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5 For a general discussion on immunities see: Akande and Shah, “Immunities of State Officials, International Crimes, and Foreign Domestic Courts” (2011) 21(4) European Journal of International Law 815.
6 See cases discussed in the final section of this chapter.
7 Reyes and Suryadi v. Al-Malki and Al-Malki [2015] EWCA Civ 32.
8 Benkharbouche and Janah v. Embassy of Sudan and Libya [2015] EWCA Civ 33.
9 Velasquez Rodriguez Case, Judgment of July 29, 1988, Inter-Am.Ct.H.R. (Ser. C) No. 4 (1988).
10 Rantsev v. Cyprus and Russia, Application No. 25965/04, Judgment of 7 January 2010; Opuz v. Turkey, Application No. 33401/02, Judgment of 9 June 2009; Siliadin v. France, Application No. 73316/01, Judgment of 26 July 2005.
11 C.N. v. United Kingdom, Application No. 4239/08, Judgment of 13 November 2012.
12 Ibid., [81]–[82].
13 Ibid., [90].
14 Rantsev v. Cyprus and Russia, Application No. 25965/04, Judgment of 7 January 2010.
15 Ibid., [242].
16 Ibid., [290]–[293].
17 Ibid., [294].
18 Ibid., [296].
19 Ibid., [296].
20 Ibid., [342].
21 Ibid., [342].
22 Case of the Hacienda Brasil Verde Workers v. Brazil. Preliminary Objections, Merits, Reparations and Costs. Inter-American Court on Human Rights, Judgment of 20 October 2016. Series C No. 318 (decision currently only available in Spanish).
23 Id at p. 124.
24 González et al. v. Mexico, Preliminary Objection, Merits, Reparations, and Costs, Judgment, Inter-American Court of Human Rights (ser. C) No. 205 (Nov. 16, 2009).
25 United States v. Sabhnani, No. 08–3720 (2d Cir. 2010).
26 McGregor, L., “Applying the Definition of Torture to the Acts of Non-State Actors: The Case of Trafficking in Human Beings” (2014) 36(1) Human Rights Quarterly 210, 216–217.
27 UN Human Rights Council, Report of the Special Rapporteur on Trafficking in Persons, Especially Women and Children (Geneva, 13 April 2011, A/HRC/17/35), para 31 (hereafter ‘Special Rapporteur Report’).
28 European Union Agency for Fundamental Rights, Severe Labour Exploitation: Workers Moving Within or Into the European Union: States’ Obligations and Victims’ Rights (Vienna, 2015), 82 (hereafter ‘FRA Report’).
29 FRA Report, 82.
30 OSCE/ODIHR, Compensation for Trafficked and Exploited Persons in the OSCE Region (Warsaw, 2008), 26 (hereafter ‘OSCE/ODIHR Report’).
31 Ibid.
32 Anti Trafficking and Labour Exploitation Unit (ATLEU), Test Case Successes in the High Court, http://atleu.org.uk/our-recent-cases/2015/12/16/test-case-successes-in-the-high-court –noting that, “recent increases in court fees constitute a new barrier to justice for victims. A claim for £200,000 (less than awarded to the Claimant in our recent case of Tirkey v. Chandhok) costs £10,000 to issue in the High Court (as opposed to £250 in the Employment Tribunal).”
33 Special Rapporteur Report, para 33.
34 Chandhok v. Tirkey, Employment Appeal Tribunal, 19 December 2014, Appeal No. UKEAT/0190/14/KN.
35 Ibid.
36 OHCHR, Mandate of the Special Rapporteur on Trafficking in Persons, Especially Women and Children, Preliminary Report: Regional Consultation on the Right to an Effective Remedy for Trafficked Persons (Santiago, 22 July 2013), p. 7.
37 Simmons, F. and David, F., “The Road to Effective Remedies: Pragmatic Reasons for Treating Cases of ‘Sex Trafficking’ in the Australian Sex Industry as a Form of ‘Labour Trafficking’” (2012) 1 Anti-Trafficking Review 74. See also Preliminary Report, 8.
38 Article 7.
39 Council of Europe’s Committee of Ministers, Recommendation Rec(2006) 8 on Assistance to Crime Victims, adopted on 14 June 2006, 8.3 (hereafter ‘Recommendation (2006)’).
40 UN General Assembly, Declaration of Basic Principles of Justice for Victim of Crime and Abuse of Power (A/RES/40/34, 29 November 1985), ANNEX, 12.
41 Article 3(b).
42 Recommendation (2006), 8.1.
43 Ibid., 8.2. (emphasis added).
44 OSCE/ODIHR Report, 32.
45 The Washington Times, “Diplomats Immuned to Charges of Human Trafficking” (13 December 2012), www.washingtontimes.com/news/2012/dec/13/workers-abused-by-immune-diplomats/?page=all.
46 Ibid.
47 McGregor, L, “Alternative Dispute Resolution and Human Rights: Developing a Rights-based Approach Through the ECHR” (2015) 26(3) European Journal of International Law 605.
48 OSCE/ODIHR, National Referral Mechanisms: Joining Efforts to Protect the Rights of Trafficked Persons, A Practical Handbook (Warsaw, 2004).
49 Airey v. Ireland, Application No. 6289/73, Judgment of 9 October 1979; Quaranta v. Switzerland, Application No. 12744/87, Judgment of 24 May 1991; Biba v. Greece, Application No. 33170/96, Judgment of 26 September 2000.
50 UN General Assembly, Trafficking in Persons, Especially Women and Children (6 August 2014), A/69/269.
51 Ibid., 7.
52 AZ (Trafficked women) Thailand CG [2010] UKUT 118 (IAC).
53 Council of Europe, Convention on Action Against Trafficking in Human Beings and Its Explanatory Report (Warsaw, 16.V.2005), p. 173.
54 Ibid., 174.
55 OHCHR, supra note 36, 8.
56 OSCE/ODIHR Report, 43.
57 Ibid.
58 Article 4(1) (emphasis added).
59 Preliminary Report, 8.
60 FRA Report, 82.
61 Ibid.
62 García Lucero et al. v. Chile, Preliminary Objection, Merits and Reparations, Judgment of August 28, 2013, I/A Court H. R., Series C No. 267 (2013).
22
Being home
Exploring family reintegration amongst trafficked Indonesian domestic workers
Rebecca Surtees
Introduction1
Escape or exit from trafficking is a critical moment in the lives of trafficked persons.2 It means freedom from a deeply exploitative and traumatic situation. It is, in many ways, a new beginning or a return to normal life. But ‘being home’ is far from an easy or smooth transition. It is, often, a complex, taxing, and complicated process that involves significant challenges. The process of reintegration encompasses not only individual trafficking victims but also their family members and the family environment to which they return. Trafficked persons must recover and come to terms not only with their own exploitation, commonly involving multiple layers of violence and hardship, but also with the reactions and responses of their family members. The families of trafficked persons, who have also been directly and negatively affected by the victim’s trafficking, must also navigate and manage the victim’s return and reintegration.
Indeed, in many situations, exit from trafficking is the beginning of another set of challenges – at a personal level and within the wider family setting. And yet too little is known about the issues that trafficked persons and their families face in the process of reintegration. To date, discussions of reintegration have focused primarily and, arguably myopically, on the individual trafficking victim and the ways in which he or she copes and moves on after trafficking. However, reintegration takes place within a wider social field – of different family members and varying family settings – and it is important to disentangle the (often different) actions and reactions of individual family members, each of whom may play a role in either supporting or undermining reintegration. This chapter seeks to widen the lens, to include the actions and reactions of individual trafficking victims and their families, including the interplay of the two and how this changes over time.
Based on fieldwork conducted in Indonesia, in the province of West Java and Jakarta from 2014 to 2016, this chapter explores some of the multi-layered tensions, complications, and challenges that Indonesian trafficking victims and their family members face when reintegrating after a trafficking experience. It considers in particular the challenges faced by Indonesian women trafficked as domestic workers,
as they reunite with their families, including financial problems resulting from or exacerbated by trafficking exploitation; tensions and conflict due to stress or distress; feelings of shame or being blamed; and damage to family relationships. Identifying, disentangling, and understanding common points of tension and complication are valuable starting points for improved reintegration programmes and policies.
Methodology
This chapter is part of a longitudinal research project on the reintegration of trafficking victims in Indonesia. The objective is to better understand trafficking victims’ experiences after exploitation has ended, and how (and to what extent) they manage to recover and reintegrate into their families and communities over time. This chapter focuses specifically on the experiences of family reintegration amongst 39 Indonesian women trafficked as domestic workers, both within Indonesia and abroad. We conducted in-depth, structured interviews with women from five districts in the provinces of West Java (Cianjur, Cirebon, Indramayu, Karawang, and Sukabumi) who were trafficked to Bahrain, Brunei, Jordan, Malaysia, Oman, Qatar, Saudi Arabia, Singapore, Syria, and the United Arab Emirates (UAE). Most were never formally identified by the State, either abroad or in Indonesia. We met them through NGOs, migrant worker organisations, and community leaders in villages in select districts of the province of West Java. Two rounds of interviews were conducted with each respondent between 2014 and 2016.3 Interviews were conducted by two professional Indonesian researchers in Bahasa Indonesian, and recorded with the respondents’ permission and later transcribed verbatim. Professional translators then translated the transcripts to English.
In addition, researchers had on-going, informal contact with 11 respondents over the course of the project – speaking by telephone, exchanging text messages, and meeting informally in home villages during on-going fieldwork. Researchers initiated some interactions, most commonly to follow up on problems that the respondent faced (e.g., health concerns, the status of a legal case, family violence). In others cases, respondents initiated contact with researchers – to seek advice, ask about assistance, or just to ‘stay in touch’.
We also met some women’s family members, although this was approached carefully for fear of ‘outing’ respondents or drawing unwanted attention to the past. In total, we interviewed 26 family members – spouses, parents, siblings, and children – about how they had experienced and coped with their loved one’s absence while trafficked, and their experiences during reintegration.
In addition, between October 2013 and April 2016, we conducted interviews with 144 key informants working with trafficked persons or exploited migrants in Indonesia, many on more than one occasion. Key informants were primarily service providers from NGOs and the government, including social workers, social assistants, psychologists, lawyers, paralegals, medical personnel, and migrant rights activists. This also included officials like administrators, policy-makers, law enforcement, village leaders, and teachers/principals. Some worked at the national level (in Jakarta), others worked at a district, sub-district, or village level in the West Java districts of Bogor, Cianjur, Cirebon, Bandung, Indramayu, Karawang, and Sukabumi.
Fieldwork was conducted regularly in communities during the project. The research team generally spent approximately two weeks each month conducting community-based fieldwork. This included interviews (with victims, family members, and key informants) as well as participant observation. Detailed field-notes were prepared by the research team for each field site, and were included in data analysis.4
What is reintegration?
Reintegration is the process of recovery and economic and social inclusion following a trafficking experience. It includes living in a safe and secure environment, access to a reasonable standard of living, mental and physical well-being, opportunities for personal, social, and economic development, and access to social and emotional support.5 Reintegration takes places on different levels. At an individual level, trafficked persons must come to terms with and move on from their trafficking experiences, as well as, in some cases, pre-existing problems that may have contributed to or led to their trafficking. The family level is equally critical: the family environment is a key factor in either the success or failure of a trafficking victim’s reintegration.6
Given the key role that family plays in a victim’s reintegration, it is important to consider what constitutes family in Indonesia, and the various family constellations to which trafficked domestic workers returned. Understanding the family terrain helps in situating where and why some fault-lines in family relations may emerge as part of the reintegration process.
About family and being home
Family composition
The 39 women interviewed for this study (all trafficked for domestic work) were all from West Java. They were primarily of Sundanese ethnicity (30) or Javanese ethnicity (seven), although some women did not identify their ethnicity (two).7 Family is the central organising structure of both Sundanese and Javanese societies.8 The nuclear family is the most important kin group. Family members owe each other attention, care, and other mandatory obligations; neglecting familial obligations is a serious social infraction.9 Javanese and Sundanese people follow a system of bilateral kinship, valuing male and female descent.10 Social identity is derived from both parents, and there is some choice in relating to different kin.11
Separation and divorce are not uncommon in West Java. While divorce rates have declined since the enactment of the 1974 Marriage Act, divorce is still relatively common and largely (although not entirely) without stigma.12 Remarriage is also fairly commonplace.13 Women interviewed for this study at the time of the first interview included those married once and still married (25), remarried after divorce or widowhood (three), divorced or separated, including informal divorce or talak14 (seven), unmarried (one), widowed (two), and divorced or separated more than once (one).15 In addition, in some cases, married women (six) were second wives or informal wives (not having been legally married), or were an abandoned first wife.16 Moreover, some women’s marital status changed over time, including between the first and second interviews. Of the 31 women who completed second interviews, two separated from their husbands and one remarried in this period. And we learned about further changes in marital status (separation, divorce, and remarriage) during our informal contact with respondents over time.
Gender roles and family responsibilities
In Sundanese and Javanese cultures, the role of wife and mother is highly valued. She is the centre of the household and family – controlling family finances, making major household decisions, rearing children, and dealing with family problems.17 Sundanese children are close to their mothers;18 various Sundanese ceremonies celebrate the mother’s centrality in social life.19 Similarly, in Javanese culture, the mother’s grave is often the site of annual pilgrimage, signalling her special relationship to her children.20 It is primarily women’s responsibility to care for and raise children; and it is in the domestic sphere that women most clearly manifest their social value and power as wives and mothers.21 While both parents have obligations vis-à-vis their children, “whom they have to rear and protect, to teach and worry about”,22 the relationship with the father changes and becomes more formal as the child ages.23
Filial responsibility is critical in Javanese and Sundanese cultures. Children owe deference, obedience, and respect to their parents, manifested in the Javanese dictum –“Whoever honours his parents, his elder siblings, his teacher and his ruler, already honours God” –and the ‘cult of the parents’, whereby on the Lebaran festival, at the end of the holy season of Ramadan (Pasa), children gather at their parents’ homes to receive forgiveness and blessings.24 In daily life, children are expected to pay deference to their parents and also to provide support and assistance. This includes caring for younger siblings or grandparents while mothers work, and caring for parents in old age. Mutual assistance amongst siblings is obligatory, especially in times of difficulty.25 Obligations towards relative
s outside the nuclear family are limited. The intensity and nature of relationships with close and distant relatives is fluid and generally practical and contextual. Close relatives living far apart may have little contact; distant relatives living close by may have intense relationships because of this physical proximity.26
Family residential patterns
Residence patterns amongst Sundanese and Javanese are largely governed by choice. A couple may live with or near either the wife’s or the husband’s parents, and they often choose according to where income and housing are available.27 Javanese and Sundanese household composition is flexible and may include older family members (parents or in-laws), unmarried siblings, or recently divorced relatives.28 Regardless of living patterns, married children who live separately from their parents typically maintain close contact with them.29
Economic roles and responsibilities
Both women and men play important economic roles, engaging in both formal and informal income-earning activities or employment. While men are considered the primary breadwinner, women’s economic role is important nonetheless. This was further entrenched by State policies in the 1970s that encouraged women to join the wage-earning formal labour market30 and, in the 1980s, that promoted transnational female labour migration, largely amongst rural, low-income, uneducated women. By the 1990s, the State promoted female labour migration to the Middle East, to a large extent idealising migratory income-earning women for the sake of the ‘national family’s’ larger goal of economic development.31 Today in West Java, the international migration of women for work (primarily domestic work) is normative and commonplace.32