by David Matas
Are trafficking in organs and trafficking in humans for the purpose of organ removal the same? One would have thought so. Organs, after all, are components of humans. Trafficking of part is, one would have thought, trafficking of the whole. Any distinction between the two is bound to seem artificial. The notion that, when a person is trafficking part of a human being, the person is not trafficking the human being from which the part comes seems unreal.
A distinction has nonetheless developed at international law. There are two sets of international laws, one dealing with trafficking in organs and another dealing with trafficking in humans for the purpose of organ removal. Why and how did this distinction develop?
One can argue conceptually for a differentiation between any two activities with different linguistic formulations, no matter how close the terms seem in ordinary everyday language. Yet, international law is not developed by linguists or philosophers or even legal scholars. It is developed by states. International law operates in the sphere of geo-politics.
International law, even if it does in some cases bind individuals, generally binds states. As well, even though NGOs may have a role in the drafting of international instruments, treaties are negotiated, signed and ratified by states. International customary law is not principles that individuals consider binding. It is principles that states practice and consider binding on themselves. International law develops through the acceptances by states of principles and mechanisms that they accept apply to themselves.
When we are looking at state actors generally, we do not see just states run by governments which respect human rights. We do not see just states run by government which aspire to respect human rights. We see also states run by governments which are criminal, which engage in mass murderer of their own citizens, which are totalitarian, which are corrupt, which seek immunity, which deny and cover up their crimes. States run by governments of the second sort do not support the development of any international law or mechanisms which is directed against them.
That does not mean that states run by criminal governments stay away from institutional standards and institutions. On the contrary, these governments embrace these standards and institutions, partly in an exercise of hypocrisy to fool the gullible and naive, partly to hide their misdeeds behind an aura of respectability, partly to attempt to ensure that these international standards and mechanisms are not turned against them. We even see in some cases states with criminal governments attempting to turn the human rights standards and mechanisms around to target rights respecting states in order to delegitimize their critics.
The effort of states run by rights violating governments to attempt to ensure that these international standards and mechanisms are not turned against them is sometimes engaged by opting out of enforcement procedures, compliance assessments, individual petition options and dispute resolutions mechanisms. It is also done through linguistic quibbling, assertions that the general standards to which they have ascribed do not apply to the particular type of violation of which they are accused.
The United Nations Human Rights Council does not, for instance, just attract rights respecting states. On the contrary, some of the most egregious violator states are among its candidates for membership and even actual members.
One can say the same of international human rights treaties. It is not just governments of states which respect human rights or which aspire to respect human rights which join in on these treaties. Many egregious violator states sign on to these treaties, typically while avoiding the enforcement systems, staying clear of the optional individual petition procedures, and filing reservations about dispute resolution mechanisms.
All this is true of China in the modern human rights era. The Government of China since 1949 has been ruled by a Communist Party guilty of an unending sequence of massive human rights violations against its own citizens. Despite these atrocities, China has signed and ratified many human rights treaties. These included the Convention against Torture, even though there is systematic torture in Chinese prisons and detention centre, and the International Convention on the Elimination of All Forms of Racial Discrimination, even though there is massive discrimination against Uyghurs and Tibetans as well as other distinct minorities in China. China, to boot, now sits on the UN Human Rights Council.
The particular focus of this talk is United Nations Convention against Transnational Organized Crime and The Protocol to Prevent, Suppress and Punish Trafficking in Persons. China is a party to both.
The Protocol defines trafficking in persons to mean, in part,
“the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.”
Exploitation is stated to include, “at a minimum”, among other abuses, “the removal of organs”.
The Government of China, through its prisons, detention centres and hospitals has been engaged in the mass killing of prisoners of conscience for their organs – mostly practitioners of Falun Gong and Uyghurs and also, in lesser numbers, Tibetans and House Christians, primarily Eastern Lightning or the Almighty House of God.
For Falun Gong, the experience is this. Falun Gong is a Chinese equivalent to yoga, a modern blending of traditional Chinese spiritual beliefs and exercises begun in 1992 with the teachings of Li Hongzhi. Originally encouraged by the Chinese Government as beneficial to health, Falun Gong grew from a standing start in 1992 to an estimated 70 to 100 million practitioners by 1999. The Chinese Communist Party, by then fearing for its own popularity and ideological supremacy, decided to suppress the practice, without a legislative or regulatory ban.
The repression campaign led to a great deal of incomprehension. Practitioners could not see the harm to the Government or the Party in a set of healthful exercises. The repression led to massive demonstrations with banners and posters saying “Falun Gong is good” as if the Communist Party had been mistakenly led into thinking that Falun Gong was bad or harmful.
Practitioners failed to realize that the very fact that Falun Gong was good, or at least seemed so to the practitioners, was what led to its downfall. The Party does not have to fear losing support to the bad. Only the good presents a real challenge to Party supremacy.
Be that as it may, the Party arrested the demonstrators in the millions. They were kept in detention in makeshift detention camps all over China. They were tortured into signing document renouncing Falun Gong, denouncing their fellow practitioners and embracing the Party, and, if they did so, released.
Hundreds of thousands refused to sign these documents, even under torture. So they remained in arbitrary indefinite detention, engaged in forced labour.
The detained practitioners were systematically, periodically blood tested and organ examined. The blood and tissue type information elicited from these tests was circulated to local transplant hospitals and transplant wings of general hospitals.
Chinese hospitals advertised aggressively worldwide for transplant patients, offering organs on demand, booked in advance, of even vital organs. Patients would pay the hospitals and doctors a pre-determined price, paid typically in cash in red envelopes. When a patient showed up, the hospitals would determine the blood and tissue type of the patients, match the typing with the information supplied from the local detention centre or prison and dispatch a white van to fetch the organ.
The detained Falun Gong practitioner with the matching organ would be brought to a holding cell in the place of detention and injected with muscle relaxants and anti-coagulants. Once immobilized through injection, the practitioner would then be brought to the white van and the organ on order would be extracted. The practitioner would die through the organ extraction. His/her body would be cremated at a crematorium at the prison/ detention centre grounds. The white van would transport the organ to the hospital for insertion in the patient.
This process certainly looks like what The Protocol to Prevent, Suppress and Punish Trafficking in Persons of the United Nations Convention against Transnational Organized Crime describes. It is both the giving and receiving of payments to achieve the consent of the hospital and prison/ detention system, which has control over arbitrarily detained Falun Gong practitioners, for the purpose of a particular type of exploitation, the removal of organs.
There is not a plausible linguistic argument to suggest the contrary. Yet, there is a very real political one. The Government of China does not want to be found to be in violation of the Protocol. Nor does the UN bureaucracy itself want to run afoul of China. So the Protocol is not applied.
The Protocol has an enforcement mechanism. But China has opted out of it. Article 15(2) of the Protocol provides:
“Any dispute between two or more States Parties concerning the interpretation or application of this Protocol that cannot be settled through negotiation within a reasonable time shall, at the request of one of those States Parties, be submitted to arbitration. If, six months after the date of the request for arbitration, those States Parties are unable to agree on the organization of the arbitration, any one of those States Parties may refer the dispute to the International Court of Justice by request in accordance with the Statute of the Court.”
The Government of China appended a reservation to its Protocol commitments. The reservation was that
“The People’s Republic of China shall not be bound by paragraph 2 of Article 15 of the Protocol.”
The Vienna Convention on the Law of Treaties provides:
“Formulation of reservations
A State may, when signing, ratifying, accepting, approving o acceding to a treaty, formulate a reservation unless:
- (a) the reservation is prohibited by the treaty;
- (b) the treaty provides that only specified reservations, which do not include the reservation in question, may be made; or
- (c) in cases not failing under subparagraphs (a) and (b), the reservation is incompatible with the object and purpose of the treaty.”
China is a state party to the Vienna Convention and bound by it. Nonetheless, an argument that the reservation China made to the Protocol is not permissible in light of the Vienna Convention article just quoted would go nowhere because of Article 15(3) of the Protocol. That subarticle provides:
“Each State Party may, at the time of signature, ratification, acceptance or approval of or accession to this Protocol, declare that it does not consider itself bound by paragraph 2 of this article. The other States Parties shall not be bound by paragraph 2 of this article with respect to any State Party that has made such a reservation.”
It is impossible to argue that the Chinese reservation to the Protocol is forbidden by the Vienna Convention when the Protocol, in the subarticle just quoted, expressly allows the sort of reservation China made. The effect of the Chinese reservation to the Protocol is that China can take a position that the Protocol means something completely different from what was intended and there is no one, within the Protocol framework, authorized to say that China is wrong.
The United Nations Office on Drugs and Crime was not going to say that China was violating the Convention, but there was nothing they could do about it. They said instead that the Convention did not apply to what China was doing.
I and a delegation from the NGO Doctors Against Forced Organ Harvesting with the acronym DAFOH met in Geneva in December 2013 with the Office of the United Nations High Commissioner for Human Rights to present a petition with nearly 1.5 million signatures from 53 countries and regions asking the High Commissioner, then Navi Pillay,
- to call upon Government of China to end immediately the forced organ harvesting from Falun Gong prisoners,
- to initiate an investigation which could lead to the prosecution of the perpetrators of this crime against humanity, and
- to call upon the Government of China to end immediately the brutal persecution of Falun Gong.
One of the people in the Office of the High Commissioner with whom we met suggested we contact the United Nations Office of Drugs and Crime in Vienna. We followed up on that suggestion on January 1, 2014, by contacting Mirella Dummar Frahi, Civil Affairs Officer, Advocacy Section, UNODC, in Vienna, asking for a meeting on March 21st, 2014.
Mirella Frahi wrote back January 30th confirming the requested meeting. She wrote:
“I am pleased to confirm that it will be possible to arrange a meeting with UNODC on Friday 21st March. Please indicate your preferred time and the name of the people accompanying you. Thank you of your interest and kind regards,”
I wrote back to Ms. Frahi on January 31st indicating who would attend the meeting and the preferred time. Besides myself, there was an international lawyer for DAFOH from Spain, and a delegation of four, one lawyer and three doctors, including my co-panelist Dr. Alex Chen, from the Taiwan Association for International Care of Organ transplants (TAICOT). After our tickets had been booked, on March 4, 2014, over a month after the initial confirmation, Mirella Frahi wrote back saying:
“With reference to your request for meetings on 21 March 2014, I regret to inform you that owing to our forthcoming major Commission meeting on Narcotic Drugs from 1321 March that it will be challenging for us to tie down a convenient time to meet. I would suggest that we take contact following the Commission meeting on this issue.”
I reached her by phone and sent a follow up e-mail March 12 stating
“Our group will be in Vienna next week Thursday and Friday March 20 and 21 and would be available to meet on short notice.”
On March 13, I passed on this message from my Asian colleagues:
“Please let them know we delegation from Asia already finalized our air ticket and lodging in Vienna for this meeting, it will be improper to cancel this meeting by such short notice.”
These e-mails prompted a response from an unnamed superior of Ms. Frahi who wrote to me on March 14:
“Unfortunately, as Ms. Dummar Frahi has indicated previously, she will not have the time to meet with you and the Asian delegation.”
Having already booked our tickets, we all came to Vienna. My colleagues in TAICOT went to the offices of UNODC on March 21st and attempted on the spot to meet with relevant officials. This effort prompted a response the same day from Mr. Ilias Chatzis, Chief, Human Trafficking and Migrant Smuggling Section, Organized Crime and Illicit Trafficking Branch, United Nations Office on Drugs & Crime, Vienna. He wrote, in part, to Dr. Chen:
“I would like to thank you for your message and for the interest in our work. I understand that you have been trying to reach me today. … A meeting would … not be productive as my Section’s work does not include what you refer to as organ harvesting nor the other issues covered in your email. My Section covers the UNTOC Protocols on Trafficking in Human Beings and on Migrant Smuggling. I am sorry that I cannot be more helpful at this stage.”
Well, that seemed pretty straightforward. However, I thought I better get clarification from the person in charge.
I then wrote to Yury Fedotov, Executive Director UN Office of Drugs and Crime Vienna, Austria, on July 30th asking for clarification. I wrote:
“As a result of the exchange of email attached between Mr. Ilias Chatzis, Chief, Human Trafficking and Migrant Smuggling Section, Organized Crime and Illicit Trafficking Branch, United Nations Office on Drugs & Crime and Dr. Alex ChihYu Chen, International Liaison Officer, Taiwan Association for International Care of Organ Transplants, which has been drawn to my attention, I request from the UN Office of Drugs and Crime a clarification. Does the Office
a) take the position that transplant tourism and the sourcing of organs from nonconsenting persons for sale are subject matters that
i) fall within the scope of the Protocol on Trafficking in Persons to the Convention on Transnational Organized Crime or
ii) do not fall within the scope of the Protocol or
b) take no position on these matters?”
On August 8th, 2014, on behalf of Mr. Fedotov, Mr. Tofik Murshudlu, Officer in Charge, Organized Crime and Illicit Trafficking Branch, Division for Treaty Affairs, United Nations Office on Drugs and Crime responded by quoting extensively from the Protocol but saying nothing more. His response amounted to a lot of words saying nothing.
So we are left with the response just quoted of the Chief of the Human Trafficking Section of United Nations Office on Drugs and Crimes that the scope of the Protocol and the work of the Office “does not include” transplant tourism and the sourcing of organs from nonconsenting persons for sale. Yet, the Office elsewhere has said the opposite.
The United Nations of Office on Drugs and Crime website, until March 7th of this year, equated organ trafficking with trafficking in organs for the purpose of organ removal. If the viewer goes to the UN website for the Office, the opening page gives the viewer the option of a list of topics. One of the topics on the list is organized crime. If the viewer clicks on that option, the viewer is taken to a web page which again offers the viewer a number of choices. If the viewer goes down to the topic “Emerging Crimes” and click on the phrase “read more” the viewer gets, at the bottom of the page, as one of the emerging crimes “organ trafficking”.
If the viewer then clicks on that link, it is dead. If the viewer goes to Google and search “Organ trafficking – United Nations Office on Drugs and Crimes”, the link states 404 with a bunch of question marks. 404 is a code for an error message meaning “page not found”.
The Google search for the same material provides a cached page, a snapshot of the page as it appeared on March 7th. The page has the title “Organ Trafficking”. The page uses the phrases “trafficking in persons for the purpose of organ removal” and “trafficking in organs” interchangeably. The entry states:
“… demand for organs has outstripped supply, creating an underground market for illicitly obtained organs.
Desperate situations of both recipients and donors create an avenue ready for exploitation by international organ trafficking syndicates. Traffickers exploit the desperation of donors to improve the economic situation of themselves and their families, and they exploit the desperation of recipients who may have few other options to improve or prolong their lives. … One factor that is distinct in this form of trafficking in persons is the profile of culprits; while some may live solely from criminal trafficking activities, others may be doctors, nurses, ambulance drivers and health care professionals who are involved in legitimate activities when they are not participating in trafficking in persons for the purpose of organ removal.
… The Trafficking in Persons Protocol supplementing the Transnational Organized Crime Convention includes trafficking in persons for the purpose of organ removal.
Trafficking in persons for the purpose of organ removal was on the agenda of the Working Group on Trafficking in Persons established by the Conference of Parties to the Organized Crime Convention at its fourth session, from 10 to 12 October 2011.
The Working Group recommended that States make better use of the Convention and Trafficking in Persons Protocol in combating trafficking in persons for the purpose of organ removal.
The Working Group recommended that States parties to the Convention should encourage relevant United Nations entities, including UNODC, to gather evidencebased data on trafficking in persons for the purpose of organ removal, including root causes, trends and modus operandi, with the aim of facilitating better understanding and awareness of the phenomenon while recognizing the difference between trafficking in organs, tissues and cells.
The Working Group also requested UNODC to develop a training module against trafficking in persons for the purpose of organ removal, and provide technical assistance, especially in regard to investigation, exchange of information and international legal cooperation.”
To the same effect is an introductory statement from the Secretariat of the Office to 10th Session of the Conference of the Parties to the United Nations Convention against Transnational Organized Crime held October 12th to 16th, 2020. The introductory remarks, made on October 14th, for Agenda Item 3: “Other serious crimes, as defined in the Convention, including new forms and dimensions of transnational organized crime” had these comments:
“Serious crime is defined in article 2, subparagraph (b), of the Organized Crime Convention … These crimes have been identified by the Conference to include” and there then follows a list of crimes among which is set out “organ trafficking”.
Is organ trafficking covered by the Organized Crime Convention, if not by the Protocol on Human Trafficking? Lest one thinks of organized crime as a non-state activity, I draw your attention to the conclusion of the China Tribunal that China under the control of the Chinese Communist Party is a criminal state.
The Government of China, as you might expect, is not going to let the international system decide that issue. Article 35(2) of the Convention provides:
“Any dispute between two or more States Parties concerning the interpretation or application of this Convention that cannot be settled through negotiation within a reasonable time shall, at the request of one of those States Parties, be submitted to arbitration. If, six months after the date of the request for arbitration, those States Parties are unable to agree on the organization of the arbitration, any one of those States Parties may refer the dispute to the International Court of Justice by request in accordance with the Statute of the Court.”
The Government of China here too has made a reservation. Their reservation to this Convention is this:
“The People’s Republic of China makes a reservation with regard to Article 35, paragraph 2 of the Convention and is not bound by the provisions of Article 35, paragraph 2.”
The United Nations Office on Drugs and Crimes, in contradiction to statements that organ trafficking is the same as trafficking in persons for the purpose of organ removal has made statements to the opposite effect. In addition to the China specific statement we experienced, The Global Report on Trafficking in Persons 2012 published by the UN Office on Drugs and Crime states:
“Organ trafficking is not classified as human trafficking. For an act to be considered trafficking in persons, a living person has to be recruited by means of force or deception for the exploitative purpose of removing an organ. There is a large grey area between licit organ donations and the trafficking of persons for organ removal.”
The UN Office on Drugs and Crime, in an Assessment Toolkit produced in 2015, wrote “‘Trafficking in persons for organ removal’ does not encompass the term trafficking in organs or organ trafficking.”
The position of UN Office on Drugs and Crime, appears to be this, that organ trafficking and trafficking in humans for the purpose of removal of organs are maybe one and the same and maybe not. When it comes to China, they are certainly different. When it comes to China, organ trafficking is not included in human trafficking for the purpose of removal of organs. Moreover, because China has opted out of the relevant disputes resolution mechanisms, there is no mechanism to determine which interpretation is correct.
This is, of course, an unsatisfactory state of affairs. What is to be done about it? The United Nations itself, through the Office of the Secretary General, proposed a solution. They produced a joint paper with the Council of Europe in 2009 noting that trafficking in organs and trafficking in human beings for the purpose of removal of organs “are frequently mixed up in public debate and in the legal and scientific community. This leads to confusion …”
The 2009 study concluded that there was a need to adopt an internationally agreed definition of trafficking in organs set out in a legally binding international instrument. The 2015 Council of Europe Convention against Trafficking in Human Organs did that.
One preambular paragraph states:
“Determined to contribute in a significant manner to the eradication of the trafficking in human organs through the introduction of new offences supplementing the existing international legal instruments in the field of trafficking in human beings for the purpose of the removal of organs;”
The Council of Europe Convention leaves China on the sidelines. However, that does not make the Convention irrelevant to organ transplant abuse in China. The problem of transplant tourism into China, after all, is not just a problem of insiders, those in China, but also a problem of outsiders, those coming into China. The problem of outsiders, those travelling to China for transplants, can be addressed directly without Government of China interference, by a focus on the Council of Europe Convention.
The Protocol to Prevent, Suppress and Punish Trafficking in Persons has 178 state parties. The Council of Europe Convention against Trafficking in Human Organs has, in contrast, only 11 ratifying states and 15 others which have signed but not ratified.
Joining the Convention is not limited to member states of the Council of Europe and indeed one non-member state, Costa Rica, has signed but not ratified. Observer states can sign on their own initiative. Non-observer states require an invitation from the Committee of Ministers of the Council of Europe, which can, of course, be requested. In addition to Costa Rica, Canada, the US, Mexico and the Holy See are observer states to the Council of Europe.
The confusion between organ trafficking and trafficking in persons for the removal of their organs is not just restricted to the international arena. It carries forward to the national arena. Many states parties to The Protocol to Prevent, Suppress and Punish Trafficking in Persons to the United Nations Convention against Transnational Organized Crime have legislation penalizing complicity abroad in trafficking in persons for the purpose of organ removal. When asked to enact legislation to penalize complicit abroad in organ trafficking, the typical response is that we already have that legislation, pointing to their legislation in trafficking in persons for the purpose of organ removal.
The result is that only a handful of states have of states have enacted extra-territorial legislation against organ trafficking. The further result is that only a few states have legislation which stands unequivocally against the most prevalent form of organ transplant abuse.
How does the mass killing in China of prisoners of conscience for their organs happen? One reason I and David Kilgour came to the conclusion in 2006 that we did is that there are vast sums of money to be made from the practice and there were no laws against it, neither in China nor outside of China. That situation today has changed but only slightly. Institutions under the direction of the Chinese Communist Party in 2007 enacted a law against organ transplant abuse, which is, needless to say, not enforced against the Party and state entities under its control. As well, Chinese laws of 1979 and 1984 which explicilty allows for organ transplant abuse, extraction of organs from prisoners without their consent or the consent of their family, sit on the Chinese statute books unrepealed. Now, in addition, there are a few countries with laws against organ trafficking abroad, but only a few.
Foreign laws are not going to stop human rights violations in China. Only the Chinese can do that. However, these laws can stop complicity in violations in China. Today, almost everywhere, complicity abroad in the killing of prisoners for their organs in China is still legal. And the United Nations Office on Drugs and Crimes has done and will do nothing about it.
At this Congress, we should be taking note not just of what The Protocol to Prevent, Suppress and Punish Trafficking in Persons and United Nations Office on Drugs and Crimes have done and will do, but also what the Protocol and Office have not done and will not do. Those interested in combating international organ trafficking and transplant tourism who have come to United Nations Office on Drugs and Crimes have come to the wrong place. Those truly serious about combating organ trafficking must go elsewhere.
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David Matas is an international human rights lawyer based in Winnipeg, Manitoba, Canada