Organ Transplant Abuse in China: International Standards and Remedies
(Paper presented to the Australasian Association of Bioethics and Health Law and New Zealand Bioethics Conference, Dunedin, New Zealand, November 23, 2019) by David Matas
The Communist Party of China has been killing prisoners of conscience since the early 2000s in the tens of thousands to sell their organs for transplantation both to Chinese patients and transplant tourists. The primary prisoner of conscience victims are primarily practitioners of the spiritually based set of exercises Falun Gong and, more recently, Uyghurs.
Evidence of this abuse is overwhelming and uncontradicted other than by Communist Party propaganda which seems more designed to test the loyalty of the faithful then to convince anyone. An independent people’s tribunal in June this year released a verdict that this mass killing was happening beyond reasonable doubt. 
The issue this evidence presents is not so much whether it is happening, but what to do about. As the China Tribunal stated, the reality of these killings is an inconvenient truth. The Tribunal warned that people should realize that when they are dealing with the Government of China, they are dealing with a criminal state.
Yet, who wants to realize that? There are just too many vested interests – economic, political, strategic, and personal interwoven with the Government and Communist Party of China for the combat against this abuse to develop much traction more or less anywhere.
There are many NGO corroborating investigations, independent from the victims and each other. But how do we get the governmental or inter-governmental community to do anything about it?
Parliamentary, Congressional and United Nations instances have noted the credible and persistent evidence of this abuse and called for institutionalized investigation with Chinese cooperation. Yet, these investigations, outside the non-governmental world, do not happen. What are we to do?
Well, that is the point of this presentation. I have a whole bunch of suggestions to make. My intention today is to canvass the relevant international standards and the applicable international remedies.
The standards and the remedies in association with each I wish to canvass are
the UN Protocol against Trafficking in Persons to the Convention against Transnational Organized Crime and its meeting of states parties,
the Council of Europe Convention against Trafficking in Human Organs and its implementation mechanisms
the Organization for Economic Cooperation and Development (OECD) Guidelines for Multinational Enterprises and presentation of cases to the OECD National Contact Points for Responsible Business Conduct,
the Genocide Convention and a petition to the International Court of Justice,
the Statute of the International Court of Justice and a request for an advisory opinion
the Statute of the International Criminal Court and a referral to the International Criminal Court, and
the UN Convention against Torture and its reporting mechanism and
the Universal Declaration of Human Rights and its implementation through the UN Human Rights Council
a) agenda item 4 (human rights situations that require the Council’s attention)
b) Universal Periodic Review, and
c) specialized mechanisms.
The UN Protocol
The UN Protocol against Trafficking in Persons to the Convention against Transnational Organized Crime is a possible instrument to combat organ transplant abuse in China. China is a state party to the Protocol and bound by its provision.
Persons are made up of their component parts. Trafficking in part of a person, that is to say an organ, should be considered trafficking in persons. This is an area where there has been a good deal of confusion.
A 2009 study by the Council of Europe and the United Nations said as much, writing that the 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 study concluded that there is 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, discussed next, did exactly that.
A delegation from the NGO Doctors against Forced Organ Harvesting (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 Mme Navi Pillay to
1. call upon Government of China to end immediately the forced organ harvesting from Falun Gong prisoners,
2. initiate an investigation which can lead to the prosecution of the perpetrators of this crime against humanity, and
3. call upon the Government of China government 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 (UNODC) in Vienna. The Office of the High Commissioner for Human Rights obviously thought that the petition and organ transplant abuse in China fell within the ambit of the UN Office of Drugs and Crime.
We followed up on that suggestion in January 2014, by contacting Mirella Dummar Frahi, Civil Affairs Officer, Advocacy Section, UNODC, in Vienna, asking for a meeting on March 21st to discuss the petition and transplant abuse in China. Mirella Frahi wrote back in January confirming the requested meeting. Ms. Frahi obviously at the time thought that the subject matter of our discussion fell within the ambit of her Office.
I wrote back to Ms. Frahi also in January 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, from the Taiwan Association for International Care of Organ transplants (TAICOT). After our tickets had been booked, over a month after the initial confirmation, in March, Mirella Frahi wrote back cancelling the meeting, writing that meeting at that time would be inconvenient for her, without suggestion that the subject matter of discussion fell outside the ambit of her Office or the Protocol. We contacted a superior of Ms. Frahi who confirmed that neither she nor anyone else in the Office would have time to meet us, again without any hint that the subject matter of discussion fell outside the ambit of the Office or the Protocol.
Having already booked our tickets, we all came to Vienna. My colleagues in TAICOT went to the offices of UNODC 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:
“… A meeting would also 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 e‑mail. …”
This was the first time there was any indication that we wanted to discuss was considered by the Office to be outside the scope of its work.
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 United Nations of Office on Drugs and Crime website has this entry:
“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.”
A person can be recruited by force for more than one purpose. When one of those purposes is organ removal, then trafficking in persons for the purpose of organ removal has occurred.
That is the case of prisoners of conscience in China. Practitioners of Falun Gong and Uyghurs are swept off the streets and taken into arbitrary detention for brainwashing, recantation, and expressions of support for the Communist Party of China. That is one purpose. But it is not the only purpose. Those who refuse to succumb are put into forced labour and then killed for their organs. The slavery and organ extraction are also purposes of this dragnet.
One can argue conceptually whether organ transplant abuse falls within the Protocol. However, one can see that practically the UN Office of Drugs and Crime want nothing to do with it.
There is obviously something more going on here than conceptual disagreement when a UN official books a meeting with international NGO delegates, the official cancels at the last minute claiming inconvenience only, and her superior confirms the cancellation also claiming only that the original official was too busy and offers no one in her place. That something else is China.
Having the Protocol encompass organ transplant abuse in China would lead to finding China in violation of the Protocol. That is something that both the Communist Party of China and its friends would not want. The result is what we see.
There does nonetheless remain a remedy in this situation, the meeting of states parties. The last word on the meaning of the Protocol is not the UN Office on Drugs and Crimes. It is the states parties to the Protocol.
The states parties to the Convention and Protocol meet every five years. The next meeting is next year, 2020, in April in Kyoto. The states parties could adopt a resolution indicating the extent to which organ trafficking falls within the ambit of the Protocol. They should do so.
The Council of Europe Convention
The Council of Europe Convention against Trafficking in Human Organs focuses specifically on organ transplant abuse. The Convention can be signed by the member States of the Council of Europe, the European Union and the non-member States which enjoy observer status with the Council of Europe. It is also can be signed by any other non-member State of the Council of Europe upon invitation by the Committee of Ministers.
The Convention requires states parties to enact offences against
a) removal, use or transplantation of organs without consent or for payment,
d) solicitation and recruitment of either an organ donor or recipient,
c) offering or giving or requesting or receiving advantages to facilitate organ removal or implantation, and
f) preservation, transfer, receipt, transportation, importing and exporting of illegally removed human organs.
The Council of Europe approved the Convention in March 2015. To date, there are nine ratifying states ‑ Albania, Croatia, Czech Republic, Latvia, Malta, Moldova, Montenegro, Norway and Portugal ‑ and fifteen signatory states which have not yet ratified the Convention. One of the fifteen, Costa Rica, is not a member of the Council of Europe. Because five ratifying states is the number of states necessary for the entry into force of the Convention, the Convention has now entered into force.
All the ratifying states must have had implementing legislation. So far, there is extra-territorial legislation also in Belgium, Italy, Israel, Spain, and Taiwan. As well, in several states, including Canada, and Australia  extra-territorial legislation has been proposed by individual Congressional or Parliamentary members, without yet being adopted.
The Convention provides that a committee of states parties will determine the procedure for evaluating the implementation of the Convention. An explanatory note to the Convention states that
“the negotiators intended to … defer … the introduction of the follow‑up mechanism until such time as the Convention was ratified by a sufficient number of States for it to operate under satisfactory conditions, with a sufficient number of representative Parties to ensure its credibility.”
That has not happened yet.
So, the Convention right now has no follow up mechanism. In my view that means that the Convention is operating under unsatisfactory conditions. Having no follow up mechanism weakens the credibility of the Convention even with the present number of states parties. The Committee of Parties should be developing that follow up mechanism now.
The Organization for Economic Cooperation and Development Guidelines
The Organization for Economic Cooperation and Development has developed Guidelines for Multinational Enterprises. Those Guidelines state that enterprises should
1. Respect human rights, which means they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.
2. Within the context of their own activities, avoid causing or contributing to adverse human rights impacts and address such impacts when they occur.
3. Seek ways to prevent or mitigate adverse human rights impacts that are directly linked to their business operations, products or services by a business relationship, even if they do not contribute to those impacts.
4. Have a policy commitment to respect human rights.
5. Carry out human rights due diligence as appropriate to their size, the nature and context of operations and the severity of the risks of adverse human rights impacts.
6. Provide for or co‑operate through legitimate processes in the remediation of adverse human rights impacts where they identify that they have caused or contributed to these impacts.
The implementation mechanism for the Guidelines is national contact points. National contact points are agencies established by governments. Their mandate is to promote the Guidelines and to handle cases as a non‑judicial grievance mechanism. 48 governments have a national contact point. New Zealand is one of them.
The national contact point for New Zealand is the Ministry of Business, Innovation & Enterprise. A complaint made to the national contact point is assessed. If accepted as warranting further examination, the national contact point offers good offices to help the parties resolve the issues. At the conclusion of the procedure, the national contact point will make some information public.
There are many different ways in which enterprises can become complicit in organ transplant abuse in China or cognate human rights violations. One example is plastinated body exhibits where the bodies are sourced from police or prisons in China. A second example is anti-rejection drug trials by pharmaceutical companies in China. A third example is the involvement of a foreign builder or architect in the construction of a transplant hospital or a transplant wing of a hospital in China.
The OECD Guidelines and national contact points do not offer a legal remedy and judicial determination of a complaint. However, we may not need this sort of enforcement for enterprises to comply with the Guidelines, since publicized complicity in human rights violations is bad for business.
The Genocide Convention
Both New Zealand and China are states parties to the Genocide Convention. The Genocide Convention has a disputes resolution mechanism. Where two states disagree on whether there has been a violation of the Convention, the Convention provides that the dispute can be resolved by the International Court of Justice. China, on becoming party to the Convention, declared that it did not consider itself bound by this mechanism.
The Convention also provides that any state party may call on the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide. There are 152 parties to the Genocide Convention. Any one state party can invoke this provision to give the state a jurisdictional foundation for a call on the UN to suppress genocide through organ harvesting of prisoners of conscience in China and to prevent its continuation.
The actions the invoked organs of the United Nations might take would be limited to those they are empowered to take under the UN Charter. Nonetheless, invoking this provision can have a mobilizing effect, putting on the agenda of the UN organ a matter that might not otherwise be there.
The International Court of Justice
The China Tribunal determined beyond reasonable doubt that the mass killing of prisoners of conscience for their organs had occurred and was still occurring. They also without hesitancy found this abuse to be a crime against humanity and torture.
For the crime of genocide, the Tribunal had no doubt that acts of genocide have occurred. When it came to the necessary mental element for genocide, the Tribunal was uncertain. There is a debate among international lawyers about what is the necessary mental element for genocide, whether there is a specific intent required for genocide different from the normal criminal intent to commit the act.
The Tribunal did not purport to resolve that debate one way or the other. They recommended that the UN General Assembly refer the interpretation of the law of genocide to the International Court of Justice by way of resolution asking for an advisory opinion. China does not have a veto in the General Assembly. A simple majority of states voting is sufficient. The very effort to obtain such a resolution presents an opportunity to raise awareness about the abuse.
The International Criminal Court
The International Criminal Court has jurisdiction over crimes within the jurisdiction of the Court committed in the territory of a state party, by a national of a state party, and situations in which crimes appear to have been committed which have been referred to the Court by the Security Council. The Court has jurisdiction over crimes against humanity, as well as genocide. Crimes against humanity are, according to the China Tribunal, being committed by China, without doubt, through the mass killing of prisoners of conscience for their organs.
China is not a state party to Rome Treaty which established the International Criminal Court and has a veto in the Security Council. Because of the veto, it seems unlikely that the Security Council would refer organ harvesting in China to the Court. However, the very request that it do so, even if it does not lead to referral, would have an impact, publicizing the crime. A veto would be seen for what it would be – an effort to obtain immunity from the crime. The request, though it may be legally futile, could end up being politically helpful in stopping the crime.
The UN Convention against Torture
China is a state party to the Torture Convention. China has not accepted the inter-state disputes resolution mechanism of the Convention. China has also entered a reservation stating that it does not consider itself bound by the provision of the Convention which gives the expert committee established under the Convention the power to make findings on reliable information on the systematic practice of torture.
The Convention against Torture requires periodic reporting on compliance with the Convention and empowers the expert committee to make concluding observations on those reports. China has reported twice, in 2008 and 2015, since it began the mass killing of prisoners of conscience. In both years, I went to Geneva to make submissions that the Committee should address organ transplant abuse in China, and they did so.
In 2008, the Committee wrote that it was
“concerned with information received that Falun Gong practitioners …. have been used for organ transplants. The State party should immediately conduct or commission an independent investigation of the claims that some Falun Gong practitioners have been subjected to torture and used for organ transplants and take measures, as appropriate, to ensure that those responsible for such abuses are prosecuted and punished.”
In 2015, the Committee wrote:
” … the State party should adopt the necessary measures to:
(b) Ensure in practice that the removal of organs only takes place on the basis of informed consent and that compensation is provided to the relatives of convicted persons whose organs were removed without their consent. The State party should also commission an independent investigation to look into claims that some Falung Gong practitioners may have been subjected to this practice (see CAT/C/CHN/CO/4, para. 25).”
While it is welcome that the 2015 Committee repeated the recommendation of an independent investigation made by the 2008 Committee, its linkage of Falun Gong practitioners to convicted persons is not completely accurate. Some Falun Gong practitioners have been convicted of unusual offences like the offence of using weird religious organizations to undermine the implementation of administrative rules of the state. However, many have been held arbitrarily and indefinitely without being convicted of anything.
The 2008 recommendation that China should take measures, as appropriate, to ensure that those responsible for organ transplant abuses with Falun Gong victims are prosecuted and punished was not repeated in 2015. It should have been.
The Committee suggestion that relatives of innocents killed for their organs should be provided with compensation verges on the bizarre. Compensating relatives of victims of forced organ harvesting is a form of commercialisation of this abuse. That commercialization is itself a violation of human rights. Money can never compensate for the murder of innocents and the loss of loved ones.
One can foresee a system of reparations which would include payments to relatives of victims in a context where the crime is admitted and the perpetrators brought to justice. Payments in this context would not be compensation, but rather a form of atonement and memorialization. However, to provide payments without more avoids addressing the crime.
The Committee in 2015 requested China to provide, by 9 December 2016, information on follow‑up for a specified list of Committee recommendations. The recommendation to commission an independent investigation to consider the evidence that the organs of Falun Gong practitioners were removed without their consent was not part of the list. The Committee further invited China
“to inform the Committee about its plans for implementing, within the coming reporting period, some or all of the remaining recommendations in the concluding observations.”
One can assume that the invitation to China to inform the Committee about its plans for implementing the recommendation to commission an independent investigation into the killing of Falun Gong for their organs will be declined. When China reports next to the Committee, the Committee should go further.
The recommendations for commissioning an independent investigation and bringing perpetrators to justice should not just be repeated. They should be given priority and included in the list of recommendations for which China is requested to provide information on follow up by a specified date.
The UN Human Rights Council
a) agenda item 4
The United Nations Human Rights Council has three regular sessions a year – typically in March for four weeks, June for three weeks and September for three weeks. At each session, there is agenda item 4 – human rights situations that require the Council’s attention. Not being a member of the Council prevents a state from voting at the Council, but not from speaking at the Council. Under agenda item 4, any country, whether a member of the Council or not, can deliver an oral statement.
At the session of the UN Human Rights Council session in September 2019, under this agenda item there were 39 statements by countries or groups of countries. Australia, the Czech Republic, Finland on behalf of the European Union, Germany, Norway, Sweden, Switzerland, and the United Kingdom in their global survey of concerns all mentioned human rights violations in China.
The Finnish/EU statement addressed China at length. Grave concern was expressed about the detentions and trials of a list of named human rights defenders and lawyers, one of whom was Gao Zhisheng, who has been active in opposing the killing of Falun Gong prisoners of conscience for their organs.
Neither Falun Gong nor organ transplant abuse was mentioned in September under agenda item 4. That can and should change. The persecution of Falun Gong and organ transplant abuse should be a matter of continuing concern at future Human Rights Council sessions, raised by all human rights respecting countries.
b) Universal Periodic Review
The United Nations Human Rights Council conducts a periodic review of the human rights record of every member state of the United Nations, without exception. China came up for review most recently in November 2018, one year ago.
For each country’s Universal Periodic Review session, three hours is allocated. The sessions are described as interactive dialogues.
Each state subject to review gets to speak four times, at the beginning, the end and twice in middle. The first time is an introduction. The other three times are to respond to intervening questions and remarks made by state speakers. The time not allocated to the state under review is divided among the country delegations which had expressed an interest in speaking. Because of the large number of countries in 2018 who wanted to make a statement (New Zealand was one of them), the time allocated to each country to speak was 45 seconds.
Before each review, countries can pose advance questions. There were no advance questions about the persecution of Falun Gong.
Germany asked these advance questions about organ transplant abuse:
“How does China react to allegations of organ‑harvesting in prisons and detention facilities? Can China provide data on annual numbers of organ transplantations and legal sources of organ donations in order to dispel these allegations?”
It would have been preferable if the questions had referred to persistent and credible reports of organ harvesting, the language of the resolutions of the European Parliament, the US Congress House of Representatives, the Czech Senate and the Canadian Parliament House of Commons Sub-committee on International Human Rights of the Standing Committee on Foreign Affairs , rather than just allegations. It also would have been preferable if the question asked for verifiable data, rather than just data. But the question was well worth asking.
There was only one mention of the persecution of Falun Gong during country statements – by Canada. Canada, asked China to
“end prosecution and persecution on the basis of religion or belief, including for Muslims, Christians, Tibetan Buddhists and Falun Gong”.
About organ transplant abuse, again only one government raised the matter during the interactive dialogue, Austria. Austria said:
“Regarding the removal of organs, we would like to know how the Chinese authorities ensure that this is only performed with the free, informed and specific consent of the donor without exception. Austria would be grateful to receive information on the implementation of a zero tolerance policy on harvesting organs in prisons and detention facilities.”
Given the fact that Austria, like all other countries, had only 45 seconds, this component was a substantial part of their statement.
The question was generous to China, suggesting that transplant abuse in China occurred behind the backs of authorities, that they did not know about it and that they needed mechanisms to find out about it. But it was better than no question at all.
Unless, by the time China comes up again in the Universal Periodic Review cycle, it has ended the abuse, commissioned or cooperated with an independent investigation and brought perpetrators to justice, forced organ harvesting with prisoner of conscience victims needs to be brought up by more states, more clearly and more forcefully. When so many states are speaking at the Universal Periodic Review about so many other Chinese human rights violations, the downplaying or omission of this violation is indefensible.
c) Specialized mechanisms
I have already mentioned the Committee against Torture established under the Convention against Torture. In addition to mechanisms established by treaty, the UN Human Rights Council has established a number of theme mechanisms. A couple of these have already got involved in the issue of forced organ harvesting in China.
The United Nations Rapporteur on Torture Manfred Nowak and UN Rapporteur on Religious Intolerance Asma Jahangir asked China to explain the discrepancy between the volume of transplants and the identified sources. They wrote in their 2007 reports:
“Allegation transmitted [to the Government of China]: Organ harvesting has been inflicted on a large number of unwilling Falun Gong practitioners at a wide variety of locations, for the purpose making available organs for transplant operations…. It is reported that there are many more organ transplants than identifiable sources of organs, even taking into account figures for identifiable sources, namely: estimates of executed prisoners annually, of which a high percentage of organs are donated, according to the statement in 2005 of the Vice Minister of Health Mr Huang Jiefu; willing donor family members, who for cultural reasons, are often reluctant to donate their organs after death; and brain-dead donors. Moreover, the reportedly short waiting times that have been advertised for perfectly-matched organs would suggest the existence of a computerized matching system for transplants and a large bank of live prospective donors. It is alleged that the discrepancy between available organs and numbers from identifiable sources is explained by organs harvested from Falun Gong practitioners, and that the rise in transplants from 2000 coincides and correlates with the beginning of the persecution of these persons….”
The Chinese government produced, as one might expect, nonsense in response. These instances should not have taken Communist bafflegab so lightly. They need to return to the issue.
Despite Chinese government efforts to opt out of all accountability mechanisms, there is one mechanism they can not avoid, the Working Group on Arbitrary Detention. It is a theme based mechanism, which means it applies to all states.
The Working Group is the only UN human rights theme based mechanism which investigates and decides complaints focused on individual cases. Complaints can be made by individuals directly concerned, their families, their representatives, non‑governmental organizations for the protection of human rights, Governments or inter‑governmental organizations.
There have been already a number of complaints to this Working Group about China which the Working Group has decided. None of the decided complaints relates to forced organ harvesting with prisoner of conscience victims. However, there is nothing stopping individuals from making this sort of complaint. It is a remedy worth invoking.
Holding China to account for organ transplant abuse presents for individual states a political problem. The problem is sufficient that, despite the overwhelming evidence of this abuse, no state, now thirteen years after the evidence of the abuse has become public, has said anything publicly against the abuse.
Although some governments question the evidence, that questioning has no evidentiary foundation and is just a convenient excuse to avoid an inconvenient political reality. We can and should decry this reality. We also have to think about how to work around it.
There are at least four work-arounds which allow confronting organ transplant abuse reality in China without upsetting the political apple cart. One is advocating generic changes to laws and ethics to address the problem globally. Laws and ethics can be changed to combat local complicity in foreign transplant abuse without mentioning China even when the primary target is combating complicity in organ transplant abuse in China.
A second work-around is reliance on experts in the international human rights system. These experts are not representatives of government and have in the past, as we can see, addressed organ transplant abuse directly, within the mandates given to them.
A third work-around is targeting complicit overseas enterprises. Enterprises are driven primarily by economics, not by politics. Adverse publicity about complicity in human rights violations whether in China or elsewhere hurts their bottom lines.
The fourth work-around is the safety in numbers. There are components of international instances – like the Universal Periodic Review for China and Human Rights Council agenda item 4 – where many governments in any case go about the business of criticising the human rights record of China. Adding one more government or one more abuse would not generate the same pushback from China that an effort of any government to strike out on its own would do.
In sum, there exists a range of international options which those promoting respect for global bioethics and health law could engage to address organ transplant abuse in China with prisoner of conscience victims. We should be trying to engage each and every one of them.
……………………………………………………………………………………………………………………David Matas is an international human rights lawyer based in Winnipeg, Manitoba, Canada
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