HUMAN TRAFFICKING, DRUG TRAFFICKING, and the DEATH PENALTY Felicity Gerry* and Narelle Sherwill**

GERRYIndonesia AND Law SHERWILL Review (2016) 3: 265-282 ~ 265 ~ ISSN: 2088-8430 | e-ISSN: 2356-2129 HUMAN TRAFFICKING, DRUG TRAFFICKING, AND THE DEATH PENALTY Felicity Gerry* and Narelle Sherwill**

* The Bar in England and Wales and the Supreme Court of the Northern Territory of Australia; ** Charles Darwin University, Australia Article Info Received : 22 March 2016 | Received in revised form : 14 June 2016 | Accepted : 25 November 2016 Corresponding author’s e-mail : [email protected]; [email protected];

Abstract Both Australia and Indonesia have made commitments to combatting human trafficking. Through the experience of Mary Jane Veloso it can be seen that it is most often the vulnerable ‘mule’ that is apprehended by law enforcement and not the powerful leaders of crime syndicates. It is unacceptable that those vulnerable individuals may face execution for acts committed under threat of force, coercion, fraud, deception or abuse of power. For this reason it is vital that a system of victim identification is developed, including better training for law enforcement, legal representatives and members of the judiciary. This paper builds on submissions by authors for Australian Parliamentary Inquiry into Human Trafficking, and focusses on issues arising in the complex cross section of human trafficking, drug trafficking, and the death penalty with particular attention on identifying victims and effective reporting mechanisms in both Australia and Indonesia. It concludes that, in the context of human trafficking both countries could make three main improvements to law and policy, among others, 1) enactment of laws that create clear mandatory protection for human trafficking victims; 2) enactment of criminal laws that provides complete defence for victim of human trafficking; 3) enactment of corporate reporting mechanisms. Keywords: human trafficking, drug trafficking, death penalty, victims protection

Abstrak Australia dan Indonesia, keduanya telah membuat komitmen untuk memerangi perdagangan manusia. Melalui pengalaman Mary Jane Veloso, dapat dilihat bahwa seringkali penyelundup yang tertangkap oleh aparat penegak hukum adalah kaum rentan, dan bukannya pemimpin sindikat kriminal yang berkuasa. Sulit untuk diterima bahwa orang-orang yang rentantersebut mungkin menghadapi eksekusi atas perbuatannya yang dilakukan di bawah ancaman, paksaan, penipuan, atau penyalahgunaan wewenang. Karena alasan itulah, penting agar sistem pengenalan korban dikembangkan, termasuk pelatihan lebih baik untuk aparat penegak hukum, pengacara, serta hakim dan jaksa. Tulisan ini disusun berdasarkan laporan para penulis kepada komisi penyelidikan Parlemen Australia terhadap isu perdagangan manusia, dan berfokus pada permasalahan yang timbul dari irisan kompleks antara perdagangan manusia, perdagangan obat-obatan terlarang, dan hukuman mati, dengan perhatian khusus kepada isu identifikasi korban dan mekanisme pelaporan yang efektif bagi Australia dan Indonesia. Tulisan ini menyimpulkan bahwa dalam konteks pemberantasan perdagangan manusia, kedua negara dapat membuat tiga perbaikan dalam hukum dan kebijakannya, ketiga solusi tersebut adalah, 1) penerapan hukum yang memberikan perlindungan wajib bagi korban perdagangan manusia yang jelas; 2) pembuatan hukum pidana yang yang memberikan perlindungan secara lengkap kepada korban; 3) pembuatan mekanisme pelaporan bagi perusahaan. Kata kunci: perdagangan manusia, perdagangan narkotika, hukuman mati, perlindungan korban

DOIVolume : http://dx.doi.org/10.15742/ilrev.v6n3.263 6 Number 3, September - December 2016 INDONESIA Law Review ~ 266 ~ HUMAN TRAFFICKING

I. INTRODUCTION In March 2016, Australian Foreign Minister Julie Bishop announced a strategy on

1 It follows human trafficking and slavery to “counter this terrible trade in human beings” at a slaveryregional in summit December in Jakarta 2014 2on and people an Australian smuggling Parliamentaryand transnational Inquiry crime. into human the launch of an Australian3 It also national follows actionthe failed plan Australian to combat advocacy human into trafficking the death and penalty sentences for Australian citizens convicted of drug offences in Indonesia.4 traffickingIn April 2015, in 2015/6.as those Australian citizens were executed, Filipina Mary Jane Veloso she always maintained that she was deceived into carrying the drugs in a suitcase was reprieved. She had also been convicted of drug trafficking offences. However, providedPhilippines to5 .her She as was part reprieved of her recruitmenttemporarily toafter work a public abroad. campaign Shortly about before her she human was due to be executed, human trafficking mechanisms were invoked6 in Manila by her which lawyers led toin a the 7 trafficking status and when her recruiters were arrested 8 and, at the time ofhigh writing, profile there discussion is an ongoing between trial the involving Presidents Mary of Jane the Velosotwo countries. and other Her complaints recruiters againstwere charged the same with recruiters both human in Manila. trafficking It has been and reported illegal recruitment that the Attorney General’s officePhilippines in Indonesia9. In October has said 2015, they we would made aallow submission Mary Jane to the Veloso Joint toStanding submit Committee a judicial reviewon Foreign of her Affairs, case, Defence based on and the Trade on-going on Australia’s trial of her Advocacy alleged forhuman Abolition trafficker of the in Death the

1 - - Sydney Morning Herald, “Migrant crisis: Australia to launch anti-human trafficking and slavery strat egy,”2 http://www.smh.com.au/world/migrant-crisis/migrant-crisis-australia-to-launch-antihuman-trafficking-and-slavery-strategy-20160321-gnnm3i#ixzz43bJcIGwv, accessed on February 22, 2016. - Australia Attorney-General Department, “National action plan to combat human trafficking and slav ery,”3 https://www.ag.gov.au/CrimeAndCorruption/HumanTrafficking/Documents/Trafficking-Nation alActionPlanToCombatHumanTraffickingAndSlavery2015-19.pdf, accessed on February 22, 2016 February Parliament 22, 2016. of Australia, “Australian Parliamentary Inquiry into human trafficking,” http://www.aph. gov.au/Parliamentary_Business/Committees/Joint/Law_Enforcement/Human_trafficking,4 accessed on accessed ABC on News, February “Bali 22, Nine: 2016. Andrew Chan and Myuran Sukumaran executed by Indonesian firing squad,” http://www.abc.net.au/news/2015-04-29/andrew-chan-and-myuran-sukumaran-executed/6426654,5 -

News.com,”Saving Mary Jane: Death-row mother’s last-minute rescue was thanks to Darwin law accessedyer,” on http://www.news.com.au/lifestyle/real-life/true-stories/saving-mary-jane-deathrow-mothers- February 22, 2016. lastminute-rescue-was-thanks-to-darwin-lawyer/news-story/77c48306a13c96 9b3412499fe7b8042ac,

22, 2016. Inquirer.net, “Court orders arrest of Mary Jane Veloso’s recruiters,” http://globalnation.inquirer. net/123100/court-orders-arrest-of-mary-jane-velosos-recruiters#ixzz43UVAgHVT,7 accessed on February squad/6429262, ABC News, accessed“Mary Jane on Veloso: February Mother 22, 2016. of Filipina spared from Indonesia firing squad hails ‘miracle’ reprieve,”8 http://www.abc.net.au/news/2015-04-29/mary-jane-veloso-spared-from-indonesian-firing- reader/4953/1/DOJ-approves-charges-vs-Mary-Jane-Veloso%2527s-recruiters, accessed on February 22, 2016. Rappler, “DOJ approves charges vs Mary Jane Veloso’s recruiters,” http://www.minibalita.com/ 9 http://www.smh.com.au/world/economy-more-important-than-executions-indonesian-attorney-gener- Sydney Morning Herald, “Economy ‘more important’ than executions: Indonesian Attorney General,” al-20160113-gm51wm.html#ixzz43UU2I0J7, accessed on February 22, 2016. Volume 6 Number 3, SeptemberDOI - December : http://dx.doi.org/10.15742/ilrev.v6n2.230 2016 INDONESIA Law Review GERRY AND SHERWILL ~ 267 ~

Penalty. In February 2016, we made submissions to the Australian Parliamentary

Inquiryand the intodeath Human penalty Trafficking. with particular This paperattention builds on identifyingon those submissions victims and andeffective focusses onreporting issues mechanismsarising in the in complex both Australia cross section and Indonesia. of human It trafficking,concludes drugthat, trafficking,in the

law and policy: context1. ofEnact human laws trafficking that create both clear countries mandatory could protection make three mechanisms main improvements for victims to

2. Enact criminal laws providing a complete defence to any criminal charge of human trafficking;

3. Enactwhen corporatecommitted reporting by a victim mechanisms of human in traffickingrelation to andslavery, because forced they labour were victimised within the meaning of the Trafficking protocol; and

victims needsand tohuman be achieved trafficking, through with both an annual criminal report and employmentto parliament. law referral and Mary Jane Veloso’s case in particular publicly highlights how identification of victims are properly protected and not unduly punished after acting under coercion, reportingmanipulation mechanisms or deceit. in It orderalso highlights for there the to beneed confidence to focus onin anythe commercialjustice system aspects that

are targeted rather than their victims. of and illegal recruitment and trafficking to ensure that the organisers and controllers II. THE DEATH PENALTY There are currently 58 countries that retain the death penalty.10 Amnesty International conducted a report in 2014 on the use of the death penalty and found that 22 countries had recorded executions in 2014, and that at least 607 executions had been carried out worldwide.11

abolished the death penalty; by 1995 This that represented had increased a 22% todecrease 59 and in at the the 2013 end figure.of 2014 Thethat trendnumber is definitelystood at 98. towards The trend universal follows abolition. the Universal In 1977 Declaration only 16 ofcountries Human Rightshad 12 This post World War II statement on the sanctity of life was later given legal force whichunder theprovides International that ‘everyone Covenant has on the Civil right and to Political life, liberty Rights and security of person.’ limit the death penalty where it is still applied. (ICCPR) which seeks to

The ICCPR states that ‘no one shall be arbitrarily deprived of his life;’ that ‘sentence of death may be imposed only for the most serious of crimes pursuant to a finalbe imposed judgement for crimesof a competent committed court;’ by personsand that below ‘anyone eighteen sentenced years to deathof age shall and shallhave the right to seek pardon or commutation.’ Further, that ‘sentence of death shall not

10 - altyinfo.org/abolitionist-and-retentionist-countries, accessed on February 22, 2016/ 11 Death Penalty Information Center, “Abolitionist and Retentionist Countries,” http://www.deathpen amnesty.org/en/documents/act50/0001/2015/en/, accessed on February 22, 2016. 12 Amnesty International, “Death Sentences and Executions in 2014 (1 April 2015),” https://www. Doc A/810 (10 December 1948), art 3. Universal Declaration of Human Rights, GA Res 217A (III) UN GAOR, 3rd sess, 183rd plen mtg, UN

Volume 6 Number 3, September - December 2016 INDONESIA Law Review ~ 268 ~ HUMAN TRAFFICKING not be carried out on pregnant women.’13 168 states are party to the ICCPR, an almost universal adoption. The second optional protocol to the ICCPR abolishes the death penalty entirely (with provision made for states to reserve serious wartime crimes commitment to abolish the death penalty. 81 states are party to the second optional ofprotocol, a military including nature); Australia. and envisions In addition that stateto the parties ICCPR’s will express undertake prohibition an international against execution for a crime committed when a person was under 18 years of age, the U.N. Convention on the Rights of the Child14 and the American Convention on Human Rights15 also preclude the death penalty being imposed in such circumstances. The ban is so broadly accepted that it is considered a norm of customary international law.16

Into 1997the progressive the U.N. High development Commission of forhuman Human rights.’ Rights Subsequent approved resolutions a resolution called that thefor ‘abolitionrestriction of of the death death eligible penalty offences contributes and for to a the moratorium enhancement on all of executions human dignity (leading and to abolition).17 The European Union has made abolition of the death penalty a precondition for entry into the Union, a move which has undoubtedly contributed to Russia’s commutation of the sentences of over 700 people on death row and consideration of abolition legislation.18 Poland, Yugoslavia, Serbia and Montenegro have all also voted to end the death penalty. Additionally, the member states of the Council of Europe have established Protocol 6 to the European Convention of Human Rights which calls for abolition, and the American Convention on Human Rights has added an optional protocol supporting an end to the use of the death penalty among its member states. As we move towards ASEAN integration, it is a move that can be considered given the differing approaches in the region. The Vienna Convention on Consular Relations relations between independent countries. Article 36 provides for foreign nationals provides a framework for consular whosupport. are Therearrested are or 177 detained state parties to be givento this notice convention, ‘without however delay’ itsof theiruse in right practice to have their embassy notified of that arrest so that they may receive consular advice and made aware of the accused rights under it. Without this, many individuals on death is severely limited by the training of front line enforcement officers and their being consequences.19 row may make culturally inappropriate decisions regarding their case, with lethal Such dangers require a comprehensive framework in both death penalty reform and protection of human trafficking victims.

13 International Covenant on Civil and Political Rights (ICCPR), adopted by UN General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976, United Nations, Treaty Series, vol. 999. 14 Ibid., Article 37 (a). 15 Ibid., Article 4 (5). 16 Death Penalty Information Centre, http://www.deathpenaltyinfo.org/Oxfordpaper.pdf, accessed on 20 February Richard 2016. C. Dieter, “The Death Penalty and Human Rights: U.S. Death Penalty and International Law,” 17 situation of human rights in Burundi, E/CN.4/1997/12 (April 3, 1997). 18 United Nations, High Commission for Human Rights. Second report of the Special Rapporteur on the 19 Breard v. Greene, 140 L.Ed.2d 529. Dieter, “The Death Penalty.”

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III. DRUGS AND THE DEATH PENALTY Approximately 1000 people are executed each year for drug offences, with 33

these however, only six countries — China, Iran, Saudi Arabia, Vietnam, Malaysia and countriesSingapore retaining— routinely the execute death penaltydrug offenders. for drug20 traffickingDrug-related and/or executions drug possession.are on the Of rise in some regions, including Iran, Indonesia and China.21 International law requires that the death penalty, if applied, must be reserved 22

for the ‘most serious crimes,’ and it has been stressed23 The by increasing the UN Humanapplication Rights Committeeof the death penaltyand the for UN drug Special offences Rapporteur is of particular on Extrajudicial, concern given Summary the poor measuresor Arbitrary Executions that drug crimes do not meet this definition. central and East Asia. of policeCurrently, and judicialAustralian integrity citizens and are lack detained of fair trialfor drug norms offences particularly across in partsMainland of 24 Despite the Australian Crime Commission’s view 25 China,Australia’s Hong federal Kong police and continueMalaysia. to provide information to death penalty states to that a significant number of these were duped or manipulated by crime syndicates, under FOI reveals that between 2010 and 2014 the Australian Federal Police (AFP) facilitateexposed overidentification 1700 Australians and apprehension26 of possible suspects. Information obtained intelligence with death penalty states. Where assistance was requested in relation to alleged drug offences, the AFP to approved the risk ofthe execution provision for of drug information offences inby oversharing 95

In addition to direct law enforcement cooperation, Australia provides funding percent of cases, despite an identified risk of execution. internationally funded counter narcotics programs and drug-related executions for a range of counter-narcotics activities worldwide. The direct link between

hasoperations been in recognised Iran.27 by a number of European states, including the UK, Ireland and Denmark. These nations have recently withdrawn funding for supply control

21 Rick Lines, Damon Barrett, and Patrick Gallahue, Complicity or Abolition? The death penalty and- mist.com/blogs/economist-explains/2015/04/economist-explains-28,international support for drug enforcement (London: International Harm accessed Reduction 25 AugustAssociation, 2015. 2010). 22 ICCPR,The Economist, art. 6 (2). “Which countries have the death penalty for drug smuggling?,” http://www.econo 23

24 Rick Lines, The Death Penalty for Drug Offences: A Violation of International Human Rights Law (London: International Harm Reduction Association, 2007). Sarah Gill, “AFP exposes Australians to the risk of execution in foreign countries more often than you 25think,” The Age (Online), September 8 2015, http://www.theage.com.au/comment/the-afp-peddles- injustice-by-helping-asian-death-penalty-states-20150902-gjdvu3.html, accessed February 22, 2016. au/news/2015-08-05/vulnerable-australians-face-death-after-lured-drug-smuggling/6675360, Sean Rubinsztein-Dunlop and Jeanavive McGregor, “West African syndicates tricking Australians accessed Februaryinto risking 22, death 2016. on drug-running missions,” ABC News (Online), 5 August 2015, http://www.abc.net. 26 afp/information-publication-scheme/routinely-requested-information, accessed February 22, 2016. 27 Australian Federal Police, “Routinely Requested Information,” http://www.afp.gov.au/about-the- https://www.hrw.org/news/2014/12/17/un-freeze-funding-iran-counter-narcotics-efforts, accessed on February Human 22, 2016. Rights Watch, “UN: Freeze Funding of Iran Counter-Narcotics Efforts,” 17 December 2014,

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28 a 5-year program focusing on illicit

Australian-funded initiatives include PAKU83, trafficking and border management in Pakistan. Australia has contributed US$4.5 million to enhance core capacities of Pakistani law enforcement with key indicators including increased arrests, prosecutions and convictions. Reprieve UK has identified29. a significantAs a result number of these of European twin activities, nationals Australia who have is been effectively arrested complicit in Pakistan in with drug executionsdeath-eligible - in quantities violation ofof narcoticsinternational following human implementation rights law and of its PAKU83 own stance as an abolitionist nation - with little or no evidence of any broader community benefit. DespiteAfghanistan substantial into Central financial Asia have contributions not lessened and in recent drug-related years.30 A arrests, recent Australian the United Nationsstudy31 funded Office on by Drugs the National and Crime Drug (UNODC) Law Enforcement concedes that Research opiate Fund, flows revealedfrom northern that drug seizures by Australian police had no effect on drug-related harm as measured by emergency department admissions or arrests. These conclusions are consistent with research by MacCoun and Reuter32 suggesting that supply reduction is an unrealistic

There are three important milestones for a nation to be considered truly abolitionist: abolitionobjective ofin thedrug death markets penalty that as are a sentencewell established of law; non-refoulement and diverse. of people to face the death penalty in other countries; and a refusal to provide information or other assistance to facilitate application of the death penalty by others.33

IV. HUMAN TRAFFICKING PROTECTION MECHANISMS 34 In 2013, the UNODC Report,

Human exploitation is highly lucrative. “Transnationalto be on the rise inOrganised a quarter ofCrime countries in aroundEast Asia the world.and 35the One Pacific:of the conclusions A threat Assessment” (The UNODC Report), human trafficking was identified as a major issue and was found of the 2014 International Labour Office report was that ‘there is an urgent need to address the socio-economic root causes of this hugely profitable illegal practice if it

28 https://

2016. United Nations Office on Drugs and Crime, “Illicit Trafficking and Border Management,” www.unodc.org/pakistan/en/illicit-trafficking-and-border-management.html,29 accessed February 22, Death Penalty 30 Submission 37 to the Human Rights Sub-Committee on Australia’s Advocacy for the Abolition of the www.unodc.org/documents/data-andanalysis/Studies/Afghanistan_northern_route_2012_web.pdf, accessed UnitedFebruary Nations 22, 2016. Office on Drugs and Crime, “Opiate Flows Through Northern Afghanistan,” https:// 31 Supply-side reduction policy and drug related harm (Canberra: National Drug Law Enforcement Research Fund, 2014). 32 R.Wai-Yin J. MacCoun Wan DW, and GrantP. Reuter, Wardlaw, Drug WarVasilis Heresies: Sarafidis Learning and Grant from Sara, Other Vices, Times and Places (Cam- bridge: Cambridge University Press, 2001). 33 Hu- man Rights Review 9, iss. 2 (2008), p. 268. 34 Eric Neumayer, “Death Penalty: the Political Foundations of the Global Trend Toward Abolition,” - ing/overview, accessed February 22, 2016. 35 Polaris Project, “Human Trafficking An Overview,” http://www.polarisproject.org/human-traffick - TA_EAP_web.pdf, United Nations accessed Office February on Drugs 22, and2016. Crime, “Transnational Organised Crime in East Asia and the Pacific: A threat Assessment” p139, http://www.unodc.org/documents/data-and-analysis/Studies/TOC

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is to be overcome.’36 meaningful choices of employment but, in the meantime, States such as Indonesia The ultimate answer is to tackle poverty so that individuals have protection and support.37 This requires effective protective mechanisms. These issues and Australia need to improve victim identification systems to enable the provision of

and opportunities for improved victim identification are particularly highlighted by therelative experience to her ofrecruiters Mary Jane and Veloso employers; who came in fromaddition a background to her transportation of abject poverty between and was an easy target to be utilised as a drug ‘mule’ given her position of vulnerability

states under the promise of work. Had Ms. Veloso’s possible status as a victim of humanprotection trafficking mechanisms, been crediblypotentially identified avoiding by charge trained and law been enforcement diverted into professionals support at the outset, she may have been able to take advantage of Indonesia’s existing mitigating circumstances and the assistance she has provided to the authorities to programsidentify those but, further at the up very the leastchain receivingof command. a short At the sentence time of writing that reflects Ms. Veloso both has her

spentaround 5 theyears globe. on death row. Although there is limited data, her story is likely to be reflectedIdentifying in women a victim drug starts traffickers with Articlein Australian 3 of the prisons 2000 andUnited corrections Nations Protocolfacilities

to Prevent,Trafficking Suppress in persons and Punish shall Trafficking mean the inrecruitment, Persons, Particularly transportation, Women transfer, and Childrenharbouring (“the Trafficking or receipt Protocol”) of persons, which by means defines of the trafficking threat or usein persons of force oras otherfollows: “forms of coercion, of abduction, of fraud, of deception, of abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or removal of organs 38

.” Some of these forms of exploitation are defined elsewhere. For instance,39 Thethe 1926 1930 Slavery Convention defines slavery as “the status or condition of a person over whom anywhich or allis exactedof the powers from anyattaching person to underthe right the of menace ownership of any are exercised.”penalty and for which ILO Forced Labour Convention (C29) defines forced40 labour as “all work or service

the said person has not offered himself voluntarily”. The plight of overseas workers, like Mary Jane Veloso, is that they are at risk of exploitation by otherwise legitimate transnationalor other forms employersof coercion, or of byabduction, organised of fraud, criminals, of deception, all seeking of abuse to maximise of power profit. or Here we can see that the international definition which includes “threat or use of force

36 of a position of vulnerability”, is wide enough to cover overseas workers and those htm, accessed International February Labour 22, 2016. Organization, “Profits and Poverty: The economics of forced labour,” http:// www.ilo.org/global/publications/ilo-bookstore/order-online/books/WCMS_243391/lang--en/index.37 38 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing UNDOC, the “TransnationalUnited Nations ConventionOrganised Crime.” against Transnational Organized Crime 2000, United Nations Treaty Series, Vol. 2237, No. 39574. 39 Slavery Convention, Geneva, 25 September 1926, United Nations Treaty Series, New, Vol. York, 212, 15 No. November 2861 40 Convention concerning Forced or Comppulsory Labour, Geneva, 28 June 1930, International Labour Organization

Volume 6 Number 3, September - December 2016 INDONESIA Law Review ~ 272 ~ HUMAN TRAFFICKING exploited in the drug trade.

41 The Indonesian In Indonesia, the United Nation’s Trafficking Protocol has been ratified through theextent passing a migration of the Trafficking issue. The in focus Persons is strongly law, Number on preventing 21 of 2007. and punishing the government frames trafficking primarily as a law enforcement issue, and to a lesser crimerelated of crime, trafficking. and protection In 2008, of the national Indonesian sovereignty government from transnational produced a organisedDefence White Papercrime syndicates.which defines42 According the response to some to traffickingresearch, thein termsperception of eradication of the Indonesian of trafficking-

Governmentpurpose of criminal is that activity. human43 trafficking is a national security issue, and a criminal law response to the problem can be used to protect the state fromThe trafficking Protocol tofor the Prevent, Suppress and Punish Many Trafficking victims ofin human Persons trafficking, which supplements are used to ferry the drugs United acrossNations international Convention againstborders, Transnational sometimes at Organized risk of the Crime,death penalty. stresses that prosecution and punishment should not endanger the safety of the victim. Unfortunately the obligations imposed by the Convention are not always well understood even by signatory states, and protections which should be afforded to trafficked persons are not always“Article guaranteed. 26- Non-punishment The Trafficking provision protocol places responsibility on signatories to identify and not to punish trafficked victims: Each Party shall, in accordance with the basic principles of its legal system, provide for the possibility of not imposing penalties on victims for their involvement in unlawful activities, to the extent that they have been compelled to do so” of theThe 2007 Indonesian law states 2007 that: Trafficking in Persons Law picks up on all these issues. It defines“Trafficking human trafficking is an actin a ofmanner recruitment, consistent transport, with the shelter, UN Protocol. sending, Article transfer, 1(1) or receipt of persons by threat of violence, the use of violence, abduction, confinement, forgery, fraud, abuse of power or of a position of vulnerability, debt bondage or giving payments or benefits, to achieve the consent of a person having control over the other person, whether committed in the countries and between countries, for the purpose of exploitation or resulted in people being exploited.” Chapter IV of that legislation sets out the duties of investigators and the entitled to other existing protective mechanisms. In simple terms this means that requirementsinvestigative authorities for victim are protection. bound by Articlelaw in 55Indonesia specifically to separate indicates victims that fromvictims are

41 Indonesia, Undang-Undang tentang Pemberantasan Tindak Pidana Orang [Law on the Eradication of Trafficking in Persons], UU No. 21 tahun 2007, LN. No. 58 tahun 2007, TLN No. 4720 (Law No. 21 of 2007, SG No. 58 of 2007). 42 Ministry of Defense Indonesia. Buku Putih Pertahanan Negara 2008: Mempertahankan Tanah Air Me- masuki Abad 21 [Indonesian Defense White Paper: Defending the Nation Entering the twenty-first Century]

43 Pengarahan Presiden Repub- (Jakarta:lik Indonesia Indonesian Pada Acara Defense Menerima Department, Para Peserta2008). Cited Rapim in TNIN. Nuraniyah dan Rakor (2012) POLRI in Istana ADM folder Negara, GDrive, 29 Januari n184. 2009 [Presidential Ministry of CommunicationBriefing in the Event and ofInformation Reception ofIndonesia the Participants (Menkominfo), of TNI Leaders’ Meeting and National Police Coordination Meeting, National Palace, January 29, 2009]

(Jakarta: Kementerian Komunikasi dan Informatika RI, 2009), p. 116 Volume 6 Number 3, September - December 2016 INDONESIA Law Review GERRY AND SHERWILL ~ 273 ~

traffickers and prosecutors must make sure that they pursue criminals not victims. The tensionbeen generally between resolved mandatory in Indonesia drug trafficking as a matter laws ofand law protection so, Mary ofJane human Veloso’s trafficking case is victimsan opportunity from exploitation for Indonesia as overseasto provide workers a resolution or pawns to these in organised issues through crime effective has not

frameworks that could lead to44 victims, giving evidence against those further up the chain.are contained Australia’s within approach the Crimes to human Act 1914 trafficking (Crimes is basedAct) and on mixedDivisions law 270and andpolicy 271 that of risksthe Criminal victims Codesuffering Act 1995doubly. both The as amendedAustralian by laws the criminalising Crimes Legislation human Amendment trafficking (Slavery, Slavery-like Conditions and People Trafficking) Act 2013 (Slavery Act) and the Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 .The amendments focus on investigation and prosecution. There is support for alleged victims but largely in the context of them giving evidence, not to protect them from prosecution or punishment. The Australian

law enforcement authorities are well equipped to investigate and prosecute human Attorney General’s office asserts that the provisions are designed to ‘ensure Australia’s

traffickingprison in Australia and slavery, are vulnerable: and that trafficked In 2004 a peoplestudy of are women afforded prisoners appropriate sentenced support for and protection when engaging with the criminal justice system.’ However, women in sexual, physical or emotional abuse in either childhood (63%) or adulthood (78%). drug/alcoholMost were victims related of crimemultiple across forms six ofjurisdictions abuse.45 found that 87% were victims of prison are mothers of dependent children.46 Not much has changed: The Australian A significant majority of women in population have changed, with more mental ill-health, substance abuse and social Institutedisadvantage of Family present, Studies particularly reports among that remandees. “the characteristics Female offenders of the femaledemonstrate inmate high levels of previous victimisation, poor mental health, substance misuse and social 47 According to the Australian Federal Police (AFP) information about the number of disadvantage compared to women in the community”.

trafficking-relatedProgram since the investigations program’s inception and assessments, in 2004.48 byIt 30does June not 2014, appear only that 235 Australia persons had been referred to the Australian Government’s Support for Trafficked People than Indonesia. Trusting in broad victim support and voluntary referral mechanisms has(often tackled to be instigated the tension by betweena victim) drug is not trafficking enough. Protection and human mechanisms trafficking must any morebe mandatory, placing the burden on investigators and prosecutors to ensure that full enquires are made nationally and transnationally into the status of a suspect. It is for

they would in any other type of crime. the 44state to identify victims and divert them out of criminal justice systems, just as-

QC Taken from Felicity Gerry, “Trafficked Victims Suffer Doubly,” http://www.cla.asn.au/News/traf ficked-women-suffer-doubly/,45 accessed on February 22, 2016 and a forthcoming paper by Felicity Gerry Policy Series, No 63, Canberra: Australian Institute of Criminolgy, 2004. 46 Holly Johnson, “Drugs and Crime: A study of Female Incarcerated Offenders,” ResearchHuman Rights and Public in Ac- tion: A Resource for Women in Prison (and their advocates) (Brisbane: Sisters Inside, 2009), p. 8. 47 Debbie Kilroy, Reanna Maloney, Kobie Mulligan, Suzi Quixley and Kate Warner, acssa/pubs/issue/i13/i13b.html, accessed February 22, 2016. 48 AIFS, “Addressing women’s victimisation histories in custodial settings,”Trafficking http://www.aifs.gov.au/ in Persons: The Austra- lian Government’s Response 1 July 2013–30 June 2014 (2014), p. 30. Interdepartmental Committee on Human Trafficking and Slavery,

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European cases have dealt with the factual need to identify an individual’s status as a victim on credible evidence.49 On an evidential basis this can means more than committing crime (national or transnational) if such evidence is sensitively gathered testimony but following up and tracking histories. For those victims apprehended question of whether to proceed with prosecuting a suspect who might be a victim of at an early stage, prosecutors (or investigating judges) can give consideration to the thattrafficking, prosecutors particularly should where adopt athe three suspect stage has assessment: been compelled or coerced to commit a criminal1) offence as a direct consequence of being trafficked.Guidance in the UK is 2) If there is clear evidence of a credible defence of duress, the case should be discontinuedIs there a reason on evidentialto believe grounds;that the person but has been trafficked? if so, 3) Even where there is no clear evidence of duress, but the offence may

prosecutors should consider whether the public interest lies in proceeding haveto prosecute been committedor not.50 as a result of compulsion arising from trafficking, As a result of the raised awareness brought by Mary Jane Veloso’s case, to these three suggestions can be added the following: 1) 2) Was a legitimate and regulated recruiter used? 3) Are there other victims? face of it, Whatthey mayis the have criminal committed history aof criminal the alleged offence, recruiter? they are acting under the The rationale for non-punishment of victims of trafficking is that, whilst, on the controlconsequence of traffickers. of which they The may vulnerable be denied situation their right of theto safety trafficked and assistance person becomes as a worse where the State fails to identify such a person as a victim of 51trafficking, as a to divert the victim away from prosecution or unduetrafficked punishment person and along instead with be suitable treated protectiveas an ordinary systems criminal to ensure suspect. that Qualified those whoand havetrained acted officials under arecoercion required will be sympathetically treated wherever they are 52 Not every drug apprehended and, not subjected to the risk of the death penalty. offender can be considered a trafficked person, however it is increasingly recognised that the vast majority of individuals apprehended with drugs in their possession – so- called ‘drug mules’ - are not the primary initiators, financiers, or profiteers behind drug trafficking operations. For example, in recognition of the low status that most drug traffickers occupy within drug syndicates, Singapore recently amended its

49 - ERS v. ITALY AND BULGARIA Application no. 40020/03 (31st July 2012) 50 Rantsev v Cyprus and Russia Application no. 25965/04 (Strasbourg 7 January 2010) and CASE OF M. AND OTH February 22, 2016. 51 United Kingdom Crown Prosecution Office, “Legal Guidance,” http://www.cps.co.uk/legal, accessed-

Organization for Security and Co-operation in Europe, “Policy and legislative recommendations to wards52 the effective implementation of the non-punishment provision with regard to victims of trafficking” http://www.osce.org/secretariat/101002?download=true, accessedGriffith February Journal 22, of Law2016. and Human Dignity 3 (2015), Taken p. 1. from Felicity Gerry, “Let’s talk about slaves…Human Trafficking: Exposing hidden victims and criminal profit and how lawyers can help end a global epidemic,”

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mandatory sentencing53

to allow judicial discretion in cases where an offender could be considered a ‘courier’, rather than a supplier or organizer. Malaysia retains the mandatorysentence’, allowing death sentence the individual for drug circumstancestrafficking, but ofrecent the publicoffence opinion and the polls offender reveal thatto be a consideredlarge majority in sentencing. of Malaysians54 Following favour a restricteda 2007 decision use of ain ‘discretionary the Constitutional death Court, there are also signs Indonesia may move toward a more restricted application of the death penalty, with recommendations to amend the criminal code such that capital punishment is imposed with a 10-year probation period, and commuted to 55 In view of these trends, Australia must address guaranteed protections for vulnerable and exploited people, lifeproportionate in prison ifsentencing the convict and demonstrates advocating for‘good greater behaviour.’ restrictions on the use of the

death penalty given the risks for exploited citizens travelling abroad. V. A HUMAN TRAFFICKING DEFENCE

recently enacted Modern Slavery Act 2015 which creates a defence for slavery or The duties in England and Wales to protect trafficked victims arise from the This follows EU Directive 2012/29/EU which establishes minimum standards on the traffickingrights, support victims and protection who commit of victims an offence of crime and and improved Directive reporting 2011/36 /EU mechanisms. of the European Parliament and of the Council of 5 April 2011 on preventing and combating

traffickingpurposes.56 in human beings. Research by the UK Sentencing Council interviewed drug mules. The information collected related to their trafficked status for sentencing and for the However,purposes asof setappeal. out above,For those this convictedis not just prior a sentencing to the legislation issue. Trafficked coming victimsinto force need or forto be offences identified not beforecovered they by arethe charged,Act, case duringlaw has any developed legal proceedings for courts to quash convictions, in particular in relation to child victims57 largely due to the effect of European Directive 2011/36 and previous decisions.58 The reasoning for what is effectively immunity from prosecution is that the culpability of the victims 59 The Modern Slavery Act has brought with it the scope in relation to some offences, for victims isto challenge significantly a prosecution diminished, by and raising sometimes a legal defence. effectively There extinguished. are shortcomings in the context of extra territorial and transnational effect which could be resolved through international harmonisation of such procedures. It is an approach that Australia and Indonesia should consider. Both need to improve approaches to combat human

com.sg/2013-09/842.htm, Mohamed Faizal Mohamed accessed Abdul August Kadir 30, 2015.& Wong Woon Kwong, “Changes to the Mandatory Death Penalty54 Regime - AnThe Overview Death Penaltyof the Changes in Malaysia. and SomePublic Preliminary opinion on the Reflections” mandatory http://www.lawgazette. death penalty for drug trafficking, murder and firearm offences 55 Roger Hood, Australian International Law Journal 15 (2007), pp. (London: 218-26. The Death Penalty Project, 2013). 56 Natalie Zerial, “Decision No.Drug 2-3/PUU-V/2007 ‘Mules’: Twelve Case[2007] Studies (Indonesian Constitutional Court),” 2011, p. 4. 57 EnglandUK Sentencing and Wales Council, Court of Appeal, R v N; R v LE , Office of the Sentencing Council, March, 58 [2012] EWCA Crim 189 59 England and Wales Court of Appeal, R. v LM [2010] EWCA Crim 2327, [2011] 1 Cr. App. R. 12 and R. v N [2012] EWCA Crim 189, [2013] Q.B. 379 applied. See also, England and Wales Court of Appeal, R v O [2008] EWCA Crim 2835, R v LM, MB, DG, Talbot and Tijani [2010] EWCA Crim 2327 and R v O [2011] EWCA Crim 226. Emphasis added. Volume 6 Number 3, September - December 2016 INDONESIA Law Review ~ 276 ~ HUMAN TRAFFICKING

traffickingwithin the Australian and to better / ASEAN support region victims but it toshould be diverted also be borne from thein mind criminal that justicewithin systemthe 10 ASEAN where appropriate.countries60 Malaysia, This is not Singapore, just important Thailand for and those Vietnam people (as trafficked well as Indonesia) continue to retain the death penalty as an available punishment for drug offences. These are areas to which Australian and Indonesian people frequently travel and,sentencing given the is ascale safer of and human humane exploitation alternative and anddrug categories trafficking, of are sentencing at risk of ensurebeing traffickedissues such and as subsequentlycoercion or rehabilitation exposed to charges can be recognised.for death eligible offences. Non-fatal

VI. CORPORATE REPORTING MECHANISMS

Tackling global slavery doesn’t stop with Governments, NGO’s or criminal justice, corporateresponsibility and61 financial entities are also engaged: Corporate enterprises in legitimate global markets now widely seek good practical advice in the move toward corporate actions. There is. It emerging is seen as human good PR rights and andlarge international conglomerates legal are discourse working tofocussing ensure that grand statements about corporate responsibility are reflected in observable 62. On onthe the 1st interplay between human rights law and other specific domains of international law.will developBusiness a corporate national action responsibility plan to promote is being responsibleseen as “more and than transparent just a bolt-on” business of October 2014, President Barack Obama announced that the United States the European Commission has invited Member States to develop a national plan conduct,for the implementation in line with the of UN the Guiding UN guiding Principles principles on Business63. The Modernand Human Slavery Rights Act and in England and Wales has also provided for an Independent Anti-Slavery Commissioner, legal advocates for trafficked children, rights for overseas domestic workers to leave or change employers when they have been subject to abuse or coercion (subject toannually a positive report decision on efforts from tothe identify National and Referral address Mechanism modern slavery confirming in their they supply have beenchains. trafficked) Effective andadvocacy the introduction enables transnational of the requirement cooperation. for largeMary companiesJane Veloso’s to to note that had Ms. Veloso been Indonesian and intercepted in transit through caseAustralia, highlights it should the berisk incumbent that exploited upon our people authorities are at torisk recognise of execution. her status It is as important a humanto effective trafficking transnational victim, engagement rather than inmechanically investigations process to uncover her through credible the evidence criminal justicethat might system mitigate or rely criminal on diplomatic offending solutions. but there It is followsa need tothat legislate the issues in a harmonised relate not just 60 Brunei, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand and Vietnam. 61 See the author’s forthcoming paper on achieving the G20 gender equality target by uniformity, extra territoriality and corporate responsibility. 62 - on-7948059, The Journal, accessed “Corporate February Responsibility22, 2016. is more than just a bolt on says construction boss,” Octo ber 63 16th 2014, http://www.thejournal.co.uk/business/smes/corporate-responsibility-more-just-bolt- - The European Business Network for Corporate Social Responsibility, “US to Develop National Action Plan Consistent with UN Guiding Principels on Business Human Rights,” 1st October 2014, http://www.cs reurope.org/us-develop-national-action-plan-consistent-un-guiding-principles-business-human-rights#. VEYtO4oayK0, accessed February 22, 2016. Volume 6 Number 3, September - December 2016 INDONESIA Law Review GERRY AND SHERWILL ~ 277 ~

and mandatory way that will encourage victims to engage with authorities through

more informal referral mechanism. the public protective commitment that flows from effective defence rather than a corporations are able to position parts of their supply chain in poorly regulated Globalisation has created a complex network of markets, in which multi-national at home.64 These corporations are often at the root of social issues such as global warming,developing corruption nations whileand human yielding rights high abuses; profits65 in more restrictive legal regimes

Domestic legislation is inadequate when it does not capture yet unlike the activities nation states,of businesses there is nooutside international their domicile legal frameworkcountry - and to thistemper is even their more power apparent or sanction when transgressions.visibility of those activities is lost along complex international supply chains. Reliance is placed on

duebusiness to increased to self-regulate consumer byinterest implementing in the providence internal ‘soft of goods law’ policies and social that media’suphold social responsibility norms, and many have seen the value in doing so – particularly

abilitymodern toslavery define) continue a company’s to plague reputation. the supply Despite chains the through efforts which that multi-national have been made, human trafficking, forced labour and slavery66 (interchangeablyDetailed legislative referred proposals to here are as

corporationshighlighted by areMary deriving Jane Veloso’s enormous case and profits. the increasing development in Australian outsideand Indonesia the scope means of thisthat paperreporting but, mechanismsthe intersection are asbetween important work as andreferral exploitation

mechanisms in relation to human trafficking. VII. CONCLUSION Both Australia and Indonesia have made commitments to combatting human

trafficking.the powerful Throughleaders of the crime experience syndicates. of It Mary is unacceptable Jane Veloso that it canthose be vulnerable seen that it is mostindividuals often maythe facevulnerable execution ‘mule’ for actsthat committedis apprehended under threatby law of enforcement force, coercion, and not fraud, deception or abuse of power. For this reason it is vital that a system of victim

identification is developed, including better training for law enforcement, legal representatives and members of the judiciary. Systemic protection and support is notmechanisms. sufficiently The available implementation without clearcan be legislative achieved protectionthrough collaborative as this paper responses suggests togetherand inter-agency with standardised coordination referral with data mechanisms collection and properly effective trained financial specialists. reporting Crucially, cultural change is required to achieve a change in attitude away from the traditional view of criminal offenders so that they might be differentiated from human

penalty permanently throughout the world. trafficking victims which ought to have a consequential effect of eliminating the death 64

Columbia Sandeep Human GopalanRights Law and Review Katrina 46, Hogan,no. 2 (2015), “Ethical pp. Transnational1-2. Corporate Activity At Home And Abroad:65 A proposal for reforming continuous disclosure obligations in Australia and the United States,” Supply Chain Management: An International Journal 20, iss. 6 (2015), p. 697. 66 Stephen New, “Modern slavery and the supply chain: the limits of corporate social responsibility?,”

Branch, International 2014. Labour Organisation, “Profits and Poverty: The Economics of Forced Labour,” Report of the Special Action Programme to Combat Forced Labour, Fundamental Principles and Rights at Work

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