- Background/ Overview
Last month, the Centre for Communication Governance at National Law University Delhi had the opportunity to participate as a stakeholder in the Fourth Session of the United Nations Ad-hoc Committee, tasked to elaborate a comprehensive international convention on countering the use of information and communications technologies (ICTs) for criminal purposes (“the Ad Hoc Committee”).
The open-ended Ad-hoc Committee is an intergovernmental committee of experts representative of all regions. It was established by the UN General Assembly-Resolution 74/247 under the Third Committee of the UN General Assembly. The committee was originally proposed by the Russian Federation and 17 co-sponsors in 2019. The UN Ad-hoc Committee is mandated to provide a draft of the convention to the General Assembly at its seventy-eighth session in 2023 (UNGA Resolution 75/282).
The three previous sessions of the Ad Hoc Committee witnessed the exchange of general views of the Member States on the scope, and objectives of the comprehensive convention, and agreement on the structure of the convention. This was followed by themed discussions and a first reading of the provisions on criminalisation, procedural measures and legal enforcement, international cooperation, technical assistance, preventive measures, among others. (We had previously covered the proceedings from the First Session of the Ad-Hoc Committee here.)
The fourth session of the Ad Hoc Committee was marked by a significant development – the preparation of a Consolidated Negotiating Document (CND) to facilitate the remainder of the negotiation process. The CND was prepared by the Chair of the Ad Hoc Committee keeping in mind the various views, proposals, and submissions made by the Member States at previous sessions of the Committee. It is also based on existing international instruments and efforts at the national, regional, and international levels to combat the use of information and communications technologies (ICTs) for criminal purposes.
As per the road map and mode of work for the Ad Hoc Committee approved at its first session (A/AC.291/7, annex II), the fourth session of the Ad Hoc Committee conducted the second reading of the provisions of the convention on criminalisation, the general provisions and the provisions on procedural measures and law enforcement. Therefore, the proceedings during the Fourth Session involved comprehensive and elaborate discussions around these provisions amongst the Chair, Member States, Observer States, and other multi-stakeholder groups.
Over the two-part blog series, we aim to provide our readers with a brief overview and our observations from the discussions during the fourth substantive session of the Ad-hoc Committee. Part I of the blog (i) discusses the methodology employed by the Ad-Hoc Committee discussions and (ii) captures the consultations and developments from the second reading of the provisions on criminalisation of offences under the proposed convention. Furthermore, we also attempt to familiarise readers with the emerging points of convergence and divergence of opinions among different Member States and implications for the future negotiation process.
In part II of the blog series, we will be laying out the discussions and exchanges on (i) the general provisions and (ii) provisions on procedural measures and legal enforcement.
- Methodology used for Conducting the Fourth session of the Ad-Hoc Committee.
The text-based negotiations at the Fourth Session proceeded in two rounds.
Round 1: The first round of discussions allowed the participants to share concise, substantive comments and views. Provisions on which there was broad agreement proceeded to Round 2. Other provisions were subject to a co-facilitated informal negotiation process. Co-facilitators that spearheaded the informal negotiations reported orally to the Chair and the Secretariat.
Round 2: Member Countries progressed through detailed deliberations on the wording of each of the provisions that enjoyed broad agreement.
- Provisions on Criminalization (Agenda Item 4)
The Chapter on “provisions on criminalization” included a wide range of criminal offences that are under consideration for inclusion under the Cybercrime Convention. Chapter 2 under the CND features 33 Articles grouped into 11 clusters as:
- Cluster 1: offences against illegal access, illegal interference, interference with computer systems/ ICT systems, misuse of devices, that jeopardises the confidentiality, integrity and availability of system, data or information;
- Cluster 2: offences that include computer or ICT-related forgery, fraud, theft and illicit use of electronic payment systems;
- Cluster 3: offences related to violation of personal information
- Cluster 4: infringement of copyright.
- Cluster 5: offences related to online child sexual abuse or exploitation material
- Cluster 6: offences related to Involvement of minors in the commission of illegal acts, and encouragement of or coercion to suicide
- Cluster 7: offences related to sexual extortion and non-consensual dissemination of intimate images.
- Cluster 8: offences related to incitement to subversive or armed activities and extremism-related offences
- Cluster 9: terrorism related offences and offences related to the distribution of narcotic drugs and psychotropic substances, arms trafficking, distribution of counterfeit medicines.
- Cluster 10: offences related to money laundering, obstruction of justice and other matters (based on the language of United Nation Convention against Corruption (UNCAC) and United Nation Convention against Transnational Organised Crime (UNTOC))
- Cluster 11: provisions relating to liability of legal persons, prosecution, adjudication and sanctions.
Round 1 Discussions
- Points of Agreement (taken to the second round)
The first round of discussions on provisions related to criminalisation witnessed a broad agreement on inclusion of provisions falling under Cluster 1, 2, 5, 7, 10 and 11. Member States, Observer States and other parties including the EU, Austria, Jamaica (on the behalf of CARICOM), India, USA, Japan, Malaysia, and the UK strongly supported the inclusion of offences enlisted under Cluster 1 as these form part of core cybercrimes recognised and uniformly understood by a majority of countries.
A large number of the participant member countries were also in favour of a narrow set of cyber-dependent offenses falling under Cluster 5 and 7. They contended that these offenses are of grave concern to the majority of countries and the involvement of computer systems significantly adds to the scale, scope and severity of such offenses.
Several countries such as India, Jamaica (on behalf of CARICOM), Japan and Singapore broadly agreed on offences listed under clusters 10 and 11. These countries expressed some reservations concerning provisions on the liability of legal persons (Article 35). They contended that such provisions should be a part of the domestic laws of member countries.
- Points of Disagreement (subject to Co-facilitated Informal Negotiations)
There was strong disagreement on the inclusion of provisions falling under Cluster 3, 4, 6, 8 and 9. The EU along with Japan, Australia, USA, Jamaica (on the behalf of CARICOM), and others objected to the inclusion of these cyber-dependent crimes under the Convention. They stated that such offenses (i) lack adequate clarity and uniformity across countries(ii) pose a serious threat of misuse by the authorities, and (iii) present an insurmountable barrier to building consensus as Member Countries have exhibited divergent views on the same. Countries also stated that some of these provisions (Cluster 9: terrorism-related offenses) are already covered under other international instruments. Inclusion of these provisions risks mis-alignment with other international laws that are already employed to oversee those areas.
- Co-Facilitated Informal Round
The Chair delegated the provisions falling under Cluster 3, 4, 6, 8 and 9 into two groups for the co-facilitated informal negotiations. Clusters 3, 4 and 6 were placed into group 1, under the leadership of Ms. Briony Daley Whitworth (Australia) and Ms. Platima Atthakor (Thailand). Clusters 8 and 9 were placed into group 2, under the leadership of Ambassador Mohamed Hamdy Elmolla (Egypt) and Ambassador Engelbert Theuermann (Austria).
Group 1: During the informal sessions for cluster 3, 4 and 6, the co-facilitator encouraged Member States to provide suggestions/views/ comments on provisions under consideration. The positions of Member States remained considerably divergent. Consequently, the co-facilitators decided to continue their work after the fourth session during the intersessional period with interested Member States.
Group 2: Similarly for cluster 8 and 9, the co-facilitators, along with interested Member States engaged in constructive discussions. Member States expressed divergent views on the provisions falling under cluster 8 and 9. These ranged from proposals for deletion to proposals for the strengthening and expansion of the provisions. Besides, additional proposals were made in favour of the following areas – provision enabling future Protocols to the Convention, inclusion of the concept of serious crimes and broad scope of cooperation that extends beyond the provisions criminalised under the convention. The co-facilitators emphasised the need for future work to forge a consensus and make progress towards finalisation of the convention.
Round 2 Discussions:
Subsequently, the second round of discussions witnessed intensive discussions and deliberation amongst the participating Member Countries and Observer States. The discussions explored the possibility of adding provisions on issues relating to the infringement of website design, unlawful interference with critical information infrastructure, theft with the use of information and communications technologies and dissemination of false information, among others.
Since the First Session of the Ad-Hoc Committee, the scope of the convention has remained an open-ended question. Member Countries have put forth a wide range of cyber-dependent and cyber-enabled offences for inclusion in the Convention. Cyber-dependent offences, along with a narrow set of cyber-enabled crimes (such as online child sexual abuse or exploitation material, sexual extortion, and non-consensual dissemination of intimate images), have garnered broad support. Other cyber-enabled crimes (terrorism-related offences, arms trafficking, distribution of counterfeit medicines, extremism-related offences) have witnessed divergences, and their inclusion is currently being discussed at length. Countries must agree on the scope of the Convention if they want to make headway in the negotiation process.
(The Ad-Hoc committee is likely to take up these discussions forward in the sixth session of the Ad-Hoc Committee 21 August – 1 September 2023.)