Tribunal Charter

 

The Independent Tribunal into Forced Organ Harvesting from Prisoners of Conscience in China

Overview

Extensive reports over the past decade and a half have documented the scale and severity of state-sanctioned forced organ harvesting from prisoners and prisoners of conscience in the People’s Republic of China. Independent reporting and pressure from international medical and governmental institutions have prompted the Chinese government to announce multiple reforms, including in 2006, 2007, 2010, and December 2014 (1) . Official statements asserted that the reforms were designed to bring China’s organ-procurement system into line with international standards, and thus enable China’s transplantation system and transplant professionals to gain international legitimacy and acceptance. Despite the gradual development of a voluntary organ donation system since 2010, however, evidence continues to emerge regarding large-scale and severe human rights violations in the procurement of organs for transplant in China. In addition China continues to lack a level of transparency that is consistent with international standards. Not withstanding this evidence and continued lack of transparency, since 2015 there has been little engagement on this issue by the international medical, legal and governmental sectors. An independent Tribunal commissioned by the International Coalition to End Transplant Abuse in China will evaluate the available evidence to determine whether international crimes have been committed in China and/or elsewhere by Government officials of China and/or by individual Chinese citizens (medical professionals and others) and whether they are ongoing. If the evidence demonstrates such crimes, the Tribunal will identify the corresponding responsibilities of medical, governmental, and inter-governmental bodies and institutions to press for accountability for past crimes, to end international complicity in any ongoing abuses, and to act to definitively end any ongoing abuses.

(1)
2006: Interim Provisions on Clinical Application and Management of Human Organ Transplantation
2007: Regulation on Human Organ Transplantation
2010: pilot of voluntary donation system
2014: “all organ donations” will go through voluntary system as of Jan 1, 2015. –HJF

Mandate of the Tribunal

The Members of the Tribunal are asked to consider the evidence regarding forced organ harvesting from prisoners of conscience in China and determine whether international crimes have been, and continue to be, committed.

Mandate Statement

The Tribunal is asked to address and answer specific questions that arise from existing evidence of systematic, widespread forced organ harvesting from prisoners of conscience in the People’s Republic of China.

Tribunal questions

  1. Given the available evidence about past and continuing forced organ harvesting from prisoners of conscience in China, have international crimes been committed?
  2. If so, what legal and other actions should be taken by the international community? In responding to these questions, the Tribunal should consider the extent to which alleged perpetrators of forced organ harvesting can be named under relevant legislation and the effect of sovereign immunity on protecting wrongdoers from civil suits.
  3. The Tribunal is also urged to consider the responsibilities of international hospitals, universities, doctors, professional societies, medical researchers, pharmaceutical and biotech companies, medical journals and publishers regarding collaboration with their Chinese counterparts and Chinese transplant professionals, whether such collaboration might amount to complicity in forced organ harvesting, what constraints should apply to any future collaboration and to make recommendations regarding existing or proposed professional and legal sanctions.

Methods of work

The Tribunal will:

  1. Be chaired by Sir Geoffrey Nice, QC;
  2. Consist of five to nine members;
  3. Consider evidence of forced organ harvesting from prisoners of conscience in the People’s Republic of China in sufficient detail to develop the factual foundation necessary to answer the questions posed;
  4. Receive submissions on applicable standards and available remedies.

Legal Counsel to the Tribunal will be Mr Hamid Sabi.

Membership of the Tribunal

In order to provide a multi-disciplinary international approach to examining the evidence, members of the Tribunal shall be diverse in regards to professional background, gender, nationality and cultural background. The professional backgrounds of members of the Tribunal will include expertise in: the Law, Human Rights, China Human Rights, Medicine, International Relations, Politics and Business. (In alignment with the Commissions of inquiry and fact-finding missions on international human rights and humanitarian law – Guidance and Practice, 2015)

Tribunal processes/commitment

Members of the Tribunal will:

  1. Review core reading and AV material provided by ETAC. Tribunal members will be provided with a core library of 2 books, 4 reports, 2 documentaries (total 2 hours) and 6 other documents totalling some 500 A4 pages. These materials will be accompanied by a guide/executive summary with page references for ease of first understanding. (The Tribunal’s decision will be on the basis of all material provided during the process including this core library and other evidence adduced.)
  2. Meet online via video conferencing to discuss questions that arise from the material and as a group consult researchers and experts as required. Tribunal members will be required to refrain from additional research unless that research is brought before the Tribunal in a form that can be considered by the whole.
  3. Interview the primary investigators: David Matas, David Kilgour, Ethan Gutmann, Matthew Robertson.
  4. Interview 25 – 30 witnesses, with precautions to safeguard their security as required. Hearing of witnesses will take circa 3 days.
  5. Seek the input of professional associations and civil society – as determined by the Tribunal in discussion.
  6. Request interviews with relevant organisations and representatives of the Chinese government as determined by the Tribunal in discussion. (Counsel to the Tribunal will arrange).
  7. Provide ETAC with an opportunity to provide additional evidence, which may include additional sessions for the Tribunal to discuss the evidence with the primary investigators, before the Tribunal reaches its final conclusions.
  8. Create a final report that includes Executive summary, Methodology, Findings, Legal Conclusions and Recommendations.
  9. Provide services pro bono (including the Legal Counsel). In addition, lawyers able to advise the Tribunal on the relevant law will provide pro bono advice.

The expected duration of the Tribunal is approximately 10 months.

The Logistics Coordinator and Counsel to the Tribunal will arrange translation/interpretation services when evidence is given in Chinese or other languages.

Release of the report will include one or more public events, including online events.

Transparency, Media and Outreach

The Tribunal will be conducted with a commitment to transparency regarding the evidence it has examined and the sources it has consulted.

The Tribunal will welcome media coverage of its work to encourage public understanding of its methods, purposes, and conclusions. Engagement with media and other interested sectors, and any public hearings or events, will be conducted under media engagement ground rules to be decided by the Tribunal to ensure accurate portrayal of the Tribunal, and to protect vulnerable witnesses.

The Tribunal will seek out information and responses from governmental and other institutions involved in China’s organ-procurement and transplantation system, both internationally and in China.

Conclusions and Recommendations

If the Tribunal finds that international crimes have been and/or continue to be committed, it is asked to identify what legal and other actions should be taken by the international community and against whom (individual, institutional, state or all).

Anticipated uptake of the Conclusions and Recommendations

The findings and recommendations of the Tribunal will be of interest to the general public, journalists, China-watchers outside China, NGOs, policy makers (medical, legal, academic and governmental), Chinese officials, academics, medical and non-medical transplant professionals, any surviving victims of incarceration, and the family members, friends and community of those victims who have been killed.

Through the Tribunal, ETAC also aims to bring recognition, solace and hope to victims and members of the victimized and targeted groups; to signal that their suffering is not being ignored, that their demands for accountability are just, that in principle they deserve restorative justice, and that there is hope for an end to forced organ harvesting in China.

References

Grace, R. and Bruderlein, C. (2015). HPCR practitioner’s handbook on monitoring, reporting, and fact finding. Cambridge, MA: Harvard T. H. Chan School of Public Health, Harvard Humanitarian Initiative, pp.27-28. [ebook] Available at: https://hhi.harvard.edu/sites/default/files/publications/handbook-hpcrweb.pdf [Accessed 24 Jan. 2018].

Commissions of inquiry and fact-finding missions on international human rights and humanitarian law and guidance – Guidance and Practice. (2015). New York and Geneva: United Nations pp1-152. Available at: http://www.ohchr.org/Documents/Publications/CoI_Guidance_and_Practice.pdf [Accessed 24 Jan 2018].

Report of the United Nations Independent Special Commission of Inquiry for Timor-Leste. (2006). [ebook] Geneva: United Nations Independent Special Commission of Inquiry, pp.2,3. Available at: http://www.ohchr.org/Documents/Countries/COITimorLeste.pdf [Accessed 24 Jan. 2018].

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