V. Legal Framework and Analysis 94 Malaysia.355 Rohingya witnesses in Thailand’s mass human-trafficking trial in 2016 similarly testified that traffickers abducted them from a beach in Myanmar’s Rakhine State and forced them onto a small boat, which transported them to a ship operated by human traffickers waiting at sea.356 On these facts, there are reasonable grounds to believe that the traffickers committed the prohibited act of deportation or forcible transfer. Imprisonment and Other Severe Deprivations of Physical Liberty The ICC’s Elements of Crime provide that imprisonment is established where (1) a perpetrator imprisoned or “otherwise severely deprived one or more persons of physical liberty,” (2) the gravity of the conduct “was in violation of fundamental rules of international law,” and (3) the perpetrator was aware of the factual circumstances that established the gravity of the conduct.357 The ICTY has explained that imprisonments violate international law when they are “arbitrary,” meaning that they are imposed “without due process of law,” such that there is “no legal basis . . . to justify the initial deprivation of liberty.”358 Further, even an initially justified arrest may later become a prohibited act if “the initial legal basis ceases to apply.”359 The Krnojelac tribunal discussed factors of valid arrests that comply with the standards of international law, including the use of arrest warrants, providing reasons for the arrest and detention, and lodging charges against those arrested.360 This report describes the mass detainment of Rohingya men, women, and children without legal justification. Traffickers, aided by Thai and possibly Malaysian officials, maintained camps, fences, and cages to deprive people of their liberty and to seek a profit.361 Traffickers deprived people of their liberty on the ships, in the camps, and at human-trafficking houses in Malaysia. On the ships, traffickers did not allow their captives to move, forcing some to stay in a squatting position for days at a time.362 In the camps, witnesses described fences of bamboo and barbed wire as well as semi-permanent camps with iron fences that traffickers used to hold large numbers of people and patrolled by guards carrying guns, knives, sticks, and other weapons.363 Traffickers often moved their captives at night, and Thai and Malaysian authorities occasionally raided camps.364 Further, traffickers tried to avoid or pay authorities, indicating awareness that their actions were not lawful.365 355 Ibid. 356 Fortify Rights, internal report on human trafficking case, testimony of Umarsoleeha, trial monitoring notes, May 12, 2016. 357 ICC, Elements of Crimes, art. 7(1)(e). 358 Krnojelac, Case No. IT-97-25-T, para. 111-15 (noting that if national law is put forward as the basis, that law is a valid defense only if it is consistent with international law). Note that Krnojelac disagreed with Prosecutor v. Kordic, ICTY, Case No. ICTY-95-14/2-T, Judgment (Trial), February 26, 2001, para. 303, which had earlier held that only detentions that constituted grave breaches of the Geneva Conventions qualify. 359 Id. at para. 114. See also, Kordic, Case No. ICTY-95-14/2-T, para. 286-91 (discussing the procedural safeguards that must be adhered to during an imprisonment). 360 Krnojelac, Case No. IT-97-25-T, para. 119-21. 361 See, Chapter II. Section, “Torture and Ill-treatment.” 362 See, Chapter I. Section, “Deprivation of Food, Water, and Physical Space.” 363 See, Chapter II. On Land: Abuses at Human-Trafficking Camps and Houses. 364 See, Chapter II. Section, “Forced Marriages and Domestic Servitude of Women and Girls.” 365 See, “Guilty Verdicts for Rohingya Trafficking Deaths,” Al Jazeera, July 19, 2017, https://www.aljazeera.com/ news/2017/07/thai-court-deliver-verdict-people-smuggling-case-170719024750630.html (accessed March 25, 2019). Fortify Rights interview with #43, Songkhla Province, Thailand, September 17, 2014.