LENS Essay Series: “74,702 Reasons for Action: The Legal Grounds for Potential U.S. Force Against Drug Cartels”

Is the U.S. doing enough about the Mexican drug cartels that are fueling the deaths of tens of thousands of Americans?  Should the U.S. use force against them in Mexico?  Under what circumstances, if any, might international law permit doing so?

Context

The New York Times reports this morning that President Trump asked Mexico’s President Claudia Sheinbaum “to let U.S. troops into the country to help fight drug cartels.”  However, the Times says that President Sheinbaum “summarily rejected” that particular idea. She did recall telling Trump that “Mexico and the United States can ‘collaborate’…but ‘with you in your territory and us in ours.’”

Sheinbaum’s administration has, in fact, taken action against the cartels and the deadly drugs they send into this country.  As the BBC reported in March:

“Mexican President Claudia Sheinbaum has pledged to send 10,000 National Guard troops to the border. The government has made more than 900 arrests since October in Sinaloa, a major drug trafficking hub. Back in December, Mexico announced its biggest ever fentanyl seizure in the state: more than a tonne of pills. In fact, the country has seized more fentanyl in the past five months than it did in the previous year.

Mexico has also made it harder to import a key ingredient of fentanyl from China, prompting cartels to reduce the strength of each pill – and, in the process, making them less deadly.

And at the end of February, 29 senior drug cartel figures were handed over to the United States, including members of five of the six Mexican crime syndicates that President Trump’s administration recently designated as terrorist organisations.

President Sheinbaum also said she had agreed to the CIA increasing surveillance drone operations over Mexican territory in search of fentanyl drugs labs, after the media revealed the covert missions.” 

A use of force analysis

While not taking a position on the wisdom of doing so, graduating Duke Law 3L Jack Bergantino’s paper, “74,702 Reasons for Action: The Legal Grounds for Potential U.S. Force Against Drug Cartels,” concludes that “the use of force, perhaps highly selective, is a legally plausible option for decision-makers.”  

His paper is the latest addition to the LENS Essay Series which features top young scholars writing about cutting-edge aspects of national security. 

Jack’s paper can be found here.  Here’s the abstract of it:

The fentanyl crisis in the United States claims over 74,000 lives annually, a tragedy fueled by Mexican drug cartels in collaboration with Chinese precursor chemical manufacturers. Cartels leverage their status as non-state actors to traffic synthetic opioids across the U.S. border, raising critical legal questions about a nation’s right to defend itself. This paper examines whether international law, particularly the United Nations Charter and customary law, provides legal grounds for the United States to employ military force against Mexican drug cartels. By analyzing the nature of the fentanyl crisis and the applicability of the doctrine of self-defense under Article 51 of the United Nations Charter, this paper argues that the United States has a legitimate basis to invoke the right to self-defense. As part of this analysis, it explores whether the host State, Mexico, is “unable or unwilling” to suppress the cartels, and whether the use of force is both necessary and proportional under international law. This paper draws no conclusions as to what policy measures U.S. officials should enact but, instead, explicates the international legal structure for addressing the fentanyl crisis.

Timely issue

This issue is a very timely one in part because of the New York Times article this morning, but also because of a NBC News report from early April that said the “Trump administration is considering launching drone strikes on drug cartels in Mexico as part of an ambitious effort to combat criminal gangs trafficking narcotics across the southern border.” 

Ironically, about the same time the AP reported that a “top Pentagon official said…that special operations forces do not have the authority to launch drone attacks at drug cartels in Mexico, even though President Donald Trump has designated them foreign terrorist organizations.”  It added:

“Colby Jenkins, who is currently working as the assistant defense secretary for special operations, told a Senate committee that Trump’s designation doesn’t automatically give the U.S. military the authority to take direct action against the cartels.”

Actually, one could agree that mere designation as a foreign terrorist organization would not—alone—constitute a sufficient legal basis for drone strikes against drug cartels, yet still find that there are other factors which together can provide “a legally plausible” rationale for such action. 

In fact,  Lawfire^® contributor Pete Pedrozo argued recently on the Articles of War blog that:

“While Secretary Jenkins is correct that the terrorist designation does not, in-and-of-itself, provide authority for U.S. forces to take punitive action against the cartels in Mexico, there may be situations where cross-border strikes would be authorized in self-defense if a drug cartel uses force or demonstrates a threat of imminent force against the United States or U.S. nationals.”

Pete added:

“In 2023, there were over 105,000 drug overdose deaths in the United States. Over 70 percent of those deaths were attributable to opioid use (primarily illicitly manufactured fentanyl from Mexico). In 2022, fentanyl caused 200 deaths per day, and more than a quarter million Americans died from fentanyl overdoses from 2018 to 2021. Compare this three-year fentanyl death toll to U.S. combat deaths during the 20-year Vietnam War, which totaled just over 58,000.”

“This exorbitant death toll begs the question, does intentionally flooding U.S. cities with fentanyl, methamphetamines, and other illicit drugs that results in over 100,000 deaths a year constitute an armed attack against the United States that justifies the use of necessary and proportionate force in self-defense to neutralize the threat?  If you compare the scale and effect of drug trafficking into the United States to that of a conventional armed attack, the extent of injury and death to U.S. persons is clearly grave enough to characterize trafficking by the cartels as an armed attack against the United States that justifies the use of force in self-defense to counter that threat.”

A further complication is a report from earlier this year that “Mexican drug cartels are ordering their members to attack US Border Patrol agents with kamikaze drones and other explosives in a desperate bid to thwart the crackdown at the border.”  Interestingly, a December 2024 poll by the Mexico News Daily showed that a “a surprising 46% of respondents had a favorable view of Mexico collaborating with the U.S. to fight Mexico’s drug cartels.”

Concluding thoughts

Importantly, apart from potential legal complexities, there are robust policy arguments against the use of U.S. military force against the cartels (see e.g, here and here).  Moreover, if you want to see a legal argument against the use of force, check out Cole Horton’s 2024 LENS Essay, “Bomb Thy Neighbor: How U.S. Military Force Against Mexican Drug Cartels in Self-Defense Violates International Law.”

As you can see, this is a controversial topic, so you’ll want to read Jack’s essay to fully appreciate his view as to what international law might permit as an option for decision-makers.  I don’t think this issue is going to go away anytime soon, and you’ll find Jack’s thoughtful piece will help you formulate your own perspective.  Again, you can find it here.

About the Author: 

Jack Harrison Bergantino is a third-year law student at Duke University, who expects to receive his Juris Doctor in Spring 2025. Jack has a keen interest in American politics and economics: his undergraduate senior thesis, Darkness Falls Upon America’s Backyard, explores the economic history and future blueprint for impoverished towns in Central Appalachia. Following his graduation, Jack will begin his legal career at Latham & Watkins in Austin, Texas.

Remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!