Human Trafficking as a Crime Against Humanity: An analysis of the legal potential to prosecute human trafficking in the International Criminal Court with reference to the trafficking of Rohingya Muslims in Southeast Asia

Abstract

This paper examines the legal potential to prosecute human trafficking as a crime against humanity (CAH) in the International Criminal Court (ICC). Although the ICC has been equipped with the legal tools necessary to prosecute human trafficking, it has not yet brought a single trafficking case to the Court. In order to fully comprehend the bar for prosecution of human trafficking as a CAH at the ICC, the paper applies the CAH framework to the situation of the persecuted Rohingya minority in Myanmar and Thailand in Southeast Asia. Chapter 1 will briefly introduce the rationale behind the hypothesis as well as present the limitations of the scope of the thesis. Chapter 2 shall examine the general characteristics of human trafficking including the universal definition in the Palermo Protocol. Chapter 3 will deal with the CAH framework, including the customary nature of human trafficking as CAH, as well as conducting an in-depth analysis of the chapeau requirements of CAH in the Rome Statute. Chapter 4 will study the complementarity requirement and the gravity threshold, two of the most contentious concepts concerning jurisdiction and admissibility of the ICC. Finally, chapter 5 will apply the international law on human trafficking and the CAH framework to the case study on the Rohingya minority. The objective is to analyse whether there is a prima facie case concerning the CAH perpetrated against Rohingya in Myanmar and Thailand that may justify human trafficking persecutions by the ICC engaging individual criminal responsibility.