Submission on the Third and Fourth Periodic Report of Indonesia to the Committee on the Rights of the Child (Pre-Session)

 Dear Committee Members,

We write in advance of your upcoming pre-sessional review of Indonesia to highlight areas of concern regarding the Indonesian government’s compliance with the Convention on the Rights of the Child. Informed by our recent investigations, including first-hand research with children, this submission contains up-to-date information that Indonesia’s treatment of migrant and asylum-seeking children, including unaccompanied children, is inconsistent with, among others, Articles 2, 3, 18(2), 20, 22, and 37 of the Convention. This submission also asserts that Indonesia’s approach to child domestic workers fails to comply with Articles 31 and 32. Furthermore, Indonesia’s treatment of children of religious minorities violates Articles 2, 14, 28, and 30. This submission highlights concrete steps that the Indonesian government should be asked to take to address these serious problems in the realization of children’s rights.

Human Rights Watch has closely monitored the human rights situation in Indonesia for decades.[1] In the course of our research during the reporting period, we have interviewed hundreds of adults and children, as well as government and civil society representatives.  Our findings in this submission draw on investigations in Indonesia by Human Rights Watch staff in 2005, 2008, 2012, and 2013, as well as the constant presence of a researcher in Indonesia since 2008.

Migrant, Asylum-Seeking, and Refugee Children

(Articles 2, 3, 18(2), 20(1), 22, 27, 28, 29(1), 37)

 Indonesia has seen a remarkable increase in the numbers of people seeking asylum in the past five years: for instance, there were 385 new arrivals in all of 2008, yet 753 in July 2012 alone.^[2]  At the end of February 2013, there were 9,226 refugees and asylum seekers in the UN refugee agency (UNHCR)’s active caseload in Indonesia, of whom 1,938, or 21 percent, were recognized refugees.^[3]

 Thousands of children risk the dangerous journey to Indonesia each year—some with their families and others alone.^[4] During the year 2012, 1,178 unaccompanied minors were registered in Indonesia by UNHCR, the highest number Indonesia has ever seen.[5] As of February 2013, most refugee and asylum-seeking children in Indonesia came from Afghanistan, Burma, Sri Lanka, and Iran.^[6]

 Almost all of the migrant children we interviewed—both those who traveled with families and those who traveled alone—had traveled to Indonesia using smugglers in risky and expensive journeys of months and even years. Many refugees and asylum seekers see Indonesia as a way station along a difficult and dangerous journey to Australia. Yet most stay in limbo in Indonesia for months or years, without the right to work or the ability to move around the country, and their children do not go to school.

 Indonesia has faulty or non-existent mechanisms for protecting asylum seekers and child migrants. The Directorate General for Immigration oversees immigration detention facilities and should take responsibility for migrants outside of detention but does not fulfill these duties. Likewise, the Ministry for Social Welfare is responsible for child protection, but has not been formally tasked to protect unaccompanied or accompanied migrant children.^[7] Because Indonesia has not ratified the 1951 Refugee Convention or its Protocol and does not have adequate domestic asylum laws, the protection of asylum seekers and refugees in Indonesia has fallen to UNHCR and non-governmental agencies.

 Lack of Protection for Unaccompanied Migrant Children

 Indonesia, for the most part, fails to meet the obligations described in General Comment No. 6 to assist and protect unaccompanied migrant children. It leaves these children without guardianship, so no-one takes responsibility for assisting these children in accessing basic services or making decisions about future migration. As discussed below, every year hundreds are detained with unrelated adults, and many are subject to physical abuse. Of those not detained, only a handful of children have shelter, and others are left to fend for themselves. None is given free legal representation, making it hard for them to challenge detention or understand asylum proceedings and present their case.

 Indonesia fails to provide unaccompanied migrant children in its territory with guardianship. As far as Human Rights Watch is aware, no Indonesian government agency has been given the legal responsibility for providing guardianship to unaccompanied migrant children. Without guardianship resolved, non-profit agencies are reluctant to provide shelter.  At the time of our investigation in September 2012, just one organization, Church World Service (CWS), provided shelter for approximately 90 unaccompanied minors, and described the scope of their mandate as “a care and maintenance program,” not a formal assignation of guardianship.^[8]  As of March 2013, IOM had negotiated with the North Sumatra Provincial Department of Social Affairs (DINSOS) to house 44 unaccompanied minors with refugee status in DINSOS shelters designed for Indonesian children. IOM hopes that this model might be replicated in other provinces, including Yogyakarta and Makassar.^[9] Nonetheless, with more than 1,000 unaccompanied minors arriving in Indonesia annually, and these shelters covering fewer than 140 places, these arrangements are far from sufficient.

 The lack of guardianship and shelter for unaccompanied minors extend their periods of detention. According to IOM and CWS, unaccompanied minors in detention need to wait for there to be room in a shelter before Indonesia will release them (and there are limited places in shelters in part because the legality of guardianship has not been resolved).^[10] At the time of our investigation in September 2012, 150 children remained in detention awaiting space to open in a shelter;^[11]as of March 2013, there were 121 unaccompanied minors seeking asylum or with refugee status in detention.^[12]

 Some 700 children per year are lucky enough not to be detained, but are left to fend for themselves without assistance with shelter or other basic necessities. Many fear arrest or re-arrest. Azim M., an unaccompanied migrant boy from Afghanistan who had arrived in Indonesia two months before his interview with Human Rights Watch, was effectively confined to a small house in an area outside Jakarta that is popular with migrants.  “I stay inside the house all day,” he said. “I’m afraid [immigration officials] will find me.”^[13]

 Unaccompanied migrant children in Indonesia receive no legal representation, either in requesting asylum or in challenging detention.^[14] Article 37(d) of the CRC mandates that children deprived of their liberty should have prompt access to legal assistance, and the Committee has emphasized that this specifically applies to unaccompanied migrant children in migration detention. None of the unaccompanied migrant children we interviewed said they had legal assistance. Ahmad Z. was 17 years old when he was detained at Pekanbaru Immigration Detention Center. He said that “some people were released by an Indonesian lawyer, but I didn’t have a lawyer.” He remained in detention for almost eight months before UNHCR helped secure his release.^[15]

 Questions for the Government of Indonesia:

• How many unaccompanied migrant children enter the country each year? How many are detained, and for what period? 
• What steps have been taken to resolve the lack of guardianship for unaccompanied migrant children?

 Recommendations to the Government of Indonesia:

• Designate an agency to be responsible for the guardianship of unaccompanied migrant children (for example, the Ministry of Social Affairs).
• Instruct that ministry to develop comprehensive policies to meet the protection needs of unaccompanied migrant children in line with General Comment No. 6, including by:
• Establishing a meaningful guardianship system through which each unaccompanied migrant child in the country is assigned, as soon as possible after arrival in the country, a guardian with the authority to be present in all decision-making processes.
• Increasing the number of places available in care facilities (such as shelters and foster care settings) to the level required to ensure placement for all unaccompanied children in the country.
• In cooperation with the Directorate General of Immigration, setting up a registration and tracking system for unaccompanied children, to account for every child.
• Ensuring that unaccompanied migrant children have access to free legal assistance in asylum proceedings and other legal and administrative proceedings.

 Abuses of Migrant Children in Detention

 Migrant children—including children in families, unaccompanied children, and very young children—are arbitrarily detained in violent and inadequate detention facilities throughout Indonesia. Indonesian law permits immigration detention for up to 10 years without judicial review. Many migrants, among them very young children, remain in detention for years, facing an array of abuses including: physical violence from immigration officials, bribery and confiscation of property, and lack of basic necessities or access to education. The impact of prolonged, indefinite immigration detention is particularly severe for children, many of whom experience post-traumatic stress disorder or depression.

 Indonesia operates—through the Directorate General of Immigration under the Ministry of Law and Human Rights—approximately 11 to 13 formal immigration detention centers (IDCs), though not all are always occupied and sometimes officials open facilities temporarily.^[16]  Migrants interviewed by Human Rights Watch, including children, reported being held in a number of alternate facilities in addition to the IDCs, such as regional immigration offices and hotels or other buildings guarded by police.

 Immigration officials under the Directorate General of Immigration in the Ministry of Law and Human Rights, frequently beat migrants and asylum seekers in Indonesian detention facilities, according to our interviews. Interviewees were consistent in their descriptions of the types of violence in detention facilities, describing guards kicking, slapping, and punching detainees, beating detainees with sticks and other implements, burning detainees with cigarettes, and using electroshock weapons. Some migrants reported sustaining lasting injuries. Multiple immigration officials might attack one migrant or a group of migrants in a single incident.

 Unaccompanied migrant children were among those who reported brutality from immigration officials. Arif B. was 15 years old when he traveled to Indonesia without a parent or guardian. He said he was detained with unrelated adults at Balikpapan IDC for 1 month and 20 days in 2011, but tried to escape within the first 48 hours:

 Those who were trying to escape were beaten…. Three people got away, four were caught. I was caught. That day I was beaten up very roughly…. There were eight or nine people beating me, most were guards and there was one person from the outside. They hurt my shoulder, my ear, my back. I was beaten with one of the other people who was caught.^[17]

 Faizullah A., an unaccompanied migrant child from Afghanistan, was 17 years old when he was detained at Pontianak IDC in 2010: “The immigration officer hit me on the face. I had gone to ask for water [to be turned on], I was shouting. He hit me two or three times. That stopped me. I was quiet then. I was crying for three or four hours after this.”^[18]

 According to our interviews, children as young as four years old have been witness to attacks. For instance, Safia and Nasir A., a couple from Afghanistan, were detained at Pekanbaru IDC for one year with their three daughters who were then 10, 6, and 4 years old.^[19] They related an incident in late 2010 when immigration guards forced their family and two other families to watch as the guards beat two adult migrants. Safia said, “Ten people escaped. Two were caught by the guards, and they brought them back. They beat them like animals. The blood came from their nose, their face, all parts of their bodies. They had called all the families to watch…. My children were very scared when they saw this happen in front of them.”^[20]

 Despite the death following a severe beating of an Afghan migrant in Pontianak IDC in February 2012, and some limited accountability that has followed, the government has not launched a systematic review of physical abuse in the immigration detention system.

 Conditions for children detained in Indonesian immigration detention facilities violate multiple international standards. Unaccompanied migrant children are detained with unrelated adults, and many have no contact with their families. No child has meaningful access to education, and recreation and medical care are limited. The prolonged, indefinite detention damages both adult and child mental health.

 Physical conditions in Indonesian detention facilities are often poor. Immigration detention centers are, at times, filled beyond capacity. Many migrants and asylum seekers reported a lack of basic sanitation facilities, with only short periods of running water; lack of bedding; and flooding in sleeping areas. For example, we observed flooded, overcrowded sleeping areas in Pontianak IDC during our visit in September 2012. Detainees at many facilities said their food was dirty, with insufficient nutrition available for young children.

 Migrants, including children, reported that it was possible to pay immigration officials for access to mobile phones, and in some cases, release from detention. Arif B., an unaccompanied Afghan boy, was 15 years old when he was arrested: “From Kalideres, I paid [US]$400 to Immigration to get out. I went to talk to the boss of Immigration to get out, asked him how much it cost.”

 Questions for the Government of Indonesia: 

• How many migrant children are kept in detention? For what period of time? How many are unaccompanied children? 
• What steps have been taken to institute accountability measures for violence in detention facilities, including the violent episode that led to the death of an asylum seeker at Pontianak IDC in February 2012?

 Recommendations to the Government of Indonesia:

• End arbitrary detention of migrants and asylum seekers. Provide all migrants detained with access to mechanisms to challenge the legality of their detention.
• Immediately prohibit the detention of unaccompanied migrant children and provide them with safe accommodations outside detention facilities. In the interim period where unaccompanied children continue to be detained, refrain from housing children with unrelated adults.
• Consider the detention of children in families as an absolute last resort, after exploring all alternatives to detention, such as registration and community monitoring for them and for their family members, while always prioritizing the child’s best interests and right to family unity.
• Strictly enforce the prohibition of abuse of migrants in detention facilities, and implement a thorough, nationwide review of violence, abuse, and corruption in detention facilities. Ensure that children are never subject to or witness to violence in detention facilities.
• Immediately bring detention conditions in line with international minimum standards, including standards relating to overcrowding, water and sanitation, nutrition, and access to recreation, among others.
• Immediately cease detaining unaccompanied children with unrelated adults.
• Provide appropriate, age-specific education to all children in detention facilities of compulsory primary education age, and allow children of secondary education age to continue their education if they desire.

 Domestic Workers

 (Articles 31 and 32)

 Hundreds of thousands of girls in Indonesia, some as young as 11, are employed as domestic workers in other people’s households, performing tasks such as cooking, cleaning, laundry, child care, and sometimes working at their employers’ businesses. These girls live and work in the shadows of society: hidden behind the locked doors of their employers’ homes, isolated from their family and peers, and with little regulatory oversight by the government.

 The Indonesian government is failing to protect these child domestic workers from abuse and exploitation. Indeed, many Indonesian government officials deny that these children are even really workers.

 In interviews conducted in 2005 and 2008, girls described to Human Rights Watch being lured with false promises of higher wages in cities without full details about the tasks they would perform, the hours they would be expected to work, or their inability to attend school. Most girls said they typically worked 14 to 18 hours a day seven days a week, with no day off. Many told us that their employers forbade them from leaving the house where they worked, isolating them from the outside world and thus placing them at higher risk of abuse with fewer options for finding help.

 Human Rights Watch also documented how many employers withheld paying any salary until the child returned home—and that many employers failed to pay the children at all or pay less than what they promised. The tactic of withholding the salary deters child domestic workers living far from their homes from leaving exploitative situations. In the worst cases, we found that girls were physically, psychologically, and sexually abused by their employers or their employers’ family members, in addition to being exploited for their labor.

 Despite some limited progress in a few areas—for example, the creation by the police of dedicated women’s and children’s units at provincial and some district levels and the passage of an Anti-Trafficking Act by the legislature—the overall official response remains seriously lacking in substance, coherence, and urgency. The failure to implement effective protection means that national and local governments are responsible for allowing child domestic workers to be exposed to abuse and exploitation.

 A fundamental problem in officialdom is a pervasive attitude of denial. Despite the widespread nature of abuses, during our research we found that many government officials consistently denied that child domestic workers are exploited or abused. Most officials attempted to refute examples of abuse that we presented to them by claiming that there were only a handful of extreme cases that therefore did not require fundamental changes in the government approach.

 Many officials insisted that children engaged in these activities were not even workers, but merely “helpers.” Yet our research shows that child domestic workers do indeed carry out activities that are taxing, productive, and deserving of being recognized as work, not just “help.” Indeed, long days of demanding labor can be such hard work that it makes some child domestic workers physically ill.

 Other officials insisted that child domestic workers were treated “like family” by their employers. But our research demonstrates that employers frequently recruit child domestic workers through commercial recruitment and placement agencies, or rely on local vendors who draw upon their own personal connections. In this way, any kind of familial or personal connection or affiliation between the employer and the child domestic worker is lost. In the vast majority of cases the primary concern of employers is the maintenance of their households, not the personal development of their employee, so the relationship between employer and child domestic worker is commercial, not familial or personal. Moreover, the motivation of an employer who recruits a child rather than an adult is often to find someone who will work for less, who will complain less, who is easier to order around, and who has fewer social connections. These factors are also likely to make the domestic worker more vulnerable to abuse and exploitation and less able to protect herself.

 Some government officials claimed that the work conditions of domestic workers simply cannot be feasibly monitored or regulated, and therefore there was little more that the government could do. However, it is not that inspections and monitoring are impossible to implement—rather it is that the government simply chooses not to prioritize the protection of these young workers. For example, our research revealed that even basic telephone hotlines that children could use to report abuse and seek assistance are not answered or adequately staffed.

 Officials also tended to prefer to favor employers’ convenience and luxury over recognizing child domestic workers’ rights. It was suggested, for example, that child domestic workers could not be given a minimum wage like other workers because it was more important that a greater number of employers be able to afford to hire a domestic worker. Yet such arguments ignore that the government is obliged to protect all individuals from exploitation and abuse. To the extent that policymakers believe that more families should be able to access assistance with domestic work or child care, then the government should instead consider pursuing alternative policies—such as affordable community child care, making workplaces more flexible for working parents, or more generous maternity and paternity leave—that do not depend on the exploitation and under payment of child workers.

 Government officials also attempted to argue that restrictions on the maximum number of hours that someone can be required to work—as guaranteed to other workers—could not be extended to child domestic workers because domestic work was exceptional in not being a “nine-to-five” kind of job. It was similarly suggested that child domestic workers did not need days off. Indeed, it was questioned whether domestic workers would even know what to do if granted one day off a week like other formal workers. These arguments ignore the fact that regulating maximum work hours and a weekly day of rest allow governments to meet their obligation to protect workers’ rights to just and favorable work, health, and rest.

 No employee can be required to be constantly at the beck and call of his or her employer. If an employer genuinely requires around-the-clock assistance, then a second or third shift should be hired to cover. Excessive work hours and lack of rest days directly affect the health and growth of children. Children also require time to contact and connect with their own families, so as to prevent feelings of isolation and resulting psychological problems. A day off for domestic workers is also an issue of safety for employers and their families, as everyone performs better and with more care when given adequate rest.

 These misconceptions appear to endure because of a general ignorance about the conditions faced by many child domestic workers, which results from a lack of government monitoring and inquiry into the lives of child domestic workers, and from continuing discriminatory attitudes about the role of girls and women in society. Dismissive attitudes and misconceptions can be a key impediment to the enforcement of existing laws, and are a serious obstacle to the creation and implementation of better regulations and policies.

 While Indonesia has legislation intended to guarantee the rights of children, and has started initiatives to provide for their protection, these remain contradictory, incomplete and, above all, inadequately implemented.

 In particular, the Indonesian government’s ongoing failure to reform discriminatory labor laws makes child domestic workers vulnerable to abuse and exploitation. The exclusion of all domestic workers from the basic labor rights afforded to formal workers by the Manpower Act of 2003, the nation’s labor code—such as a minimum wage, overtime pay, an eight-hour workday and forty-hour workweek, weekly day of rest, vacation, and social security—has a discriminatory impact on women and girls, who constitute the vast majority of domestic workers. This exclusion in the law also serves to perpetuate the devaluing of domestic work and domestic workers.

 A domestic workers protection law has been prioritized on the legislative agenda in Indonesia since 2010, but has yet to be enacted.

 Two laws that offer the potential to deliver genuine protection to child domestic workers are the Child Protection Act of 2002 and the Domestic Violence Act of 2004. The Child Protection Act provides stiffer penalties than available under the criminal code for economic or sexual exploitation of children, and for violence against children. The Domestic Violence Act prohibits physical, psychological, and sexual violence against live-in domestic workers. The law also lowers the evidentiary standard necessary to prove the relevant crimes in court.

 While the police and prosecutors have finally begun prosecuting individuals under these two laws, there is still more to be done to enforce these and other laws intended to protect children and domestic workers from abuse. Increased awareness of these laws by the general public, labor recruiters and suppliers, prosecutors, and the courts would assist in these efforts.

 At the provincial and district level, local initiatives—such as Central Java’s provincial law that cites domestic work as an example of the worst forms of child labor—offer the potential for incremental progress.

 There are a few examples of progress being made to improve the situation facing child domestic workers. One is the 2007 Anti-Trafficking Act which, although falling short of international standards, could represent a contribution to the protection of child domestic workers—but only if the government follows through with an appropriate public awareness campaign and prosecutions of persons alleged to be responsible for trafficking.

 Another positive development is the recent move by the police to establish a dedicated women’s and children’s unit in all provincial police stations, and in many district police stations. While this move has yet to produce demonstrable widespread change, it offers promise—but, once again, only if provided with adequate resources and support.

 However, the police also need to do more to protect child domestic workers and to prosecute those who perpetrate crimes against them. The police often take a very passive approach to cases involving domestic workers, for example, by placing the burden on victims to find witnesses or supporting evidence, and not pro-actively investigating reports of possible abuse, including economic exploitation.

 Labor exploitation and violence against domestic workers is a criminal issue, and the police should investigate allegations of abuse and prosecute whenever there is credible evidence that an employer has committed a criminal offence—even if the parties have attempted to reach an informal settlement through the payment of some money by the employer to the victim.

 Both police and Manpower officials should perform their current duties to enforce existing labor regulations. Prosecutors could also do much more to respond in a gender- and child-sensitive manner to the concerns and needs of domestic workers who are victims of abuse. Prosecuting crimes committed against child domestic workers sends an important message that society will not tolerate its children being abused and exploited in the worst forms of domestic labor.

 Questions for the Government of Indonesia:

• How many children are currently engaged part-time as domestic workers? 
• How many children are currently engaged full-time as domestic workers? 
• How many children are currently employed as “live-in” domestic workers? 
• How many provisional and district-level police stations currently lack a dedicated “Women and Child Protection Unit”?

 Recommendations for the Government of Indonesia:

• Pass a Domestic Workers Law that: 

1. Guarantees that domestic workers receive the same rights as other workers, such as a written contract, a minimum wage, overtime, a weekly day of rest, an eight-hour workday, rest periods during the day, national holidays, vacation, paid sick leave, workers compensation, and social security.
2. Requires employers and labor agents who recruit and place domestic workers to verify the age of prospective domestic workers by reviewing and maintaining copies of the employees’ birth certificates or junior high school graduation certificates.
3. Prescribes the maximum number of hours children aged 15 and older, including those in the informal sector, may work to enable working children access to basic education and higher secondary education, including vocational training.
4. Stipulates minimum conditions of housing arrangements, provision of food, and protects domestic workers’ freedom of movement and communication. 

• Ratify and implement International Labour Organisation Convention No. 189, Concerning Decent Work for Domestic Workers. 

Religious Freedom

(Articles 2, 14, 28, and 30)

 Many children of religious minorities in Indonesia are discriminated against in their schools.

 In some regencies in West Java, Ahmadiyah students are bullied by their own teachers, in most cases their guru agama (religion teacher) who regularly call the Ahmadiyah blasphemers.

 In East Java, Human Rights Watch recorded attacks on two Shia schools, in Bangil and Sampang. More than 100 Shia children were also evicted from their village in December 2012. The Ministry of Religious Affairs only let them return to their village if they renounced their Shia faith and embraced Sunnism.

 We also recorded attacks against more than two dozen churches in Java and Sumatra between 2010 and 2012 in which the Christian children are also stopped from having their Sunday schools. In Singkil, southern Aceh, Christian children are required to join Islamic courses in state-owned schools.

 Parents of minority faiths, including Sunda Wiwitan and Bahai, have difficulties getting birth certificates for their newborn babies if the parents wish to have their faith printed on the babies’ certificates. Most parents give up and let civil registration officials instead type one of Indonesia’s six officially-protected religions on the birth certificates: Buddhism, Catholicism, Confusianism, Hinduism, Islam, and Protestantism.

 Questions for the Government of Indonesia:

• During the reporting period, how many births were registered with birth certificates that indicated a religion other than the six officially-protected religions?

 Recommendations for the Government of Indonesia:

• Review discriminatory regulations against religious minorities, including the 1965 blasphemy law, the 2006 house of worship construction regulation, the 2006 population administration law and the 2008 anti-Ahmadiyah decree.

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 We encourage the Committee to take these findings into account during Indonesia’s pre-sessional review. In particular, we recommend that the Committee request the Indonesian government to provide information that demonstrates how its commitments will contribute to concrete improvements in the treatment of migrant children.

 We strongly believe that sustained monitoring of the Indonesian government by the UN and other rights bodies are crucial to ensure that the rights of children are best respected.

 We hope you will find these comments useful and would welcome an opportunity to discuss them further with you. Thank you for your attention to our concerns, and with best wishes for a productive session.

 Sincerely,

Alice Farmer

Researcher

Children’s Rights Division