From Hugs to Handcuffs

On 27 February, the Mexican government transferred 29 alleged drug lords to the US. Some of them, long wanted, had pending extradition proceedings. However, instead of undergoing the due process required for extradition, they were simply removed of their cells, put on a plane and sent to the USA. This act was termed a “deliver” by Mexico, while the US called it a “expulsion”. From a legal perspective, this raises a fundamental problem: The concept of “deliver”, as a legal procedure, is not contemplated in the Mexican legal system, and expulsion is only applicable to foreigners. Extradition, on the other hand, is the only acceptable legal procedure for handing over arrested persons to another country, but it must comply with a formal legal procedure. This is not just a semantic issue, just as calling a forced displacement a “relocation” does not change the fact that a person was removed from their home without following due process of law. While combating organised crime is crucial, by bypassing the rules for extradition, Mexico disregarded the rule of law and set a dangerous precedent for sovereignty and the protection of fundamental rights.

In the present text, I will briefly describe the political and legal context in which this decision was taken, followed by an analysis of the legality of the extraditions and a discussion of some of the issues and consequences that this handover entails for Mexico.

Political and legal context

Claudia Sheinbaum’s government, which began on 1 October 2024, promised continuity with the policies of her predecessor, Andrés Manuel López Obrador. Among them was the criminal containment strategy known as “abrazos no balazos” (hugs not bullets). Such policy was based on prioritising social programmes and economic development to address the causes of violence rather than resorting to military force. Instead of directly confronting the cartels with aggressive operations, as previous governments had done, this policy aimed to reduce violence by avoiding armed confrontations with organised crime. However, it was criticised for being perceived as a passive strategy that allowed the expansion of drug trafficking and increased insecurity in some regions of the country.

On 25 July 2024, Ismael “El Mayo” Zambada, the leader of the Sinaloa Cartel, was arrested by US officials in New Mexico when he appeared aboard a small plane. He reportedly attended a meeting in Sinaloa with the intention of mediating a political conflict between the state governor and the president of the local university. However, the meeting turned out to be a trap: the president was assassinated and Zambada was subdued and then flown in a small plane to the US. What remains unclear is the extent to which US agents were involved in his capture. This event destabilised the Mexican state of Sinaloa and the surrounding area, where the cartel is most entrenched. It also generated tensions between the Mexican and US governments, especially after the Mexican government called the capture “treason” and the president called for Zambada’s return to Mexico.

Zambada’s arrest occurred within a different political context, under the Biden administration and without the threat of tariffs on Mexico. The decision to surrender 29 alleged drug lords, on the other hand, occurred against a backdrop of international pressure, including threats of tariffs from the US and criticism over the handling of the fentanyl crisis as well as the declaration of some cartels as terrorist groups. Domestically, accusations regarding the Mexican government’s relationship with drug cartels further complicated the issue.

Deliver, extradition or expulsion?

Under current Mexican law, extradition, as a form of cooperation between the US and Mexico, must comply with formal requirements established in international treaties. The Extradition Treaty between Mexico and the US establishes, under Article 1, that extradition only proceeds if there is a correspondence between the crimes in both countries and if the process follows the corresponding diplomatic and judicial channels.

Extradition is a formal process but has an inherently political background. According to Art. 10 of the treaty, the extradition request is submitted through diplomatic channels, complying with certain formal requirements, and then passes through judicial control by means of a jurisdictional procedure (Art. 119 of the Mexican Constitution). According to Art. 8 of the treaty, extradition will be refused when the offence for which extradition is requested is punishable by death under the laws of the requesting party and the laws of the requested party do not permit such a penalty for that offence, unless the requesting party provides sufficient assurances that the death penalty will not be imposed or carried out. In addition, the treaty contains, as an annex, a catalogue of more than 30 crimes, including murder and corruption, without distinction as to the gravity of the offences or the urgency of the case.

However, according to the US authorities, the individuals they received were expelled by the Mexican government. This classification is legally problematic, as the Mexican Constitution protects citizens’ right not to be deprived of their nationality (Art. 14(3) of the Mexican Constitution) and “expulsion” is not considered a penalty.

On the other hand, the term “deliver” only appears in Art. 9(1) of the extradition treaty, which states:

“Neither Contracting Party shall be bound to deliver up its own nationals, but the executive authority of the requested Party shall, if not prevented by the laws of that Party, have the power to deliver them up if, in its discretion, it be deemed proper to do so.”

Accordingly, it is recognised that none of the contracting parties is obliged to surrender its nationals. However, the executive authority of the requested party has the power, if not prevented by its laws, to deliver them at its discretion. Nevertheless, such a power does not exempt compliance with legal procedures. In this case, the “deliver” of the 29 Mexican nationals was carried out without following due process, in violation of national and international law.

Judicial reform and the rule of law

The surrendering of these 29 Mexicans took place in a context of legal uncertainty due to the upcoming election of federal judges and Supreme Court justices in June. This election is a government-driven reform that proposes that Supreme Court justices, as well as federal judges and magistrates, be elected for the first time, by popular vote instead of the current process: Justices are appointed by the Executive and ratified by the Senate, and the rest of the judiciary is selected internally through exams.

This reform has generated intense debate, with advocates arguing that it democratises the judiciary and makes it more accessible to citizens. However, critics warn that it could politicise the judiciary, compromise its independence and weaken the rule of law by making judges dependent on popular and party political support rather than technical and legal criteria.

Some candidates, openly campaigning, have taken advantage of the situation to try to justify the extraditions. The main argument is that the president’s decision is justified under the constitutional “executive powers” to guarantee national security (Art. 89, section VI of the Mexican Constitution) and in the National Security Law, which in Art. 5, section III, recognises organised crime as a threat.

However, this interpretation is debatable and argumentatively problematic, as presidential powers must be maintained under the terms of the respective law and the National Security Law does not contemplate alternative mechanisms to the extradition process.

The president, like any other Mexican authority, is governed by the principle of legality (under Arts. 14 and 16 of the Constitution), which obliges her to act only within the limits of the law. The concept of executive powers referred to is not part of the Mexican legal system.

Furthermore, Mexican jurisprudence establishes that restrictions on rights should be interpreted as narrowly as possible, while protective norms should be applied as broadly as possible. To point out that judicial controls are obstacles is to deny the essence of a democratic legal system. The circumvention of these controls for extradition constitutes a weakening of the rule of law.

The moral dilemma

At this moment in time, there is nothing more unpopular in Mexico than refusing these extraditions or questioning the government’s actions. Drug trafficking has caused enormous damage to Mexico, and it is understandable that public opinion favours drastic measures against those responsible.

However, the issue lies not in the objective (fighting organised crime), but in the means employed. The lack of due process creates a dangerous precedent in a system that should guarantee the protection of individual rights.

The risk this delivery represents is that, in a liberal system, anyone, regardless of their status, could be treated in the same manner, without due process. This undermines the principles of justice and human rights. Applauding this act legitimises an illegal action by the state, potentially putting at risk the rights and freedoms of all citizens, as well as the integrity of legal institutions meant to protect them.

Consequences

Internationally, Mexico has maintained a commitment to respect the international rules-based system. This was demonstrated in the Avena case, where Mexico sued the US in the ICJ for failing to provide consular assistance to 52 Mexicans detained and sentenced to death in the US, in violation of the Vienna Convention. The ICJ ruled in favour of Mexico. And in the recent attack on its embassy in Ecuador, in April 2024, Ecuadorian police stormed the Mexican Embassy in Quito to arrest the former vice-president of Ecuador, who was seeking asylum there. Mexico denounced this action before the ICJ as a violation of the Vienna Convention, which protects the inviolability of diplomatic missions. However, the case at hand calls into question Mexico’s compliance with relevant law.

One of the reasons that justified the soft-on-crime policy, and which has been used to criticise Zambada’s arrest, is the fear of criminal groups fragmentation and the ensuing territorial and organizational conflicts. The fragmentation of criminal groups in Mexico is a consequence of the weakening of large criminal organisations, where the capture or elimination of leaders leads to infighting and the formation of smaller, autonomous cells. These new groups, while less organised, are often more violent and difficult to control, leading to increased competition for territory and illegal markets. Instead of weakening organised crime, this strategy has led to further dispersion and violence, further complicating the security situation in the country. The extradition of 29 cartel leaders may lead to fragmentation within criminal organizations, potentially resulting in an escalation of territorial violence at the national level.

Conclusions

The extradition of 29 Mexicans to the US without following legal procedures is an act of dubious legality. It sets a precedent that could be used in the future to justify arbitrary measures under the pretext of national security. This decision failed to curb US trade threats or reduce political pressure on the Mexican government. In a context of uncertainty, legal certainty is a fundamental pillar. Weakening it in response to external pressures could have even more serious long-term consequences.

The fight against organised crime must be a priority, but always within the framework of the rule of law. Accepting exceptions on the grounds of urgency undermines the very system it seeks to protect.