Since September 2, the United States has conducted six lethal strikes on boats apparently in international waters originating from Venezuelan (and potentially Colombian) waters, said to be transporting narcotics; 29 individuals aboard them died. Colombian President Gustavo Petro labeled the attacks “aggression against all of Latin America and the Caribbean,” in a set of remarks that the White House calls “reprehensible.”
The Trump Administration asserts that the operations are a lawful exercise of the international law right of self-defense in the face of the harm caused by drugs brought into the United States. It has also notified Congress that the United States is engaged in a non-international armed conflict (NIAC) with drug cartels. These claims have led to a flurry of legal commentary grounded in both domestic and international law, most of which flatly rejects them, and rightly so (see, e.g., the Just Security collection).
There is little doubt that the administration is contemplating mounting similar lethal operations in the territory of other States. Recall that in January, President Trump designated drug cartels as “foreign terrorist organizations” and stated that it is “the policy of the United States to ensure the total elimination of these organizations’ presence in the United States and their ability to threaten the territory, safety, and security of the United States through their extraterritorial command-and-control structures.” In August, Trump reportedly signed a classified directive authorizing the use of force against cartels on foreign territory.
Then, on Sept. 4, following the first strike, Trump stated in a required War Powers Resolution notification to Congress that the operation was in response to “the inability or unwillingness of some states in the region to address the continuing threat to United States persons and interests emanating from their territories.” The reference to a (contested) self-defense doctrine that would permit the otherwise unlawful use of force within a non-consenting territorial State was wholly unnecessary in a report on a strike in international waters, but seemed to be indicating consideration by the administration of using force within the territorial jurisdiction of Venezuela or other regional States.
And just yesterday, it was reported that the President has authorized the C.I.A. to conduct covert lethal operations in Venezuela and other activities the Caribbean. Relatedly, the United States has offered a $50 million reward for information leading to the arrest and conviction of Venezuela’s President, Nicolás Maduro, whom it accuses of holding office illegitimately and of being a narco-terrorist.
An operational shift to attacks on drug cartels in the territory of another State, including national airspace and territorial sea, would raise international law issues not implicated by the maritime strikes conducted to date. To unpack these, I begin with a brief survey of the three international law rules most likely to be violated by such operations – the obligation to respect the sovereignty of other States and the prohibitions on intervention and the use of force. I next discuss how counter-drug operations may lawfully be conducted in another State, and the legal limitations on them. The essay next discusses the administration’s controversial claims about self-defense and the existence of a NIAC in the context of kinetic operations on another State’s territory. It concludes that the lethal operations against suspected cartel-affiliated individuals to date stretch applicable international law beyond recognition, whereas consensual law enforcement operations to counter illicit drug trafficking activity are solidly grounded in law.
Possible International Law Violations
Conducting kinetic operations on the territory of other States implicates at least three international law prohibitions. The clearest is that on physical violation of the territorial State’s sovereignty. Merely engaging in operations on another State’s territory renders this action “internationally wrongful” (unlawful), absent a “circumstance precluding wrongfulness” under the law of State responsibility (see below).
The territorial State’s sovereignty can also be violated through interference with its “inherently governmental functions” (Tallinn Manual 2.0, p. 21-22), like law enforcement (e.g., through destruction of drug-related property). Since such functions are the exclusive sovereign prerogative of the territorial State, engaging in them on its territory without consent constitutes a violation of sovereignty.
Second, kinetic operations in another State’s territory can constitute wrongful intervention into its internal affairs. Intervention requires 1) coercive interference with 2) the domaine réservé. In its Paramilitary Activities judgment, the International Court of Justice (ICJ) noted, “The element of coercion, which defines, and indeed forms the very essence of, prohibited intervention, is particularly obvious in the case of an intervention which uses force…in the direct form of military action… within another State” (¶ 206). As to the second element, domaine réservé is a legal term denoting an area of activity that international law leaves to States to regulate in significant part. Engaging in law enforcement actions by kinetic means clearly qualifies.
Finally, kinetic operations on another State’s territory may constitute an unlawful use of force in violation of Article 2(4) of the U.N. Charter and customary international law. Although there is some debate over the threshold for a use of force violation—for instance, regarding cyber operations—there is universal agreement that physically destructive or injurious actions beyond a de minimis level qualify.
The debatable point is whether the use of force must be directed against the territorial State’s assets or private entities or persons based on their affiliation with the State (e.g., citizenship). This issue has arisen most prominently in counter-terrorism strikes based on the “unwilling or unable” doctrine. In the counter-drug context, the question is whether a kinetic operation directed solely at drug assets or personnel having no relation to a State is a wrongful use of force. There are two views.
By the first, the very fact that force has been used on the territory of another State without its consent amounts to a use of force against that State. This appears to be the prevailing view. However, the alternative view is that an operation pursuant to the right of self-defense is not a use of force against the territorial State unless it exceeds the degree of force strictly necessary to defend against an imminent or ongoing armed attack, a topic addressed below. As will be explained, whether counter-drug operations may qualify as an exercise of self-defense is highly questionable.
Law Enforcement as a Possible Legal Basis
A breach of an obligation owed by one State to another, such as respect for sovereignty, is not unlawful when consented to by the latter. The International Law Commission has captured this customary rule of international law in Article 20 of its Articles on State Responsibility: “Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.”
It is on this basis that a State may assist another States in law enforcement operations on the latter’s territory. Indeed, the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, to which the United States is a Party, contemplates joint operations (art. 9(1)(c).
In appropriate cases and if not contrary to domestic law, establish joint teams, taking into account the need to protect the security of persons and of operations, to carry out the provisions of this paragraph. Officials of any Party taking part in such teams shall act as authorized by the appropriate authorities of the Party in whose territory the operation is to take place; in all such cases, the Parties involved shall ensure that the sovereignty of the Party on whose territory the operation is to take place is fully respected….
Similarly, a State may consent to another State’s own law enforcement operations on the former’s territory.
Whether conducted in accordance with ad hoc or treaty-based consent, jointly or individually, there are two key limitations. The first is that the territorial State may restrict the actions of the State acting within its territory. For instance, the territorial State could limit the types of operations conducted, allowing only those posing no risk to persons or targeting a named cartel. Exceeding such limitations would constitute at least a violation of the territorial State’s sovereignty.
The other limitation is that the action taken must comply with the obligations and prohibitions of any applicable legal regimes. For instance, a State may not consent to counter-drug operations that it could not itself conduct under domestic law. More to the point vis-à-vis possible consent-based U.S. kinetic operations, the actions consented to must comply with the international human rights law (IHRL) obligations of both the territorial State and the State acting extraterritorially.
Law Enforcement Destruction of Property: With respect to IHRL, harm to property during a kinetic counter-drug operation must be distinguished from that caused to persons. Article 17 of the Universal Declaration of Human Rights provides that “[e]veryone has the right to own property alone as well as in association with others.” Similarly, Article 21 of the American Convention on Human Rights states, “Everyone has the right to the use and enjoyment of his property.”
Even if these rights applied to U.S. operations because they bound the territorial State, and putting aside somewhat unsettled issues surrounding their applicability to the United States, the right to property would not shield cartel assets from destruction. This is clear from the text of relevant treaties. In particular, Article 17 of the Universal Declaration provides “[n]o one shall be arbitrarily deprived of his property” (emphasis added). Under IHRL, actions are not arbitrary so long as they are conducted for a legitimate aim and are necessary, proportionate, and prescribed in law (see, e.g., Tallinn Manual 2.0, Rule 37). The American Convention similarly provides that the right to property may be subordinated by law “to the interest of society” (art. 21). Destroying cartel property used for unlawful purposes, if done in a manner prescribed in law, will almost always fulfill these conditions.
Various judicial rulings are in accord (see, e.g., IACHR, Chiriboga v. Ecuador; ECtHR, Air Canada v. UK). Indeed, Article 5 of the Convention against Illicit Traffic cited above expressly requires Parties to adopt legislation enabling the confiscation of drugs, property, and material involved in drug activities. There is no doubt that the United States may destroy drug-related property in another State with the consent of that State, so long as doing so is otherwise consistent with the latter’s domestic law.
Take, for example, a U.S. law enforcement operation in a foreign State to eradicate illegal drug crops using pesticides that do not harm individuals but destroy their property. Such an operation would likely be lawful so long as conducted with the consent of the territorial state (and staying within the scope of that consent), in accordance with its domestic laws, and within the limits proscribed under IHRL.
Consensual Lethal Operations by Law Enforcement: Conducting consensual lethal operations is a different matter. Article 6 of the International Covenant on Civil and Political Rights (ICCPR) provides, “Every human being has the inherent right to life… No one shall be arbitrarily deprived of his life.” Article 4 of the American Convention on Human Rights is to the same effect. Nor is there any doubt as to the customary law character of the right to life (General Comment 36, ¶ 2).
The United States does not consider the ICCPR to apply extraterritorially (see here, para. 505), and is not a Party to the American Convention. But its operations would still be bound by their terms if operating in a State that is a Party to them, for, as noted, those States may consent to no greater authority by others than they enjoy themselves.
As with the right to property, the key is arbitrariness. Accordingly, any counter-drug operations placing life at risk must also have a legitimate aim and be necessary, proportionate, and prescribed in law. In this regard, a common reference point is the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. It provides,
Law enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.
Similarly, the Human Rights Committee’s General Comment 36 on the right to life confirms that “[t]he use of potentially lethal force for law enforcement purposes is an extreme measure that should be resorted to only when strictly necessary in order to protect life or prevent serious injury from an imminent threat.”
There is no question that the shipment of drugs into the United States presents a risk of death or serious injury to individuals who use them. However, to comply with IHRL, lethal actions during a counter-drug operation must be strictly limited to those necessary to protect life from an imminent threat. In other words, the risk to life must be proximate to the use of lethal force in the sense of being direct, immediate, and specific. (Mark Nevitt has explained how this standard is employed in the Coast Guard’s law enforcement drug interdiction operations.) Attempting to justify lethal operations on the basis that drug trafficking ultimately leads to such harm stretches the chain of causation too far. Such an interpretation would break down the strict normative barrier between the legal regimes governing law enforcement and armed conflict; it would normalize extrajudicial killing under the guise of law enforcement.
Self-Defense and the Requirement of an “Armed Attack”
The rules governing law enforcement operations are relatively clear-cut. Destructive and lethal operations on the basis of self-defense are a different matter. Self-defense operations mounted into another State with that State’s consent must be distinguished from non-consensual ones. But in both cases, the key question is whether the trafficking of drugs qualifies as an “armed attack,” the condition precedent to the use of force in self-defense under Article 51 of the U.N. Charter and customary international law. Thus, analysis begins there.
In a previous Just Security piece, I discussed this question in the context of U.S. maritime strikes in international waters. Most of that analysis applies mutatis mutandis here. I concluded that
…drug trafficking undeniably leads to illness and death. However, the causal chain between drug production/shipment/sale and those consequences is attenuated enough to preclude qualification of drug trafficking as a use of force, especially one at the armed attack threshold. After all, the drugs must be distributed and sold, often by individuals or groups that are not members of the drug cartel, and users acting unlawfully have to purchase them. And in most cases, their use does not result in death or serious injury. I do not mean to belittle the horrific consequences of the drug trade; I am simply saying that, as a matter of current international law, qualifying the action as a use of force is very problematic.
There is no reason to change this conclusion vis-à-vis lethal counter-drug operations into another State’s territory. But a question I did not answer in the earlier piece was whether the same conclusion would hold if the drug cartel, acting on its own accord or operating “on behalf of” or “with the substantial involvement of” a State (Paramilitary Activities, para. 195), is shipping drugs into the United States for the express purpose of harming individuals there. In other words, the motive is political, not financial gain. This is a scenario that supporters of U.S. operations might proffer, counterfactually, in the case of Venezuela.
It is true that the intention of a cartel, or of a State on whose behalf it is acting, to cause such harm presents a compelling argument (if it were factually well grounded) for treating the trafficking as an “attack.” But the argument would miss the key requirement for acting in self-defense – to trigger the right, there must be an “armed attack,” as that term is understood in international law.
A helpful analogy in this regard is State support for a State or non-State entity that uses force. The analogy works well because in both cases there is intent to harm and an intermediary (the supported State, the non-State actor, or those involved in the trafficking who are not cartel members). Such support can qualify as a use of force that is “indirect” in the sense that the act in question does not directly cause the harm. This was the ICJ’s finding in Paramilitary Activities with respect to the U.S. arming and training of the Contras to enable them to employ violence against Nicaragua (para. 228).
But there are key differences between such cases and drug-trafficking situations, even if designed to harm the United States. In a piece considering whether support to another state can qualify as an indirect use of force (and therefore as a potential armed attack), Casey Biggerstaff and I identified a number of factors bearing on the indirect use of force determination.
We concluded that intent plays a significant role in moving the needle towards a use of force characterization, but not a determinative one. Yet, two other factors we identified pose difficult-to-surmount obstacles in the counter-drug scenario. The first is timing. As we noted, “the more temporally removed the aid or assistance is from the consequences of its use, the less likely it will be characterized as an indirect use of force.” Drugs must be cultivated or manufactured, packed, shipped, smuggled into the country, distributed through the domestic market, sold at the street level, and then used. The lag between a cartel’s actions and the harm caused to those in the United States will inevitably be long.
This complicated process also bears on the second key factor we identified—directness. In our view, causal attenuation augurs against characterization as a use of force. Despite the intentions of the cartel (or State with which it is acting), the sheer number of steps between the production and smuggling of the drugs and the harm caused pushes the needle in the other direction.
Other issues examined in my earlier piece could also potentially stand in the way of treating drug trafficking by a cartel into the United States as an armed attack. These include, inter alia, the question of whether the right of self-defense extends to operations mounted by non-State actors who are not acting on behalf of a State (I believe it does), the debate over whether all uses of force qualify as armed attacks, a position taken by the United States, or whether armed attacks are the “most grave form” of the use of force, as suggested by the International Court of Justice (the majority view, which I share), and the fact that the down-stream consequences of drug-tafficking, most importantly, deaths, may only be aggregated to reach the armed attack threshold if related and conducted by the same actor.
It is, therefore, highly doubtful that drug trafficking by a cartel, whether acting individually or in concert with a State, even for reasons other than financial gain, can qualify as an armed attack. In this regard, it is essential to emphasize that a territorial State may not agree to operations on its territory for which the United States lacks a legal basis under international law. Indeed, consent to an unlawful action, such as a human rights violation, opens the door to the consenting State’s responsibility under the law of State responsibility for “aiding or assisting” an internationally wrongful act (Articles on State Responsibility, art. 16).
Taking action without consent would be even more problematic. As I explained in my previous Just Security piece, there is an active debate over whether a State that enjoys a right of self-defense may conduct operations into another State if the latter is “unwilling or unable” to put an end to activities there that are related to an ongoing or imminent armed attack against the former. If not, the qualification of the drug cartel’s actions is irrelevant; non-consensual penetration is certainly a sovereignty violation and, perhaps, an unlawful use of force.
In my estimation, the better view is that such operations are lawful and preclude the wrongfulness of the defending State’s penetration of the territorial State. But again, for the unwilling or unable doctrine to attach, the situation to which it responds must qualify as an armed attack that is either ongoing or imminent. As explained above, the drug trafficking faced by the United States is not an imminent or ongoing armed attack. And, importantly, there is no equivalent to the unwilling or unable doctrine for law enforcement.
Finally, as noted, a State enjoys a right to use force when a non-State actor engages in an armed attack on behalf of another State or with the substantial involvement of that State. That force may be used against both the non-State actor and the latter State. It must be emphasized that this is a very high bar demanding significant State control over the non-State actor or involvement that, in practical terms, qualifies as a meaningful partnership. At least from the material publicly available, this does not appear to be the case with respect to Venezuela and Tren de Aragua. Even if it were, forcible action against Venezuela on this basis still would be unlawful because drug trafficking does not amount to an armed attack.
In the present circumstances, it should also be noted that an April 7, 2025 declassified National Intelligence Council (NIC) “Sense of the Community Memorandum” concluded that the Venezuelan government is not substantially involved in or directing the activities of the primary Venezuelan transnational criminal gang the administration has named publicly as a narco-trafficking organization, Tren de Aragua (TdA). Specifically, it states that “the Maduro regime probably does not have a policy of cooperating with TDA and is not directing TDA movement to and operations in the United States.” (It is not publicly known whether TdA, or any other specific gang or cartel, has been the target of most of the administration’s lethal strikes to date.)
All of this said, if a cartel –, on its own accord, on behalf of a State, or with a State’s substantial involvement – began to conduct kinetic attacks against the United States, a forcible response in self-defense would be permissible into another State as necessary based on that State’s consent or, in my view, in accordance with the unwilling and unable doctrine.
The Purported “Non-international Armed Conflict”
As I explained in the previous Just Security piece, no basis exists for characterizing the hostilities between the United States and any drug cartels as a NIAC. Trafficking is simply not the sort of activity contemplated by the law of armed conflict as potentially triggering an armed conflict; actual hostilities are required. And they must be prolonged and reach a threshold level of intensity, alongside requirements that the non-state actors involved qualify as an “organized armed group.”
But I am also of the view, one not universally held, that hostilities between a State and a drug cartel can sometimes qualify as a NIAC when the level of kinetic exchange is sufficiently intense. If the United States keeps attacking a particular cartel, as distinct from drug traffickers generally, it is possible that its operations would eventually initiate a NIAC.
Should this occur, several points merit mention. In the absence of a legal justification for conducting the U.S. operations in the first place, there would be no legal basis for attacking members of the cartel. Even though they would qualify as targetable members of an “organized armed group” under the law of armed conflict (should the cartel’s armed faction meet the legal indicia for so qualifying), that fact would only mean that attacks on them would not violate that body of law. For instance, individuals who participated in the strikes could be subject to prosecution for murder in violation of the domestic law of any State that enjoys jurisdiction over the matter, because the victims are of that State’s nationality or the actions occurred there.
A further issue is the so-called “geography of war” question. As I explained in a 2014 article on the subject, there are multiple views on whether the law of armed conflict applies to operations conducted extraterritorially during a NIAC. The ICRC, for instance, asserts that it does, albeit only in spill-over areas in a neighboring State. In my opinion, there is no geographical limitation to the application of this body of law. It applies globally when hostilities between a State and an organized armed group reach the requisite level of intensity.
However, to conduct operations in another State where members of the organized armed group are located, there must be a legal basis for being there; the mere fact that the State conducting the operations is involved in a NIAC does not suffice. Consent, by contrast, would satisfy this requirement, but, as explained above, a territorial State may not consent to operations that are unlawful under international law for the State mounting them. Similarly, although I am a proponent of the unwilling and unable approach and its ability to open the door to strikes into qualifying States, the doctrine applies only when the State concerned enjoys a right of self-defense; that is not the case here.
Finally, it might be asked whether Venezuela’s supposed support for TdA or other drug cartels has triggered an international armed conflict between the United States and Venezuela. This might be so if Venezuela exercised “overall control” of the group, for when control is at that level, the purported NIAC between the United States and TdA would be internationalized. As a result, the conflict would be transformed into an international armed conflict between Venezuela and the United States.
Yet, there is no NIAC between the United States and any drug cartel to even raise the prospect of internationalization. Even if there were, the United States has produced no evidence that Venezuela is exercising that level of control and, as noted above, the most recent NIC assessment flatly contradicts such a conclusion. And even if the United States had such evidence, all that would do is trigger the application of the law of armed conflict, such as rules allowing status-based targeting rather than self-defense-based uses of force. It would have no bearing whatsoever on whether the U.S. use of force against Venezuela complies with the prohibition on the use of force in Article 2 (4) of the UN Charter and customary international law.
Concluding Thoughts
This is not legally complicated; the proper approach to the threat posed by transnational drug trafficking is consent-based cooperative law enforcement. The U.S. operations conducted to date against suspected members of drug cartels stretch the applicable international law rules and their interpretation beyond recognition. And so too would any analogous kinetic operations into the territory of other States.
I leave comments on the strategic wisdom and moral sufficiency of such operations to colleagues with greater expertise in those fields, though I have my doubts. But what I can say with confidence is that the United States is violating international law by continuing to conduct these operations. Hopefully, cooler heads will soon prevail.
– Michael Schmitt, Published courtesy of Just Security.
