The Communist Chinese Party’s Weaponizing of Organ Genocide Against the Unwanted
(Remarks prepared for a webinar hosted by the Committee for the Present Danger: China January 5, 2023)
by David Matas
Click HERE to watch the webinar on the Committee for the Present Danger: China website.
The evidence of the mass killing of prisoners of conscience for their organs in China is overwhelming. The victims have been, since the early 2000’s, primarily practitioners of the spiritually based set of exercises Falun Gong. Also, Uyghurs have been victims in large numbers since their mass detention in 2017. Victims in smaller but significant numbers are Tibetans and House Christians.
An independent people’s tribunal, the China Tribunal, has determined, after public hearings and an avalanche of evidence, that the mass killing of Falun Gong for their organs has occurred beyond a reasonable doubt. The Tribunal determined the slaughter to be a crime against humanity.(1)
The Tribunal was less certain about whether the crime of genocide had occurred. The Tribunal had no doubt that the act of genocide happened and was happening. Their uncertainty focused on intent. The Tribunal was less certain whether there was the requisite intent, the intent to destroy the group in whole or in part. They suggested that the issue could be determined by the International Court of Justice on request for an advisory opinion made by the General Assembly.(2)
The title of the presentation I am making today raises the same issue, the issue of intent. Is the Communist Chinese Party weaponizing organ harvesting to inflict genocide against its unwanted? There is no doubt that forced organ harvesting with prisoner of conscience victims is occurring. But is what the title of my talk suggests the real reason that this forced organ harvesting is occurring? Is the mass killing of prisoners of conscience for their organs inflicted as a means of genocide against the unwanted? Or is there some other reason for these mass killings?
The hesitancy of the China Tribunal about intent for the crime of genocide arose for four different reasons. One was the standard of proof. The China Tribunal used the common law criminal standard of proof of proof beyond a reasonable doubt. That standard is necessary for criminal convictions by national courts applying the common law and by international criminal tribunals. However, for civil proceedings in national courts applying the common law, intent need be established only on a balance of probabilities.
The China Tribunal did not address the question whether the requisite intent for genocide was established on a balance of probabilities. It is my view that the requisite intent has been established on the balance of probabilities.
Civil proceedings could be actions in national courts outside of China for damages by relatives of those killed. A civil proceeding could be also an action against the Government of China itself under the Genocide Convention. When the Court finds that genocide has been committed, it convicts and sentences no one as a result of such a finding.
China is a state party to the Genocide Convention. So are most other states. Any state party to the Convention can ask the International Court of Justice to find that China has violated the Convention by its mass killing of prisoners of conscience for their organs.(3)
China has made a reservation, stating that it not considered itself bound by the provision in the Convention which gives the Court jurisdiction to decide disputes between states parties.(4) However, another treaty, the Vienna Convention on the Law of Treaties, provides that no reservation to a treaty can be made which is incompatible with the object and purpose of the treaty.(5) China is also a state party to the Vienna Convention, as are most other states. It is my view that the Chinese reservation to the Genocide Convention provision on access to the International Court for Justice for settlement of disputes is contrary to the object and purpose of the treaty.
The International Court of Justice, in a case by the Republic of Congo against Rwanda, held that a similar reservation by Rwanda was not contrary to the object and purposes of the Genocide Convention.(6) Nonetheless, the statute of the Court provides that the Court is not bound by precedent.(7) So, the issue remains open in a case against China.
A second reason of the China Tribunal for hesitancy about intent for the crime of genocide is the fact that huge sums of money are being made from forced organ harvesting.(8) The extracted organs are sold, on demand, to transplant tourists and wealthy Chinese in amounts which total in aggregate billions of dollars.
A person can act for more than one intent. When one intent is profit and a second is an intent to destroy the group in whole or in part, the requisite intent for genocide is made out. While the crime of genocide requires an intent to destroy the group in whole or in part, that intent need not be the sole intent.(9) Even if that intent is one of several, the requisite intent for genocide is made out.
The health practitioners who earn fortunes from the practice presumably know who the victims are or are wilfully blind to the victimization. But is this knowledge or wilful blindness enough to establish the requisite intent for genocide, the intent to destroy the group in whole or in part?
Health practitioners engaged in forced organ harvesting of prisoners of conscience are, no doubt, guilty of crimes against humanity. But can they escape conviction for genocide by pleading that they killed for money and not with intent to destroy the group of which their victims form part?
In my view, knowledge or wilful blindness are sufficient to establish the requisite intent. In the Nuremberg Doctor’s Trial, Karl Brandt was convicted and sentenced to death by hanging for failure of a “duty [which] rested upon him to make some adequate investigation”.(10)
The statute of the International Criminal Court, in its article on individual responsibility, provides that a person is criminally responsible for all crimes within the jurisdiction of the Court, including genocide, if the person contributes to the commission the crime by a group of persons acting with a common purpose. The contribution has to be intentional and must either be made with the aim of furthering the criminal activity or criminal purpose of the group, or be made in the knowledge of the intention of the group to commit the crime.(11) Knowledge is sufficient. The acting with the aim of furthering the criminal activity or criminal purpose of the group is not essential.
So, the issue becomes not so much whether health practitioners want to destroy in whole or in part the group from which their victims are drawn. The issue is rather whether there is a common purpose group, outside of the health system, which has the intent to destroy the victim group and health practitioners engaged in forced organ harvesting know of this intent. If one considers the plain wording of the Court statute and include wilful blindness as a component of knowledge, an inclusion for which there is substantial international legal support, it would seem clear that health practitioners are guilty of genocide.
However, even if that is not so, even if health practitioners are not guilty of genocide because they do not have the requisite intent, there are others who have the requisite intent, because, for them, profit is not the primary motive. Genocide of the victim groups is inflicted not just by health practitioners and the health system. It is inflicted by legal system – the investigators, the police, the courts, the detention centres, the whole apparatus that places these victim communities in arbitrary indefinite detention. Victims of institutionalized forced organ harvesting in China come from jails and detention centres. They are not kidnapped by hospitals off the streets.
That system of oppression is in turn commanded and demanded by the Chinese Communist Party. The Chinese Communist Party is not killing their victim groups en masse for funds to finance the health system. For the Party, the money to be made from the mass killing of prisoners of conscience for their organs is a welcome side effect, but not the purpose for which the victimization occurs. Even if the health practitioners could avoid conviction for genocide on the basis that they were killing for money and do not have the requisite intent, that is not a defence which can be plausibly raised either by the Chinese Communist Party or by the legal and detention system which acts out the dictates of the Party.
We then get to the third intent issue raised by the China Tribunal, the issue of conversion. The primary intent of the Party in repressing the victim groups is to advance and promote by force loyalty to the Party. Those in the victim groups who show sufficient loyalty to the Party through word and deed, even if only after torture, are released, not killed for their organs. The international crime of genocide requires physical destruction. The international crime of genocide does not include cultural genocide. If everyone converts, and no one is killed, there is no physical destruction and therefore no genocide.
However, those are not the facts here. There is massive physical destruction of the victim groups through forced organ harvesting. Moreover, those who have genuinely converted to loyalty to the Communist Party have left the victim group. Whether a person is a member of a targeted group is determined from the perspective the targeter. The relevant victim group does not include those whom the persecutor considers to have left the group.
The fourth intent issue is the release, in some case, of members of the victim group without conversion. The Party, in some cases, has engaged in a catch and release practice, as a warning to those caught and their families. The China Tribunal wondered whether there was the requisite genocide intent because of this phenomenon.(12) My own view is that this catch and release practice does not throw into question the existence of the requisite intent for genocide.
One reason for that view I have is that a warning, through catch and release, is not the end of the matter. The targeted group members caught and released ignore the warnings at their peril. If they continue on their past ways, they run a grave risk of redetention, with the concomitant risk of forced organ harvesting.
Genocide as a victim group can be committed, as already mentioned, with intent to destroy a group in whole or in part. Intent to destroy the group as a whole is not necessary to commit the crime of genocide. Intent to destroy the group in part is sufficient. The catch and release system, at most, shows only that there is not an intent to destroy every single member of the group. However, because the requisite intent for genocide does not require intent to destroy the group as a whole and allows for intent to destroy the group only in part, the release of some members of the groups without conversion does not undermine the conclusion that the target groups are the victims of genocide.
So, the answer to the question posed by the title of my talk: “Is the Communist Chinese Party weaponizing organ harvesting to inflict genocide against its unwanted?” is “Yes”. The Communist Chinese Party is weaponizing organ harvesting to inflict genocide against its unwanted.
David Matas is an international human rights lawyer based in Winnipeg, Manitoba, Canada.
- Judgment paragraph 486
- Article IX
- Article 19(c)
- Article 59
- Judgment paragraph 475
- https://open.library.ubc.ca/soa/cIRcle/collections/ubctheses/831/items/1.0077727 – section 4.5 page 64
- Article 25(d)
- Judgment paragraph 475