Jessica Jahn

The growing transnational nature of crime, partly the result of globalization and digitalization trends, has made international cooperation in criminal matters a key component of any effective crime control agenda. With Canada recently caught in the middle of the US’s extradition request for Huawei’s CFO Meng Wanzhou and the holding of Michael Spavor and Michael Kovrig as hostages for more than 1,000 days by the Chinese government, Canadians are now more aware than before of the implications of international criminal justice cooperation, including how international relations permeates discussions around cooperation. The ways and extent to which Canada can cooperate with other countries in criminal matters will remain an important policy discussion in the foreseeable future, and not only because the fentanyl crisis, money laundering, cybercrimes, and most other criminal activity cannot be effectively countered without international cooperation.

In November 2021, Canada will embark on a multi-year process to review its implementation and application of the United Nations Convention against Transnational Organized Crime (UNTOC or the Convention) and its Protocols on trafficking in persons and smuggling of migrants. The main purpose of these instruments is to promote international criminal justice cooperation, involving various formal mechanisms like extradition, mutual legal assistance, asset confiscation, and others used by governments in fighting different forms of crime. Under the Convention’s “Review Mechanism”, managed by the Conference of States Parties and supported by the United Nations Office on Drugs and Crime, Canada and other countries will engage in a country review, on which the entire process will rely, to assess the progress it has achieved in implementing the instruments. The country reviews involve a self-assessment stage, using a questionnaire of pre-set and largely legalistic questions to which States parties have agreed, followed by a desk-based peer review by two fellow parties, namely Djibouti and New Zealand for Canada’s review. The peer reviewers will finalize a list of observations indicating any gaps or challenges in implementation.

For Canada and other participating countries, the review is an opportunity to reflect on the impact of various measures to prevent and control transnational organized crime, such as the extent to which States parties have transposed the Convention’s articles into domestic legislation to achieve legal harmonization as a basis for cooperation, ultimately drawing conclusions on whether the fight against transnational organized crime was strengthened by the kind of cooperation promoted by the Convention. It offers a chance to assess the effectiveness of protection measures for victims of transnational organized crime, including human trafficking victims. It will also help countries identify specific capacity and technical assistance needs. In the end, the review process should enable states to hold each other accountable for their (in)action to improve international cooperation against transnational organized crime.

The establishment of the UNTOC Review Mechanism in 2018 was a special milestone. It took States parties to the Convention slightly under two decades to agree on the modality. What is notable, however, is its limited formal opportunities for civil society engagement. For instance, according to the UNTOC Review Mechanisms’ Guidelines, countries are not required to engage with civil society stakeholders in completing the self-assessment questionnaires, nor are they required to conduct country visits during which civil society might be consulted. Even so, civil society can and should seek to provide inputs for Canada’s review, recognizing the importance of critical debate on the challenges encountered in the implementation of the Convention and its Protocols, including the limitations of international cooperation and the lessons to be drawn from Canada’s efforts to apply and use the international instruments.

So, how can civil society engage in the process, how can it prepare for such engagement, and what is still needed for civil society to help meaningfully inform Canada’s country review?

The following ways are open to civil society to participate in the review process:

• Gather information that would usually be collected during country visits, such as by hosting multi-stakeholder consultations, especially on non-legalistic matters affecting implementation and its impact.
• Request meetings with government officials and politicians during the self-assessment phase with a view to helping inform the self-assessment report. As part of “Review Group II”, Canada’s self-assessment phase for the first cluster (on criminalization and jurisdiction) of its review is expected to run from November 2021 to around April 2022. More information on the other three clusters and their expected future timelines can be found here.
• Prepare background papers to submit for discussion during the constructive dialogue, including information not captured in the country self-assessment.
• Consider cooperating with each other at the regional or global levels, such as by developing civil society coalitions or by participating in the work of existing coalitions, including the Global Initiative Against Transnational Organized Crime (GI-TOC).

To prepare for engagement in the process, several resources exist with background and substantive information on the Convention and its Protocols, as well as the general review process. In addition to reviewing the text of the Convention, what follows is a list of practical resources from which civil society can draw:

• UNODC and GI-TOC’s Guide for Civil Society Community Engagement with the UNTOC Review Mechanism covers practical advice on how to contribute to the broader outcome and contains a sample letter to send to the state party focal point (see page 47 of the Guide).
• UNODC’s Toolkit on Stakeholder Engagement: Implementing the United Nations Convention Against Transnational Organized Crime provides advice and examples of strategies for implementing the Convention, including by engaging with governments and building cross-cutting partnerships.
• The pre-set Self-Assessment Questionnaires to which States parties agreed for use in the UNTOC Review Mechanism.
• UNODC’s Civil Society Unit hosts trainings on participating in the review process and has produced short videos, including on the Convention and its Protocols and stakeholder engagement in the UNTOC Review Mechanism.
• UNODC’s WhatsOn platform promotes various resources, including toolkits, guides, and research that is relevant to the UNTOC Review Mechanism.

Finally, there are gaps in empirical evidence on the extent to which Canada has implemented its obligations under the Convention, including the impacts of its approach, which civil society could help fill in part to inform Canada’s review and ensure it becomes more than a legalistic exercise. As a starting point, civil society might consider at least the following questions:

• Has the strength of Canada’s international criminal justice cooperation system changed since it ratified the Convention and its Protocols? Has Canada’s fight against transnational organized crime been improved by the kind of cooperation promoted in the Convention and its Protocols? Are there lessons to be drawn from experiences in trying to apply the Convention’s broader approach to international cooperation?
• To what extent has Canada’s international cooperation regime been effective in controlling transnational organized crime? Have certain formal mechanisms, such as extradition or mutual legal assistance, been more effective than others and, if so, why? How can we know whether the international criminal justice cooperation regime and its various mechanisms have been effective? How can we know whether Canada has increased its use of alternative methods for cooperation in recent years?
• What reforms are needed to improve Canada’s international criminal justice cooperation system, taking into consideration the legal and human rights implications, as well as the prevailing geopolitical landscape?

The outcomes of the Review Mechanism remain to be seen, but part of its success arguably lies in States parties’ willingness to welcome inputs from civil society, from both within and beyond the criminal justice system. In so doing, civil society can ultimately help ensure that the review process serves as a meaningful impetus to improve Canada’s response to transnational organized crime, especially its international criminal justice cooperation regime.

Photo by Greg Rosenke on Unsplash.