, regardless of their country of origin.

Critics have accused AMLO’s government of capitulating to Trump’s demands on immigration and trying not to upset the administration on issues like trade. But with the El Paso attack, Mexico can take a strong stand, proving that it’s protecting and defending Mexican citizens in the United States. These moves are “powerful for domestic consumption in Mexico, regardless whether legal actions in the US are successful,” Flores-Macías said.

AMLO himself has kept his language somewhat neutral, condemning the attack and criticizing the flow of firearms in the US but stopping short of provoking Trump or his administration. “We don’t want to interfere in the affairs of other countries. We’re going to continue sticking to the principles of non-intervention,” AMLO said Sunday, according to the Guardian.

Still, AMLO’s government is clearly putting some public pressure on the Trump administration here. It’s not clear how successful it will be, though. “Extraditions are often used as leverage points, or bargaining chips,” Edmonds-Poli said. But, she added, with the United States, “Mexico is always on the losing end of the asymmetry. They’re not playing from a place of strength.”

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