Legal Protection for Victims of Trafficking Crimes from Human Rights
Aspect
Heni Susanti and Syafrinaldi
Department of Law, Universitas Islam Riau, Jln Kaharudin Nasution No.113 Marpoyan Pekanbaru – Indonesia
Keywords:
Legal Protection, Trafficking, Human Rights
Abstract:
The world has divided into three tiers of protection of human trafficking victims, based on the report of the
American government in 2017. Indonesia falls into the tier 2 categories, namely countries whose governments
have not fully met minimum standards in protecting victims of trafficking but still have significant efforts to
adjust these standards. The pattern women trafficking begins with the manipulative stage. Prospective victims
are not given real information about the type and place where they will be employed; this makes it difficult
for victims to know early on about the possible risks that will occur in the future. This paper aims to find out
how the legal protection women trafficking is viewed from the aspect of human rights and how the realization
of the form of legal protection for human traffic victims. From the discussion that has been described, it can
be concluded that efforts to protect victims of human trafficking crimes are a real form of protection of human
rights. Legal basis Protection of victims of trafficking in persons is strictly regulated in Article 43 up to Article
55 of Law No. 21 of 2007 concerning of Trafficking in Persons. To protect the victims, every province/district
in Indonesia needs to establish an integrated service center for victims and maximize all protection efforts for
them.
1 INTRODUCTION
The second largest fast growing criminal industry in
the world is the crime of trafficking in persons. The
crime of human trafficking is a diverse problem that
consists of fraud, coercion, coercion, and exploitation
sexual purposes as well as for forced labor purposes
(Moser, 2012).
“The UN defines approving acts of trafficking in
persons namely recruitment, transportation, transfer,
handling or acceptance of people, through the protec-
tion or use of violence or other forms of coercion, ab-
duction, or decision, agreement or position of having
permission for another person, for exploitation pur-
poses. Exploitation must include, at a minimum, ex-
ploitation, forced labor or services, slavery or prac-
tices of slavery, slavery or expulsion or similar or-
gans” (Barner et al., 2014).
Every human being born into the world is a crea-
ture created by God Almighty who has the dignity.
The dignity of a human being has been attached to
Human Rights since birth and protected by statu-
tory Provisions. Human trafficking is a serious crime
that violates human values and violates human rights.
Countries around the world agreed that human traf-
ficking is one type of crime against humanity that
must be addressed immediately. In its development,
the United Nations has provided a definition of hu-
man trafficking, The United Nations defines human
trafficking as: ”The recruitment, transportation, trans-
fer, harboring or receipt of persons, by means of the
threat or use of force or other forms of coercion, of ab-
duction, of fraud, of deception, of the abuse of power
or of a position of vulnerability or of the giving or re-
ceiving of payments or benefits to achieve the consent
of a person having control over another person, for the
purpose of exploitation”.
For the most part in reality in the lives of the peo-
ple, women and children are human beings who are at
risk of being victims of trafficking in persons. those
who are victims will be trafficked inhumanely, gener-
ally not only for the purpose of prostitution or other
sexual exploitation, but also including exploitation,
such as forced or forced labor, slavery, or slavery-
like practices. The perpetrator of this crime recruits,
transports, transfers, conceals or receives people for
the purpose of trapping, or utilizing the victims with
all its forms with the threat of violence, the use of
violence, kidnapping, forgery, fraud, abuse of power
or position, or giving payments or benefits so that
Susanti, H. and Syafrinaldi, .
Legal Protection for Victims of Trafficking Crimes from Human Rights Aspect.
DOI: 10.5220/0009104301950201
In Proceedings of the Second International Conference on Social, Economy, Education and Humanity (ICoSEEH 2019) - Sustainable Development in Developing Country for Facing Industrial
Revolution 4.0, pages 195-201
ISBN: 978-989-758-464-0
Copyright
c
2020 by SCITEPRESS – Science and Technology Publications, Lda. All rights reserved
195
they get approval from people who control the vic-
tim. Forms of exploitation include forced labor or
forced service, slavery, and practices similar to slav-
ery, forced labor or forced service are working con-
ditions that arise through means, plans, or patterns
intended for someone to be sure that if he does not
do certain work, then he or his dependents will suffer
both physically and psychologically
1
.
In September 2017, “the number of poor people
(population with per capita expenditure per month be-
low the Poverty Line) in Indonesia reached 26.58 mil-
lion people (10.12 percent), decreasing by 1.19 mil-
lion compared to March 2017 that reached 27.77 mil-
lion people (10.64 percent)”
2
. This is one of the fac-
tors that causes more people to be attracted by the
false promises from trafficking syndicates. Because
of the increasing economic demands, victims have no
choice in finding legal jobs. They only assume that
working abroad will make a higher amount salary
without thinking of the risks afterwards. Victims of
trafficking are usually more difficult to get maximum
legal protection. The government will have difficulty
tracing because the process is illegal and the identity
is falsified by trafficking syndicates.
When viewed from a variety of factors, in gen-
eral, the victim is a very disadvantaged part. Victims
of trafficking in persons are also often overlooked
in criminal justice processes.The formulation of the
problem in this paper is: what are the rules governing
legal protection for victims of trafficking in terms of
human rights and how is the realization of legal pro-
tection against victims of human trafficking.
2 DISCUSSION
2.1 Rules of Legal Protection for
Victims of Trafficking in Persons
Based on the draft plan of the third International
Criminal Code in 1954, Slavery is included in the
13 crimes that have been established and can be sen-
tenced under international law as crimes against the
peace and security of all humanity (Hendriana et al.,
2017). The International Organization for Migration
states that since 2005 it has identified and helped vic-
tims of human trafficking in Indonesia as many as
3,339 people, which almost 90% are women and more
than 25% of victims are children (Hidayat, 2013).
1
General Provisions in the Explanation of Law No. 21
of 2007 concerning Trafficking in Persons
2
(https://www.bps.go.id/pressrelease/2018/01/02)
Slavery is the condition of someone under the
ownership of another person. Humanitarian crime in
the form of slavery is the act of placing a person in
the power of another person which causes the victim
to have no choice over the work that was illegally or-
dered by others to him, so that forced to do work that
is not even in accordance with his wishes. Crimes
in trafficking of women and children have increased
and developed in the form of criminal networks, both
organized and unorganized. the crime of trafficking
in persons is not just an individual relationship but
also develops to other legal subjects namely compa-
nies and state administrators who abuse their author-
ity and power.
This rule regulates the scope of witness and victim
protection, especially regarding trafficking in persons
as the most important aspect of the law enforcement
process, the aim being to provide basic protection for
victims and witnesses. In addition, Law No. 21 of
2007 also gives great attention to the suffering victims
as a result of criminal acts of trafficking in the form
of restitution rights that must be given by perpetrators
as compensation for victims, and regulating victims’
rights to rehabilitation medical and social, repatria-
tion and reintegration must be carried out by the state,
especially for those who experience physical, psycho-
logical, and social suffering due to the crime of traf-
ficking in persons
3
.
In the provisions of Article 1 of Law No. 21 of
2007 referred to: “1. Human Trafficking is the act
of recruiting, transporting, storing, sending, transfer-
ring, or receiving someone with the threat of violence,
the use of violence, kidnapping, confinement, forgery,
fraud , abuse of power or vulnerable position, debt
bondage or giving payments or benefits, to obtain ap-
proval from the person who controls the other person,
whether done within the country or between coun-
tries, for the purpose of exploitation or causing people
to be exploited.
Article 2 (1) Any person who recruits, trans-
ports, accommodates, dispatches, transfers, or re-
ceives someone under threat of violence, use of vi-
olence, abduction, confinement, forgery, fraud, abuse
of power or vulnerable position, debt entrapment or
providing fees or benefits although obtaining approval
from a person holding control over another person, for
the purpose of exploiting that person in the territory of
the Republic of Indonesia, is punished with imprison-
ment for a minimum of 3 (three) years and a maxi-
mum of 15 (fifteen) years and a fine of at least Rp120.
000,000.00 (one hundred twenty million rupiahs) and
a maximum of Rp.600,000,000.00 (six hundred mil-
3
General provisions in the Explanation of Law No. 21
of 2007 concerning the Crime of Trafficking in Persons
ICoSEEH 2019 - The Second International Conference on Social, Economy, Education, and Humanity
196
lion rupiahs). (2) If the action referred to in paragraph
(1) results in the exploitation of the person, then the
offender shall be subject to the same criminal offense
as referred to in paragraph (1).
The form of repressive legal protection has re-
ferred to the rights of victims of human trafficking
as regulated in Law No. 21 of 2007 concerning the
Crime of Trafficking in Persons, among others: The
confidentiality rights of the identity of victims of traf-
ficking in persons and their families to the second de-
gree (article 44), the right to protection from threats
that endanger themselves, their souls / property (Ar-
ticle 47), the right to get restitution (article 48), the
right to get health rehabilitation, social rehabilitation,
repatriation and social reintegration from the govern-
ment (article 51).
In order to protect witnesses and victims, each
province and regency / city must have a special ser-
vice room at the local police office to conduct an ex-
amination at the level of investigation for witnesses
and / or victims of human trafficking. It’s just that
in its implementation it still requires special attention
and hard effort to realize it in accordance with existing
rules. This is the duty and authority of the government
to optimize special services for victims.
If there are things that endanger the victim or the
family of the victim, in this case in accordance with
the provisions of article 47 of Law No.21 of 2007 con-
cerning Trafficking in Persons then the police must
provide protection both before, during, and after the
case examination.
The provisions of Article 48 of Law No.21 of
2007 concerning Crime regulate the following mat-
ters:
1. Every victim of human trafficking or his heirs has
the right to obtain restitution
2. Restitution as referred to in paragraph (1) in the
form of compensation for:
(a) Loss of wealth or income
(b) Suffering
(c) Fees for medical and / or psychological care ac-
tions and / or
(d) Other losses suffered by victims as a result of
trafficking in persons
(e) The restitution is given and included at the
same time in the court decision about the case
of the human trafficking
(f) The granting of restitution as referred to in
paragraph (1) is carried out since the decision
of the court of first instance is imposed
(g) Restitution as referred to in paragraph can be
entrusted beforehand in the court where the
case is decided
(h) The granting of restitution shall be carried out
within 14 (fourteen) days from the date the no-
tification of the decision which has obtained
permanent legal force is notified
(i) In the event, the offender is decided freely by
the court of appeal or cassation, the judge or-
ders the decision so that the money for the re-
fund is returned to the person concerned
In the implementation of granting restitution to the
victim is not fulfilled beyond the time limit referred
to in article 48 paragraph (6), the victim or his heir
notifies the matter to the court. Furthermore, if the
perpetrators of the crime of trafficking in persons are
unable to pay restitution, the perpetrators can be sub-
ject to a substitute sentence for a maximum of 1 (one)
year.
The provisions of Article 51 of Law No.21 of
2007 concerning the Crime of Trafficking in Persons
clearly state that if victims of trafficking in persons
have the right to obtain health rehabilitation, social re-
habilitation, repatriation and social reintegration from
the government if the person experiences physical or
psychological suffering due to a criminal act human
trafficking. The rights of victims can be filed by vic-
tims or families of victims, friends of victims, police,
escort volunteers, or social workers after the victims
report their cases or other parties report them to the
Indonesian National Police. If victims of trafficking
are abroad and need legal protection due to criminal
acts of trafficking in persons, then the government of
the Republic of Indonesia through its representatives
abroad must protect the personal and interests of the
victims, and try to repatriate victims to Indonesia at
the expense of the state.
2.2 Realization of Legal Protection for
Victims of Trafficking in Persons
The law is the creation of the community, but at the
same time, he also created the community, so that the
law in accordance with the development of society.
This is in accordance with the opinion that ”a good
law should be in accordance with the law who live
in the community (the living law). So the law must
reflect the values in the society (Roy and Chaman,
2017).
Women, men and children in Indonesia who are
exploited in several sectors such as, on plantations,
including oil palm plantations; fisheries, fish process-
ing and construction, and in mining and manufactur-
ing. while women are generally exploited in the do-
mestic sector and sex trafficking. Victims are often
recruited to lure offers of work in restaurants, fac-
tories, or domestic workers but are actually used as
Legal Protection for Victims of Trafficking Crimes from Human Rights Aspect
197
commercial sex workers. Debt bondage is very com-
mon in victims of trafficking. Women and girls were
made commercial sex workers in mining operations
in Maluku, Papua and Jambi. When the state stopped
and closed prostitution on a large scale around 2014,
and another thing that happened was that the protec-
tion of women working in prostitution areas was re-
duced, this resulted in a significant increase in vul-
nerability to sex trafficking crimes in other regions,
including Bali and Papua. Children were victims of
sex trafficking in Batam, Riau Islands province, and
in West Papua province in previous years. Many re-
ports show an increasing number of students and high
school students who use social media to recruit and
persuade other students, including those under the age
of 18, to commercialize sex. The Riau Islands which
borders Singapore and Bali are the destinations for
child sex tourism.
Female Trafficking Crime is an act that is con-
trary to human values, dignity and human rights and
violates Human Rights so it needs to be abolished.
Women’s trafficking practices have also expanded in
the form of organized crime networks, both between
countries and within the country, which pose a threat
to the people of the nation and to the norms of life
based on respect for Human Rights.
Human Rights were born before the law existed,
meaning that human rights are a basic and sacred right
that is naturally inherent in every human being un-
til the end of his life as a gift from God through the
state with existing legal rules, also formalizing human
rights to in a set of legal rules. From this position,
law becomes a sine qua non requirement in uphold-
ing human rights. Regarding human rights is one of
the sources of justice that awaits the political steps
of world leaders to enforce it (Effendi and Effendi,
2007).
Human Rights have a wide scope and cover a va-
riety of lives (Ali, 2010), as follows:
1. Everyone has the right to the protection of his per-
sonal, family, honor, dignity and property rights
2. Everyone has the right to recognition before the
law as a personal person wherever he is
3. Everyone has the right to feel safe and secure and
to protect against the threat of fear of doing or not
doing something
4. Everyone must not be disturbed which is a right
relating to personal life in his residence
5. Everyone has the right to independence and con-
fidentiality in the communication relationship
through electronic means must not be disturbed,
except by order of a judge or other legitimate
power in accordance with the Law
6. Everyone has the right to be free from torture,
punishment, or mistreatment, inhumanity, en-
forced disappearance and loss of life
7. Everyone must not be arrested, suppressed, dis-
credited, ostracized, exiled or disposed of arbitrar-
ily
8. Everyone has the right to live in a safe, peace-
ful society and state, which respects, protects and
fully implements human rights and basic human
obligations as stipulated in the Law
According to Mahfud MD, the Preamble and
Body of the 1945 Constitution does not have a strong
enthusiasm in providing protection for human rights
or more embracing the desire to restrict human rights,
to be just a citizen right that must be determined in a
law made by the legislature. More explicitly, Mahfud
said, in various analyzes it was mentioned that one of
the causes of human rights violations was because our
constitution did not really elaborate on the protection
of human rights in its articles explicitly. In contrast to
Dahlan Thaib’s opinion, it would be found that there
are at least 15 human rights principles if examined in
the Preamble, Body, and Explanation, namely as fol-
lows:
1. The right to self-determination
2. Citizens’ rights
3. The equality rights in the law
4. The right to work
5. The right to a decent life
6. The right to associate
7. The right to express an opinion
8. The right to have religion
9. The right to defend the country
10. The right to get teaching
11. The right to social welfare
12. The right to freedom and independence of the ju-
diciary
13. The right to maintain cultural traditions
14. And the right to defend regional languages
Crimes under the United Nations Convention
Complementing the United Nations Transnational Or-
ganized Crime Convention, A / 55/383, or the UN
Trafficking Protocol, Palermo 2000 determined by the
General Assembly on 2 November,2000 is trafficking
in Persons Shall mean the recruitment, transportation,
transfer, harboring or receipt of persons, by means
of force or other forms of coercion, of abduction, of
fraud, of deception, of the abuse of power or of a po-
sition of vulnerability to obtain consent of a person
ICoSEEH 2019 - The Second International Conference on Social, Economy, Education, and Humanity
198
having control over another person, for the purpose
of exploitation. “Exploitation shall include, at a mini-
mum, the exploitation of the prostitution of sexual ex-
ploitation, the practice is similar to slavery, servitude
or removal of organs”
4
.
The last calculation from the Global Slavery In-
dex conducted by the Walk Free Foundation in 2014
estimated that 35.8 million people consisted of men,
women and children who were victims of trafficking
in persons around the world. Then a survey conducted
by ILO (International Labor Organization) from 2001
to 2005 there were around 12.3 million people be-
come victims of human trafficking, and in 2012 it in-
creased to 20.9 million people
5
. In 2013, the United
States Trafficking in Person (TIP) reported that there
were around 27 million people, both men, women
and children who were victims of human trafficking
crimes. US Department of State, 2013 Trafficking in
Persons Report
6
.
From the table above, it can be explained that the
number of victims of human trafficking handled by
IOM is very large, namely 6748 victims. This is a
proof that the existence of Law No.21 of 2007 con-
cerning the crime of human trafficking has not been
maximized, so that there is a need for maximum effort
to be carried out by all components in the commu-
nity, both by law enforcement officials, institutions,
and the public.
In the framework of protecting human rights
against victims of human trafficking, the govern-
ment is still working minimally to prevent traffick-
ing in persons. Most prevention efforts are carried
out at the district or city and provincial levels; fund-
ing and activities are carried out by different task
forces in each region. The task force of national anti-
trafficking in persons, under the auspices of the Min-
istry of Women’s Empowerment and Child Protec-
tion, held several meetings during the reporting pe-
riod and adopted a National Action Plan for 2015-
2019 to eradicate human trafficking. National meet-
ings and action plans focus on improving the reha-
bilitation and reintegration services for the victims
and restoring the coordination between government
ministries and other stakeholders. With the support
of international donors and NGOs, Women’s Em-
powerment and Child Protection and the local gov-
ernment designed a trafficking awareness campaign
4
UN Convention Against Transnational Organized
Crime Protocol and Protocol to Prevent, Suppress and Pun-
ish Trafficking in Person, Especially Women and Chil-
dren Supplementing the Transnational Organized Crime
UN Convention, 2000 ; 383
5
http://www.ilo.org/
6
http://www.state.gov/j/tip/rls/tiprpt /index.htm
to inform citizens about immigration practices and
safe recruitment procedures. In addition, Women’s
Empowerment and Child Protection has established
25 new anti-trafficking in persons task forces at
the regional level, and together with NGOs it pro-
vides professional-based training and scholarships for
women and school-aged children living in communi-
ties that are targeted for recruitment to reduce their
vulnerability to human trafficking. Nevertheless, hu-
man trafficking Task Force itself is still in lack of op-
erational funds and dependent on the relevant ministry
funding contributions. Lack of funding in the task
force in the regions and weak internal coordination
among task forces at the regional and national levels
often obstruct the anti-trafficking efforts. Women’s
Empowerment and Child Protection and local gov-
ernment received funding support from international
donor organizations and NGOs to design and imple-
ment campaigns to increase awareness of human traf-
ficking in order to inform citizens about immigration
practices and safe recruitment procedures. In Novem-
ber 2015, for the first time, the Ministry of Manpower
launched 18 service centers in the villages of origin of
migrant workers to increase people’s vigilance of hu-
man trafficking. These service centers receive fund-
ing and human resources assistance from the gov-
ernment to provide anti-trafficking campaign material
for prospective migrant workers, economic empower-
ment programs for at-risk youth, and other care and
services for victims
7
.
The shortcomings in structural components are
obstacles to the protection of victims of human traf-
ficking. The lack of maximum efforts to protect vic-
tims of human trafficking can be seen
8
as follows:
1. The lack of commitment from law enforcement
officials to resolve cases of human trafficking
2. The lack of government commitment in funding
that the budget for victims of human trafficking
has not been fully adequate
3. The lack of service personnel with a psychologist
background
4. The lack of increase in human resources through
service officers, so that not many officers are com-
petent in performing services
5. The lack of post-treatment empowerment budget
7
Annual Report on Trafficking in Persons, US Em-
bassies and Consulates in Indonesia, 2016
8
IOM Indonesia, Response to the Ratification Plan of
ASEAN Convention Against Trafficking in Person Espe-
cially Women and Children (ACTIP), Paper was presented
at the FGD for Finalizing the Preparation of Academic
Scripts, official translation by ACTIP-Bogor 2016
Legal Protection for Victims of Trafficking Crimes from Human Rights Aspect
199
Table 1: Table of victims of Human Trafficking who were assisted by International Organization of Migration (IOM)
Nationality
Frequency Total
Woman Man
Children Adults Children Adults
Indonesian 953 4976 166 653 6748
Burmese 0 0 9 1324 1333
Cambodian 0 2 66 296 304
Thai 0 0 1 77 78
Laotian 0 0 0 13 13
Grand Total 953 4978 182 2363 8476
Source : IOM Indonesia : 2016
Substantial problems are also seen in Law No. 31
of 2014 which is the result of renewal of the previous
Law, namely the provisions of Law No. 13 of 2006.
There have been changes, however, the government
regulation no.44 of 2008 concerning the provision of
compensation, restitution and assistance has still not
been revoked and renewed. Next is the provisions of
Law No. 35 of 2014 concerning amendments to Law
No.23 of 2002 about child protection which does not
specify about how to protect children who are the vic-
tims of human trafficking (Fadila, 2015).
The pattern of trafficking in women begins with
the manipulative stage. Prospective victims are not
given options about what their jobs are and the risks.
Usually they are taken out of town and promised high-
paying jobs. Sometimes by brokers, victims and their
families have been asked for money or given debt sta-
tus. In the second stage, victims are taken and forced
to live in a very inappropriate shelter. Their identity
cards and money are taken so that they cannot escape.
Then, the victim is transferred from one broker to an-
other, followed by a payment transaction. At the next
stage, the victims are employed as unskilled laborers,
commercial sex workers for the entertainment busi-
ness and military purposes; they were also involved
in drug trafficking (narcotics), forced to work as beg-
gars, involved in selling babies, and so on. At this
stage they often experience violence, abuse, or rape.
Because of identity forgery, it is difficult to track the
whereabouts of victims (Irianto, 2006).
The victims of human trafficking usually do not
have access to get the rights they are supposed to
have. They become victims in several stages start-
ing from the recruitment process to post-trafficking.
In fact, many of them preferred to return home with-
out completing legal proceedings until the case was
completed. The victims prefer to go back to their
hometown because in the judicial process it takes a
long time, while they need money to cover their liv-
ing costs. The government and police, in terms of
funding, do not really help them. This is due to an in-
sufficient budget to cover all the needs of victims for a
long time. This is what causes them to feel aggrieved
many times.
Another problem that arises is when victims are in
a position where they have to give testimony that can
affect their psychological state. They must recall the
atrocities committed by the perpetrators, both phys-
ically and psychologically. In this case, the victim
needs to get legal and psychological assistance to re-
store their condition, so that they can lead a normal
life.
In order to optimize case disclosure and law en-
forcement, real legal protection is the right of victims
of human trafficking. If a case of trafficking has not
been revealed, this means that it will result in diffi-
culties in not being able to identify the victims. This
causes them to not be able to get full rights to the pro-
tection that should be obtained. Efforts to protect vic-
tims are a manifestation of protection of human rights
that should be inherent and can be felt by everyone
who becomes a victim of trafficking.
The social community also has a role in assisting
efforts to prevent and handle victims of human traf-
ficking. They can provide all information that they
know to report the existence of a human trafficking to
law enforcement or the authorities. In addition, the
community can also participate in taking care of the
victims.
3 CONCLUSIONS
If seen substantially, the national instrument govern-
ing the crime of trafficking in persons is quite good.
The rights of victims are regulated in the provisions
of Article 46 to Article 55 of Law No.21 of 2007 con-
cerning Crime of Trafficking in Persons. In fact, this
is still not maximally implemented due to several fac-
tors that influence it, including the level of readiness
ICoSEEH 2019 - The Second International Conference on Social, Economy, Education, and Humanity
200
and knowledge of law enforcement officials who have
not been maximal in providing services to victims of
human trafficking. In the framework of protecting hu-
man rights against victims of human trafficking, the
government is still not excreting adequate effort pre-
vent human trafficking. Most prevention efforts have
been carried out at the district/city and provincial lev-
els; funding and activities are carried out by different
task forces in each region. Protection of victims of
human trafficking still requires special attention from
the government and law enforcement officials and the
public. This needs to be done in order to optimize
performance by task forces already established by the
government.
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