In the midst of the global refugee crisis, there has been much discussion regarding the management of refugees and asylum seekers in the developed world, however, this issue has been somewhat overlooked in Indonesia. Historically, Indonesia has been utilised as a transit country, due to its geographical location, archipelago geography, and bureaucratic functioning. This trend has continued in recent years – in 2016, approximately 13,829 refugees arrived in Indonesia. However, whilst Indonesia may still be characterised as a transit country, this reality is quickly changing, particularly as both Australia and the United States, two primary re-settlement nations, have decreased their refugee intake. In 2016, 761 refugees were resettled to the US, and 347 to Australia, almost a 50% decrease in settlement from the previous year. A drop in re-settlement rates, coupled with an inevitable increase in re-settlement waiting periods, has contributed to the transformation of Indonesia’s role as a country that merely acts as a place of transit, to a destination where refugees are now spending a significant amount of time. Given these circumstances, the need for a more robust solution in the Government’s approach and attitude towards refugees has become evident.
It should be no surprise that a strong legal protection system is critical to allow for the long-term provision of essential rights such as access to health, education and financial sovereignty. The 1951 UN Convention on the status of refugees, and the 1967 protocol, are the primary international instruments governing refugee rights, management and processing, however, Indonesia is not yet a signatory to these instruments. Although Indonesia’s most recent legal instrument pertaining to refugees, the Presidential decree 125 of 2016, does provide some clarity regarding the status of refugees and asylum seekers in Indonesia, the decree is still largely limited in its scope, and fails to provide sufficient guidance on refugee rights, an issue that is becoming increasingly vital, given the current decline in re-settlement rates amongst refugees who have reached Indonesian shores. Furthermore, as Sophie Duxson, research assistant at the Renata Kaldor Centre for International Refugee Law at UNSW, discusses, the status and influence of the decree, given that it is not a law, and thus cannot be constitutionally reviewed by an Indonesian court, is also questionable.
The 1951 UN convention relating to the Status of Refugees, and the 1967 protocol, are the primary international law instruments established to protect refugees. Despite Indonesia’s longstanding role as a transit country, Indonesia has not yet acceded to either of these protocols, and thus has no international legal obligation to take an active role in the management and processing of refugees and asylum seekers that enter its shores. However, as part of customary international law, Indonesia is bound by the principle of non-refoulement, which prevents states from returning or expelling refugees from their land. Whilst the principle of non-refoulement does not entail a right of the individual to be granted asylum in a particular state, it does require states to ‘adopt a course that does not result in their removal… to a place where their lives or freedoms would be in danger on account of their race, religion, nationality, membership of a particular social group or political opinion.’ Historically, Indonesia has complied with this principle.
Indonesian has also ratified certain international human rights instruments including the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights ((CESCR), and the Convention on the Rights of the Child, all of which contain provisions that should, in theory, apply to refugees. However, evidence has shown that the aforementioned conventions have not been operational, as Indonesia lacks the necessary domestic framework to implement monitoring and dispute resolution mechanisms to facilitate compliance.
The presidential decree 125 of 2016, and the 2010 Regulation of the Indonesian Director-General of Immigration, are arguably the two most relevant legal instruments addressing the current presence of refugees and asylum seekers in Indonesia. In January 2017, President Joko Widodo signed a presidential decree that would clear up some of the ambiguity regarding the management of refugees in Indonesia. Perhaps the most important aspect of the decree was the adoption of a formal definition of ‘refugee’, based on the definition contained in the 1951 Refugee Convention. This is an important step forward for the status of refugees in Indonesia, as law previously classified refugees as ‘illegal immigrants’. As Febi Uneski, Chair of SUAKA, an Indonesian Refugee advocacy organisation explains, the new decree increases the understanding between governments and officials regarding the status of refugees in Indonesia, despite their ‘mode of their arrival’. In addition, the decree affirms the Indonesian Government’s responsibility in regards to the management of refugees in the realm of search and rescue operations. It also recognises the ability of government bodies to provide alternative detention facilities for refugees with special needs and vulnerabilities.
However, whilst the decree has arguably improved the status of refugees in Indonesia, it also re-affirms the transitional nature of Indonesia’s refugee program through failing to acknowledge any intention to establish a legal framework for the processing and management of refugees. In addition, the failure to discuss integration has become a particularly pertinent issue given the increased waiting periods for resettlement. Refugees and Asylum seekers in Indonesia are unable to obtain a legal status permit known as the Kartu Tanda Penduduk, and as a result, they are unable to work. Uncertainty in their legal status also makes access to health and educational services extremely difficult. The decree also fails to address how and if state finances will be utilised to promote refugee protection- meaning that any funding is likely to be sporadic and poorly distributed. Overall, the decree fails to implement an overarching legal procedural mechanism relating to the processing of refugees and asylum seekers, thus, legal uncertainty still remains.
In the absence of any substantial procedural laws regarding the processing of refuges and asylum seekers in Indonesia, the 2010 Regulation of the Indonesian Director-General of Immigration has proved crucial. The regulation grants the right of individuals who meet certain requirements to register with the UNHCR, and stay in the country on a temporary basis, while their applications for re-settlement are processed. Essentially, this bears sole responsibility on the UNHCR to deal with the management of refugees in–country. As part of the management process, the UNHCR conducts refugee status determination procedures in Indonesia on behalf of the Indonesian Government. Upon being granted official ‘refugee’ status, a small number of rights are afforded to the individual, including protection against arrest by local law enforcement officers, provided they comply with a number of conditions. This mandate also allows refugees to receive access to services offered by the UNHCR partner organisations, including the International Organisation of Migration (IOM), and the Jesuit Refuge Service (JRS). However, a referral from an immigration official is usually required in order to access these services, and as a result, many people are unable to gain access to such services.
A number of academics have argued that accession to the 1951 Refugee protocol is necessary to ensure the protection of refugees and asylum seekers in Indonesia. However, practically, this may not be the most realistic reform. As Dita Liliansa argues, there are a number of both external and internal factors, which would be particularly burdensome for Indonesia if they were to accede to the convention and the protocol. Firstly, whilst the UNHCR is currently responsible for the management of refugees in Indonesia, accession to the protocol would transfer this responsibility to the Indonesian government. This would place a significant financial burden on the Indonesian government, who already have limited resources to deal with domestic issues. Guarantees in relation to the provision of health and education services would also be difficult to achieve, given that many Indonesian citizens are currently unable to access these services. Therefore, it is clear that Indonesia must enhance its capacity to address the aforementioned issues, before accepting legal obligations for the provisions of such services.
Whilst the implementation of the 2016 Presidential Decree has been a significant step forward in developing a more positive attitude towards refugees in Indonesia, there is still much progress to be made to ensure adequate legal protection of refugees and asylum seekers. Although Governmental capacity to ensure compliance with international laws may not currently be possible, it is pivotal for the Indonesian Government to establish a strong domestic legal framework to fill the current gaps. In the long-term, it is not possible for the UNHCR to provide adequate protection for refugees in Indonesia – their services remain restricted to their organisational mandate, which does not cover all individuals whom require international protection. Therefore, it is critical that Indonesian establishes its own legal framework for the processing of refugees and asylum seekers on its shores, so it is able to provide adequate protection to individuals who are entitled to it.
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This article was written by Miranda Traeger, an undergraduate student of Bachelor of Law and Arts at the University of Adelaide, while working as an intern at Center for Southeast Asian Social Studies (CESASS).