Stateless Crimes, Legitimacy, and International Criminal Law: The Case of Organ Trafficking
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- Francis, L.P. & Francis, J.G. Criminal Law, Philosophy (2010) 4: 283. doi:10.1007/s11572-010-9100-y
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Organ trafficking and trafficking in persons for the purpose of organ transplantation are recognized as significant international problems. Yet these forms of trafficking are largely left out of international criminal law regimes and to some extent of domestic criminal law regimes as well. Trafficking of organs or persons for their organs does not come within the jurisdiction of the ICC, except in very special cases such as when conducted in a manner that conforms to the definitions of genocide or crimes against humanity. Although the United States Code characterizes trafficking as “a transnational crime with national implications,” (22 U.S.C. § 7101(b)(24) (2010)), trafficking is rarely prosecuted in domestic courts. It has thus functioned in practice largely as what might be judged a “stateless” offense, out of the purview of both international and national courts. Yet these forms of organ trafficking remain widespread—and devastating to those who are its victims. In this article, we begin by describing what is known about the extent of organ trafficking and trafficking in persons for the purpose of removal of organs. We then critically evaluate how and why such trafficking has remained largely unaddressed by both international and domestic criminal law regimes. This state of affairs, we argue, presents a missed chance for developing the legitimacy of international criminal law and an illustration of how far current international legal institutions remain from ideal justice.
KeywordsOrgan traffickingTraffickingInternational Criminal CourtInternational criminal lawMedical tourismTransjurisdictional offenseBlack market
Organ Transplantation, Transplant Tourism, Trafficking in Organs and Trafficking in Persons for the Purpose of Organ Removal
Organ transplantation is recognized as an effective intervention for end-stage organ failure. Its use is widespread across the globe; according to the World Health Organization (WHO), kidney transplants are carried out in 91 countries (Shimazono 2007). Currently, about 100,000 solid organ transplantations are performed yearly worldwide; in 2007, there were 68,250 kidney transplantations, 19,850 liver transplantations, 5,179 heart transplantations, 3,245 lung transplantations, and 2,797 pancreas transplantations (Matesanz et al. 2009). In the United States, according to the latest data available in February 2010, 26,095 transplants were performed in the first 11 months of 2009 (OPTN 2010). In China, 164 medical institutions have licenses to perform organ transplants; up until 2009, China had carried out over 86,500 kidney transplants, over 14,500 liver transplants, nearly 900 heart and lung transplants, and more than 220 transplants of other organs.
At present, the demand for organs far outstrips the supply. In 2007, only 21,489 deceased donors were reported to the Global Database on Donation and Transplantation (Matesanz et al. 2009). In United States, as of the end of February 2010, 105,966 patients were on waiting lists for transplantation (OPTN 2010). In the United Kingdom, an estimated 9,000 patients need an organ transplant at any given time but only 3,500 transplantations were carried out in 2008. In July 2009, the UK announced plans to ban private patients from paying for organ transplants in order to address concerns about fairness of the allocation system—and to allay complaints that patients from abroad were coming to the UK to receive transplants as private pay patients (Weaver 2009). In the European Union, according to a 2007 Communication from the European Commission, there were 40,000 people on the waiting list for transplants; an estimated 10 people in the EU die every day waiting for an organ. (Shimazono 2007) Although it is estimated that 1.5 million Chinese patients need organ transplants, only approximately 10,000 operations take place annually because of the severe shortage of organ donors (Paddock 2009). With the aging of populations worldwide, increased affluence, and growth in burdens of disease such as diabetes, demand for transplantation is increasing exponentially (Jafar 2009).
Transplantation of organs is thus a life-prolonging, last resort intervention for many; but there is a grave mismatch between supply and demand. Donation rates vary widely; for example, within the EU, Spain has a donation rate of 34.6/million and Romania a donation rate of 0.5/million (Europa 2008). Many countries are only now instituting regularized systems for organ donation and allocation. Proposals to increase the supply of organs include adoption elsewhere of the presumption of consent in effect in Spain. They also include strategies of paired donation, in which patients with willing donors who are not matches for them can link up with other likewise unmatched pairs to trade for matches, and the use of biobanks to identify possible matches for patients (Forsberg et al. 2010). Proposals to allow the sale of organs (Hippen et al. 2009; Satel 2008) are more controversial for many reasons, including increased risks of trafficking (Rothman and Rothman 2006). Under these circumstances, it is understandable that patients engage in strategies to obtain organs from outside of their home jurisdictions, including both medical tourism and the purchase of organs.
So-called “organ transplant tourism” occurs when potential organ recipients cross national borders to undergo organ transplantation. Medical tourism generally occurs for many reasons, including the comparative quality of care at home and abroad, unavailability or unacceptable waiting times for care at home, and relative costs of care. Growing rates of medical tourism raise concerns about justice to patients in both home jurisdictions and jurisdictions in which the care is provided, about the ability of home jurisdictions to maintain cost and quality control over the care patients receive, and about the adequacy of informed consent across borders. Bioethicists in countries such as India voice concerns about internal brain drains and diversion of resources (Gupta 2008). Yet medical tourism seems only likely to grow. Uninsured patients in the United States may seek care abroad because it is far less expensive; although Medicare generally does not cover care received outside of the United States, some U.S. insurance programs now offer patients incentives to seek out cheaper care providers abroad (Cohen 2010). The Joint Commission on the Accreditation of Healthcare Organizations has an international division, and many facilities in countries such as Brazil, China, India, Malaysia, the Philippines, Saudi Arabia, Singapore, Thailand, and Turkey feature such JCI accreditation (JCI 2010). Countries such as India openly encourage medical tourism (Gupta 2008), and the global availability of medical services is widely advertised across the web.
Tourism for the purposes of organ transplantation raises particular concerns, however, especially when the organ donor does not come from the patient’s home country. Patients seeking transplants abroad may encounter poorer quality of care and greater risks of infection including Hepatitis B, HIV, Aspergillus, and fungal sepsis. Such very sick patients require extensive care when they return home, in addition to the lifelong anti-rejection regime faced by all transplant recipients, and may encounter obstacles to the availability of this care (Bramstedt and Xu 2007). Transplant physicians in the United States reportedly express greater moral doubts about continuing to treat patients who received their organs abroad, especially because of ethical concerns about procurement practices (Biggins et al. 2009) but also because of the possibility that antibiotic resistant infections acquired abroad may pose risks to other patients (Bramstedt and Xu 2007). Uninsured patients who can afford transplantation abroad may be unable to finance their requirements for ongoing care when they return home (Bramstedt and Xu 2007). Richer patients from abroad may divert organs from less-well-off domestic patients and utilize hospital resources that might otherwise have been available domestically (Gupta 2008). Although some transplant tourism programs transport recipient-donor pairs identified in their country of origin, others rely on overseas organ supplies (Bramstedt and Xu 2007).
By far the greatest ethical concern about transplant tourism is the victims of organ procurement itself. Living donors may be the source of kidneys, lungs, corneas, and liver lobes. The WHO estimates that about 10% of the approximately 63,000 kidneys transplanted annually from living donors have been trafficked. (Tao 2009) For many years, Nancy Scheper-Hughes, Organ Watch, Francis Delmonico, Michelle Goodwin, David and Sheila Rothman, and others have documented organ trafficking and attempted to call it to public attention (Budiani-Saberi and Delmonico 2008; Scheper-Hughes 2008; Bakdash and Scheper-Hughes 2006; Goodwin 2006; Rothman and Rothman 2006; Lawless 2004; GTZ 2004). Donors are coerced, lied to, paid little, and all-too-frequently left with permanent disabilities and without treatment. (Budiani-Saberi and Delmonico 2008; Goodwin 2006) A recent study of kidney vendors in impoverished regions of Pakistan documents the grievous consequences for their health and lives. (Naqvi et al. 2007; Delmonico 2007) The consequences for entire communities in the Punjab reportedly have been dire. (Moazam et al. 2009) Lainie Ross has held up to criticism the image of bodies of the world’s poor being harvested as natural resources—and left as waste, just as their lands and other natural resources also have been (Hippen et al. 2009). Michele Goodwin’s (2006) documentation of a “black” market in organs reveals both the exploitation and racism implicit in underground sale of organs. Reportedly, 11,000 transplants from executed prisoners were performed in China in 2006, although in 2007 China banned commercialized organ procurement and procurement from prisoners (Budiani-Saberi and Delmonico 2008).
To this point, we have elided the distinction between trafficking in organs and trafficking in persons for the purposes of obtaining their organs. In the former, organs are obtained by coercion, including payment under circumstances that would be considered coercive, and then transported for the purpose of transplant. In the latter, the movement itself of the person is coerced—through kidnapping, coerced payment, or the like—and organ removal occurs following the coerced transfer. The former represents by far the majority of the overall phenomenon of coerced organ retrieval in transplantation (Council of Europe/United Nations Study 2009). For our purposes, what matters is coercion coupled with transport, whether or not the transport occurs before or after the organ is removed from the victim; in what follows, we will refer to both the transport of organs obtained through coercion and the transport of persons for the purposes of obtaining their organs as “organ trafficking” (Declaration of Istanbul 2008). Thus understood, “organ trafficking” should not be identified with the presence of a market in organs (whether obtained from deceased or living donors), although the sale of organs is widely discouraged as violating international bioethical principles (Council of Europe/United Nations Study 2009).
Countries allegedly facilitating organ trafficking include Egypt, India, Iran, Pakistan, and the Philippines (Budiani-Saberi and Delmonico 2008). Brokers reportedly flourish in Israel and in South Africa. India recently announced breaking up a ring of illegal organ procurement that had involved 500 illegal transplants; “donors” were paid up to $2,500 for kidneys, and some were forced to donate at gunpoint (Tao 2009). “Key characteristics” of transit countries have been hypothesized to include geographical proximity to attractive destination locations, weak internal legislation or enforcement, liberal immigration policies, and an effective criminal infrastructure (Perrin 2010). Recipient countries, by contrast, are likely to be more affluent. The arrest of an alleged organ broker in the U.S. in the summer of 2009, Levy-Izhak Rosenbaum, garnered extensive publicity; Rosenbaum was accused of enticing the vulnerable to sell organs for $10,000 which he then sold for $160,000 (Halbfinger 2009).
Trafficking reportedly persists, despite the multiple international and domestic efforts at prevention and outright prohibition that we detail in the following section. The difficulties of deterring the practice are clear, given the incentives that support it (Jafar 2009). Professionals in countries where organs are procured have financial incentives to encourage the practice, as do the countries themselves. It was transplant professionals who (unsuccessfully) brought a legal challenge to Pakistan’s recent ban on commercial transplantation and on donations to foreigners from unrelated Pakistani donors. The challenge, recently rejected by the federal Shariat Court of Pakistan, rested on the claim that the prohibitions made saving lives more difficult (Noel and Martin 2009). But the commercial appeal of trafficking remains. In India, for example, the 2002 National Health Policy seeks to capitalize on attracting medical tourists by deeming services paid for in foreign exchange as export earnings (Gupta 2008). Impoverished “donors” are desperate. And the demand from wealthier patients is unrelenting, especially in countries such as Japan or Israel where there may continue to be reluctance to donate for cultural reasons. In Japan, for example, “brain death” is not recognized (WHO 2006), so deceased donor supplies are limited. In Israel, some orthodox Jews oppose organ donation; Israel has recently adopted a controversial preference in organ allocation to people with donor cards that will be implemented in 2011 (Brimelow 2009).
International Condemnation of Organ Trafficking
International efforts to combat organ trafficking have been extensive, with the WHO in the lead. In 1991, the World Health Assembly approved the WHO guiding principles on organ transplantation. Intended “to provide an orderly, ethical, and acceptable framework for regulating the acquisition and transplantation of human organs for therapeutic purposes,” these principles emphasized protection of donors through informed consent, prohibition on conflicts of interests by transplant physicians, and preferences for deceased or related donors. The guidelines explicitly prohibited the sale of organs and organ trafficking, but left methods of enforcement up to individual jurisdictions (WHO 1991). In 2004, the World Health Assembly enacted an amended version of the principles in light of global increases in organ transplantation and organ shortages. This resolution urged member states to implement effective oversight regimes and to cooperate in the harmonization of global practices. It also encouraged extending the use of living kidney donors where possible. It requested the Director-General of WHO to provide support for member states to prevent organ trafficking and to draw up guidelines to protect vulnerable groups from the practice. Finally, it urged member states to act against transplant tourism and international organ trafficking (WHA 2004).
The WHO has continued to monitor and support efforts to combat trafficking. An illustration of these efforts was the consultation meeting held with national health authorities in the western Pacific region in 2005 in Manila, a known center of trafficking (WHO 2006). The report from the meeting urged transparency about transplantation practices—including data about the country of origin of donors and recipients—as necessary for “accountability and traceability.” Although resoundingly condemning the commercial sale of organs, the report permitted payment of expenses to donors, including health care and lost income, and “modest nonmonetary assistance.” Any support, however, was to be transparent and according to host country regulation. Recipients of organs were to be held responsible for knowing whether their organs came from legitimate sources—and their countries of origin were to take measures to prevent exploitation of donors from other countries or breaches of other countries’ organ donation rules.
In 2000, the United Nations issued a protocol to prevent, suppress, and punish trafficking in persons as a supplement to the Convention against Transnational Organized Crime (United Nations 2000). The Protocol’s definition of trafficking in persons explicitly includes removal of organs and explicitly rejects consent of the victim to exploitation as irrelevant. States parties are urged to protect victims of trafficking to the extent permissible under domestic law and are required to establish comprehensive policies to prevent and combat trafficking. As of February 2010, there were 117 signatories to the protocol, including Egypt, India, Israel, the Philippines, and the United States, but notably not either Iran or Pakistan. It is also worth noting that the United States explicitly reserved the right to assume obligations under the Protocol in a manner consisted with federalist principles.
International medical associations have been active as well in condemning organ trafficking. A 2008 summit convened by the Transplantation Society and the International Society of Nephrology in Turkey (notably another location identified with trafficking) resulted in the Declaration of Istanbul. The Declaration condemns organ trafficking and transplant tourism as violations of the principles of equity, justice, and respect for human dignity and recommends that they be prohibited. In the judgment of the Declaration, practices that induce vulnerable individuals or groups (such as illiterate and impoverished persons, undocumented immigrants, prisoners, and political or economic refugees) to become living donors are incompatible with the aim of combating organ trafficking, transplant tourism, and transplant commercialism. Countries were urged to implement programs to reduce rates of organ failure and to increase legitimate methods of donation (Declaration of Istanbul 2008; Steering Committee of the Istanbul Summit 2008).
These efforts—of the WHO, the United Nations, and international societies—lack direct enforcement mechanisms. They remain hortatory at best. As we shall now see, they have been met with limited implementation success at both domestic and international levels.
Domestic Enforcement: Limited Implementation of Bans on Organ Trafficking
Within Europe, legal instruments such as the European Charter on Fundamental Rights (article 3), the 1997 Oviedo Treaty on Human Rights and Biomedicine (article 21), and the 2005 Convention on Action against Trafficking in Human Beings which entered into force in 2008 (Council of Europe 2005) condemn organ trafficking (Europa 2009). Presumably, suit could be brought in the European Court of Human Rights alleging organ trafficking as a violation of the Charter; there are no reported decisions to this effect, although in a case involving sex trafficking a 2010 judgment of the ECHR holds that such human trafficking violates Article 4 (prohibition of slavery, servitude and forced labor) of the European Convention on Human Rights (Farrior 2010). A recent United Nations report describes the “slow evolution” of Europe’s criminal justice response to the UN Trafficking Protocol. Although it analyzes patterns of sex and labor trafficking both to and within Europe, and identifies Central Europe and the Balkans as origins for trafficking victims (Bulgaria and Romania are described as “hotspots”), the report does not even consider the issue of organ trafficking (United Nations Office on Drugs and Crime (UNODC) 2009). In March 2009, in light of these concerns that Europe was lagging in enforcing the UN Trafficking Protocol, the European Commission issued a framework decision for combating trafficking generally, but without mentioning organ trafficking specifically.
At present, Europe faces severe organ shortages, wide variations in donation rates and in cultural views about donation, as well as ongoing efforts to understand the application of the principle of free movement of goods and services within the EU. As a result, in 2007 the European Commission recommended further action to the Council of Europe and the European Parliament, including development of a legal instrument for authorization of transplantation centers, the establishment of conditions of procurement and systems of traceability, largely for safety reasons but indirectly as a method to combat trafficking (Europa 2009). In April, 2008, the European Parliament adopted the resolution, which included efforts to improve the supply and distribution of organs. The resolution also called on member states to “fight” against organ trafficking with measures such as punishment of health care providers who participate in trafficking and “making every effort to discourage potential recipients from seeking trafficked organs and tissues.” With regard to the latter, the resolution “stresses that that consideration should be given to making EU citizens criminally liable for purchasing organs inside or outside the EU.” Finally, the resolution expresses regret “that Europol did not come up with a survey on organ selling and trafficking because it claims that there are no documented cases,” despite United Nations evidence to the contrary (European Parliament 2008).
In the United States, the National Organ Transplant Act of 1984, Pub. L. 98-507, forbids any sale of organs that affects interstate commerce; the penalty is 5 years imprisonment and/or a $50,000 fine. The Trafficking Victims Protection Act, Pub. L. 106-386, first passed in 2000 and last reauthorized in 2008, applies to slavery, sex trading and forced labor; organ trafficking is not specifically included in this definition (22 U.S.C. § 7102(8) (2010)). Instead, the Act’s primary focus is the illicit trade in sex and in illegal immigration. This gap means that the benefits extended in the United States to victims of severe forms of trafficking generally, including Medicaid, would not be available to victims of organ trafficking in the United States (22 U.S.C. § 7105(b)(1)(A) (2010)). It also means that the measures required of foreign governments who receive non-humanitarian foreign aid to eliminate severe forms of trafficking are not explicitly extended to trafficking in organs (22 U.S.C. §7106 (2010)). Nor is the authorization for the President to use emergency powers to punish traffickers (22 U.S.C. § 7108 (2010)). Sex tourism abroad with children is also explicitly criminalized for persons residing in the United States (18 U.S.C. § 2423(c) (2010)).
A single arrest for an attempt to sell an organ in New York in the summer of 2009 drew considerable publicity in the United States (Halbfinger 2009). However, the difference between domestic enforcement regimes for sex trafficking against children and for labor trafficking of illegal immigrants, and the enforcement regime for international organ trafficking remains noteworthy. Perhaps the explanation is that people who engage in illicit sex with children abroad and people who use coercion to bring illegal immigrants into the US are not themselves sympathetic victims. In comparison, people who purchase organs abroad and who return to the US as transplant recipients may be viewed as desperate victims themselves, taking any steps they could to save their own lives.
In some of the countries that have notoriously been centers of organ trafficking, recent bans have been enacted. Egypt, for example, has recently prohibited the sale of organs, enacted punishment for trafficking, and established a procedure for organ donation. According to WHO (2010), it is hoped that these measures will reduce incentives for trafficking in a jurisdiction that has been a hub. Pakistan’s law banning organ sales was recently upheld in the Shariat Court, despite a challenge from transplantation professionals (Noel and Martin 2009). Japan has investigated alleged tourism to China for organ transplantation (Jafar 2009). A ban on organ sales has also been enacted in the Philippines (Noel and Martin 2009). Moves to increase organ donation in countries such as Israel that have been trafficking hubs have also been cited as strategies that may reduce demand (Noel and Martin 2009).
Nonetheless, incentives for both purchase and sale remain in affluent and impoverished areas of the world. The growing demand of individuals from wealthier states seeking organs places pressure on less well off countries that seek to restrict their own residents from selling organs. Ironically, prohibitions on the sale of organs within wealthy nations such as the United States may only increase these pressures by contributing to the disparity between demand and local supply. Domestic regulatory restrictions are thus likely to remain uneven and weakly enforced given the combination of foreign need and money involved in organ trafficking.
Thus international efforts at prevention condemn the practice of trafficking but lack an effective enforcement regime. Individual countries remain ambivalent about enforcement; this is not surprising, given the incentives supporting trafficking that we have documented. Moreover, trafficking is difficult to control within any single jurisdiction. Trafficking is commonly a transboundary activity, potentially involving multiple jurisdictions: the location of organ procurement, the location of the recipient, the place where actual transplantation occurs, and the location of any organ broker (Shimazono 2007). To date, despite international appeals, its punishment has remained largely stateless in the sense that none of these potentially relevant jurisdictions has pursued enforcement in any significant way. It seems reasonable, therefore, to entertain the possibility of subjecting the international trade in organs to an international criminal law regime. This possibility, however, is subject to the concern that organ trafficking is a transboundary rather than a truly international offense. We address this concern below, arguing that transboundary offenses should be regarded as offenses of international importance and outlining some problematic effects of restricting the jurisdiction of the ICC to a limited set of what are judged to be international crimes.
The Jurisdiction of the International Criminal Court and Organ Trafficking
The jurisdiction of the International Criminal Court is limited at present to three crimes: genocide, crimes against humanity, and war crimes. While the conditions for any of these three might be met in a case of organ trafficking, as allegations in the former Yugoslavia contended (Del Ponte and Sudetic 2008), it is unlikely. Limitations of ICC prosecution to “grave” offenses committee by state leaders may further curtail the possibility that organ trafficking would come within the purview of the ICC.
The crime of genocide requires the intent to destroy, in whole or in part, a “national, ethnical, racial or religious group.” (Rome Statute of the International Criminal Court 2002, Art. 6) The destructive actions may include killing, causing bodily harm, and forcible transfer—an actus reus condition that organ trafficking clearly could meet. The mens rea required for the crime of genocide, however, is the intention of group destruction, a requirement unlikely to be met when organ trafficking simply preys on impoverished victims without regard to their group status. There have been, however, allegations of genocidal organ trafficking in the former Yugoslavia; former prosecutor Carla Del Ponte has charged that 300 ethnic Serbs and Roma were trafficked to Albania for their organs (Del Ponte and Sudetic 2008). Notably, the crime of genocide does not require that the actions in question cross national boundaries or occur in more than one nation; genocide need not, therefore, be a transboundary crime in order to come within the jurisdiction of the ICC.
Under the Statute of Rome, crimes against humanity include many types of actions that could be represented by organ trafficking: killing, extermination, enslavement, forcible transfer, or other similar inhumane acts intentionally causing great suffering or serious injury. Although crimes against humanity must be widespread or systematic, like genocide they need not cross national borders. These acts, however, must be part of a widespread or systematic attack against a civilian population—and must be performed with knowledge of the attack (Rome Statute of the International Criminal Court 2002, Art. 7). Organ trafficking as a series of individual coercive transactions is unlikely to fall within these conditions. Recent decisions of the ICC have further complicated the likelihood that organ trafficking will come within the purview of “crimes against humanity.” Article 17(2)(d) of the Statute of Rome provides that a case shall be found “inadmissible” if it is not judged to be of “sufficient gravity”; in 2006, the ICC’s Pre-Trial Chamber I interpreted this provision to require that cases should be initiated only against “the most senior leaders suspected” of responsibility for the crimes at issue (May 2010). Senior leaders are unlikely to be involved directly in organ trafficking. Moreover, “attack against a civilian population” is defined to require “a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.” (Rome Statute of the International Criminal Court 2002, Art. 7(2)(a)). It remains unclear whether in the case of widespread acts against a civilian population this definition requires official state policy or mere complicity, as with police looking the other way (May 2010; Paust 2010; Schloenhardt 2005). The former, but not the latter, is unlikely to be implicated in organ trafficking.
War crimes under the Statute of Rome are defined in terms of the Geneva Convention (Rome Statute of the International Criminal Court 2002, Art. 8), and are the least likely of the crimes within the ICC’s jurisdiction to involve organ trafficking.
The ICC was conceived in light of the history of the Nuremberg trials and the use of international criminal tribunals to deal with widespread atrocities in failed states. It is thus not surprising that genocide, crimes against humanity, and war crimes were the crimes included within its jurisdiction. Nonetheless, it remains unclear whether the ICC will be a successful model for the development of international criminal law regimes. It has experienced difficulty in bringing alleged offenders before the Court, in finding witnesses, and in bringing prosecutions to completion. As a flagship for the development of a jurisprudence of international criminal law, the ICC is at best problematic (Francis and Francis 2009).
The Assembly of States Parties has convened a Review Conference for the Court in June of 2010. Plans for the Conference include “stocktaking” (ICC 2009a, b). A number of amendments to the Rome Statute have been proposed for discussion. One that has been proposed, but that may only be referred to a working group or for further study, is including international drug trafficking within the jurisdiction of the ICC. The proposers of the amendment, Trinidad and Tobago and Belize, argue that drug trafficking is a crime that “is transboundary in character” but that places “inordinate burden on the judicial and law enforcement” of many states (ICC 2009a). Notably, these justifications cite the transboundary aspects of trafficking and the difficulties of enforcement within individual jurisdictions, not the supposedly international aspect of the crime. Although organ trafficking and other forms of human trafficking are similarly transboundary in character, they were not included within the proposal. We argue below that this may be a mistake: organ trafficking and other forms of trafficking in persons cause human misery on the scale of crimes against humanity and are difficult to address at the level of individual states.
Organ Trafficking and International Criminal Law
Organ trafficking illustrates a continuing problem that has been inadequately addressed by both international and domestic criminal law. This is thus an area that might be regarded as one of imperfect or “partial compliance” justice. As Buchanan (2004) has argued, in such contexts there may be no clear ideal solution, but the need to build institutions before justice can be improved. Unfortunately, the ICC appears to have been in some ways an effort to impose a model of the requirements of ideal justice in the most devastating of non-ideal circumstances (Francis and Francis 2009). Another strategy might have been to consider whether international courts—either new courts on the regional or global level or the ICC itself—might have been constructed to address transboundary crimes of international concern that avoid intra-national enforcement such as organ trafficking (Schloenhardt 2005). Several arguments might be offered in support of this strategy.
Consider, first, the salience of court decisions. Transnational injustices such as organ trafficking cause harm to people in many countries every year. Yet these persistent injustices remain in the penumbra of both international and domestic law as they are constructed today. If an international court—either the ICC itself or an international court established specifically to address trafficking—were to focus international judicial attention on this exploitation of persons by calling effective judicial attention to a problem that can only be addressed effectively by international action, then the court could enhance the salience of the issue.
Or consider the efficacy of enforcement regimes. Well intentioned declarations such as the efforts of the WHO or the Declaration of Istanbul are very much exhortations rather than carrying the imprimatur of an international judicial body. States with vulnerable populations have taken action to protect their citizens from groups that prey on the poor to secure organs. But the better off states have chronic and serious imbalances between seriously insufficient local supplies and expanding demands from an aging population. Their failure to monitor, develop, or enforce trafficking restrictions—except the sale of organs between their own residents—threatens to undermine nascent efforts in donor nations to restrict trafficking. The establishment of an effective international enforcement regime might help to counter these pressures. It might also suggest that the role of international criminal law is not limited to the prosecution of leaders of failed states but might be extended to grave problems that are not, or cannot, be effectively handled within the boundaries of individual states, even reasonably well functioning ones.
Consider, finally, how the legitimacy of a regime of international criminal law might be affected by the development of a system to address transboundary offenses such as organ trafficking. Gaining legitimacy has been a persistent difficulty for the ICC, perhaps because of the quite limited range of offenses and offenders that it addresses. Development of an international enforcement regime that deals with more ubiquitous harms in a manner that enhances efficacy and salience might help to address this legitimacy problem. Salience and efficacy, in short, can help to bolster needed legitimacy.
To be sure, progress towards justice could be achieved in other ways as well. At the national level or even international level, problems in the supply of organs might be addressed, although scarcity appears ineluctable at present. Appropriate regulatory regimes might be established to effectively discourage or restrict citizens from leaving their own countries in search of transplantable organ elsewhere. But, as we have seen above, in the states that “export” individuals in search of organs there is a reluctance to condemn individuals or to criminalize what they have done even if it contributes to a practice that inflicts great harm.
A criticism of this approach is that the development of international criminal law should be reserved for what have been traditionally regarded as “international” offenses—and then perhaps only for the most serious of these—rather than transboundary offenses. At the time the ICC was established, a determination was made to exclude drug trafficking from its jurisdiction on this basis. Schloenhardt outlines several primarily practical reasons for this decision: concerns that the ICC would be overwhelmed by cases and would lack the functionality to deal with them, concerns about the sensitivity and confidentiality of investigations, and the determination that these offenses could be more effectively prosecuted within domestic legal regimes (Schloenhardt 2005).
These practical justifications appear weak for the case of organ trafficking. We have argued that in the case of organ trafficking, domestic legal regimes have proved ineffective and there is little reason to believe enforcement is likely to improve. Indeed, we might postulate that the presence of a credible international enforcement regime could prove both a spur and a complement to the strengthening of domestic enforcement regimes, as hypothesized by Smith (2009) for the prosecution of organized crime in sex and labor trafficking and Jalloh (2009) for the exercise of ICC jurisdiction in several cases in Africa. As for the difficulties of judicial and investigatory capacity, the ICC’s overall structure requires it to start with the most serious cases and to defer to bona fide domestic prosecutions (Rome Statute of the International Criminal Court 2002, Art. 17).
On the positive side, common justifications for including an offense within the regime of international criminal law include whether the international community has been affected, whether customary international law has been violated, whether international peace and security are threatened, whether the offense is sufficiently grave, and whether enforcement is unlikely where the offense has occurred (Greenawalt 2010; Sadat 2010; Ohlin 2009; Schloenhardt 2005) Unless these justifications are interpreted to restrict the purview of international criminal law to what it has historically encompassed—and it must be admitted that organ trafficking has not been explicitly within the historical reach of customary international law, although as we have described it has more recently been condemned by many international instruments—it is unclear why they apply only to the crimes singled out for ICC jurisdiction in the Statute of Rome and not to transboundary offenses such as organ trafficking or other forms of trafficking in persons. The fundamental rationale for these justifications is that in order to be a matter for international criminal law, a crime must be a matter of genuine international concern (Sadat 2010). Horrific acts such as genocide or crimes against humanity as defined in the Statute of Rome would seem to meet this standard. However, it is unclear why transboundary acts—acts that originate in one state but flow into another, could not meet it as well, if they were sufficiently serious and unlikely to be enforced domestically. Surely, the level of human misery caused by organ trafficking—as well as by other forms of human trafficking—is comparable to that of many examples of genocide or crimes against humanity. Nor is there a theoretical reason to believe that genocides or crimes against humanity are any less—or for that matter more—likely to be addressed by domestic legal regimes.
Finally, whether it is practical to expect the development of such a global enforcement regime remains unclear. The pressures on domestic legal regimes may simply be too great. States differ in their domestic laws with respect to organ retrieval and transplantation; although there are disagreements about the permissibility of a market in organs, however, there is general condemnation of organ trafficking in the sense we are using the term here. There is general agreement, moreover, that organ trafficking is a grave international problem that remains under-addressed by both the exhortations of international organizations such as the WHO and by the domestic laws of individual states. The failure to recognize the international nature of such serious transboundary offenses represents a missed opportunity for the development of support for international criminal law.