V. Legal Framework and Analysis 96 as 12-years old on the human-trafficking ships.378 Fortify Rights also obtained video footage that appears to depict the gang-rape of a young Rohingya woman that may have occurred in a humantrafficking camp along the Malaysia-Thailand border.379 The Commission documented testimony of at least one witness who saw traffickers rape captives at Wang Kelian.380 Under these facts, there are reasonable grounds to believe that the acts documented in this report meet the requirements of the crime against humanity of rape and sexual enslavement. Torture Under the Rome Statute, torture entails the intentional infliction of severe physical or mental pain or suffering upon a person, where that person was in the perpetrator’s custody or control.381 Pain or suffering caused in connection with lawful sanctions is not considered torture.382 While the ICTR and ICTY have limited the understanding of torture to pain or suffering inflicted for particular purposes, including to obtain information, punish, or coerce, the Rome Statute and the ICC Elements of Crimes notably omit a purpose requirement.383 When discussing the severity of the pain and suffering inflicted, tribunals take into account both the objective harshness of the actions and the subjective effect on the particular victim, including “the victim’s age, sex, or state of health.”384 All surrounding circumstances are relevant, including the victim’s position of subordination, the time period of mistreatment, and the institutionalization of the mistreatment.385 Nevertheless, permanent injury is not necessary.386 Rape, which necessarily involves extreme pain and suffering, qualifies as torture when all other elements are met.387 In the case of Furundzija, the ICTY found that torture occurred where perpetrators beat a man and then forced him to watch the sexual assault of his friend.388 This report documents numerous instances of torture inflicted upon men, women, and children younger than eight years old.389 Survivors recounted the various ways traffickers inflicted pain and suffering, including the use of pipes, bats, clubs, belts, wires, tasers, and nails, on those in captivity 378 See, Chapter 1. Section, “Rape.” 379 Ibid. Fortify Rights interview with #15, Kuala Lumpur, Malaysia, August 12, 2014; Fortify Rights interview with #23, Johor State, Malaysia, August 15, 2014. 380 The Commission interview with W10, Alor Setar, Kedah State, November 2016. 381 Rome Statute, art. 7(2)(e); ICC, Elements of Crimes, art. 7(1)(f). 382 Ibid. The lawfulness of the sanction likely depends on whether they have been imposed in accordance with minimum standards set forth by international law, such as those in the ICCPR. See, Kai Ambos and Steffen Wirth, “The Current Law of Crimes against Humanity: An Analysis of UNTAET Regulation 15/2000,” Criminal Law Forum, Vol. 13, Iss. 1, 2002, p. 28. 383 Rome Statute, art. 7(2)(e); ICC, Elements of Crimes, art. 7(1)(f) n.14 (stating that “no specific purpose need be proved”). See also, Akayesu, Case No. ICTR-96-4-T, para. 593-94; Prosecutor v. Kunarac, Kovac, and Vukovic, ICTY, Case No. IT96-23-T and IT-96-23/1-T, Judgment (Trial), February 22, 2001, para. 497; Krnojelac, Case No. IT-97-25-T, para. 179. These purposes “need not be the predominant or sole purpose,” and the list of prohibited purposes is not exhaustive. Prosecutor v. Mucic, et al., ICTY, Case No. IT-96-21-T, Judgment (Trial), para. 470. 384 Prosecutor v. Kvocka, ICTY, Case No. IT-98-30/1-T, Judgment (Trial), November 2, 2011, para. 143. 385 Krnojelac, Case No. IT-97-25-T, para. 182. 386 Kvocka, Case No. IT-98-30/1-T, para. 148. 387 See, for example, Kunarac, et. al., Case No. IT-96-23-T and IT-96-23/1-T, para. 150-51 (“Sexual violence necessarily gives rise to severe pain or suffering, whether physical or mental, and in this way justifies its characterisation as an act of torture.”) 388 Prosecutor v. Furundzija, Case No. IT-95-17/1-T, Judgment (Trial), December 10, 1998, para. 267. 389 See, Chapter I. Section, “Torture and Ill-treatment.” Fortify Rights interview with #122, Rakhine State, Myanmar, May 2015.