The World

Mexico Could Finally Confront the Trump Administration After El Paso. But Does It Want To?

A U.S. Border Patrol agent detains a migrant.
A U.S. Border Patrol agent detains a migrant at the border of the United States and Mexico on March 31 in El Paso, Texas. Justin Sullivan/Getty Images

On March 14, 1891, 11 Italian Americans were killed by a mob at a New Orleans jail—the largest single mass lynching in American history. The men had been accused of involvement in the murder of a popular police chief—though three had just been acquitted—at a time of growing discrimination against Italian immigrants. As an incident of state-abetted racist violence, it was hardly unique, but this one also became an international incident. The lynching prompted the Italian government to close its embassy in Washington and the U.S. to close its embassy in Italy. Relations between the two countries took years to recover.

The incident bears some resemblance to the Mexican government’s furious reaction to the killing of more than 20 people, including eight Mexican citizens, in a racist attack in El Paso, Texas, last Saturday. This was a blatant attack on the Mexican and Latin American community in a city with deep and long-standing cultural ties to communities across the border. Nobody’s talking about closing embassies, but El Paso does feel like a turning point for a Mexican government that has been reluctant to challenge this U.S. administration.

“The Mexican government has certainly understood that this terrorist attack targeting Latinos and Mexican Americans requires emphatic legal and diplomatic responses,” former Mexican Ambassador to the U.S. Arturo Sarukhan wrote to me by email. “And that needs to translate into an unequivocal and public condemnation by [Mexican President Andrés Manuel] Lopez Obrador of the poisonous brew of white supremacism and chauvinistic xenophobia, turbocharged by the tirades emanating from the Oval Office. Courtesy and courage are not mutually exclusive, and appeasement should no longer be the response to Trump.”

The question is, what can Mexico actually do? On Monday evening, Foreign Minister Marcelo Ebrard outlined several possible steps. Officials are considering supporting a lawsuit against the seller of the weapon used in the assault, sending a diplomatic note to Washington demanding that the administration take a firm stand against hate crimes, joining with other Latin American countries to discuss ways to promote the safety of immigrants in the U.S., and filing its own criminal charges against the gunman.

Mexico could attempt to extradite Patrick Crusius, the suspect in U.S. custody, in what Ebrard believes would be the first such incident in the history of U.S.-Mexican relations.

There is precedent for extradition under international law. Chimène Keitner, a professor of international law at the University of California–Hastings College of the Law, notes that, under what’s known as the passive personality principle, “states can criminalize conduct that harms their citizens overseas.” The United States has used this principle on several occasions to prosecute terrorists who kill Americans in other countries. The principle is generally used for crimes, like terrorism, with a transnational dimension.

Perhaps to bolster the case for extradition, Ebrard emphasized in his statement that “for Mexico, this individual is a terrorist”—a designation the U.S. administration has not yet used.

It’s also not unheard of for one individual to face charges and jail time in multiple countries—former dictator Manuel Noriega served prison sentences in the United States and France before being returned to face time in his home country, Panama.

This is very unlikely in the case of the El Paso suspect, Crusius. It’s hard to imagine the U.S. government agreeing to extradite him to Mexico, and certainly not until after he is tried—and most likely given a life sentence or the death penalty—in the United States.

Mexico could also respond through its network of 50 consulates throughout the United States—the most any one country has in another country anywhere in the world. Alexandra Délano, a professor at the New School who studies Mexican and Central American immigration to the United States, notes that the activities of these consulates already go beyond those of a traditional diplomatic facility, acting a bit more like community centers that “promote education, health, financial literacy, and community organization so that immigrants can participate more actively in their communities.”

Their work has only taken on greater urgency in recent years. “What they’ve done in the last decade or so in the context of deportations and rising anti-immigrant sentiment is to strengthen their legal protection services, providing representation and information for immigrants on how they can protect themselves,” says Délano.

She says that in addition to building on their existing work, these facilities could do more to “create coalitions of Mexican with Central American and South American consulates to promote the inclusion and empowerment of immigrant communities.”

As for more direct action, UC–Hasting’s Keitner notes that in the past, countries have claimed “diplomatic protection” for their citizens abroad, taking legal actions when they feel the rights of those citizens are violated. “Mexico could certainly espouse compensation claims through diplomatic channels and allege a failure on the part of the United States adequately to protect Mexican nationals,” she says. However, such cases are usually resolved to consensual arbitration, and it’s hard to imagine the U.S. agreeing to enter such a process.

Mexico could also theoretically file a complaint against the U.S. in an international tribunal such as the Inter-American Commission on Human Rights, which also recently weighed in on the U.S. family separation policy. The U.S. is a party to the International Convention on the Elimination of All Forms of Racial Discrimination, under which it is required “not to sponsor, defend or support racial discrimination by any persons or organizations.” The Mexican government hasn’t explicitly accused the U.S. administration of doing that, but it’s come close. “The intentionality of the attack against the Mexicans and the Latino community in El Paso is frightening,” Mexico’s ambassador to the United States, Martha Bárcena, wrote on Twitter after the El Paso attack. “NO to hate speech. NO to xenophobic discourse.”

But even if Mexico could make the case that the Trump administration’s rhetoric or policies toward Latino immigrants were in violation of international law, the United States doesn’t recognize the authority of international courts like the IACHR. This disregard has become even stronger under Trump and his national security adviser, John Bolton, who is somewhat obsessed with the topic of international law—and there would be no binding adjudication mechanism attached to an action like this. Still, it would be a significant symbolic step.

Ultimately, the question of how far Mexico will go to respond to this incident is more dependent on politics than the law. Leftist President Andrés Manuel López Obrador is a longtime champion of the rights of Mexican immigrants in the United States, and when he was elected last year, many hoped it would bring an end to the previous administration’s ill-fated attempts to placate Trump. Instead, as Trump has wielded the threat of tariffs and López Obrador’s government has sought to preserve relations with Mexico’s most important trading partner, he has mostly avoided confronting Trump directly. Mexico has also cooperated to a significant extent with the administration’s immigration crackdown. Even after U.S. border agents fired tear gas into Mexican territory at the beginning of this year, seemingly a blatant violation of Mexico’s sovereignty, the diplomatic response was limited. (The rising discrimination and the atmosphere of impunity for crimes inflicted on Central American migrants within Mexico also undercuts the government’s moral credibility, somewhat.)

It’s possible that El Paso will be a turning point, and there are legal and political avenues open to Mexico should it wish to respond. The question is whether it wants to.