Crimes Against Humanity in the Philippines: How does ICC response towards Duterte’s War on Drugs?

Rodrigo Duterte was appointed as President of the Philippines on July 1, 2016. At the same time, he realized his political promise to catch up drug lords, through a war on drugs policy. War on drugs attempts to eliminate drug trafficking and use in the Philippines by arresting and/or killing dealers, both large dealers and small dealers, and drug users. In its implementation, Duterte hired police, paramilitaries, and assassins (BBC News, 2016).

The Philippines did suffer from drug emergencies as Duterte said in his speeches. According to data from the Dangerous Drugs Board (DDB) in 2016, drug users in the Philippines reached 1.8 million, equivalent to 1.8% of the total population of the Philippines which reached 100.98 million people. The data was collected from the age range of 10-69 years which at least had used drugs even once in his life (Gavilan, 2016).

In an interview with Russia Today, Duterte said that drugs were a threat that could destroy the young generation of Filipinos who became assets for the country. He repeatedly said that he would kill anyone who was caught in a drug case (Russia Today, 2017). Duterte gave an order to arrest drug addicts and dealers if possible. However, if they fight with violence that can threaten the lives of the police or security officers who arrest them, the police or security officers are allowed to kill (Al Jazeera English, 2016).

From July 1, 2016, to September 30, 2018, war on drugs has resulted in 4,948 people being killed in the operation. Moreover, data from the Philippines National Police (PNP) showed that 22,983  people were victims of murder since the implementation of the war on drugs. This number does not include thousands of others killed by gunmen (Human Rights Watch, 2018).


Human Rights Constitution in the Philippines

The Philippines has committed to the promotion of human rights, as evidenced by the ratification of several international agreements on human rights, namely the Universal Declaration of Human Rights in 1948 and the International Covenant on Civil and Political Rights (ICCPR) on October 23, 1986. Furthermore, the ICCPR was instrumental in determining penalties for lawbreakers in the Philippines.

After ratifying the ICCPR, the Philippines then drafted its constitution by including human rights values in article 3 about Bill of Rights of the Philippine Constitution, which was ratified in 1987. Before that, the Philippines did not have a fixed constitution. Regulations imposed in his country are governed by the president in office at that time. That is what makes human rights regulations unclear in the Philippines before the Philippine constitution is ratified. Until now, the Philippine constitution has become the only law that underlies human rights regulation in the Philippines, excluding international agreements that are a source of international law.

In the same year, 1987, the Philippines became the first Asian country to abolish the death penalty. The Philippines abolished the death penalty twice, first abolished in 1987, and the second in 2006 (Armandhanu, 2016). After 2006, the Philippines did not apply the death penalty. Meanwhile, Duterte said he would re-implement the death penalty and direct shooting at drug dealers.

However, until 2018, the Philippine constitution has not been changed. Even though Duterte continued shooting at drug lords. Constitutionally, that cannot be justified. Plus, the Republic Act No. 9165 regarding drugs also does not write the death penalty, but a life sentence.


Violations against Human Rights in the War on Drugs Policy

The Philippine Constitution which specifically deals with human rights as contained in article 03 of the bill of rights. Article 03 consists of 22 sections that discuss the details of individual and community rights. War on drugs policy violated Article 03 Chapter 01, Chapter 14 (1), Chapter 19 (1), and Chapter 22 in the Philippine Constitution.

  • Chapter 01: “No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws” (The 1987 Constitution of the Republic of the Philippines, 1987, p. 3). It shows that every human being has the right to live and obtain freedom. Considering that part, President Duterte has violated the life rights of his citizens by killing without a court of law. This shows that the murder of drug dealers that he did was unfair to the community and violated the basic rules of the human rights constitution in the Philippines.
  • Chapter 14 (1): “No person shall be held to answer for a criminal offense without due process of law” (The 1987 Constitution of the Republic of the Philippines, 1987, p. 5). The Chapter clearly emphasizes that no individual can be asked for an answer to a criminal act without legal process. In other words, each individual has the right to undergo legal proceedings for his criminal actions. In the case of President Duterte, the state did not provide an opportunity for drug dealers to undergo regulated legal processes. The drug dealers were shot directly no matter where and whenever, without a court of law. This will be related to chapter 22 concerning the bill of attainder.
  • Chapter 19 (1): “Excessive fines shall not be imposed, nor cruel, degrading or inhuman punishment inflicted. Neither shall death penalty be imposed, unless, for compelling reasons involving heinous crimes, the Congress hereafter provides for it. Any death penalty already imposed shall be reduced to reclusion Perpetua” (The 1987 Constitution of the Republic of the Philippines, 1987, p. 6). The punishment given by the state must be humane by not harassing human dignity. If you have to be given a death sentence, it only applies to very violent crimes. While the war on drugs contradicted the Chapter. According to President Duterte, drug crime is the most heinous crime in the Philippines because it has damaged the young generation of Filipinos (Regencia, 2016). However, many dealers who were killed were small dealers and the days were increasingly out of control. Judging in chapter 14 (1), every violator of the law, whether a minor violation or a serious violation, is obliged to undergo legal proceedings at first. In this case, the Philippines must also provide clear boundaries regarding small-scale drug dealers and drug dealers on a large scale, so that there is a clear and fair law to try the case.
  • Chapter 22: “No ex post facto law or bill of attainder shall be enacted” (The 1987 Constitution of the Republic of the Philippines, 1987, p. 6). Ex post facto law is a law that is implemented after being given a sentence as a result of subsequent actions. Then the bill of attainder is an act that states someone is guilty and sentenced without trial at first. In chapter 22 states that ex post facto law or bill of attainder is not invited, which means that no sentence is given without a court. Reviewing President Duterte’s policies, the policy violates chapter 22 of the Philippine constitution. The killings committed did not take the court first, but immediately killed once the target was weak.

At its conclusion, President Duterte’s policy injured the Philippine constitution itself. Four Chapters of Article 03 have been violated. That was the reason for the Philippine Supreme Court to warner President Duterte to dismiss his policies (Al Jazeera, 2017). However, Duterte insisted on continuing this policy based on the emergency threat (Al Jazeera English, 2016).


Introduction to the International Criminal Court (ICC)

The International Criminal Court (ICC) is an international regime that focuses on handling crimes against humanity. The ICC was established on July 1, 2002, through the Rome Statute agreement, which gave legitimacy to the ICC to try perpetrators of crimes against humanity. Based on the elements of crime contained in the Rome Statute, four major crimes must be dealt with by the ICC, namely genocide, war crimes, crimes against humanity and crimes of aggression (International Criminal Court, 2011). These issues have similarities with the issue of crime handled by the UN Security Council. For this reason, the two institutions coordinate with each other in dealing with these issues.

The ICC will prosecute genocide perpetrators, crimes against humanity, or war crimes on and after July 1, 2002 – so that any crimes that occur before that time cannot be tried through the ICC. These three crimes can be tried by the ICC if carried out by nationals of ICC member countries, in the territories of ICC member countries, or in countries that accept ICC jurisdiction. Besides, as explained above regarding the coordination of the ICC and UNSC, the UNSC can refer criminal cases to the ICC Prosecutor to be tried under the resolution adopted under Chapter VII of the UN charter.

Meanwhile, for the case of a new crime of aggression, it will be regulated on July 17, 2018, on the recommendation of the UNSC. In this case, the ICC can try parties’ guilty outside of the ICC membership. If the UNSC does not propose an investigation of cases of aggression, then the ICC can conduct investigations independently or based on proposals from member countries. However, before conducting an investigation the ICC needs to check the status of the case at the Security Council, whether the case has been handled or not (International Criminal Court, n.d.).

In conducting the legal process, the ICC has several stages, namely as follows:

  1. Preliminary examinations
  2. Investigations
  3. Pre-Trial stage
  4. Trial stage
  5. Appeals stage
  6. Enforcement of sentence

Because the ICC upholds human rights values, the penalties applied are only imprisonment and fines, as stated in the Rome Statute Chapter 7, Article 77 (International Criminal Court, 2011). The ICC does not implement the death penalty.


ICC Action Plan on the Philippines’ War on Drugs

On February 8, 2018, the ICC announced the opening of preliminary examinations on the war on drugs case launched by the Government of the Philippines since July 1, 2016. The examination focuses on thousands of drug users who have been killed and extrajudicial killings in the context of anti-drug police operations (Gallaghera, Raffleb, & Maulanab, 2019). It should be emphasized that ICC conducted preliminary examinations, not yet at the investigation stage. Preliminary examinations are needed to observe the urgency of the case, jurisdictional power, and justice. If all components have been fulfilled and with careful consideration, this case can be raised towards the investigation phase (International Criminal Court, 2018).

The Philippines responds to the ICC’s actions by writing an official written statement stating that it left the Rome Statute on March 17, 2018. However, legal proceedings against the Philippines are still ongoing. The waiting period from exit statement to the official exit is one year. During this period, the ICC will continue to conduct examinations on the Philippine government for its war on drugs policy that killed many people.



The 1987 Constitution of the Republic of the Philippines.

Al Jazeera. (2017, January 15). Duterte: No One Can Stop Me From Declaring Martial Law. Dipetik April 29, 2019, from Al Jazeera:

Al Jazeera English. (2016, Oktober 15). Rodrigo Duterte on Drugs, Death, and Diplomacy | Talk to Al Jazeera. Dipetik April 25, 2019, from Al Jazeera English:

Armandhanu, D. (2016, Mei 16). Rodrigo Duterte Akan Terapkan Lagi Hukuman Mati di Filipina. Dipetik April 24, 2019, from CNN Indonesia:

BBC News. (2016, Agustus 26). Philippines Drugs War: The Woman Who Kills Dealers for A Living. Dipetik April 29, 2019, from BBC News:

Fehl, C. (2004). Explaining the International Criminal Court: A ‘Practice Test’ for Rationalist and Constructivist Approaches. European Consortium for Political Research, Vol. 10(3), 357-394.

Gallaghera, A., Raffleb, E., & Maulanab, Z. (2019). Failing to Fulfil the Responsibility to Protect: the War on Drugs As Crimes Against Humanity in the Philippines. The Pacific Review, 1-31.

Gavilan, J. (2016, September 19). DDB: the Philippines Has 1.8 Million Current Drug Users. Dipetik April 23, 2019, from Rappler:

Human Rights Watch. (2018). Philippines: Events of 2018. Dipetik April 25, 2019, from Human Rights Watch:

International Criminal Court. (2011). Elements of Crimes. The Hague: International Criminal Court.

International Criminal Court. (2011). Rome Statute of the International Criminal Court. The Hague: International Criminal Court.

International Criminal Court. (2018, Maret 20). ICC Statement on The Philippines’ Notice of Withdrawal: State Participation in Rome Statute System Essential to International Rule of Law. Dipetik April 28, 2019, from International Criminal Court:

International Criminal Court. (t.thn.). How the Court works. Dipetik April 28, 2019, from International Criminal Court:

International Criminal Court. (t.thn.). The Philippines. Dipetik April 28, 2019, from International Criminal Court:

Regencia, T. (2016, Agustus 10). Duterte Threatens Martial Law If ‘Drug War’ Is Blocked. Dipetik April 29, 2019, from Al Jazeera:

Russia Today. (2017, Mei 22). ‘They want me to fight China. It’s gonna be a massacre!’ – Duterte to RT (FULL INTERVIEW). Dipetik April 25, 2019, from RT:



This article was written by Laras Ningrum Fatma Siwi, an undergraduate student of International Relations Studies at the Universitas Muhammadiyah Yogyakarta, while working as an intern at Center for Southeast Asian Social Studies (CESASS).

Photo by Aditya Joshi on Unsplash

A Portrait of Southeast Asia’s Illegal Wildlife Trade Reality


If there’s one thing that Southeast Asia should be known for, it is one thing; Diversity. This region is the home to many cultures, belief, traditions, cuisines that extends all the way to its rich biodiversity. The region hosted millions of species that ranges from both animals and plants. Many states in this region are in fact, aware of this fact and the notion of this leads majority of states in Southeast Asia to sign and ratify the CITES (Convention on International Trade in Endangered Species of Wild Flora and Fauna 1975 ) within their national legislation, as a measure taken to protect 3000 species of flora and fauna. In Indonesia, CITES has already been ratified into Law no 5 Year 1990 for the conservation of living resources and Ecosystems. The ratification process itself are divided into 3 (three) criteria in which the former one (1) are deemed the most effective, while the latter one is the deemed ineffective (3) due to the lack of alignment between the content within the legislation and the aforementioned conventions.

However, based on the research conducted by UNEP, wildlife trade still occurs in many parts of the world. UNEP reported that illegal trade in wildlife is generally around 7-23 billion dollars annually.  Furthermore, the reason why the focus shall be in Southeast Asia are because, the growth rate in environmental crime within the region corresponds with the GDP growth rate in many Asian states to the number of 5.1 up to 7.5% . This is an activity that should be prevented and eradicated not only by enacting legislations but also, to understand the reason behind these activities. The reality of the implementations of these policies in Southeast Asia are still ineffective due to the fact that legislations are not enough to tackle a problem that has been deeply rooted within the region.

In fact, the trade of wildlife in East and Southeast Asia has a long history. In parts of the region, kings presented live animals and wildlife to the leaders of the neighboring states as a “diplomatic tool” and during the first 20th century, the trade of wildlife has been a major source of foreign exchange. The description above reflected the mindset of the people within the region that still thinks that wildlife can be utilized to their own benefit. It is not enough to tackle wildlife trading without analyzing the root of the problem, due to the fact that both domestic and international illegal wildlife trade is a complex business that has the stimulant of both socioeconomic and cultural forces.


Commercial Structure & Business Operation

To understand this horrible business activity, one must grasp the notion on the structure of this activity, in which there are three roles that Southeast Asia countries partake. It is divided as a Source, Conduit and Consumer states. The source country is where these biotas are being taken away from their natural habitat to be transferred to the conduit states, where these species are being stored and sold to the collectors that originate from consumer states. This activity are driven by many factors as well; Southeast Asia’s rising living standards , infrastructure development that enhance the mobility of the activity, myths that created demands to consume a certain animal parts to the opening up of a several states economy to an international market – based policies that improve international trade connections.

Due to the illegality factor of this commercial activity, there’s a several “methods” that might be used by the seller such as (1) targeting new source areas or countries for a particular species, (2) new smuggling methods and routes to avoid detection and most generally, (3) to exploit the weak wildlife- related law enforcement. The former one is a method where the traders exploited new areas  in order to capture or extract one particular kind of species due to the fact that the previous area does not accommodate the needs of the consumers anymore. The second method involved new and different methods upon transporting wildlife to their conduits. In Vietnam, wild bears are being smuggled using fake army vehicles, ambulance with the biota dressed as the patient. The latter one is the most horrible one, where the smugglers that are caught smuggling illegal biotas, convince the customs official that the species on their possession are actually legal to trade, and this created a much less penalty than the one actually imposes by law. This is a very sad reality; where it shows that there is a very minimum cooperation between the customs official and law enforcers; that shows the lack of understanding of the subject matter of the regulations that has already been created.


Vital Source of Income

One of the reason why enacting the previous rules and regulations are insufficient are due to the fact that these activities are still, the vital income of populations living in some parts of Southeast Asia, especially in the greater sub-mekong  area, especially in Vietnam and Laos. In Nakai – Nam theun National Park Laos, 59% of the villages admit that terrestrial wildlife had been an important source in their village over the last decade, and they do admitted that overall species of wildlife number had declined over the last decade. The usual frequently-sold species are the one that suffered from the effect the most, experiencing drops to 75%, and these are due to many illegal activities happening in the forest that makes these species lose their habitat. Notwithstanding of the obstacles, this still create a very narrow part of the populations specializing in becoming hunters specializing in wildlife trade, in which makes it a career decision. These people are equipped with new skills and equipment that might helped them do their jobs, such as tranquilizing drugs and other process that might ease their burden to capture one wildlife species.

Other than the economic factors, there are still many factors that could leads into these activities. However, the brief description above is an accurate portrayal to this illegal activity. In order to deal with this problem effectively creates urgencies for states, to learn more about the mechanism of wildlife trade. Technology can be used as an effective tool to compile data in regards to list of the identification of types of illegal species, demands, routes & to list every trading activities possible. Further analysis in regards to both social and economic factor of this problem is also necessary; in order to understand the demands of this activity.

There also needs to be better cooperation between both the local, regional and national level to have a better regulatory control of CITES. On the legal perspective, the actions that can be undertaken also involved reviewing the content of CITES for several countries that has a larger number for wildlife trade and to increase the strength of the national legislation. This actions needs to be done immediately due to the fact that most source  states, still has a insufficient content to protect these wildlife, due to their category 3 status to the ratification of CITES; meaning that the legislation are not meeting the requirements for the implementation of CITES.

However, the most prominent eradication measure that could be exercised is to gradually change the mindset of the key stakeholders involved within the activities itself. In order to change the pattern, a change in mindset is also necessary. There needs to be advocacy to relevant stakeholders with the agenda of debunking myths of consuming of animal parts while at the same time, regards to the impacts of this activity in the long run, since without this measure extinctions are inevitable.


References (2018). National laws for implementing the Convention | CITES. [online] Available at: [Accessed 27 Aug. 2018].

Broad, S., T. Mulliken, and D. Roe. 2003. The nature and extent of legal and illegal trade in wildlife. In Oldfield, S. (ed.) The Trade in Wildlife: Regulation for Conservation. UK and USA: Earthscan.

Nooren, H. and G. Claridge. 2001. Wildlife trade in Laos: the end of the game. The Netherlands Committee for IUCN, Amsterdam.

Nash. S. ed. 1997. Fin, feather, scale and skin: observations on the wildlife trade in Lao PDR and Vietnam. Petaling Jaya, Malaysia: TRAFFIC Southeast Asia.

TRAFFIC Southeast Asia. 2004. Armored but endangered. Asian Geographic (4)

SFNC. 2003b. Implementation of actions against the extraction and trade in wildlife at the Pu Mat National Park: proceedings of a workshop held on 27 June 2003 in Vinh City, Nghe An province. S. Roberton, F. Momberg & Tran Chi Trung. SFNC project, Vinh.

SFNC. 2003a. Hunting and trading wildlife – an investigation into the extraction and trade in wildlife around the Pu Mat National Park. S. Roberton, Tran Chi Trung & F. Momberg, SSFNC project, Vinh.



This article was written by Aicha Grade Rebecca, an undergraduate student at the Faculty of Law Universitas Gadjah Mada, doing an internship at the Center for Southeast Asian Social Studies (CESASS).


The Errors in Various Legal Frameworks Regulating Piracy Activities in Southeast Asia


What comes into your mind when you heard the word “pirates?” is it Captain Hook from the Disney movie “Peter Pan” with an eye patch? Is it a hungry and angry guy from Somalia trying to hijack the Maersk Alabama in “Captain Phillips?” However, other than focusing on how the popular media trying to portray how pirates actually looked like, we shall be aware that actual piracy activity is something that is closer to home. In fact, Southeast Asia hosted the most piracy activities due to their fragile geographical location and other relevant socio economic factors. The number elevated in between 1995 – 2013 into being the place for 41% total piracy activities. These numbers are quite high when being compared to Somalia (18%) and West African Coast (13%) .

Based on Adam Mccauley from TIMES, more than 120.000 ships passes through the Indonesia- Malaysia- Singapore which makes it a vital waterways and trade routes for international economic and trading activities.  The data conducted in the year of 2010 proven that piracy drains $7 Billion – $12 Billion US Dollars each year from the global economy creates an urgencies for parties to both eradications and analysis of these occurrences.

Therefore, other than describing the maritime security policies of the respective Southeast Asian states, this article means is to assess both legal and socio – economic factor that resulted into international criminal activity to keep occurring in Southeast Asian waters. Starting from the problems of defining “Piracy” in UNCLOS and other conventions, Geographical locations, legal complications due to overlapping jurisdiction and to assess the corruption activities of states that contribute to the existences of these activities.


UNCLOS; Unsuitable to Govern Piracy in Southeast Asia?

The measure to prevent and eradicate piracy activities has already been regulated on the UNCLOS (United Nations Conventions on Law of The Sea). This documents is the most prominent legal documents that regulates most aspect on ocean governance systems, despite their Mare Liberum & Res Communis status. This conventions governs baselines, states rights over their respective sea area as well as natural resources contains within it and how human beings cultivate these resources. The definition of “piracy” itself that is contained within UNCLOS is “any illegal acts committed for private ends by the crew or passengers and directed on the high seas and outside the jurisdictions of any state” . However, this is problematic in a way that piracy within the territorial seas are not included within the context of piracy contained in the aforementioned articles.

This practices resulted into piracy activities happening in the territorial sea area, even though the ship of their own nationals are the victim of the attacks. Mostly, these hijacking activities are conducted with smaller vessels and would only resulted into these activities to be considered as theft / armed robbery . Research also proven that both African/Southeast Asian region have different characteristic when it comes to piracy, since in the latter region, piracy are predominantly hijacking tankers to steal oil cargos other than kidnapping and asking for ransom in return.

The legal definition of the concept of piracy as written in the aforementioned documents created a legal implications where the writer believes that it created a reality where most of these “minor” piracy perpetrators goes free due to the point that this documents failed to address the problem of piracy activities in the territorial waters and the traits of piracy that is happening in Southeast Asia.  These problems are the reason why the Straits of Melacca are considered to be a war risks premium area by the Joint War Committee (JWC) of the London Market.  This facts is the reason why many states in Southeast Asia come up with both bilateral & joint cooperation agreement in order to tackle piracy activities, such as the Regional Co-Operation Agreement in Combating Piracy and Armed Robbery Against Ship In Asia (ReCAAP) where states shares information conducts cooperative arrangements in order to eradicate piracy, and other bilateral joint agreement.


Cooperation Is Not Enough – ReCAAP is not enough.

However, by regulating the ReCAAP does not mean that the problem of Piracy is immediately solved.  This is due to various political interests and other socio – economic factors that has been going on within the region. On the political sectors, most of ReCAAP members are ASEAN members. This leads to a non – interventionist approach into various matters where states are hesitant to interfere in other state’s affairs due to the fact that for years, ASEAN believes in harmonious co – existence where states exists alongside others with respect to sovereignty. Furthermore, some states are still reluctant to share information that could not be beneficial for their national interest.

The implications of the aforesaid statements are quite detrimental in the long run in a sense where political interests are one of the biggest obstacles in the process of eradicating Piracy in Southeast Asia. The geographical contour of Southeast Asia that is mainly made out of intersecting economic exclusive zones and straits goes along a several regions made eradication process impossible due to the fact that states has their own sovereignty rights in order to protect their areas in which includes their waters.   Although International Law and Law of the Sea recognizes the practice of Hot Pursuit or the rights of coastal state to conduct a pursuit of a foreign vessel all the way to the high seas, these practices are in fact, limited in reality.  Furthermore, the compositions of Indonesia that is made up of thousands of islands could makes it harder for ocean patrol to eradicate piracy due to the fact when this event occurred, the perpetrators could easily hide in one of the islands that is located near to the area.


Solutions and Possible Legal Frameworks

Thus, after doing a brief research of the subject matter, the writer come up with three approach in order to tackle the aforementioned problems by approaching it through 3 different aspects; such as Legal, Political & Socio Economical Part. The writer believed that in order to tackle a problem that has been going on for quite some time and deeply rooted within the region, this approach must be done in order to prevent, maintain and eradicate, all at once.

In the legal aspects, there must be an understanding that there are actual differences between the concept of “piracy” and “contemporary piracy”. The concept of piracy are concept that is derived from the western world and it involved element of war where the master and the crew of the vessel is usually taken as hostage. However, contemporary piracy are usually conducted in smaller boats and the activity that is usually conducted are theft that could resulted into private entity experiencing losses, even before the goods reached the port of destination. Thus, there needs to be an expansion of the legal definition of piracy due to the fact that in the region, people are usually conducting piracy for purely, economic motives.

In the political aspects, there must be an increase of cooperation between states (especially coastal ones) to conduct more joint cooperation in order to eradicate piracy. This could means more information sharing platform between regions in order to become more transparent in regards to any information concerning these activities. In the past few years, the effort has not been very effective due to the fact that states still highly concerns that transparency would resulted into their states to be deemed as weak and vulnerable against these attacks, while in fact transparency are the most integral part into the battle against piracy. In the aspect of technicalities, there must be also standardized and uniformed standards and protocols when it comes to ways to conserve the vessel and the goods contained within it whenever this kind of event occurred, and this must be apply by all vessels that sails through the ASEAN waters.

And lastly, the 2 efforts above could not be implemented if it is not being paired with a good approach towards the socio – economic factors of the region as well. There needs to be a socialization process by the regions that consists of government, state actors as well as non governmental actors to help the people, especially the one with the lower status living in the coastal area, about the danger of this activity and how it can be detrimental towards the status of maritime security of a country. Also, there needs to be cooperatives between parties to create initiatives in regards of finding alternative source of income for people living in the area who is prone to this kind of activities. With that, we could hope that the society could be more proactive and would be willing to cooperate with the government, to help eradicate this kind of crime once and for all.


Law & Legislations References

United Nations Conventions on Law of The Sea

Code of Practice for the Investigation of Crimes of Piracy and Armed Robbery against Ships of the International Maritime Organization (IMO) Assembly Resolution A.1025

Regional Co-Operation Agreement in Combating Piracy and Armed Robbery Against Ship In Asia (ReCAAP)


Journals References

Apjjf. Org. (2018). Security in the Straits of Malacca. The Asia – Pacific Journal: Japan Focus [Online] Available At: Https// – Khalid/2042. Article. Html.

Forster, B (2014). Modern Maritime Piracy: An Overview of Somali Piracy, Gulf of Guinea Piracy and South East Asian Piracy. British Journal of Economics, Management & Trade 4 (8). Pp. 1251 – 1272

Leng, L. (1987). Access to Southeast Asian Waters by Naval Powers: some problems and Ambiguities. Contemporary Southeast Asia, 9 (3), pp. 207 – 220

Piracy in South – east Asia (2000). Strategic Comments. 6 (5), pp. 1 -2


Miscellaneous References (2018). Economics of Piracy in Southeast Asia. [online] Available at: [Accessed 25 Sep. 2018].

Recaap. Org (2018). ReCAAP Information Sharing Center. To enhance cooperation through information sharing, capacity building and cooperative arrangements in combating piracy and armed robbery against ships. (2018) The Most Dangerous Waters in The World (online). Available at / piracy – southeast – asia – Malacca – strait / [Accessed 25 September 2018].



This article was written by Aicha Grade Rebecca, an undergraduate student at the Faculty of Law Universitas Gadjah Mada, doing an internship at the Center for Southeast Asian Social Studies (CESASS).


Transgender Legal Protection in Indonesia and Thailand

The word ‘transgender’ may be familiar to our ears. This word meant in this article means people who have gender identity or gender expression that is different from the gender they had at birth, from woman to man, or vice versa.

Southeast Asia is one area where religion is the most considered factor, so transgender is often considered to be against the norm. Not infrequently in Southeast Asia, transgender gets discriminated, especially to enjoy a decent life. In fact, they are often forcibly evicted, fired, and so on. In fact, transgender is a human being and a citizen who has human rights. In addition, it must always be remembered that the state is obliged to provide protection to its citizens, without exception. Thus, we need to highlight this transgender phenomenon.

Talking about transgender that constantly demands equality in diversity raises a big question about how the law governs transgender. As is known, the world’s average law, regulates everything by dividing the sex of citizens into two groups: men and women. For example, as we find in Indonesia, in labor law, there are certain leave that can only be taken by women or criminal rape formulated with the special characteristics of female victims.

In Indonesia, the majority of people still regard transgender as an ‘unusual’ thing. Nevertheless, there are few people concerned with this phenomenon. This is evidenced by the existence of Srikandi Foundation which began to stand since 1998 and it focuses on health issues related to transgender and their work. In addition, in 2010 there is a quite famous case related transgender, namely Alter Hofan. Alter is a man who used to be a woman. Later, he married a woman named Jane. Knowing Alter is transgender, Jane’s mother reported the marriage to the police on the grounds of fraud. After undergoing a trial in South Jakarta District Court, the panel of judges decided Alter was acquitted of all charges because the panel of judges held that it was not a crime. Even on the appeals level, the verdict states that although the Defendant has been proven to apply for the identity of the female sex to the male, but the act is done on the impulse caused by an abnormality called klinefelter syndrome, so again he escapes demands.

According to Indonesian law, as set out in Article 28 Paragraph 1 of the 1945 Constitution, everyone has the right to live and sustain his/her life. The meaning of ‘everyone’ in this article is certainly intended for all Indonesian citizens, regardless of their condition. Then, in Law no. 39 of 1999 on Human Rights, Article 71 affirms that the government is obliged and responsible for respecting, protecting, upholding and promoting human rights.

In fact, the government does pay attention to transgender citizens, as the Ministry of Health always provides free HIV / AIDS medicines to transgender. The state institution of National Human Rights Commission (Komnas HAM) always insists that every citizen, regardless of his/her condition, has the same rights and should not be discriminated against. Thus, it can be concluded that, regardless of the negative assumptions of society, according to Indonesian law, transgender still has the status as a citizen having an obligation to build his/her country and to succeed the country’s development. Therefore, the right to transgender remains in force, including the right to work, social security, decent living standards, health, education, and participation in cultural life.

In addition to Indonesia, Thailand as one of the countries in Southeast Asia can be said to be more open to the existence of transgender, based on the number of ladyboys there. Transgender in Thailand has the nickname “kathoey”. They usually work in Thai entertainment, TV shows, and nightclub performances. Thailand is also one step ahead in supporting and protecting transgender rights. Evidently, they published the “Gender Equality Act” in September 2015 to eliminate discrimination, one of them is against transgender. This law criminalizes discrimination between sexual identities which affirms that unjust discrimination to a person having a sexual expression different from his or her original sex is a crime.

Nevertheless, as in Indonesia, transgender discrimination still exists in Thailand, as is the article in the Bangkok Post in 2013 that claims social discrimination in transgender there. The Bangkok Post says that there will be no transgender with high-class jobs, such as doctors, lawyers, scientists, teachers at state schools and universities, and corporate executives. Therefore, most transgenderers become entrepreneurs or freelancers. Even in 1954, transgender was banned from entering the military realm because because they are considered to have a ‘mental disorder’. However, this decision was revoked in 2005.

Until now, the transgender phenomenon is still a debate in the countries of Southeast Asia. However, Thailand and Indonesia, through the government and some of its parties, actually still treat transgender just like other citizens in general.



This article was written by Vicky Van Winkelhoff (in Indonesian), an undergraduate student at the Faculty of Law at the Islamic University of Indonesia, while working as an intern at Center for Southeast Asian Social Studies (CESASS).

In the light of Breaking the Chains (2015): Pasung in Present-day Indonesia.

Pasung is the traditional practice of dealing with people with psychological disorders, or those perceived as such. It consists of binding people, often with chains, and locking them in small rooms, cages or sheds. It can last anywhere from a few hours up to many years. Although it was banned in Indonesia in 1977, it is practiced to this day, especially in rural areas.

I must admit that when I heard about pasung for the first time I was quite shocked. It was the cruelty and callousness of people that struck me most. However, the documentary film Breaking the Chains, released in 2015, made me look at the issue from a wider perspective. Its creators did not focus on how brutal people who condemn their loved ones to such fate are, but rather showed how complex their situation is, that is how many elements affect the decision to take such a step.

It is undeniable that such practices violate human rights. However, people shown in the film chain their relatives not because they are cruel and soulless. Neither do they do it out of fear of their neighbours’ reactions. Although possibly these motivations are important in some cases, people portrayed in Breaking the Chainssimply do not see any other possibility. Often, there are no institutions specialising in the treatment of mental illnesses in their area. Sometimes the price of a visit to a psychiatrist is an insurmountable burden. Finally, many of them simply believe that it is black magic that caused the problem, so instead visiting a qualified physician, they would seek a solution from spiritual leaders, traditional healers, or black magic specialists, who often confirm their belief in pasung being the only way out. One of the film’s protagonists’ – Yayah – was diagnosed with chronic schizophrenia but her family believed she was possessed by evil spirits. They thought pasung was their only choice, so they locked and chained Yayah for 17 years.

The camera of the creators of Breaking the Chains follows the activists associated in Komunitas Sehat Jiwa(Community of People with Mental Illness) – an organisation form Cianjur (West Java) whose aim is to completely eliminate the practice of pasung. “There is no other medicine for this,” notes a mother of a mentally ill man in one of the film’s scenes, during a conversation with a psychiatrist. The local healers confirmed her conviction. Activists of Komunitas Sehat Jiwa are looking for such people. They offer them knowledge about the condition of their relatives, appropriate treatment, as well as provide proper medication. Importantly, they explain to the family how much love and respect are important for the treatment process. It seems the lack of education is the main factor that maintains the tradition of pasung.

According to data presented in the film, until its release, Komunitas Sehat Jiwa managed to unchain 117 patients, including Yayah. Their diagnosis of the reasons for such a large scale of the phenomenon in Indonesia reads as follows:

“Shelter is not simply the product of ignorance of family and society, economic inadequacy, or the refusal to accept psychiatric treatment. More precisely it is associated with the lack of concern and responsibility of government to provide basic mental health services for people with severe mental illness” (Pasung, n.d.).

In 2016 Human Rights Watch alarmed about how bad the mental health care status in Indonesia was, issuing an extensive report on this topic entitled Living in Hell: Abuses against People with Psychosocial Disabilities in Indonesia(Sharma, 2016). The data presented by the authors of the report is alarming – during its creation there were 57 thousand people in Indonesia who have been in pasung at least once in their lives. 18 800 people were currently living in pasung. The authors of the report pointed out that pasung is not the only problem faced by Indonesian society in the matter of mental health protection. Patients in various types of health centres, traditional or religious, as well as nursing homes, and finally psychiatric hospitals, are often subjected to abuses of many kinds, including physical and sexual violence, forced seclusion and forced medication. Some of those mental health centres treat patients with electroconvulsive therapy – without their consent. What is worse, some hospitals still perform this treatment in an unmodified manner – without anesthesia, muscle relaxants or oxygenation.

The data provided by the Indonesian Ministry of Health, cited in the previously mentioned report, confirms that an insignificant part of the population of Indonesia has access to psychiatric treatment. Only 48 psychiatric hospitals operate in a country of 250 million people. 8 out of 34 Indonesian provinces have no psychiatric hospitals, 3 do not even have a single psychiatrist. The World Health Organisation estimates that in 2014, for every 100 thousand Indonesians, there were 0.29 psychiatrists and 0.18 psychologists working in the mental health sector. By comparison – at the same time, there were 0.76 psychiatrists per 100 thousand Malaysians, in Singapore this rate was 3.48, in Norway 29.69. In 2011 Switzerland had more than 40 psychiatrists for every 100 thousand people (“Global Health,” 2015).

The authors of the article entitled Human rights of persons with mental illness in Indonesia: more than Legislation is needed, published by International Journal of Mental Health Systems, seem to confirm the thesis mentioned earlier, that the fault for such a bad state of affairs lies not with the people, but the insufficient actions of governmental institutions (Irmansyah, Prasetyo & Minas, 2009). They point out that from the legislative point of view, the situation is satisfactory, but the right regulations are not always followed by adequate actions. However, the Indonesian Ministry of Health, the Ministry of Social Affairs and the National Human Rights Commission do recognise pasung as a serious problem and have declared they will do everything they can to free Indonesia from it. The world-wide attention gained by Breaking the Chains assured that not only Indonesia itself is awaiting their firm and far-reaching actions in the nearest future.



Colucci, E. (Director). (2015). Breaking the Chains [Motion picture].Global Health Observatory data repository. (2015, May 8). Retrieved from

Irmansyah, I., Prasetyo, Y.A. & Minas, H. (2009, Jun 19). Human rights of persons with mental illness in Indonesia: more than legislation is needed. International Journal of Mental Health Systems, 3:14. Retrieved from

Pasung. (n.d.). Retrieved from

Sharma, K. (2016 March 20). Living in Hell: Abuses against People with Psychosocial Disabilities in Indonesia. Retrieved from



This article was written by Michał Bielecki a PhD student at the Graduate School for Social Research of the Institute of Philosophy and Sociology, Polish Academy of Sciences, working as research fellow at the Centre for Southeast Asian Social Studies (CESASS), Universitas Gadjah Mada.

ASEAN Countries toward Human Rights based Approach to Prevent Trafficking In Persons

Notwithstanding the constant efforts to tackle Trafficking in Persons, this form of modern slavery is still widespread in Southeast Asia where all the countries in the region are country of origin, destination or both. It is often argued that strategies to combat trafficking have been focusing more on law enforcement and assistance to victims rather than on prevention, hindering the ability of governments to have a significant impact on the issue. In order to eradicate Trafficking in Persons, a more comprehensive approach is needed and prevention strategies should be prioritised.

Effective prevention strategies need to be developed by taking into consideration various elements. The first step to develop a deep understanding of the characteristics of trafficking is data availability. Prior research and extensive data collection need to be conducted in order to detect vulnerability and to understand the modus operandi of the traffickers. Vulnerability is not always easy to be detected since it is often caused by a combination of several factors such as poverty, corrupted environment, age, low level of education, discrimination and lack of information. In addition to that, traffickers constantly adjust their modus operandi according to the context and the legal framework they operate in, hence there is need for constant research in order to keep prevention strategies up to date. An important part of prevention is giving vulnerable individuals the instruments they need to avoid being recruited; the kind of instruments and the strategies that need to be adopted depend on the context.

A step forward to the concept of prevention is brought by the Human Rights based approach that goes beyond awareness raising to avoid recruitment and includes, as a part of prevention, addressing the root causes behind vulnerability and trafficking. On the basis of that, a more proactive approach to prevention is needed by taking positive actions such as economic programs in vulnerable areas. While developing Human Rights based prevention strategies, it is extremely important to involve communities and marginalised groups in order for the prevention to be effective and long-lasting. The effectiveness of a prevention program will largely depend on its sustainability not only in terms of community participation but also from the economic point of view.

In the Southeast Asian context, the ASEAN community has recently renewed its commitment to tackle Trafficking in Persons through the ASEAN Convention Against Trafficking in Persons, Especially Women and Children (ACTIP). The ASEAN ACTIP, based on the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, is a legally binding instrument that has officially entered into force on 8th March 2017 and has already been ratified by eight out of ten ASEAN Countries.[1] While the prohibition of Trafficking in Persons is already stated in Article 13 of the ASEAN Human Rights Declaration, the ASEAN ACTIP brings the fight against trafficking in ASEAN region a step forward by providing a solid basis for cooperation between countries. The Convention aims to create common standards at regional level for criminalisation, prevention, assistance of victims, law enforcement and prosecution. In particular, several trafficking prevention strategies are suggested in Chapter III of the Convention. Trafficking prevention is described as the combination of various actions such as research, information and awareness campaigns. Poverty and inequality are mentioned as primary causes for vulnerability that need to be tackled through economic, social and educational measures in order to discourage trafficking demand and supply.

Further details on the implementation of the ASEAN ACTIP and on trafficking prevention are provided in the ASEAN Plan of Action Against Trafficking in Persons, Especially Women and Children (APA). According to the ACTIP Plan of Action, educate all levels of society and involve, among others, community leaders are fundamental steps to create a safe environment. Furthermore, conducting and supporting research and data collection is identified as the mean to better understand the phenomenon of trafficking and how to prevent it. In the ACTIP Plan of Action it is also suggested that an ASEAN database on trafficking should be developed by establishing national data collection systems in each ASEAN country and connecting them through a regional database.

In occasion of the AICHR Cross-sectoral Consultation on the Human Rights Based Instruments Related to the Implementation of the ACTIP, Especially Women and Children, that was held on 29th and 30th of August in Yogyakarta, government representatives, AICHR representatives, non-governmental organisations and various stakeholders had the opportunity to discuss how to develop ASEAN ACTIP implementation strategies based on human rights. In particular, human rights based approach to combat trafficking has been defined as understanding what the root causes of trafficking are and where to act by taking into account victims’ and vulnerable people’s perspective on the issue. In accordance to that, the need to balance the efforts between prevention, law enforcement and victims’ protection was stressed as extremely important to have a comprehensive approach to fight Trafficking in Persons.

During the Consultation, the economic dimension of prevention was described as necessary to address the root causes of trafficking since it is by giving trainings and alternatives to people that prevention can become a mean to empower individuals. A strategic place to conduct prevention has been identified at local level and more specifically in villages since the proximity with people facilitates the detection of vulnerability and the recognition of cases of trafficking at an early stage. As a result, cooperation with local government officials and the creation of village based organisations to prevent trafficking were highly encouraged. Nevertheless, it was also acknowledged that there is still a lack of economic opportunities at grassroot level for Civil Society Organisations and that more resources need to be allocated in order to reach as many individuals as possible.

Certainly, there is a widespread consensus regarding the connection between prioritizing prevention strategies and applying a Human Rights based approach to tackle trafficking. Nonetheless, the political will of ASEAN governments in adopting a more comprehensive approach to fight trafficking will play a crucial role in strengthening prevention efforts. A more proactive approach that goes beyond mere awareness raising will require positive actions from states and fund allocation. Effective Human Rights based policies to combat trafficking will need to find the right balance between regional dimension, where cooperation among countries is highly needed, and local dimension, especially village level, where prevention initiatives have proven to be effective and in need of a greater political support.




“Taking prevention seriously>developing a comprehensive response to child trafficking and sexual exploitation” Jonathan Todres.

“ASEAN Welcomes Entry into Force of ACTIP”

AICHR Cross-sectoral Consultation on the Human Rights Based Instruments Related to the Implementation of the ACTIP, Especially Women and Children, 29th– 30th of August, Yogyakarta.

ASEAN Plan of Action Against Trafficking in Persons, Especially Women and Children.

ASEAN Human Rights Declaration.

ASEAN Convention Against Trafficking in Persons, Especially Women and Children.



[1] Indonesia and Brunei have not ratified the ASEAN ACTIP yet, however there are positive signs that the ratification process has already started.



This article was written by Ilaria Montagna, a Master student in “Theory and Practice of Human Rights” from the University of Oslo (UiO), working as intern at Centre for Southeast Asian Social Studies (CESASS).


Learning About the Differences of Capital Punishment in Southeast Asian Countries

Southeast Asian countries have their own capital punishment regulation, actually all of them have it until Philippines and Brunei abolished their Capital Punishment. Most of the Southeast Asian countries have the same capital punishable crime such as; drug trafficking, drug possession if considered as organized crime or exceed some quantity limit, terrorism, murder, treason, espionage, war crimes, against humanity, and also genocide. However, each county has certain differences in the regulation.

Indonesia had already executed many criminals especially in drug trafficking and terrorism, whether those criminals from Indonesia or other countries, this makes a controversy with other country that already abolished capital punishment especially Indonesia has ratified ICCPR, however Indonesian government have no tolerate with this extraordinary crime and so the execution is still being executed in Indonesia.

Malaysia has two law that can be chosen to be used for the trial, since they also recognize shariah law aside from their own regulation, which must be conducted in Islamic court. The method that Malaysia uses for execution is hanging. In Malaysia an offender who discharges a firearm in an attempt to murder or cause harm while resisting arrest or escaping lawful custody can be punished by death sentence.

Different with other country, in Singapore drug possession crime is not death punishable, because as long as it’s below 20 grams and the person can be proven innocent from drug trafficking then they cannot be punished by death. Singapore has a regulation that state the capital punishment must be executed by using hanging method, this was stated under Section 316 of the Criminal Procedure Code; “When any person is sentenced to death, the sentence shall direct that he shall be hanged by the neck till he is dead but shall not state the place where nor the time when the sentence is to be carried out.”

Thailand has a long history about the capital punishment since their country is using a monarchy system. Back then during the Rattanakosin period, Thailand was under the “Law of the Three Seals”. This system was codified in 1805 during the reign of King Rama I under absolute monarchy and remained in place until Thailand transitioned into a constitutional monarchy, following a revolution in 1932. There were 21 different forms of capital punishment under the Law of the Three Seals, such as; those who convicted of treason would be wrapped in oil-soaked cloth and set on fire. Thailand execution methods have changed several times these years; like in 1938 convicts were executed using a single automatic rifle, in 2001 five convicts were executed by firing squad in a public execution, until finally in 2003 Thailand adopted lethal injection as the official method of execution,

Vietnam penal code back then has so many crimes that considered to be punished by death, however after an amendment in 2009 it reduced to only 22 crimes.Vietnam regulates 29 crimes on their Penal Code that makes death penalty able to be chosen as punishment. Then Vietnam uses a firing squad method as an execution, it was replaced by lethal injection after the Law on Execution of Criminal Judgments, article 59 (1) was passed by the National Assembly in November 2011. In November 2015 the Vietnam Penal Code is being amended that makes the death penalty is abolished for seven crimes such as; surrendering to the enemy, opposing order, destruction of projects of national security importance, robbery, drug possession, drug appropriation, and the production and trade of fake food.

Myanmar has several amendments in regulating the capital punishment. Myanmar has amended their law so the death penalty includes drug trafficking in 1993, and then in 2005 government amended again so the death penalty also applies to human trafficking. The capital punishment is regulated and explained under Articles 353 and 373 of the 2008 Constitution, that state an individual cannot be deprived of life except in execution of a law existing at the time of the offense. However, this right is weakened by Myanmar Constitution, article 382, which allows legislation to strip away fundamental rights under certain circumstance. In Myanmar, the terrorism related crime is not stated punishable by death, because the authority government considers and prosecutes terrorism related crime as a treason, which based on their regulation treason can be punished by death penalty. From the execution report, both Laos and Brunei do not longer conduct any capital punishment in these year, even though they still have it on their law. The last execution that happened in Laos was in 1989, while Brunei was in 1957.

Both Philippines and Cambodia already abolished capital punishment from their law. However, Philippines has many times amendments of capital punishment law on their history, back in 1946 until 1986 Philippines still conducting capital punishment by electric chair, this were for crime of murder, rape, and treason. In Philippines 1987 Constitution is prohibited the death penalty but allowed the Congress to reinstate it “hereinafter: for “heinous crimes”, which makes the capital punishment still being executed as long as defined becoming heinous crimes. Up until 2006 any capital punishment is being suspended by Republic Act No 9346 that is signed by the President of Philippines at that time, Gloria Macapagal-Arroyo. In the end, the president pardoned many prisoners during her presidency period and made Philippines no longer has capital punishment on their law.

There are many methods to execute the capital punishment that exist in Southeast Asian countries, such as; Hanging, Shooting, Lethal Injection, and even Electric Chair. All methods are exist because of different history and background of each country, learned by other country and influence law on their country.

Hanging is the most common method that being use in capital punishment the countries that are using this method are, Malaysia, Singapore, Myanmar, Brunei. The other method is lethal injection which used in Thailand, Vietnam. While Indonesia and Laos have the same method of executing the capital punishment, they are using shooting method. Before the abolishment of capital punishment, Philippines used electric chair because the influence from US colonial period, then amended to using firing squad in 1987, and amended again in 1993 to using lethal injection. While on the other side, as far as I search there is no record about Cambodia execution method; since they have already abolished the capital punishment in 1989.



Crouch, Melissa and Tim Lindsey. 2014. Law, Society and Transition in Myanmar. Oxford, United Kingdom: Hart Publishing

Harding, Andrew and Peter Leyland. 2011. The Constitutional System of Thailand: A Contextual Analysis. Oxford and Portland, Oregon: Hart Publishing

Questioning the Foreign Ship Sinking Policy

The news of sinking foreign ships that steal fishes in Indonesian territorial waters lately has become more widespread.  Almost all mass media preach about this government action.  This action is not new in Indonesia, it’s just that the news has just been noticed by the media, and it is considered unusual therefore it gets attention from the public.

In this era of globalization where relations between countries become something important, especially Indonesia’s relationship with countries in ASEAN the strict action of a country to foreigners will of course affect the good relations of both countries.  If we look through the case of the sinking of this foreign ships, then the Indonesian government’s actions that bombing the foreign ships without negotiate with its home country can be inferred to affect the good relations of both countries.


Fishery Law in Indonesia

However, before we criticized Indonesian government strict action, it is better if we look at this problem from the angle of law, where Indonesia is a state law and all of activities done in Indonesia must be protected and based on the applicable law.

Under the law No. 45 year 2009 about Fishery Article 69 clause (4) stated “In doing functions as mentioned in clause (1) investigating officer and/or fishery controller can do special action like burning and/or sinking fishery ships with foreign flag based on sufficient initial evidence. This article gives Indonesian fishery investigator and controller to have rights to do special action such as sinking the foreign ships with sufficient initial evidence, accordance the explanation of this article; what it means by “sufficient initial evidence” is the presumptive evidence of the fishery crime by the fishery ships with foreign flags, the example of criminal offense in fish stealing is catches or transports the fishes when entering the territory of the Indonesia fishery management.

After looking at the article the process of sinking the ship of course not a careless action by bombing it but with the process of checking the letters of the ships and other evidentiary as mentioned in the article that it needs sufficient initial evidence.

Indonesia under the law No. 17 year 1985 has ratify UNCLOS that is United Nations Convention on the Law of the Sea, which is interpreted as Konvensi Perserikatan Bangsa-Bangsa Tentang Hukum Laut (in Indonesian Language) which is about international law regarding marine. This makes Article 102 (3) in the Fishery Law have to follow the rule decided in Article 102 (3) which provides that the punishment for a fishery crime committed in the Exclusive Economic Zone shall not constitute confinement, unless the agreement of the two sides of the country.

This makes Article 69 clause 4 which contains a criminal threat of a maximum of 6 years to a fishery crime by a foreign country becomes invalid if there is no agreement from both countries, the penalty they get is only a fine of at most 20 billion rupiah and deported to the country of origin.

At least from the legal aspects the decisive action of ships submersion by means of bombing is not contradictory to UNCLOS because the subject protected by Article 73 (3) is the human being not the ships, in which the human being can be fined or deported without being imprisoned while the ships can be seized or even drowned by the Indonesian Government, of course with an accordance processes with applicable legal procedures in that country.

But it is different when viewed in the view of international relations. Indonesia’s relations with the related country can potentially deteriorate due to this problem. This is because often the sovereign state wants its citizens to be tried according to the laws of their country, the law that is deemed to protect the rights of its citizens. Not to mention the pressure of interest from several parties from the country.


Mafia Ship Auction Practices

Actually there are several choices of actions that can be taken by the government on such a case, for example by the seizure or grant of the ship without the need for ships sinking this is clearly mentioned in the article of fisheries law. However, the existence of embezzlement and mafia fishery practices that can provide benefits to fish thieves make the Indonesian government was forced to do the sinking of this ship to provide a deterrent effect.

According to the Director General of Supervision and Control of Marine and Fishery Resources of the Ministry of Marine Affairs and Fisheries of Indonesia Aji Sularso, the existence of mafia fishery practices in the case of foreign ship auction is by way of cooperation between foreign ships owners with fishery mafia in Indonesia, with ship price estimate of 1, 5 billion Rupiah, then the Indonesian fishery mafia will get the money up to 50% of the price of the ships or about 750 million rupiah.

At the auction of the ship the domestic companies are arranged in one group so no one bid above Rp.150 million; then Rp.150 million is still entered into the state treasury. The next division is Rp.600 million will be distributed to various parties, especially the Prosecution as public prosecutor as well as the auction organizer. There have been many cases that recorded the seized ships prices only around 150 million Rupiah but the money entered into the state treasury only about 40 million Rupiah. Moreover the ship can return to its owner and operate stealing fish in Indonesia again.

This practices makes the Indonesian government prefers to sink the ship rather than auction it off. The fact showed that the auction with practices of mafia fishery can only be detrimental to the State of Indonesia because the cost of catching operations, the cost of ships adhoc, ship docking and feeding crew during the litigation is not commensurate with the results of auctions that go into the state treasury.

As a result of this sinking of foreign ships many foreign ships in Indonesian waters territory are almost empty based on data from satellite monitoring. It can be said that this way is proved effective in making illegal foreign ships no longer operate in the territorial sea of Indonesia.

The foreign fishing ships in Indonesia have made huge losses for Indonesia and even estimated losses of up to Rp.300 trillion per year. The magnitude of the state loss is supported by the estimation of Indonesian Marine and Fishery Minister Susi Pudjiastuti, she said that the catch of a foreign ship in Indonesian waters territory could reach 300 tons to 600 tons per year, the illegal fishing catchers not only catch cobs but also shrimp, pelagic fish, red snapper; which if calculated-calculated Indonesia loses US $ 15 billion to US $ 25 billion per year.

From the things mentioned above, it can be concluded that the act of declaring the sinking of a foreign ship which steals fishes is not a wrongful act by law. In terms of law there is no article that regulates or prohibits the drowning of fishing thief ships, although the existence of other penalty option that is grant or auction of the ships but the existence of mafia fishery practices in Indonesia make the punishment is diverted and even harm the state. While this may allow for conflict or relations between nations to be bad, a good State should be a state against all forms of crime committed by its citizens in other countries and respect any policies and laws prevailing in other countries. The middle ground of this problem is the holding of inter-state agreements on foreclosures, auctions, or sinking of foreign ships, this of course aims to maintain good relations between countries and also to suppress illegal acts.



This article was written by Clay Vulcano Dharanindra, research fellow at the Center for Southeast Asian Social Studies (CESASS).

Indonesia and Emergency Child Marriage

Think of yourself as a teenager, enthusiastic about the world. You have ambitious goals, which will help you achieve your dreams. You want to be a teacher, a lawyer, a doctor, or maybe an engineer. You see your body as a freshly bloomed flower, and enjoy immersing yourself in a romantic love story. However, life sometimes overturns all expectations. You are asked (or rather “forced”) to marry in order to improve the fate of the family. You are forced to marry in order to avoid sin. You are forced to marry by custom. You live your life as a mother, even though you’re still a child. You marry to obey your parents, and now you must obey a husband you do not recognize. Your dreams of becoming a lawyer, teacher, or doctor instantly waver.



The Judicial Review Judgment of the Constitutional Court No. 30-74 / PUU-XII / 2014, which fails to raise the marriage age in Indonesia, is alarming in the middle of the world’s call to end child marriage. Data released by the Council of Foreign Relations, stated that Indonesia is one of the ten countries in the world with the highest number of children. In the ASEAN region, Indonesia is second only to Cambodia. In Indonesia, West Java accounts for the highest number of children. Of course this is increasingly intertwined with the high instance of human traffiking within this region. The current state of the global economy, will lead to poverty that drives people to do anything to survive. In the ASEAN region, marriage has been used to camouflage issues child prostitution and trafficking (Plambech, 2010; Lainez, 2010).

The law of marriage in Indonesia is still discriminatory, and is likley a contributing factor to the high instances of violence against women. This particular law will no doubt lead to the inhibition of girls’ access to their basic rights, such as education and health. The Marriage Law No. 1 of 1974, article 7, paragraph 1, states that marriage is only permitted when the man reaches the age of 19 years, and when women have reached the age of 16 years. Refusal of judicial review of the marriage age limit indicates that the state is neglecting to protect girls. The Decision of the Constitutional Court (MK), is also contradictory to Law No.35 of 2014 on Child Protection, especially article 26 paragraph 1 (c), which states that parents are responsible for preventing marriage of their children if they are underage. Under Article 1 of the Child Protection Act, this includes all children under the age of 18.

Issues relating to child marriage in Indonesia can not be separated from underlying economic, social, and cultural issues. In addition to poverty and low education, cultural situations also affect the rate of child brides. In West Nusa Tenggara, child marriage occurs because of the mechanism of merariq culture in the Sasak community. The Merariq system indicates that when a woman goes to the house with a man at night, then it is a sign that they are getting married. Therefore, the education of customary law of merariq culture must be addressed so that child marriage can be prevented (Fajriyah, 2016: 72-73).

Child marriage in Indonesia is worrying. Data in 2012 shows that about 11.13% of girls marry between the age of 10-15 years, and about 32.10% marry between the age of 16-18 years. The practice of child marriage must be stopped.  In addition to limiting the potential of children, it can also result in high maternal mortality rates in Indonesia. Statistics shows that mortality occurs in 359 / 100,000 live births, and 48/1000 births where mothers are between 15-19 years (SDKI, 2012 in Candraningrum, Journal of Women Vol .88, February 2016).

The causes of child marriage can not be separated from three things: (1) poverty and poor access to education; (2) the rise of religious fundamentalism which renders the discussion of sexuality and adultery taboo; and (3) poor access to HKRS (sexual health rights of reproduction) (Grijns, et al, 2016). Based on these studies, it is recommended to reduce child marriage rates by incorporating comprehensive sexual education into the school curriculum, so that children and adolescents know their sexual reproductive health rights.

Another avenue to prevent child marriage is to create policy through the Regional Regulation (Perda). This has taken place in the Gunung Kidul district, Yogyakarta, through the Regulation of the Regent (Perbub) Gunung Kidul No.36 of 2015. A similar process has occurred in the West Nusa Tenggara Province, through the Governor’s Circular Letter No. 150/1138 / Kum on Marriage Maturity (PUP), which recommends marriage age for men and women to be at least 21 years of age (, 2015). Various policies made by local governments as an effort to eradicate child marriage, is promosing at a time when the central government is ignorant of this issue. In addition, the involvement of the community is also necessary, as has been the case in Gunung Kidul, Yogyakarta. Policymakers, in conjunction with citizens, have together promoted a MoU-based integration network (collective agreement) to eliminate child marriage (Sundari, 2016). During child marriages, related parties such as the Head of RT, RW, Village Head, KUA officers, puskesmas, farming groups, police and NGOs visit and educate families, so that marriage can be prevented. This movement has been succesful in reducing child marriage from 9 cases in 2012, down to 8 cases in 2013, and to only 5 cases in 2014. (Sundari, 2010: 45-46).

However, the push to eliminate child marriage is not only necessary in terms of prevention, but also must be approached through providing post-marriage assistance. Childhood should be a happy time, involving playing, learning, and developing self potential. Counseling young married mothers should include education on sexual reproductive health, parenting,  teaching, and strengthening capacity to eliminate possible trauma, including legal counseling when there is a tendency to divorce, as well as training to encourage their potential in the area of a ​​creative endeavor. Such assistance should involve various social groups such as the government, community, clerical groups, and especially families.

Child marriage is a global problem experienced by many countries in the world. ASEAN itself has also committed to eliminating violence against children, including child marriages through the ASEAN Regional Plan of Action on the Elimination of Violence against Children (ASEAN RPA on EVAC). The ASEAN commitments include prevention, protection and raising awareness to prevent violence against children physically, sexually or psychologically. The aspirations of ASEAN should encourage the Indonesian government to respond to the emergency of child marriage that is currently occuring.



This article was written by Meike Lusye Karolus, a researcher at the Center for Southeast Asian Social Studies (CESASS).

School of Peace: Understanding ASEAN through Interfaith Dialogue

It has become a truth that the ASEAN community consists of various cultures, ethnicities and beliefs. Understanding the ASEAN community is clearly inseparable from the differences that exist. In this case, trust that grows and develops becomes part of the community inherent in their lives.

ASEAN became a gathering area and the development of a number of beliefs through trade channels and through colonization in the past. But basically, the ASEAN community itself has existed and has developed a number of beliefs since hundreds or thousands of years before, even its existence continues to be maintained as in indigenous peoples who have faith in nature.

In the past, a School of Peace (SOP) program carried out by the Interfaith Coordinator Forum (ICF) involved 15 participants from the Asian region, dominated by participants from the Southeast Asian region. The activity which was held for three months at Seam Reap, Cambodia has a focus on justice and peace by looking at the differences in beliefs held by the community, especially those in the ASEAN region. The author himself became one of the participants in the program. This activity itself is an interesting program in seeing the diversity of the ASEAN community.

Talking about religion and belief can lead to a number of differences and similarities. Religion and belief itself is an identity of the community or personal self. As an identity, sometimes religion and trust can cause conflict. Then the conflict led to the understanding that religion was the cause of the conflict, which then led to cynicism between religious groups and existing beliefs. At this stage, then the conflict will expand and involve many masses by arguing to defend their religion and beliefs. However, the religion and beliefs that exist basically never teach hatred and hostility. Religion and belief are born from the value of harmonization that is pure in seeing the relationship between humans and humans, humans and nature, and humans with God.


Interfaith Dialogue

The process of deep understanding between religions may not be enough to only be done in seminar rooms or meetings. Similarly, efforts to create a harmonious life are not only enough with tolerance, but the most important aspect is attachment. The extent to which everyone or a group feels part of another group. Like what has been kept up to now, “everyone’s brother”. Dialogue should return to its basic essence of bringing together people in the private sphere, who are more familial in nature and are more concerned with not arguing.

So far, it is possible that interfaith conflicts are trapped in a false understanding or it can be said that understanding is completely wrong. This arises because of a lack of deep and complete understanding of different religions and beliefs. To make matters worse, the process of understanding the understanding in the form of dialogue activities carried out in the seminar room which took two and three hours and has been claimed as a process that is considered sufficient in understanding the differences between religions and beliefs. If it returns to the notion of dialogue, it is a listening process that cannot be resolved in a short time. There is a long process that must be passed to then draw conclusions. In dialogue, everyone must come with a sincere heart and mind. Everyone involved is not looking for reproach, but rather understanding why there are differences. From there then gives birth to a correct understanding. Here, what is equally important is that each person must be able to cultivate a sense of empathy in him, thus giving birth to a feeling of mutual respect based on love.


Engagement: Tolerance is not enough

Indonesia has long argued that in developing a harmonious and peaceful society, we must live in tolerance. Between one community and another community respect and eliminate existing barriers. It seems that tolerance has become a part of people’s lives. But the question that arises is whether tolerance is enough? To what extent does tolerance last if it does not encourage everyone to be bound to one another in a more harmonious life?

By looking at the various conflicts that have arisen in the ASEAN region, including in Indonesia, in the name of religion it seems necessary to emphasize that the conflict is not based on religion. Conflict community groups do not necessarily represent a particular religion. This needs to be clarified, including in the news by the mass media which easily gives labels to certain religious groups in the case of conflicts that occur.

On one occasion, the author visited Cilacap Regency. The district city located in Central Java has diversity in religion and belief. Not only are religions recognized in the law but there are also beliefs of Javanese people such as Javanese Javanese. Then what is interesting is that the people who live in these differences are bound together in harmonious relationships. At one meeting, differences were discussed casually in a family atmosphere.

Indonesia, which is the most Muslim country in the world, at least some people feel angry with Rohingya Muslim brothers in Mianmar. News reports show the unfair treatment of the Mianmar government and even Buddhists against them. SOP then conducts many interfaith dialogues by understanding the teachings of Buddhism itself. Here then it becomes clear, that Buddhist teachings never taught to hate what hurts and nourishes. Buddhist teachings are full of compassion and love for sentient beings. Violence that occurred against Rohingya Islam is clearly a mistake. Religion is used as a background to justify the absence of violence which has never been taught at all in religion itself.

If it returns to the ASEAN community, then the ASEAN community is born as a community that has a number of different religions and beliefs. From these differences, the community is then able to foster a sense of empathy that sees harmonious attachments without any boundaries and prejudices. Thus, to understand the ASEAN community it should be started from the basic things that become their philosophy of life and on the aspects that are closest to the community itself, namely religion and belief. So, we really understand that the people who live in the Southeast Asian region have their own color which is their trademark, an identity that is different from the people in other hemispheres.