Harvesting Vulnerability: The Challenges of Organ Trafficking in Armed Conflict
This post is drawn from the author’s article-length work, “Harvesting Vulnerability: The Challenges of Organ Trafficking in Armed Conflict” appearing in the International Review of the Red Cross.
Over 140,000 organ transplants are performed each year worldwide, a figure that accounts for only ten percent of the global need for transplantable organs. Undeniably, the demand outpaces the supply, and this unmet need creates a business opportunity for criminal organizations. According to WHO estimates from 2007, five to ten percent of all organ transplants are performed using illegally sourced organs. The actual extent of illegal organ transplants is, however, hard to ascertain because this type of criminality remains clandestine and goes unreported.
Conflict zones are fertile ground for organ traffickers. Displaced populations and refugees are vulnerable and have very few means of supporting themselves. This may cause them to turn to anyone promising financial support, no matter the personal cost. In this context, organ traffickers have been able to profit from the desperation of those affected by armed conflict.
Organ trafficking has turned out to be a lucrative business, not only for criminal organisations, but also for non-State armed groups. Aside from providing a steady flow of revenue for these groups, transplantable organs are also needed to treat injured combatants. These groups typically harvest and sell organs from captured fighters, captives, and hostages, as exemplified by Kosovo Liberation Army (KLA) militants in the context of the 1998-1999 Kosovo conflict, and more recently by militants of the Islamic State group.
The international legal community is yet to respond in a way that fully apprehends the various facets of organ trafficking. So far, only two conventions have tackled the issue, in a limited way. On the one hand, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children of the widely accepted United Nations Convention Against Transnational Organized Crime (UNTOC), only contemplates organ harvesting for the purpose of criminalizing human trafficking, but not organ harvesting in and of itself. On the other hand, the Council of Europe Convention against Trafficking in Human Organs, which contemplates the criminal responsibility of every actor, save for the donor and recipient, involved in illegal organ harvesting from living and deceased donors, applies only to its parties, the majority of which are members of the Council of Europe. Even if an armed conflict were to arise in territory of parties to those conventions, the void in law enforcement caused by the conflict would likely hinder any attempt to hold organ trafficking groups or their members accountable. As such, could International Humanitarian Law (IHL) fill the protection gap by prohibiting organ harvesting and ensuring compliance with IHL?
IHL’s Prohibition
IHL prohibits illegal organ harvesting during armed conflict through a web of rules that seeks to prevent the exploitation of living and deceased donors. It goes without saying that the prohibition of murder is subsumed under the prohibition of organ harvesting as IHL does not permit the murder of protected persons by removal of vital organs or for the purpose of harvesting organs.
One of the core components of the prohibition of organ harvesting is the regulation of medical procedures by the Additional Protocols (AP) to the Geneva Conventions. These expressly prohibit the removal of tissues or organs for transplantation in international armed conflicts (IACs) (AP I, art. 11) and any medical procedure which is not justified by the protected person’s state of health in non-international armed conflicts (NIACs) (AP II, art. 5(2)(e)), which inevitably leads to prohibiting organ harvesting. Importantly, save for the exception of Article 11(3) of AP I, organ harvesting cannot be consented to during an armed conflict. Only persons who are excluded from the scope of Article 11 of AP I and Article 5(2)(e)) of AP II (i.e. those who are not considered enemy nationals or detained in relation to the armed conflict) may still donate organs within the context of an armed conflict.
Another core component of the prohibition of organ harvesting is IHL’s prohibition against mutilation, in both IACs and NIACs, which flows from the Geneva Conventions, notably common Article 3’s obligation of humane treatment, as well as the APs (AP I, art. 11 and AP II, art. 4). Removing organs from a person’s body is a clear case of mutilation. This has resulted in an expansive protection against organ harvesting for any civilian or person hors de combat, regardless of nationality or allegiance. Based on the International Criminal Court’s (ICC) Ntaganda Pre-Trial Chamber interpretation of hors de combat, the prohibition against mutilation could go so far as to protect members of a party’s own armed forces, immobilized, or incapacitated at the time their organs are being harvested. This could prove crucial to ensuring that parties to a conflict do not cannibalize their own forces to finance the war effort or treat other combatants.
IHL also protects the bodies of the dead against organ harvesting. Opportunities for organ traffickers to source viable organs in the immediate aftermath of a person’s death can be limited by the obligation to search and collect the dead as soon as possible after an engagement. This obligation is also supplemented by an obligation to protect the dead against mutilation and despoliation. While applying the concept of despoliation to human bodies is debatable due to the implications on their legal status and property rights, the prohibition against mutilating the dead is well rooted in IHL and the international criminal law prohibition of outrages upon personal dignity (1949 Geneva Convention, Common Article 3 and ICC Elements of Crime).
Organ Trafficking Networks as Parties to an Armed Conflict?
Despite shortcomings when it comes to tackling organ trafficking, the UNTOC’s definition of a criminal organization constitutes a much-needed framework to better characterize the structure of organ trafficking groups. According to Article 2(a) of the UNTOC, criminal groups must display a certain level of organization and be structured for the purpose of obtaining directly or indirectly, a financial or material benefit by committing a crime. An organ trafficking group, traditionally horizontally structured as a network around brokers who recruit donors, recipients, and medically-trained professionals capable of harvesting and transplanting organs, easily satisfies both of those conditions. Within this structure, brokers are at the core and reap the biggest profits, while membership in the group by other protagonists is fluid and will vary based on the needs and location.
However, the fact that an organ trafficking network satisfies those conditions is not sufficient to trigger the applicability of IHL to that group. First, organ trafficking networks are unlikely to constitute an organized armed group (OAG) in a NIAC, as defined by the International Criminal Tribunal for the former Yugoslavia (ICTY) Trial Chamber Haradinaj case because of their fluid membership and lack of a hierarchically defined and militarily organized structure. Specifically, they tend to lack a command structure with the ability to enforce discipline against all the members of the network and ensure compliance with IHL. In fact, the idea of enforcing IHL in such a situation would run counter to the nature of organ harvesting (i.e. a violation of IHL). Further, the commission of protracted armed violence against the State or another group, a defining characteristic of an organized armed group within the meaning of the ICTY Tadić case, is neither common for organ trafficking networks nor required from a criminal organization under UNTOC. In fact, the success of organ trafficking networks rests on secrecy, discretion, and the evasion – rather than the confrontation – of law enforcement. As such, organ trafficking networks are unlikely to constitute OAGs and hence are not subject to IHL. However, should an OAG establish in-house organ harvesting capabilities, as the Islamic State group and the KLA have done, its actions would fall within the scope of IHL.
As for characterizing an organ trafficking network as a party to an IAC, the situation is even more improbable. First, organ trafficking networks are not States, the de facto parties to an IAC. Second, organ trafficking networks cannot fall within the scope of Article 1(4) of AP I, which applies to non-State armed groups engaged in wars of liberation. Indeed, organ trafficking networks within the scope of the UNTOC cannot be politically motivated, to preserve the distinction between criminal organizations and political opposition groups. While this may preclude organ trafficking networks from benefiting from Article 1(4) of AP I, it also preserves the essence of that provision by ensuring that those engaged in wars of liberation are not labelled as criminals under another international convention.
Establishing Responsibility
Organ harvesting can be carried out directly by the parties to a conflict, whether they be a State or a non-State armed group. In such a case, a violation of IHL would undoubtedly occur, as IHL is binding on States and, admittedly, non-State armed groups. Presumably, the attribution of responsibility would call upon the application of the principles of the international law of State responsibility. However, attributing responsibility might not be as straightforward as it seems. It is complicated by the fact that organ trafficking networks while not bound by IHL, may still be furthering the goals of, and be used by, parties to an armed conflict.
Many challenges stand in the way of attributing the responsibility of organ trafficking networks to parties to an armed conflict. First, the responsibility of non-State armed groups is not contemplated by the International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts. Indeed, inherent in the definition of non-State armed groups, is the absence of a State capable of bearing formal responsibility for a violation of IHL under international law. Second, even if responsibility could be attributed to such groups by analogy to States, its consequences would remain unclear because IHL only formally provides for a right to reparation against States – not non-State armed groups. Third, another challenge arises from the structure of organ trafficking networks, which are unlikely to meet the threshold of control required for attribution. Indeed, due to their loose structure and fluid membership, the criteria of total dependence and control required of de facto State organs would be absent. Likewise, the International Court of Justice’s effective control test (Nicaragua case) and the ICTY’s more pragmatic overall control test (Tadić case) were not designed to apprehend the acts of horizontally structured networks of loosely connected members that do not follow a military structure or organization.
While the actions of organ trafficking networks are unlikely to give rise to international responsibility, the same might not hold true for the actions of individual members of a network. Although they may be classified as civilians rather than combatants, their actions can be considered as war crimes, provided that they show a sufficient nexus to the armed conflict to be characterized as war crimes (Prosecutor v. Ntaganda, Judgment (ICC Trial Chamber, 8 July 2019)). In order to do so, the armed conflict must have at least played a substantial part in the manner in which the crime was committed, as well as its commission and the decision to commit it.
Importantly, the perpetrators must have acted in furtherance of the armed conflict, its goals, and in the context of their official duties. Undeniably, the armed conflict will have played a substantial role in facilitating an organ trafficking network’s operations. However, that does not mean that those performing organ harvesting, especially medical professionals, are acting with a view to serving the ultimate goal of an armed conflict. Organ trafficking networks are motivated by profit, in times of peace as much as in times of war. Yet, as suggested by the ICTY Appeals Chamber in the Kunarac case, extending the reach of IHL over perpetrators would be possible if one were to also consider that they acted “under the guise of the armed conflict.” Such a view would capture any crime simply catalyzed by the breakdown of the rule of law and could provide some sense of accountability to victims of organ harvesting. Unfortunately, the risk of opening war crimes up to parasitical criminality called for a strict interpretation of this alternative.
Concluding Thoughts
Despite an increased awareness and understanding of the intersections between organized crime and armed conflict, a careful balance must be struck between aspirations of accountability under international criminal law and the duty to faithfully and coherently interpret the Geneva Conventions and their Additional Protocols. For instance, parties to an armed conflict could harvest organs from their respective civilians, but Article 11(4) of AP I excludes organ harvesting procedures performed by a party on its own civilians from qualifying as war crimes. Furthermore, going beyond the criminal responsibility of the principal perpetrator (i.e. the one physically harvesting organs) to hold other members of a network accountable would be marred with evidentiary difficulties and jurisdictional obstacles. These challenges would bar any straightforward application of the ICC’s various modes of liability to other members of that group. Regrettably, organ trafficking networks and their members will keep operating without fear of consequences until the international legal community comes forward with a response that fully measures the complexity and urgency of regulating illegal organ harvesting.
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Thomas Martial is a legal practitioner specialised in public international law.
Photo credit: Kyivcity.gov.ua
