The War on Drugs is not a War (Part II): Classification Challenges

[Dr Chiara Redaelli is a research fellow at the University of Geneva, IHL and ICL expert with the International Development Law Organization Ukraine Office and co-editor in chief of the on the Use of Force and International Law]

From Drug Boats to Battlefields? The United States’ Classification of the “War on Drugs”

In September 2025, the Trump administration began describing U.S. counter-narcotics operations in explicitly military terms. Lethal strikes on suspected drug-smuggling vessels in the Caribbean and Pacific were framed as defensive actions against organized cartels posing an ongoing threat to national security. This marked a sharp departure from previous practice: criminal networks were now portrayed as armed groups capable of triggering the right of self-defense under Article 51 of the U.N. Charter.

Before Congress and the U.N. Security Council, senior officials claimed that U.S. forces were engaged in “armed conflict” with these networks—a framing meant to extend the logic of wartime targeting to transnational crime. Yet the cartels’ violence does not meet the legal thresholds of intensity and organization required for a non-international armed conflict. What is presented as a battlefield is, in law, still a law-enforcement space.

Part I examined how States have justified and conducted foreign military or law-enforcement interventions against drug cartels, through three distinct legal models: the United States’ claim of extraterritorial self-defense, China’s consent-based cross-border enforcement on the Mekong, and Afghanistan’s joint operations grounded in host-State consent. 

Part II explores how other States—Colombia, Ecuador, and Mexico—have faced similar dilemmas in classifying drug-related violence. It examines how each has navigated the boundary between organized crime and armed conflict, and what these choices reveal about the growing temptation to use the language of war in situations that remain, legally, short of it.

The IHL Threshold Tested: Classifying the Fight against Narcos

US: The Myth of a “Global NIAC on Narcos”

The notion of a “global non-international armed conflict” against narcotics organizations finds little to no support under the jus in bello criteria for the existence of armed conflict. The pattern of events and operational conduct fails to meet the legal thresholds required to conclude that a U.S.–cartel NIAC is underway.

On the organizational prong, the Tren de Aragua network arguably satisfies certain criteria: it maintains a recognizable leadership structure under Héctor “Niño” Guerrero, identifiable sub-commanders, and a demonstrated capacity to coordinate operations across multiple jurisdictions. These features are reflected in U.S. terrorism and criminal sanctions designations that identify command figures rather than diffuse criminal entities. The group’s consolidation within Tocorón prison fostered internal discipline and logistical cohesion, while its documented presence across Colombia, Peru, Chile, Brazil, and beyond attests to sustained operational capability and recruitment pipelines. Taken together, these factors could support a finding of sufficient internal organization under IHL.

However, the intensity criterion remains clearly unmet. The current pattern consists of isolated, unilateral U.S. maritime strikes, not sustained and reciprocal hostilities between identifiable parties. On this basis, it would be untenable to characterize the situation as a NIAC involving the United States and drug cartels. While narcotics trafficking causes immense human suffering, it cannot be construed as an “armed attack” or “use of force” within the meaning of international law.

Even the most expansive interpretations of self-defense advanced by sympathetic commentators stop short of asserting the existence of a NIAC between the United States and narcotics organizations. Such an approach would stretch the law’s conceptual and normative boundaries beyond recognition, eroding the distinction between armed conflict and law enforcement that lies at the core of both IHL and international human rights law.

In doctrinal terms, conflating NIAC criteria with global counternarcotics enforcement undermines the protective logic of the law of armed conflict. IHL’s application presupposes a minimum level of sustained violence and organization between two or more parties. When those conditions are absent, IHRL governs the use of force, detention, and due process. Extending IHL to diffuse criminal networks would dilute the civilian–fighter distinction and risk legitimizing lethal force in contexts where law enforcement standards should prevail.

In short, the evidence to date does not support the existence of a NIAC between the US and narcos groups. The characterization remains legally implausible and normatively dangerous, inviting a de facto global war paradigm in which the ordinary constraints of human rights law are replaced by permissive targeting doctrines untethered from any armed conflict.

Colombia: Between Armed Conflict and Criminality

Colombia represents perhaps the most complex and revealing testing ground for the legal and operational boundaries between armed conflict and organized criminality. Its security landscape combines long-standing insurgent movements with evolving criminal organizations deeply embedded in the drug economy. On the insurgent side, the Ejército de Liberación Nacional (ELN) remains an organized armed group with a nationwide presence and a discernible command hierarchy. In parallel, FARC dissident factions—most prominently the Estado Mayor Central (EMC) and Segunda Marquetalia—have continued armed activities in several regions despite the 2016 peace agreement. Alongside these insurgent actors operate powerful post-paramilitary criminal networks that emerged after the demobilization of the Autodefensas Unidas de Colombia (AUC) in the mid-2000s, the most prominent being the Clan del Golfo (Autodefensas Gaitanistas de Colombia, AGC). All these groups derive income from coca cultivation, processing, and trafficking routes, yet their organizational structures, territorial control, and intensity of violence vary markedly across regions and over time.

Against this background, Colombia’s counter-narcotics policy has evolved along three interrelated dimensions: (1) the creation of specialized militarized units, (2) the development of a comprehensive negotiation framework (Paz Total), and (3) the integration of drug-related violence into transitional justice mechanisms.

On the military and law-enforcement front, Colombia has progressively institutionalized specialized formations for direct action against narcotics networks and their armed enablers. The creation of the Comando contra el Narcotráfico y las Amenazas Transnacionales (CONAT) in 2021 marked a significant step toward what could be termed a “counter-narcotics corps” model—hybrid formations straddling military and police functions. CONAT’s mandate extends beyond drug interdiction to encompass illegal mining and transnational organized crime, reflecting the State’s acknowledgment that illicit economies sustain much of the residual violence. This institutional structure reinforces the State’s capacity to conduct high-intensity operations without necessarily invoking IHL, illustrating a militarization of law enforcement.

On the political and negotiation front, President Gustavo Petro’s Paz Total initiative (Law 2272/2022) constitutes a conceptual and legal innovation in Colombia’s peace architecture. The policy establishes a dual-track approach: armed groups meeting the IHL threshold of “organized armed groups” are eligible for comprehensive peace negotiations, whereas “high-impact organized crime structures” primarily engaged in drug trafficking and extortion may pursue socio-legal dialogues aimed at conditional submission to justice. The goal is to bridge the divide between politically motivated insurgencies and profit-driven criminality, recognizing that both sustain violence through overlapping economies. Implementation, however, has been uneven and politically fragile. The legal framework for dialogues with purely criminal groups remains incomplete, and several actors—most notably the AGC—have oscillated between ceasefire declarations and renewed hostilities. The result is a fluid and fragmented security landscape in which the boundaries between negotiation and enforcement, conflict and criminality, remain deeply blurred.

On the accountability front, Colombia’s transitional justice institutions have sought to integrate drug-related violence into broader frameworks of truth, justice, and reparation. The Jurisdicción Especial para la Paz (JEP), created under the 2016 peace agreement, adjudicates crimes connected to the internal armed conflict and has begun exploring cases in which narcotics trafficking functioned as a war-sustaining mechanism. Earlier instruments, such as the Justice and Peace Law (Law 975 of 2005), provided limited accountability for demobilized paramilitaries but proved ill-suited for addressing newer criminal formations. Current debates center on whether hybrid mechanisms—neither purely transitional nor conventional criminal jurisdictions—could effectively address organized crime actors lacking political status but responsible for comparable levels of violence.

Despite these institutional innovations, Colombia’s experiment remains fraught with contradictions. Militarized approaches have produced localized security gains but have also perpetuated cycles of displacement, extrajudicial killings, and community-level reprisal. Negotiation tracks risk legitimizing actors who exploit dialogue to consolidate territorial control, while transitional justice institutions, though normatively pioneering, struggle to encompass drug-related violence without diluting their original conflict mandate.

The Colombian case thus encapsulates the central dilemma of contemporary counter-narcotics governance: how to apply the protective logic of IHL and IHRL to hybrid forms of violence that resist neat legal classification. Colombia’s experience shows that neither militarization nor negotiation alone can resolve the structural nexus between criminal economies and armed violence. Instead, sustainable peace demands legal clarity and a renewed focus on the human consequences of blurred boundaries between war and law enforcement.

Ecuador: Domestic NIAC Rhetoric and its Limits 

Ecuador offers a revealing illustration of how governments may invoke the rhetoric of armed conflict to confront criminal violence that, while severe, does not meet the IHL threshold. On 9 January 2024, following an unprecedented wave of gang-related violence—including coordinated prison riots, bombings, and the live-broadcast storming of TC Televisión in Guayaquil—President Daniel Noboa issued Executive Decree No. 111 declaring a state of exception and recognizing the existence of an internal armed conflict with twenty-two criminal groups. The decree authorized expanded internal security operations and empowered the armed forces to act against these organizations, newly designated as “terrorist groups.”

In the following months, Ecuador’s Constitutional Court subjected successive decrees to rigorous scrutiny. While it initially accepted the emergency powers on grounds of grave internal commotion, the Court later rejected the executive’s characterization of the situation as an “internal armed conflict,” finding the evidence insufficient to sustain such a legal classification. Human rights organizations echoed this view, documenting abuses committed under the emergency and criticizing the government’s use of IHL terminology as politically expedient and legally unfounded.

From an IHL perspective, the organization and intensity criteria yield a mixed assessment. On the organizational side, Ecuador’s two principal gangs—Los Choneros, led by José Adolfo “Fito” Macías, and Los Lobos—display several indicators of structured armed groups. Both maintain identifiable leadership hierarchies, internal discipline anchored in prison-based command networks, sustained logistical capacity, and cross-border trafficking connections. Arrest records, extradition proceedings, and U.S. sanctions designations (see here and here) corroborate their internal command structures, suggesting that in localized contexts they might satisfy the “responsible command” element of IHL’s organization criterion.

Yet, the broader criminal landscape remains highly fragmented, characterized by splinter factions, shifting alliances, and regional franchises. This fluidity undermines any claim that the twenty-two listed groups collectively constitute a single organized armed actor capable of waging coordinated hostilities nationwide, a key reason why the Constitutional Court declined to treat the situation as a NIAC encompassing the entire territory.

As for the intensity requirement, the January 2024 surge in violence—though shocking—fell short of the sustained and reciprocal hostilities required for IHL’s application. The confrontations were episodic and localized, not protracted, and the State maintained overwhelming dominance. Declarations of “armed conflict,” however politically powerful, cannot substitute for empirical evidence of prolonged combat. Accordingly, Ecuador’s situation remained governed by domestic law and IHRL, not by IHL.

The Constitutional Court’s jurisprudence reaffirmed this distinction. By validating the decrees only on the basis of grave internal commotion, it effectively confirmed the primacy of the law-enforcement paradigm: security forces remain bound by IHRL standards of necessity, proportionality, and due process, and their actions remain subject to constitutional review.

Ecuador’s experience thus illustrates a broader trend: governments facing criminal insurgencies increasingly borrow IHL vocabulary to justify militarized responses, even when legal thresholds are not met. This rhetorical inflation of the “armed conflict” label carries significant normative risks. It can erode domestic accountability, weaken judicial oversight, and blur the boundary between policing and warfare.

In essence, Ecuador’s 2024 crisis demonstrates that domestic invocation of IHL language does not make a NIAC. Legal classification must rest on factual thresholds, not political expediency. The Ecuadorian case reaffirms the need for rigorous adherence to IHL criteria and for maintaining the protective logic of IHRL in internal security crises that fall short of armed conflict.

Mexico: De Facto NIACs, Legally Denied

Mexico stands as a paradigmatic example of a State whose confrontation with criminal organizations has, at times, reached the factual indicators of a NIAC under IHL, yet it has consistently refused to recognize such a classification. Since the militarization of counter-narcotics operations in 2006, successive administrations have relied heavily on the armed forces to combat cartels whose organization, weaponry, and territorial control increasingly resemble those of insurgent groups. Nevertheless, Mexico continues to frame this struggle within a domestic law-enforcement paradigm, steadfastly rejecting the legal and political consequences of acknowledging the existence of an armed conflict on its own territory.

From a factual standpoint, both the organization and intensity criteria have periodically approached the IHL threshold. Major cartels—such as the Cártel de Sinaloa, Cártel Jalisco Nueva Generación (CJNG), and Los Zetas—possess clear command hierarchies, internal discipline, and the logistical capacity to conduct sustained military-style operations. Their arsenals include assault rifles, explosives, armored vehicles, and weaponized drones, while their recruitment structures, financing channels, and territorial control exhibit a degree of institutionalization that far exceeds ordinary criminality. Episodes such as the prolonged Ciudad Mier clashes in Tamaulipas (2010–2012), the Tanhuato operation in Michoacán (2015), and recent confrontations between the CJNG and Mexican armed forces in Michoacán and Jalisco all display the hallmarks of protracted, organized violence. In certain regions and periods, these conditions arguably satisfied both the organizational and intensity prongs outlined in Common Article 3 and elaborated in the Tadić test.

Despite this, the Mexican government has consistently rejected any NIAC classification. The reasons are both legal and political. Recognition of an internal armed conflict would trigger the applicability of IHL to the conduct of hostilities, imposing obligations regarding distinction, proportionality, humane treatment, and detention standards. Such recognition would invite international scrutiny, particularly from the Inter-American human rights system, and could imply a quasi-belligerent status for cartels. This in turn would contradict the State’s position that they are purely criminal organizations rather than armed groups. Domestically, it would raise constitutional questions about the military’s involvement in internal security and could expose officials to criminal responsibility for IHL violations. Consequently, even as the armed forces remain deeply embedded in internal policing, the State insists that operations are governed exclusively by human rights law and domestic criminal procedure. 

Under President Andrés Manuel López Obrador, tensions have intensified. The creation of the Guardia Nacional—initially conceived as a civilian police force but now operationally subordinated to the military—has entrenched the armed forces’ role in public security. Meanwhile, the Cártel de Sinaloa and the CJNG continue to exercise quasi-territorial control in parts of Jalisco, Michoacán, and Guerrero, collecting taxes, enforcing local rules, and governing communities through coercion and patronage networks. The violence, however, remains fragmented and geographically uneven: multiple cartels and splinter groups operate simultaneously, often fighting one another more than the State itself. This fragmentation precludes the existence of stable, bilateral hostilities—a core element of the Tadić test—and thus undermines any claim of a unified nationwide NIAC.

In sum, Mexico’s “war on drugs” reveals a persistent dissonance between factual intensity and legal framing. From an operational perspective, the State employs military means against highly organized, durable armed entities; yet, normatively, it denies the existence of any armed conflict. This deliberate avoidance preserves the political flexibility of a law-enforcement narrative but comes at the cost of legal coherence and accountability.

Mexico thus epitomizes the broader Latin American trend of de facto militarization without juridical recognition of conflict—a strategy that may deliver short-term political expediency yet erodes the protective architecture of both IHL and international human rights law. By maintaining a permanent “security exception” while avoiding formal conflict recognition, Mexico exposes civilians to the risks of warfare without the safeguards of either regime.

Conclusions: Drawing the Line Between War and Law Enforcement

The comparative analysis of Colombia, Ecuador, and Mexico shows how the “war on drugs” has become a laboratory for stretching the legal notion of armed conflict. Governments confronted with persistent criminal violence increasingly borrow the vocabulary of international humanitarian law to frame internal security crises, invoking the language of armed conflict, combatants, and ceasefires in contexts that fall short of the legal thresholds for a non-international armed conflict. 

Ecuador’s experience demonstrates the political appeal but legal fragility of such framing. Declaring an “internal armed conflict” against gangs in 2024 allowed the government to mobilize the armed forces and project determination, yet the Constitutional Court ultimately reaffirmed that law-enforcement and human rights standards, not IHL, governed the situation.

Mexico’s case exposes the opposite dynamic: a factual landscape that at times meets the intensity and organization criteria of a NIAC, yet a State that refuses to recognize it as such. By denying conflict classification while maintaining permanent military engagement, Mexico preserves political flexibility at the expense of legal coherence and accountability.

Colombia, meanwhile, stands at the intersection of both tendencies. Through Paz Total and its hybrid treatment of insurgents and criminal groups, it seeks to bridge the gap between political and purely criminal violence. But this attempt to manage criminality through conflict-based frameworks risks diluting the meaning of armed conflict itself.

Across these examples, a common lesson emerges: the misclassification of violence—whether by excess or denial—undermines both protection and legality. Labeling criminal groups as parties to conflict invites the use of lethal force and detention regimes designed for wartime, while refusing to acknowledge genuine NIACs can deprive victims of the protections they are owed under IHL. Either way, the boundary between war and law enforcement erodes.

Re-centering humanity in the “war on drugs” requires restoring that boundary. IHL must remain confined to contexts of sustained, organized hostilities; IHRL must continue to govern law-enforcement operations, however violent. The credibility of both regimes—and the safety of those living in the crossfire—depends on resisting the temptation to turn every security challenge into a war.