NOVATEUR PUBLICATIONS JournalNX- A Multidisciplinary Peer Reviewed Journal ISSN No: 2581 - 4230 VOLUME 6, ISSUE 6, June -2020 HUMAN TRAFFICKING AS A HUMANITY CRIME IN FARHANA Faculty of Law Islamic University Jakarta Indonesia [email protected]

MIMIN MINTARSIH Faculty of Law Jakarta Islamic University Jakarta Indonesia [email protected]

BAMBANG SUKAMTO Faculty of Law Jakarta Islamic University Jakarta Indonesia [email protected]

SITI MISKIAH Faculty of Law Jakarta Islamic University Jakarta Indonesia [email protected] ABSTRACT: Human rights are the basic rights revoke human rights. Many countries regulate possessed by human beings from birth that human rights in its constitution and its are inherent in humans. Human rights legislative products. Human rights as a cannot be revoked and should not be common standard of achievement that violated. In the modern world today, ultimately becomes the safeguard of the future slaverystill exists. The word slavery is now civilized peoples of the countries. experiencing a shift of meaning in a more Human rights are developed, formerly complex and varied directions. Traffickers human rights seen only on civil and political have deprived others of the right to rights, then it is developed not only civil rights freedom to be exploited for personal gain. and political rights but also economic, social Human Trafficking, especially women and and cultural rights, otherwise recognized not children, is a form of violation of the dignity only individual rights but also recognized and human rights, because in it there are group rights, such as group rights, minority elements of threat, torture, imprisonment, rights and indigenous rights. Therefore, it is sexual violence and make them as necessary to understand when group rights commodities that can be traded. Under apply in the society of the state or society Indonesian law, human trafficking includes among nations. as human rights violations that include In the history of the development of the crimes against humanity or are called human rights struggle movement, it was extraordinary crimes. obtained sequentially that the first movement KEYWORDS: Human Trafficking, Human emerged in the English state in 1215 gave birth Rights, Humanity Crimes to Magna Charta, then perfected with the birth of Petition of Human Rights in 1627 and Bill of INTRODUCTION: Rights in 19788. In America in 1776 born Human rights are universal and Declaration of human Rights and in France in inherent in every human being since birth as 1789 with Declaration des Droits de I'home et human beings, so that no one can reduce or citoyen known for the motto of Liberte, Egalite, 408 | P a g e

NOVATEUR PUBLICATIONS JournalNX- A Multidisciplinary Peer Reviewed Journal ISSN No: 2581 - 4230 VOLUME 6, ISSUE 6, June -2020 Fraternite. Demands on Human Rights are security, the right to a healthy life." The social increasingly frequent until World War II. Often aspect constitutes the whole aspect of human the emergence of arbitrary acts occurred in the rights which according to law is essentially a days of feudalism in which the people must legal interest so as to be protectedó.(Barda perform the duties imposed by the authorities Nawawi Arif, 2010, p. 64-67). Therefore in the without obtaining their rights. The law that concept of Human Rights that man cannot regulates the rights at that time did not yet become the object of trade (the object of law). exist, so there is a strong control over the weak Man is only worthy as a legal subject having in the life of the community. Humankind has rights and obligations. Thus Human Trafficking been born natural rights have been in the is a gross human rights violation which development of human nature progress arise includes human crimes constituting movements that struggle for basic rights and transnational and organized crime so it is freedoms that based on the inner called extra ordinary crimes and has a wide consciousness of human beings where those impact both nationally and internationally. rights need to get protection and guaranteed in Based on UNODC Report on Human writing in the constitution of every country. Trafficking modern expose form Slaverystated Human trafficking has become a global that "the most common form of human phenomenon, including in Asian countries and trafficking first is sexual exploitation (79%). even around the world. Human trafficking with Victims of sexual exploitation are mostly various purposes of exploitation is a women and young girls. The second most transnational and organized crime, which has common form of human trafficking is forced serious consequences for victims as well as for labor (18%), although this may be a mistake society and the state. Human trafficking is a because forced labor is less frequently detected transnational crime that may occur in some and reported than trafficking for sexual States because trafficking occurs between the exploitation. Worldwide, nearly 20% of all sending State, the transit State and the trafficking victims are children. However, in receiving State or the State of destination. parts of Africa and the Mekong region, children Human trafficking is as well as organized crime are the majority (up to 100% in Western with systemized culprit. Organized crime is Africa).(Trafficking in Person Report, 2017) linked to international syndicates. Many Asian The United Nations Protocol against countries are identified as the source, transit Human Trafficking as a prominent point, and destination country for trafficking international treaty in this field which came victims, such as for that purpose forced labor into force in 2003. The report shows that in and commercial sexual exploitation. recent years the number of Member States Human trafficking violates human rights seriously implementing the Protocol has more which are human slavery in the modern era, than doubled from 54 to 125 of 155 Countries. since humans are equated with merchandise However, there are still many countries that do traded so that the right to life and the right to not have the necessary legal instruments or life are seized. Deprivation of liberty including political will.(Trafficking in Person Report, all forms of slavery is incompatible and 2017) contradictory to the human aspect, in addition Therefore, how does human trafficking to human trafficking against the social aspect of violate human rights? Human trafficking is as the right to liberty, freedom right for transnational crime and organized crime. nationality, the right to get protection or social Trade as a transnational crime illustrates that

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NOVATEUR PUBLICATIONS JournalNX- A Multidisciplinary Peer Reviewed Journal ISSN No: 2581 - 4230 VOLUME 6, ISSUE 6, June -2020 trafficking does not only happen countries of the world. Sex trafficking has internationally but that crime must have the devastating consequences for children, nature of crossing the border as a part of evil. including old physical and psychological trauma, illness (including HIV/AIDS), drug CATEGORY OF HUMAN TRAFFICKING: addiction, unwanted pregnancies, One of the problems facing the world is malnutrition, social exclusion and even human trafficking that includes crimes against death. humanity. It violates human rights, damaging 3. Forced Labor, families, destroying global markets, Forced labor is also called the trade of labor undermining the rule of law, and spurring which includes various activities of other transnational criminal activities, this also recruiting, transporting, giving, or obtaining threatens public security and national security, with one's involvementusing by force or but at worst, human trafficking robs human physical threat, psychological coercion, freedom and dignity. Therefore, human abuse of legal proceedings, fraud, or other trafficking must be eradicated. The forms of coercive means to force a person to work. human trafficking occurring in a country with Although the employee agrees, this does not other countries have different characteristics, apply then the worker is a victim of although in general the forms of human trafficking. trafficking include sexual exploitation, 4. Debt Bondage, economic exploitation and social exploitation One form of coercion used in human Based on Human Trafficking Report June 2017 trafficking in the form of sex trafficking and forms of human trafficking included forced labor through debt bondage. Some (Tarafficking in Person Report, 2017): workers inherit debt; for example, in South 1. Sexual Trade Asia it is estimated that there are millions of occurs because of the threats, trafficking victims working to pay off the fraud, coercion or combination of these debt of their ancestors. Others become means then the human trafficking. The victims of human trafficking or recruiters perpetrator is involved in recruitment, who violate the law exploit the assumed storing, transporting, providing, obtaining a debt consciously or unconsciously, as a job request or retaining a person for the term. Employment agencies, recruiters and purposes of the adult sex trade. Sex employers in both countries of origin and trafficking can also occur through coercive destination can contribute to debt bondage forms in which individuals are forced to by charging the cost of hiring workers by continue prostitution to pay off debts, taking high interest, making it difficult or recruitment or they are sold so that they even impossible to pay off debts. repay the debt first if they wish to be free. 5. Domestic Worker, 2. Children Sexual Trade Domestic workers who work at home A person under 18 years old is classified as include human trafficking because workers a child recruited, transported, acquired, are not free to leave their jobs, they are protected, solicited, or kept for committing isolated, abused and salaries are paid less commercial sexual acts, through threats, than promised and even not paid, no fraud or coercion, as human trafficking. The holidays. Domestic workers, especially use of children in commercial sex is women, face various forms of sexual prohibited under US law and by law in most harassment and gender-based violence.

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NOVATEUR PUBLICATIONS JournalNX- A Multidisciplinary Peer Reviewed Journal ISSN No: 2581 - 4230 VOLUME 6, ISSUE 6, June -2020 6. Child Labor, organized crime that has serious consequences Although children can be legally involved in for victims as well as communities and certain forms of work, children can also be countries and can destroy social institutions found in situations of slavery. Some slowly. For example, sexual exploitation, this indicators of forced child labor include results in human rights violations and destroys situations in which the child appears to be morally, socially and psychologically for the in custody of a non-family member who community. If this is organized continuously it needs a child to do work that financially poses a strategic risk to the future stability of benefits someone outside the child's family society and the state. and does not offer the child the option to go, The consequences of continuous such as being forced to beg. organized crime of human trafficking can then 7. Child Army continue and evolve to other organized crimes Children's Army is a manifestation of such as narcotics, terrorism, arms trade. trafficking when it involves illegal Ongoing trafficking into large scale can result recruitment or the use of children through in disturbing the stability of the population or violence, deception, or coercion, by armed the wider society to the world community. This forces as soldiers or other forms of labor. relates to the number of victims trafficked Judging from the forms of human abroad or in connection with the many trafficking above, it is clear that human members of a particular national or ethnic trafficking is a crime of humanity because it is group who are trafficked to a particular market the worst treatment of human dignity. The or region to the destination country. This opens consequences of human trafficking are not only up opportunities for corruption and money result in casualties but consequently also to the laundering in the public sector, since the gradual collapse of social institutions. multilateral nature of trafficking can create opportunities for other crimes such as HUMAN TRAFFICKING INCLUDING A SEVERE corruption, money laundering, narcotic trade VIOLATION OF HUMAN RIGHTS IN and with the money ready to be used every day INDONESIA: to allow for abuse against the fight against Human trafficking includes forms of human trafficking by law enforcement. As modern human slavery and their vulnerable corrupt law enforcement agencies in trafficking victims(socially, economically, politically, networks can no longer work enforces laws to culturally and biologically). The consequences combat human trafficking but cooperate with of human trafficking not only result in the networks that operate people trafficking. All of victims but also the consequences of society these circumstances disrupt domestic and the state. The consequences for the victim economic investment, causing political are lifelong because of physical and instability and national security to undermine psychological violence where the result of the whole order of life and the welfare of psychological violence is not easy and need society leading to the collapse of a nation. longer time to heal and cannot be cured as a Therefore, human trafficking for various result of physical violence. The quality of the purposes of exploitation is an international and victim's life will be destroyed and even organized crime that has a very serious impact eliminate the lives of the victims. on the security, welfare and human rights of Human trafficking with a variety of victims who destroy the quality of life and even exploitative purposes is an international and

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NOVATEUR PUBLICATIONS JournalNX- A Multidisciplinary Peer Reviewed Journal ISSN No: 2581 - 4230 VOLUME 6, ISSUE 6, June -2020 eliminate the lives of the victims as well as constituting an offense of punishment by a potentially tearing down the state power. maximum deprivation of liberty of at least four The development of technology and years or a more serious penalty.ó Thus a society has links to the development of criminal offense whose penalty threat is equal transnational forms of crime as well as to or heavier than that limit is four years as organizations as a forum. This form of crime is long as it is classified as an organized called transnational crime, or better known as transnational crime.(M. Iman Santoso, 2013, p. transnational organized crime such as 115). The State party shall not make the corruption, money laundering, people definition of a serious criminal offense in its smuggling, human trafficking, arms trade, and penal code but if it has rules relating to an terrorism. organized criminal group, its punishment may The United Nations General Assembly be exacerbated. initiated the holding of the international The criminal offenses which includea convention on Organized Transnational Crime serious crime in this UNTOC are: 1) in Palermo Italy, which resulted in the United Criminalization of participation in an organized Nations Convention Against Transnational criminal group in Article 5, 2) Criminalization Organized Crime (UNTOC). Indonesia has of the laundering of proceeds of crime in ratified the TOC Convention with the Article 6, 3) Criminalization of corruption in enactment of Law No. 5 of 2009 on the Article 8, 4) Criminalization of obstruction of Ratification of the United Nations Convention justice in Article 23, 5) Human trafficking, against Transnational Organized Crime on 12 Especially Women and Children in January 2009. The objective of the creation of supplements UNTOC. 6) The Smuggling of the UNTOC Convention is to promote Migrants by Land, Sea and Air (Supplements of cooperation in order to effectively prevent and Migrants by Land, Sea and Air) supplement combat such persons, as also provided for in UNTOC, 7) The Illicit Manufacturing of and Article 1 of UNTOC (in the Elucidation of Law of Trafficking in Firearms, Their parts and the Republic of Indonesia No. 5 of 2009 on Components and Ammunition supplements Ratification of the United Nations Convention UNTOC Against Transnational Organized Crime) which Victims of human trafficking have rights states that the purpose of this Convention is and human rights always attached to human The purpose of this Convention is to promote beings including human trafficking victims cooperation to prevent and combat wherever located, even if they are outside the transnational organized crime more effectively. country of residence. Affirmed in the Universal The cooperation covers various aspects Declaration of Human Rights (1948) asserts in the effort to combat transnational organized that rights are universal: applicable to all criminal acts. Therefore, States Parties persons regardless of race, sex, ethnicity, or including Indonesia shall take the necessary other differences.(United Nation, 2014, p. 6) actions or steps, for example, to harmonize Human rights related to human legislation without prejudice to the principle of traffickingie (United Nation, 2014, p.15): sovereignty and territorial integrity of the 1. The prohibition of discrimination on the state. basis of race, color, sex, language, According to UNTOC a serious crime is religion, political or other opinion, described in Article 2 letter b UNTOC namely national or social origin, property, birth, (b) "Serious crime" shall mean conduct or other status

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NOVATEUR PUBLICATIONS JournalNX- A Multidisciplinary Peer Reviewed Journal ISSN No: 2581 - 4230 VOLUME 6, ISSUE 6, June -2020 2. The right to life In dealing with human trafficking 3. The right to liberty and security through a human rights-based approach is 4. The right not to be submitted to slavery, "conceptual framework for dealing with a servitude, forced labor or bonded labor phenomenon such as trafficking that is 5. The right not to be subjected to torture normatively based on international human and/or cruel, inhuman, degrading rights standards and that is operationally treatment or punishment directed to promoting and protecting human 6. The right to be free from gendered rightsó(United Nation, 2014). Therefore every violence aspect of the national, regional and 7. The right to freedom of association international response to human trafficking 8. The right to freedom of movement entails the rights and obligations set forth in 9. The right to the highest attainable international human rights. standard of physical and mental , in the Elucidation of Law 10. The right to just and favorable no. 26 of 2000 regarding the Human Rights conditions of work Court which states that the consideration of the 11. The right to an adequate standard of formation of this law is one of them is a gross living violation of human rights is an extraordinary 12. The right to social security crimes and has wide impact both at the 13. The right of children to special national and international levels and it is not a protection criminal act set forth in the Criminal Code and 14. Right to life cause harm both material and immaterial 15. Right to freedom and security which resulted in feelings of insecurity both to 16. The right not to be enslaved, to labor individuals and society. In Article 7 of Law no. 17. The right not to be subjected to torture 26 of 2000 on the Human Rights Court that one and / or cruel, inhuman or degrading of the grave human rights violations is a crime treatment or punishment against humanity and Article 9 states. 18. The right to be free from gender Crime against humanity is one of the acts violence committed as part of a widespread or 19. Right to freedom of association systematic attack that it knows that the attack 20. Right to freedom of movement is directed against civilians in the form of: 21. The right to the highest attainable a) Murder, b) Hostility, c) Slavery, d) Forcible standard of physical and mental health evictions or displacement of the population, e) 22. The right to just and favorable Deprivation of liberty or other arbitrary conditions of work deprivation of physical liberty in violation of 23. The right to a decent standard of living fundamental principles of international law, f) 24. The right to social security Torture, g) Rape, sexual slavery, forced 25. The right of children to special prostitution, forced pregnancy, sterilization or protection forced sterilization or other forms of sexual Human trafficking as a form of crime violence, h) Violation against a particular group that violates human rights, therefore a human or association based on equality of political, rights-based approach is needed. It is clear that racial, national, ethnic, cultural, religious, trafficking violates human rights based on the gender, or other reason that has been criteria of human trafficking and the purpose of universally recognized as prohibited under human trafficking and other trafficking traits.

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NOVATEUR PUBLICATIONS JournalNX- A Multidisciplinary Peer Reviewed Journal ISSN No: 2581 - 4230 VOLUME 6, ISSUE 6, June -2020 international law, i) Forcible disappearance of Convention Against Transnational persons, j) Apartheid crime Organized Crime dengan Peraturan According to the explanation of Article Perundang-undangan Indonesia, cet. 9 letter c, Pertama, 2010 The meaning of slavery in this provision 3) Global Alliance Against Traffic in Women includes human trafficking, especially and International Human Rights Clinic, trafficking of women and children. Under Centerfor Human Rights and Global Justice Article 9, slavery, sexual slavery and forced New York University School of Law, prostitution including human trafficking Beyond Borders: Exploring Links between constitute gross violations of human rights Trafficking, Globalisation, and Security, with the types of crimes against humanity GAATW Working Papers Series 2010, 2010 constitute an extraordinary crime. 4) M. Iman Santoso, Hukum Therefore human trafficking includes PidanaInternasional, cetakanpertama, crimes of humanity, so it is an extraordinary Bandung: Pustaka Reka Cipta, 2013 crime. Also in the RI Law no. 21 of 2007 5) Undang-Undang Republik Indonesia No. 5 concerning the Eradication of Human Tahun 2009 tentang Pengesahan United trafficking that human trafficking is a gross Nations Convention AgainstTransnational violation of human rights. Organized Crime 6) Undang Undang RI No. 21 tahun 2007 CONCLUSION: tentang Pemberantasan Tindak Pidana Human trafficking is a modern form of Perdagangan Orang human slavery that violates human rights. The 7) Undang Undang No. 26 tahun 2000 tentang human rights of victims cannot be revoked and Pengadilan Hak Asasi Manusia should not be violated because human rights 8) United Nations Convention Against are inherent in humans, so humans cannot Transnational Organized Crime become objects of trade (the object of law). 9) United Nation, Human Rights, Office of the Man is only worthy as a legal subject having High Commissioner, Human rights and rights and obligations. Therefore, a human Human Trafficking, Fact Sheet No. 36, New rights-based approach is needed in tackling York and Geneva: United Nation, 2014 human trafficking. 10) US Departemen of State, Trafficking in In Indonesian Law, it is mentioned that Person Report, June 2017, human trafficking is one form of human rights (https://www.unodc.org /unodc /en violations that include crimes against humanity /human-trafficking/global-report-on- or also called extraordinary crime. trafficking-in-persons.html)

REFERENCES: 1) Barda Nawawi Arief, Bunga Rampai KebijakanHukum Pidana Perkembangan Penyusunan Konsep KUHP Baru, edisi 1, cetakan 2, Jakarta: Kencana Predana Media Group, 2010 2) Dirjen Peraturan Perundangundangan KementrianHukum dan HAM RI, Kajian tentang Kesenjanganantara United Nations

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