Arguments and doubts in the war launched by the US against 'narcoterrorism

From the war against terrorism, opened by George W. Bush, the United States has moved with Donald Trump to the war against drug trafficking, transferring the executive powers acquired by the White House after 9/11 to the fight against organized crime groups. The grade drug trafficking as terrorism carried out by the Trump Administration vindicates the use of the Army, also in its lethal capacity, against these organizations beyond the borders of the United States. This constitutes a threat to the surrounding countries where the cartels operate, especially Mexico, although Venezuela has become a priority goal in recent months, which in a way has also placed Colombia in the target.

The focus on Venezuela has been interpreted in geopolitical core topic : the attempt of a regime change that returns to the United States the plenary session of the Executive Council control of its southern flank (with the exception of Cuba, although one would hope that the island would also be affected by the inertia of the action). The concentration of warships and thousands of U.S. troops in Caribbean waters puts enormous pressure on Venezuelan leader Nicolas Maduro and his clique. For the moment, this concentration of force has been used for the attack against narco-boats in international waters of the Caribbean and, to a lesser issue, also in the Pacific, causing a hundred deaths.

These operations, which could be followed by attacks inside Venezuela as suggested by the White House itself, have been placed outside international law, quite unanimously, by numerous organizations and experts, although the Trump Administration assures to move within the law. We examine below the discussion that has been opened in this regard.

Terrorism designation and military deployment

Just hours into his new presidency in January 2025, Donald Trump issued Executive Order 14157, designating certain international cartels and organizations - including Venezuela's Tren de Aragua and six Mexican organized crime groups - as Foreign Terrorist Organizations (FTOs) and Specially Designated Global Terrorists (SDGTs). This precedent-setting measure in U.S. policy is based, in the words of framework of State Rubio, on the need to ensure "the safety of the American people, the security of the United States and the stability of the international order in the Western Hemisphere"[1].

To the list, the United States has been adding some more organizations, such as the Salvadoran Mara Salvatrucha and, more recently, the Venezuelan Cartel of the Suns[2]. The designation of the latter as a terrorist group is a final argument against the Chavista regime. If previously Maduro's direct link to the Tren de Aragua[3] was questioned, placing him at the head of the Cartel of the Suns - the main operator of drug trafficking routes in Venezuela - is more congruent, although it could be argued that this organization responds to the hierarchical centrality of a cartel. Labeling Maduro as a top drug kingpin would cover certain actions that the United States could take against him.

On the other hand, the legal consequences of the executive order affect not only the members of these organizations, but also those persons, companies or organizations that collaborate in some way with the cartels (for example, the individual who knows that he or she is supplying materials to an FTO, or the foreign financial institution that facilitates a transaction for the benefit of an SDGT)[4].

Controversy

Although it is not uncommon for terrorist groups to engage in strictly criminal activities, the designation circumvents the distinctions that U.S. law draws between crime and terrorism, a distinction previously recognized by the Executive Branch in the internship[5].

As provided in the Act, the statutory requirements for designating an organization as an FTO are as follows: 1) it is a foreign organization; 2) such organization is engaged in terrorist activities (section 212(a)(3)(B) Immigration and Nationality Act or INA), acts of terrorism (section 140(d)(2) of the Foreign Relations Authorization Act or FRAA), or retains the capability and intent to engage in the aforementioned acts; and 3) such activities threaten the security of both U.S. citizens and the United States[6].

On the face of it, the operations conducted by the cartels may satisfy the first and third requirements, having been incorporated in foreign countries and posing a significant threat to U.S. citizens due to cross-border violence. However, it is in the second requirement where a potential loophole arises. This is because, based on the scenarios contemplated by the INA, it is difficult to find one that fits the acts of a cartel. Likewise, the definition of terrorism proposal by the FRAA is inadequate to provide a legal basis for the new designations, as its generic nature and tone may foster legal uncertainty.

Thus, by encompassing acts and activities without a sufficiently solid legal backing, Trump's executive order could lead to a gray area from which diverse legal interpretations could be derived, either in favor of repressive measures against cartels or against such Schools The designation brings new tools against drug trafficking, but it also has its risks[7].

Voices in favor

Those analysts who advocate a broader interpretation of the term 'terrorism' argue that the cartels employ a strategy and organization similar to those of any terrorist group , going beyond the traditional activities carried out by criminal groups. They therefore draw a parallel between acts carried out by globally recognized terrorist groups (such as Al-Qaeda or FARC, etc.) and those committed by cartels. Examples would be assassinations of local officials, executions aimed at instilling fear and the use of high-powered assault weapons[8].

Given the lack of political motivation present in the cartels - the main obstacle limiting the possibility of broad application - they argue that acts of terrorism can exist even without any political and ideological interference. Indeed, they cite as a precedent the United Self-Defense Forces of Colombia (AUC), a paramilitary group that, from its creation in 1997 until 2007, when its centralized military structure was dismantled, was dedicated to the illegal sale of drugs. During its heyday, they committed assassinations against alleged sympathizers of other combatant groups and even clashed with these units, in activities financed in large part (up to 70%) by profits derived from drug trafficking. Although it is true that during those ten years it never had a clear political or ideological motivation, the AUC was designated as a foreign terrorist organization (FTO) by the State department in 2001, a designation that remains in force despite the fact that the organization has been immobilized[9].

rules and regulations International

Due to the spatial framework of the attacks carried out by the United States against narco-boats in international waters, the United Nations Convention on the Law of the Sea (UNCLOS) would apply in this case. Although the United States is not a signatory to UNCLOS, military legal advisors had mentioned prior to the attacks that Washington would seek to act in a manner "consistent" with the provisions of UNCLOS[10].

agreement to the agreement, signatory countries undertake not to interfere with vessels operating in international waters, an exception being cases in which a state is empowered to pursue a vessel, provided that the trajectory of the vessel begins in the country's waters and then continues on the high seas. This is known as the right of hot pursuit. Even if Washington were to attempt to justify its actions under such a concept, it would have to employ non-lethal force, experts say; if it were to apply a lethal response, it would have to prove that there was an immediate threat of injury or death to U.S. officers.

Doubts in Washington

In any case, subtle doubts have also been expressed in Washington about the legal feasibility of naval attacks of this subject. An example of this is the classified opinion prepared during the summer by the department Justice department s Office of Legal advisory service (OLC). According to the document, the uniformed staff in charge of carrying out attacks against drug trafficking boats would not be exposed to future legal action[11].

This highlights that the United States is countering the potential repercussions its military may experience should it be unable to justify lethal activity against the drug flow. A critical aspect that has been pointed out is that video footage of one of the attacks showed the boat turning around as it began to be attacked, so that the vessel was possibly desisting from continuing its trajectory, thus no longer posing an alleged threat to the United States[12].

For his part, Southern Command chief Alvin Holsey announced in October that he would resign his post at the end of the year, despite having assumed a three-year assignment. Although a Pentagon spokesman had previously denied that Holsey's mission statement raised legal doubts, his abrupt and premature Withdrawal the chief's post suggests that there is no consensus within the US military on the development the conflict and how it should proceed [13]. It could also be that Holsey's doubts did not refer so much to these attacks as to the possibility of an action against Venezuelan territory yet to materialize.

The fear of moving into an area of legal uncertainty could also explain the UK's advertisement that it would cease sharing intelligence with the US concerning suspected drug trafficking vessels[14]. 14] This marks a clear break with the policy followed so far. For years, London, which controls several territories in the Caribbean (where it has intelligence assets) has been assisting Washington in locating suspected drug trafficking vessels.[15] The United Kingdom has also been assisting the United States to locate suspected drug traffickers' vessels.

Friction with Mexico

Six of the organizations included in Executive Order 14157 are Mexican: Gulf Cartel, Jalisco Cartel - New Generation, Northeast Cartel, Sinaloa Cartel, United Cartels and La Nueva Familia Michoacana. Mexico's President Claudia Sheinbaum denounced the U.S. initiative stating that her country had not been consulted at any time and would not accept any foreign intrusion that threatened "the integrity, independence or sovereignty of the nation"[16]. He assured that he would propose a constitutional reform goal at implementing sanctions against those nationals and foreigners who participated in arms trafficking (thus alluding to the involvement of US traffickers in that business), as well as against those who infringed on Mexico's sovereignty[17].

With a majority in both chambers of the congress of the Union, the reform was published in the Official Gazette of the Federation on April 1, entering into force on April 2 of the same month. It is a mechanism that modifies Articles 19 and 40 of the Mexican Constitution[18]. article 19 was reformed to impose the most severe penalty possible on those who participate in the illegal production or distribution of weapons, including the precautionary measure of preventive imprisonment. Two new paragraphs were added to article 40 reiterating that Mexico, under no circumstances, will tolerate "interventions, intrusions... from abroad that are detrimental to the integrity, independence or sovereignty of the Nation"; nor will it allow any "intervention in investigations or prosecutions without the express authorization and partnership of the Mexican State"[19].

In relation to the lawsuit that the Government of Mexico filed against arms manufacturers and dealers, Sheinbaum announced that the administrative office of Foreign Affairs would expand such lawsuit, after the U.S. department Justice, through the National assessment of Drug Trafficking and Trade of the Bureau of Alcohol, Tobacco, Firearms and Explosives, admitted that 74% of the weapons used by organized crime in Mexico come illegally from the United States[20].

Border inviolability

Should the United States decide to deploy troops inside Mexico, it would not only be violating the sovereignty of a foreign State, but also the principle of territoriality, enshrined in article 2.4 of the United Nations Charter, which establishes that "the Members of the Organization shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State"[21].

That said, it is not impossible to think that the United States would try to justify an eventual attack on the basis of the principle of universal jurisdiction. According to this principle, any State is entitled to prosecute certain crimes regardless of its territorial link or the nationality of the perpetrators[22]. 22] In other words, it makes it possible to prosecute certain subjects without regard to their nationality or the place where the crime was committed. This principle is reservation for specific crimes, such as torture, genocide, terrorism and crimes against humanity, so it should be understood that its application is restrictive in nature.

Nor is a U.S. attack likely to succeed on the basis of the doctrine of self-defense, set forth in article 51 of the United Nations Charter. This article allows for "the inherent right of individual or collective self-defense in case of armed attack against a Member of the United Nations". Similar to the universal jurisdiction argument, the United States could hardly prove that it has been the target of an imminent or armed attack originating from a cartel. Therefore, it would not be covered by Art. 51 either, no matter how serious the risks posed by these organizations may be.

Pressure on Venezuela

If the activity of the cartels operating in Mexico has remained in the background for the moment in the actions of the Trump Administration, all its pressure has been directed against Venezuela, covered by a rhetoric of the fight against drug trafficking, although the intention to overthrow Maduro is manifest.

Washington has broken with its previous methods of interdicting illicit shipments, which consisted of seizing drugs and identifying potential traffickers to build a criminal case. Since the secret directive to the Pentagon signed by Trump in August authorizing the use of military force against Latin American cartels [23], the United States is inaugurating a new stage in its international policy, characterized by the increased use of force as a deterrent. Washington has given hardly any data of the ships attacked and has vaguely linked the crew members to organizations such as the Aragua Train or the ELN. By naming this entire military deployment 'Operation Southern Lance', the Pentagon has made official its direct mission statement against narcoterrorism in the region[24].

Last October 2, President Trump notified Capitol Hill that the United States was in an "armed conflict" with the cartels, making it necessary to use "force in defense of staff and in defense of others" against persistent attacks by "designated terrorist organizations"[25]. Many experts interpret this notification as an attempt to normatively justify the naval attacks that Washington has been executing, i.e., as an extraordinary extension of its wartime powers. For example, under international law, in an armed conflict, participating countries can kill enemy soldiers even when they pose no immediate threat, detain them without criminal prosecution and try them before military tribunals.

As with the designation provided for in the Executive Order, the expanded powers contained in the notification raise serious questions as to its legality. For an armed conflict to exist, there must be a status "hostility," a standard that hardly fits the trafficking of illegal goods. Although there is no precept in international law that expressly defines what constitutes a conflict, jurisprudence has gradually established the idea that an armed conflict can occur either between (1) the armed forces of two states or (2) the armed forces between a state and an organization[26]. 26] Applied to the case of Venezuela, it is complex to demonstrate that the Venezuelan cartels and the U.S. forces were in a direct and armed confrontation prior to the attacks launched by Washington.

Maduro has called the attacks on the narco-boats a "heinous crime" for involving the death of people who were not at war and had not threatened any country[27]. Maduro rejected Washington's accusation, which presents him as the head of the Cartel of the Suns, of participating in drug trafficking and ordered a massive military mobilization with the participation of citizen militias.

Recourse to Russia

Caracas has tried to rely on its relations with Moscow to face an eventual conflict with the United States. Last September, the Venezuelan National Assembly approved the Law Approving the Treaty of Strategic association and Cooperation between Venezuela and Russia, enacted on October 7. This measure seeks to deepen political and economic relations between both countries, which already have previous agreements on military subject [28].

Moscow has publicly criticized the measures adopted by Washington, claiming that they violate international law and human rights. During a session of the Security committee , the Russian representative, Vassily Nebenzia, stated that the policy followed by the U.S. government does not conform to the proven facts. As an example, he cited data provided by the United Nations Office on Drugs and Crime, which estimates that 87% of the cocaine entering the United States enters through the Pacific Ocean, a route to which Venezuela has no direct access. Nebenzia demanded that Washington cease all military activity in the region[29]. Russia's position constitutes the most substantial support Venezuela can count on, although it is difficult for the conflict to result in a direct involvement of Russia.

Colombia's proximity

The crisis surrounding Venezuela is also dragging Colombia into the picture. The closeness with Maduro shown by President Gustavo Petro has placed him in the crosshairs of the White House, already annoyed with him on other issues. Trump decided the 'decertification' of Colombia, considering that it is not doing enough to prevent coca production in the country, which is at record levels[30]. Petro has criticized the attacks on narco-boats and has claimed, without showing evidence, that at least one of them took place in Colombian waters; Trump has responded by labeling him a narco 'capo', something without foundation.

In the framework these disagreements, Petro announced that his government would suspend sending intelligence and security to the United States in response to the naval attacks, considering them illegal. However, the following day, Petro posted on his X account X the intelligence community, including Washington's, would have access to communications as long as it did not "undermine human rights"[31]. The change of position may be explained by the care Colombia must take to avoid being targeted by the United States at this moment in its war against narcoterrorism.