Stateless Crimes, Legitimacy, and International Criminal Law: The Case of Organ Trafficking

Abstract

Organ trafficking—coercion for the purpose of removal of organs (United Nations 2000; GTZ 2004)—is recognized as a significant international problem. Yet unlike sex trafficking or trafficking in children, it is largely left out of international criminal law regimes and to some extent of domestic criminal law regimes as well. It does not come within the jurisdiction of the ICC, except in very special cases such as when it is conducted in a manner that conforms to the definitions of genocide or crimes against humanity. Although the United States Code characterizes trafficking as “a transnational crime with national implications,” (22 U.S.C. § 7101(b)(24) (2010)), it is rarely prosecuted in domestic courts. It has thus functioned in practice largely as what might be judged a “stateless” offense, out of the purview of both international and national courts. Yet organ trafficking remains widespread—and devastating to those who are its victims. In this article, we begin by describing what is known about the extent of organ trafficking. We then critically evaluate how and why such trafficking has remained largely unaddressed by both international and domestic criminal law regimes. This state of affairs, we argue, presents a missed chance for the legitimacy of international criminal law and an illustration of how far current international legal institutions remain from ideal justice.

Keywords: Organ Trafficking, International Criminal Law, Transnational Crime