Cybercrime Ad Hoc Committee 3rd substantive session
The Cybercrime Ad Hoc Committee had its third substantive session from 29 August to 9 September 2022 in New York, USA.
In preparation for the third session, state parties were asked to submit their proposals on international cooperation, technical assistance, preventive measures, mechanisms of implementation, final provisions, and the preamble of the new convention.
Brazil used the proposals from Russia, China, and the Budapest Convention as references for its draft text. Brazil stated that dual criminality shall be fulfilled when a request is made for mutual legal assistance except in cases where state parties are requested to preserve expedited data.
The EU and its member states emphasised the need to ensure that the cooperation to combat cybercrime provides full protection of human rights and fundamental freedoms that are in line with the international human rights law conventions including the UDHR, the International Covenant on Civil and Political Rights (ICCPR), UNTOC, and the Convention on the Rights of the Child (UNCRC) and its optional protocol. The EU stressed that dual criminality shall be fulfilled and that extradition should not be effected if the requested party has substantial grounds to believe that the request has been made ‘for the purpose of prosecuting or punishing a person because of their sex, colour, race, language, religion, ethnic origin or political or other opinions, national or social origin, birth or other status’. The EU supports the creation of a 24/7 contact platform that would assist the investigation of judicial proceedings. Last, in cases where state parties have not solved their dispute through negotiation or arbitration, they may refer their dispute to the International Court of Justice (ICJ).
The USA stated that the new convention should facilitate expedited preservation of stored computer data, mutual legal assistance, and the use of a 24/7 network that would provide immediate assistance for the investigations. Regarding international cooperation, the USA used references from UNCAC and UNTOC. Namely, the USA stated that dual criminality shall be fulfilled irrespective of the relevant law of the requested state party. Additionally, the USA proposed the Commission on Crime Prevention and Criminal Justice of the ECOSOC as the implementing body of the new convention, and provisions regarding dispute settlement, signature, ratification, acceptance, approval, accession, entry into force, amendment, denunciation, and depository and languages, should be in line with the corresponding provisions of UNTOC.
Vietnam used references from UNCAC and UNCOC in its draft provisions. Vietnam stressed that state parties should adopt regulations and procedures that would monitor virtual assets training and cryptocurrency exchange platforms to ensure the reduction of existing or future cybercriminals using ICTs to participate in lawful markets. The principle of dual criminality shall be fulfilled in cases of international cooperation procedures, irrespective of the relevant laws of the requested states. Additionally, Vietnam stressed that state parties should promote the reintegration into society of individuals who have been convicted of cybercrime.
General comments and proposals
Angola used UNCAC, UNTOC, the African Union Convention on Cybersecurity and Data Protection, and the Budapest Convention as references for drafting the proposal on international cooperation. Angola stated that due to the technological nature of cybercrime, the principle of dual criminality should be more flexible in the new convention. Additionally, Angola proposed that the principles of locus regit actum and forum regit actum should be applied when the issue of the collection of evidence is raised, meaning that the evidence should be gathered based on the relevant law of the requested states.
Colombia used the Budapest Convention as a reference when drafting the proposals on international cooperation. Colombia stated that state parties should implement mechanisms that would assist developing countries to prevent and combat cybercrimes. That would include technical assistance, the development of affordable technologies as well as educational mechanisms for the public.
Costa Rica stated that the structure and content of the new convention should be based on the Budapest Convention, while taking into account the new cybercrime challenges that are being faced by the global community. Costa Rica mentioned the challenges posed by artificial intelligence (AI) and the right to privacy, the use of lethal autonomous weapons (LAWS), the use of hate speech on social platforms, and the manipulation of the electorate in democratic processes, among others. Regarding extradition, Costa Rica emphasised that dual criminality shall be respected in such cases and that in case of denial of extradition, states should proceed with their jurisdiction based on the au dedere au judicare principle.
Ghana stated that the new draft convention should harmonise national laws on cybercrime, improve investigatory powers and procedures, and promote and enhance international cooperation while protecting privacy and other fundamental human rights. Ghana also believes that the new convention should extend into sustainable capacity building and preventive measures to enhance domestic capabilities and enable the sharing of good investigative practices and experiences. Ghana stated that dual criminality should be fulfilled except in cases where responding to a request for the preservation of expedited specified data. In cases where the requesting state has reasons to believe that at the time of the disclosure of stored data the principle of dual criminality cannot be fulfilled, it can refuse the request for preservation.
Iran stated in its submission that the convention should stipulate provisions that ensure timely responses to cybercrimes, such as the 24/7 network platform. Iran emphasised that such a platform should be available for all states without discrimination and stressed the importance of ensuring technical assistance and capacity building for the benefit of developing states. Additionally, technical standards, such as police-to-police cooperation in sharing evidence, could be established when necessary. Last, Iran stated that the new convention should include provisions that ensure efficient cooperation between states regarding asset recovery and address any challenges that state parties face.
Japan stressed that the new convention should avoid duplication of existing international instruments and established frameworks. Regarding the mutual legal assistance, Japan stated that the requested state may decline to render assistance if there is an absence of dual criminality, as enshrined under Art.46 (9) (b) and (21) of UNCAC.
New Zealand stated that capacity building is the key element to achieving an effective convention to ensure that all state parties can meet its standards. For example, the 24/7 single point of contact system, as enshrined under the Budapest Convention, should ensure that all states will have the appropriate resources and training to adhere to this standard. New Zealand also emphasised that in the cases of international cooperation, state parties should refuse to provide assistance when dual criminality is not fulfilled. Additionally, New Zealand stressed that the new convention should not conflict with the existing international instruments.
Nigeria proposed to use UNTOC, UNCAC, and the Budapest Convention when drafting the provisions of the new convention, while also ensuring the protection of human rights and fundamental freedoms. Nigeria suggested that the new convention should provide a framework for capacity building to enable different levels of readiness for cybercrime investigation and prosecution of cybercrime globally. Last, Nigeria stated that effective mechanisms of implementation should be established to review the effectiveness of the convention.
Norway emphasised the need to ensure that the procedural framework of the new convention be in line with the rule of law and protection of human rights and fundamental freedom. Norway also stated that the best way to achieve an effective criminal justice response is to strengthen the capabilities of practitioners to investigate and prosecute cybercrime and other offences involving electronic evidence. UNODC should have a role in establishing and administering the program and it should build on existing training and capacity-building programs, such as those of INTERPOL. Last, Norway proposed to useUNTOC and the Budapest Convention provisions as references for the inclusion of articles on preventive measures.
South Africa stated that dual criminality shall be fulfilled when considered a requirement for mutual legal assistance. With regard to technical assistance, state parties shall assist each other in planning and implanting research programs and promote training and technical assistance. Additionally, South Africa supports the creation of a 24/7 contact for immediate assistance of investigations to ensure immediate assistance for investigations, which would also carry out communications with other state parties.
Switzerland emphasised that international cooperation should be in line with international human rights law instruments. States should also ensure that any requests for extradition or to afford mutual legal assistance not be done to prosecute or punish a person because of that person’s race, religion, nationality, ethnic origin, or political union. Switzerland also stressed that dual criminality should be fulfilled for mutual legal assistance, even for requests to preserve expedited specified data. Additionally, Switzerland proposed that in cases where disputes between two or more state parties cannot be settled through negotiation, they may refer to the International Court of Justice (ICJ).Tanzania stated that the Ad Hoc Committee should adopt the formulation of existing international instruments such as UNTOC and UNCAC. Tanzania stressed that dual criminality should be fulfilled except in cases where states can assist to the extent of their discretion and the extent permitted by their domestic laws.