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Inquiry Into Human Organ Trafficking and Organ Transplant Tourism

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Inquiry Into Human Organ Trafficking and Organ Transplant Tourism 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.
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