Committee Secretary Parliamentary Joint Standing Committee on Foreign Affairs, Defence and Trade PO Box 6021 Parliament House Canberra ACT 2600 By email: [email protected]
3 October 2018
Dear Committee Secretary,
Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism
Please find attached a submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism.
I thank you for the grant of an extension of time in which to lodge this submission.
If you would like to discuss any aspect of this submission, please contact me by email at [email protected].
Yours faithfully,
Dr David Matas International Human Rights Lawyer Winnipeg, Canada
Dr David Matas, Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism 1
Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism
Contents
1. About Dr David Matas
2. Australian deterrence of international organ trafficking
3. Australia’s Department of Foreign Affairs and Trade and organ transplant abuse in China
4. Bodies exhibits
5. Reporting
6. Conclusion
Dr David Matas, Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism 2
1. About Dr David Matas
Dr David Matas is an international human rights lawyer, author and researcher based in Winnipeg and currently acts as Senior Honorary Counsel for B’nai Brith Canada. He has served the government of Canada in numerous positions including as member of the Canadian delegation to the United Nations Conference on an International Criminal Court; the Task Force for International Cooperation on Holocaust Education, Remembrance and Research; and the Organization on Security and Cooperation in Europe Conferences on Antisemitism and Intolerance. He has also been involved in several different organizations, including the Canadian Helsinki Watch Group, Beyond Borders, Amnesty International, and the Canadian Council for Refugees.
Dr Matas has received numerous awards and honors, including the Manitoba Bar Association Distinguished Service Award in 2008, the Order of Canada in 2009, the Canadian Bar Association National Citizenship and Immigration Section Achievement Award in 2009, and the International Society for Human Rights Swiss Section Human Rights Prize in 2010.
In 2006, Dr Matas co-authored Bloody Harvest: Organ Harvesting of Falun Gong Practitioners in China alongside Hon. David Kilgour. Both Dr Matas and Mr Kilgour were nominated for the 2010 Nobel Peace Prize for this work.
Dr Matas is a co-author of the 2016 investigative report An Update to Bloody Harvest and The Slaughter. The report meticulously examines the transplant programs of hundreds of hospitals in China, drawing on media reports, official propaganda, medical journals, hospital websites and a vast amount of deleted websites found in archives.
His other works include: Why Did You Do That?, The Autobiography of a Human Rights Advocate; Justice Delayed: Nazi War Criminals in Canada with Susan Charendoff; Closing the Doors: The Failure of Refugee Protection with Ilana Simon; No More: The Battle Against Human Rights Violations; Bloody Words: Hate and Free Speech; and Aftershock: Antisemitism and Anti-Zionism.
Dr David Matas, Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism 3
2. Australian deterrence of international organ trafficking
If a person is complicit of the killing of an innocent in Australia for the innocent’s organs, that is a crime in Australia. But if a person is complicit in the killing of an innocent in China for the innocent’s organs, there is not now a legal remedy in Australia.
The Commonwealth Criminal Code Act 1995 provides:
“A person (the offender) commits an offence of domestic organ trafficking if: (a) the offender engages in conduct consisting of the organisation, or facilitation, of the transportation or proposed transportation of another person (the victim ) from one place in Australia to another place in Australia; and (b) the offender is reckless as to whether the conduct will result in the removal of an organ of the victim contrary to this Subdivision, by the offender or another person, after or in the course of that transportation.”1
There is no equivalent for international organ trafficking. There needs to be.
The United Nations Convention on Transnational Organized Crime (UNTOC) has a Protocol on Trafficking in Persons. Australia has ratified the Protocol.2 It might seem that being engaged in the purchase and sale abroad of organs harvested from an innocent killed for their organs is a form of human trafficking. Yet, regrettably, the United Nations Office of Drugs and Crime has taken a contrary position.
The NGO Taiwan Association for International Care of Organ Transplants (TAICOT) in March 2014 asked to meet with Ilias Chatzis, Chief, Human Trafficking and Migrant Smuggling Section, Organized Crime and Illicit Trafficking Branch, United Nations Office on Drugs and Crime at its headquarters in Vienna
1 271.7D Offence of domestic organ trafficking 2 https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-12- a&chapter=18&clang=_en
Dr David Matas, Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism 4
"to present to you latest updates from Asia about organ tourism in China and to discuss with you how best to prevent and stop unethical organ harvesting, a new form of cruel torture against humanity."
The request added:
"For your reference, on December 12th, 2013, the European Parliament (EP) adopted an urgency resolution, calling on the Chinese government to end immediately the practice of harvesting organs from prisoners of conscience, including large numbers of Falun Gong practitioners."
Mr. Chatzis, replied in part, on March 21, 2014: "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 e-mail. 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."
Mr. Chatzis could not have been more clear. The e-mail requesting a meeting referred to organ tourism. The refusal of a meeting stated that the work of his Section does not cover "the other issues covered in your e-mail", that is to say, organ tourism. Moreover, because his Section covers the UNTOC Protocol on Trafficking in Human Beings, it is his view that the UNTOC Protocol on Trafficking in Human Beings does not cover organ tourism.
Lest there be any uncertainty in this matter, I wrote to Yury Fedotov, Executive Director UN Office of Drugs and Crime Vienna, Austria, on July 30th, 2014 asking him to reject the views of Mr. Chatzis. 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, in a verbose and evasive reply, failed to do so.
Dr David Matas, Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism 5
The Declaration of Istanbul on Organ Trafficking and Transplant Tourism defines transplant tourism to be travel for transplantation
"which involves organ trafficking and/or transplant commercialism or if the resources (organs, professionals and transplant centers) devoted to providing transplants to patients from outside a country undermine the country's ability to provide transplant services for its own population."
That definition presents alternatives. One of those alternatives is travel for transplantation which involves organ trafficking. If a person travels for transplantation and, at the place at which the person arrives, the organ which the person receives is trafficked, then that is transplant tourism.
China is a party to the Trafficking in Persons Protocol to the Transnational Organized Crime Convention. The Government of China would likely contest any interpretation of the UN Protocol which brings under the jurisdiction of the UN Office on Drugs and Crime the transplant misbehaviour of the Chinese Government.
Given the geopolitical weight of China and a desire not to annoy its Government, the UN Office of Drugs and Crime may be making every effort to avoid a confrontation with the Government of China by avoiding the issue. The responses of Mr. Chatzis and Mr. Fedotov may have been influenced by the Government of China either directly or through fears of what that Government might have thought. Regardless, their sort of behaviour is not a good sign.
I contest the interpretation of the Protocol Mr. Chatzis has given. But I also acknowledge that China uses its political weight at all United Nations institutions to seek impunity for its human rights violations. My interpretation of UN treaties is not going to change that.
A more promising international instrument, precisely because China is not a state party, is the Convention against Trafficking in Human Organs. The Council of Europe in March 2015 approved the Convention. To date, there are eighteen signatory states, and five
Dr David Matas, Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism 6 ratifying states. 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.
The Convention requires states parties to criminalize forced organ harvesting and organ brokerage.3 That 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.4
The Council of Europe Convention addresses specifically extra-territoriality but limits extra-territoriality to nationals. The Convention obligates states parties to criminalize violations of Convention standards by nationals of states parties abroad.
The Convention does not require states parties to criminalize violation of Convention standards by non-state nationals abroad. In particular, the Convention does not require that either a resident or a visiting perpetrator be prosecutable for violation of Convention standards.
Whether the Convention should have created an international offence which required that residents and visitors be prosecutable for violation of Convention standards caused division within the Council at the drafting stage, with 18 states supporting and 20 opposed.5 The Convention does not obligate states parties to create an international offence applying to residents and visitors. But there is nothing preventing states, should they wish to do so, from legislating such an offence.
The Convention is explicit about legislating beyond its terms. It states:
3 Articles 4,5, 7 and 8 4 Article 28 5 European Committee on Crime Problems (CDPC) Draft Council of Europe Convention against Trafficking in Human Organs, footnote 3 Strasbourg, 07 December 2012, CDPC (2012) 21 http://www.coe.int/t/dghl/standardsetting/cdpc/CDPC%20documents/CDPC%20%282012%29%2021% 20-%20e%20-%20Draft%20Convention%20against%20Trafficking%20in%20Human%20Organs.pdf
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"Without prejudice to the general rules of international law, this Convention does not exclude any criminal jurisdiction exercised by a Party in accordance with its internal law."6
Given the division at the time of drafting about whether to require states parties to make the offences international for residents and visitors and the failure to agree on this matter by a narrow margin, this "without prejudice" clause can be read as a go ahead to states who want on their own to legislate the treaty offences to have international reach for residents and visitors. The clause amounts to saying that, while we do not require states parties to legislate the offences to have extra-territorial effect for residents and visitors, they are certainly free to do so, should they wish.
All the ratifying states –Albania, Czech Republic, Malta, Moldova and Norway - will have had implementing legislation. So far, there is extra-territorial legislation also in Italy, Spain, Israel and Taiwan. As well, in several states, including Canada, extra-territorial legislation has been proposed by individual Congressional or Parliamentary members, without yet being adopted.
Australia should elicit an invitation from the Council to sign the Convention. Australia should sign, ratify and implement the Council of Europe Convention on Organ Trafficking. Australia should go beyond the obligations of this Convention and assert universal jurisdiction over perpetrator residents and visitors, as well as perpetrator nationals.
Getting China to admit to, let alone act against, the organ transplant abuse rampant in that country will be difficult. However, there is no reason why Australia should be complicit in that abuse. Australia may not be able to change China; but they can surely control what they themselves do.
One clear and simple way of avoiding complicity is criminal legislation penalizing brokerage, advertising, solicitation, and referrals - any form of money making from the
6 Article 10(8)
Dr David Matas, Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism 8 killing of innocents in China for their organs. It is well past time that this sort of effort to avoid complicity be made.
Child sex tourism has become globally a transnational crime. Transplant tourism needs to follow the same arc. In those countries where organ transplant abuse is not yet a transnational crime, it should be.
3. Australia’s Department of Foreign Affairs and Trade and organ transplant abuse in China
There is substantial evidence of past and ongoing transplant abuse in China and, in particular, sourcing of organs of transplants from prisoners. Prisoners are killed through organ extraction and their bodies cremated.
The Government of China acknowledges past sourcing from prisoners sentenced to death, but claims that it has stopped. Researchers have concluded that organs are sourced from prisoners of conscience, which the Government of China denies.
The prisoner of conscience sources are Uighurs, Tibetans, house Christians (mostly Eastern Lightning) and primarily practitioners of the spiritually based set of exercises Falun Gong, a Chinese equivalent of yoga. The evidence establishing Chinese organ transplant abuse with these victims can be found at:
1. a 2006 submission to the US Congress by Kirk Allison Director, Program in Human Rights and Health, school of Public Health, University of Minnesota;7
2. a 2007 Yale undergraduate thesis by Hao Wang under the title "China's Organ Transplant Industry and Falun Gong Organ Harvesting: An Economic Analysis";8
7 http://commdocs.house.gov/committees/intlrel/hfa30146.000/hfa30146_0f.htm 8 http://organharvestinvestigation.net/events/YALE0407.pdf
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3. the book Bloody Harvest, co-authored by David Matas and David Kilgour, 2009;9
4. the book State Organs, a collection of essays from mostly medical professionals, co-edited by David Matas and Torsten Trey, 2012;10
5. the book The Slaughter, by Ethan Gutmann, 2014;11
6. a 2016 joint update by David Matas, David Kilgour and Ethan Gutmann of Bloody Harvest and The Slaughter;12
7. a 2013 documentary by Masha Savitz, titled Red Reign;
8. a 2014 documentary by Leon Lee, titled Human Harvest, which won a 2015 Peabody Award;
9. a 2015 documentary by Ken Stone titled Hard to Believe;
10. the ongoing work of the World Organization to Investigate Persecution against the Falun Gong;13 11. the ongoing work of the International Coalition to End Transplant Abuse in China;14
12. the ongoing work of the China Organ Harvest Research Centre;15 and
13. an article "Cold Genocide: Falun Gong in China" by David Matas, Torsten Trey, Maria Cheung, and Richard An, published in Genocide Studies and Prevention: An International Journal16
9 Seraphim Editions 10 Seraphim Editions 11 Prometheus Books 12 https://endtransplantabuse.org/an-update/ 13 http://www.upholdjustice.org/ 14 https://endtransplantabuse.org/ 15 https://www.chinaorganharvest.org 16 http://scholarcommons.usf.edu/gsp/vol12/iss1/6
Dr David Matas, Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism 10
The standard response of the Department of Foreign Affairs and Trade (DFAT), when presented with this evidence is:
“We are aware of claims of illegal organ harvesting in China from Falun Gong practitioners. Those claims, if true, are deeply disturbing. While we consider there is insufficient credible evidence to support the Falun Gong's specific allegations, there is little doubt organs have been harvested from executed prisoners for use in medical transplants, at least prior to 2015. Australia strongly opposes this practice.”
This is an inappropriate stock response and should be discontinued. For one it is out of step with the global response to this evidence.
The United Nations Committee against Torture in its subjects of concern and recommendations about China in November 2008 wrote:
"2. The Committee notes that a report compiled by two Canadians investigating allegations of organ harvesting of Falun Gong practitioners in China has drawn a link between the severe persecution of Falun Gong practitioners and the high number of organ transplants. The Committee expresses its concern about the failure of the Government of China to explain the discrepancy in the number of transplants between the years 2000-2005 and the numbers from identifiable sources of organs, despite repeated requests from the UN Rapporteur on Torture, the UN Rapporteur on Religious Intolerance and this Committee for an explanation."
The European Union Parliament passed a resolution in December 2013 with this operative paragraph:
"1. Expresses its deep concern over the persistent and credible reports of systematic, state-sanctioned organ harvesting from non-consenting prisoners of
Dr David Matas, Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism 11
conscience in the Peoples Republic of China, including from large numbers of Falun Gong practitioners imprisoned for their religious beliefs, as well as from members of other religious and ethnic minority groups;"
The United States House of Representatives, in a resolution, from June 2016
"calls on the Government of the People's Republic of China and Communist Party of China to immediately end the practice of organ harvesting from all prisoners of conscience;"
There is an evolution in positions as time passes and evidence accumulates. The 2008 conclusion of the UN Committee against Torture only noted that a report compiled by two Canadians investigating allegations of organ harvesting of Falun Gong practitioners in China drew a link between the severe persecution of Falun Gong practitioners and the high number of organ transplants.
The 2013 resolution of the European Union Parliament went further and referred to persistent and credible reports of systematic, state-sanctioned organ harvesting from non-consenting prisoners of conscience. The 2016 resolution of the US Congress House of Representatives resolution went further still and concluded without reservation that the practice of organ harvesting from prisoners of conscience had happened and was still happening.
These statements are striking contrasts with the Australian Department of Foreign Affairs and Trade official position. The Department has conducted no independent investigation or assessment of the evidence of the killing of prisoners of conscience in China for their organs. It is inconsistent for the Department not to investigate the evidence and yet produce a conclusion on the evidence.
The nature of the evidence is misdescribed in a number of ways. The actual evidence is not that only practitioners of Falun Gong are being killed for their organs but rather
Dr David Matas, Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism 12 several categories of prisoners of conscience - Uighurs, Tibetans, House Christians, as well as practitioners of Falun Gong.
To describe the evidence and conclusions as "Falun Gong's specific allegations" is to mistake both the nature of the evidence and conclusions and the nature of Falun Gong. To describe evidence based conclusions as allegations divorces the conclusions from the evidence on which they are based. An allegation is an accusation only which may or may not be true. An evidence based conclusion goes beyond a mere allegation.
DFAT refers to “insufficient credible evidence”. Does DFAT find some of the evidence on which the conclusions are based not credible? If so, which evidence is that? Accusations that people are lying can not be made in a vacuum. They have to be specific and substantiated.
Does DFAT find all the evidence credible but insufficient to justify the conclusions? If that is so, why is the issue of credibility even raised? Why does not DFAT just say “insufficient evidence”?
Suppose that the word “credible” is just inadvertent surplusage. In that case, in what way is the evidence insufficient? What evidence is missing? What is the sort of evidence which one could reasonably expect to get that DFAT would find sufficient to establish the killing of prisoners of conscience in China for their organs? DFAT suggests none.
Furthermore, Falun Gong is a set of exercises with a spiritual foundation, a Chinese equivalent of yoga. The notion that a set of exercises could make allegations is nonsensical. The phrase "Falun Gong's specific allegations" is as silly as the phrase "yoga's specific allegations".
Moreover, as noted by the UN Committee on Torture, the compilation of the evidence and conclusions on the killing of practitioners of Falun Gong for their organs came initially from David Kilgour and myself, neither of whom is or ever was a Falun Gong practitioner.
Dr David Matas, Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism 13
This evidence has been corroborated by independent research from Ethan Gutmann who also both was not and is not a Falun Gong practitioner.
Falun Gong practitioners and NGOs formed from components of the practitioner community have repeated some elements of our research and conclusions. However, that repetition does not make our work Falun Gong research or Falun Gong practitioner research, let alone Falun Gong allegations.
Ethan Gutmann, David Kilgour and I, though we have copyrighted our books on the subject, have not copyrighted our conclusions. Generally, when Falun Gong practitioners repeat our research and conclusions they, in any case, attribute our work to us. The Department of Foreign Affairs and Trade should do the same. The issue here is not breach of copyright. It is rather intellectual honesty.
There are only two possibilities. Either there is sufficient evidence available publicly to come a conclusion whether or not prisoners of conscience are being killed for their organs in China or there is not.
If there is sufficient evidence available publicly to come a definite conclusion whether or not prisoners of conscience are being killed for their organs in China, then a conclusion should be drawn one way or the other. If there is not sufficient evidence available publicly to come a definite conclusion whether or not prisoners of conscience are being killed for their organs in China or if, as would be understandable, the Department of Foreign Affairs and Trade, does not have the resources to undertake its own investigation on the matter, even if that investigation would lead, on the basis of already publicly available evidence, to a definite conclusion, China should be asked to cooperate with an independent investigation to which China would make available all relevant data on the matter.
Again, the request for cooperation with an independent investigation is a common international theme.
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The UN Committee against Torture in December 2008 recommended to China that:
"The State party should immediately conduct or commission an independent investigation of the claims that some Falun Gong practitioners have been subgojected to torture and used for organ transplants and take measures, as appropriate, to ensure that those responsible for such abuses are prosecuted and punished."17
The European Union Parliament in December 2013
" 3. Calls for the EU and its Member States to raise the issue of organ harvesting in China; recommends that the Union and its Member States publicly condemn organ transplant abuses in China and raise awareness of this issue among their citizens travelling to China; calls for a full and transparent investigation by the EU into organ transplant practices in China, and for the prosecution of those found to have engaged in such unethical practices;"
The UN Committee against Torture in February 2016 recommended to China that:
"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 [organs were removed without their consent]."18
The United States Congress House of Representatives in June 2016
"(5) calls on the People's Republic of China to allow a credible, transparent, and independent investigation into organ transplant abuses;"19
17https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fCHN %2fCO%2f4&Lang=en 18 Paragraph 50 https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2fC%2fCHN% 2fCO%2f5&Lang=en 19 https://www.congress.gov/bill/114th-congress/house-resolution/343/text
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The Department of Foreign Affairs and Trade should, like the US House of Representatives in 2016, accept that the killing of prisoners of conscience for their organs in China has happened and is happening. If not that, the Department of Foreign Affairs and Trade should go back in time and, like the European Union Parliament in 2013, accept that there are persistent and credible reports of systematic, state-sanctioned organ harvesting from non-consenting prisoners of conscience in the Peoples Republic of China.
If not that, the Department of Foreign Affairs and Trade should, at the very least, like the UN Committee against Torture as early as 2008, attribute the research and conclusions about the killing of prisoners of conscience in China for their organs to the people who made the research and drew the conclusions and not to a set of exercises or to a mass of people who happen to practice the exercises. In addition, the Government of Australia should join its colleagues abroad and international instances in calling for the Government of China to cooperate with an independent investigation into transplant abuse in China.
4. Body exhibits
There is compelling evidence that the bodies in a recent body exhibit in Sydney are prisoners of conscience killed for plastination and sale. Whether that is in fact so or not, the present law and policy is such that nothing exists to prevent the exhibition of bodies in Australia generated in this way. The law and policy about these exhibits need to be changed so that can not happen.
The bodies in the body exhibit Real Bodies in Sydney came from Dalian Medical University Biology Plastination. Tom Zaller, the principal of Imagine Exhibitions which ran the Real Bodies exhibit in Sydney, has said that the bodies were unclaimed.20 There are no consents available or indicated.
20 Mick Tsikas/AAP "Real Bodies controversy: how Australian museums regulate the display of human remains" April 30, 2018 https://theconversation.com/real-bodies-controversy-how-australian-museums-regulate-the-display-of-hu man-remains-95644
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Sui Hongjin, the principal of Dalian Medical University Biology Plastination, talked about the source of his bodies during a call made by an NGO investigator who assumed the identity of a Party investigator. The call had these questions and answers:
"Investigator: What channels served as your main source of bodies? Sui Hongjin: Dozens of corpses came from Public Security. They were procured by the Public Security Bureau. Investigator: Then they are from the police. How many cadavers have you received thus far? Sui Hongjin: I can't remember now, perhaps dozens.... Investigator: Which Public Security Bureau supplied you? Sui Hongjin: Dalian, the Dalian Public Security Bureau."
The recording of the conversation is available online.21
A 1984 Chinese law states
"III. The dead bodies or organs of the following categories of the condemned criminals can be made use of. 1. The uncollected dead bodies or the ones that the family members refuse to collect:"22
Practitioners of the spiritually based set of exercises Falun Gong who came from all over the country to Tiananmen Square in Beijing to appeal or protest the Communist Party campaign begun in July 1999 to repress the practice were systematically arrested. Those who revealed their identities to their captors were shipped back to their home localities. Their families were implicated in their Falun Gong activities and pressured to join in the effort to get the practitioners to renounce Falun Gong. Their workplace leaders, their co-
21 http://www.zhuichaguoji.org/sites/default/files/files/report/2012/11/26133_suihongjin_7.mp3 22 Human Rights Watch "Organ Procurement and Judicial Execution in China” August 1994 Appendix two: Temporary Rules Concerning the Utilization of Corpses or Organs from the Corpses of Executed Criminals https://www.hrw.org/reports/1994/china1/china_948.htm#_1_21
Dr David Matas, Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism 17 workers, their local government leaders were held responsible and penalized for the fact that these individuals had gone to Beijing to appeal or protest.
To protect their families and avoid the hostility of the people in their locality, many detained Falun Gong declined to identify themselves. The result was a large Falun Gong prison population whose identities the authorities did not know. As well, no one who knew them knew where they were.
Though this refusal to identify themselves was done for protection purposes, it had the opposite effect. It is easier to victimize a person whose whereabouts is unknown to family members than a person whose location the family knows. This population was a remarkably undefended group of people, even by Chinese standards.
Those who refused to self-identify were treated especially badly. As well, they were moved around within the Chinese prison system for reasons not explained to the prisoners. Members of this population could just disappear without anyone outside of the prison system being the wiser.
In my and other investigations into organ transplant abuse in China, one of the most disturbing findings was the discovery of this massive prison/ detention/ labour camp population of the unidentified. Prisoner after prisoner who eventually was released from detention and got out of China told us about this population.
What these former prisoners told us was that they personally met the unidentified in detention in significant numbers. Though we have met many Falun Gong practitioners who were released from Chinese detention, we did meet or hear of, despite their large numbers, a practitioner released from detention, other than in the early months of the repression, who refused to self-identify.
The problem of enforced disappearances is distinguishable from the problem of the unidentified, because, in the case of enforced disappearances, families know that the state is involved. For the unidentified, all the families know is that they have lost track
Dr David Matas, Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism 18 of a loved one. For those victims of enforced disappearances, the families or witnesses know more. They know that the person was at one time in the custody of the state. The state either refuses to acknowledge that the person was ever in their custody or conceals the fate or whereabouts of the person.
There are some Falun Gong practitioners who have disappeared, abducted by the authorities. However, the only disappearances case of which we know are people who were subsequently released and then spoke of their abduction. We know that these victims were made to disappear only after the fact, once they reappeared.
For the unidentified, because family members know only that they have lost contact with a loved one, they do not necessarily turn to the state to ask if the person has been detained. When the person who is missing is the adherent to a practice which is brutally repressed by the state, the tendency of the family to avoid the government is heightened. Nonetheless a few have sought out Chinese government help to find a missing Falun Gong practitioner family member, but to no avail.
Added to this mix is the mass killing of prisoners of conscience for their organs sold to transplant patients at high prices. The prisoner of conscience victims are primarily practitioners of Falun Gong, but also Uighurs, Tibetans and House Christians. There is an overlap in the evidence of organ sourcing in China and the evidence of body sourcing for plastination.
So, what we have is
a) plastinated bodies without consent before death, b) sourcing of those bodies from the police and jails, c) acknowledgement that the bodies are unclaimed, d) a law which allows sourcing of bodies from prisoners without their consent if the bodies are unclaimed, e) huge money to be made from the sale of the bodies and their exhibition,
Dr David Matas, Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism 19
f) detention of prisoners of conscience in large numbers who do not self-identify, making the claiming of their bodies by family members a practical impossibility, and g) evidence of sourcing of organs from prisoners of conscience.
The Czech Republic in 2017 enacted an amended Funerals Act which has this provision
"4 (1) Human remains must be treated with dignity and in such a way as not to endanger public health or public order; for these reasons, it is forbidden for (b) legal or business natural persons to preserve, embalm or expose the body of a deceased, including preserved or embalmed, without the consent of the deceased,"
Australia should have a similar law.
The Transplantation Society, an international non-governmental organization of transplant professionals, in July 2006 issued this statement:
"Because of the restrictions in liberty in a prison environment it is impossible to ascertain whether prisoners are truly free to make independent decisions, and thus an autonomous informed consent for donation cannot be obtained."
Australia should have a similar policy. Consent alone should not be sufficient. The consent must come from someone not in prison. Consent obtained from a prisoner that his/her body could be displayed after death in a body exhibit should not be considered a truly free consent, and therefore should not be acceptable.
The then Attorney General of New York Andrew Cuomo (now the Governor) in May 2008 reached a settlement with the body exhibition company Premier Exhibitions with these terms:
Dr David Matas, Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism 20
"• Going forward, before displaying a body as part of any New York exhibit, Premier must obtain written documentation demonstrating the source of each body and body part, the cause of death, and the decedent's consent to the use of his or her body. • Premier will provide full ticket refunds to all customers who can establish that they attended the New York exhibition and who represent that they would not have done so if they had known of the questionable origins of the bodies and parts on display. Premier will place $50,000 in escrow for this purpose. • Premier will retain an independent monitor, at its own expense and for a term of 2 years, who will ensure that the terms of the settlement are followed. The monitor will also oversee the refund process. • In the event that Premier continues to display human remains in New York that were obtained before the Attorney General's settlement, Premier will clearly disclose on its website, in the entrances of any New York exhibitions, and in its advertising that it is not able to confirm that the bodies and parts being displayed were not, or did not belong to, Chinese prisoners who may have been victims of torture and execution."
Again, something similar should happen in Australia. Consent alone should not be enough, even consent from non-prisoners. In addition, documentation must show the source of each body and body part and the cause of death.
Moreover, the law or policy should have retroactive effect. Australia should require any body exhibitor who had presented a body exhibition before the new Australian law or policy comes into effect to provide full ticket refunds to all customers who can establish that they attended the exhibition and who represent that they would not have done so if they had known of the questionable origins of the bodies and parts on display. Exhibitors should be required to put funds in escrow for this purpose.
In the event that any exhibitor displays human remains in Australia that were obtained before the new Australia law or policy comes into effect, the exhibitor must disclose on its website, in the entrances of any exhibitions, and in its advertising, where such is the
Dr David Matas, Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism 21 case, that it is not able to confirm that the. bodies and parts being displayed were not, or did not belong to, Chinese prisoners. The exhibitor must also make the bodies and parts available for DNA testing to allow determination whether the bodies and parts belong to missing persons whom family members are trying to locate.
Australia needs an amplified entry requirements law. For bodies exhibits to enter from abroad each and every body and part should have three supporting documents – a document of consent, a document indicating the source, and a document indicating the cause of death.
5. Reporting
Australia needs a system of mandatory reporting by health professionals to health administrators of transplant tourism. Right now there is not even voluntary reporting of transplant tourism.
When I was in Australia, I was constantly being asked about transplant tourism into China from Australia and from other countries. There is some information available, but it is mostly anecdotal, because there is no collection of publicly available statistical information about this phenomenon, not in Australia, and not, to my knowledge, anywhere.
Moreover, this information in principle should not be difficult to get. Anyone who gets a transplant abroad needs aftercare back home. Health professionals know about transplant tourism because transplant tourists are their patients. They just do not tell anyone about it.
It is perhaps unreasonable to expect doctors to talk about what they know from their patients because of the obligation of doctor patient confidentiality. That is why mandatory reporting is necessary.
Dr David Matas, Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism 22
Transplant patients do not really have the option of avoiding medical care. They need anti-rejection drugs indefinitely after transplants. So, the disincentive to seeking medical care created by compulsory reporting would have to be small to non-existent.
Australia should have a law which requires reporting to a designated authority. The designated authority need not, under the law, report the person identified to the prosecution. Even having overall statistical measures of the amount of transplant tourism would be an improvement over where we are now.
There is a debate about whether patients should be prosecuted. Whether or not patients are, the brokers and others either facilitating or participating in the abusive transplants certainly should be. Patients are typically given a run around, told a phoney story about which they do not ask too many questions. While they are arguably guilty of wilful blindness, they are living in circumstances which blur their judgment.
The Israeli law dealt with this issue by imposing a legal obligation on patients not to participate in organ transplant abuse, but providing no punishment for patients should they break the law. There is no need to replicate the Israeli law. Patient immunity need not be written into the law. The matter could be handled by prosecutorial discretion.
Mandatory reporting already exists in other areas - for instance gunshot wounds or child abuse. For instance, Ontario has mandatory gunshot wounds reporting legislation. Manitoba, Canada, has gunshot and stab wounds mandatory reporting legislation.
Ontario and British Columbia require reporting of suspected cases of child abuse or neglect. Manitoba, Canada, has an obligation to report a child in need of protection.
In these cases, the value of defence against gun and knife violence and the value of protection of children from abuse or neglect have prevailed over the value of health professional patient confidentiality. It should be the same for organ transplant abuse.
Dr David Matas, Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism 23
There is some worry in these areas that mandatory reporting may have adverse health effects. However, the decision has been, on balance, that we are better off with mandatory reporting than without it. The overall interest society has in preventing gun battles and child abuse predominates. One can say the same about organ transplant abuse.
However, even to those who have a different opinion, I would say that, at least, we should be able to gather aggregate data of transplant tourism. Without aggregate data, we have no clear idea of the scope of the problem we are facing.
Transplant abuse occurs under cover in darkness. Perpetrators give out as little information as possible. Participants in the abuse are typically wilfully blind. Shining a light on the abuse is an important aid to ending it.
Without mandatory reporting, we get caught in a vicious circle. We do little about the problem because we do not know how big it is. We do not know how big it is, because we do little about the problem.
Some professionals have talked about establishing voluntary reporting systems and I encourage them to do so. However, the fact that not even these proposed voluntary reporting systems are in place now indicates the need for mandatory reporting systems. Without mandatory reporting, the black market in organs will continue to be pitch dark.
6. Conclusion
As stated above, there is substantial evidence of past and ongoing transplant abuse in China and, in particular, sourcing of organs of transplants from prisoners. Prisoners are killed through organ extraction and their bodies cremated. Australia is China’s neighbour and due to its close proximity geographically, and its poor human rights record, amendments to the Commonwealth Criminal Code should be made so as to have extraterritorial application, and it follows that Australia should accede to the Council of Europe Convention.
Dr David Matas, Submission to the Inquiry into Human Organ Trafficking and Organ Transplant Tourism 24