Real Life Squid Games? The Human Rights Violations of Forced Organ Harvesting in China

In September of 2021, Netflix original series “Squid Games” became a worldwide sensation in both viewership and ratings.[1] “Squid Games” is a South Korean dystopian thriller television series that explores many complex topics such as class relations, exploitation, and forced organ harvesting.[2] While this show is purely fictional, the depiction of forced organ harvesting is not entirely invented. Most recently, China has received international speculation and allegations of forced organ harvesting, and UN human rights experts believe they have credible evidentiary support.[3] This article seeks to explain forced organ harvesting and the international protections that exist for this form of human trafficking, as well as to provide detail on the current allegations against China and the possible legal implications of such acts.

What is Forced Organ Harvesting?

Forced organ harvesting is generally understood to be the illegal practice of surgically removing organs without consent.[4] The forced procurement of human organs violates many interrelated human rights conventions that together provide a framework for the fundamental human rights applicable to this concept. Most notably, the “Bill of Human Rights” depicts many fundamental human rights, some of which are understood to be customary international law and binding on all nations, and is made up of three main international treaties: the Universal Declaration of Human Rights of 1948 (“UDHR”), the International Covenant on Economic, Social, and Cultural Rights of 1966 (“ICESCR”), and the International Covenant on Civil and Political Rights of 1966 (“ICCPR”).[5] In addition to the Bill of Human Rights, other relevant conventions in which China is a party to include: the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1988, the Convention on the Prevention and Punishment of the Crime of Genocide ratified in 1983, and the United Nations Convention Against Transnational Crime ratified in 2003.[6]

Together, these treaties affirm fundamental human rights, rights that are violated by the forced procurement of human organs. These human rights violations include, but are not limited to: violation of Article 3, UDHR “right to life, liberty and security of person”; violation of Article 5, UDHR “no one shall be subjected to torture or to cruel, inhuman or degrading treatment”; along with notions of human rights and bioethics prohibiting the use of human body parts to give rise to financial gain and the requirement of informed and freely given consent, as well as the right to bodily integrity/autonomy, etc.[7]

The first international legal instrument to specifically address forced organ harvesting is the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (Trafficking in Persons Protocol) adopted in November of 2000.[8] This Protocol supplements the UN Convention Against Transnational Organized Crime.[9] In the Trafficking in Persons Protocol, Article 3(a) states that:

“‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include… the removal of organs.”[10]

Other multilateral and regional instruments also address and prohibit forced organ harvesting, such as the Council of Europe Convention on Action Against Trafficking in Human Beings.[11] This convention “applies the definition of trafficking in persons as laid down in the UN Trafficking in Persons Protocol and seeks to strengthen the protection afforded by the Protocol and other international instruments.”[12] This treaty is understood to be the only current international treaty that specifically addresses trafficking in human organs, as opposed to the trafficking of persons for the removal of organs, and provides text that seeks to prevent and combat this form of trafficking.[13]

Additionally, the World Health Organization (“WHO”) also provides helpful insight concerning consent.[14] In the WHO’s “Guiding Principles on Human Cell, Tissue and Organ Transplantation”, guiding principle 3 states that “live donations are acceptable when the donor’s informed and voluntary consent is obtained.”[15]

Notably, there have been efforts to split the issue of forced organ harvesting into two separate categories: 1) the trafficking of organs, tissues, and cells, and 2) the trafficking of the person themselves for the purpose of illegally harvesting their organs.[16] This distinction was initially introduced by the “Joint Study on trafficking in organs, tissues, and cells and trafficking in human beings for the purpose of the removal of organs” (Joint Study).[17] This Joint Study between the Council of Europe and the United Nations in 2008 had the primary aim of distinguishing between these two forms of trafficking and to determine necessary preventative and protective measures for the two separately.[18]

UN Responses to Forced Organ Harvesting

The aforementioned Joint Study between the Council of Europe and the United Nations was launched shortly after the early 2006-2007 allegations of forced organ harvesting against the Chinese government.[19] This Joint Study ultimately called for a binding international treaty specifically aimed at preventing the trafficking of organs, tissues, and cells that would focus on three pillars: prevention, protection, and prosecution.[20]

Despite the Joint Study, and subsequent UN publications educating on the trafficking in persons for the purpose of organ removal, there is still currently no binding UN treaty that addresses this issue.[21] Instead, various agencies have expressed their approaches to the issue separately and in the form of non-binding UN resolutions.[22] One such example is the UN General Assembly’s adoption of the resolution entitled “Strengthening and Promoting Effective Measures and International Cooperation on Organ Donation and Transplantation to Prevent and Combat Trafficking in Persons for the Purpose of Organ Removal and Trafficking in Human Organs” adopted in August of 2017.[23] This particular resolution specifically urges member states to take preventative steps to combat such trafficking by strengthening national legislative frameworks.[24] The resolution also requested the WHO to develop international guidelines on the health, criminal and human rights aspects of these crimes.[25] These guidelines would be in addition to the aforementioned 2010 WHO Guiding Principles, but have not yet been drafted.[26]

Moving forward, UN experts in their aforementioned statement firmly request that China respond to these continued allegations of forced organ harvesting, and to allow independent monitoring by international human rights mechanisms to ensure compliance with international human rights standards.[27]

Current Human Rights Dilemma in China

In June 2021, United Nations (“UN”) human rights experts issued an alarming statement addressing allegations of forced organ harvesting under Chinese authority.[28] The report asserts that the experts have received credible information on the forced organ harvesting of minorities and detainees in China.[29] Such information appears to illustrate that China is targeting specific ethnic, linguistic or religious minorities that are being held in detention, including Falon Gong practitioners, Uyghurs, Tibetans, Muslims, and Christians.[30]

Eleven human rights experts issued this statement jointly, including seven Special Rapporteurs of varying fields, one Chair-Rapporteur, one Vice-Chairperson, and two other human rights working group members.[31]

The experts go on to state:

“According to the allegations received, the most common organs removed from the prisoners are reportedly hearts, kidneys, livers, corneas and, less commonly, parts of livers. This form of trafficking with a medical nature allegedly involves health sector professionals, including surgeons, anesthetists and other medical specialists.”

This is not the first time that such allegations have been raised against the Chinese government.[32] In 2006 and 2007, similar allegations were made concerning China’s practice of harvesting organs from prisoners that received the death penalty.[33] China responded to international criticism by promising to move away from this practice and develop the necessary infrastructure for a voluntary organ-procurement database by 2013.[34] However, as UN experts acknowledged in their recent statement, “[d]espite the gradual development of a voluntary organ donation system, information continues to emerge regarding serious human rights violations in the procurement of organs for transplants in China.”[35]

The UN continues to be concerned by the lack of independent oversight of the organ procurement systems in China, as well as a lack of consent to donation and organ allocation on behalf of the prisoners and detainees made up of ethnic, linguistic, or religious minorities.[36]

Recommendations from Joint Studies and Non-profits

     A. Joint Study

The Joint Study is the most comprehensive document that addresses the issue of forced organ procurement.[37] This study puts forth several recommendations and frameworks to help address this human rights issue. One such framework expounded upon in the report is the current bioethical framework for obtaining organs and tissues.[38] This framework has four fundamental pillars: respect for individuals, autonomy, consent, and altruism.[39] This ethical framework helps to inform experts and policymakers in strategizing creative solutions and incentives for promoting voluntary organ donation and fair organ allocation.[40] Two main solutions have been proposed as ethical incentives for individuals to sell their organs following their natural death.[41] One such solution would be to allow individuals to enter into contracts concerning organ procurement while alive.[42] Another proposed method is the implementation of a “regulated market,” in which the “government would act as the purchaser of organs – setting a fixed price and enforcing conditions of sale.”[43]

Other recommendations made by the Joint Study include the understanding that trafficking in organs, tissues, and cells and trafficking in human beings for the purpose of the removal of organs are two very different types of trafficking and should be treated as such.[44] Likewise, in order to properly address this human rights issue, it is essential that reliable data is made available and collected.[45] There is currently very limited knowledge of the quantification of figures and trends detailing forced organ harvesting.[46] Along with reliable data collection, there is a need for traceability and independent oversight of the regulatory systems for organ procurement.[47] Additionally, increased education and media campaigns at an international level are necessary to help achieve prevention and protection of people from forced organ harvesting.[48]

     B. Nonprofits and International Tribunals

In relation to the education of forced organ harvesting and related trafficking, few nonprofits exist to currently meet the demand for increased awareness and support for surviving victims of forced organ harvesting.[49] In fact, the Coalition for Organ-Failure Options might be the only existing non-profit with the mission to “end organ trade, especially trafficking in persons for the removal or organs.”[50] The Coalition for Organ-Failure Options addresses prevention, policy advocacy, and survivor support to combat trafficking in persons for the removal of organs.[51]

Conclusions and Recommendations

In reference to the current human rights violations occurring in China regarding forced organ harvesting, the China Tribunal, an independent, non-binding people’s tribunal established to inquire into forced organ harvesting in China, issued their own recommendations in accordance with their findings published in March of 2020.[52] Along with the Tribunal’s findings that, beyond a reasonable doubt, China has been practicing forced organ harvesting for many years, the Tribunal has requested the International Court of Justice to issue an advisory opinion on the situation in China.[53] If this request were to be met with international support at the UN and ultimately granted, an advisory opinion on the matter, while non-binding, would carry substantial influence.

Moving forward, it is essential that states provide incentives for the voluntary and informed donation of human organs and to increase transparency and regulation of organ procurement and donation databases. This would help to provide more credible and easily accessible data for impartial oversight. Additionally, the creation of a binding international treaty addressing the forced procurement of organs as a human rights issue directly, along with prevention and prosecution for such violations, is integral. Lastly, increased education and activism on the forced procurement of human organs is necessary to aid in the prevention of illegal organ harvesting and protection for all, but especially vulnerable populations.

  1. Michelle Ye Hee Lee and Allie Caren, Decoding the hidden language and signs of ‘Squid Game’ for Non-Koreans, (October 22, 2021) https://www.washingtonpost.com/world/2021/10/22/squid-game-korean-meaning-gganbu-dalgona/.
  2. Id.
  3. UN Office of the High Commissioner for Human Rights, China: UN human rights experts alarmed by ‘organ harvesting’ allegations, (June 14, 2021) https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=27167.
  4. Morgan Rennie, What is Organ Harvesting?, Delta Net International, https://www.delta-net.com/compliance/modern-slavery/faqs/what-is-organ-harvesting.
  5. Paul, N.W., Caplan, A., Shapiro, M.E. et al. Human rights violations in organ procurement practice in China, BMC Med Ethics 18, 11 (2017) https://doi.org/10.1186/s12910-017-0169-x.
  6. Id.
  7. Id.
  8. Joint Council of Europe/United Nations Study, Trafficking in organs, tissues and cells and trafficking in human beings for the purpose of the removal or organs, (2009) https://rm.coe.int/16805ad1bb.
  9. United Nations Office on Drugs and Crime, Removal of Organs, https://www.unodc.org/unodc/en/human-trafficking-fund/human-trafficking-fund_projects_removal-of-organs.html.
  10. Id.
  11. Joint Council of Europe/United Nations Study, Trafficking in organs, tissues and cells and trafficking in human beings for the purpose of the removal or organs, (2009) https://rm.coe.int/16805ad1bb.
  12. Id.
  13. United Nations, Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime, OHCHR, GA/55/25, (November 15, 2000) https://www.ohchr.org/Documents/ProfessionalInterest/ProtocolonTrafficking.pdf.
  14. Joint Council of Europe/United Nations Study, Trafficking in organs, tissues and cells and trafficking in human beings for the purpose of the removal or organs, (2009) https://rm.coe.int/16805ad1bb.
  15. Id.
  16. Id.
  17. Id.
  18. Id.
  19. Id.
  20. Joint Council of Europe/United Nations Study, Trafficking in organs, tissues and cells and trafficking in human beings for the purpose of the removal or organs, (2009) https://rm.coe.int/16805ad1bb.
  21. Id.
  22. United Nations General Assembly, In Inaugural Action, Third Committee Vows to Fight Organ Trade, Urges Respect for Human Rights in Justice Administration, Approving 2 Draft Resolutions, GA/SHC/4251 (November 8, 2018) https://www.un.org/press/en/2018/gashc4251.doc.htm.
  23. United Nations General Assembly, Strengthening and promoting effective measures and international cooperation on organ donation and transplantation to prevent and combat trafficking in persons for the purpose of organ removal and trafficking in human organs, A/71/L.80 (August 4, 2017) https://undocs.org/A/71/L.80.
  24. United Nations General Assembly, General Assembly Adopts Texts Including on Human Organ Trafficking Prevention, Indigenous Peoples Enhanced Participation in United Nations, GA/11938 (September 8, 2017) https://www.un.org/press/en/2017/ga11938.doc.htm.
  25. Id.
  26. Id.
  27. UN Office of the High Commissioner for Human Rights, China: UN human rights experts alarmed by ‘organ harvesting’ allegations, (June 14, 2021) https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=27167.
  28. Id.
  29. Id.
  30. Id.
  31. See UN Office of the High Commissioner for Human Rights, China: UN human rights experts alarmed by ‘organ harvesting’ allegations, (June 14, 2021) https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=27167. (Authors: “Ms. Siobhan Mullally, Special Rapporteur on trafficking in persons, especially women and children; Ms. Tlaleng Mofokeng, Special Rapporteur on the right of every to the enjoyment of the highest attainable standard of physical and mental health; Mr. Fernand de Varennes, Special Rapporteur on minority issues; Mr. Ahmed Shaheed, Special Rapporteur on freedom of religious belief; Mr. Nils Melzer, Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment; Ms. Dubravka Simonovic, Special Rapporteur on violence against women, its causes, and consequences; Ms. Fionnuala Ni Aolain, Special Rapporteur on the promotion and protection of human rights and fundamental freedoms; Ms. Elina Steinerte, Chair-Rapporteur; Dr. Miriam Estrada-Castillo, Vice-Chairperson; Ms. Leigh Toomey, and Mr. Mumba Malila.”)
  32. Id.
  33. Id.
  34. Simon Denyer, China used to harvest organs from prisoners. Under pressure, that practice is finally ending, (September 15, 2017) https://www.washingtonpost.com/world/asia_pacific/in-the-face-of-criticism-china-has-been-cleaning-up-its-organ-transplant-industry/2017/09/14/d689444e-e1a2-11e6-a419-eefe8eff0835_story.html.
  35. UN Office of the High Commissioner for Human Rights, China: UN human rights experts alarmed by ‘organ harvesting’ allegations, (June 14, 2021) https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=27167.
  36. Id.
  37. Joint Council of Europe/United Nations Study, Trafficking in organs, tissues and cells and trafficking in human beings for the purpose of the removal or organs, (2009) https://rm.coe.int/16805ad1bb.
  38. Id.
  39. Id.
  40. Id.
  41. Id.
  42. Id.
  43. Id. at p. 31
  44. Id.
  45. Id.
  46. Id.
  47. Id.
  48. Id.
  49. Coalition for Organ-Failure Solutions, Our Work, http://cofs.org/home/.
  50. Id.
  51. Id.
  52. China Tribunal, Short Form of the China Tribunal’s Judgment, (December 2018) https://chinatribunal.com/wp-content/uploads/2020/02/China-Tribunal-SHORT-FORM-CONCLUSION_Final.pdf.
  53. Dr. Ewelina U. Ochab, United Nations Concerned About Organ Harvesting In China, Forbes, (July 8, 2021) https://www.forbes.com/sites/ewelinaochab/2021/07/08/united-nations-concerned-about-organ-harvesting-in-china/?sh=60bb97b342dd.

 

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