- Wayne Palmer. 2018. Back pay for trafficked migrant workers: An Indonesian Case Study. International Migration 56(2): 56-67.
BACK PAY FOR TRAFFICKED MIGRANT WORKERS: AN INDONESIAN CASE STUDY
In 2015 the International Organization for Migration (IOM) identiﬁed almost 1,200 trafﬁcked migrants working in slave-like conditions on ﬁshing boats in East Indonesia. The IOM then pro- vided direct assistance to the migrants and offered to cover the cost of repatriation to their countries of citizenship. The Indonesian government was appreciative of the ﬁnancial support, not least because the victims’ embassies refused to pay. But somewhat unexpectedly for the Indonesian ofﬁcials, most victims in one location refused to return to their home country without the outstanding wages owed to them by their trafﬁcker-cum-employers. IOM policy states that migrants are eligible to use the Assisted Voluntary Return and Reintegration (AVRR) service if they are unable or unwilling to remain in the host country. But another condition is that migrants must use the services voluntarily. The IOM could not force the migrants to leave the country, and national law prevented the Indonesian government from deporting the migrants because the IOM had identiﬁed them as victims of trafﬁcking.
The migrants’ refusal to return to their country of citizenship was a reaction to the fact that they believed they were owed money for their work. The larger policy issue here is: How should states respond to exploitation of migrant labour at the intersection between labour migration and human trafﬁcking (Ford, Lyons, and van Schendel 2012). Who decides if a migrant worker is “trafﬁcked enough”? (Yea, 2015), and what are the state’s responsibilities to migrant workers who have been trafﬁcked? In countries that have ratiﬁed the UN Trafﬁcking Protocol, which criminalizes human trafﬁcking in all its forms, and the International Convention on the Protection of the Rights of All Migrant Workers and Their Families (hereafter the ICMWR), which requires states to offer migrants access to labour dispute mechanisms, trafﬁcked migrants are entitled to a wide range of services to support civil and criminal proceedings against their trafﬁcker-cum-employers. In practice, however, states tend to prioritize other institutional objectives over the protection of trafﬁcked migrants’ rights, such as resolving problematic migration statuses by simply returning trafﬁcked migrants to their country of citizenship (Gallagher, 2010). Civil justice for trafﬁcked migrants is often overlooked in the process.
By contrast, this article discusses a case involving hundreds of migrants without legal migration status, in which government authorities supported efforts to claim and secure wages owed to them by their trafﬁcker-cum-employers. Based in the East Indonesian city port of Ambon, it draws on multiple sources of primary data. In April 2016, the author interviewed law enforcement ofﬁcials in the Indonesian National Police’s Trafﬁcking Unit and the Attorney General’s Anti-Terrorism and Transnational Crime Taskforce to obtain an update about how the case was progressing through the criminal justice system. These interviews made it clear that the back pay of wages, which was completed a few months earlier, had impacted the direction of criminal proceedings against the perpetrators. The ofﬁcials were no longer planning to pursue the human trafﬁcking offence because many of the migrants had been compensated for their work. In order to better understand the motivations for this change, the salary negotiation process was reconstructed by making a detailed timeline of claims for back pay and settlement. The data are based on the IOM spreadsheet, which was primarily used to record developments related to the repatriation process, such as when the Embassy of Myanmar conﬁrmed the migrants’ nationality, and the date on which the migrants returned home. These data were cross-checked against a timeline of relevant media events.
This article shows how the legal and policy framework in Indonesia enabled migrants trafﬁcked for forced labour to claim back pay of wages despite their illegal migration status. First, it offers a theoretical discussion of international legal frameworks and their provisions concerning migrants’ rights. The purpose here is to draw attention to the legal and policy context that can sometimes undermine systemic efforts to pursue civil justice for migrants who lack the necessary permissions to work. Second, it uses the example of Indonesia to outline how this is done in one national con- text, identifying speciﬁc institutional objectives that the government there tends to prioritize over civil justice for trafﬁcked migrants. Third, a case study illustrates how Indonesian ofﬁcials responded to a situation where migrants refused to return to their country of citizenship before securing unpaid wages, explaining how and why the government ultimately set up an ad hoc labour dispute mechanism to resolve the situation. Fourth, it discusses the criminal justice response that followed the resolution, in particular how it used post-exploitation settlement of labour disputes as an indicator of human trafﬁcking, and then focussed on punishing the trafﬁcker-cum-employers.
LABOUR RIGHTS AND TRAFFICKED MIGRANT WORKERS
Migrants without legal migration status are entitled to protection of certain legal rights in countries that have ratiﬁed the ICMWR. Despite their migration status, this group of people has labour rights that should be protected in much the same way as for citizens and non-citizens working with the necessary government permissions. The fact that the ICMWR includes this provision at all is a “jurisprudential achievement” because the convention accommodates the competing interests of migrants with human rights and state sovereignty concerned with immigration control (Bosniak, 1991, 758). Migrant workers without legal migration status are entitled to protection of labour rights but remain criminally liable for the often related immigration offences, illegal entry and illegal work (Dewhurst, 2013). On the one hand, the legal arrangement prevents state parties to the ICMWR from systemically denying migrants without legal migration status access to labour rights enforcement mechanisms. But from a human rights perspective on the other, it dissuades the migrants from requesting assistance from government to claim those rights in the ﬁrst place, as they expect subsequent punishment for a related immigration offence (Bosniak, 1991). As a result, the right to back pay of unpaid wages is fully protected, though is frequently curtailed in practice.
Other international conventions protect migrants without legal migration status from prosecution for related immigration offences. The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention Relating to the Status of Refugees ensure that migrants without legal migration status seeking international protection are not prosecuted for illegal entry into ratifying countries. The United Nations Convention Against Transnational Organized Crime and its Protocols also include safeguards to shield victims of human trafﬁcking and smuggled migrants from criminal proceedings in relation to their migration status, as part of an attempt to redirect criminal justice action against the trafﬁckers and smugglers. In effect, these conventions single out sub-sets of the migrant population for special treatment in recognition of the unique factors, practices and processes that landed them in the irregular situations in the ﬁrst place. The consequences of doing so can be seen in countries that have institutionalized the special treatment. In Ireland, for example, the national Anti-Trafﬁcking Law has effectively carved out a group of “deserving” migrant workers entitled to special treatment for protection against exploitation for forced labour (Coghlan and Wylie, 2011).
Without denying the need for special treatment, critics argue that the proliferation of administrative categories for migrants distracts policymakers from addressing causes of exploitation for forced labour. This is certainly the case in human trafﬁcking, where there is a focus on protection of victims, prevention of trafﬁcking practices and prosecution of trafﬁckers. Largely for this reason, the President of the United States (2009-2017), a position that also has the “political and ﬁnancial wherewithal to inﬂuence how other countries respond to the problem of human trafﬁcking” (Chuang, 2006, 438), recommended a focus on the cross-cutting issue of forced labour rather than on the speciﬁc circumstances that deﬁne trafﬁcked victims subjected to forced labour. The then- President also described the crime using the term modern day slavery to draw another link between the crime and the now abolished slave trade. But critics argue that it is yet another term that obfuscates structural causes of vulnerability (Chuang, 2014). It repackages them as the result of deviant behaviour by individuals rather than the product of other structural and systemic issues, such as how governments enforce industrial relations and migration regimes. The labour approach is an alternative, which usefully “targets the structure of labor markets prone to severely exploitative labor practices” (Shamir, 2012, 76), and in so doing addresses a major cause of labour trafﬁcking.
Developing countries in particular have inadequate systems and processes in place to effectively respond to incoming migration and related rights issues such as exploitation for forced labour. This is especially prevalent in countries that see themselves primarily as “senders” of migrants because of the often false perception that they are not also “receivers”. In Southeast Asia, the governments of Indonesia, the Philippines and Timor Leste have ratiﬁed the ICMWR and legislated the compromise that requires states to protect the labour rights of migrants without legal migration status but allows prosecution for immigration offences. As required by the convention, they have submitted full length reports to the ICMWR Committee. Much like the Philippines and Timor Leste (ICMWR Committee, 2015, 2008), the Government of Indonesia (2017) submitted its initial report well after the deadline had passed (over three and a half years later), which, complicated external efforts to evaluate whether the government was meeting the legal obligation to monitor incoming migration patterns and as respond appropriately to related rights issues.
TRAFFICKED MIGRANT WORKERS IN INDONESIA
Despite ratifying the ICMWR in 2012, the government of Indonesia has not set up the institutional and legal frameworks necessary for migrants without the right migration status to claim labour rights. In large part, this is because the government signed and then ratiﬁed the convention as part of an attempt to show greater effort to protect the rights of Indonesian migrant workers outside the country (hukumonline.com 2012). As a result, the Indonesian government overlooks legal obligations to migrants in its own territory, choosing to focus instead on the migrants’ legal obligations to the state under immigration law. In 2015 the Directorate-General of Immigration (2015) reported that it issued over ﬁve million entry visas to foreigners, and earned over USD 234 million from its services. It deported or repatriated over 16,000 people. The government authority also investigated 250 migrants for breaking immigration policy, including overstaying their visas. Such data give an overall impression of the scale of incoming migration, patterns, potential to generate revenue, and compliance with immigration policy. But they do not shed light on how this government authority responded to rights related issues such as permitting foreigners who have broken immigration law by working in Indonesia to remain for the purpose of claiming labour rights.
The government does not grant migrants without permission to work in the country access to the four state mechanisms for resolving labour disputes. The ﬁrst three mechanisms (mediation, conciliation and arbitrage) are located in district or municipal Manpower Ofﬁces, of which there are more than 400 in Indonesia. The fourth and ﬁnal mechanism is to ﬁle a claim at one of the Industrial Relations Courts for a judge to adjudicate the case. In order to register a claim for employment entitlements, the claimant must provide either a national identity card (for citizens) or a residency card (for migrants). Migrants without the necessary permissions to be in Indonesia do not have the cards and so cannot submit claims. At the same time, there is a growing mass of evidence indicating that asylum seekers, refugees, some cross-border victims of trafﬁcking for forced labour and other migrants without per- mission to work have labour disputes with employers in Indonesia (Sampson, Gifford, and Taylor, 2016; Missbach, 2015; Indonesian Ministry of Maritime and Fisheries Affairs and IOM, 2016). These migrants have come to rely on mostly informal processes to resolve problems with their employment, which often involves accepting poorer terms and conditions than those initially promised.
In 2015, however, the Indonesian government awarded back pay of wages and compensation for suffering to 11 migrant workers trafﬁcked for forced labour on commercial ﬁshing boats in another case, which came to be known as the Benjina case. Earlier that year the mass media revealed how the Indonesian company Pusaka Benjina Resources used the labour to catch marine products that were eventually consumed in faraway places like North America (Associated Press, 2015). The IOM assisted 658 migrants, whose return to their country of citizenship was facilitated without providing them with help to claim back pay from their employers (Yusriza, 2016; Palmer and Missbach, forth- coming). But national and international media then put pressure on the Attorney General’s Ofﬁce to claim compensation in the resulting criminal proceedings against the boat captains (Interview with prosecutor for Attorney General’s Anti-Terrorism and Transnational Crime Taskforce, August 2015). With assistance from the Myanmar government, the Indonesian criminal justice system located 11 victims, who eventually served as prosecution witnesses in the proceedings. Ultimately, the Tual District Court convicted eight people of human trafﬁcking (Legal Decisions 105-112/Pid.Sus/2015/PN.Tul), and awarded the victims Rupiah 773,300,000 (USD 58,000). The other victims, who were the majority by far however, received nothing. In large part, this is because the Indonesian National Police and Attorney General’s Ofﬁce only tabled a handful of claims as part of their primary objective to punish the trafﬁcker-cum-employers for human trafﬁcking. A few months later, the Indonesian government handled the issue very differently.
THE AMBON CASE
In mid-June 2015 the IOM assisted 11 migrant workers to voluntarily return to Laos and Myanmar from Ambon in East Indonesia, where mainland Southeast Asians have historically been trafﬁcked for forced labour on commercial ﬁshing boats (Associated Press 2015). But the other 459 men, who were all citizens of Myanmar, refused to leave Indonesia before they received back pay for the months – and in some cases years – of unpaid labour they had performed, catching ﬁsh for export to global seafood suppliers. They had also just watched 230 colleagues return to Cambodia without payment. The IOM (2015) reports that employers chartered a ﬂight, doing so in coordination with the Indonesian and Cambodian governments before the organization was invited to determine if the migrant workers had been trafﬁcked for forced labour. A few months earlier the government of Indonesia had also hastily removed hundreds trafﬁcked migrant ﬁshers from Benjina and then repatriated them to Cambodia, Laos, Myanmar and Thailand without attempting to claim outstanding wages. This previous handling alarmed the 459 migrants in Ambon, as they suspected that their employers would probably strike a deal with government ofﬁcials to again avoid paying wages. This fear prompted the migrants to insist on payment as a pre-condition for voluntary repatriation.
This demand complicated matters for the IOM, because the AVRR programme hinges on migrants’ consent. The Indonesian government had requested IOM assistance to arrange the migrants’ repatriation by coordinating with their embassies for travel documents, and with employers for one-way air tickets to the countries of citizenship. As part of the assistance, the IOM also interviewed the migrants to determine if they were survivors of human trafﬁcking for forced labour or otherwise “vulnerable migrants”. IOM project assistants from the Counter-trafﬁcking and Labour Migration Unit identiﬁed 379 victims. The organization then arranged for 283 of the victims to stay in the government-run port compound for ﬁshery related activity (Pelabuhan Perikanan Nusantara, PPN), where it covered the cost of meals and toiletries (Indonesian Ministry of Maritime and Fisheries Affairs and IOM, 2016). The rest of the migrants chose to live outside the compound with local friends and family, while the 91 “vulnerable migrants” stayed on anchored boats in the harbour. This arrangement was possible because Law No. 6 Year 2011 on Immigration allows author ties to accommodate victims of trafﬁcking outside immigration detention centres (Rumah Detensi Imigrasi, Rudenim) (article 87). It also prevented investigation and prosecution of victims for the immigration offences of illegal entry and work.
The Indonesian government was generally supportive of the migrants’ demands for back pay and so, through the Directorate-General of Immigration, used its discretionary power to allow them to remain in Indonesia for that purpose. However, the immigration authority warned IOM that voluntary repatriation was inevitable and asked for the salary negotiation process to be concluded in the shortest time possible. The IOM focussed on supporting the trafﬁcked migrants, who were mostly staying in PPN, by calculating their claims for back pay. This part of the process was relatively simple: 93 per cent of the migrants had employment contracts detailing their promised salary (Indonesian Ministry of Maritime and Fisheries Affairs and IOM 2016). The IOM calculated the balance of wages based on the migrants’ recollection of when they were last paid. The ﬁshing companies cross-checked payroll documents and began paying conﬁrmed claims in full. In September 164 victims received over USD 550,000 before returning to their countries of citizenship. The following month 39 collected almost USD 190,000. In November 71 migrants returned with more than USD 93,000 in back pay. 23 migrants also left the country without payment, reportedly because they chose not to submit a claim. But things started to change in early December, as the Indonesian government had grown impatient after almost four months of salary negotiations and wanted to know why 190 migrants were still in the country.
PPN reported that the remaining migrants were embroiled in a labour dispute with the ﬁshing companies, which prevented the IOM from arranging the repatriation. In particular, there was dis- agreement about the length of employment, the value of promised wages and even if the migrants were in fact employees. In response, the recently established Taskforce for Eradication of Illegal Fishing organized a meeting for government stakeholders, including the Indonesian National Police, Ministries of Manpower and Law and Human Rights, embassies for Myanmar and Thailand and the IOM that month in the PPN compound. Head of the Taskforce instructed the participants to resolve institutional coordination matters on the day so that the IOM could arrange the migrants’ departure by the end of the month. The embassies agreed to expedite bureaucratic processes to con- ﬁrm the migrants’ nationality, and the Ministry for Manpower gave advice on how to calculate the migrants’ employment entitlements, according to Law No. 13 Year 2003 on Labour. The Ministry also determined a market rate for the migrants’ wages when written employment contracts were not available. The Taskforce informed the ﬁshing companies of the arrangement, which they accepted except for the migrants for whom they had no employment records.
The Ministry of Manpower agreed that the companies should not be forced to pay wages without other evidence of employment. Sensing the tide turning against these migrants, the IOM revealed that it had meticulously documented not just the migrants’ account of employment conditions, but also the name of each vessel on which they had worked. These data also showed that captains sometimes exchanged migrant workers at sea or recruited them in ports where they unload their catch (Indonesian Ministry of Maritime and Fisheries Affairs and IOM 2016), practices which are often illegal and are therefore not always reported in formal documents. The Taskforce, then, instructed the ﬁshing companies to reconcile their data with the IOM in the room next door. The companies continued to dispute the migrants’ claims so the Harbour Master was called in to help with veriﬁcation. He conﬁrmed that the companies had never reported the migrants’ presence on board the boats. But after time it emerged that the migrants had hidden during the Harbour Master’s inspection, allegedly because the captain had warned them that they would be arrested if discovered. No one acknowledged the uncomfortable possibility that the companies had paid bribes so that the Harbour Master would turn a blind eye, as this would have further complicated an already complicated situation. However, they did agree that there were reasonable grounds to believe the migrants, so the companies were told to pay up.
Over the next couple of weeks 91 migrants returned home. The majority left without payment with only eight receiving back pay of wages. Five migrants received nothing because the employing company had declared bankruptcy and so was not expected to pay outstanding wages immediately. But this was not the reason why the 78 other migrants returned without back pay. These otherwise “vulnerable migrants” had been staying on boats in the harbour and IOM records show that they had not tabled wage claims. Importantly for the IOM, this cohort of migrants had not been trafﬁcked for forced labour and so were not given the same level of assistance to determine if they had a claim. The migrants’ employment was abruptly terminated after the Indonesian Minister for Maritime and Fisheries Affairs banned the use of trawlers built outside Indonesia for six months in November the previous year (Ministerial Regulation 2014). The employers had progressively abandoned boats in the port, leaving the migrants on board stranded without the wherewithal to return to their country of citizenship. It is in this context that the non-trafﬁcked but “vulnerable migrants” responded positively to the Taskforce’s offer to use the IOM’s AVRR service. Without ongoing and meaningful assistance to make claims at the time, these “vulnerable migrants” largely left because the voluntary return option was the only institutionally supported one.
Ultimately, the government stakeholders failed to meet the Taskforce’s end-of-month deadline, as 99 migrants remained in the country into the new year. Over the next month or so the IOM repatriated 59 migrants. The labour dispute outcome was favourable for this group, as 56 migrants received back pay of wages. It also marked the end of IOM’s role in the affair as far as the Indonesian government was concerned. Initially, the Indonesian government brought in IOM to help arrange the repatriation but the organization ended up also being involved in the salary negotiations, which made senior IOM ofﬁcials uncomfortable because the latter role sits squarely outside the organization’s mandate in Indonesia. In the end, 430 migrants did return to their country of citizen- ship, and 87 per cent of the trafﬁcked migrants received back pay of wages. But 40 migrants, who were mostly trafﬁcked for forced labour, and half of whom received payments, did not return. These migrants chose to remain in Indonesia in spite of their illegal migration status rather than return to their country of citizenship, where they have the legal right to stay, but without the promise of gainful employment. Many of these migrants had been staying with local friends and family during the salary negotiation process – social support that put them in a strong position to remain and go about ﬁnding future employment on commercial ﬁshing boats in the area.
TURNING TO CRIMINAL JUSTICE
After the migrants were gone, the Indonesian government turned its attention to the criminal justice dimension of the case. Observers wanted the law enforcement authorities to convict the ﬁshing companies of human trafﬁcking as they did in the Benjina case, where eight people were sentenced to spend time in prison, required to pay penalties to the state and ordered to compensate the victims for unpaid labour. But in Ambon the Indonesian government used another approach, choosing instead to investigate the companies for the related offence of illegally employing migrant workers. The following section explains the rationale for the decision.
The decision to pursue illegal employment of migrant workers can be understood as part of the Indonesian government’s policy priority to suppress illegal ﬁshing within its waters. A little over half a year earlier in late 2014, the President of Indonesia (2015) announced a national commitment to crackdown on the crime, arguing that each year it robbed the Indonesian economy of 300 trillion Rupiah (USD 23 billion). His Minister for Maritime and Fisheries Affairs, Susi Pujiastuti, who also owns businesses in the commercial ﬁshing industry, quickly proceeded to reduce opportunities for illegal ﬁshing. She imposed a six month ban on the use of trawlers built outside Indonesia (kapal eks asing) (Ministerial Regulation, 2014), which are much bigger than locally-made vessels and account for 98 per cent of boats catching ﬁsh in the deeper waters of Indonesia’s Economic Exclusive Zone (VOAIndonesia, 2015). The ban was later extended for another six months (Ministerial Regulation, 2015), and in the meantime enabled the Ministry to map related crimes, including human rights violations, tax avoidance, money laundering, document falsiﬁcation (GATRAnews, 2016), and transporting illicit substances (BertaSatu, 2016). Then, three months into the salary negotiations for the migrants in Ambon, the President established the Taskforce for Eradication of Illegal Fishing, which he authorized to set the agenda for law enforcement activity to deter the illegal practices that make illegal ﬁshing so proﬁtable (Presidential Regulation, 2015, article 3).
As a result, the Taskforce chose the offence that criminalizes illegal employment of migrant workers instead of human trafﬁcking for forced labour to punish illegal ﬁshing related to the Ambon case. In August 2016, the Water Police of the Maluku Regional Police Command, which was a member of the Taskforce at the time, charged three senior employees of ﬁshing companies with the offence (Maritime News, 2016), which stipulates a maximum prison sentence of four years and/or a penalty of up to 400 million Rupiah (USD 30,000) (Law No. 13 Year 2003 on Labour, article 185). Institutional policy dictates that the Maluku High Prosecution Ofﬁce ought to handle the prosecution, and that the trial will be held in the District Court of Ambon. However by July 2017, the case had not yet been referred for prosecution, which is usually so when the investigation report is incomplete, and/or when the prosecution documents including the indictment (surat dakwaan) have not been ﬁnalized. The most common reason for such delays is that the police and prosecutors need more time to meet the evidentiary requirements to prove criminal liability for human trafﬁcking and so then successfully prosecute the perpetrators.
Progress aside, the law enforcement agencies used two lines of argument to persuade the Task- force for Eradication of Illegal Fishing to pursue illegal employment of migrant workers over human trafﬁcking for forced labour. First, the Indonesian National Police and Attorney General’s Ofﬁce convinced the Taskforce that it was easier to prove illegal employment of migrant workers. The evidentiary requirements for human trafﬁcking are much higher, as the offence has three complementary and interdependent components: the act, means of achieving the act and its purpose, which is always a form of exploitation (Law No. 21 Year 2007 on Eradication of the Crime of Trafﬁcking in Persons, article 2). The law enforcement authorities cited the Benjina case, in which they relied heavily on assistance from the government’s Witness and Victim Protection Agency (Lembaga Perlindungan Saksi dan Korban, LPSK) and the Embassy of Myanmar to collect evidence in Myanmar to prove that the migrant workers had been trafﬁcked for forced labour in Indonesia. The law enforcement agencies wanted to avoid the technical and political issues that complicated the effort, such as institutional coordination with the LPSK and international cooperation with the government of Myanmar. By contrast, successful prosecution of illegal employment of migrant workers only requires the law enforcement agencies to demonstrate that the defendants used migrant labour without ﬁrst obtaining the necessary permissions from the Indonesian government (Law No. 13 Year 2004 on Labour, article 185).
Second, the Taskforce viewed the smaller problem of trafﬁcked migrants as being part of the larger problem of illegal employment of migrant workers in the ﬁshing industry. The IOM had identiﬁed 379 victims of trafﬁcking amongst the migrants. But the Taskforce had found that their “trafﬁckers” were also criminally liable for illegal employment of over 1,055 migrant workers on 46 different boats (Maritime News, 2016). The victims of trafﬁcking, then, consisted of just over one third of the migrants, and had mostly received back pay of wages. This is not to say that the other migrants did not experience labour violations. It is highly likely that they did. But the fact that the victims received back pay convinced the Taskforce that the labour abuse of non-payment of wages had been addressed so was no longer an outstanding issue. In other words, the ﬁshing companies had – in a way – rectiﬁed the situation and so were absolved of criminal liability for the exploitation component of human trafﬁcking. Nonetheless, it is institutional policy for the Attorney General’s Ofﬁce to include human trafﬁcking as the primary offence in the prosecution documents (IOM and AGO, 2016). However, the investigation report – when it is completed – will only have attempted to meet the lower evidentiary requirements of illegal employment of migrant workers. Predictably, then, the prosecutor will most likely only seek to convince judges of that crime as either a secondary or alternative offence, if the case is referred for prosecution at all.
As shown here, Indonesia’s criminal justice response to cross-border trafﬁcking for forced labour in its waters uses the post-exploitation settlement of labour disputes as an indicator of human trafﬁcking. The fact that the IOM classiﬁed the migrants as victims of trafﬁcking, and that the Indonesian government’s Directorate-General of Immigration treated them as such by then allowing them to stay in the PPN does not necessarily mean that the Indonesian government entirely agreed with the IOM’s assessment. The Directorate-General of Immigration would have had to ﬁnd alternative accommodation for the migrants because its facilities in the city were inadequate. Also, in this way at least, the migrants’ food, water and other necessities were supplied by the IOM, which relieved the government of responsibility to make a budget available. The Indonesian government also expected the IOM to coordinate the migrants’ repatriation, including dealing with its immigration authorities for permission to leave the country, with the migrants’ embassies for travel documents, and with travel agents for air tickets. It is reasonable, then, to suspect that the Indonesian government accepted the assessment in return for the IOM’s material and technical support. The arrangement certainly introduced a victim-centred focus to the government’s handling of the case while the migrants were still in Indonesia. But the resulting compensation also served as a justiﬁcation for the government to refocus its attention on the relatively less resolved matter of illegal ﬁshing in its waters.
The pursued offence is also consistent with the criminal justice system’s handing of human trafﬁcking cases more generally. Justice ofﬁcials have a reputation for using non-trafﬁcking offences to investigate, prosecute and punish other forms of the crime when citizens are victims. Ofﬁcials tasked with law enforcement often see the crime as something else (Palmer, 2012), including as illegal recruitment for overseas work (for cross-border labour trafﬁcking), exploitation of minors (for trafﬁcking of children), and pimping (for sex trafﬁcking) (IOM and AGO, 2016). In the Ambon case, the criminal justice system treated cross-border trafﬁcking for forced labour in Indonesia as illegal employment of migrants. Law enforcement agencies may have advocated for the offence because the evidentiary requirements are lower than for human trafﬁcking. Also, they may have wanted to avoid the complications associated with transnational legal proceedings, as were experienced in the Benjina case a few months earlier. But these practical considerations only partly explain why the system ultimately pursued a non-trafﬁcking offence. Senior justice ofﬁcials are on the record for claiming that the human trafﬁcking offence is cruel (kejam) because it criminalizes employers who give gainful employment to otherwise unemployed and destitute people (IOM and AGO, 2016). As this suggests, there is an institutional view that the matter is more appropriately handled by employment relations systems because it involves abuse of labour rights.
Predictably, the Government of Indonesia (2017) included no detail on the handling of these and other such incoming migrants in its overdue report to the ICMWR Committee. The report was primarily concerned with outgoing migration patterns and related rights issues. Protection of Indonesian migrant workers in countries like Malaysia and Saudi Arabia is a hot topic for coverage in the national media, for criticizing the performance of politicians and bureaucrats, and for discussion on university campuses. At the same time though, Indonesia is also a destination for a mixed group of migrants: visitors, professionals, students, refugees, other asylum seekers, and victims of trafﬁcking. The scale of incoming migration is larger than the outgoing movement of migrant workers, which has numbered only three to four hundred thousand a year since in 2015 the government expanded a moratorium on state-facilitated recruitment for work in the Middle East. The Ambon case draws attention to how unprepared the government is to protect the legal rights of migrants within its territory in a systemic and ongoing way. As a result, however, there is a normative precedent for doing so, but the systems and processes have not been institutionalized since the intervention, so it is reasonable to expect that other such cases – especially lower proﬁle ones that attract far less public attention, or ones in which non-government organizations are not involved – are quietly resolved with the outcome that migrants trafﬁcked for forced labour in the country are repatriated without the compensation to which they are entitled.
This Indonesian case study draws attention to two policy areas that require urgent programming and policy efforts on the part of all those involved in shaping state responses to trafﬁcking of migrant workers for forced labour. First, it begs the age-old question: Can a migrant worker whose vulnerability in the workplace is caused by the structure and implementation of migration and industrial relations regimes also be a victim of trafﬁcking? Criminal justice agencies, migrant sup- port groups and independent observers have been unable to agree on a set of indicators, largely because of the way the vulnerability is structured into a global economic order underpinned by the exploitation of migrant labour. This, then, begs the even larger question: Is it even useful to treat them as victims of trafﬁcking from the migrants’ perspective? The UN Trafﬁcking Protocol applies to the practices that lead to forced labour, and migrants can expect some form of compensation for victimization. But the overall purpose of this convention is to suppress the crime. Doing so will certainly have a deterrent effect and prevent the victimization of others. By contrast though, the ICMWR offers victimized migrants access to mechanisms that can compensate them for rights abuses, including employment-related issues as is often the case for migrants trafﬁcked for forced labour.
Second, the case study highlights a clear tension between migrant rights and criminal justice systems. The systems are well known to use migrants as a resource in criminal proceedings against perpetrators. In many ways, the practice is much the same for victim-witnesses of crime more generally. Human rights and victim-centred approaches encourage justice ofﬁcials to see victim- witnesses with related rights that need to be protected. But, as in this Indonesian case, the victim- witnesses may also be repositioned in relation to the crime. The migrants here were treated as witnesses of illegal employment of migrant workers, instead of as victims of trafﬁcking, as would have been the case if the trafﬁcker-cum-employers had been charged with trafﬁcking for forced labour. Of course the implicit recommendation here is not to convict all employers who illegally use migrant labour of human trafﬁcking. They are not always the same crime. However, there is merit in working out when, and under what circumstances, both offences do apply to the same crime. From the national government’s perspective, a multi-pronged approach to pursuing convictions promises punishment of perpetrators. Just as importantly, from the migrants’ standpoint, the process, which would be more migrant-centred as a result, has the potential to uncover related rights issues for referral to competent government agencies for follow-up.
 The author presented an earlier version of this article as a workshop paper at Transnational Migration and Social Rights, Sydney, 12-13 December 2016, and would like to thank the journal editor, Howard Duncan, and two anonymous reviewers for their useful guidance on how to improve the paper for publication in International Migration.
 Conversations with the IOM staff who were involved in the calculation process reported the opposite, that is that most migrants did not have employment contracts.
Associated Press. 2015 ‘AP Investigation: Slaves May Have Caught the Fish You Bought,’ 25 March.
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LAWS AND REGULATIONS
Law No. 6 Year 2011 on Immigration. Law No. 13 Year 2003 on Labour.
Law No. 21 Year 2007 on Eradication of the Crime of Trafﬁcking in Persons.
Ministerial Regulation (Maritime and Fisheries Affairs) No. 56/PERMEN-KP/2014 Year 2014 on Moratorium on Commercial Fishing Permissions in Indonesian Territory.
Ministerial Regulation (Maritime and Fisheries Affairs) No. 10/PERMEN-KP/2015 Year 2015 on Amendment to Ministerial Regulation No. 56/PERMEN-KP/2014 on Moratorium on Commercial Fishing Permissions in Indonesian Territory.
Presidential Regulation No. 115 Year 2015 on Taskforce for Eradication of Illegal Fishing.
Legal Decision No. 105/Pid.Sus/2015/PN.Tul with defendant Youngyut Nitiwongchaeron Alias Yut Alias Tai Yut. Decided on 10 March 2016.
Legal Decision No. 106/Pid.Sus/2015/PN.Tul with defendant Mukhlis Ohoitenan Alias Mukhlis Herman. Decided on 10 March 2016.
Legal Decision No. 107/Pid.Sus/2015/PN.Tul with defendant Boonsom Jaika Alias Yud Alias Tai Yud. Decided on 10 March 2016.
Legal Decision No. 108/Pid.Sus/2015/PN.Tul with defendant Surachai Maneephong Alias Tai Kee Alias Kee. Decided on 10 March 2016.
Legal Decision No. 109/Pid.Sus/2015/PN.Tul with defendant Hatsaphon Phaetjakreng Alias Tai At Alias At. Decided on 10 March 2016.
Legal Decision No. 110/Pid.Sus/2015/PN.Tul with defendant Somchit Korraneesuk Alias Tai Wau Alias Wau. Decided on 10 March 2016.
Legal Decision No. 111/Pid.Sus/2015/PN.Tul with defendant Yopi Hanorsian Alias Yopi. Decided on 10 March 2016.
Legal Decision No. 112/Pid.Sus/2015/PN.Tul with defendant Hermanwir Martino Alias Herman. Decided on 10 March 2016.