Introduction
With global demand for organs for transplantation far outpacing supply, organ trafficking and transplant tourismFootnote 1 have become a lucrative business for criminal organizations, generating up to $1.7 billion each year.Footnote 2 In 2017, an estimated 140,000 solid organ transplants were performed globally, a significant increase compared to the 118,127 procedures performed in 2013.Footnote 3 Yet, these figures account for only 10% of the global demand for organ transplants.Footnote 4 Given the severe shortage of living and deceased organ donors, organ traffickers have stepped in to provide desperate patients with an alternative to internationally and domestically regulated organ transplant frameworks.Footnote 5
According to a 2007 study conducted by the World Health Organization (WHO), 5–10% of organ transplants worldwide are conducted illegally,Footnote 6 but despite these estimates, the actual extent of organ trafficking remains elusive. Reliable empirical data is hard to obtain because the crime is clandestine in nature and unreported.Footnote 7
Organ trafficking covers a range of criminal activities, including the recruitment of living or deceased donors, the harvesting of organs, transportation, and transplantation.Footnote 8 It is also understood that this crime “primarily involves the movement of people rather than harvested organs”.Footnote 9 Organs are supplied through organized networks linking recipients from “demand countries” (mainly in Europe, North America and the Near East) with “donors”, who often originate from developing countries where organ trafficking networks target vulnerable communities and individuals.Footnote 10 Organ traffickers also take advantage of armed conflict, displaced populations and refugees, and the breakdown of the rule of law to harvest and supply organs.Footnote 11 According to estimates from Syrian officials, up to 20,000 organ sales have occurred across Syria since the start of the Syrian conflict.Footnote 12 As explained by Global Financial Integrity's Transnational Crime and the Developing World report:
Conflict zones are ideal for recruitment, as refugees and internally-displaced persons are more vulnerable and desperate. Like other offenses such as human trafficking and sexual assault, organ trafficking compounds the devastation and suffering of those living in refugee camps. These individuals, with limited employment options and having left most of their possessions behind, feel compelled to sell an organ in order to try to support themselves and their family.Footnote 13
While organ traffickers may simply wish to profit from the chaos of armed conflict by promising money and safe passage to those willing to pay the price with their organs, others, such as non-State armed groups, may turn to organ trafficking to treat injured combatants or provide a steady flow of revenue.Footnote 14 In Iraq, the so-called Islamic State group (IS) has engaged in the harvest and sale of organs from fighters, captives and hostages.Footnote 15 In that context, IS is said to have sanctioned the harvesting of organs from “apostates” for the purpose of “transplanting healthy organs into a Muslim person's body in order to save the latter's life or replace a damaged organ”.Footnote 16 There are also reports of black markets selling human organs in IS-controlled territory, and corpses have been discovered in IS-controlled areas bearing indications that their organs were forcibly removed.Footnote 17 Other conflicts, such as the 1998–99 Kosovo conflict, have also given rise to organ trafficking. An investigation by the Council of Europe has indeed revealed that in the aftermath of the conflict, Kosovo Liberation Army (KLA) militants were using prisoners as a source of organs and killing captives before performing cadaver kidney extractions.Footnote 18 These reports show that regardless of the motivations for engaging in organ harvesting and trafficking, this crime has become part and parcel of the risks that the living and the dead must endure during armed conflict.
The link between conflict and organized crime is of such concern that the United Nations (UN) has, in the past years, highlighted the need for a stronger international response.Footnote 19 At the global level, the fight against organized crime is coordinated through the United Nations Convention against Transnational Organized Crime (UNTOC),Footnote 20 adopted in 2000, which requires that States Parties criminalize an individual's participation in an organized criminal group.Footnote 21 Through its Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, the UNTOC also obliges States Parties to criminalize trafficking in persons for the purpose of organ removal.Footnote 22 The Protocol's definition of trafficking in persons for the purpose of organ removal entails the conjunction of three constituent elements: an act of trafficking in persons, means, and a purpose (i.e., the removal of organs).Footnote 23 However, it does not apprehend organ trafficking as a stand-alone offence. The wide international recognition of trafficking in persons for the purpose of organ removal and the international humanitarian law (IHL) framework and responsibility attached to it has already been discussed elsewhere and does not call for further consideration in this article.Footnote 24
The crime of organ trafficking is thus distinct from trafficking in persons for the purpose of organ removal.Footnote 25 To date, the Council of Europe's Convention against Trafficking in Human Organs,Footnote 26 known as the Santiago de Compostela Convention (SCC), is the only international instrument to oblige States to adopt measures prohibiting organ trafficking.Footnote 27 The SCC criminalizes organ harvesting by prohibiting the intentional removal of human organs from living or deceased donors without their consent (or in the case of deceased donors, where the removal is not authorized under domestic law), or where such consent was obtained in exchange for “financial gain or comparable advantage” for the donor or a third party.Footnote 28 It contemplates the criminal responsibility of every actor – save for the donor and recipient, on the assumption that their conduct is compelled by necessity – involved in organ trafficking, from procurement to transport and transplantation, whether committed individually or as part of a criminal organization.Footnote 29 This is not to say that patients receiving organs will never be held criminally liable – indeed, almost every country criminalizes the purchase of organs by patients participating in transplant tourism.Footnote 30 However, such conduct is not regulated by the SCC.Footnote 31
The SCC leaves no stone unturned in its efforts to better apprehend organ trafficking, but its scope is inherently limited to its signatories, the majority of which are members of the Council of Europe. Jurisdiction over organ trafficking offences does not extend to those committed beyond the SCC's territorial scope by persons who are neither nationals nor residents of a State party.Footnote 32 Thus, persons committing the act of organ harvesting may very well evade accountability, particularly in States that do not expressly criminalize organ trafficking and prosecute traffickers through domestic rules prohibiting bodily harm or theft.Footnote 33 Adding the fact that, at the global level, few cases appear to have been identified and prosecuted despite the estimated prevalence of the crime, one can only surmise that organ traffickers will further benefit, in terms of evading accountability, from a breakdown of the rule of law during armed conflict.Footnote 34 In such a situation, does IHL offer any protection against organ trafficking by criminal organizations?
As will be discussed, IHL imposes an absolute prohibition on the sine qua non of organ trafficking – i.e., the act of harvesting organs from the living and the dead. IHL's protective framework also requires that parties to a conflict take positive measures to protect the dead from organ harvesting. However, in order for IHL's protection to apply, it is necessary to determine whether it can regulate organ trafficking networks, either directly, as parties to a conflict, or indirectly, by attributing their conduct to a party to a conflict or establishing the international criminal responsibility of their members.
The prohibition of organ harvesting under IHL
IHL imposes an absolute prohibition on organ harvesting during armed conflict. In an international armed conflict (IAC), IHL applies to the entire territory of the parties to the conflict.Footnote 35 In a non-international armed conflict (NIAC), the geographical reach of IHL is still strongly debated.Footnote 36 However, it is accepted that the IHL of NIACs applies at least to “the whole territory under the control of a party, whether or not actual combat takes place there”.Footnote 37
The protective framework against illegal organ harvesting is shaped by several sources and provisions of IHL. These rules protect the living as well as the dead.
Rules protecting the living against organ harvesting
Protection against organ trafficking is achieved through the prohibition of organ harvesting. Elements of this prohibition are found in, firstly, specific provisions of Additional Protocols I and II (AP I, AP II) of 1977 regulating medical procedures; secondly, IHL's fundamental prohibition against mutilation; and thirdly, the prohibition of murder. Finally, parties to a conflict also have a positive obligation to protect the wounded, sick and shipwrecked from ill-treatment.
The regulation of medical procedures by the Additional Protocols
Article 11 of AP I and Article 5(2)(e) of AP II regulate the performance of medical procedures by parties to an armed conflict. The protection granted by AP I covers nationals who are in the power of the adverse party,Footnote 38 as well as any person, regardless of nationality, “interned, detained or otherwise deprived of liberty” as a result of an IAC.Footnote 39 Due to the impracticality of nationality-based criteria in NIACs, AP II's protection is more limited in scope and covers only persons interned or detained for reasons related to the armed conflict.Footnote 40 This excludes less stringent means of detention permitted under AP I, such as confinement to a designated residence.Footnote 41 Those deprived of liberty for reasons unrelated to the conflict are, of course, excluded from IHL's scope of protection.Footnote 42
Importantly, these provisions apply neither to free nationals of the party performing the procedure under AP IFootnote 43 nor to “free persons” under AP II,Footnote 44 due to a presumption that parties to a conflict will provide the best possible care to their own. Those persons therefore set the benchmark by which the “generally accepted medical standards”Footnote 45 guiding the performance of medical procedures by a party are to be assessed.Footnote 46
In the context of an IAC, Article 11(2)(c) of AP I expressly prohibits the “removal of tissue or organs for transplantation” and rejects the protected person's consent as a justification for performing the procedure. In contrast, Principle 3 of the WHO Guiding Principles on Human Cell, Tissue and Organ Transplantation recognizes the validity of live donations with the informed and voluntary consent of the live donor, “free of any undue influence or coercion”.Footnote 47 As a cornerstone of medical ethics, the validity of a donor's freely given consent would normally be recognized by domestic regulations on organ transplantation.Footnote 48 Such consent would be valid under international human rights law, although it remains debatable for persons deprived of liberty.Footnote 49 At first glance, this prohibition unduly burdens access to organ transplantation. However, IHL's categorical prohibition on organ harvesting acts as a lex specialis to safeguard protected persons against abuse by parties who might perceive them as a readily available source of organs.Footnote 50 In any event, consent given by enemy aliens and detainees would be invalid due to lack of a real choice under the circumstances.Footnote 51
The prohibition against organ harvesting suffers only two exceptions. The first results from AP I Article 11(1) and 11(2)'s authorization of procedures “indicated by the state of health of the person concerned”. However, this exception may never operate in practice, as harvesting healthy organs cannot improve the health of the donor and, indeed, can seriously impact it.Footnote 52 The second exception relates to blood donations for transfusions and the donation of skin for skin grafts, permitted under Article 11(3) provided the procedure is consented to freely.Footnote 53 Nonetheless, given the limited scope of these exceptions, it is safe to say that harvesting organs from persons protected by IHL is absolutely prohibited during an IAC.Footnote 54
In the context of a NIAC, Article 5(2)(e) of AP II only prohibits medical procedures which are “not indicated by the state of health of the person concerned”. Yet, the mere requirement that medical procedures be performed for the benefit of the donor's state of health inevitably leads to the prohibition of organ harvesting. Furthermore, even though it is not expressly stated, AP I's rejection of consent-based justifications and exceptions for blood and skin donations are applicable by analogy to NIACs.Footnote 55 Overall, an equivalent protection against organ harvesting is granted in IACs and NIACs, with violations of AP I Article 11 and AP II Article 5(2)(e) amounting to war crimes.Footnote 56
The prohibition against organ harvesting as an essential component of the prohibition against mutilation
As the Geneva Conventions were adopted prior to the first successful organ transplant, their provisions did not contemplate the regulation of organ harvesting.Footnote 57 However, protection against organ harvesting is achieved through the long-standing prohibition against mutilation.Footnote 58 Wide acceptance of this prohibition, along with State practice, has entrenched its status as a rule of customary IHL in both IACs and NIACs.Footnote 59 Surprisingly, IHL does not define “mutilation” and relies on international criminal law (ICL) to fill that gap.Footnote 60 Fortunately, ICL considers mutilation to cover the act of removing an organ or appendage,Footnote 61 as would result from organ harvesting, and criminalizes it as a war crime in both IACs and NIACs.Footnote 62
No matter the source of the prohibition on mutilation, its regime remains the same. Mutilation may only be justified on strict medical grounds, to the same extent as the removal of tissue or organs for transplantation under the Additional Protocols, and consent-based justifications are also unavailing.Footnote 63 This confirms the absolute character of the prohibition on organ harvesting as a mutilation with no health benefits for the donor.
In IACs, mutilation is expressly prohibited by two specific provisions of Geneva Conventions III and IV (GC III, GC IV):Footnote 64 Article 13 of GC III, protecting prisoners of war, and Article 32 of GC IV, protecting enemy civilians in the hands of an adverse party or Occupying Power, as well as those who were refugees or stateless before the beginning of hostilities.Footnote 65 Geneva Conventions I and II (GC I, GC II) do not expressly prohibit mutilation,Footnote 66 but they both impose, in Article 12(2), an obligation of humane treatment of the wounded, sick and shipwrecked, and prohibit violence against persons protected under these two Conventions.Footnote 67 Though organ harvesting is not expressly listed as a prohibited act of violence, the non-exhaustive nature of Article 12(2) undoubtedly extends to this practice.Footnote 68 In particular, it prevents a party from using the wounded and the sick, who may be viewed as disposable, as a readily available source of organs for transplantation.
Furthermore, AP I has expanded the scope of the prohibition on mutilation through two key provisions. Firstly, AP I Article 11's regulation of medical procedures equally prohibits mutilations, primarily to clarify the regime applicable to the wounded, sick and shipwrecked, whether civilian or military.Footnote 69 Secondly, Article 75(2)(iv) of AP I expands the protection against mutilation beyond nationality criteria. This is done by establishing a minimum standard of treatment for “persons who are in the power of a party to the conflict and who do not benefit from more favourable treatment under the Conventions”, provided they are affected by an armed conflict.Footnote 70 This applies to a party's own nationals, “unlawful combatants”, nationals of co-belligerent or neutral States, and persons who become refugees after the beginning of hostilities.Footnote 71 While such an expanded protection against mutilation is welcome, it could also result in a blanket ban on all organ harvesting procedures, were it not for AP I Article 75's express nexus requirement.Footnote 72 Although its exact scope is unclear, the nexus is understood to cover only measures taken against a person because of an armed conflict;Footnote 73 organ harvesting procedures undertaken in the ordinary course of business would therefore not exhibit the required nexus. The same would apply to organ harvesting by ordinary criminals regardless of the existence of an armed conflict, thus limiting the applicability of IHL. Conversely, Article 75 of AP I would prohibit a party from harvesting organs from its own nationals for the purpose of treating wounded soldiers or financing the war effort.
In NIACs, protection against mutilation is ensured by the fundamental obligation of humane treatment found in Article 3 common to the four Geneva Conventions, which also specifically prohibits mutilation.Footnote 74 This prohibition is reiterated in Article 4(2)(a) of AP II, the NIAC counterpart of AP I Article 75.Footnote 75 The purpose of common Article 3 is to protect all persons not actively participating in hostilities, be they civilians or persons hors de combat,Footnote 76 and regardless of whose power they are in or which party they identify with.Footnote 77 This is also true of AP II.Footnote 78
The application of common Article 3 “without adverse distinction” to persons taking no active part in hostilities calls for two observations. Firstly, common Article 3's protection of all civilians could result in a blanket ban on organ harvesting activities during an armed conflict, if one were to disregard the nexus requirement in NIACs.Footnote 79 Contrary to Article 75 of AP I, common Article 3 does not expressly provide for a nexus requirement limiting its application to persons “affected by the armed conflict”. Yet, as will be discussed further below in the section on “International Criminal Responsibility of Members of Organ Trafficking Networks”, the need for a sufficient nexus to characterize a war crime entails that common Article 3 does not automatically apply in all situations.Footnote 80 The result is, therefore, the same as with Article 75 of AP I: organ harvesting procedures unrelated to the armed conflict are not prohibited.
Secondly, cases brought before the International Criminal Tribunals and International Criminal Court (ICC), and specifically the Ntaganda case, have shown that parties to a conflict do not shy away from mistreating their own combatants.Footnote 81 As a result, common Article 3 has been interpreted to apply to members of a party's own armed forces.Footnote 82 In Ntaganda, the ICC justified this approach in the context of intra-party sexual violence, based on the victim's inability to directly participate in hostilities “during the specific time when they were [being] subject[ed] to acts of sexual nature”.Footnote 83 The same could be said of organ harvesting, which inherently requires the temporary immobilization or incapacitation of the person whose organs are being removed. This interpretation would ensure that a party's own armed forces are not used as a source of organs to finance the war effort or treat other combatants.
The prohibition on murdering persons to harvest organs
In times of peace, it goes without saying that murdering a person to harvest their organs is prohibited under both ordinary rules of criminal law and as a violation of the right to life under international human rights law.Footnote 84 However, IHL distinguishes between protected persons and combatants for a reason. The former cannot be targeted, while the latter can benefit from combatant immunity, allowing them to target and kill those who directly participate in hostilities without fear of prosecution.Footnote 85 Yet, as will be seen below in the section on “Rules Protecting the Dead”, even deceased combatants are worthy of protection from organ harvesting. In any event, and as can be inferred from the reports on the KLA and IS, organ harvesting is more likely to occur on combatants who have been captured and detained, and who are thus hors de combat at the time their organs are removed.
In IACs and NIACs, it is considered a war crime to intentionally target or kill persons hors de combat Footnote 86 and civilians not directly participating in hostilities.Footnote 87 This protection is notably ensured by common Article 3, which acts as a “minimum yardstick” in both IACs and NIACs.Footnote 88 These rules are considered customary in nature, which ensures their application to all armed conflicts.Footnote 89 Through the prohibition against murder, IHL protects persons against the gravest forms of abuse such as the removal of vital organs from a living person or killing for the purpose of organ extraction.Footnote 90 This protection is all the more important given the reality of forced organ harvesting on prisoners.Footnote 91
The positive obligation to protect the wounded, sick and shipwrecked from ill-treatment
Last but not least, IHL imposes that parties to a conflict take all possible measures to protect the wounded, sick and shipwrecked against ill-treatment in both IACs (GC I Article 15, GC II Article 18, GC IV Article 16) and NIACs (AP II Article 8).Footnote 92 This is also customary IHL according to Rule 111 of the International Committee of the Red Cross (ICRC) Customary Law Study.Footnote 93 The importance of this provision cannot be understated, as it is one of the few that expressly obliges parties to a conflict to protect the wounded against organ harvesting. However, as this is an obligation of means, it is difficult to determine in abstracto the extent to which a party could be held responsible for its violation, other than a clear failure to take proactive protective steps.Footnote 94
Importantly, IHL also imposes an obligation of restraint on civilians, who must respect the wounded, sick and shipwrecked.Footnote 95 This duty is not a positive obligation to protect but a duty to refrain from committing acts of violence.Footnote 96 As this rule is applicable to civilians, it also binds members of criminal organizations. Even if the consequences of a breach of this positive obligation remain unclear, the harvesting of organs from a protected person would, in any event, constitute a self-standing violation of IHL.
Rules protecting the dead
AP I and AP II's prohibition on organ removal for transplantation, the prohibition on mutilation, and the prohibition on murder presuppose that the victim is alive at the time the act is committed.Footnote 97 Therefore, these prohibitions cannot be extended to the dead. However, IHL would not provide an effective protection against organ harvesting without a continuing obligation to respect the bodies of those that have died in an armed conflict.
The rules protecting the dead are predominantly found in the four Geneva Conventions and AP I. The only provision explicitly relating to the dead in NIACs is Article 8 of AP II. Any gaps in protection are filled by the customary nature of these rules in both IACs and NIACs – save for Rule 114 on the return of the mortal remains and personal effects of the dead, which has not yet attained customary status in NIACs.Footnote 98
The main obligations imposed by IHL in IACs and NIACs are the obligation to search for and collect the dead (Rule 112), the obligation to protect the dead against mutilation and despoliation (Rule 113), the obligation to dispose of the bodies of the dead and to maintain and respect gravesites (Rule 115), and the obligation to identify and record information on the dead (Rule 116).Footnote 99 Among these obligations, the obligation to search for and collect the dead and the obligation to protect the dead against mutilation and despoliation are relevant to the issue of organ harvesting.
The obligation to search for and collect the dead
The starting point for the protection of the dead against organ harvesting is the obligation to search for and collect the dead.Footnote 100 This obligation is reflected in Rule 112 of the ICRC Customary Law Study, which provides that “[w]henever circumstances permit, and particularly after an engagement, each party to the conflict must, without delay, take all possible measures to search for, collect and evacuate the dead without adverse distinction”.Footnote 101 It is in the immediate aftermath of a person's death that their organs are the most valuable for harvesting, and without collection, the bodies of the deceased cannot be protected. This rule is thus the sine qua non of the effectiveness of, and compliance with, all other obligations relating to the dead by parties to a conflict.Footnote 102
The obligation to search for and collect the dead applies without adverse distinction to all conflict-related deaths.Footnote 103 Although not expressly stated, this principle is reflected in various provisions of the Geneva Conventions and their Additional Protocols.Footnote 104 For instance, the obligation to search for, collect and prevent the dead from being despoiled applies to deceased military personnel regardless of the party to the conflict to which they belong.Footnote 105 Deceased civilians are similarly covered by other provisions in GC IV, AP I, AP II and customary IHL.Footnote 106
The search for the dead must be performed as soon as possible after an engagement, as stated in GC I Article 15, GC II Article 18 and AP II Article 8, and implied in GC IV Article 16 and AP I Article 33.Footnote 107 From the perspective of organ harvesting, this time frame is essential because organs may only be sourced in the immediate aftermath of a person's death, in a race against time to preserve their viability. Therefore, bodies left unattended on the battlefield are at a greater risk of falling prey to organ traffickers. Yet, the obligation to search for the dead is one of means, effectively limiting the protection of the dead to bodies found and collected by parties conducting a search.Footnote 108 Therefore, parties to a conflict cannot necessarily be held responsible for a failure to protect the dead against organ harvesting if those bodies remained unaccounted for in spite of a search.
Finally, it is worth noting that while this obligation has a “protective” purpose, it also has a potential for subversion. Indeed, a party to a conflict seeking unlawful sources of funding could, under the guise of a search, endeavour to collect as many bodies as possible, only to better exploit, and profit from, the remains of the deceased. The obligation to collect the dead is, therefore, the sine qua non of the protection of the dead but can only prove effective if followed by an obligation to protect the bodies of the dead.
The protection of the dead against mutilation and despoliation
The bodies of the dead are protected against organ harvesting through the prohibition against mutilation and the obligation to prevent the dead from being despoiled.Footnote 109
Although IHL does not expressly prohibit the mutilation of the dead, common Article 3 provides an equivalent protection through the prohibition of outrages upon personal dignity.Footnote 110 This offence has been documented by the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in instances where a dead person's body parts were removed or amputated.Footnote 111 According to the ICC Elements of Crimes, outrages upon personal dignity against the dead constitute war crimes under the Rome Statute.Footnote 112 Due to common Article 3's fundamental character, this prohibition covers the dead in IACs and NIACs. Additionally, customary IHL prohibits the “mutilation of dead bodies” in all armed conflicts.Footnote 113 As a form of mutilation or outrage upon personal dignity, harvesting organs from the dead is therefore prohibited. However, as in the case of the living, it is safe to assume that there would not be a blanket prohibition on organ sourcing, and that the prohibition would mainly apply to conflict-related deaths and persons that benefited from the rules protecting the living.
Secondly, IHL imposes an obligation to prevent the dead from being despoiled.Footnote 114 This obligation is common to IACs and NIACs and is stated in GC I, GC II, GC IV, AP I, AP II and customary IHL.Footnote 115 Unlike the prohibition on mutilating the dead, the obligation to prevent despoliation protects the belongings of the deceased rather than their physical remains. It is an application of the general prohibition against pillaging, which protects private property.Footnote 116 The characterization of organ harvesting as despoliation would therefore call for a discussion of the legal status of human organs and property rights, which exceeds the scope of this article.Footnote 117 Suffice to say that from the perspective of organ traffickers, the deceased are no longer valued as human beings and their organs are reduced to the status of a commodity waiting to be harvested and profited from.Footnote 118 Additionally, protection against despoliation is a positive obligation which complements the obligation to search for the dead. Accordingly, once collected by the parties to a conflict, “all possible measures” must be taken to protect the bodies of the deceased against organ harvesting, including by third parties. This would, in effect, require parties and their military command to implement measures to confront organ traffickers during armed conflict. According to the International Court of Justice (ICJ), such a duty to act “arise[s] at the instant that the State learns of, or should normally have learned of, the existence of a serious risk”.Footnote 119 As such, parties to a conflict are expected to act without delay to confront the risk of organ harvesting.Footnote 120
Regulating the activities of organ trafficking networks through IHL
Although IHL protects the living and the dead against organ harvesting, such protection may only be given effect if organ trafficking networks are bound by IHL. Understanding the structure of organ trafficking networks, will help to determine whether such groups can be characterized as parties to an armed conflict, bound to observe IHL. If not, the attribution of their conduct to parties to a conflict and ICL could provide ways to effectively protect victims of organ trafficking.
The structure of organ trafficking networks
Before considering the characterization of organ trafficking networks as parties to a conflict, their organizational structure must be fleshed out. This is relevant to determining whether such groups display the level of organization required to constitute a non-State armed group in an armed conflict (see the section below on “Organ Trafficking Networks as Parties to an Armed Conflict”). Although the UNTOC is not a prerequisite for the application of IHL, its definition of organized criminal groups constitutes an internationally accepted standard by which to assess the structure of organ trafficking networks.Footnote 121 The UNTOC defines organized criminal groups as
a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit.Footnote 122
According to this definition, organized criminal groups display two key elements: a structure and a purpose. Firstly, a “structure” entails a certain level of organization, and the UNTOC captures a spectrum of criminal organizations in this regard.Footnote 123 According to a 2002 survey by the UN Office on Drugs and Crime (UNODC), organized criminal groups can be classified into five structures. Two of these are vertical hierarchies (the “standard” and “regional” models).Footnote 124 Another one, the “clustered hierarchy”, is considered sufficiently rare so as not to warrant further discussion here.Footnote 125 The remaining two structures are more consistent with traditional organ trafficking models, where donors, recipients and health-care professionals are recruited by brokers operating through “sophisticated and specialized networks”.Footnote 126 These structures are:
• A “core group”, usually horizontally structured and consisting of a tight and organized core within a loose network.Footnote 127 The small size of the core (usually up to twenty individuals) facilitates the maintenance of internal discipline.Footnote 128 Criminal operations are controlled by the core members, who also reap the biggest profits, while the loose network at the core's periphery allows for fluid membership.Footnote 129
• Criminal networks made of several key individuals in shifting alliances, each contributing their skills to a criminal project, and who may not consider themselves as members of a criminal group.Footnote 130 Cohesion is maintained through personal loyalties and ties rather than discipline because the various parts of the network may not work closely enough to know each other.Footnote 131
Article 2(c) of the UNTOC clarifies that a group need not “have formally defined roles for its members, continuity of its membership or a developed structure”.Footnote 132 Thus, core groups within a loose network and criminal networks are covered by the UNTOC.Footnote 133 For instance, networked structures are typical for human trafficking groups, where members each have a role and carry out their part of the crime without knowing the full composition of the group.Footnote 134 However, groups “randomly formed for the immediate commission of an offence”, such as ad hoc groups in riots, are excluded from the UNTOC.Footnote 135
Secondly, with respect to its purpose, the organized criminal group must seek to “obtain, directly or indirectly, a financial or other material benefit”. This precludes groups primarily driven by political motives from constituting organized criminal groups.Footnote 136 As will be seen below in the section on “Organ Trafficking Networks as Parties to an IAC”, this feature may be particularly relevant when attempting to characterize an IAC involving a non-State armed group under Article 1(4) of AP I.
Organ trafficking networks are undoubtedly organized criminal groups under the UNTOC. They typically involve brokers, recruiters, donors/sellers, recipients/buyers, and health-care professionals and facilities (such as transplant surgeons, hospitals and laboratories).Footnote 137 Brokers are responsible for connecting donors and recipients, and are organized in small, specialized syndicates.Footnote 138 They operate within an established network, which includes local recruiters and health-care professionals and facilities, to harvest, supply and transplant organs.Footnote 139 All strategic decisions regarding the operation of the network are handled by brokers who take the biggest cut of the profits.Footnote 140 Organ trafficking networks are, therefore, akin to core groups with dense connections among brokers and looser relationships with, and among, other members of the network, all acting with the purpose of benefiting financially from trafficking. For their part, recipients benefit materially from soliciting brokers to procure organs and could thus be included in the group. They may be acting out of necessity, but their situation is not comparable to that of organ donors, who fall victim to organ harvesting out of coercion or necessity and who suffer a clear physical detriment.Footnote 141 These compelling circumstances would weigh heavily against classifying victim donors as part of an organ trafficking network.Footnote 142
Organ trafficking networks as parties to an armed conflict
The application of IHL is triggered by the existence of an armed conflict, defined by the Tadić case as “a resort to armed force between States or protracted armed violence between governmental authorities and organised armed groups or between such groups within a State”.Footnote 143 The Tadić definition covers both NIACs and IACs, and organ trafficking networks must fall within the scope of one or the other to constitute parties to an armed conflict.
Organ trafficking networks as parties to a NIAC
NIACs are characterized by armed violence between a non-State organized armed group (OAG) and a State or another OAG.Footnote 144 According to Tadić, a NIAC requires, cumulatively, (1) a certain level of organization within the OAGs and (2) protracted armed violence between the parties.Footnote 145 The political purpose of the OAGs is irrelevant, a feature shared by organized criminal groups under the UNTOC and which allows criminal organizations to rise to the level of OAGs.Footnote 146 However, whereas the IHL of NIACs is conditioned on the existence of a group carrying out acts of armed violence, such acts are not characteristic of an organized criminal group under the UNTOC.
With respect to the organizational requirement, OAGs must display a minimum level of organization. The requisite level of organization is confirmed through the assessment of several factors, identified by the ICTY in the Haradinaj case as:
the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of a headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords.Footnote 147
In the view of the ICRC, an OAG essentially requires (1) a command structure, with “a certain level of hierarchy and discipline and the ability to implement the basic obligations of IHL”, and (2) the capacity to sustain military operations.Footnote 148 These criteria are supplemented for NIACs falling within the scope of AP II by the requirement of territorial control by the non-State armed group.Footnote 149
Organ trafficking networks do not have a hierarchical structure, but the lack of a rigid hierarchy is not dispositive of the existence of an OAG.Footnote 150 For instance, the ICTY considered the KLA to be an OAG, operating underground, notwithstanding its apparently horizontal command structure.Footnote 151 In fact, the majority of non-State armed groups today, including terrorist groups such as IS, operate as networks rather than centralized armed groups with a strict hierarchy and a clear command and control structure.Footnote 152 These networks are organized horizontally, are composed of “small armed groups, whose individual commanders retain considerable decision-making power and responsibility over group members”, and form loosely coordinated alliances with few signs of military discipline.Footnote 153
The possibility of characterizing a network as a non-State OAG makes it conceivable for organ trafficking networks to satisfy the organizational requirement of a NIAC, but this status would likely not encompass the totality of the network.Footnote 154 For instance, the hierarchically structured factions of IS operating in Iraq and Syria, with territorial control, a command structure, and disciplinary rules, have been recognized as OAGs.Footnote 155 However, IS cells incapable of sustaining military operations or enforcing compliance with IHL by subordinates would not qualify as OAGs.Footnote 156 The same logic would apply to organ trafficking networks. A core group of organ brokers, maintaining discipline and cohesion internally, could satisfy the organizational requirement (subject to the group's ability to sustain military operations), but members of the wider network, such as health-care professionals, would not. Their looser organizational links to the core preclude them from forming part of the same OAG, and they are unlikely to display the attributes of OAG membership themselves, especially recruiters acting opportunistically and alone.Footnote 157 Crucially, organ trafficking networks would have no interest in ensuring compliance with IHL by members of the groupFootnote 158 – in fact, that would be entirely inconsistent with the network's activities, which inherently involve violations of IHL when organs are harvested during armed conflict.
Furthermore, while OAGs are not characterized by a political motive, the purpose of such groups is to plan and carry out military operations.Footnote 159 This is an essential and objectively verifiable characteristic.Footnote 160 For instance, IS is organized with a view to challenging governmental forces and exercising territorial control in Iraq and Syria.Footnote 161 By contrast, organ trafficking networks are not organized to conduct hostilities.Footnote 162 They are structured for the benefit of brokers, are clandestine and profit-oriented, and remain invisible by avoiding confrontation with law enforcement.Footnote 163 They do not need to control territory to carry out their operations; in fact, their lack of attachment to territory and infrastructures is also their strength, because it reduces their visibility and vulnerability to law enforcement.Footnote 164 Additionally, any use of armed force would only be in reaction to law enforcement attempts to repress their activities, rather than to carry out military operations as part of a defined military strategy.Footnote 165 Organ trafficking networks thus have no interest in going head-to-head with either the State or another non-State armed group.Footnote 166 In short, a political motive may not be a requirement, but the lack of a “military” purpose de facto precludes organ trafficking networks from constituting OAGs.Footnote 167
With respect to the existence of protracted armed violence, NIACs must display a minimum level of intensity.Footnote 168 According to the ICTY in the Haradinaj case, the intensity of the conflict can be assessed based on a non-exhaustive list of indicators, including:
the number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. The involvement of the UN Security Council may also be a reflection of the intensity of a conflict.Footnote 169
Anything below the required intensity threshold would only amount to internal disturbances and tensions to which IHL would not apply.Footnote 170 Implicit in the ICTY's list of indicators is the idea that armed violence between the parties has reached such a high level that it can no longer be contained by law enforcement and requires the intervention of military force.Footnote 171 Such can be the case in confronting terrorist groups,Footnote 172 and potentially gangs,Footnote 173 which can generate violence of sufficient intensity for a NIAC. For instance, armed violence by IS, considered a terrorist organization, has created a NIAC in Iraq and Syria, while violence by drug cartels in Mexico is sufficiently destabilizing to call for military intervention.Footnote 174 Organ trafficking networks, however, are not reported to engage in acts of violence against States or OAGs, let alone at a level intense enough to amount to protracted armed violence. The success of their illegal trade relies on discretion and on evading law enforcement, not confronting it.Footnote 175 Furthermore, organ trafficking does not need an armed conflict to operate. Conflict may be a catalyst for the exploitation of vulnerabilities such as poverty, injury and desperation, but opportunities to harvest organs abound outside of war.Footnote 176 Therefore, organ traffickers would have little need to engage in armed violence.
Although organ trafficking networks make a poor case for OAGs, non-State armed groups have been known to engage in organized crime to generate revenue by establishing “in-house” capabilities and links to the criminal underworld.Footnote 177 The cases of IS and the KLA engaging in organ trafficking are a clear demonstration of this phenomenon, and by harvesting organs during armed conflict, these OAGs would have committed violations of IHL. Therefore, organ trafficking is more likely to fall within the scope of IHL as a subsidiary activity of OAGs than as the main activity of organ trafficking networks.Footnote 178
Organ trafficking networks as parties to an IAC
When it comes to IACs, the protection against organ trafficking faces an important limit because the IHL of IACs applies only between States party to the conflict.Footnote 179 A clear statement of this rule is provided by common Article 2, according to which the Geneva Conventions apply to all armed conflicts between the High Contracting Parties.Footnote 180 By exception to this principle, the IHL of IACs would apply to non-State armed groups in either of the two following scenarios: (1) the regime of AP I Article 1(4) applies, or (2) a non-State armed group is fighting a State on behalf of another State.
The first scenario is the extension, by Article 1(4) of AP I, of the regime of IACs to non-State armed groups “fighting against colonial domination or occupation and against racist regimes in the exercise of the right to self-determination” (i.e., wars of liberation).Footnote 181 To benefit from this provision, organ trafficking networks would need to (1) engage in armed violence against a State and (2) do so with a political motive described by Article 1(4). However, organ trafficking neither entails nor requires a political motive or the use of armed force against a State. If organ trafficking networks had such a motive, they would no longer be considered as organized criminal groups by the UNTOC.Footnote 182 In addition, the conditions for invoking Article 1(4), its reservations, and the fact that, if successful, organ trafficking networks would be prohibited by IHL from harvesting organs, against their profit-driven interests, make the application of this Article unlikely.Footnote 183
The second scenario is a matter of armed conflict internationalization, the parameters of which are still subject to debate.Footnote 184 On the one hand, the ICJ considers that acts of non-State armed groups may only be attributable to a State if the groups are either de facto organs, acting in complete dependence on a State, or under a State's effective control.Footnote 185 On the other hand, ICL accepts that overall control may be sufficient to attribute the acts of groups to a State.Footnote 186 However, the ICJ has acknowledged the relevance of the overall control test for purposes of conflict classification only, and has thus created the possibility of conflicts being classified as IACs with no possibility of attributing State responsibility for lack of effective control.Footnote 187 Putting aside this debate for now, the question of State control and attribution is nevertheless essential to establishing responsibility for organ harvesting by organ trafficking networks.
Establishing responsibility for violations of IHL by organ trafficking networks
IHL addresses not only parties to an armed conflict but also individuals who commit violations. It is binding on States and is also admitted to be binding on non-State armed groups.Footnote 188 While parties to a conflict may engage in organ harvesting directly, organ trafficking networks may also take advantage of an armed conflict to carry out their activities with greater impunity. As IHL does not seek to regulate “ordinary” criminality, organ harvesting by private actors may only amount to a violation of IHL and give rise to reparations if it is attributable to the parties to a conflict. However, even if attribution is not feasible, individuals responsible for these violations could still incur criminal responsibility for war crimes.Footnote 189
Attributing responsibility for organ harvesting to parties to an armed conflict
Parties to an armed conflict may call upon organized criminal groups for a variety of purposes. For instance, non-State armed groups are known to cooperate with criminal organizations in order to generate revenue.Footnote 190 The Nicaragua case also shows that using criminal groups may form part of a military strategy, as evidenced by the United States’ recommendation that the Contras hire “professional criminals” “to carry out specific selective ‘jobs’”.Footnote 191 Therefore, an alternative to the direct application of IHL to organ trafficking networks would be to attribute their actions to a party to an ongoing armed conflict, whether it be a State or a non-State armed group. Unfortunately, the strict application of the prevailing rules of attribution severely limits the possibility of holding parties accountable.
Firstly, although non-State armed groups are bound to respect IHL, there is a protection gap preventing IHL from being enforced against them.Footnote 192 Indeed, the rules of international responsibility, reflected in the International Law Commission (ILC) Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA),Footnote 193 do not contemplate the collective responsibility of non-State armed groups.Footnote 194 The ILC has only recognized that a non-State armed group in the form of an insurrectional movement could be responsible for breaches of IHL to the extent that it has succeeded in establishing a new State capable of bearing responsibility for the movement's actions.Footnote 195 Yet, even if the responsibility of non-State armed groups could be argued, including by analogy to States,Footnote 196 its consequence remains unclear.Footnote 197 IHL is generally silent on the issue of reparations and provides only a right to reparation against States.Footnote 198 Therefore, while IS may have sanctioned organ harvestingFootnote 199 and potentially relied on organ trafficking networks to carry out these actions, international law does not yet provide a mechanism for holding it responsible and liable for reparations.Footnote 200
Secondly, the threshold for State attribution is an exacting one and may not be adapted to the structure of organ trafficking networks. Such networks are unlikely to constitute de facto organs under Article 4 of the ARSIWA because they would need to act in complete dependence on the State and under its complete control.Footnote 201 In this situation, organ trafficking networks would be “nothing more than [the State's] agent[s]” with no real autonomy or independence, such that all of their acts would be attributable to the State.Footnote 202 The level of dependence and control required is such that the ICJ found it to be lacking in both the Nicaragua case and the Genocide case.Footnote 203 For instance, any evidence of autonomy or independence on the part of an organ trafficking network, including in cases where it is created by the State which selects and finances its members, would prevent the network from qualifying as a de facto organ.Footnote 204 Given that organ trafficking networks are loosely structured, with fluid membership, it is doubtful that complete dependence from the entire network could ever be established.
In the absence of complete dependence, violations by organ trafficking networks could be attributable to a State under the effective control test, provided that the group or its members were acting “on the instructions of, or under the direction or control of”, that State under Article 8 of the ARSIWA.Footnote 205 Violations of IHL are successfully attributed by establishing that in each operation where they occurred, the State issued specific instructions or controlled the perpetration of these acts.Footnote 206 The difficulty of proving effective control over organ trafficking networks speaks for itself. Their organizational structure is horizontal and their members are loosely connected, save perhaps within the core of the network, such as a syndicate of brokers. Unlike military or paramilitary groups, there is no overarching hierarchy which will ensure that orders are carried out throughout the wider network.Footnote 207 Brokers connect with donors through local recruiters but must collaborate with the health-care professionals charged with harvesting and transplanting organs. Crucially, however, it is those performing organ harvesting procedures that directly violate IHL, not the brokers. Instructing the head, or core, of an organ trafficking network would not necessarily imply that all the members of the network were acting on these specific instructions, especially health-care professionals, who may be left in the dark with respect to the true nature of their actions.Footnote 208 Compliance with specific instructions at a given time is made all the more difficult by the fluid membership of the network.Footnote 209 Therefore, effective control would require proof that the persons performing organ harvesting are personally acting on the specific instructions of a State.
Organ harvesting also poses difficulties in operational terms because it is committed on an individual basis, donor by donor. This raises the question of the specificity of State instructions: can organ trafficking be viewed as a single operation, allowing each instance of organ harvesting to fall within the scope of a State's instructions, or should each instance of organ harvesting be considered as a separate operation? A global approach might be conceivable whereby organ harvesting is repeatedly performed in the same facilities and by the same persons, as this would ensure some continuity in both instructions and operations. However, isolated occurrences would likely require an individual set of instructions. Finally, proving that an organ trafficking network acted under the effective control of a State will be all the more difficult where the network has an established history of organ harvesting, separate from any State instructions that might have been issued. These challenges make attribution under the effective control test far from evident.
A much more pragmatic alternative would be the ICTY's overall control test, which, despite not governing matters of State responsibility, better apprehends the interactions between States and non-State armed groups.Footnote 210 According to the Tadić Appeals Chamber, the effective control test allows the attribution of acts of private individuals or “a group that is not militarily organised” to the State specifically ordering the performance of the acts.Footnote 211 By contrast, the overall control test addresses acts of “organised and hierarchically structured groups”, such as military or paramilitary units.Footnote 212 Acts of these groups can be attributed to a State without the need for specific instructions or control over an operation.Footnote 213 Rather, overall control would only require that a State equip, finance and organize an armed group, in addition to generally coordinating and planning its actions.Footnote 214 In the case of organ trafficking networks, this level of control is appealing. Overall control could indeed be established through a State's designation of targets for organ harvesting, such as the wounded, and its provision of medical personnel, facilities and equipment. However, the Tadić Appeals Chamber expressly stated that the overall control test does not benefit groups which are not militarily organized.Footnote 215 Here again, organ trafficking networks would fall short of the level of organization required for overall control, due to their lack of military structure. However, military or paramilitary groups like IS or the KLA would display the requisite level of organization.Footnote 216
Finally, a criminal organization's conduct could potentially be attributed through a State's acknowledgment and adoption of that conduct under Article 11 of the ARSIWA.Footnote 217 This could allow statements such as those made by IS, when officially sanctioning organ harvesting from “apostates”, to be used as a hook for purposes of attribution.Footnote 218 However, the acknowledgment and adoption of conduct must be clear and unequivocal, going beyond mere approval or endorsement, and must reflect an intent to accept responsibility.Footnote 219 In that sense, IS's statements would be too broad and unspecific to be taken as an admission of responsibility.Footnote 220 Furthermore, conduct can only be adopted subsequent to the violation of IHL, meaning that, in any event, future acts of organ harvesting would not be covered by those statements.Footnote 221
International criminal responsibility of members of organ trafficking networks
Given the limited success in characterizing organ trafficking networks as parties to an armed conflict or attributing their acts to States or non-State armed groups, ICL might be the only way to ensure that persons engaged in organ trafficking are held accountable. Establishing the criminal responsibility of these persons would also allow for reparations to be made to victims of organ trafficking under Article 75(2) of the Rome Statute of the ICC.Footnote 222
As organ trafficking networks are not parties to an IAC or a NIAC, their members are not combatants but civilians.Footnote 223 Importantly, however, war crimes are not limited to the actions of combatants and can also be committed by civilians.Footnote 224 Given that organ trafficking networks do not operate exclusively during armed conflict, a distinction must be made between organ harvesting as an ordinary crime and as a war crime.Footnote 225 This function is fulfilled by the nexus requirement, which “prevents random or isolated criminal occurrences from being characterised as war crime[s]”.Footnote 226 This is why the ICC Elements of Crimes consistently require that war crimes be “associated with an international armed conflict [or a NIAC]”.Footnote 227 In Ntaganda, the ICC Trial Chamber explained that in order to satisfy the nexus requirement,
[t]he existence of an armed conflict must have, at a minimum, played a substantial part in the perpetrator's ability to commit the crime, the decision to commit it, the purpose of the commission, or the manner in which the crime was committed.Footnote 228
The Trial Chamber also articulated a non-exhaustive list of factors, similar to those used by the ICTY and ICTR in the Kunarac and Rutaganda cases respectively, to establish the existence of a nexus:
[T]he Chamber may take into account, inter alia: (i) the status of the perpetrator and victim, and whether they had a role in the fighting; (ii) whether the act may be said to serve the ultimate goal of a military campaign; and (iii) whether the crime is committed as part of, or in the context of, the perpetrator's official duties.Footnote 229
While it is undeniable that an armed conflict may increase an organ trafficking network's ability to harvest organs and influence or facilitate its modus operandi, it would be difficult for its members to satisfy, in abstracto, the Ntaganda factors. As previously explained,Footnote 230 organ trafficking networks are mainly for-profit criminal organizations, which conduct their activities covertly. Their members do not inherently engage in hostilities and are likely to be non-combatants, especially health-care professionals responsible for harvesting organs. They are also likely to have no relation to the armed conflict or its goals. It is indeed doubtful that organ harvesting could be said to serve the ultimate goal of a military campaign, unless it were performed specifically to fund that campaign; that could be the case for members of a non-State armed group searching for new sources of revenue. However, already established organ trafficking networks would be more likely to act out of self-interest, increasing their profits by seizing the new opportunities created by armed conflict.Footnote 231 As for the commission of a crime in the context of a perpetrator's official duties, the 1947 Medical Trial confirms that members of civilian medical services can be prosecuted for war crimesFootnote 232 – for instance, a physician harvesting organs while treating conflict-related injuries suffered by combatants and civilians would, without doubt, be acting in the context of his or her official duties. The nexus would be much weaker in the case of a physician performing organ harvesting procedures in a private setting.
Crucially, the ICTY Appeals Chamber in Kunarac also considered that the nexus could be satisfied by “establishing that the perpetrator acted in furtherance of or under the guise of the armed conflict”.Footnote 233 The “under the guise of the armed conflict” formula suggests that war crimes may result from privately motivated acts, for instance between non-combatants taking advantage of the breakdown of the rule of law during an armed conflict.Footnote 234 This would permit members of organ trafficking networks to more easily fall within the purview of ICL. However, this interpretation of the nexus requirement has been criticized for its broadness and could cause “parasitical criminality” to boil over into war crimes.Footnote 235 In particular, the ICTR Appeals Chamber in Rutaganda, rejecting a broad interpretation of the Kunarac nexus, stated that acting “under the guise of the armed conflict” does not allow any circumstance which would not satisfy several of the Kunarac (or Ntaganda) factors to constitute a war crime.Footnote 236
Fortunately, the nexus requirement may be subject to evolutive interpretation. For instance, the Kunarac factors suggested that war crimes could only be committed against combatants or civilians belonging to, or identifying with, the opposing party,Footnote 237 but this assumption has since been rebutted by the Ntaganda case's admission of intra-party war crimes. This indicates that the nexus requirement is by no means set in stone. In this context, the UN's increasing attention to the links and interplay between organized crime and armed conflict could pave the way to a broadening of the nexus requirement.Footnote 238 Organ harvesting by members of an organ trafficking network, taking advantage of the wounded, refugees and displaced civilians under the cover of war, could eventually be considered to be sufficiently associated with the armed conflict as to constitute a war crime. Nevertheless, close attention would still need to be paid to the wording of the Geneva Conventions and their Additional Protocols, which may require that a protected person be in the hands of an enemy for a violation of IHL or a war crime to occur.Footnote 239 For instance, Article 11(4) of AP I does not characterize as war crimes organ harvesting procedures performed by a party on its own nationals, even if detained in relation to the conflict.Footnote 240
Assuming that members of organ trafficking networks could be held criminally responsible, several additional hurdles would still need to be overcome before organ harvesting could be successfully prosecuted. Firstly, ICL only contemplates as a war crime the act of organ harvesting.Footnote 241 Unlike the Santiago de Compostela Convention, it does not criminalize organ trafficking as a stand-alone offence covering all members of a network. Only the persons physically performing organ harvesting would be responsible as principal perpetrators. Many actors of the network could thus avoid prosecution, including brokers, recruiters, and physicians charged only with transplanting organs. Yet, their responsibility in the commission of organ harvesting could still be established through the Rome Statute's various modes of liability. These are covered by Article 25(3) of the Statute, which extends criminal responsibility to those that have aided, abetted, ordered, solicited or induced the commission of the crime.Footnote 242 Under Article 25(3), brokers could be prosecuted based on their responsibility in structuring organ trafficking networks and organizing their operations. It is also worth noting that these modes of liability could expand criminal responsibility beyond the scope of the SCC. For instance, the SCC does not criminalize an organ recipient's solicitation of a network to obtain a compatible organ, but Article 25(3) could.Footnote 243 Secondly, and most importantly, organ trafficking is a transnational crime involving participants and acts taking place across various jurisdictions, including beyond the geographical scope of IHL.Footnote 244 Therefore, there would be significant evidentiary challenges and jurisdictional difficulties for both the ICC and States wishing to prosecute.Footnote 245
Conclusion
IHL undeniably protects persons against illegal organ harvesting during armed conflict. The various elements of the prohibition against organ harvesting – i.e., the regulation of medical procedures, the prohibitions against mutilation and murder, and the obligation to protect the wounded against ill-treatment – seek to prevent the exploitation of those living through armed conflict. Together with rules protecting the bodies of the dead, the rules protecting the living guarantee the right of persons impacted by armed conflict not to fall prey to abuse.
These rules place the acts of organ trafficking networks within the reach of IHL. Unfortunately, these networks are unlikely to constitute parties to an armed conflict due to an insufficient organizational structure and the nature of their activities, which do not require the use of armed force. Organ trafficking networks would also not benefit from being bound by IHL as this would interfere with the very purpose for which they are established. Furthermore, the prevailing rules of international responsibility are of little use for attributing the harvesting of organs by trafficking networks to parties to a conflict. The effective control test is too demanding, and the overall control test does not apply to non-militarily organized groups. Additionally, the rules regarding the responsibility of non-State armed groups and their obligation to make reparations are still unclear. In short, greater consideration of the role played by organized criminal groups in armed conflict is needed.
Presently, ICL remains the only viable option for holding members of organ trafficking networks accountable. Yet even there, the requirement of a nexus between organ harvesting and an armed conflict causes a rift that is likely to relegate organ harvesting to the status of an “ordinary” crime. A renewed interpretation of the Kunarac nexus, in light of the linkages between organized crime and armed conflict, could be the key to unlocking the international criminal responsibility of organ trafficking networks. Until then, the international community should consider supplementing the UNTOC to criminalize organ trafficking itself, much in the way of the SCC. This would be a welcome first step towards cracking down on organ trafficking, although it might still fail to capture the gravity of the violation suffered by conflict-related victims of organ harvesting.
