- Wayne Palmer and Antje Missbach. 2017. Trafficking within Migrant Smuggling Operations: Are Underage Transporters ‘Victims’ or ‘Perpetrators’? Asian and Pacific Migration Journal 26(3): 287-307.
On 22 September 2015, Hidayah, a 17-year-old sailor from Indonesia, was transporting asylum seekers to Australia’s Christmas Island with two other crew members when the boat started taking on water.[i] It was a tough job to convince everyone on board that they needed to turn back to Indonesia, not least because the asylum seekers were desperate to leave Indonesia behind them and had paid to be smuggled out (Figure 1 locates the journey’s starting point and the intended destination). It was also a difficult decision for Hidayah, who had been tricked by the organizer. He had agreed to transport the asylum seekers on condition that he was paid an advance on his fee, suspicious that he might be cheated. Hidayah had worked as a transporter for asylum seekers before this trip and the previous organizer had not paid him in full. On his previous journeys to Australia, officials there had warned Hidayah that he risked more severe punishment on his next trip because he was almost an adult. For this trip, the organizer had made an exceptional offer—to leave part of the fee with Hidayah’s parents. Hidayah accepted, but the organizer changed the terms once Hidayah was on board the boat and out at sea off the coast of Garut District on the southwest coast of Java, offering to only pay the full fee after he and the passengers arrived in Australia. Hidayah was disappointed by the revised terms but carried on with the journey until it became clear that, in bad weather with a broken engine, he was risking his life. Against the pleas of his passengers, who were eager to reach Australia, Hidayah turned the boat back to Indonesia where he was arrested.[ii]
Figure 1. Aborted trip: From Garut District, Indonesia, to Christmas Island, Australia.
While there is plenty of academic research and critique of the outcome of Australian trials of migrant smugglers, particularly of Indonesian smugglers, Indonesia remains under-researched in this respect, even though it is a significant site for observing changes in practice. Indonesia is a transit country for thousands of asylum seekers and refugees attempting to reach Australia in search of effective protection through regular resettlement and, more controversially, through unauthorized boat voyages. The journeys are made with the help of so-called smugglers (Missbach, 2015a). Indonesia’s unique geography—an archipelagic state with more than 17,000 islands and a coastline of 55,000 kilometers—makes it an ideal location for running smuggling operations, which were first criminalized under Law No. 6 Year 2011 on Immigration. Destination countries are keen to disrupt these operations as part of an overall aim to minimize irregular movement across international borders. The International Organization for Migration (IOM) has recognized the significance of Indonesia in global efforts to combat migrant smuggling by maintaining one of its largest offices there. The governments of Indonesia and Australia co-chair the Bali Process, an international forum for over 50 national governments to discuss and share information and appropriate responses to migrant smuggling, human trafficking and related transnational crime (Kneebone, 2014).
The Indonesian government is in a strategic position to promote its handling of the crimes to other states with a stake in its policies. In 2007, Indonesia passed Law No. 21 on the Eradication of the Crime of Trafficking in Persons, which prohibits all forms of human trafficking. Generally speaking, Indonesia is a major source country for women, children and men subjected to trafficking for forced labor. Indonesians are trafficked across international borders, mostly to East Asia and the Middle East, but there is also substantial internal trafficking between the 34 Indonesian provinces. Punishment for the crime ranges between three to 15 years’ imprisonment. The government has prosecuted and convicted trafficking offenders, but the data collected are often neither comprehensive nor accurate (IOM and Attorney General’s Office (AGO), 2016). The government established anti-trafficking taskforces in several provinces known to be hotspots for the crime, but this centralized effort has been impaired by Indonesia’s decentralized government structure and lack of coordination across agencies and among various levels of government institutions. For these and other reasons, the US Department of State (2017: 208) considered the Indonesian government as one which “does not fully comply with the minimum standards for the elimination of trafficking … despite … making significant efforts to do so.”
We point out a fundamental juridical misconception about perpetrators of migrant smuggling and victims of trafficking that can cause substantial disadvantage, especially for people involved in the irregular transport of asylum seekers across borders. Smuggling operations require many local helpers, supporters and collaborators in order to succeed. Transporters are more likely to be arrested, so organizers tend to recruit men with insecure socio-economic backgrounds because they are more receptive to risky jobs (Missbach, 2016). Organizers are also known to deceive transporters, to promise them high fees and to give them false information about the actual destination and work conditions. Given the widespread deception, coercion and exploitation of poverty, transporters may also be considered victims of trafficking. In a juridical sense, this poses a dilemma—does one treat the transporter as a perpetrator or victim of crime? The answer to this question is supposedly clear-cut. According to Article 18 of Law No. 21 Year 2007, if traffickers force their victims (including transporters) to commit a crime, then the victims are not criminally liable and cannot be punished. But what about people trafficked into smuggling operations in which they know they will commit a crime? How does the criminal justice system treat such perpetrator-cum-victims-of-crime? These are pertinent questions for further examining the smuggling–trafficking nexus, which has been useful to explore how migrants, who start off being smuggled, end up being trafficked.
These questions emerged from earlier research on human trafficking in Indonesia. As observations from fieldwork in Indonesia show, justice officials grapple with the perpetrator-cum-victim dilemma. In November 2015, the IOM commissioned Wayne Palmer to interview the investigator, prosecutor and judge who handled legal proceedings against the juvenile, Hidayah, whom the IOM identified as a victim of trafficking, but who was later convicted of migrant smuggling in Cianjur, West Java. The intention was to find out why the Indonesian criminal justice system preferred the migrant smuggling offense over human trafficking in this case, which would then be used to develop a training curriculum on prosecuting human trafficking. The exercise identified the practice that justice officials generally do not look for evidence of human trafficking among migrant smugglers (IOM and AGO, 2016: 77). Building on this study, in August 2016, Antje Missbach visited the young man in prison as part of an ongoing research project about migrant smuggling through Indonesia. To better understand the vulnerability of local transporters in smuggling operations, she also visited his home village in Takalar District, South Sulawesi, where she gathered more data about the socio-economic context of the place where he was recruited. This was followed by a second visit in May 2017 after Hidayah’s release from prison.
This article shows how the Indonesian criminal justice system handles migrant smuggling cases that involve juvenile transporters. First, it outlines academic debates about the perpetrator/victim problem in the context of migrant smuggling and human trafficking to make the point that the existing focus is primarily concerned with asylum seekers and refugees becoming victims during or after the smuggling process, while ignoring the victimization of the local facilitators. Second, the article explains why the criminal justice system in Indonesia does this and shows how it treats juvenile perpetrators. Third, it presents a case study that shows how the Indonesian legal system proceeded against an underage transporter in a failed smuggling operation, into which he claims he was tricked. The article then discusses the case to tease out observations about how the Indonesian criminal justice system grapples with the smuggling–trafficking nexus in cases where the underage subject is both a perpetrator and a victim of crime more generally. In conclusion, it argues that criminal justice agencies in Indonesia lack capacity to identify trafficked victims involved in smuggling operations and must, therefore, rethink existing efforts to suppress migrant smuggling through the country.
VICTIMS AT THE SMUGGLING–TRAFFICKING NEXUS
International law makes a very clear distinction between migrant smuggling and human trafficking, defining migrant smuggling as a voluntary form of irregular movement across borders facilitated by third parties, whereas trafficking is seen as forced movement for the purpose of exploitation (Yea, 2014; Ford et al., 2012). There is also wide concern about the real risk that smuggled migrants might become victims of trafficking during or after smuggling operations (Kneebone, 2010; Campana and Varese, 2016). But, with a few exceptions (Hunyor, 2001; Missbach, 2016), little attention is paid to transporters in smuggling operations who are hired, deceived/tricked or forced to ferry asylum seekers across international borders. Although they do participate in migrant smuggling voyages, their recruitment often resembles trafficking, as it is characterized by deception and false promises, by a lack of comprehensive knowledge about the journeys and passengers, and by exploitation of their socio-economic precarity. The vulnerability of transporters within migrant smuggling ventures is even higher when the transporters are very young or even underage, not least because their agency to make their own choices is limited by cultural expectations of acquiescence to older employers.
Before the United Nations Convention against Transnational Crime, known as the Palermo Convention, was adopted in 2000, there was general confusion about how to distinguish between human trafficking and migrant smuggling (UN General Assembly, 2001). In theory and practice, national governments elided the two categories of migrants in national, regional and international policy, especially once irregular migrants had crossed international borders. Of particular concern to them was, and often still is, the fact that both groups of migrants commit immigration offenses that are punishable and should, therefore, be treated as offenders. This situation was not helped by the fact that during the preceding 10 years, international organizations that provide guidance to synchronize national laws and practices with international standards did not share the same understanding of irregular movements either (Gallagher, 2010). By the end of 1998, the United Nations recognized this and established an ad hoc committee to discuss the difference between the crimes of cross-border trafficking and unauthorized migration (UN General Assembly, 1999). The United Nations adopted distinct definitions three years later and thus encouraged national governments to respond differently to “innocent victims” and “culpable migrants.” As a result, law enforcement agencies are urged to look for tell-tale signs of trafficking or smuggling among migrants.
This approach to law enforcement is also further encouraged by the crimes’ status in international law. The United Nations Office on Drugs and Crime (UNODC) is the primary international organization tasked with promoting the Palermo Convention and its protocols. During deliberations, the Office of the United Nations High Commissioner for Human Rights (OHCHR) argued that the focus on crime would detract attention from efforts to protect the rights of trafficked and smuggled migrants (Gallagher, 2010). In retrospect, even they have acknowledged that the focus enabled greater international cooperation in investigating, prosecuting and punishing the crimes on a scale that has not been possible for violation of rights enshrined in other conventions. Another consequence, however, has been the tendency of criminal justice systems to prioritize the use of trafficked victims as a resource in legal proceedings against offenders, instead of pursuing the protection of their economic and social rights as an equal objective of law enforcement. In practice, then, this kind of approach treats the irregular movement of people as a criminal justice issue only, rather than as a problem in need of a multi-pronged public policy response (Kneebone and Debeljak, 2012).
National governments have also shied away from using anti-trafficking laws to deal with internal trafficking. The reason for this is, in part, that they developed “within an anti-immigration framework” (McSherry and Kneebone, 2008: 68), which also reinforced the perception that human trafficking is a transnational crime only. Intergovernmental organizations run capacity-building projects to encourage resistant national governments to apply the laws to internal trafficking, but the projects are often donor-driven and put a heavy emphasis on cross-border trafficking (Piper, 2005), because donors are frequently concerned with unauthorized migration. National government agencies may also be divided in their understanding of the crime (Palmer, 2012). This is particularly obvious in criminal justice systems because of the way they force justice officials to debate, establish, pursue and apply offences. In practice, these officials tend to use non-trafficking offenses to investigate, prosecute and punish internal trafficking (IOM and AGO, 2016), sometimes because it is another way to avoid dealing with complicated domestic issues such as labor rights (Lindquist, 2013). This is strikingly obvious in countries where the national economy is supported by the exploitation of migrant labor (Yea, 2015).
The ratification of the Palermo Convention reified a strong bias in terms of gender and age in national law. The 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against UN Transnational Organized Crime (hereafter, the Trafficking Protocol) identifies women and children as particularly vulnerable and at greater risk of victimization. This emphasis cannot be separated from a long history of public policy debates about prostitution and whether profiting from it constitutes a form of exploitation. For adult women, sexual exploitation may result from the fact that actual work conditions differ from those that were promised. Where children are concerned, however, the treaty does not recognize their capacity to even give consent to promises that result in exploitation (Article 3(c), UN Trafficking Protocol 2000; Goździak, 2008). In other words, any attempt to profit from the prostitution of children is deemed to be sex trafficking. Also, in practice, the heavy focus on suppressing this form of exploitation precludes men in particular from being identified as victims of trafficking. Their exploitation, which often falls under the category of labor trafficking, is often deemed to be less grave (Surtees, 2013). As a result, the stereotype of a trafficked victim is a young woman forced into prostitution rather than a man who is forced to provide non-sex-related services.
Another factor that prevents criminal justice agencies from identifying victims in the full range of exploitative circumstances is justice officials’ perceptions of what constitutes a victim. Identification is as much a technical process as it is a political one. On the technical side, there are a wide range of indicators with variables spanning three complementary and interdependent components—act, means and purpose—to determine whether someone is a victim of trafficking. Depending on the combination, the answers also indicate the relative severity of the victim’s experience. Recognizing the complexity, intergovernmental organizations have produced guidance materials to support these efforts. An example is the IOM Handbook of Direct Assistance for Victims of Trafficking (IOM, 2007). Another equally difficult challenge of identification is political in nature. Those tasked with identification may opt not to look for evidence of trafficking in situations that they decide are something else, such as pimping and illegal adoption. Inadequate knowledge of human trafficking helps explain this phenomenon, but it is not always a problem of individual or institutional capacity as shown in the “debate about who constitutes a legitimate victim of trafficking” (Yea and Kitiarsa, 2014: 9).
Custodians of migrants in smuggling operations are often assumed to be perpetrators because they aim to profit from the successful completion of the crime. National governments have a tendency to treat the activities as a criminal justice issue, and a primary objective of law enforcement agencies is to punish the crime. Internal trafficking is often treated as something else, while men and victims of labor exploitation in particular are largely ignored. These practices effectively serve to hide from plain sight the smuggling–trafficking nexus, which has hitherto been used to focus on how and why smuggled migrants become victims of trafficking (Kneebone, 2010). This article uses the nexus to scrutinize a situation in which transporters in smuggling operations are trafficked. The following section outlines how this plays out in Indonesia.
DESERVING VICTIMS AND PUNISHABLE PERPETRATORS IN MIGRANT SMUGGLING OPERATIONS IN INDONESIA
A focus of Indonesian law enforcement concerning irregular migration is to determine whether the perpetrator is a smuggler or trafficker for the sake of establishing the appropriate response to people in the custody of police. In this way, justice officials decide at the outset whether to treat them as witnesses or victim–witnesses of crime. This decision is important because the classification bestows certain legal rights on witnesses. In human trafficking cases, the trafficked person or victim–witness is entitled to compensation for damages, payable by the perpetrator (Article 48, Law No. 21 Year 2007). The victim’s testimony is also often key to successfully prosecute the perpetrator. Things are slightly different in migrant smuggling cases, in which witness statements of smuggled migrants are used to prove criminal liability for breaking the law on how people should movement across international borders. The following section explains how the Indonesian police respond to the crimes.
In practice, the Indonesian police make a preliminary assessment [penyelidikan] to identify the crime based on the profile of the people in the perpetrator’s custody when an arrest is made. Typically, smuggled migrants are foreign citizens from countries such as Afghanistan and Iraq. Standard operating procedure requires that the police check whether the foreigners have valid migration documents and that their presence and activities are compliant with the conditions of their stay in Indonesia. If the police identify an irregularity, they refer the foreigners to the Immigration Office which has jurisdiction to follow up on their case. Immigration authorities should further determine whether the foreigners are smuggled migrants or victims of trafficking, but either way, immigration law recasts both categories of foreigners as victims, so the government is required to give them “special treatment,” which means that immigration officials should not apply all of the rules of general detention facilities (Article 87(2), Law No. 6 Year 2011). By contrast, if those in custody are Indonesian, and they almost always are, the police do not involve the Immigration Office at all and are freer to decide on how to proceed with the criminal investigation.
During the investigation, the police establish what roles the Indonesians played in the crime to identify the main perpetrator or principal who will then receive a more severe punishment than the accomplices. The latter are entitled to a one-third reduction in the maximum sentence in Indonesian law (Article 57, Code of Criminal Procedure). For accomplices in migrant smuggling cases, the maximum sentence is 10 years imprisonment and a fine of IDR one billion (USD 77,000) (Article 120, Law No. 6 Year 2011). But in the cases of captains and deckhands who operate boats in smuggling operations, the police prefer to treat them as principals in recognition of the fact that the perpetrators all play a “direct part in the execution” of the crime (interview with District Police Investigator, Cianjur, 12 November 2015). The captain may lead one part of the migrant smuggling operation, but the deckhands are also hired help with specific tasks, such as operating the engine and preparing food for the passengers. The distinction between principal and accomplice, then, is not deemed important in establishing the offense for transporters; the transportation stage is often considered to be the main offense. But detailed information about each transporter’s role is required because it enables justice officials to assess their overall responsibility for, and investment in, ensuring the successful completion of the transportation for the purpose of meting out a commensurate punishment.
As part of this effort, the Indonesian police collect witness statements from the smuggled migrants to prove the principal’s criminal liability. By contrast, the police do not generally regard the perpetrator’s statement as an essential piece of evidence, largely because perpetrators are known to deny wrongdoing, obfuscate and provide only information that confirms already established facts. As a result, the police often only collect such statements if the perpetrator gives a “full” confession,[iii] which can expedite legal proceedings and result in a speedy conviction. Even if the investigation report has already been finalized, prosecutors can still enhance the result by conducting their own investigations with a view to add supplementary evidence (Article 30(1e), Law No. 16 Year 2004). But the law proscribes prosecutors from formally interrogating the perpetrator. In theory, then, the first formal opportunity for prosecutors to interrogate perpetrators is during cross-examination in court. This approach to legal proceedings effectively denies the criminal justice system of another pre-trial opportunity to document further the context for the perpetrator’s actions. Consequently, the criminal justice system relies almost exclusively on the police to identify victims of trafficking among the perpetrators.
An exception to this division of labor in determining the nature of offenses is the treatment of perpetrators under the age of 18. Cases involving minors who are perpetrators (age 12 to 17) should be prioritized as a matter of urgency (Article 17, Law No. 6 Year 2011), and the investigation should be handled by a police officer in the Women and Children Protection Unit (Article 26, Law No. 6 Year 2011). In such cases, the investigator is required to obtain a recommendation from the local correctional center [balai pemasyarakatan] on how the criminal justice system should punish the perpetrator if proven guilty, which ought to be done within 72 hours of receiving the request (Article 28, Law No. 11 Year 2012). The report should cover five substantive issues: the perpetrators’ identity; the type, chronology and motivation for the crime; the perpetrator’s role in and consequences of the crime; the perpetrator’s life history; the perpetrator’s family situation and the wider social context of his life at home. These data provide the investigator with the necessary material to analyze the situation by considering the fullest range of factors that may have induced or even put pressure on the perpetrator to commit the crime. The correctional center’s assessment enhances the investigation report by providing a formally documented, perpetrator-centered view of the alleged offense.
Such input is designed to help the criminal justice system establish the most appropriate offence and pursue a commensurate punishment as soon as possible, because cases involving children should be resolved relatively quickly. The Indonesian police should also notify the Attorney General’s Office after commencing criminal investigations (Article 109(1), Code of Criminal Procedure). The notification should include details of the related police report, date on which the investigation began, type of crime, alleged offense, short summary of the crime and the perpetrator’s identity (Article 25(1), Police Chief Regulation No. 14 Year 2012). In addition to increasing accountability by alerting another law enforcement agency to the investigation, the notification is also an invitation for the Attorney General’s Office to advise the police on the most appropriate offense and to work out the evidentiary requirements for the successful prosecution of the crime (Article 10, Attorney General Regulation No. 36 Year 2011). But the law does not specify when the police should notify the Attorney General’s Office, thus investigators frequently do so at the time they submit the completed investigation report (IOM and AGO, 2016). Others do not notify the Attorney General’s Office at all. This means, in effect, that the police often monopolize the investigation phase and determine the offense that prosecutors then pursue in court.
As a result, the Indonesian police often pursue offences for which the evidentiary requirements are relatively low, largely because they are easier to prove. Migrant smuggling is one such offense. It has three components: 1) perpetrators intend to derive some sort of profit from the crime for themselves or someone else; 2) perpetrators transport people or instruct others to do so; and 3) the transported people lack the necessary permissions to enter and leave state territory. By contrast, human trafficking is significantly more complicated, requiring evidence for three interdependent and complementary components—act, means and purpose—which is always some form of exploitation. The police report that it is very difficult to prove that a perpetrator who was somehow involved in recruiting or harboring victims had done so with full knowledge that the end purpose was to exploit them (IOM and AGO, 2016). Thus, investigators frequently pursue non-trafficking offenses that are easier to prove, including pimping for sex trafficking (IOM and AGO, 2016), and illegal recruitment for overseas work for cross-border labor trafficking (Killias, 2010). Migrant smuggling is one of those non-trafficking offenses, but one that stipulates a more severe minimum punishment.
The Indonesian police tend to proceed against intermediaries rather than the main organizers of smuggling operations. Organizers distance themselves by providing transporters with minimal detail about their identity and by regularly changing their phone numbers. They also have the economic and political influence to ensure that they do not end up on the most wanted persons list, if an investigation report has to mention them at all. As a consequence, the criminal justice system tends to respond only to the frontline of smuggling operations. There are some notable exceptions, including the case in which Australia provided intelligence that resulted in the successful prosecution of an organizer (Missbach, 2015b). This means that the criminal justice system generally treats transporters as the uppermost principals in relation to migrant smuggling cases, which has major implications for justice. In such cases, prosecutors and judges generally feel that the minimum sentences are cruel [kejam], especially because the severity of the punishment is not commensurate with the perpetrator’s role in the crime (IOM and AGO, 2016: 74). As another consequence, the police are further dissuaded from investigating the victimhood of transporters. Although the police might consider an organizer to be the sole principal of migrant smuggling operations, that person, more often than not, will remain on the most wanted persons list and rarely be arrested (Crouch and Missbach, 2013).
In Hidayah’s case, which is presented in the following section, the IOM identified the underage transporter in a migrant smuggling case as a victim of trafficking. The Indonesian Attorney General’s Office had invited the IOM to do so as an expert partner, which is permitted under the national government’s memorandum of understanding with the organization. Despite this, the victim was convicted of migrant smuggling, but the judge sentenced him to only 18 months in prison (Legal Decision No. 20/Pid.Sus-Anak/2015/PN.Cjr, 2015), a little less than one-third of the minimum sentence for adult perpetrators. The transporter’s socio-economic circumstances and role in the crime certainly encouraged justice officials to pursue and apply the minimum sentence. But the fact that the transporter was a minor at the time and that the organizer had used deception about the timing of payment to successfully recruit the young transporter were also significant considerations. The following study of the underage transporter traces the progression of his case through the criminal justice system.
MIGRANT SMUGGLER OR VICTIM OF TRAFFICKING?
Hidayah’s recollection of his arrest and the account recorded in his police statement tell very different stories about the event. Almost a year after the aborted trip, Hidayah remembered running away as soon as he set foot on the beach in Cianjur District, West Java (see Figure 1) to avoid arrest, and then hiding in a beauty salon because he could not afford to rent a room in a hotel. Hidayah claims he was sexually harassed by an employee, so he left to look for another place to stay. It was then that military officers apprehended him, first thinking that Hidayah was a Burmese asylum seeker. They handed him over to the police after it became clear that Hidayah was a migrant smuggler. By contrast, Hidayah’s police statement reports that he and the two other Indonesian transporters were arrested on the beach one hour after landing. According to this written statement, the police transferred the asylum seekers to the Sukabumi Immigration Office, which then coordinated with the IOM to make arrangements for their detention in line with the law. The police then collected witness statements from the arresting officers, a local resident at the beach, nine of the smuggled migrants, the interpreter and an immigration official, as part of the criminal investigation. It was at this point that the criminal justice system began treating Hidayah as a perpetrator—rather than a victim of trafficking—in the migrant smuggling operation.
The criminal justice system then proceeded against the alleged migrant smugglers in different ways. It took more than six months to convict Hidayah’s colleagues (Legal Decision No. 373/Pid.Sus/2015/PN.Cjr, 2016; Legal Decision No. 374/Pid.Sus/2015/PN.Cjr, 2016), whereas Hidayah’s first hearing was less than three weeks after the arrest (Legal Decision No. 20/Pid.Sus-Anak/2015/PN.Cjr, 2015). Within another fortnight, the judge had handed down a sentence considerably less severe than the minimum for the crime. The day after Hidayah’s arrest, the police notified Hidayah’s family and contacted the local legal aid institute to arrange a legal advisor for the boy. The next day, the police requested the local correctional office’s assistance to interrogate Hidayah, produce a report that established the economic and social context of his role in the crime, and recommend a punishment. The office submitted a partial report to the police three days after the 72-hour deadline. The sections on Hidayah’s life history, relationships and resources to reintegrate Hidayah at home were left blank. Indeed, the correctional office missed the deadline in this case, but compared with cases involving adults, the response was exceptionally fast for the Indonesian criminal justice system, which has a reputation for leaving legal proceedings hanging [gantung].
The late submission delayed completion of the investigation report, thus the police required an extension of the period for which Hidayah could be detained. The police submitted the request for another eight days to the prosecution office on the day the correctional office report was due, together with formal notification that the investigation had commenced. Technically, the police should have notified the prosecution office about Hidayah’s case within 24 hours because the suspect was a minor (Article 31 (2), Law No. 11 Year 2012). The police had already been investigating the case for six days, and when a prosecutor contacted the police to discuss the case, she immediately suspected that Hidayah was also a victim of trafficking. Earlier that year, the prosecutor had participated in an IOM-funded training session on how to identify victims and felt convinced of Hidayah’s victimhood because he had been recruited, moved and then not paid for his services. Because Hidayah was a child, she did not have to prove that the organizer had targeted Hidayah for recruitment because of his vulnerability in terms of youth, low education and poverty, or that the organizer had made false promises about the job. Ultimately, however, the police were not convinced of Hidayah’s status as a victim of trafficking and did not change the charge.
The police knew that Hidayah had successfully smuggled asylum seekers into Australia on three other occasions because the boy had admitted doing so.[iv] Because of his previous experiences as transporter for asylum seekers, the police argued that Hidayah should have known that transporters are not normally paid the full amount in advance. The police decided that there was nothing to suggest that the organizer did not intend to pay Hidayah, because he had paid Hidayah in full on two earlier occasions. Nonetheless, the prosecutor still felt strongly about Hidayah’s victimhood as a trafficked person and encouraged the police to submit the investigation report without the fully completed correctional office advice so she could move forward with the legal proceedings as soon as possible. The police did so the following day, which gave her five days to start prosecuting the case (Article 34(1), Law No. 11 Year 2012), and the district court gave her a five-day extension to finalize the prosecution documents (Article 34(2), Law No. 11 Year 2012). In the indictment, the prosecutor argued that Hidayah committed the crime out of economic necessity, that he was not aware that transporting asylum seekers to Australia was illegal, and that he had potential to reform, especially because he was a child and wanted to pursue further education at home. On the basis of these factors, the prosecutor sought a three-year sentence for migrant smuggling, a little over half of the minimum punishment for adult offenders.
The judge confirmed that the prosecutor could use restorative justice principles instead of imprisonment alone in the sentence for Hidayah. The judge also informed the prosecutor that the court could order Hidayah’s return to the care of his parents while the boy undertakes vocational training (Article 82(2), Law No. 11 Year 2012). The prosecutor liked this option but understood immediately that the next hurdle would be a financial one—how to pay for the repatriation to South Sulawesi, where Hidayah’s family lives. Technically, the prosecutor’s office pays the cost of enforcing judgements, which primarily involves taking convicts to prison and assessing ability to pay penalties. She discussed the possibility of repatriating Hidayah with her direct manager, the Head of the General Crimes Section, and was told that they had no budget allocation for an airfare of IDR 1.4 million (USD 100). As such, Hidayah would have to spend part of his sentence in a local correctional facility in West Java before resources would be available to move him. This prompted her to involve the IOM in Jakarta, recalling that the organization financially supported direct assistance, repatriation and reintegration services for victims of trafficking. The next day, she facilitated an opportunity for the IOM to interview Hidayah with the view to establish him as a victim of trafficking. IOM determined that Hidayah showed no obvious signs of need for immediate medical or psychological support and offered to cover the cost of repatriation to South Sulawesi, where the government would provide reintegration services free of charge.
Before the decision was handed down, the prosecutor informed the judge that the criminal justice system had secured financial support to repatriate Hidayah to his home province. The judge then sentenced him, taking into account the fact that there is no minimum sentence for children (Article 79(3), Law No. 11 Year 2012). The judge wanted Hidayah to spend one full year undertaking vocational training as part of the sentence. Thus, he added an extra six months to the punishment to cover the time Hidayah had already spent in detention and the additional time needed to move the boy to South Sulawesi. The prosecution office arranged for Hidayah to await repatriation in West Java’s only juvenile detention center before transferring him to a facility in his home province. The South Sulawesi juvenile detention center aims to provide inmates with vocational skills so that they can work and earn a living without resorting to crime after release (South Sulawesi Territorial Office for Law and Human Rights, 2015). Hidayah took classes in auto repair, typing and car washing, but he planned to go back to day-labor at sea on return to his hometown in Takalar District, because he felt that the training would not prepare him for a better-paying job there (interview with Hidayah, Makassar, 8 August 2016).
THE SMUGGLING–TRAFFICKING NEXUS IN INDONESIA
The handling of Hidayah’s case provides details about how the Indonesian criminal justice system handles migrant smuggling cases involving juvenile transporters. His was not a test case, but the handling does reveal some of the system’s values, which are not always articulated in law.[v] In this case, the police decided that Hidayah was, first and foremost, a migrant smuggler, but one who was entitled to special treatment because of his young age. The Attorney General’s Office pursued a sentence that was less than one-third of the minimum punishment, partly in recognition of Hidayah’s low socio-economic status. The judge applied an even lighter sentence (half of what the prosecutor had pursued) to punish Hidayah for his “limited role” in the crime (interview with judge, Cianjur, 12 November 2015). The combination of approaches demonstrates that the Indonesian criminal justice system can impose less severe sentences on juvenile perpetrators of migrant smuggling. But it also hints at the effect of managerialism—i.e., that managers of criminal justice units put pressure on investigators, prosecutors and judges to meet targets for completing stages of legal proceedings for internal reporting purposes (Andrews and Bonta, 2010). Some justice officials will push for the completion of legal proceedings in pursuit of a promotion. It is possible that Hidayah may have also been a victim of a system intent on impressing with “good” statistics.
The differences in approach to the case also reveal details about institutional relationships within the criminal justice system. The uncompromising position of the police—Hidayah was a juvenile perpetrator and not a trafficked victim—is representative of its interaction with the Attorney General’s Office concerning human trafficking cases more generally (IOM and AGO, 2016). Prosecutors often complain that the police dominate the investigation stage of legal proceedings. As a rule, the Attorney General’s Office is reluctant to take over an investigation, as it recognizes the division of administrative labor between the police, who investigate cases, and prosecutors, who prosecute them. In theory, the Attorney General’s Office can take over an investigation, but it chooses not to because prosecutors do not want to “meddle in the kitchen of another [ikut campur dapur orang lain]” (Interviews with justice officials, Tanjung Pinang, April 2015; Kupang, August 2015). Prosecutors also resent judges when the latter question the quality and integrity of prosecution documents. Their defensiveness is a symptom of institutional egotism [ego sektoral], an aspect of administrative culture that prevails in the Indonesian state more generally (Palmer, 2016). In Hidayah’s case, it helps explain why the prosecutor was quick to drop the argument that the transporter was, in fact, a victim of trafficking, and to fall in line [manut] with the police who had already charged him with migrant smuggling (interview with prosecutor, Cianjur, 12 November 2015).
The late notification by the police was a clear signal to the Attorney General’s Office that the investigator had very little interest in discussing the merits of the migrant smuggling offense. The fact that the prosecutor then pursued the offense despite her misgivings is a little surprising, but the decision to do so may have also been motivated by institutional resistance to using Law No. 21 Year 2007 on the Eradication of the Crime of Trafficking in Persons (IOM and AGO, 2016). The Attorney General’s Office has a strong reputation for resisting its use, especially when another, usually less serious, offense is an option for a successful prosecution. In part, this is because prosecutors see the human trafficking offense in a negative light, as it criminalizes people who, for example, help poor citizens secure gainful employment (interview with justice officials, Kupang, August 2015). In another way, this resistance effectively prevents justice officials from dealing with related and “complicated political issues such as labor rights and freedom of mobility” (Lindquist, 2013: 138–139). At the same time, the criminal justice system is also under international pressure to punish serious crimes, such as migrant smuggling, which is much easier to successfully prosecute because of its lower evidentiary requirements. Human trafficking, by contrast, is difficult and requires the system to provide protection services to victims, for which there is not always an adequate budget allocation (IOM and AGO, 2016).
The fact that the prosecutor attempted to establish a trafficking offense in Hidayah’s case is a systemic exception, as the police are generally recognized as having a much better understanding of the crime (see, for example, US Department of State, 2014). In the case study presented here, the police may have been right. Hidayah might not have been a victim of trafficking, even though he claims he was misled about arrangements for his payment. After all, changing the terms of service once a job has begun is an employment relations matter. It is not necessarily the same as being trafficked and forced to provide services. But Hidayah’s claim certainly deserved more attention during the investigation, if only to reveal more about his employment relationship with the organizer, such as whether the recruiter had deceived Hidayah to secure the boy’s consent to transport the migrants, and whether Hidayah would have accepted the job if he had not been promised that down payment would be left with his parents. It may have been difficult to establish facts, but it is undisputed that Hidayah accepted the offer because of his low socio-economic status, despite knowing the legal consequences awaiting him in Australia. Furthermore, Hidayah’s actual employment situation limited his freedom to leave the relationship with his employer. When he became aware that the conditions of his employment had changed, he was already at sea in the company of two adult colleagues and 18 asylum seekers determined to get to Australia’s Christmas Island, with no way of returning to shore without assistance from the organizer.
In Hidayah’s case, the children’s criminal justice system compelled the justice officials to take into account the economic and social context of his role in the crime. The system uses a multi-agency framework, consisting of the Indonesian National Police, the Attorney General’s Office, the court system and the correctional centers, to find the full range of mitigating factors for sentencing minors. However, it stops short of questioning the subject’s identity as a victim rather than a perpetrator of crime. In part, this is because statutory agencies in many countries lack “sufficient expertise in relation to children” when it comes to trafficking offenses (Arocha, 2010: 11), resulting in missed opportunities for governments to protect children and other young people affected by trafficking (Hynes, 2015: 65). For Hidayah, the correctional system did not even consider the possibility that he was a victim of trafficking, despite strong indicators of it in his testimony. The omission may be due to the officials’ lack of knowledge about human trafficking. It may also be because the system submitted a partial report about Hidayah’s socio-economic status based only on interviews with him in the place where he was arrested. This deprived justice officials of an opportunity to grasp more fully the social and economic context of the place where Hidayah was recruited, a place where other young men, including Hidayah’s cousins, came to transport migrants in other smuggling operations (interview with Hidayah’s family, Takalar, 7 August 2016).
Hidayah was released from prison in early 2017, a few weeks ahead of his scheduled release date, because of reductions to his term [grasi], which are given to all prison inmates on national holidays in Indonesia. Back in his village, Hidayah tried to find work, but failed. Although he had learned a few new skills in prison, nobody wanted to offer him a job, largely because he could not provide certificates [ijazah] that testified the skills that he had acquired. Hidayah then tried his luck selling noodle soup from a mobile wheelbarrow, but by the time we arrived in his village a few months later, he had taken off again. His mother reported that someone came and offered him a job on a fishing boat “somewhere in Papua” (interview with Hidayah’s mother, Takalar, 14 May 2017). This time Hidayah received a down payment (IDR 3.5 million or USD 260) from the person who recruited him, which he passed on to his family. His mother was very happy that he had found work, not least because Hidayah’s father had fallen ill and could no longer work as a builder. It is known that workers are frequently exploited and maltreated in those fishing fleets. Since all attempts to reestablish direct contact with Hidayah have failed so far, it is safe to assume that Hidayah’s ordeal—having to earn money for his impoverished family—continues, but this time the circumstances of his exploitation might be considered to be legal.
Hidayah’s case is not unique, as hundreds of underage Indonesian transporters have been arrested and sentenced in Australia for their involvement in migrant smuggling (Missbach, 2016; Mitchell, 2015: 205). His case sheds further light on the smuggling–trafficking nexus, which has hitherto focused on understanding the conditions under which smuggled migrants become victims of trafficking. It directs attention to transporters in smuggling operations, an overlooked group of people whose social and economic vulnerabilities encourage them to accept the jobs despite their illegality (Missbach, 2016). The victims-to-be may be able to anticipate the various forms that exploitation will take in their situation. Moreover, their vulnerability and overall precarious lives may make them unwilling to abandon the work, even after it is clear that they have been deceived in one way or another about its terms and conditions. Justice officials often consider these realities as mitigating circumstances, which was certainly so for Hidayah. But in his case, he was a minor and so was entitled to special treatment, which resulted in such a lenient sentence. Most adult transporters had been punished with the full weight of the law.
This highlights the need for justice officials to receive further training in identifying the full range of possible victims of trafficking, who remain highly vulnerable even after the exploitation has ended. This vulnerability makes victims susceptible to re-trafficking, which, as demonstrated in the handling of Hidayah’s case, Indonesian law enforcement does not take into account at all. Repeat offenders may be re-trafficked for smuggling operations, which justice officials remain blinded to due in large part to a tendency to pursue non-trafficking offenses to punish human trafficking. The handling of Hidayah’s case also shows that justice officials may even seek the punishment of potential victims as perpetrators of related crime, for which it is much easier to meet evidentiary requirements. It also hints at an assumingly unintended outcome of previous training, which has encouraged justice officials to prioritize the punishment of migrant smuggling over related crimes. So it is predictable that justice officials pursue related offenses even though human trafficking may address the most relevant set of economic, political and social problems in a place like Indonesia, which is a transit country for refugees and has a large, poor and therefore vulnerable population.
[i] We use the pseudonym Hidayah in place of the child’s real name to protect his identity. However, it is simple to identify him because the Indonesian criminal justice system did not suppress his real name in all documents related to the legal proceedings against him. At the time of writing in 2017, Hidayah was already over 18 years old.
[ii] The authors presented an earlier version of this paper at the Smuggling Workshop: The Theory and Praxis of Irregular Migration Facilitation, El Paso, 6–8 April 2017.
[iii] Full confession here means confirmation of the version of events and other facts that the police compile in the investigation report.
[iv] Before this attempt, Hidayah transported 69 migrants from North Galesong to Australia’s Ashmore Reef (December 2012), 47 migrants from Krakatoa Island to Australia’s Christmas Island (May 2013) and 29 migrants from Pelabuhan Ratu to Australia’s Christmas Island (December 2013).
[v] Separately, 115 Indonesian children involved in smuggling operations through Indonesia have filed a civil lawsuit at the Central Jakarta District Court to sue the Australian government for imprisoning or otherwise detaining them in adult facilities between 2008 and 2012 (Case No. 637/Pdt.G/2016/PN.Jkt.Pst, 2016).
Andrews D, Bonta J (2010) Rehabilitating criminal justice policy and practice. Psychology, Public Policy, and Law 16(1): 39–55.
Arocha L (2010) Wrong Kind of Victim? One Year on: An Analysis of UK Measures to Protect Trafficked Persons, London: Anti Trafficking Monitoring Group.
Campana P, Varese F (2016) Exploitation in human trafficking and smuggling. European Journal on Criminal Policy and Research 22(1): 89–105.
Crouch M, Missbach A (2013) Trials of People Smugglers in Indonesia: 2007–2012, Melbourne: Centre for Indonesian Law, Islam and Society Policy paper 1.
Ford M, Lyons L, Van Schendel W (2012) Labour Migration and Human Trafficking in Southeast Asia: Critical Perspectives, London: Routledge.
Gallagher A (2010) The International Law of Human Trafficking, Cambridge and New York: Cambridge University Press.
Goździak E (2008) On challenges, dilemmas, and opportunities in studying trafficked children. Anthropological Quarterly 81(4): 903–924.
Hunyor J (2001) Don’t jail the ferryman: The sentencing of Indonesian ‘people movers’. Alternative Law 26(5): 223–228.
Hynes P (2015) No ‘magic bullets’: Children, young people, trafficking and child protection in the UK. International Migration 53(4): 62–76.
IOM (International Organization for Migration) (2007) IOM Handbook of Direct Assistance for Victims of Trafficking, Geneva: IOM.
IOM and AGO (Attorney General’s Office) (2016) Sistem Peradilan Pidana Indonesia Dalam Penanganan Tindak Pidana Perdagangan Orang Dan Tindak Pidana Lintas Negara Lainnya, Jakarta: IOM.
Killias O (2010) ‘Illegal’ migration as resistance: Legality, morality and coercion in Indonesian domestic worker migration to Malaysia. Asian Journal of Social Science 38(6): 897–914.
Kneebone S (2010) The refugee-trafficking nexus: Making good (the) connections. Refugee Survey Quarterly 29(1): 137–160.
——— (2014) The Bali Process and global refugee policy in the Asia-Pacific region. Journal of Refugee Studies 27(4): 596–618.
Kneebone S, Debeljak J (2012) Transnational Crime and Human Rights: Responses to Human Trafficking in the Greater Mekong Subregion, New York: Routledge.
Lindquist J (2013) Rescue, return, in place: Deportees, ‘victims,’ and the regulation of Indonesian migration. In: Xiang B, Yeoh BSA, Toyota M (eds) Return: Nationalizing Transnational Mobility in Asia, Durham NC: Duke University Press, pp. 122–140.
McSherry B, Kneebone S (2008) Trafficking in women and forced migration: Moving victims across the border of crime into the domain of human rights. International Journal of Human Rights 12(1): 67–87.
Missbach A (2015a) Making a ‘career’ in people-smuggling in Indonesia: Protracted transit, restricted mobility and asylum-seekers’ and the lack of legal work rights. Sojourn 30(2): 423–454.
——— (2015b) Troubled Transit: Asylum Seekers Stuck in Indonesia, Singapore: ISEAS Publishing.
——— (2016) Sentencing People-Smuggling Offenders in Indonesia, Melbourne: Centre for Indonesian Law, Islam and Society Policy paper 12.
Mitchell E (2015) After the Spill: Investigating Australia’s Montara Oil Disaster in Indonesia, Sydney: Australian Lawyers Alliance.
Palmer W (2012) Discretion and the trafficking-like practices of the Indonesian state. In: Ford M, Lyons L, Van Schendel W (eds) Labour Migration and Human Trafficking in Southeast Asia, London: Routledge, pp. 149–166.
——— (2016) Indonesia’s Overseas Labour Migration Programme, 1969–2010, Leiden, The Netherlands: Brill.
Piper N (2005) A problem by a different name? A review of research on trafficking in South-East Asia and Oceania. International Migration 43(1/2): 203–233.
South Sulawesi Territorial Office for Law and Human Rights (2015) Lapas Maros Menjadi Lembaga Pembinaan Khusus Anak Kelas IIB Maros, 5 August. Available at: http://sulsel.kemenkumham.go.id/berita-kanwil/berita-utama/2386-lapas-maros-menjadi-lembaga-pembinaan-khusus-anak-kelas-iib-maros.
Surtees R (2013) Trafficked at Sea: The Exploitation of Ukrainian Seafarers and Fishers, Geneva and Washington DC: International Organization for Migration and NEXUS Institute. Available at: http://publications.iom.int/system/files/pdf/trafficked_at_sea_web.pdf.
UN General Assembly (1999) Resolution 53/111 of 9 December 1998 Transnational Organized Crime. Available at: https://www.unodc.org/documents/commissions/CCPCJ/Crime_Resolutions/1990-1999/1998/General_Assembly/A-RES-53-111.pdf.
UN General Assembly (2001) Resolution 55/25 of 15 November 2000 United Nations Convention against Transnational Organized Crime. Available at: https://www.unodc.org/pdf/crime/a_res_55/res5525e.pdf.
UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children 2000.
US Department of State (2014) Trafficking in Persons Report, June 2014. Available at: https://www.state.gov/documents/organization/226844.pdf.
——— (2017) Trafficking in Persons Report, June 2017. Available at: https://www.state.gov/documents/organization/271339.pdf.
Yea S (2014) Human Trafficking in Asia: Forcing Issues, London and New York: Routledge.
——— (2015) Trafficked enough? Missing bodies, migrant labour exploitation, and the classification of trafficking victims in Singapore. Antipode 47(4): 1080–1100.
Yea S, Kitiarsa P (2014) Introduction. In: Yea S (ed.) Human Trafficking in Asia, London and New York: Routledge, pp. 3–15.
INDONESIAN DISTRICT COURT DOCUMENTS
Case No. 637/Pdt.G/2016/PN.Jkt.Pst with defendants Australian Department of Immigration and Border Protection, registered 15 November 2016.
Legal Decision No. 20/Pid.Sus-Anak/2015/PN.Cjr with defendant Hidayah (not real name), decided on 28 October 2015.
Legal Decision No. 373/Pid.Sus/2015/PN.Cjr with defendant Sakir bin Haerudin, decided on 22 March 2016.
Legal Decision No. 374/Pid.Sus/2015/PN.Cjr with defendant Sangkala Daeng Beta bin Daeng Naku, decided on 22 March 2016.
INDONESIAN LAWS AND REGULATIONS
Attorney General Regulation on Standard Operating Procedure to Handle General Crime Cases 2011.
Code of Criminal Procedure 1981.
Law on Immigration 2011.
Law on the Child Criminal Justice System 2012.
Law on Elimination of Human Trafficking Crimes 2007.
Law on the Indonesian Attorney General 2004.
Police Chief Regulation on Crime Investigation Management 2012.