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JURIDICAL ANALYSIS OF THE CRIME OF TRAFFICTING IN

PEOPLE

Sudiarni

, Nadiana

, Elvina Safitri

Faculty Of Social Science And Political Science, Raja Ali Haji Tanjungpinang Maritime University

1,2,3

sudiarni063@gmail.com

, nadiananad[email protected]

, elvinasyafitri23@gmail.com

PAPER INFO

Received:

October 2022

Revised:

October 2022

Approved:

October 2022

Background: The phenomenon of trafficking in persons has often occurred

in Indonesia, especially in Tanjungpinang City. Trafficking in persons is a

form of criminal practice that violates human dignity and dignity, and is a

violation of human rights. This criminal act of trafficking in persons is very

disturbing to the community, so that there is a need for serious action from

the government to tackle this criminal act of trafficking in persons.

Trafficking in persons is not only a problem in one country, but has plunged

into cross-country or international .

aim: To analyze the juridical crime of trafficking in persons (Law Number

21 of 2007 concerning Eradication of the Crime of Trafficking in Persons).

Methods: The method used is a qualitative method using normative

juridical research.

Findings: the government issued Law no. 21 of 2007 concerning

Eradication of the Crime of Trafficking in Persons. The regulation is

expected to provide legal protection directly or indirectly to the public. Law

No. 21 of 2007 concerning Eradication of the Crime of Trafficking in

Persons states that everyone who is a victim of trafficking in persons has the

right to receive restitution. However, with the issuance of this law, it is felt

that it has not fulfilled the sense of justice for the people who are victims of

this human trafficking .

KEYWORDS

Trafficking in Persons; Factors that cause TIP; Trafficking Crime

INTRODUCTION

Law is a law that stands with justice. The law is true and its existence is recognized if

nothing else is underestimated and arbitrary with all its rights. However, from year to year,

especially in Indonesia, especially in Tanjungpinang, it is inseparable from criminal acts

ranging from small to big things. In particular, what will be discussed is the crime of

trafficking in persons. Where the crime of trafficking in persons is still happening in the

Tanjungpinang area in 2021.

This crime of trafficking in persons has occurred in various regions in Indonesia, but

many people do not understand this human trafficking well. Some areas become

concentrations of human trafficking and exploitation. So it is necessary to have a special

approach to inform the public the importance of understanding this human trafficking (Cholil,

2011) .

The crime of trafficking in persons or abbreviated as TIP is the act of recruiting,

transporting, boarding, sending or receiving a person by means of threats of violence, use of

force, kidnapping, confinement, forgery, fraud, abuse of power, or a position of vulnerability,

debt bondage, or paying or benefits, thereby obtaining the consent of the person having

control over that person (No. 21 CE) . Which is where the purpose of human trafficking is to

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take advantage of others, for the benefit of the perpetrator. Either by means of an invitation,

to all the tricks so that the victim participates in the activities as referred to in Article 1

paragraph (1) of Law no. 21 of 2007 concerning the Crime of Trafficking in Persons.

The problem of the criminal act of trafficking in persons must be taken seriously by the

government. Because people are in a state of threatened rights. One of them is the right to

freedom. As an enforcer, the state apparatus also protects it with a legal umbrella that

specifically regulates the elimination of the crime of trafficking (trafficking in persons).

The Indonesian government has ratified Law Number 21 of 2007 concerning the

Eradication of the Crime of Trafficking in Persons with the consideration that everyone as a

creature of God Almighty has human rights in accordance with the dignity of his dignity and

is legally protected by the 1945 Constitution of the Republic of Indonesia. as stated in Article

28A that: "Everyone has the right to live and has the right to defend his life and life" (Kambu,

2021) .

Law enforcement regarding the crime of human trafficking in Indonesia is still not

optimal where we can see this from the news in the media both in print and electronic media

so that many cases of human trafficking are identified as victims of human trafficking but to

ensnare perpetrators of human trafficking is very difficult because of the modus operandi it

turns out the perpetrators are more than one person and a company, and if the perpetrators are

found, it will be increasingly difficult to proceed to court to obtain criminal sanctions because

the evidence must be guided by legal criminal procedures, namely the Criminal Procedure

Code which has the principle that judges are not allowed to commit crimes against a person

unless there is at least two valid evidence, he or she has the belief that a criminal act has

actually occurred and that the defendant is guilty of doing so, as regulated in Article 183 of

the Criminal Procedure Code (Daud & Sopoyono, 2019) .

METHOD

The method used is a normative juridical research method in which researchers look at

problems from literature studies and studies from various sources as research material, such

as legislation as the main material (primary legal material) and secondary legal materials

from various legal books, scientific works, scientific articles that discuss the criminal act of

trafficking in persons (human trafficking).

RESULTS AND DISCUSSION

A. UNDERSTANDING HUMAN TRAFFICING

Trafficking in persons is defined as the receipt, transportation, delivery, harboring

and or receipt of persons with the intent to treat or use violence or other forms of pressure,

from kidnapping, fraud, from fraud, abuse of power or an easy position or from giving or

acceptance or payment or benefits in order to reach an agreement from a person who has

control over another person, with the intent of extortion (Sitorus, 2016).

From the above definition, it shows that trafficking includes various activities of

sending women and children in various forms aimed at exploitation, especially labor

exploitation and sexual exploitation. Human trafficking has the following elements :

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1. The existence of actions , including: Recruitment, transportation, harboring, shipping,

transfer, or acceptance of a person

2. There are ways, including: threats of violence, use, verbal and physical violence,

kidnapping, confinement, forgery, fraud, abuse of power, position of vulnerability,

debt bondage, or providing payments or benefits.

3. Existence of Purposes, including: Prostitution, forced labor or services, slavery,

oppression, extortion, unlawful use (physical, sexual reproductive organs),

transferring or transplanting organs and or body tissues, or exploiting one's power or

ability by another party to obtain benefits, both material and immaterial.

The definition of human trafficking is so broad that activists who are concerned

in the field of eliminating trafficking agree that this understanding is considered sufficient

if it has fulfilled one of the elements of the actions taken by traffickers, the method used

and the purpose of the action being carried out. Traffickers are generally criminal

organizations that are secret, difficult to track or catch (Yulianto, 2021) . Based on the

literature, human trafficking at the global level can be divided into several forms, namely:

1. By Delivery Destination

Based on the purpose of delivery, trafficking in persons can be distinguished

into trafficking in persons within the country (Internal-trafficking) and trafficking in

persons between countries/cross borders (international trafficking). Internal trade

usually takes place from village to city or from small town to big city within a

country. While trade between countries is the trafficking of people from one country

to another. This model deals with immigration issues. People enter from and to a

country usually through unofficial channels. Domestic trafficking is usually caused by

lack of income or the economy and no opportunity to work. Internal trafficking is a

serious problem in Indonesia, especially in Tanjungpinang City. Many women are

exploited in the form of domestic slavery (servitude dosmetic), commercial sex

exploitation, forced labor in agriculture, mining, and the fishing industry.

(Syamsuddin, 2020).

2. Based on the Victim

Based on the victims, trafficking in persons can be divided into several parts,

as follows:

a. Trafficking of Women

Women are the most vulnerable group to become victims of trafficking in

persons, especially for sexual exploitation, domestic slavery, and forced marriage.

The vulnerability of women to be trafficked due to several factors, namely the need

(demand) of women to be used as commercial sex workers. In addition, women are

also able to sacrifice their education in order to take on the responsibility of caring

for, supporting their parents or siblings. Under these circumstances, it is easy for

women to be seduced and taken abroad to work to help their family's economy. In

Article 1 paragraph 1 of the Regulation of the Minister of Women's Empowerment

and Child Protection of the Republic of Indonesia Number 13 of 2020 concerning

Protection of Women and Protection of Children from Gender-Based Violence in

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Disasters, it is stated that women need protection. The protection of women in this

law is all efforts aimed at protecting and providing a sense of security to women

and the fulfillment of their rights through consistent, structured, and systematic

attention aimed at achieving gender equality (Dian, 2018) .

b. Child Trafficking

Article 1 paragraph 1 of Law Number 23 of 2002 concerning Child Protection

states that "a child is someone who is not yet 18 (eighteen) years old, including

children who are still in the womb (Article 1 Paragraph 1 of Law Number 23 of

2002 concerning Child Protection). Child Protection, nd) . (Article 1 Paragraph 1

Law Number 23 Year 2002 concerning Child Protection, nd) Children are the

most vulnerable group to be trafficked. Factors that cause children to be easily

trafficked are the values that apply in the community where children are required

to serve their families, the existence of children who run away from home for

reasons, the feeling of loneliness living at home, and the negative influence of

their friends. The same thing happened in Tanjungpinang City.

In June 2021 there was 1 case of a child as a victim of this criminal act of

trafficking in persons. The age group of children who are mostly trafficked are

teenagers aged 15 to 17 years. This age group is entangled in many ways and with

almost the same goals as adults (Syamsuddin & Fuady, 2020) .

3. Male Trafficking

If women and girls are mostly trapped in sexual exploitation, then men

usually enter into economic exploitation. Which is in the form of forced labor or

work without pay. This incident is often found in Indonesian workers who work for

palm oil companies or construction workers in Malaysia.

4. Trafficking in Persons by Form of Exploitation

Based on the form of exploitation, trafficking in persons is divided into

sexual and non-sexual exploitation. Sexual exploitation is distinguished into forced

prostitution, forced marriage and marriage through intermediaries. Meanwhile, non-

sexual exploitation is divided into forced labor and organ trafficking.

If seen from the many kinds of trafficking in persons above, victims of this

crime really need to be protected. Protection of victims here is seen because there

are several considerations , namely:

5. Society is considered as a form of institutionalized trust system (system of

institutionalized trust). This belief is integrated through the norms expressed in

institutional structures such as the police, prosecutors, courts, and so on (Hafrida,

Nelli Herlina, nd) The occurrence of a crime against the victim will mean the

destruction of the belief system so that the regulation of criminal law and other laws

that regarding the victim will serve as a means of restoring the belief system.

6. There are arguments for social contract and social solidarity because the state can be

said to monopolize all social reactions to crime and prohibit private actions.

Therefore, if there are victims of crime, the State must pay attention to the needs of

victims by improving services and regulating rights.

7. Protection of victims is usually associated with one of the objectives of punishment,

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namely conflict resolution. By resolving conflicts caused by criminal acts, it will

restore balance and bring a sense of peace in society. (Muladi, 1997) .

B. FACTORS OF HUMAN TRAFFICING

Trafficking is the illegal trade in humans for the commercial purpose of sexual

exploitation or forced labour. The term trafficking comes from English and means “illegal

trade” or illegal trade. This is a modern form of slavery. There is also an understanding that

states that Trafficking comes from the word Traffic which means trade. The root word for

people who trade / sell is "Trafficker" which means trader. The term "trafficking" was first

recognized from the UN instrument. At first "traffic" was used to refer to the "white slave

trade" experienced by women around 1900.

The United Nations (UN) defines human trafficking as: The recruitment, transfer,

transfer, harboring or receipt of persons, by means of the threat or use of force, or other forms

of coercion, of abduction, of fraud, of fraud, of the abuse of power or of position of

vulnerability, giving or receiving payments or benefits to obtain the consent of a person

having authority over another person for the purpose of exploitation. (2000 United Nations

Protocol to Prevent, Combat and Punish Traffickers against Humans, in particular women

and children; Supplement to the United Nations Convention on Transboundary Crime). The

United Nations Convention, Article 3 point a of the protocol to prevent, suppress and punish

trafficking in persons, especially women and children, explains: “The recruitment,

transportation, transfer, harboring, or receipt of persons by means of the treat af use of force

of other forms of coecian, of fraud, of deception, of the abuse of power or of position of

vulnerability or giving or receiving of payment ort benefits to achieve the consent of a person

having control over another person, for the purposes of exploitation shall include, at a

minimum, the exploitation of the prostitution of others or other froms of sexual exploitation,

forced labor or services, slavery of practices similiare to slavery, servitude or the removal of

organs. (Cahya Wulandari; Sonny Saptoajie Wicaksono, 2014).

1. Poverty Factor

Poverty is one of the main factors that encourage people to do anything to get out of

their limitations. The following is an overview of the three aspects of poverty; To supply

side (supply side) is influenced by the poverty factor experienced by individuals (limited

facilities and access to the necessities of life). The demand side (demand side) refers to

commercial industries or activities that rely on poverty as a commodity (individuals traded

illegally) with the aim of maintaining profit or profit. Various views of institutions or

organizations in the majority state that the main factor and root cause of human trafficking

is that it is influenced by the supply side as a result of poverty. The poverty factor has

pushed millions of Indonesians to migrate, domestically and internationally, which is seen

as a way to get a good life for themselves and their families. Based on research results, a

study in 41 countries shows that the desire to improve economic conditions and lack of job

opportunities are one of the main reasons women seek work abroad. (Everd Score Rider

Daniel, Nandang Mulyana, nd)

In conditions of economic hardship, they try to improve the economy by looking for

work. Making people dare to take risks to work outside the city to abroad which in this

situation is very easy to be exploited by people to irresponsible associations. Then in

conditions of poverty, people and irresponsible associations, through persuasion to

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transport and send victims outside the region or abroad so that they can be traded. Thus,

poverty is included as a major factor in the occurrence of criminal acts of trafficking in

persons (Tanjung, 2020) .

2. Environmental factor

The environmental factor (the influence of others) here is the proximity of the

victim to the perpetrator which makes the victim easy to believe in the persuasion of the

perpetrator. Then his association with his fellow friends who had also used the services of

female Commercial Sex Workers (PSK) which made him fall into the crime of trafficking

in persons. This is what makes him want to sell women to these people because they are

willing to pay a lot of money so that it is easier for him to get a lot of money than having

to work. In carrying out the criminal act of trafficking in persons, he has made many

acquaintances with several customers, therefore this crime of trafficking in persons occurs

because of an offer from these customers.

3. Economic Factor

The economic factor is caused by the ease with which the perpetrator gets a lot of

money from every transaction he makes to people who will use the services of the women

he trades. Instead of having to work, it is not necessarily the money he gets from the job

that can meet his daily needs.

4. Educational Factor

The educational factor is the victim's lack of knowledge about the dangers of this

crime which makes it easy for him to fall into the crime of trafficking in persons. This

makes it easy for the perpetrators to persuade the victim and eventually traffic the victim

and exploit her sexually (Zia Zakiri, 2017).

Analysis of Law No. 21 of 2007 concerning the Eradication of the Crime of

Trafficking in Persons.

Indonesia is a state of law, as contained in the 1945 Constitution of the

Republic of Indonesia. Of course, without prejudice to all rights related to human rights,

Law no. 21 of 2007 concerning the Eradication of the Crime of Trafficking in Persons.

The problem of criminal acts of persons is not a problem that can only occur at the

national level, but is based on cases that occur at the international level. So this really

threatens the enactment of violations of human rights for the victims.

The problem of trafficking in persons is not only detrimental to victims because their

rights have been abused to the point of eliminating their rights, but the state also

suffers losses. Call it some adult women who are sent abroad to be exploited or sold

to fulfill the desires of masher men, then the state suffers a loss of human resources,

lack of tax revenue where we know that our main state income is taxes. . Then this

woman left the children who have the potential to become homeless for no relatives,

then the homeless in Indonesia with the government's efforts are not decreasing, but

increasing. Then the government's efforts in forming the RI Law no. 21 of 2007

concerning the Eradication of the Crime of Trafficking in Persons is correct, and

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honest law enforcement efforts are needed based on humanity, because fair decisions

are decisions that are born from human conscience that humanizes humans, as well as

efforts made by people who act caring for the environment.

Forms of exploitation include forced labor or services, slavery and practices similar to

slavery. Forced labor or forced service is a working condition that arises through a

method, plan or pattern intended to make a person believe that if he does not perform

certain actions, he or his dependents will suffer both physically and psychologically.

other people's property. A practice similar to slavery is the act of placing a person in

the power of another person so that that person is unable to refuse a job that the other

person has unlawfully ordered him to do, even though that person does not want it.

The issue of the crime of trafficking in persons (Human Trafficking) needs to be

criminalized as a classification of serious crimes. That so far, for the perpetrators of

this crime, selling or exploiting humans is a normal thing. This thought is the cause of

the increase in criminal acts against human rights. Moreover, from the point of view

of the possibility that criminal law sometimes violates the very basic human

"rechgoederren", namely independence and soul, then it is the right place if the

community, especially the community of law graduates, participates in our future

criminal law development efforts.

It will be separated from the substance of the law, human resources for law

enforcement officers, supporting facilities and infrastructure, interest groups in the

community, and the legal culture of the community. Therefore, in trying and

delivering verdicts, judges are not only guided by the written law (the mouthpiece of

the law), but must pay attention to the values that exist in people's lives.

On that basis, law enforcement must be guided by methods of conflict resolution

based on the rule of law, both written law (UU) or unwritten law (values in the form

of customary law). The task of law enforcement officers should not only be to

maintain order (social order) which functions as a mouth/mouth of the law, but must

be based on the strength of the human ratio and values in society, which is an

acknowledgment of human rights. In terms of human rights law, decisions against

perpetrators must fulfill the community's sense of justice, and the values that live in

society. However, the community's sense of justice cannot be fully fulfilled, because

the crime of trafficking in people is very disturbing and disrupts the order in society,

in reality it is also supported by certain communities because it is still considered

profitable from an economic perspective (for the perpetrators), but in general TIP

must be eradicated. Therefore, if the judge's decision is felt to be unfair and does not

fulfill the community's sense of justice, it will lead to public distrust of the law, and in

the end it will cause chaos and uncertainty, not even covering the possibility of a

street trial. In addition, the process of enforcing and implementing criminal law that

has been carried out as above, the role of criminal law does not only act as a means of

regulating public order (social order) in order to create social policies (social defense),

funds both preventively and repressively. judges will be in accordance with the

objectives of criminal law policy, namely public welfare (Andreo, 2013) .

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CONCLUSION

From the results of research on data sources and analysis in the previous chapter , the

authors can conclude as follows:

a. Factors that occur in human trafficking.

b. Poverty Factor, that in conditions of economic difficulty, they try to improve the

economy by looking for work.

c. The environmental factor (the influence of others) here is the proximity of the victim

to the perpetrator which makes the victim easy to believe in the persuasion of the

perpetrator. Then his association with his fellow friends who had also used the

services of female Commercial Sex Workers (PSK) which made him fall into the

crime of trafficking in persons.

d. Economic factors are caused by the ease with which the perpetrator gets a lot of

money from every transaction he makes to people who will use the services of the

women he trades.

e. The education factor is the victim's lack of knowledge about the dangers of this crime

which makes it easy for him to fall into the crime of trafficking in persons.

Establishment of Law no. 21 of 2007 concerning the Eradication of the Crime of

Trafficking in Persons is one of the government's efforts in dealing with criminal acts that

occur. Efforts to eradicate criminal acts of trafficking in persons are not solely the

government's obligation, but our collective obligation. Therefore, law enforcers should really

punish the perpetrators of the crime of trafficking in persons in order to provide a deterrent

effect for other perpetrators.

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