Organ trafficking: China Tribunal finds evidence of forced harvesting crimes

Dina Patel

Hamid Sabi, Counsel to the independent China Tribunal, announced to the United Nations Human Rights Council (OHCHR) in September the Tribunal’s finding that China had carried out crimes of forced organ harvesting.

The China Tribunal was chaired by British barrister Sir Geoffrey Nice QC and examined allegations of forced organ harvesting of prisoners of conscience in China. The Tribunal was initiated by not-for-profit the International Coalition to End Transplant Abuse in China, a coalition of lawyers, medical professionals and others.

Sabi declared it the legal obligation of UN Member States and the OHCHR’s duty to address the alleged criminal conduct. ‘Victim for victim and death for death, cutting out the hearts and other organs from living, blameless, harmless, peaceable people constitutes one of the worst mass atrocities of this century,’ Sabi told the OHCHR. ‘Organ transplantation to save life is a scientific and social triumph. But killing the donor is criminal.’

The China Tribunal brought a level of rigour and analysis not previously directed toward this atrocious human rights abuse

Professor Wendy Rogers
Professor in Clinical Ethics at Macquarie University

Sabi’s statement marked the first time such allegations have been presented in the OHCHR’s history.

The OHCHR session followed the publication of the China Tribunal’s Final Judgement and Summary Report in June. The report concluded that forced organ harvesting has been committed for years throughout China and on a significant scale.

In preparing its report, the Tribunal examined a large amount of written evidence and interviewed over 50 witnesses during a 12-month period. It found that practitioners of the Chinese spiritual practice of Falun Gong – of which there are some 70-80 million in China – have likely been the primary source of organ supply.

‘The China Tribunal is the first comprehensive and independent analysis of the evidence to date about crimes relating to organ sourcing in China,’ says Professor Wendy Rogers, Professor in Clinical Ethics at Macquarie University.

For Rogers, the China Tribunal’s conclusion that forced organ harvesting from prisoners of conscience is occurring in China ‘is hugely important because it was reached after a rigorous and transparent process by the highly skilled expert volunteer members of the Tribunal. The Tribunal brought a level of rigour and analysis not previously directed toward this atrocious human rights abuse, rightfully helping to bring the world’s attention to the ongoing crimes in China.’

The China Organ Transplant Response System (COTRS) claims that between 2010 and 2016, annual voluntary deceased donors in China rose from 34 to 4,080. COTRS also says that the number of kidneys and livers transplanted rose from 63 in 2010 to 10,481 in 2016. However, the Tribunal believes that some or all of the data provided by COTRS has been falsified and that the number of operations is more likely to be between 60,000 and 90,000 per year.

‘The Tribunal’s figures are denied by the Chinese but the figures the Chinese themselves provide about their volunteer system are believed to both underestimate the actual number of transplants and to be fraudulent based on statistical analysis,’ says Rogers.

The Tribunal found it ‘self-evident’ that this substantial increase did not come from voluntary donors, since during the specified time period a voluntary donation system either did not exist or existed only in pilot form.

The Tribunal considered whether forced organ harvesting against both Falun Gong practitioners and the Uyghurs, a minority Turkic ethnic group in China, constituted genocide. It found it could not be certain that genocide itself is proven. However, the report calls for those who have the power to institute investigations at international courts and at the UN to ‘act immediately to determine accountability for any acts contrary to the provisions of the Genocide Convention.’

Organ trafficking is also found in other parts of the world. Cases are documented, for example, in Brazil, India, Indonesia and South Africa.

In India, organ trafficking was unregulated until 1994, when the Transplantation of Human Organs Act was passed. The Act provided regulation for the removal, storage and transplantation of human organs for therapeutic purposes and for the prevention of commercial dealings in human organs. Certain provisions in the Indian Penal Code 1860 also play a part in regulating organ transplantation.

‘With a population of 1.37 billion, almost 22 per cent of India’s people live below the poverty line. It is easy for such people to fall prey to commercial organ donation,’ says Mumtaz Bhalla, Regional Representative - India at the IBA Criminal Law Committee and partner at Luthra and Luthra. ‘The Act was passed to protect the exploitation of humans for commercial gains.’

Bhalla’s clients include a pathology lab specialising in conducting human leukocyte antigen typing tests, a mandatory test for permitting an organ transplant. Bhalla says such labs are important stakeholders in the legal transplantation of organs because they have a duty in ensuring organs can only be donated to certain blood relatives from a living donor, as stated in the Act. The identity of the relative must be ascertained from the documents provided to the pathology lab by the hospital.

‘The Act requires laboratories to carry out tests after collecting the documents,’ Bhalla says. ‘They are not, however, required to investigate the authenticity of the documents.’

There is guidance available for policymakers and health professionals working in organ donation and transplantation in the form of the Declaration of Istanbul on organ trafficking and transplant tourism. The Declaration was last updated in 2018 and is provided by the Declaration of Istanbul Custodian Group. It provides principles and definitions for those working in this area. Among its recommendations are that governments should act to prevent organ trafficking and implement ethical and clinically sound programmes to address organ failure.

The World Health Organization, meanwhile, has suggested that international cooperation could assist in combating the international organ trade by creating rules around the overseas transportation of organs. In a bulletin on the topic it highlights the need for further medical and social scientific research and raises the possibility of a platform for sharing information between stakeholders.

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