Abstract
The illicit trade in body parts in Bangladesh has been well-documented by both the media and academic scholarship. However, there is limited research addressing the question of the role of the law in preventing the trade and delivering criminal and remedial justice. Through a case study, this article critically evaluates the adequacy of Bangladeshi anti-trafficking law to criminalise organ trafficking whilst also ensuring victim protection. The analysis draws out three key gaps in the application of the law to achieve justice: vague laws related to organ trafficking; poor implementation of existing laws; and absence of adequate policies. We argue that gaps in international law (either their content or their application to Bangladesh), combined with problems relating to capacity, have negatively impacted domestic laws relating to organ trafficking.
1 Introduction
Documented instances of trafficking in human beings for organ removal (organ trafficking) continue to increase globally, after they were first detected in the late 1980s. Global Financial Integrity estimates that 10 per cent of all organ transplants in the world are now undertaken using trafficked organs, with kidneys remaining the most illegally-traded organ.1 As with any type of human trafficking, though, organ trafficking is clandestine and hidden, so that these numbers likely underestimate the scale and scope of the problem of organ trafficking.2
Recent research has identified the increasing exposure of vulnerable migrant and refugee populations3 and children4 to organ trafficking. However, there remains little research on the effectiveness of laws criminalising organ trafficking, with only two recent studies evaluating the criminal justice responses to the problem.5 This article, therefore, seeks to identify the key gaps in terms of the criminal justice responses to organ trafficking and uses Bangladesh as a case study to answer this question. Bangladesh is frequently cited as a major organ trafficking hub within the South Asian region.6 However, there is still a lack of critical analyses on the legal remedies to organ trafficking in Bangladesh and many other jurisdictions, including the possibilities and limits of international law in shaping and guiding domestic organ trafficking laws. We argue in the article that the resulting gaps in Bangladesh’s domestic law have negatively impacted the possibilities for justice in organ trafficking cases, from the lens of both the victims and offenders.
We first provide a brief overview of the organ trade in Bangladesh. Following a brief description of our methodology, we critically review the relevant international laws and domestic laws. We argue that relevant international laws have failed to provide clear guidance in shaping relevant domestic legislation in Bangladesh. This, in turn, has implications for justice, broadly conceived. In evaluating justice in organ trafficking cases, the main part of the article focuses on a case study of currently filed cases in the Kalai region of Joypurhat District in northwest Bangladesh. A brief conclusion follows.
2 The Organ Trade in Bangladesh and Joypurhat District
Bangladesh is one of the growing organ bazaars for local and international patients who buy organs from poor people. Brokers work as middlemen who are the main traffickers. Brokers approach poor citizens, telling them that kidney donation is a lucrative, harmless, and noble act. After successfully persuading the victims, brokers arrange for the medical procedures, and extract huge profits from the sale. Victims are normally paid far less than the original amount promised by the brokers. Moreover, after the operation, victims suffer from various degrees of physical and vocational disability. As Moniruzzaman states, ‘[t]here is no safeguard as to where the organs are coming from and how safe they are, and on the other hand, the seller’s health deteriorates after the operation. That has a huge impact on their earning capacity because they cannot go back to their old physically demanding jobs.’7
There are different factors contributing to the expansion of this crime. The causes and factors that facilitate human trafficking more generally apply to the specific context of organ trafficking. The contributing factors are poverty, social exclusion, gender discrimination, widespread illiteracy, lack of awareness, and poor governance.
Poverty is one of the causes of organ trafficking as with the other forms of trafficking. Poor people become poorer because of the unfair distribution of income between the poor and the rich.8 About 80 per cent of people live in rural areas where the poverty rate is comparably higher than that of urban areas.9 Credit-based income generating activities are the main tasks that keep poor people from bankruptcy. However, these credit programmes have been criticised as indirectly facilitating organ selling.10 It has been reported that, in Kalai, victims sold their kidneys to pay off debts incurred through loans taken out with microfinance institutions.11 Lack of education amongst the organ providers is another part of the explanation for the high incidence of organ trafficking. Many people do not have any idea about the functions of the kidneys. Further, corruption and trafficking are interconnected in the Bangladeshi context. There have been allegations against the police for supporting criminals and taking bribes from organ brokers.12
Vulnerability to exploitation is not the only cause behind human trafficking. The principles of supply and demand also play an important role in contributing to its expansion. The increased number of kidney patients in Bangladesh provides evidence for the fact that governmental measures do not adequately help promote a healthy lifestyle which would reduce the demand for transplanted kidneys caused by organ failure. It has been reported that about 20 million people are patients of kidney disease and about 35,000 to 40,000 people die from the disease every year in Bangladesh.13 It is impossible for the poor patients of Bangladesh to afford the cost of kidney transplantation as dialysis is a very costly treatment.14
Joypurat District has become one of the many places in Bangladesh that have attracted attention as an organ trafficking hotspot.15 In 2011, the Bangladeshi police arrested a large network of brokers of organ trafficking operating in Kalai of the Joypurhat District.16 At the time of writing, most of those who were charged have been released on bail. Upon their exposure in 2011, these criminal networks changed their modus operandi and shifted the location for surgeries outside Bangladesh.17 Nevertheless, local people continue to sell their organs.18 According to the 2017 report by Global Financial Integrity, nearly 120,000 organ transplants conducted in 2014 in Bangladesh were illegal.19
3 Methodology
This article adopts a qualitative methodology based on a case study of pending legal cases of organ trafficking in the Kalai region of Joypurat District in northwest Bangladesh. We analyse two types of data: legal transcripts from the pending cases and semi-structured interviews. Five male victims of organ trafficking aged 35 to 45 were interviewed, as well as one public prosecutor and one investigating police officer involved in these cases. Brunovskis and Surtees have suggested that qualitative interviews are an appropriate method for conducting research involving trafficked persons because they provide in-depth insights into victims’ experiences and perspectives.20 Strict ethical protocols were followed, including the application of the do-no-harm principle, accessibility of draft outputs to participants should they request these, anonymity for all participants, and sensitivity to the trauma of the experience of organ removal for the victims, including providing referrals to appropriate supporting organisations where available.
It is widely recognised that victims of any form of human trafficking are a hidden population and researchers often face difficulty in locating and accessing victim participants for this reason.21 This was also the case for our study. The Bangladesh Police play a vital role in counter-trafficking in Bangladesh, through its Monitoring Cell. Since 2004, the Bangladesh Police have operated this Cell and monitored and maintained a database of trafficking cases. They collect information and intelligence about the number and type of victims, rescues and recoveries of trafficked persons, arrests of offenders, the progress and outcomes of prosecutions, and the status of rehabilitated/reintegrated victims. We were able to secure the participation of the five victims drawing on information in this database. Because of the travel restrictions associated with the pandemic, which severely impacted our fieldwork during 2020 and 2021, we drew on the assistance of the Inspector of Investigation at Kalai Police Station to assist us in contacting the prospective participants and facilitating interviews. All interviews were conducted virtually, via Zoom. This medium for conducting interviews was not ideal, due to poor internet services and reduced ability to develop rapport with the victim participants. Interviews were necessarily of a reduced duration compared to what might had been possible if the interviews were conducted in person. We were guided by a small emerging literature reflecting on how the impact of covid-19 on fieldwork may be navigated.22 It should also be noted that, according to the Monitoring Cell, there were no organ trafficking victims recorded in their database for 2018 to 2019. It was then that we became aware that the victims we hoped to interview were, in fact, also classified as offenders in the Kalai cases. We discuss this in further detail below, and in relation to the departure this classification provides from adherence to the non-punishment principle for victims of human trafficking.
There are several cases of organ trafficking pending before the court under Bangladesh’s Penal Code and Human Organ Transplantation Act 1999. These include for instance Case no. ps (Police Station) Kalai 16(8)2015 which was brought under section 326/307/420 of the Penal Code and section 10(1) of the Human Organ Transplantation Act 1999. Another case is ps (Police Station) Kalai 10(9)2017 brought under the same section. These are the cases on which we draw for this study. We were able to obtain the necessary documents pertaining to the investigation and prosecution of these cases from the Inspector of Investigation and one lawyer of the Joypurhat District Court. We had these documents translated from Bengali to English for the purposes of analysis. Our analysis focused on the charges that were laid and the reasons why these charges were laid, limits to evidence gathering, and the status of the cases as of July 2021.
Our analysis revealed there are at least three problems and gaps associated with the conduct of these cases when considered in light of the guiding principles from relevant international legal frameworks on organ/human trafficking. These problems are imprecise laws of organ trafficking, poor implementation, and absence of adequate policies. The next section of this article explores the gaps in existing international and domestic laws relating to organ removal.
4 Imprecise Laws of Organ Trafficking
There are several international law instruments focused on the prohibition and criminalisation of organ trafficking. Some instruments are binding, although they do not contain any provisions explicitly addressing organ trafficking. These include the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (commonly known as the Trafficking Protocol) and the South Asian Association for Regional Cooperation saarc Convention on Preventing and Combating the Trafficking in Women and Children for Prostitution. Some international law instruments are of a non-binding nature, but they have specific guidelines. These include the who Guiding Principles on Human Cell, Tissue and Organ Transplantation, and the Declaration of Istanbul on Organ Trafficking and Transplant Tourism). The guidelines are briefly outlined in section 4.3. below.
Being a signatory state to the aforesaid instruments, Bangladesh has enacted three specific pieces of legislation, namely the Human Trafficking Act 2012, the Human Organ Transplant Act 1999 and Human Organ Transplant (Amendment) Act 2018, to address human and organ trafficking. This section analyses both international and national law instruments and identifies gaps such as definitional limitations, ambiguity around the abuse of vulnerability and the absence of the non-punishment principle.
4.1 Definitional Issues
The Trafficking Protocol came into force in December 2003. It is, in principle, a useful guiding instrument for Bangladesh, which has ratified the Protocol. The main purpose of the Trafficking Protocol is to establish a framework to prevent trafficking, to assist the victims of trafficking by protecting their human rights, and to increase cooperation among states to combat trafficking.23 Through its ‘3P’ paradigm (prosecution, protection and prevention),24 it adopts a human rights-based approach, although a criminal justice approach to counter-trafficking is prioritised.
Article 3(a) of the Trafficking Protocol lists out three elements of human trafficking which include the act (recruitment, transportation, transfer, harbouring or receipt of persons, give/receive benefit and control), the means (the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability) and the purpose (exploitation which includes the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs). Under article 3(b), in a case of exploitation, the consent of the victims is irrelevant. Trafficking of human beings for organ removal is identified as one of several forms of human trafficking in the Protocol.25 However, no specific definition of organ trafficking is provided.
The Trafficking Protocol’s definitional limitations were expounded by the UN Working Group established to advise and assist on the implementation of the Trafficking Protocol26 in its second session in January 2010.27 The Working Group noted that the Legislative Guide for the Implementation of the Trafficking Protocol did not define the term ‘exploitation’ properly. As a result, different states have taken different approaches. Some states (eg Malaysia and the United Arab Emirates) have incorporated the approach taken in the Trafficking Protocol regarding exploitation (by not providing a legal definition), while others (eg Bulgaria, Egypt, Qatar, Thailand and Uganda) have followed the Protocol but incorporated additional forms of exploitation. Some states (eg Brazil and Sweden) have adopted fewer forms of exploitation compared to the Trafficking Protocol. Some countries like Canada and Australia appear to have taken a different approach altogether. For example, according to the legal framework of Australia, trafficking offences do not require any elements of exploitation. Australian law, however, makes a list of patterns of exploitation which assists the identification of trafficking.28 Pugliese also criticises the definition of human trafficking in the Trafficking Protocol, stating that the broad definition of human trafficking could create an impediment to prevention and prosecution and that it addresses labour and sex trafficking more fully than organ trafficking. Indeed, there is an ongoing academic and policy debate as to whether organ trafficking constitutes a form of human trafficking.29 This lack of definition of organ trafficking is problematic in the Bangladeshi context and is one of the key issues discussed in the later part of this article.
The saarc Convention on Trafficking is a regional instrument addressing human trafficking that involves Bangladesh. The saarc Convention on Trafficking was adopted two years after the Trafficking Protocol of 2000. The former, however, does not fully follow the Trafficking Protocol and it only identifies trafficking for the purposes of sexual exploitation, ignoring that in practice there are many different forms of human trafficking in South Asian countries, such as labour trafficking, debt bondage, domestic servitude, illicit adoption, organ trafficking, and other forms of exploitation in which trafficking plays a role, including for ransoms.
To address these definitional problems, a joint study on the issue of organ trafficking was conducted by the United Nations and the Council of Europe in 2008.30 The joint study noted that there are some theoretical differences between trafficking in persons for organ removal and organ trafficking, finding that, ‘in the case of trafficking in organs, the object of the crime is the organ, whereas in the case of human trafficking for organ removal, the object of the crime is the person.’31 As a result of that joint study, in 2014 the Council of Europe adopted the first international treaty on organ trafficking known as the Council of Europe Convention against Trafficking in Human Organs.32
The Council of Europe Convention against Trafficking in Human Organs is the only international instrument that defines specifically organ trafficking. Article 4 prohibits the removal of human organs from living or deceased donors without free, informed, and specific consent and without any authorisation under domestic law. It also imposes restrictions on the buying and selling of human organs. This Convention not only clearly defines organ trafficking/trafficking for organ removal, but also imposes specific obligations relating to preventive, protection and criminalisation measures to combat the crime.
The Additional Protocol to the European Convention on Human Rights and Biomedicine Concerning Transplantation of Organs and Tissues of Human Origin (2002) also addresses the issue of organ trafficking in detail. The Protocol was developed to address supply and demand for organs, specifically through a criminal justice approach and a human rights approach. Adopting a criminal justice approach, this instrument prohibits commercialisation of human organs and tissue.
Despite incorporating a definition of organ trafficking, both the Council of Europe Convention against Trafficking in Human Organs and the Additional Protocol to the European Convention on Human Rights and Biomedicine Concerning Transplantation of Organs and Tissues of Human Origin (2002) have jurisdictional limitations. The instruments are open for signature only to the member states of the Council of Europe and the European Union, and non-member states can only join as ‘observers’ if they received an invitation from the Committee of Ministers. As such, many source and transit countries for organ trafficking have no real opportunity to accede to these instruments. Therefore, the absence of any binding legal instrument for source and transit countries makes it very difficult to control this crime or protect victims and recipients. The same applies to Bangladesh, where the legislators continue to struggle with understanding, defining, and legislating against organ trafficking.
4.2 Ambiguity Around Abuse of Vulnerability
The reference to the words “abuse of a position of vulnerability” is understood to refer to any situation in which the person involved has no real and acceptable alternative but to submit to the abuse involved.36
These discussions on the abuse of vulnerability are important for our analysis in this article, since abuse of situations of poverty and unemployment are both crucial motivators for victims. However, many countries, including Bangladesh, have failed to reflect the abuse of vulnerability in their domestic laws. Further, as Gallagher and McAdams have noted specifically in relation to defining and understanding the abuse of a position of vulnerability amongst counter-trafficking stakeholders, ‘[v]agueness and imprecision obstruct the work of those seeking to end impunity and secure justice for victims’.37 This vagueness and imprecision, they argue, leads to a default position where more direct (and often violent) means used to recruit victims of trafficking, such as kidnapping, are prioritised for investigation and suppression by police and others because they are more easily understood and, in a legal sense, more easily proven. The lack of application of this principle in Bangladesh is crucial if we are to understand the absence of victim identification in the case study under discussion in this article.
4.3 The Non-Punishment Principle and Civil Remedies
One of the major purposes of the Trafficking Protocol is to provide assistance and protection to trafficked victims. However, there are no specific provisions relating to victim identification (which necessarily precedes protection) in this Protocol. The UN Office of the United Nations High Commissioner for Human Rights (ohchr) has developed guidelines for the identification of victims. It has also recommended training for authorities and officials who have a role in the identification of victims, and increased cooperation among all relevant officials and authorities.38 However, this guideline is not a binding instrument.
Moreover, the UN Convention Against Transnational Organized Crime does not address the issue of criminalisation or detention of victims. When victims are misidentified, they may be subject to punishment under immigration or other types of law. Sometimes, they may even be prosecuted by their home countries for unlawful departure.39 State parties must guarantee that victims will not be subject to criminal sanctions or unlawfully detained.40 Though the Trafficking Protocol has no provisions relating to the prosecution and punishment of victims, the Working Group has recommended that state parties should not punish or prosecute the victims of trafficking, as they have been forced to engage in unlawful acts.41
Civil action, in contrast to the prosecutorial approach, can provide more appropriate compensation to people who have suffered unconscionable exploitation, while allowing the trafficked person to control and direct the legal process.43
The most comprehensive lists of civil remedies for victims are set out in the European Convention Against Trafficking in Human Beings (which ensures compensation for all types of losses that a victim has suffered in the whole process of trafficking, including both material and non-material losses) and the unodc Model Law against Trafficking in Persons (which has a list of civil remedies and provides for the formation of a special fund for compensation).44 Another non-binding instrument, the UN Recommended Principles on Human Rights and Human Trafficking 2002, highlights the importance of freezing and confiscating the assets that are involved in trafficking and suggests supporting and compensating victims through those confiscated assets and property.45 The Trafficking Protocol identifies the right to compensation in article 6(6). However, this provision has been criticised for not imposing any mandatory obligations.46
Bangladesh is not a signatory state to the Council of Europe Convention against Trafficking in Human Organs and the Additional Protocol to the European Convention on Human Rights and Biomedicine Concerning Transplantation of Organs and Tissues of Human Origin 2002. As such, Bangladesh is not bound by those international law instruments to combat organ trafficking and to protect the rights of victims. The Trafficking Protocol has also been criticised by scholars for the lack of provisions on how to identify the victims, and the absence of mandatory provisions for victim protection and assistance.47 In addition, although the Trafficking Protocol has a global reach, it does not have any enforcement mechanism (like past conventions relating to trafficking).48
In addition to those binding instruments, there are some non-binding instruments addressing the issue of organ trafficking. Through the first initiatives of the 40th World Health Assembly (wha) in 1987, the World Health Organization (who) incorporated its Guiding Principles on Human Organ Transplantation in Resolution wha 44.25 in 1991.49 At the request of the Government of Colombia, the who undertook further work on the issue of trafficking of human tissues and organs and Resolution wha 57.18 was adopted in 2004.50 The who modernised the Guiding Principles in the wha 63.22 in 2010.51 A number of member states developed and enacted their domestic laws following those Guiding Principles. These Guiding Principles adopt a systematic framework for the ethical conduct of organ transplantation and donation.
The who guiding principles prohibit the sale or purchase of any human organs. Transplants should be free, without any rewards or inducements involved (Guiding Principle 5). The who also recommends bans on any kind of advertisements seeking organs including offering payments for organs (Guiding Principle 4). Guiding Principle 7 imposes restrictions upon all medical professionals who engage in illegal transplants and discourages health insurers from covering the associated costs. Finally, Guiding Principle 11 states that all activities connected with organ donations and transplants should be transparent and open to scrutiny. The objective is to identify the risks and minimise the harm to donors and recipients, while maintaining their privacy.
The Preamble to the who Guiding Principles acknowledges that there is a shortage of organs (in rich, developed countries) and increasing demand (in poor, developing countries) and that this fuels the crime of organ trafficking. Notwithstanding the Guiding Principles, organised criminals are active.52 There is strong evidence suggesting that physicians and other health professionals are involved in this illegal trade,53 and that health insurance companies are covering the costs of illegal transplants.54
Following the Guiding Principles, the Declaration of Istanbul (2008) emerged from a summit in Turkey organised by the Transplantation Society and International Society of Nephrology.55 The Istanbul Declaration sets out a series of principles designed to regulate the practice of transplants, and to prevent organ trafficking.
Notwithstanding the details, both the who Guiding Principles and the Istanbul Declaration have some drawbacks. Budani and Columb have argued that the Istanbul Declaration does not clearly define the term ‘organ trafficking’ as per the Trafficking Protocol and that it fails to focus on all the elements of human trafficking.56 As such the definition is not consistent with international law. Another defect of the Istanbul Declaration is that, unlike the Trafficking Protocol (where consent of the victim is irrelevant), the Declaration is silent on the issue of consent. Further, these two instruments are soft laws and not binding. They have no enforcement mechanism or any mechanism enabling the review of the implementation of their provisions.
Though the who Guiding Principles and Istanbul Declaration are soft law instruments, the Bangladeshi government could still follow them and develop and adopt strict health policies to help prevent transplant tourism and organ trafficking within its jurisdiction and amongst its citizens. The who’s Guiding Principles could also help formulate measures necessary for the care of live donors. Bangladesh has an obligation as a member state of the Trafficking Protocol to develop and implement legal instruments to punish brokers and traffickers and ensure the accountability of transplant recipients.
Bangladesh has passed several pieces of legislation to combat human trafficking, and has recently signed the Trafficking Protocol. In 2012, Bangladesh passed the Prevention and Suppression of Human Trafficking Act.57 This instrument purports to adopt both a human rights-based and a criminal justice approach. The most important contribution of this instrument is that it solves the definitional limitations found in previous domestic legal instruments by offering a definition for the term human trafficking. The definition of human trafficking is strongly influenced by the Trafficking Protocol, and it acknowledges both internal and cross-border trafficking. It is also a gender-neutral instrument, applicable to persons irrespective of gender, race, age, religion and ethnicity. The Human Trafficking Act 2012 also expands its application through addressing different forms of trafficking such as sexual exploitation and prostitution, forced and bonded labour, forced begging, forced marriage, removal of organs for trade, and other kinds of exploitation.
Like the Trafficking Protocol, Bangladesh’s Human Trafficking Act 2012 highlights different means of human trafficking (the threat or use of force or deception, the abuse of a position of socio-economic or environmental and other types of vulnerability). Here, a position of vulnerability indicates a person’s socio-economic or environmental vulnerability. Though the Act does not define other types of vulnerability, it defines consent in section 2(17): the consent is not free where it has been influenced by a person’s weak position related to his or her age, sex, and other socio-economic backwardness. As mentioned earlier, though the Trafficking Protocol does not define the term exploitation, some member states sought to expound its meaning in their own domestic laws. In Bangladesh, exploitation is defined under section 2(15) of the Human Trafficking Act 2012. It recognises different kinds of exploitation and includes maiming any person or the removal of organs for the purpose of trafficking with or without his or her consent. Thus, the interviewees in our research (discussed in further detail below) who sold their kidneys to pay off their debt are considered trafficked victims notwithstanding that they have consented to the organ removal as their consent was influenced by their socio-economic status. They are the victims of abuse of their position of vulnerability and thus any consent given is irrelevant. The Act also identifies various rights of victims and provides protection measures for trafficked victims. In addition, it focuses on preventive measures to reduce vulnerability to human trafficking.
Bangladesh has enacted a few other pieces of legislation to prevent illegal organ trade, most prominently the Human Organ Transplantation (Amendment) Act 2018. Before the predecessor law, the Human Organ Transplantation Act 1999, was passed to regulate organ transplantation, an organ transplantation was first introduced in 1982.58 Except sections 9 and 11 of the Human Organ Transplant Act 1999, all other sections (sections 2–7, 7ka, 7kha and 7ga, 8,10,10ka and 10 kha) of this Act were later revised, and the amended law was approved by the cabinet on 17 July 2017. The new Act59 extends the application and scope of laws relating to organ transplantation. According to its preamble, the main purpose of this Act is to collect, reserve and ensure legal human organ transplantation. It aims to prevent organ trafficking through outlining the responsibilities of hospital authorities and doctors.
Section 10 ka of the Human Organ Transplantation (Amendment) Act 2018 outlines the punishment which applies to hospitals involved in the illegal trade. On a finding of guilt, the permission to transplant may be revoked and a fine would be issued. To date, no hospital has lost its permission and been fined. This Act does not provide any definition of organ trafficking and it overlooks the issue of consent. Moniruzzaman evaluates the current law relating to organ transplantation in Bangladesh in this way: ‘the new Act 2018 is a carbon copy of the previous Act 1999, except the new Act expands the donor list, reduces the imprisonment terms, and increases the monetary penalty for its violation … Bangladesh enacted a lax law instead of tightening its terms’.60 The Act also ignores the rights of victims of organ trafficking.
5 Poor Implementation
The foregoing review of international legal instruments identifies several important guiding principles that, if applied to Bangladesh, could assist with the development of more robust legislation and policy in relation to organ trafficking. Victim rights and protections are of particular note here, with principles such as non-punishment of victims and victim protection and rights lacking in existing Bangladeshi law. The review of relevant international law instruments also fleshes out some of the weaknesses that have, arguably, hampered the development of better law and policy in Bangladesh. In particular, the lack of a coherent and clear legal definition of organ trafficking means that Bangladeshi law and policy makers struggle to tease out a legal definition of organ trafficking under a rights-based approach. Part of this problem is geographical – whilst the various European conventions are progressive definitionally and in elaborating a rights-based approach to the problem, their geographical remit is limited to European states. Part of the problem is also about the lack of binding mechanisms for other progressive and comprehensive reviews and guidelines, such as the Istanbul Declaration. This section draws out in further detail the key principles that would enhance legal justice in organ trafficking cases in Bangladesh, as well as examining the limits of international legal instruments in the Bangladeshi context. In this part of the article, we examine the applicability of the principles contained in international law instruments to improve legislative and policy responses to organ trafficking in Bangladesh, with a particular focus on victims in the justice system. We argue that existing laws are largely ineffective from a criminal justice and human rights perspective. This is true of both the Human Trafficking Act 2012 and the Human Organ Transplant (Amendment) Act 2018.
5.1 Violation of Principle of Non-Punishment and Other Rights of Victims
The right to legal assistance is one of the most important rights of victims as it helps them to realise and enjoy other rights.61 The saarc Convention (to which Bangladesh is a party) also instructs member states to ensure legal assistance to women and children who are victims of sexual exploitation. The Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power62 provides that a victim is entitled to be informed about their pending cases and access other assistance. Strictly speaking, however, this Declaration does not impose any legal obligations on Bangladesh.
In the absence of any legally enforceable responsibilities stemming from international legal instruments, the rights of victims in Bangladesh are addressed under existing procedural and substantive domestic legal frameworks. This section demonstrates that these measures for protection and legal assistance are not victim-oriented and do not comply with international standards.
The criminal justice system of Bangladesh follows the adversarial common law model and is strongly focused on the rights of people charged with crimes. The Constitution establishes some fundamental rights for all citizens, including victims. One of these rights is the right to equal protection of law and equal treatment before the law.63 However, these rights are primarily interpreted as procedural safeguards for offenders. The Code of Criminal Procedure 1898 addresses a range of procedural rights of victims of crime, including the right to file a case,64 the right to be examined by an investigating officer (section 161) and magistrate (section 164), the right to oppose a petition for bail, the right to appeal, and the right to compensation (section 545). In addition, sections 151 and 152 of the Evidence Act 1872 ensure the protection of witnesses in the courtroom. These sections prohibit indecent, scandalous or insulting questions during cross examination.65 There are additional special laws such as the Prevention of Cruelty against Women and Children Act 2000, the Acid Control Act 2002, the Law and Order Disrupting Offence (Speedy Trail) Act 2002, the Domestic Violence (Prevention and Protection) Act 2010, the Children Act 2013, and the Torture and Custodial Death (Prevention) Act 2013, which set out the rights of victims and witnesses.
Victims of human trafficking have a right to be informed about their pending cases at least once monthly,66 and are entitled to be informed about their own rights (section 115). They are also entitled to access to legal aid services from the government. The National Plan of Action (npa) 2018–2022 states that the government will develop the capacity of the National Legal Aid Services Organisation, and will provide legal aid services to at least 3,700 victims by 2020.67 Notwithstanding these laws and policies, our fieldwork indicates that victims often do not have any information about the progress and status of their pending cases.
Sections 503 and 506 of the Penal Code protect victims and witnesses by penalising intimidation of witnesses. In order to protect the privacy of victims, courts can conduct trials in-camera.68 Under the Human Trafficking Act 2012, the court has authority to examine a witness either individually or through the Commission (formed by a District Magistrate or Chief Metropolitan Magistrate or Chief Judicial Magistrate)69 at any place and record the statement of the victim. Examination can also be done directly or electronically (section 22). Section 38 of that Act highlights the rights of child victims and witnesses. Victims and witnesses who are under threat or at risk are entitled to apply for police protection and for other protective measures to be taken (section 37).
Only limited research has been carried out on the issue of protecting victims and witnesses.70 In 2007, the Bangladesh Law Commission proposed a draft law relating to compensation for victims of crime. Unfortunately, that draft has yet to be approved by the government.71
Another very important right addressed by this Act is the principle of non-punishment. As we have discussed earlier, this right has been overlooked by the Trafficking Protocol. According to section 37 of the Human Trafficking Act 2012, any victim of the offence of human trafficking will not be subject to conviction or punishment under this Act or under any other existing law. However, in our fieldwork it has been revealed that all victims of organ trafficking are held criminally liable under different legislation which is inconsistent with this special law. The next section outlines how wrong laws are applied in a case of organ trafficking.
5.2 Wrong Laws Applied
It has been confirmed through our data that all cases of organ trafficking have been registered under sections 326, 307 and 420 of the Penal Code 1860 along with section 10(1) of the Human Organ Transplantation Act 1999. All these were registered before the 2018 amendment of this Act. Section 307 of the Penal Code addresses attempts to murder victims under which the offender shall be punished with imprisonment which may extend to ten years and may also incur a fine. When hurt is caused then the offender shall be liable to imprisonment for life or the death penalty. Section 326 outlines the punishment for voluntarily causing grievous hurt by dangerous weapons or means under which the offender shall be punishable with imprisonment for life or imprisonment for a term which may extend to ten years and also be liable to a fine. Section 420 sets out a punishment of seven years imprisonment and a fine for cheating and dishonestly inducing the delivery of property. The prosecution also uses the Human Organ Transplantation Act 1999 and the Human Organ Transplantation (Amendment) Act 2018 to hold offenders account for illegal organ transplantation.
Through section 9, the Human Organ Transplantation Act 1999 prohibits the illegal trade of organs and bans any type of advertisements of organ selling and buying. However, neither ‘illegal organ trade’ nor ‘organ trafficking’ are defined in this Act. This Act is silent on consent of the seller, the existence of vulnerability and the abuse of vulnerability issues. Any person who violates the aforementioned provisions will be liable to a maximum of three years imprisonment and/or a fine of bd Taka 10 lakh (section 9). If we analyse the charge sheet of pending cases, it appears that all the alleged accused sold their kidneys to overcome their poverty. The cases should therefore have been filed under the Human Trafficking Act 2012 under which the organ sellers would be considered victims but not criminals. The cases have therefore been filed under the wrong laws and the aforesaid provisions are inconsistent with the non-punishment principle of the Human Trafficking Act 2012.
5.3 Corruption and an Ineffective Criminal Justice System
Corruption facilitates human trafficking networks from a country of origin to destination countries. Corrupt officials fuel human trafficking because they receive benefits from this crime.72 It has been confirmed in our fieldwork that certain police officers accept bribes which negatively influences the effectiveness of the criminal justice system. None of our interviewees had any knowledge about the progress of their pending cases. Nor did they receive any help from anyone; rather they had to pay bribes at every step of the criminal proceedings. It has also been confirmed that forged passports are created showing the blood relationship between the victim and the recipient when corrupt passport officials are involved. Not only do bribery and corruption affect the integrity of the criminal justice proceedings, they further impoverish the victims, who are mistreated as criminals and forced to pay excessive bribes during the legal proceedings.
5.4 Lengthy Procedural System
As regards prosecution and trial, the Human Organ Transplantation Act 1999 and Human Organ Transplantation (Amendment) Act 2018 follow the procedure under the Code of Criminal Procedure 1898.73 The Code of Criminal Procedure 1898 is a procedural law that outlines the investigation and trial procedures for different types of organised crime such as human organ trafficking in the twenty-first century. The Bangladeshi government did not bring significant changes to the investigation and the trial system. Under this Code, an investigation report should be submitted within 120 days74 and trial should be concluded within 360 days (section 339C). However, in practice a case takes 3 to 5 years to be concluded. Lack of witnesses and proper evidence and a lengthy procedural system create a favourable environment for criminals. Organ trafficking is a hidden crime. Investigation and trial should be conducted quickly in a similar manner to other special laws such as under the Human Trafficking Act 2012, under which investigation should be completed within 90 days.75
5.5 Remedies for Victims
In a civil suit, the victim controls his or her case without the need to wait for the prosecution of the criminals.76 Civil litigation can lead to awards of both compensatory and punitive damages. It also has a lower burden of proof compared to criminal prosecution.
The concept of victims using civil litigation to seek compensation is not widely known or understood in the Bangladeshi legal system. Bangladesh takes a (limited) criminal justice-oriented approach to human trafficking, focusing on the punishment of traffickers. There are some provisions that contemplate compensation for victims, including the Women and Children Repression Prevention Act 200377 and Domestic Violence (Prevention and Protection) Act 2010.78 The Human Trafficking Act 2012 confers rights to civil remedies to victims under sections 28, 39 and 40.
Under section 28 of the Human Trafficking Act 2012, the special tribunal has jurisdiction to order reasonable compensation be paid to trafficked victims. It can also impose fines and compensation together, and it has authority to recover a reasonable amount of compensation from an offender according to the Public Demands Recovery Act 1913. The special tribunal also has power to give the whole or any part of the fine to victims. The Human Trafficking Act 2012 clarifies the circumstances which the tribunal must consider before making a compensation order, which is discretionary. Section 28 sets out a list of possible costs to be compensated (including the costs of physical and mental treatment of the affected person; costs of necessary transportation; costs of temporary housing and lost income; sufferance; costs of actual or emotional injury and the gravity of the distress), which is similar to the list in the unodc Model Law. In addition, section 39 entitles victims to file a civil suit for compensation in a civil court. Victims can sue for compensation in a civil court for their suffering and injury, apart from the criminal proceeding. However, as confirmed in our fieldwork, it is rare in practice for victims to file a civil suit for compensation. Further, the Human Organ Transplantation (Amendment) Act 2018 does not recognise any civil rights of the victim to claim compensation.
In addition to these civil remedies, the government has a responsibility to provide financial support to victims through the establishment and activation of a National Fund.79 In 2017, the government introduced the Human Trafficking Prevention Fund Rules 2017 to constitute a National Human Trafficking Prevention Fund for providing financial assistance to trafficked victims. However, there is no information available demonstrating that the Human Trafficking Prevention Fund has been activated.
While it appears from the legislation that existing law follows international law on paper, the effectiveness of its implementation is questionable when evaluated against the national data on human trafficking prepared by the Monitoring Cell of the Bangladesh Police. This data has no information on anyone receiving compensation or garnishing fines.80 The absence of any case law on the topic indicates that civil remedies under the Human Trafficking Act are infrequently utilised by victims. This conclusion is reinforced by the finding from our fieldwork, from which we confirm that victims are not kept appraised of the developments in their cases. For these victims, receiving compensation is not within their contemplation.
Our fieldwork confirmed that victims of organ trafficking are treated as criminals so there was simply no question of compensation and remedies. In addition, civil remedies for victims were not addressed at all in the new npa 2018–2022, although the Human Trafficking Act 2012 does include a plan to create a national authority and national fund to give financial assistance to victims. That said, at the time of writing, the national fund is not yet in operation. Now we turn to discuss the medical and psychological support to organ trafficking victims.
5.6 Rights to Medical and Psychological Support
Victims of trafficking face significant physical and mental health problems.81 This was confirmed in our fieldwork. Victims are entitled to medical and psychological support to facilitate the enjoyment of other human rights and avoid being re-trafficked. However, there is no research analysing the responsibility of health care professionals to victims in Bangladesh.82 This section demonstrates that the medical and psychological supports required have been largely overlooked by the law and by institutions.
Under the Human Trafficking Act 2012, trafficked victims who are in shelter homes or rehabilitation centres are entitled to medical and psychological support.83 However, this Act does not have any explicit provisions on providing medical and psychological support to the organ trafficking victims.
There is no specific guideline in the Human Organ Transplantation (Amendment) Act 2018 regarding medication and proper medical follow up for victims of organ trafficking. It is not uncommon that victims of organ trafficking suffer mentally. Common problems include anxiety, depression and post-traumatic stress disorder (ptsd).84 There is no provision in this Act obligating the provision of mental support to the victims.
the medical education of health care professionals should be grounded in a victim–centred, culturally relevant, evidence based, gender sensitive, trauma-informed perspective and include the essential components of prevention and identification of trafficking and treatment of trafficking related health conditions.87
Medical education in Bangladesh does not meet these objectives. The Bangladesh Ministry of Health is silent on the need to provide care and support to victims. The current npa 2018–2022 does not address this matter.
To sum up, a lack of understanding of human trafficking laws and the violation of the non-punishment principle are evidence of a poor criminal justice system in Bangladesh where the rights of the victims are usually neglected and unaddressed. There is no framework for restorative justice in Bangladesh. The absence of comprehensive victim and witness protection instruments is one of the obstacles to implementing trafficking related laws.88 The criminal procedural system is affected by corruption, continuous threats to victims and family members by criminals, ignorance of the laws among officials, weak protection measures that are not victim-oriented, and a failure to comply with international standards.
6 Absence of Policies
This section analyses and discusses the current policies of Bangladesh targeted at preventing human trafficking. We consider what reasonable and necessary steps can be taken to address this crime. The ohchr has identified several approaches such as prevention through addressing vulnerability to trafficking, prevention through addressing demand, and prevention through addressing corruption and complicity to deal with human trafficking.89 In this section of the article, we utilise these strategies and measures to evaluate the effectiveness of current plans and policies. We demonstrate that while most of these policies and programmes are consistent with a human rights approach, existing institutions are unable to actively implement these policies in Bangladesh.
6.1 Policy Addressing Vulnerability to Trafficking
The principal policy of Bangladesh addressing human trafficking is the npa. Since 2002, Bangladesh has formulated a few npa s to combat human trafficking, including npa 2009–2011, npa 2012–2014 and npa 2015–2017. The fourth npa 2018–2022 is fully consistent with a human rights-based approach as it is based on the Sustainable Development Goals (sdg s) and the 7th five-year plan,90 and both plans work directly and indirectly towards combating human trafficking. Despite not having any specific plan to address organ trafficking, this current plan focuses on different causes of human trafficking that apply in the context of organ trafficking.
Three goals of the sdg s are directly concerned with the prevention and suppression of human trafficking. Goal 5 focuses on gender equality and empowering all women and girls, Goal 8 addresses the importance of economic growth through full and productive employment and decent work for all, and Goal 16 addresses access to justice for all and the imperative to build effective, accountable, and inclusive institutions at all levels.
Following these three goals and other sdg targets, npa adopts five objectives to combat human trafficking: prevention of human trafficking; protection of victims; ensuring an effective trial; partnership and cooperation; and monitoring and evaluation.91 These five objectives reflect the Trafficking Protocol. Different programmes are undertaken by the government to fulfil those objectives, as will be illustrated in the following discussion.
A few of the limitations of the earlier npa 2015–2017 have been addressed in the new npa 2018–2022. The npa 2015–2017 faced a range of challenges, including inadequate and improper processes to raise awareness, lack of coordination in identifying victims and people vulnerable to trafficking, and funding and resource issues in running Counter Trafficking Committees (ctc s) and other programmes.92 The current npa 2018–2022 highlights the need for more social and economic security, given that (as we have previously demonstrated) poor social and economic conditions are one of the main triggers of human trafficking. In contrast, the previous npa focused more on raising awareness towards trafficking. The current npa seeks to address the causes of vulnerability to human trafficking, such as poverty, inequality, discrimination, family violence, sexual abuse, exploitation of women and children, and corruption. In the following paragraphs, we discuss these triggers of human trafficking in more detail.
6.2 Policies Addressing Poverty and Inequality
Poverty reduction is one of the specific objectives of the npa 2018–2022. The npa elaborates on strategies such as the reduction of disaster-induced vulnerability; the vulnerability of marginalised households to human trafficking; and the reduction of risks affecting the most vulnerable people, including people with disability, indigenous people, vulnerable children, and young people. Bangladesh has also set targets within the sdg s to eradicate poverty by 2030. It has also undertaken numerous initiatives, including the Vulnerable Group Development Program (2017 to 2021), and Micro-Credit for Poor Divorced Helpless Women (2017 to 2021).
According to the 2016 Household Income and Expenditure Survey conducted by the World Bank, the poverty rate in Bangladesh has declined. In 2016, the poverty rate was 24.3 per cent, down from 31.5 per cent in 2010, and extreme poverty was at 12.9 per cent in 2016, down from 17.6 per cent in 2010.93 During this period Bangladesh plainly has made significant progress, but it has failed to reduce the discrepancy between the household consumption of the rich and poor.94 The impact of covid-19 is unlikely to assist Bangladesh in its efforts to combat poverty.
6.3 Policy Addressing Corruption and Complicity
Several international and regional instruments have recognised the strong link between corruption and human trafficking, and have identified the responsibilities of states to combat corruption.95 The UN has also expressed concern over police corruption in the human trafficking process.96 In Bangladesh, there is evidence of both active and passive corruption.97 In this section we argue that the weak enforcement of existing laws and a lack of suitable policy are responsible for the prevalence of corruption in trafficking cases.
One of the most remarkable examples of corrupt conduct by a Bangladeshi official was when a member of the consular corps in the United States (US) was found guilty for violating the trafficking and labour laws of that country and was ordered by a US court to pay a huge amount of compensation to the victims.98 It is understood that the person is still employed in the Bangladesh Foreign Service.99 In another recent case, a Bangladesh consular officer pleaded guilty to labour trafficking and was ordered to pay US$6,887.3 to the victim in 2018.100 Again, Bangladesh did not take any action against that officer. In another arena, it appears that the Rapid Action Battalion of the Bangladesh Army, which provides security in and around the Rohingya refugee camps, may themselves have facilitated trafficking and accepted bribes from organised criminals, and may even have been directly involved in exploitation of refugees.101
Observers accused officials from district employment and manpower offices of facilitating trafficking and some labor attaches, local politicians, judges, and police of requesting bribes from victims and their families. Observers stated some traffickers in rural areas were politically connected and therefore operated with impunity.103
As a member state of the saarc Convention, Bangladesh has obligations to address public complicity in trafficking. Moreover, Bangladesh has the responsibility under the UN Convention against Corruption104 to eradicate corruption in both the public and private sectors. Bangladesh does have domestic legal instruments to criminalise corruption,105 but a lack of implementation makes these instruments ineffective. Further, despite specific recommendations to eradicate corruption in trafficking under the UN Recommended Principles on Human Rights and Human Trafficking 2002, Bangladesh has not incorporated these recommendations in its npa 2018–2022 to fight against corruption as a means of preventing trafficking.
To fight against human trafficking effectively, Bangladesh is currently working with both international and local ngo s, and the npa 2018–2022 highlights the importance of multi-stakeholder partnership. Moreover, Bangladesh has entered into various bilateral agreements with neighbouring countries to build up regional strength to crack down on this crime.106 Bangladesh also attends conferences on human trafficking.107
6.4 Policy Addressing Demand
Gallagher has identified four patterns of demand for trafficking: the demand of employers for cheap and exploitable labour; the demand of consumers for goods and services produced by trafficked victims; the demand of criminals and traffickers to make money; and the demand of corrupt officials who receive benefits from trafficking.108 In addition, according to the UN Recommended Principles on Human Rights and Human Trafficking 2002, low prosecution rates, failed investigations and an ineffective criminal justice system can facilitate demand for trafficking.109 As we discussed previously, the increased number of kidney patients create the demand of illegal organ transplantation.
According to the Human Organ Transplantation (Amendment) Act 2018, an organ must be collected from the body which has heartbeat, meaning that collecting organs from dead bodies is not permitted. This Act also suggests the types of organs which can be transplanted and collected from a body declared brain dead.110 It also mentions the lists of donors who can be legally authorised to donate their organ. Section 7(3) states that a medical board will determine the relationships between donor and recipients. There is, however, no clear directions on the system or procedure that would follow. Though the Act increases the list of donors, in reality it is rare to donate an organ to close relatives. There is no policy addressing the demand of organ transplantation. Even the current policy on human trafficking contained in the npa 2018–2022 provides no guideline on organ trafficking. In light of this, Siraj argued there should be public policy to encourage the organ donation among close family relatives.111
Thus, the government has adopted a range of policies and plans to combat human trafficking. The Women Development Policy 2011 and National Child Policy 2011 mainly focus on elimination of discrimination against women and children, and empowerment of women, as they are more vulnerable to human trafficking. npa 2018–2022 highlights the importance of preventing human trafficking. Several organisations and institutions have the responsibility to put into effect the aforesaid policies. However, those policies overlook the issue of supply, demand for human and organ trafficking, forced or unfree labour, organ trafficking, corruption and official complicity which are factors commonly driving human trafficking.
7 Conclusion
This article has critically reviewed international binding and non-binding legal instruments relating to organ trafficking in order to illuminate gaps in Bangladesh’s domestic organ trafficking legislation and policy. This is against the background of the disturbing increase in incidence of organ trafficking in Bangladesh and the legal treatment of victims of the crime. We argue that this trend is likely to be further exacerbated in the context of the current pandemic and climate change-related displacements; both of which have disproportionately affected already marginalised groups in Bangladesh. We have further argued that corruption within the Bangladeshi bureaucracy and criminal justice sector have negatively impacted the realisation of justice in organ trafficking cases. Drawing on a case study of five criminal prosecutions in Kalai District of Bangladesh, we identified four key problems with criminal justice responses, including: violation of the non-punishment principle for victims of human trafficking; definitional limitations; limited understanding and application of the non-punishment principle; and poor understandings of the criminal justice institutions and applications of the law. We suggest that gaps in international law (either in terms of their content or their lack of implementation in Bangladesh), combined with problems relating to capacity and governance, have negatively impacted the substance and application of domestic laws relating to organ trafficking in Bangladesh.
Reflecting on the information gained from the case study, we made a two-fold argument in the article. First, we suggested that there is scope for greater harmonisation between Bangladesh’s organ trafficking and human trafficking laws with several key provisions within international instruments, including the non-punishment principle, the definition of organ trafficking with explanation of position of vulnerability and consent issue and remedial rights of the victims. Our second argument, which follows from the criminalisation of victims, is that there is significant scope to enhance legal provisions relating to victim rights in Bangladesh, and the application of a rights-based approach to justice for victims more broadly. Improvements in both these areas are important in the first instance because the financial impacts of criminalisation and of lack of access to remedies severely perpetuate the vulnerability of victims and their families.
In the cases reviewed, the victim offenders were forced to outlay considerable funds to lawyers and the police for legal costs associated with their case. Tragically for the victims involved, this outlay of funds exhausted all the gratuity paid to them for the sale of their kidneys. This amount was insufficient for paying professional fees to lawyers. In addition, they have to spend unnecessarily to avoid harassment from the police. This burden of cost leads them to a downward spiral of borrowing from micro-credit organisations. The irony of this situation is that the main source of vulnerability for all five victims in this case study was mounting and intractable debt burdens incurred to micro-credit organisations. Undoubtedly, the legal situation further heightened rather than ameliorated victims’ vulnerability.
Based on the critical review in this article, we make several recommendations to improve responses to organ trafficking in Bangladesh. For government legislators, several amendments to both the organ trafficking and human trafficking legislation are offered. These include incorporating a definition of organ trafficking in human trafficking legislation and registering cases as per the Human Trafficking Act 2012 which will ensure speedy trial and protection of the rights of vulnerable groups. Capacity-building training of counter-trafficking stakeholders – both government and non-government – on organ trafficking victimology is a crucial step in dislodging potentially harmful stereotypes of victims as criminals and accepting that victimology in organ trafficking has several characteristics which might not adhere closely to the ‘typical’ victim profile found in the commercial sex industry or amongst labour migrants.
Microcredit indebtedness has been identified in other countries within the Indo-Pacific region as perpetuating vulnerability of already marginalised population groups to human trafficking and other forms of exploitation (domestic servitude and labour exploitation).112 As this article has demonstrated, further research into the extent to which microcredit debt plays a causal role in producing situations of vulnerability for victims of organ trafficking is urgently needed. In order to generalise beyond the case study presented in this article, a larger investigation of debt-related vulnerabilities could provide valuable insights into counter-trafficking policies and interventions aimed at preventing trafficking. In Bangladesh at present, the connections between financial capacity and vulnerability is not well understood. In the current context of multiple catastrophes, from climate crisis or pandemic, this is only likely to lead to further cases of organ trafficking. With lack of sympathetic legal treatment of victims and application of a victim-centred approach in criminal justice, the outlook is not optimistic.
May Channing, ‘Transnational Crime and the Developing World’ (Global Financial Integrity 2017) <www.gfintegrity.org/wp-content/uploads/2017/03/Transnational_Crime-final.pdf> accessed 29 May 2023.
‘Organ Trafficking: The Unseen Form of Human Trafficking’ (acams Today, 26 June 2018) <www.acamstoday.org/organ-trafficking-the-unseen-form-of-human-trafficking/> accessed 29 May 2023.
Katherine M Marsh, Alice S Feng, Robert C Harland and Zain I Khalpey, ‘Dehumanizing Wartime Refugees: Global Impact of Organ Trafficking’ (2017) 225 Journal of the American College of Surgeons S100.
Alireza Bagheri, ‘Child Organ Trafficking: Global Reality and Inadequate International Response’ (2016) 19 Medicine, Health Care and Philosophy 239.
Frederike Ambagtsheer, Organ Trade (Thesis, Erasmus University Rotterdam 2017); Kalb, L. and Negri, S., ‘The criminal justice response to organ trafficking and trafficking in human beings for organ removal’ (2017) 1 Journal of Trafficking and Human Exploitation 187.
Monir Moniruzzaman, ‘“Living Cadavers” in Bangladesh: Bioviolence in the Human Organ Bazaar’ (2012) 26 Medical Anthropology Quarterly 69; Monir Moniruzzaman, ‘Against a Regulated Market in Human Organs: Ethical Arguments and Ethnographic Insights from the Organ Trade in Bangladesh’ (2018) 77 Human Organization 323; and Monir Moniruzzaman, ‘The Trade in Human Liver Lobes: Bioviolence Against Organ Sellers in Bangladesh’ (2019) 25 Journal of the Royal Anthropological Institute 566.
‘The Bangladesh Poor Selling Organs to Pay Debts’ bbc (28 October 2013) <www.bbc.co.uk/news/world-asia-24128096> accessed 29 May 2023.
Reaz Ahmad and Rejaul Karim Byron, ‘Rich become Richer, Poor get Poorer’ The Daily Star (Dhaka, 18 October 2017) <www.thedailystar.net/frontpage/rich-become-richer-poor-get-poorer-1477921> accessed 29 May 2023.
Minhazur Rahman Rezvi, ‘Poverty Situation in Bangladesh’ The Daily Sun (30 April 2017) <www.daily-sun.com/post/223106/Poverty-situation-in-Bangladesh> accessed 29 May 2023.
‘The Bangladesh Poor Selling Organs to Pay Debts’ (n 7).
ibid.
Nigel O’Cornnor, ‘Bangladesh Organ Trade Continues Unabated, Targeting Children, the Poor’ Aljazeera (26 December 2014) <america.aljazeera.com/articles/2014/12/26/bangladesh-organtrafficking.html> accessed 29 May 2023.
Rashid, H.U. et al, ‘Nephrology in Bangladesh’ in Moura-Neto, J.A., Divino-Filho, J.C., Ronco, C. (eds), Nephrology Worldwide (Springer 2021).
Tarik Hasan Shahriar, ‘Kidney Transplant for Tk 1.6 lakh at bsmmu’ The Daily Sun (7 December 2017) <www.daily-sun.com/printversion/details/273546/Kidney-transplant-for-Tk-1.6-lakh-at-BSMMU> accessed 29 May 2023.
‘The Bangladesh Poor Selling Organs to Pay Debts’ (n 7); Monir Moniruzzaman, ‘Human Organ Trafficking in Bangladesh’ The Daily Star (Dhaka, 17 September 2017) <www.thedailystar.net/news-detail-202760> accessed 29 May 2023.
Faisal Mahmud, ‘Legal Crackdown Fails to Stem the Sale of Illegal Organs’ Asia Times (Online 22 January 2018) <asiatimes.com/2018/01/legal-crackdown-fails-stem-sale-illegal-organs/> accessed 29 May 2023.
ibid.
O’Cornnor (n 12).
Mahmud (n 16).
Anette Brunovskis and Rebecca Surtees, ‘Untold Stories: Biases and Selection Effects in Research with Victims of Trafficking for Sexual Exploitation’ (2010) 48 International Migration 1.
Guri Tyldum and Anette Brunovskis, ‘Describing the Unobserved: Methodological Challenges in Empirical Studies on Human Trafficking’ (2005) 43 International Migration 17.
Lauren MacLean, Robin Turner, Habila Rahman and Jack Corbett, ‘Disrupted Fieldwork: Navigating Innovation, Redesign, and Ethics during an Ongoing Pandemic’ (2020) 18 Qualitative and Multi-Method Research 1.
Carol S Brusca, ‘Palermo Protocol: The First Ten Years after Adoption’ (2011) 2 Global Security Studies 8.
ohchr, ‘Recommended Principles and Guidelines on Human Rights and Human Trafficking’ (2010) hr/pub/10/2; and unodc, ‘Legislative Guides for the Implementation of the United Nations Convention Against Transnational Organised Crime and The Protocol Thereto’ (2004).
Trafficking Protocol, article 3(a).
A Conference of the Parties (cop) was established under article 32(1) of the United Nations Convention against Transnational Organised Crime (Organized Crime Convention) to promote and review the implementation of this Convention. In 2008, the cop established an Open-ended Interim Working Group on Trafficking in Persons to advise and assist the cop in the implementation of the Trafficking Protocol.
unodc, ‘The Concept of “Exploitation” in the Trafficking in Persons Protocol’ (2015).
Laura L Shoaps, ‘Room for Improvement: Palermo Protocol and the Trafficking Victims Protection Act’ (2013) 17 Lewis & Clark Law Review 931.
Elizabeth Pugliese, ‘Organ Trafficking and the tvpa: Why One Word Makes a Difference in International Enforcement Efforts’ (2007) 24 Journal of Contemporaty Health Law & Policy 181.
Council of Europe, ‘Joint Council of Europe/United Nations study, Trafficking in organs, tissues and cells and trafficking in human beings for the purpose of the removal of organs’ 2009.
ibid.
unodc, ‘Assessment Toolkit: Trafficking in Persons for the Purpose of Organ Removal’ (2015) 18.
Sylwia Gawronska, ‘Illicit Organ Removal in Nepal: An Analysis of Recent Case Law and the Adequacy of Human Trafficking and Transplantation Frameworks’ [2021] Journal of Human Trafficking 1.
unodc, ‘Guidance Note on “Abuse of a Position of Vulnerability” as a Means of Trafficking in Persons in Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime’ (2012).
ibid 2.
unga, ‘Report of the Ad Hoc Committee on the Elaboration of a Convention against Transnational Organized Crime on the Work of its First to Eleventh Sessions Addendum Interpretative Notes for the Official Records (travaux préparatoires) of the Negotiation of the United Nations Convention against Transnational Organized Crime and the Protocols thereto’ (3 November 2000) unga 55th Session 3 UN Doc A/55/383/Add.1.
Anne T Gallagher and Marika McAdam, ‘Abuse of a Position of Vulnerability Within the Definition of Trafficking Persons’ in Ryszard Piotrowicz, Conny Rijken and Baerbel Uhl (eds), Routledge Handbook of Human Trafficking (Routledge 2017) 195.
ohchr, ‘Human Rights and Human Trafficking (Fact Sheet No 36, United Nations)’ (2014).
ibid 17 and 18.
ibid 18 and 19.
Anne T Gallagher, The International Law of Human Trafficking (cup 2010).
Shannon Lack, ‘Civil Rights for Trafficked Persons: Recommendations for a More Effective Federal Civil Remedy’ (2006) 26 Journal of Law and Commerce 151.
Kathleen Kim and Kusia Hreshchyshyn, ‘Human Trafficking Private Right of Action: Civil Rights for Trafficked Perseons in the United States’ (2004) 16 Hastings Women’s Law Journal 1.
unodc, ‘unodc Model Law Against Trafficking in Persons’ (2010).
ohchr, ‘Recommended Principles and Guidelines on Human Rights and Human Trafficking’ (n 24) 16.
Laura L Shoaps, ‘Room for Improvement: Palermo Protocol and the Trafficking Victims Protection Act’ (2013) 17 Lewis & Clark Law Review 931; Anne T Gallagher, ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling: A Preliminary Analysis’ (2001) 23 Human Rights Quarterly 975.
Ramona Vijeyarasa ‘A Move in the Right Direction? The Model Law against Trafficking in Persons and the ilo Operational Indicators’ (2019) 57 International Migration 177; and Anne T Gallagher ‘Two Cheers for the Trafficking Protocol’ (2015) 4 Anti-Trafficking Review 1.
A Working Group on Trafficking in Persons exists to advise and assist the Conference of the Parties (cop) in the implementation of the Trafficking Protocol. However, it does not work like other treaty bodies. This Working Group has no authority to examine state-party reports and make recommendations for the implementation of the Trafficking Protocol. Gallagher (n 47).
Debra Budiani-Saberi and Seán Columb, ‘A Human Rights Approach to Human Trafficking for Organ Removal’ (2013) 16 Medicine, Health Care and Philosophy 897.
ibid 901.
ibid.
Tarif Bakdash and Nancy Scheper-Hughes, ‘Is it Ethical for Patients with Renal Disease to Purchase Kidneys from the World’s Poor?’ (2006) 3 PLoS Medicine e349; and Seán Columb, ‘Excavating the Organ Trade: An Empirical Study of Organ Trading Networks in Cairo, Egypt’ (2017) 57 British Journal of Criminology 1301.
Frederike Ambagtsheer, Damián Zaitch and Willem Weimar, ‘The Battle for Human Organs: Organ Trafficking and Transplant Torism in a Global Context’ (2013) 14 Global Crime 1.
Asif Efrat, ‘The Rise and Decline of Israel’s Participation in the Global Organ Trade: Causes and Lessons’ (2013) 60 Crime, Law and Social Change 81; Assya Pascalev and others, ‘Trafficking in Human Beings for the Purpose of Organ Removal: A Comprehensive Literature Review’ (2016).
Budiani-Saberi and Columb (n 49) 902.
ibid.
Prevention and Suppression of Human Trafficking Act 2012.
Shekh Md. Muhibbullah, ‘Appropriate Enactment can Prevent Illegal Trade of Human Organs’ The Daliy Observer (Dhaka, 23 June 2015) <www.observerbd.com/2015/07/23/100673.php> accessed 29 May 2023.
The Human Organ Transplant (Amendment) Act 2018.
Moniruzzaman, ‘Against a Regulated Market in Human Organs: Ethical Arguments and Ethnographic Insights from the Organ Trade in Bangladesh’ (n 6) 325.
Gallagher (n 41) 315.
‘Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power’ unga Res 40/34 (29 November 1985).
Constitution of Bangladesh 1972, article 27.
The Code of Criminal Procedure 1898, section 154.
Hussain Mohmmad Fazlul Bari, ‘An Appraisal of Victim Protection in Bangladesh’ (2016) 61 Journal of the Asiatic Society of Bangladesh (Hum) 183.
The Prevention and Suppression of Human Trafficking Act 2012, section 34.
Ministry of Home Affairs, ‘Combating Human Trafficking’ (2016) <mhapsd.portal.gov.bd/sites/default/files/files/mhapsd.portal.gov.bd/page/d9fa01c7_35a1_42f2_827c_1030c3e0e474/Country%20report%202016%20%20fina.pdf> accessed 29 May 2023.
The Prevention and Suppression of Human Trafficking Act 2012, section 25.
The Code of Criminal Procedure 1898, section 503.1.
Bari (n 65) 201.
ibid 192.
Gallagher (n 41) 298.
The Human Organ Transplant (Amendment) Act 2018, section 12.
The Code of Criminal Procedure 1898, section 167.
The Prevention and Suppression of Human Trafficking Act 2012, section 19.3.
Jennifer S Nam, ‘The Case of the Missing Case: Examining the Civil Right of Action for Human Trafficking Victims’ (2007) 107 Columbia Law Review 1655.
Women and Children Repression Prevention Act 2003, section 15.
Environmental Court Act 2010, seciton 15; and Domestic Violence (Prevention and Protection) Act 2010, section 16.
The Prevention and Suppression of Human Trafficking Act 2012, section 40.
UN Women, ‘Monitoring Cell for Anti-Trafficking at the Police Headquarters’ (2014) <evaw-global-database.unwomen.org/en/countries/asia/bangladesh/2004/monitoring-cell-for-anti-trafficking-at-the-police-headquarters> accessed 29 May 2023.
Olga Gajic-Veljanoski and Donna E Stewart, ‘Women Trafficked into Prostitution: Determinants, Human Rights and Health Needs’ (2007) 44 Transcultural Psychiatry 338.
Claire Ross and others, ‘Human Trafficking and Health: A Cross-Sectional Survey of nhs Professionals’ Contact with Victims of Human Trafficking’ (2015) 5 bmj Open 1.
The Prevention and Suppression of Human Trafficking Act 2012, section 36.
Atsuro Tsutsumi, Takashi Izutsu, Amod K Poudyal, Seika Kato and Eiji Marui, ‘Mental Health of Female Survivors of Human Trafficking in Nepal’ (2008) 66 Social Science & Medicine 1841.
Reena Isaac, Jennifer Solak and Angelo P Giardino, ‘Health Care Providers’ Training Needs Related to Human Trafficking: Maximizing the Opportunity to Effectively Screen and Intervene’ (2011) 2 Journal of Applied Research on Children 8.
ibid 23.
Hanni Stoklosa, Aimee M Grace and Nicole Littenberg, ‘Medical Education on Human Trafficking’ (2015) 17 ama Hournal of Ethics 914, 915.
Ministry of Home Affairs, National Plan of Action to Combat Trafficking of Human Beings 2018–2022 (2018).
ohchr, ‘Recommended Principles and Guidelines on Human Rights and Human Trafficking’ (n 24).
The 7th Year Plan for the period fy 2016–2020 was adopted in October 2015 by Bangladesh. It is a policy document to ensure development in the public sector and provide direction to the overall national development for a period of 7 years. The main aim is to meet Sustainable Development Goals targets. General Economics Division Planning Commission, Integration of Sustainable Development Goals into the 7th Five Year Plan (2016).
Ministry of Home Affairs (n 88).
ibid.
World Bank, ‘Bangladesh Continues to Reduce Poverty But at Slower Pace’ (2017) <www.worldbank.org/en/news/feature/2017/10/24/bangladesh-continues-to-reduce-poverty-but-at-slower-pace> accessed 29 May 2023.
ibid.
unodc, ‘Issue Paper: The Role of Corruption in Trafficking in Persons’ (2011).
Martina Vandenberg, ‘Complicity, Corruption, and Human Rights: Trafficking in Human Beings’ (2002) 34 Case Western Reserve Jorunal of International Law 323.
M Bashir Uddin, ‘Human Trafficking in South Asia: Issues of Corruption and Human Security’ (2014) 2 International Journal of Social Work and Human Services Practice 18.
Active involvement means violating duties, taking bribes, helping in transportation, making false documents and forcing victims to settle cases; while passive involvement means failing to identify victims, ignorance of laws and ignorance of facts that workers are being sexually exploited in Middle Eastern countries. Some scholars have classified these practices as direct and indirect ways of facilitating human trafficking. One example of active corruption is taking bribes from the criminals, which is also confirmed through our fieldwork. Passive corruption could include non-cooperation by a Bangladesh Embassy to protect rights of migrant workers who are abused while overseas.
US Department of State, ‘Trafficking in Persons Report’ (2018) <www.state.gov/wp-content/uploads/2019/01/282798.pdf> accessed 29 May 2023.
ibid 89.
ibid.
ibid.
ibid.
Ibid.
United Nations Convention Against Corruption (adopted 9 December 2003, entered into force 14 December 2005) unts 2349 (uncac). Bangladesh ratified the United Nations Convention against Corruption on 28 February 2007. This Convention has an Implementation Review Mechanism (irm) which is known as ‘Conference of the State Parties’ under article 63 and 64 to review the implementation of this Convention. According to the review report of Bangladesh, Bangladesh has an Anti-Corruption Commission (acc) which is working actively in combating corruption. Bangladesh Bank also works in anti-corruption field through its Financial Intelligence Unit (fiu). This Bank has responsibility to collect statistics of money laundering-related cases. The Ministry of Public Administration is also working to implement different rules combating corruption. However, the report identifies few gaps in existing measures: the Penal Code does not criminalise the offence of bribery of foreign public officials and officials of public international organisations; there is no specific victims and witness protection measures when accused persons are usually politically, financially or otherwise influential and there is no joint investigation body to ensure international cooperation in investigation of corruption-related offences.
Anti-Corruption Commission Act 2004; Money Laundering Act 2012; and Prevention of Corruption Act 1947.
Uddin (n 97) 25.
ibid 24.
Gallagher (n 41) 414.
ohchr, ‘Recommended Principles and Guidelines on Human Rights and Human Trafficking’ (n 24).
The Human Organ Transplant (Amendment) Act 2018, section 2.
Md Sanwar Siraj, ‘The Human Organ Transplantation Act in Bangladesh: Towards Proper Family-based Ethics and Law’ (2021) 13 Asian Bioethics Review 283.
Hope Miller, ‘Organ Trafficking in Pakistan & Bangladesh’ (Diss, the Ohio State University 2022).
