Statement by Joy Ngozi Ezeilo, the Special Rapporteur on Trafficking in persons, especially women and children at the 68th session of the General Assembly, Third Committee Item 69 (b)

25 October 2013
New York

Mr. Chairperson, Distinguished Representatives, Delegates and Observers,

I would like to thank the Third Committee for this opportunity to present my report, which focuses this year on the issue of trafficking in persons for the removal of organs. 

As Special Rapporteur on trafficking in persons, especially women and children, my mandate includes, among others, promoting the prevention of trafficking in persons in all its forms, including the removal of organs as a form of exploitation associated with trafficking. The acute shortage of organs for transplantation worldwide, and the mismatch between the growing demand for organ transplants and strict limits on available supply is the root cause of many of the legal, ethical and human rights issues that arise around organ transplantation. I therefore dedicated my annual thematic report this year to the issue of trafficking in persons for the removal of organs in order to examine the exploitation of persons who are compelled by need or by force to provide organs for transplantation to people within their own countries or abroad, and to share my findings and offer recommendations for States and stakeholders assist combating this form of trafficking in persons in effective and sustainable manner.

Trafficking in persons for the removal of organs is a real problem that occurs oftentimes. Trade in organs sharply reflects economic and social divisions within and between countries. Whereas recipients are generally independent and wealthy persons, victims of this phenomenon are inevitably poor, often unemployed and with low levels of education, rendering them vulnerable to deception about the nature of the transaction and its potential impacts. While trafficking in persons for the removal of organs can occur within a single country, it may involve most commonly potential recipients travelling to another country for a transplantation that would be unlawful or otherwise unavailable at home (known as “transplant tourism”).

As a fundamental starting point, my report underscores that the difference between trafficking in organs and trafficking in persons for the removal of organs, with the latter a subset of the former to be largely semantic, given that organs are not moved or traded independently of their source. Rather, the source is moved or positioned in such a way as to make transplantation possible. Thus, it is more accurate to characterize the practice described above as “trafficking in persons for the removal of organs”.

My report highlights international responses to trafficking in persons for the removal of organs. Initial action around trafficking in persons for the removal of organs was largely initiated by medical and transplant communities, which have been central to identifying the existence of a problem and developing standards and protocols for practitioners. However, the most significant treaty on the subject to date is the the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime which includes removal of organs as a form of exploitation associated with trafficking.

In my report I also briefly discussed existing regional responses to trafficking in persons for the removal of organs. With a few exceptions, regional intergovernmental responses to trafficking in persons for the removal of organs have been limited to the European system, including the 2013 draft Council of Europe Convention against trafficking in human organs. While emphasizing this initiative as a positive and encouraging development, I have suggested in my report that it addresses the potential issue of non-definition of trafficking in organs and includes stronger provisions relating to victim protection and support in comparison with those available to victims of trafficking under existing international law, including the Council of Europe Convention on Action against Trafficking in Human Beings.

Concerning national responses I have highlighted in my report some legislative measures taken by States to address trafficking in persons for the removal of organs directly and indirectly. Most States have incorporated into their national legislation the relevant international and regional standards that prohibit buying and selling of human organs. The United Nations Convention against Transnational Organized Crime and its Protocol on Trafficking in Persons requires the State Parties to criminalize trafficking of persons for a range of purposes including for organ removal. Most countries have enacted such laws but not all have included Trafficking in persons for the purpose of removal of organs within the scope of these laws. Moreover, several States attached extraterritorial provisions to national laws given that the sale and purchase of organs oftentimes involves countries of origin and destination. Some countries of destination have put in place additional legislative measures aimed at combating transplant tourism (for example, restricting participation in the official transplantation programs to nationals).

Outside of the rules and standards that apply to trafficking in persons, the international legal framework around many issues linked to trafficking in persons for the purpose of organ removal examined in my report is extremely weak. This creates gaps and weaknesses that prevent strong national responses; inhibit cross-border and international cooperation; and obscure the very real human rights issues that lie at the heart of transplantation related exploitation.

One of the principle reasons for the failure to leverage the trafficking in persons framework against transplantation-related exploitation is the persistent attachment of some States and intergovernmental organizations to a distinction between “trafficking in organs” and “trafficking in persons for removal of organs”. This distinction is largely unjustified because the principle issue of focus: “the exploitation of persons who are compelled by need or force to provide organs for transplantation to people within their own countries or to foreigners” falls squarely within the international legal definition of trafficking in persons.

The importance of a rights-based and victim-centred approach to trafficking in persons has been well established and the parameters of such a response have been fleshed out in detail in my reports to the Human Rights Council and the General Assembly. However, there is a lot to do on how human rights-based response would be developed and applied in the context of trafficking in persons for removal of organs. In general, it appears that procedures and approaches developed thus far do not take full account of the particularities of trafficking in persons for removal of organs including the needs of victims. This has contributed to a marginalization of victims and their rights including within broader policy discussions around transplantation and transplantation-related exploitation.
      
I urge States to pay close attention to my recommendations, which speaks not only to States, but also to medical / transplantation professionals whom I consulted during the preparation of this report,  and the international community.

Specifically, States should ensure that “removal of organs” is included within their national legal definition of trafficking in persons and that “consent” to removal of organs is vitiated by any of the accepted means including abuse of a position of vulnerability. The national legal framework should clearly identify criminal responsibility, ensuring it extends to intermediaries, brokers, medical / transplant staff and technicians who are involved in trafficking in persons for the removal of organs.

All States should prohibit, absolutely and unconditionally, the removal of organs from executed prisoners and further prohibit the “donation” of organs by persons in official custody. National legislation should include an obligation on medical personnel to notify authorities when they become aware of cases or potential cases of trafficking in persons for the removal of organs with appropriate attention to issues of confidentiality and risks in cases of official complicity in such trafficking. This obligation should extend to medical staff involved in the provision of follow up care to recipients.

All States, most particularly source countries for trafficking in persons for the removal of organs should take legislative steps to prevent it by way of transplant tourism by measures such as imposing restrictions on transplantation for foreign nationals; ensuring genuine transparency in the allocation of organs for transplantation and in the conduct of transplantations; and preventing commercialization of transplantation. All victims of  trafficking in persons for the removal of organs have a right to immediate protection from further harm and to necessary medical, psychological and other support. States should ensure that these victims are not prosecuted or punished for offences that relate to the fact of them having been trafficked such as violation of laws relating to sale of organs.

States of demand and States of supply should develop networks, systems and mechanisms to exchange information and experiences and, more specifically, to support operational cooperation in the identification of victims as well legal cooperation in the investigation and prosecution of cases of trafficking in persons for the removal of organs.

In relation to prevention and demand States should work with media and civil society, including the medical and transplant communities, to raise awareness about trafficking in persons for the removal of organs  amongst potential target populations including awareness of the risks involved in both selling and buying organs. Furthermore, States should cooperate with the national medical and transplant community to develop effective and transparent systems for transplantation supported by robust systems of oversight and reporting.

Mr. Chairperson, Distinguished Representatives, Delegates and Observers,

I would like to briefly mention country visits that I conducted since I last reported to this Assembly.  I visited the Philippines from 5 to 9 November 2012, Morocco from 17 to 21 June 2013 (during this mission, I also visited Dakhla, Western Sahara) and Italy from 12 to 20 September 2013 at the invitation of the respective Governments. I would like to thank the Governments for their support and cooperation during my visits.  Full reports on these visits will be presented at the 26th session of the Human Rights Council in June 2014.   I would also like to mention that I have convened one global and a series of regional consultations on the rights to an effective remedy for trafficked persons in New York, Geneva, Chile, Bangkok to gather feedback on the Draft basic principles on the right to an effective remedy for trafficked persons presented in my report to the Human Rights Council in 2011. A report with the outcomes of these consultations will be presented at the 26th session of the Human Rights Council in June 2014.

Mr. Chairperson, Distinguished Representatives, Delegates and Observers,

As Special Rapporteur on trafficking in persons, especially in women and children, I have based the fulcrum of my work for the past 6 years on advocating for the implementation of anti-trafficking responses based on 5Ps (protection, prosecution, punishment, prevention, promoting international cooperation and partnership), 3Rs (redress, recovery and reintegration) and 3Cs (capacity, cooperation and coordination), guided by international human rights law and standards.

As this is my last presentation at the General Assembly before the end of my term as a mandate-holder in June 2014,  allow me to conclude by expressing my deep gratitude to all Member States, United Nations agencies, international and non-governmental organizations for their support in carrying out my mandate.  Trafficking in persons requires a multilateral and multidisciplinary response and no single country or entity can combat it alone. In this regard, I encourage Member States to utilize existing legal and policy frameworks at the international, regional and national levels in implementing measures to eliminate all forms of trafficking in persons in a concerted manner.  Today, 157 countries are State Parties to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially women and children supplementing the Convention on Transnational Organized Crime, 2000. I urge the remaining non-ratifying States to urgently do so as a clear commitment to the global fight to end modern day slavery. Finally, I call upon all Member States and other stakeholders to strengthen their partnership and cooperation at bilateral, regional and international levels in the collective efforts to effectively fight this phenomenon and to protect the human rights of trafficked persons. 

Thank you for your attention and I look forward to a fruitful dialogue.    
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