Late in 2012, Fox News covered the story of former Marine Jon Hammar, detained in Mexico on a firearms charge.  This prompted me to wonder whether, in place of a confrontation with the Mexican government, there may be a solution recognizing the legitimate interests of both sides.  This was what I came up with.

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Foxnews, with its usual eye for a story, has been drawing attention to the troubling case of former Marine Jon Hammar.  Mr Hammar, a Florida native, has been held in a Mexican prison on firearms charges since August.  The charges against him are less than stunning: it is alleged that he entered Mexico with a shotgun of which the barrel was one inch shorter than was lawful.  Not unreasonably, Foxnews has pointed out that this is a trifling matter for which to hold a veteran of Afghanistan and Iraq.  A letter from the Mexican ambassador, however, denies that the prosecutor can exercise any discretion.

There may be more to Mr Hammar’s case than the story of an unfortunate ex-Marine and an antique shotgun.  Some of the Mexican firmness might be traced to another case entirely: that of Jose Medellin.

Some readers may remember that the thoroughly repulsive Mr Medellin was executed in Texas in 2008 for the rape and murder of two teenage girls in Houston in 1993.  When arrested, police gave him his Miranda warning before he provided a confession.  The police omitted to advise him that, as a Mexican national, he was entitled under the Vienna Convention to contact his country’s consulate.

Mexico brought suit in the International Court of Justice, alleging that the United States had breached its obligations under the Convention.  In 2004, in a case titled Case Concerning Avena and Other Mexican Nationals (Mex. v. U.S.) the ICJ held that in 51 cases, including that of Mr Medellin, the US had breached the Convention and ordered it to review and reconsider the Mexicans’ convictions and sentences.

Mr Medellin ultimately appealed to the US Supreme Court on the basis of the ICJ decision.  In 2008, however, in Medellin v Texas the Supreme Court found that judgment in Avena was not enforceable in American law in the absence of statutes implementing it.  Counsel for the State of Texas, Solicitor-General (and now Senator) Ted Cruz subsequently wrote in the journal Human Events that “[t]he Supreme Court’s decision was a victory for the State of Texas, but, even more importantly, it was a victory for the American people … Had Medellin prevailed, American sovereignty and independence would have been gravely undermined“.  Unfortunately, this protection of American sovereignty came at the cost of a diplomatic humiliation for Mexico.  It is hard not to speculate that the startling inflexibility shown towards Mr Hammar, then, might be less about Mexican gun laws and more about payback.

How might this help Jon Hammar?  If one of the drivers of Mexican concern is some perceived slight to national pride, then perhaps his situation can be improved by accepting the legitimacy (as opposed to the fairness or otherwise) of the criminal process.  With this concession it becomes intellectually possible to argue for an approach less arduous to Mr Hammar.  At the least, it would be easier to argue credibly that he should be remanded to an American (perhaps, Floridian) jail pending trial.  More imaginatively, perhaps it could be arranged for the criminal charges to be dealt with by an American court applying Mexican law, in the same way an American court dealing with a commercial dispute may face a situation where the parties have agreed that the law of Canada or Britain shall apply.

It would be difficult to argue that an honorably discharged veteran should be held in a prison as Jon Hammar is.  But that sense of outrage should not stand in the way seeking creatively to improve his situation.