Unwilling or Unable? The Legal Controversy Behind U.S. Naval Strikes on Alleged Drug Boats

As of November 13, 2025, President Donald Trump had authorized a series of 20 strikes on 21 vessels he claimed were used to smuggle drugs from South America, resulting in at least 80 deaths. According to a Trump administration memo obtained in October, these actions fall under what the administration describes as a “non-international armed conflict,” with drug cartels treated as unlawful combatants. Conversely, the governments and families of those killed from these U.S. strikes have stated that many of the dead were civilians, primarily fishermen, prompting questions into the legality of these strikes absent any form of due process or congressional approval. The absence of publicly available evidence demonstrating the necessity of the attacks has only deepened these substantial concerns.

While the internal legal rationale has been complex and, at times, unclear, the strikes have faced intense scrutiny under international humanitarian law. Historically, the United States has invoked the “unwilling or unable” doctrine, an expansive interpretation of the UN Charter’s Article 51 self-defence provision, to justify the use of force against non-state actors operating within another state’s territory, even without congressional authorization, host-state consent, or an imminent threat. Yet such justifications frequently rely on international law while simultaneously undermining it. This article argues that continued reliance on the “unwilling or unable” doctrine without clearer constraints risks eroding the integrity of international law and sets a dangerous precedent for future military interventions.

Since the establishment of the United Nations in 1945, the Charter of the United Nations has codified the major principles of international relations, from maintaining peace and promoting human rights to upholding sovereign equality and prohibiting the use of force. Chapter VII: “Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression” outlines the UN Security Council’s authority to determine the existence of any threat to the peace or act of aggression and to recommend measures in accordance with the Charter. Alongside these powers, Article 51 of Chapter VII specifically grants states an inherent right to individual or collective self-defence if an armed attack occurs against a UN member state, until the Security Council has taken necessary action. Article 51 provides a narrow but vital exception to the Charter’s general prohibition on the use of force. It was designed to permit states to defend themselves in the immediate aftermath of an attack by another state, ensuring that they are not left vulnerable while waiting for collective security mechanisms to be activated.

While the article clearly protects a state’s right to defend itself from an aggressor, it does not address whether the conduct of illicit non-state actors, such as insurgents, pirates, or criminal cartels, can be attributed to a state. Since the current attacks have taken place in international waters rather than on land, and given that those above these stricken crafts are alleged to be narco-terrorists rather than state armed forces, the question becomes whether Article 51 can be invoked at all.

In its classical interpretation, Article 51 presupposes that an “armed attack” triggering the right of self-defence must be attributable to another state. Cartel groups, however violent or organized, operate themselves as criminal enterprises, not as arms of any sovereign government. Therefore, their actions lack the state attribution required to evoke a military response under Article 51. This distinction is not merely technical; it is fundamental in how the international legal system distinguishes armed conflict from transnational organized crime.

Moreover, the ICJ has consistently reaffirmed the importance of state attribution. In cases such as Nicaragua v. United States (1986) and Democratic Republic of the Congo v. Uganda (2005), the Court held that for non-state violence to qualify as an armed attack warranting self-defence, the group in question must be under a state’s “effective control” or direction. In this case, there is no evidence that any state is directing the cartel activity in the Caribbean, despite U.S. officials' claims tying Venezuelan President Nicolás Maduro to Cartel de los Soles. Without this link, the strikes cannot be legally justified as measures of self-defence under Article 51.

The United States may attempt to justify its actions by arguing that the coastal states from which these vessels originated were “unwilling or unable” to suppress cartel activity. First articulated in 1970 by the Nixon administration to expand U.S. operations against North Vietnamese forces in neutral Cambodia, the doctrine permits a state to use military force in another country if the host state is unable or unwilling to stop non-state actors, such as terrorists, from attacking it. It has not been endorsed by the ICJ or codified in any treaty, and many states reject it outright as an illegitimate expansion of Article 51. Early applications, such as Israel’s 1976 Entebbe raid, invoked the doctrine to justify cross-border action when Uganda was unable or unwilling to restrain hijackers holding Israeli hostages. The doctrine has also been criticized for its use after 9/11 and during U.S. operations in Afghanistan. In the current context, using it to justify force on the high seas, where no state’s territorial integrity is at issue, thus stretches the doctrine even further beyond its contested scope. Reliance on this approach risks normalizing unilateral military action against criminal actors without the safeguards or oversight the UN Charter demands, potentially transforming the narrow exception of self-defence into a broad license for extraterritorial violence.

Taking military action abroad without due process or credible legal justification undermines international law and global stability. Because the United States was not the victim of an armed attack and the perpetrators were non-state criminal groups, invoking Article 51 to justify the Caribbean vessel strikes dangerously stretches the principle of self-defense. This misapplication threatens the autonomy of states wrongly implicated in illicit activities and risks encouraging military intervention in place of the diplomatic cooperation needed to address transnational organized crime. The controversy over the “unwilling or unable” doctrine underscores this problem, as it lacks clear legal grounding, and there is no public evidence that coastal states failed to curb cartel activity or that the United States faced an imminent threat. Accordingly, the strikes cannot be justified under Article 51 and reflect an unsettling expansion of unilateral force that erodes the international legal order.

As our international legal system faces growing enforcement challenges, exacerbated by powerful nations ignoring international court rulings, the response to these strikes will be crucial. It will either shape how non-state criminal actors are held accountable and bolster states’ ability to prosecute them in accordance with international law, or it will set a dangerous precedent that undermines the very legal principles that uphold global order.