Conclusion
Exploitation of workers in the production of goods and the delivery of services is widespread around the globe, and has become almost common knowledge. However, the mass media now regularly report30 cases in many other industries, including in informal and criminal ones. This shows that trafficking for forced labour can, and does, occur in any sector of both the regular and the shadow economies.
Every situation of exploitation, no matter how severe or slight, requires investigation into those that perpetrate it, and a remedy for the workers that endured it. Focusing only on the most extreme cases will do little to alleviate a problem that has become somewhat pervasive.
The fact that the conditions of one worker are not as exploitative as those endured by another worker should not detract from the fact that they still are not decent work, and that the actors that exploit the workers are at odds with the law. The varied degrees of exploitative conduct have been described as the ‘continuum of exploitation’, and some argue that this concept ought to be accepted as the most accurate description of reality, rather than to attempt to find a narrow definition of exploitation.
Notes
1 Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the UN Convention on Transnational Organized Crime (UN General Assembly, New York, 15 December 2000).
2 Skrivankova, K., Between Decent Work and Forced Labour, Examining the Continuum of Exploitation (York, UK: Joseph Rowntree Foundation, 2010).
3 Ibid.
4 Benton, M., Spheres of Exploitation, Thwarting Actors Who Profit From Illegal Labor, Domestic Servitude and Sex Work (Washington, DC: Migration Policy Institute, 2014), p. 4.
5 It is important to note that prostitution is not necessarily a form of criminality per se, but activities linked to prostitution often are criminalised – such as soliciting or kerb crawling.
6 Legislation that applies this principle is often referred to as the Nordic model. It is important to note that, across Europe, States have adopted different approaches to regulating the sex industry.
7 For instance, the US legislation makes it a criminal offence to profit from forced labour. The EU Trafficking Directive 2011/36/EU also provides (Article 5) for criminal liability of a legal person for benefiting from trafficking; but the transposition of this provision on the national level in EU Member States has been haphazard.
8 The Palermo Protocol, Article 3(b); Council of Europe Convention on action against trafficking in human beings, Article 4(b); Directive 2011/36/EU, Article 2(4).
9 Skrivankova, K., Between Decent Work and Forced Labour, Examining the Continuum of Exploitation (York, UK: Joseph Rowntree Foundation, 2010).
10 ILO Convention No. 29 (International Labour Organization, C29, 28 June 1930).
11 www.ilo.org/wcmsp5/groups/public/—ed_norm/—declaration/documents/publication/wcms_203832.pdf.
12 Ibid.
13 www.ilo.org/wcmsp5/groups/public/—ed_norm/—declaration/documents/publication/wcms_105023.pdf.
14 Severe Labour Exploitation: Workers Moving Within or Into the European Union. State’s Obligations and Victims´ Rights (European Union Fundamental Rights Agency, 2015), p. 10.
15 http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32009L0052&from=en.
16 Article 2(i) –ibid.
17 www.gesetze-im-internet.de/englisch_stgb/index.html.
18 Benton, M., Spheres of Exploitation, Thwarting Actors Who Profit From Illegal Labor, Domestic Servitude and Sex Work (Washington, DC: Migration Policy Institute, 2014), p. 4.
19 http://stronger2gether.org/product/tackling-hidden-third-party-labour-exploitation-toolkit-for-employers-and-labour-providers/.
20 http://stronger2gether.org.
21 RACE in Europe project training, 26.5.2014, www.raceineurope.org.
22 Lancashire Evening Post, 18 December 2013, as quoted in Trafficking for Forced Criminal Activities and Begging in Europe (London: Anti-Slavery International, 2014).
23 Not all cases of trafficking involve the crossing of an international border.
24 Trafficking for Forced Criminal Activities and Begging in Europe (London: Anti-Slavery International, 2014), p. 89.
25 Ibid.
26 The Council of Europe Convention on Action against Trafficking in Human Beings, 16 May 2005, CETS 197.
27 The EU Trafficking Directive 36/EU/2011.
28 www.europol.europa.eu/sites/default/files/publications/trafficking-in-human-beings-in-the-european-union-2011.pdf.
29 R. v. N; R. v. LE [2012] EWCA Crim 189, [90]–[91].
30 For example, Al Jazeera English showed a documentary on slavery in the UK on 24 April 2016, at 21:00 CET.
10
Human trafficking for the purpose of organ removal
Marta López-Fraga, Kristof Van Assche, Beatriz Domínguez-Gil, Francis L. Delmonico and Alexander M. Capron
Introduction
Organ transplantation is the best, and frequently the only, life-saving treatment for end-stage organ failure. In 2013, 117,733 solid organ transplants were performed worldwide, including 78,952 kidney and 25,029 liver transplant procedures. It is estimated that the number of organ transplants performed annually represents less than 10% of the global need.1 This situation of acute organ shortage has led to the emergence of human trafficking for the purpose of organ removal (HTOR) and, more broadly, to the purchasing of organs from poor and vulnerable people. According to estimates by the World Health Organization (WHO), such practices account for between 5 and 10% of all transplants performed worldwide.2
HTOR is fuelled by the demand of desperate patients willing to pay to obtain a kidney or, less frequently, a liver lobe from a living donor. Victims of HTOR are vulnerable persons induced to sell an organ through the use of fraudulent or coercive means, or through abuse of their financial desperation. Depending on the geographical location and the availability of organ vendors, they receive anywhere between US$500 and $10,000; whereas recipients are charged between US$100,000 and $200,000 for the organ transplant surgery and hospitalisation.3 Unscrupulous criminal networks generate illegal profits from illicit organ transplants totalling between US$600 million and $1.2 billion per year – making HTOR one of the most lucrative illegal activities.4
Although HTOR may take the form of intra-State trafficking, it usually has a transnational scope. The movement of persons who are seeking to obtain a commercial transplant or who are being trafficked for their organs across jurisdictional borders is commonly termed ‘transplant tourism’.5 Transplant tourism was first reported in the 1980s, and typically involves the movement of recipients from wealthy countries to developing countries, where the vulnerable and impoverished serve as the source of transplantable organs, and where the surgical procedure is undertaken. Countries of origin of transplant tourists include Australia, Canada, Japan, South Korea, the United States and countries in the Middle East and Western Europe. The most common destinations are China, Egypt, India, Iraq, Pakistan, the Philippines and countries in Central and South America and Eastern Europe.6 Recently, other forms of transplant tourism involving HTOR have emerged. Frequently through the use of false promises, coercion, or fraud, prospective living ‘donors’ from developing countries are transferred to the country of residence of the intended recipients, where the organ removal and subsequent transplantation occur. On other occasions, both ‘donors’ and recipients travel from the same or from different countries to the country of destination, where the surgery is undertaken (see Figure 10.1). New forms of transplant tourism are emerging in which prospective ‘donors’ and recipients falsely present themselves as having a biological or other acceptable relationship; and even in established transplant centres, current screening mechanisms often fail to detect the lie.7
Figure 10.1 Four modes of transplant tourism
In Figure 10.1, Shimazono (2007) illustrates four modes of transplant tourism.8 Mode 1: A recipient travels from Country B to Country A, w
here a paid ‘donor’ and the transplant centre are located; Mode 2: A paid ‘donor’ from Country A travels to Country B, where a recipient and the transplant centre are located; Mode 3: A paid ‘donor’ and a recipient from Country A travel to Country B, where the transplant centre is located; Mode 4: A paid ‘donor’ from Country A and a recipient from Country B travel to Country C, where the transplant centre is located.
HTOR differs from other forms of trafficking in several ways, including the operational and geographical complexity of the trafficking networks, the serious violation of the victim’s physical integrity and the critical involvement of a range of healthcare professionals and facilities. In this chapter, we will review the peculiarities and characteristic features of HTOR and related activities, providing recommendations to combat these crimes.
International legal framework
HTOR, which is outlawed in a number of international instruments,9 involves a number of factors familiar to those who study THB – beginning with the three-part definition of act, means, and purpose, as set forth in the Palermo Protocol. The definition’s first element – for HTOR as for all trafficking in persons – is established by demonstrating “the recruitment, transportation, transfer, harbouring or receipt of persons”. The ‘means’ used to carry out such an act are described in sweeping terms, involving using or threatening to use ‘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 a third party to achieve control over the victim’. The final element is the exploitation of the person by ‘the removal of organs’; a late addition to the Protocol.
In line with the general framework of human trafficking law, the Palermo Protocol makes clear that victims should be protected from prosecution or punishment, and be provided protection and support. In the context of organ removal, this implicates medical as well as social and psychological services. Yet, notwithstanding this obligation, the focus of human trafficking law remains on sex and labour exploitation, and “adequate resources have not been committed (either at the international or national level) to provide support services to victims of HTOR”.10
Several aspects of the law on HTOR bear particular emphasis. First, although many people who are induced to allow removal of an organ do so for a (small) payment, Article 3(b) of the Protocol explicitly states that “the consent of a victim of trafficking in persons … shall be irrelevant”, where any of the means set forth in the definition have been used. Although some cases that begin with consent eventually involve coercion or abduction, the main route for proving the means in cases of organ purchases involves the difficult task of demonstrating that fraud or deception was utilised, or that the broker abused the seller’s “position of vulnerability”, the definitional phrase that was least well developed in the preparation and adoption of the Protocol. Second, persons subject to prosecution include those who aid or direct others in the commission of these offences – which is characteristic of transplant-related crimes that involve interaction of many technically qualified persons, including physicians and nurses.
Despite the Protocol’s widespread acceptance, “HTOR continues to have trouble gaining traction as a recognised transnational criminal norm”.11 Further, due largely to the difficulty of proving that an organ removal resulted from a means prohibited by the Protocol, the framework has not provided the basis for many successful prosecutions.12
The earliest case, JA v. State of Israel (2007), involved two Israelis who were prosecuted for HTOR for transporting four Arabs to the Ukraine, where a kidney was removed; a fifth person was at the airport ready to leave when the defendants were arrested.13 The victims were deceived as to the risk of the procedure, defrauded of all or part of the payments they had been promised, and physically coerced to go forward with the procedure. The Haifa District Court, in accepting the defendants’ plea bargain, described the case as factually and legally complicated, and noted the lack of legal precedent. The strong factors for the prosecutor were the defendants’ direct, clinical involvement with the victims, the proof of their deception and the international transportation of the victims, which brought the actions into line with the common understanding of trafficking. The main defendant admitted four counts of trafficking and one of attempted trafficking, as well as charges of deceit, causing injury and violating the physicians’ ordinance; he was sentenced to four years’ imprisonment, with a suspended sentence of three years that would be imposed if he committed a trafficking offence within three years of his release. The other defendant received 20 months in prison and a suspended sentence of 12 months.
By far the largest HTOR prosecution is the famous Medicus Clinic Case, brought by the European Union Special Prosecution Office in Kosovo in 2010 against seven persons, five of whom were convicted in April 2013.14 In November 2015, the Court of Appeals sentenced the two main defendants to eight years’ imprisonment.15 During 2008, a network of transplant surgeons, anaesthesiologists, urologists and other professionals and organ brokers recruited about 30 people from Kazakhstan, Moldova, Russia and Turkey with false promises and force, and transported them to the Medicus Clinic in Pristina for the removal of their kidneys. (This criminal activity may have built on the trafficking activities of the Kosovo Liberation Army, which is alleged to have transported hundreds of Serbian prisoners at the end of the civil war in the former Yugoslavia in 1999 to Albania, where they were killed and their organs removed and sold.16) Meticulously collected evidence allowed the prosecutors to link the victims’ travel records with the surgical records at the clinic, and to show that the knowledge or contact with the victims of those defendants who were convicted was sufficient to establish the elements of the crime.
Most prosecutions for transplant-related crimes – for example, in India, Israel, Pakistan, Singapore, South Africa, Spain, the UK and the USA – have been brought under statutes that outlaw paying persons (or the families of deceased persons) for an organ; these statutes do not require proof of coercion, deception, abuse of authority or exploitation of vulnerability. In 2014, the Council of Europe adopted the Convention against Trafficking in Human Organs (THO) that complements the HTOR framework.17 Rather than aiming solely to protect individuals from exploitation, the Convention criminalises organ sales in order to safeguard public trust in the integrity of the organ donation system by reinforcing the underlying principles of altruism, non-commercialism and fairness. Criminal activity under the Convention revolves around the illicit removal of organs – which can include without an individual’s consent, as well as when consent is obtained through payment; the instrument also reaches illicit activities (such as payment for, or diversion from, legitimate channels of distribution) involving organs from deceased persons.18 Further, THO explicitly covers the knowing use of an illicitly obtained organ; which makes it easier to prosecute medical professionals, such as a surgeon who transplants such an organ, who are somewhat distant from the steps taken to obtain an organ vendor. In countries that have adopted legislation under both the Palermo Protocol and the THO Convention, the same acts could give rise to prosecution under both. When organ sales are involved, it will generally be easier to make out organ trafficking; but in many jurisdictions, human trafficking statutes allow for more severe punishment.
Actors and modi operandi of HTOR networks
This section reviews some of the main actors involved in HTOR networks and their modi operandi. The relationships among the different actors are complex and may vary, with some individuals occasionally acting in multiple roles. Based on available sources, key actors include the following.
Brokers
Persons generally referred to as brokers, middlemen, co-ordinators, kidney hunters or intermediaries are those who connect recipients and victims by facilitating commercial transplantations and arranging prices. They sometimes travel extensively to organise the most lucrative deals, make strategic decisions for the network and usually co-ordi
nate logistics, such as enrolling victims and recipients, recruiting surgeons, arranging travel and accommodation, preparing fraudulent consents and declarations, making financial transactions and medical arrangements (such as setting up makeshift transplant units and tissue-typing laboratories) and keeping medical records.19
Local recruiters
Local recruiters find and identify the victims. They generally come from the same socio-economic background as the persons they seek to recruit and work in their own country or, less often, across borders in countries with shared or similar languages.20 They may work on their own or be part of national/local networks.
Local recruiters receive a commission per successful recruit and often operate in a hierarchical structure – covering a designated geographic area and engaging informants and scouts, who are paid a small fee for their assistance. Some are former victims (sometimes forced to recruit new victims in order to receive the payment promised for their own sold kidney) or family members of the victims,21 and on occasion, they act under coercion.
Recruiters may also act as enforcers: carrying out other tasks to ensure that a victim, once identified, goes through with the donation by means of force, threat or other forms of coercion.
Healthcare professionals
Different categories of healthcare professionals are required in HTOR networks – including nephrologists and hepatologists, transplant surgeons and anaesthesiologists – both to evaluate donors and recipients and to carry out transplants. Participants may include nurses and others to assist the surgical team and provide post-operative care, and laboratory and technical personnel to perform ancillary medical tests. (An opposite role for medical professionals, in detecting and preventing HTOR, is discussed below.)
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