The second presidential victory of Donald Trump has already ushered in a new era of geopolitics marked by the U.S. abdicating its role as the guardian of the rules-based order to which international criminal justice co-operation has long been tethered.
“The postwar global order is not just obsolete. It is now a weapon being used against us,” U.S. Secretary of StateMarco Rubio said at his confirmation hearing.
“(Countries) have manipulated it to serve their interests at the expense of ours.”
In its place, a narrower, one might say myopic, nationalist vision is emerging in the United States. Self-interests are governing co-operative transactions, and long-standing allies are beingblackmailed into compliance without reciprocal concessions.
In this rapidly evolving context, Canada and like-minded countries may be forced to re-evaluate their commitment to thetreaty-based international criminal justice framework. It may be time for countries to redefine the rules that will guide them — if not multilateral and bilateral treaties and conventions — and how they will co-operate in the future.
In 2021, the growing global debate over the embattledrules-based orderinspired co-author Yvon Dandurand and me to think critically about how international criminal justice co-operation could possibly evolve as that order eroded. That discourse culminated in our developingfive scenarios. At that time, we could not have predicted which, if any, of these would eventually take hold.
Yet, four years later, shifts in U.S. foreign policy portend a fundamental revision of cross-border relationships. This is leading to a sustained deterioration of the foremost attributes of co-operation: trust, reciprocity and predictability.
In what we originally characterized as the “going-alone” scenario, moving away from multilateral mechanisms, along with coercion of others to achieve self-interested ends, would devolve into common practice. To the extent that scenario reflects our current geopolitical reality, one may be concerned about the longer-term consequences.
America was always first
The present-day spread of coercive tactics by the main global players, including China and the U.S., cannot be mediated by foreign countries pledging renewed loyalties to the existing framework. The roots are structural and relational, which leaves countries vulnerable to a diverse array of pressures.
For instance, take extradition treaties that hypothetically could be abused by the U.S. administration to compel foreign governments to surrender American political dissidents based on fabricated criminal charges. This would expose democratic states to reputational damage.
Consider also the power the U.S. has to selectively impose financial sanctions against individuals and countries — ostensibly implicated in terrorist financing, corruption or other crimes — by restricting their transactions in U.S. dollars across the global financial system.
Imagine the U.S.-headquartered tech companies that control an immense volume of digital data andthe cross-border disclosure of which could be prohibited by the U.S. administration. That would in turn undermine investigations led by foreign governments that have not enacted data localization laws of their own.
More informal methods include co-operation veiled in greater secrecy. This could include sharing intelligence in exchange for a direct favour or a delayed assurance that future help will be delivered. Diplomatic reciprocity risks losing its value if a foreign service is led by a highly unpredictable administration that might seek to cash in favours of an undemocratic nature.
Countries historically assumed such vulnerabilities because the U.S. acted in foreseeable ways. It respected its trust-based relationships, negotiated compromises and honoured, at least in principle, the agreements it signed.
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As the American administration increasingly sows uncertainty and unreliability, foreign governments will more than ever question whether they can continue to shoulder the risks and concede to the U.S.’s evolving demands.
Perhaps for good reason. Strategic calculations quickly become trickierif concessions made by governments to appease Trump start to impede their ability to co-operate with other countries.
Canada recently granted a U.S. demand to designate drug cartels asterrorists. This could introduce new ways to potentially ignore human rights safeguards. Whether and to what extent such concessions will raise concerns among Canada’s other partners over sharing intelligence and extraditing fugitives should be closely watched.
If the three main attributes of co-operation continue to be disregarded by the global superpower that was once their primary defender, it sends a dangerous signal of indifference to co-operation made possible by the institutions, mechanisms and norms of the rules-based order. And it invites many other countries to disinvest too.
The deterioration of trust, reciprocity and predictability could also help fuel an alternative scenario in which stable partners re-evaluate the conditions and mechanisms by which cross-border crime is investigated and prosecuted.
Appetite for adaptation?
There may yet be space to forge a working consensus with nations that still value predictable criminal justice co-operation, even if some of the most powerful players are distancing themselves from the rule of law and the protection of human rights.
What then could Canada and like-minded countries realistically do, if anything, to try to adapt a frail co-operation framework to counter the evolving threat of cross-border crime?
To start, a consensus around the urgency of reform needs to emerge.
Can leaders fundamentally rethink the criminal justice co-operation infrastructure without the collective will to recognize its serious fault lines? Will states opt to defend parts of the imperfect rules-based order as a framework for adapting or adding co-operation pathways?
In recent years, countries have increasingly hedged against the anticipated rise in Chinese influence by further embracing “minilateralism” with stable partners. A small coalition of like-minded nations might be best poised to initiate rights-based reforms for criminal justice co-operation and eventually persuade other countries by appealing to their own interests or by pledging foreign aid.
For instance, civil society groups have called for aglobal strategy against organized crime that safeguards human rights and revitalizes mechanisms for international criminal justice co-operation. A minilateral approach might lend itself well for developing and carrying through such a strategy.
In the longer term, reliance on minilateral co-operation risks relocating cross-border crime to places where co-operation is weaker, especially to countries that already have fragile institutions vulnerable to hijacking by organized criminal groups.
But in the short term, the versatility offered by informal co-operation blocs could prove favourable, especially as global power is progressively dispersed among more major players and multilateralism is increasingly deadlocked.
In the best-case scenario, international co-operation in criminal matters would regain political traction as a valuable way to advance national interests in pursuit of human betterment.
Canada’s resolve to fight crime through co-operation based on human rights and the rule of law will continue to be tested by Trump.
International co-operation guided by predictability and made possible by reciprocity remains key to effectively combating transborder crime. Without such conditions, we will increasingly find ourselves vulnerable to an even more dangerous set of rules: those of other countries intent on an imperial quest.
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