Prosecuting people smugglers in Indonesia

Indonesian military officers have been caught up in people smuggling rings, but what actually happens to the kingpins of these operations? AAP/Karlis Salna

Against widely held opinion in Australia that Indonesia is not doing anything to stop people smugglers from shipping asylum seekers to Australia, Indonesia has, in fact, stepped up its activities to curb people smuggling, not least because of the generous Australian funding.

The effectiveness of some of the anti-people smuggling measures, however, is another question, according to research I have undertaken with Melissa Crouch of the National University of Singapore, which analysed the trials of people smugglers in Indonesia between 2007 and 2012. Based on this research, it is very unlikely that the irregular boat traffic transporting asylum seekers from Indonesia to Australia will be eradicated any time soon.

One of the most significant steps was the criminalisation of people smuggling through the implementation of the new Law on Immigration in May 2011. Before that, people smuggling was not considered a criminal offence in Indonesia.

One important consequence of the new Law on Immigration in Indonesia enacted in May 2011 to criminalise people smuggling has been a substantial increase in convictions of both Indonesian and foreign people smugglers. In the past, people smugglers convicted in Indonesia often received lenient sentences for breaching immigration regulations, such as those prohibiting accommodating foreigners without legal documents. Sentences seldom exceeded more than two years imprisonment.

Since 2011, however, the minimum sentence for people found guilty of assisting people smuggling operations increased to five years and a fine of 500 million Indonesian rupiah (A$50,000). According to decisions collected from district courts across Indonesia, at least 37 Indonesians and two foreigners were convicted between mid-2011 and 2012. Despite this, whether stricter law enforcement and sentencing can reduce people smuggling between Indonesia and Australia remains questionable.

The majority of convicted people smugglers are men aged between 20 and 50 years. Most hail from the lower strata of society – self-employed or casual employees, who work as drivers, fishermen or manual labourers. Rather than being the main organisers or recruiters, the majority occupied lower positions in smuggling networks, acting as helpers, transporters and facilitators in charge of organising food, travel and accommodation for the clients.

As the main organisers rarely appear in the field or participate in daily transactions, the facilitators at the lower ends of the smuggling networks usually do not know their bosses. In fact, most will never see the main organisers, as all communication is carried out by phone and through middlemen. They may not even work for a particular boss on a regular basis, being recruited instead for a one-off job.

This, of course, makes it harder for the police to monitor or observe smuggling networks. Employing casual and “disposable” smuggling facilitators for the more visible parts of the smuggling action, such as transportation and accommodation on land, is a strategic choice made by the main smugglers. The facilitators at the lower end face the biggest risks, but receive the smallest payments.

The highly clandestine nature of people smuggling networks makes it very hard to catch the “kingpins”, but when they are caught the networks usually continue their activities. In fact, given the competition between different smuggling networks - and police estimate there at least 20 main networks in Indonesia now - closing one network down often only benefits the others, as they take over vacated business.

People smuggling is not a new phenomenon in Indonesia. It has developed steadily over the last ten years in response to the increased demands of asylum seekers and refugees attempting to reach Australia by boat. Among the convicted people smuggling organisers are a number of rejected asylum seekers who stayed on in Indonesia for years, feeling it was not safe to return to their homelands. Barred from legal work, some made their way into the criminal underground.

Some smugglers are former refugees but now hold Australian citizenship, granted to them after regular resettlement. Factors making them ideal middlemen for transnational crime include their reliable contacts with potential clients in the countries of origin, mostly areas of protracted conflict, and their new local knowledge, language skills and links in Indonesia and Australia.

Whereas people smuggling used to be a rather spontaneous activity, over the last decade it has become more sophisticated and more professionalised. Like drug trafficking, people smuggling does not take place in a vacuum but is often protected by higher circles. Corrupt members of the police, military and immigration/customs benefit substantially from such illegal business and are seldom revealed or taken to trial.

To date, court cases involving military defendants have only resulted in the imprisonment of lower-ranking soldiers, although it is likely their superiors knew what was going on.

The judiciary has recently changed its approach, however. Judges nowadays are more inclined to consider people smuggling a serious offence, generally handing out the minimum sentence of five years imprisonment and the fine of 500 million rupiah – very high compared to fines for other crimes. In a number of cases, however, courts have claimed a discretion to impose sentences below the minimum, arguing the accused was only an accomplice rather than the main beneficiary of the smuggling operation.

Generally, the prosecution has refrained from its right to appeal these sentences. Foreign smugglers, some of whom were refugees but others rejected asylum seekers, have generally received far less sympathy from the courts.

The overall weakness of the Indonesian judicial system, which continues to suffer from incompetence and corruption, means that only poor fishermen and the occasional non-Indonesian facilitator are likely to be incarcerated in the future.

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