Criminal Liability for Foreign Nationals Involved in Human Trafficking through Online Fraud (Theories of Criminal Responsibility and Jurisdiction in International Law)

Criminal Liability for Foreign Nationals Involved in Human Trafficking through Online Fraud (Theories of Criminal Responsibility and Jurisdiction in International Law)

Dina Desvita Pramesti Putri^*1, Cahya Wulandari^*2, Irawaty^*3

^1,2,3Universitas Negeri Semarang, Indonesia

 ^*Corresponding Author

DOI: https://dx.doi.org/10.47772/IJRISS.2025.9010076

Received: 05 January 2025; Accepted: 08 January 2025; Published: 01 February 2025

ABSTRACT

Human Trafficking is a serious global crime regulated by Law No. 21 of 2007 in Indonesia. This study examines the criminal liability and sentencing of foreign nationals involved in human trafficking through online fraud, focusing on theories of criminal responsibility and jurisdiction in international law.

Using a qualitative approach and normative legal research, this study analyzes relevant legal norms and their application in cases involving foreign perpetrators. The findings highlight the challenges in enforcing laws against human trafficking and propose solutions to improve legal responses.

The research indicates that assessing criminal liability requires consideration of the perpetrators’ intent and negligence. International agreements, such as the Palermo Convention, allow for sanctions against offenders even when their actions occur outside Indonesia’s jurisdiction through universal jurisdiction.

In conclusion, effective law enforcement against human trafficking involving foreign nationals necessitates a collaborative approach and regulatory revisions to address evolving crime methods. Strengthening international cooperation is essential for Indonesia to combat human trafficking, protect victims, and ensure justice.

Keywords: Human Trafficking, Online Fraud, Criminal Liability, International Jurisdiction

INTRODUCTION

The fact that people are spending more and more time on the Internet and cyberspace (Martellozzo & Jane, 2017) is taking up larger parts of individuals’ lives necessitates higher attention to the acts and potentials of committing crimes in cyberspace and that in turn necessitates higher attention to people’s perceptions of and attitudes toward cybercrimes. There is a growing body of knowledge regarding the perception of cybercrimes and cybercrime tendencies among different groups of people. However, there seems to be a shortage of studies in the field. The links between human trafficking and corporations are considered so important that it has been suggested that ‘the trafficking industry is consistently growing due to its prevalence in the corporate world’. (Parente, 2014)

Human trafficking, particularly through online fraud, has emerged as a significant global issue that demands urgent and comprehensive attention. This heinous crime not only constitutes a grave violation of human rights but also undermines social and economic structures worldwide, creating a ripple effect that impacts communities, nations, and international relations. The rise of the internet and digital communication has facilitated new methods of trafficking, making it easier for perpetrators to exploit vulnerable individuals, often with devastating consequences. In Indonesia, the legal framework for addressing human trafficking is primarily governed by Law No. 21 of 2007, which aims to combat this crime and protect victims. However, the increasing complexity of trafficking methods, especially those involving foreign nationals, highlights the need for a more nuanced and comprehensive analysis of criminal liability and sentencing in this context.

The phenomenon of human trafficking through online fraud is particularly alarming, as it often targets marginalized and vulnerable populations, including women, children, and economically disadvantaged individuals. Traffickers exploit the anonymity and reach of the internet to lure victims with false promises of employment, education, or a better life, only to subject them to exploitation and abuse. This manipulation not only inflicts severe psychological and physical harm on the victims but also poses significant challenges for law enforcement agencies tasked with investigating and prosecuting these crimes. The digital landscape complicates traditional investigative methods, as evidence may be scattered across multiple jurisdictions and platforms, making it difficult to hold perpetrators accountable.

Several previous studies have contributed to the understanding of human trafficking and online fraud, providing valuable insights into the legal, social, and psychological dimensions of this issue. For instance, Fathur Rohman Brasal (2021) examined the legal certainty for foreign nationals involved in crimes within immigration areas, emphasizing the need for harmonization between national laws and international protocols. This highlights the importance of aligning domestic legal frameworks with global standards to effectively combat transnational crimes. Similarly, Nabiha Faza Izzul Hidayat (2022) provided a juridical review of sanctions for human trafficking, focusing on cases involving foreign perpetrators and electronic means. This research underscores the necessity of developing legal mechanisms that can address the unique challenges posed by online trafficking.

Dian Sukma Purwanegara (2020) explored the modus operandi of human trafficking through social media, shedding light on the investigative challenges faced by law enforcement. The findings of this study reveal the sophisticated tactics employed by traffickers to exploit digital platforms, further complicating efforts to combat this crime. Furthermore, Alma Evelinda Silalahi and Pudji Astuti (2022) analyzed judicial decisions related to human trafficking cases conducted via social media, highlighting the legal implications for foreign nationals. Their work emphasizes the need for a clear understanding of the legal responsibilities and liabilities of foreign perpetrators in the context of Indonesian law.

Despite these contributions, significant gaps remain in the existing literature. Most studies tend to focus on the psychological or social dimensions of human trafficking, often overlooking the legal ramifications for foreign nationals involved in such crimes. Additionally, the intersection of online fraud and human trafficking has not been thoroughly explored, particularly regarding international jurisdiction and criminal responsibility. This research aims to address these limitations by providing a comprehensive analysis of the legal frameworks applicable to foreign perpetrators and the challenges in enforcing these laws.

The urgency of this research is underscored by the rising number of human trafficking cases facilitated by online scams, which often target vulnerable populations. As the digital landscape continues to evolve, so too do the methods employed by traffickers, necessitating a proactive and

informed response from legal practitioners and policymakers. By analyzing the criminal liability of foreign nationals involved in these crimes, this study seeks to inform stakeholders about the complexities of prosecuting such cases and the need for a coordinated approach to combat human trafficking.

Furthermore, the findings of this research will contribute to the development of criminal law in Indonesia, providing recommendations for improving legal responses to human trafficking. By identifying gaps in the current legal framework and proposing solutions, this study aims to enhance the effectiveness of Indonesia’s efforts to combat human trafficking and protect its citizens from exploitation.

In summary, this research is unique in its focus on the criminal liability of foreign nationals involved in human trafficking through online fraud, combining insights from various studies to present a holistic view of the issue. The following sections will outline the objectives of this study, the methodology employed, and the anticipated contributions to the field of criminal law. By addressing the legal complexities surrounding this pressing issue, this research aspires to play a pivotal role in shaping effective legal responses and fostering international cooperation in the fight against human trafficking.

METHOD

This research employs a qualitative approach, which is particularly well-suited for exploring the complex dynamics of human trafficking through online fraud. Qualitative research emphasizes depth over breadth, allowing for a comprehensive understanding of the phenomena being studied. By focusing on the lived experiences of victims, the motivations of perpetrators, and the responses of law enforcement, this study aims to develop a nuanced sensitivity to the issues at hand. The primary goal is to provide a clear depiction of the realities related to human trafficking, particularly concerning foreign nationals who exploit digital platforms to perpetrate these crimes.

Data collection for this research involves a normative legal research design, which examines secondary sources to analyze applicable legal norms and their enforcement. This approach is essential for understanding the legal frameworks that govern human trafficking and online fraud, as well as the challenges faced by law enforcement agencies in prosecuting offenders. The study draws on a variety of secondary sources, including legislation, court decisions, and scholarly literature, to provide a comprehensive overview of the legal landscape surrounding human trafficking in Indonesia.

The focus of this study is specifically on law enforcement against foreign nationals involved in human trafficking through online fraud and the concept of sentencing for these individuals. To achieve this, primary legal materials are utilized, including the 1945 Constitution of the Republic of Indonesia, Law No. 21 of 2007 on the Eradication of Human Trafficking, and Law No. 11 of 2008 on Electronic Information and Transactions. These legal texts serve as the foundation for analyzing the existing legal framework and its effectiveness in addressing the complexities of human trafficking facilitated by digital means.

In addition to legal texts, the research incorporates relevant case law and judicial decisions that illustrate how courts have interpreted and applied these laws in practice. By examining specific cases, the study aims to highlight the practical challenges and inconsistencies that may arise in the enforcement of human trafficking laws, particularly in relation to foreign nationals. This analysis is crucial for understanding the gaps in the current legal framework and identifying areas for improvement.

Data analysis is conducted through descriptive methods, which involve categorizing and evaluating the collected information to draw meaningful conclusions about the legal frameworks and challenges in prosecuting human trafficking crimes. This analytical approach allows for a

systematic examination of the data, facilitating the identification of patterns, trends, and discrepancies within the legal landscape. By synthesizing the findings, the research aims to provide actionable insights and recommendations for policymakers, legal practitioners, and law enforcement agencies.

Furthermore, the qualitative nature of this research allows for the exploration of the broader social and cultural contexts that influence human trafficking and online fraud. By considering factors such as socio-economic conditions, technological advancements, and the role of social media, the study seeks to provide a holistic understanding of the issue. This comprehensive perspective is essential for developing effective legal responses and strategies to combat human trafficking in the digital age.

In summary, this research employs a qualitative approach that combines normative legal analysis with a focus on the realities of human trafficking through online fraud. By utilizing a range of secondary sources and employing descriptive data analysis methods, the study aims to contribute to a deeper understanding of the legal frameworks governing human trafficking and the challenges faced in prosecuting foreign nationals involved in these crimes. The findings will not only inform legal practitioners and policymakers but also serve as a foundation for future research in this critical area.

RESULT & DISCUSSION

Theories of Criminal Responsibility and Jurisdiction in International Law

The issue of jurisdiction in the context of international cybercrime, particularly human trafficking through online fraud, is both crucial and complex. Jurisdiction serves as the foundation for a state to assert its legal authority over individuals and actions that may cross national boundaries. In an increasingly interconnected world, where the internet facilitates instantaneous communication and transactions across borders, establishing jurisdiction becomes a challenging endeavor. The rapid evolution of technology has led to a significant increase in transnational crimes, necessitating a reevaluation of traditional legal frameworks that were not designed to address the unique challenges posed by cybercrime. This complexity is particularly evident in cases of human trafficking, where perpetrators often exploit digital platforms to target vulnerable individuals, making it imperative for legal systems to adapt to these new realities.

In Indonesia, the legal framework governing cybercrime is primarily encapsulated in the Law on Information and Electronic Transactions (UU ITE) No. 11 of 2008. This law represents a significant step in addressing the challenges posed by cybercrime, particularly in the context of human trafficking facilitated through online platforms. Article 37 of this law stipulates that any individual who intentionally commits prohibited acts as outlined in Articles 27 to 36, even if such acts occur outside Indonesia, can be prosecuted if they affect electronic systems within Indonesian jurisdiction. This provision underscores the application of the principle of passive nationality, which allows Indonesia to extend its legal reach beyond its borders to protect its national interests. The principle of passive nationality is particularly relevant in the context of human trafficking, where foreign nationals may exploit Indonesian citizens through online fraud, necessitating a legal framework that can effectively address these transnational crimes.

The principle of passive nationality, as articulated in Article 4 of the Indonesian Penal Code (KUHP), asserts that Indonesian criminal law applies to any individual, whether a citizen or a foreign national, who commits acts that threaten Indonesia’s legal interests outside its territory. This principle is grounded in the notion that sovereign states have the right to protect their legal interests, regardless of where the violation occurs or the nationality of the perpetrator. Consequently, Indonesian law can be applied to any individual who engages in activities that harm Indonesia’s interests, even if those activities take place abroad. This legal framework is particularly significant

in cases of human trafficking, where perpetrators often operate across borders, exploiting the vulnerabilities of victims in different jurisdictions. The ability to prosecute foreign nationals for crimes committed against Indonesian citizens is essential for ensuring justice and protecting the rights of victims.

In the context of cybercrime, particularly offenses related to information technology, the application of the principle of passive nationality is particularly relevant. Articles 27 to 36 of the UU ITE delineate various prohibited acts, including fraud, unauthorized access, and data manipulation. These provisions establish a legal basis for prosecuting individuals who engage in cybercrime that impacts Indonesian electronic systems, regardless of their location. The concept of “having legal consequences within the jurisdiction of Indonesia,” as outlined in Article 2 of the UU ITE, further expands the reach of Indonesian law to encompass actions that may originate from outside its borders but have repercussions within its jurisdiction. This is particularly significant in the context of online fraud, where the digital nature of the crime can obscure the physical location of both the perpetrator and the victim. The ability to assert jurisdiction over such cases is crucial for law enforcement agencies seeking to combat human trafficking and protect vulnerable populations.

The application of jurisdiction in cases of cybercrime necessitates a nuanced understanding of various legal theories, including the theory of locus delicti, which refers to the location where a crime is committed. In the context of cybercrime, the locus delicti can be understood through several theories that help clarify how jurisdiction can be established. The Material Act Theory posits that the locus delicti is the place where the perpetrator physically commits the act that constitutes the crime. However, this theory has limitations in the context of cybercrime, where actions may occur in a virtual space without a physical location. For instance, a perpetrator may initiate a fraudulent scheme from one country while the victim resides in another, complicating the determination of where the crime was “committed.” This ambiguity can hinder law enforcement efforts and create challenges in prosecuting offenders.

Another relevant theory is the Instrument Theory, which asserts that the locus delicti is determined by the location of the instrument used to commit the crime. In cybercrime, this could refer to the server or device utilized by the perpetrator, which may be located in a different jurisdiction. This theory highlights the importance of understanding the technological infrastructure that facilitates cybercrime, as it can influence the applicable legal framework. For example, if a trafficker uses a server located in a specific country to conduct fraudulent activities targeting Indonesian citizens, that country may also have a legitimate claim to jurisdiction over the crime.

The Consequential Theory further complicates the issue of jurisdiction by asserting that the locus delicti is the place where the prohibited consequences of the crime occur. In the case of online fraud, this could be where the victim resides or where the fraudulent act has tangible effects. For example, if a victim in Indonesia suffers financial loss due to a fraudulent scheme initiated by a foreign national, the consequences of that crime are felt within Indonesian jurisdiction, thereby justifying the application of Indonesian law. This theory emphasizes the need for a victim-centered approach in addressing cybercrime, particularly in cases of human trafficking, where the impact on victims can be profound and far-reaching.

The application of these theories in the context of cybercrime highlights the complexities of establishing jurisdiction, particularly when dealing with transnational offenses. The interplay between national laws and international legal principles necessitates a collaborative approach among nations to effectively combat cybercrime. This collaboration is essential not only for the prosecution of offenders but also for the protection of victims, who often find themselves caught in a web of legal ambiguities and jurisdictional challenges. As human trafficking increasingly intersects with online fraud, it is imperative for legal systems to evolve in tandem with these changes. This includes not only the development of new laws but also the establishment of international agreements and frameworks that facilitate cooperation among countries in the investigation and prosecution of cybercriminals.

Moreover, the evolving nature of technology and the internet means that legal frameworks must be adaptable and responsive to new methods of crime. The rise of cryptocurrencies, encrypted communication, and anonymous online platforms presents additional challenges for law enforcement agencies seeking to track and apprehend offenders. As these technologies continue to develop, so too must the legal tools available to combat cybercrime. This may involve updating existing laws, creating new legal standards, and enhancing international cooperation to ensure that jurisdictions can effectively address the complexities of cybercrime and human trafficking.

There are five primary principles of prescriptive jurisdiction that can be identified: territoriality, nationality (active personality), passive personality, security (protection), and universality. Each of these will be addressed in the following sections. The list of permissible principles is not exhaustive; new principles may emerge based on state practices and some may have already been established. Since there is no formal hierarchy among these permissive principles, conflicts and overlaps in jurisdiction can occur. This situation has led to an ongoing search for principles that can impose limits. (Ryngaert, 2023)

1. Territorial Jurisdiction

The principle of territorial jurisdiction, including its extended form, provides a basis for Indonesia to assert jurisdiction over actions that have an impact on the country or its citizens. In this context, even if an act is committed outside Indonesia, its effects are felt domestically, particularly when the victim is an Indonesian citizen. This aligns with the concept of extended territoriality, which allows a state to regulate actions occurring beyond its borders if those actions are closely related to the interests of the state. In this scenario, actions taken by foreign nationals through social media can be viewed as violations targeting the interests and protections afforded to Indonesian citizens. This principle emphasizes the state’s responsibility to safeguard its citizens from external threats, even when those threats originate from abroad. (Draft Articles on Jurisdictional Immunities of States and Their Property, with Commentaries, 2005)

2. Personal Jurisdiction

According to the principle of active nationality, a state has jurisdiction over its citizens, whether they are perpetrators or victims. In this case, the principle of passive nationality is more pertinent, as the victim is an Indonesian citizen. Indonesia, in fulfilling its duty to protect its citizens from criminal acts, has the authority to intervene, even when the crime is perpetrated by foreign nationals outside its borders. The use of social media as a tool for committing crimes illustrates how traditional jurisdictional boundaries have become more flexible, enabling Indonesia to claim jurisdiction in order to safeguard the interests of its citizens. This adaptability is crucial in addressing the challenges posed by modern forms of crime that transcend geographical limitations.(Spencer, 2005)

3. Protective Jurisdiction

This principle refers to a state’s authority to regulate actions that threaten its national security or interests. Crimes such as human trafficking conducted through online fraud against Indonesian citizens can be classified as serious threats to national interests, particularly due to the exploitation involved through electronic means. In this context, Indonesia can apply its jurisdiction to protect victims and maintain legal stability within the country. The protective jurisdiction principle underscores the state’s obligation to act against external threats that could undermine its security and the welfare of its citizens.

4. Universal Jurisdiction

While the principle of universal jurisdiction is typically applied to crimes universally recognized as egregious, such as genocide or war crimes, a compelling argument can be made that human trafficking also meets these criteria. According to the Palermo Protocol, human trafficking is a transnational crime that necessitates international cooperation. In this regard, universal jurisdiction can serve as an additional legal basis for prosecuting offenders, regardless of where the crime was committed. This principle reinforces the idea that human trafficking is a global issue that requires a collective response from the international community, allowing states to take action against perpetrators who exploit individuals across borders.

These principles collectively illustrate the various legal frameworks that Indonesia can utilize to assert jurisdiction over foreign nationals involved in human trafficking through online fraud, ensuring that the rights and protections of its citizens are upheld in an increasingly interconnected world.

Protective jurisdiction has become increasingly relevant as threats to national security often manifest in non-traditional forms, such as online fraud and electronic exploitation. States possess the right to assert jurisdiction when such crimes threaten the vital interests of the nation or its citizens. This principle is particularly significant in the context of human trafficking, where the methods employed by traffickers can easily cross borders and evade traditional law enforcement mechanisms.

1. In terms of criminal liability, it is essential to assess the elements that constitute the crime. According to Boven (Boven, 2003), criminal responsibility is not solely dependent on the actions taken but also on the intent and awareness of the perpetrator regarding the consequences of their actions. In cases of human trafficking for the purpose of exploitation through online fraud, it must be demonstrated that the foreign national had the intent to deceive and exploit the victim. Evidence that can be utilized includes digital communications, such as messages exchanged via social media, as well as transaction records that indicate fraudulent activity. Research conducted by Frank and Gramegna (Frank & Gramegna, 2003) highlights that digital evidence often plays a crucial role in uncovering human trafficking networks, particularly when perpetrators operate from abroad. This underscores the importance of leveraging technology and digital forensics in the investigation and prosecution of such crimes.
2. In the context of jurisdiction, Indonesia has the right to prosecute offenders based on the principle of passive jurisdiction, which allows a state to take legal action against individuals who commit crimes against its citizens, even if those crimes occur outside its territory. This aligns with the perspective articulated by Bassiouni (Bassiouni, 2008), who asserts that states have a responsibility to protect their citizens from criminal acts, including human trafficking. In practice, Indonesia can utilize various international legal instruments, such as the United Nations Convention against Transnational Organized Crime and its Protocols, particularly the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children (2000), to strengthen its legal position in prosecuting offenders. These international frameworks provide a robust foundation for Indonesia to assert its jurisdiction and enhance its efforts in combating human trafficking.
3. Furthermore, international cooperation is a critical aspect of law enforcement in addressing human trafficking. Collaboration among countries is essential to tackle the transnational nature of this crime effectively. In this context, Indonesia can establish partnerships with the countries where offenders are located to facilitate extradition or apprehension. This process often involves complex negotiations, especially if the country harboring the perpetrator does not have an extradition treaty with Indonesia. Therefore, it is vital for Indonesia to strengthen its international cooperation networks and expand bilateral agreements with other nations to facilitate law enforcement efforts. By fostering these relationships, Indonesia can enhance its capacity to combat human trafficking and ensure that offenders are brought to justice.

The application of theories of criminal responsibility and state jurisdiction in cases of human trafficking involving foreign nationals as perpetrators demonstrates that, despite the offenders being located abroad, the law can still be enforced. By leveraging digital evidence and fostering international cooperation, Indonesia can take the necessary steps to prosecute offenders and protect its citizens from exploitation. This multifaceted approach not only reinforces the legal framework within Indonesia but also contributes to the global fight against human trafficking, ensuring that perpetrators are held accountable for their actions, regardless of where they operate.

Elements of Criminal Responsibility

1. Capacity for Responsibility (Moeljatno)

As articulated by Moeljatno (Moeljatno, 2008) the capacity for responsibility encompasses two critical aspects: the ability to distinguish between right and wrong, and the ability to control one’s will based on an understanding of these moral distinctions. In cases of human trafficking for the purpose of exploitation involving social media, the perpetrator—despite being a foreign national—must be considered capable of understanding that their actions (fraud through social platforms) violate both international and domestic laws. In this context, the Palermo Convention and the principle of universal jurisdiction (which grants states the authority to prosecute individuals for international crimes) can be invoked to demonstrate that the perpetrator, even when operating outside the jurisdiction of the affected state, remains accountable for their actions. International studies indicate that individuals committing transnational crimes, such as social media fraud, should be held accountable on an international level if they target citizens of a country that has laws protecting its citizens from such offenses.

2. Intent (Dolus) and Negligence (Culpa)

a) Intent (Dolus): Based on theories of will and knowledge, in cases of online human trafficking, the perpetrator can be deemed to have intentionally deceived the victim through social media. The perpetrator may have the intent to defraud the victim by promising non-existent job opportunities, fully aware that their actions could lead the victim into situations of sexual exploitation or forced labor. International doctrine regarding intent posits that a perpetrator can be considered to possess the “will” to achieve the intended outcome (for example, the exploitation of the victim) if they actively strive to bring about that result (LaFave & Ohlin, 2023). This understanding of intent is crucial in establishing the culpability of the perpetrator in human trafficking cases.

b) Negligence (Culpa): In this context, the perpetrator may fall into two categories of negligence:

• Conscious Negligence (Bewuste Schuld): This occurs when the perpetrator is aware of the potential consequences of their fraudulent actions but chooses to proceed regardless. For instance, the perpetrator may recognize that promising overseas employment to the victim could lead to their exploitation.
• Unconscious Negligence (Onbewuste Schuld): This occurs when the perpetrator fails to recognize the likelihood of adverse outcomes, even though they should have been able to foresee them. In this scenario, the perpetrator may not have intended to exploit the victim, yet they remain liable for their actions due to a lack of consideration for the risks associated with their fraudulent behavior (Boas et al., 2006). This distinction is important in assessing the level of culpability and the appropriate legal response.

3. International Sources and Context

Globally, the criminal responsibility for human trafficking perpetrated by foreign nationals against Indonesian victims through social media fraud can be elucidated through the principle of universal jurisdiction. International law recognizes that transnational crimes, such as human trafficking, are not confined to a single nation and can be prosecuted by any state that has a connection to the victim or the perpetrator. This principle is closely tied to the provisions of the Palermo Protocol, which mandates that countries adopt laws criminalizing human trafficking and impose stringent penalties on offenders, regardless of whether the perpetrator is located abroad. This framework underscores the collective responsibility of the international community to combat human trafficking and protect vulnerable individuals from exploitation, reinforcing the notion that such crimes demand a coordinated global response.

In summary, the elements of criminal responsibility in cases of human trafficking involving foreign nationals highlight the importance of understanding the perpetrator’s capacity for responsibility, intent, and the broader international legal context. By applying these principles, legal systems can effectively address the complexities of transnational crimes and ensure that offenders are held accountable for their actions, thereby enhancing the protection of victims and the integrity of international law.

It is not clear what specific conditions or actions must be deemed “territorial” to a state in order to apply the concept of territoriality. Several potential answers to this question are linked to the political idea of territorial sovereignty itself. First, if an individual commits a criminal act within a state’s territory, that crime can be classified as territorial. This stems from the notion that sovereignty encompasses the authority to regulate the behavior of individuals within the state’s borders. A second possibility arises from a different interpretation of sovereignty: if an event—specifically, a criminal outcome—occurs within a state’s territory, the crime may be considered territorial, regardless of where the initial wrongful act took place. This perspective is rooted in the sovereign state’s right to safeguard itself and its people or property from harm. A third option is that either of these criteria could serve as a basis for categorizing a crime as territorial. Each of these three interpretations is grounded in the concept of sovereignty as it is understood in contemporary society. Fourth, one might argue that a crime is only territorial if both the act and the resulting harm occur within the state’s territory. Lastly, if a crime involves actions taken in multiple locations, with consequences in one or more places, states may need to determine whether all of these actions (including those occurring outside their borders) can be regarded as part of a single territorial crime. (Gallant, 2022)

In conclusion, the theories of criminal responsibility and jurisdiction in international law play a critical role in addressing the challenges posed by cybercrime, particularly in the context of human trafficking through online fraud. The complexities of establishing jurisdiction in a digital landscape require a multifaceted approach that considers various legal theories and the unique characteristics of cybercrime. As nations work together to combat these transnational offenses, it is essential to prioritize the protection of victims and the pursuit of justice, ensuring that legal frameworks are equipped to respond to the evolving threats posed by cybercriminals.

Criminal Liability for Foreign Nationals Involved in Human Trafficking through Online Fraud

The criminal liability of foreign nationals involved in human trafficking through online fraud is a pressing issue that necessitates a comprehensive understanding of both domestic and international legal frameworks. Human trafficking, particularly when facilitated through digital platforms, poses significant challenges for law enforcement agencies worldwide. The transnational nature of such crimes complicates the prosecution of offenders, especially when they operate from jurisdictions that may not prioritize or adequately address these offenses. This complexity is further exacerbated by the rapid advancement of technology, which has transformed traditional trafficking methods into sophisticated schemes that exploit the vulnerabilities of individuals in a digital landscape.

From the individual rights perspective of proper notice, the absence of such a connection may catch the defendant unawares, as he may not reasonably be able to foresee the application of a State’s criminal laws. For instance, the exercise of territorial jurisdiction over illegal or defamatory internet content that is accessed by users in the territory, while that content has not been specifically targeted at those users, may be problematic: the person who produces or uploads the impugned content cannot possibly be aware of all criminal laws in the world. (Hörnle, 2021)

G.P. Hoefnagels even provides a broad definition that sanctions in criminal law are all reactions to violations of the law as defined by legislation, ranging from the detention of suspects and prosecution of defendants to the imposition of sentences by judges. Hoefnagels views punishment as a process over time, where the entire process is considered a form of punishment. (Hoefnagels, 2013)

The dynamic nature of value systems also applies to the penal system and the system of sanctions in criminal law. If the penal system is defined broadly, then its discussion involves the legislative rules related to sanctions (in criminal law) and sentencing, because according to L.H.C. Hulsman, “The sentencing system is the statutory rules relating to penal sanctions and punishment.” (Fokkema, 2018)

There are two types of criminal liability: individual and corporate. Generally, individuals are prosecuted for their role in human trafficking, but the state’s law-enforcement agencies struggle to punish corporations for a range of reasons, including that criminal procedure to pursue corporations is inadequate, punishments do not punish the most culpable individuals, and inadequate effort is made to calculate the true cost to restore and compensate victims of trafficking because they were victims of crime.(Palmer, 2020)

In Indonesia, the legal framework for addressing human trafficking is primarily governed by Law No. 21 of 2007 on the Eradication of Human Trafficking Crimes (UU TPPO). This law provides a robust legal basis for prosecuting individuals involved in human trafficking, regardless of their nationality. Article 2 of the UU TPPO explicitly states that any person who engages in acts of human trafficking can be punished, irrespective of their citizenship. This provision aligns with the principles of universal jurisdiction, which allow states to prosecute individuals for serious crimes that have international implications, such as human trafficking. The application of universal jurisdiction is particularly relevant in the context of online fraud, where foreign nationals may exploit Indonesian citizens through deceptive practices, thereby necessitating a legal framework that can effectively address these transnational crimes.

Certain States often define national security threats in a rather ambiguous manner within their legal codes, which raises concerns about adequate notice for defendants and the implications for freedom of speech in the territorial State. For example, the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, enacted in 2020, states in Article 38 that it “shall apply to offenses under this Law committed against the Hong Kong Special Administrative Region from outside the Region by an individual who is not a permanent resident of the Region.”(Young, 2021)

According to the American Society of International Law (2014), Indonesia possesses the authority to exercise jurisdiction in three critical areas: prescribe, adjudicate, and enforce. This framework is essential for addressing transnational crimes, including human trafficking facilitated through social media, and underscores Indonesia’s commitment to protecting its national interests and citizens.

1. Prescribe: Indonesia has the authority to establish legislative measures that encompass transnational crimes, including human trafficking conducted via social media platforms. This involves the creation of laws that define criminal acts, outline penalties, and set forth the legal standards necessary to combat such offenses effectively. By enacting comprehensive legislation, Indonesia can ensure that its legal framework is equipped to address the complexities of modern crimes that transcend national borders. This legislative power is crucial for providing law enforcement agencies with the tools they need to investigate and prosecute offenders, thereby reinforcing the country’s commitment to upholding justice and protecting its citizens from exploitation.

1. Adjudicate: Indonesia’s jurisdiction extends to the ability to adjudicate cases involving perpetrators of human trafficking, even if those individuals are located outside the country. This principle allows Indonesian courts to hear cases and render judgments based on national law, ensuring that justice is served regardless of the geographical location of the offender. The ability to adjudicate such cases is particularly important in the context of transnational crimes, where perpetrators often exploit legal loopholes by operating from jurisdictions with less stringent laws. By asserting its right to adjudicate, Indonesia can hold offenders accountable and provide a legal remedy for victims, thereby reinforcing the rule of law and the protection of human rights.
2. Enforce: Indonesia also has the authority to enforce its national laws against individuals who pose a threat to the interests of the state or its citizens. This enforcement capability includes the implementation of legal measures to apprehend and prosecute offenders, as well as the establishment of international cooperation mechanisms for extradition and investigation. By collaborating with other countries, Indonesia can enhance its law enforcement efforts and ensure that perpetrators of human trafficking are brought to justice, regardless of where they are located. This aspect of jurisdiction is vital for addressing the transnational nature of human trafficking, as it allows Indonesia to engage in cooperative efforts with other nations to combat this serious crime effectively.

In summary, the implications of jurisdiction based on the theory of “Jurisdiction to Prescribe, Adjudicate, and Enforce” highlight Indonesia’s comprehensive authority to address human trafficking and other transnational crimes. By exercising its legislative, adjudicative, and enforcement powers, Indonesia can strengthen its legal framework, protect its citizens, and contribute to the global fight against human trafficking. This multifaceted approach not only enhances the effectiveness of Indonesia’s legal system but also reinforces its commitment to international cooperation and the protection of human rights.

The role of foreign nationals in human trafficking through online fraud is underscored by the Palermo Protocol, which aims to prevent, suppress, and punish trafficking in persons. This international treaty emphasizes the need for cooperation among countries in addressing human trafficking, encouraging states to adopt measures that facilitate the prosecution of traffickers, regardless of their location or nationality. The Palermo Protocol serves as a foundational document that reinforces the notion that human trafficking is a global concern, requiring a concerted effort from the international community to combat this pervasive issue. For Indonesia, the Protocol provides a framework for asserting jurisdiction over foreign nationals involved in human trafficking, particularly when the victims are Indonesian citizens. This international legal framework is essential for ensuring that perpetrators cannot evade justice simply by operating from jurisdictions that may lack stringent anti-trafficking laws.

In the context of online fraud, the methods employed by traffickers often involve sophisticated digital strategies that exploit vulnerabilities in victims. These tactics can include deceptive job offers, false promises of education or migration opportunities, and manipulation through social media platforms. The anonymity and reach of the internet allow traffickers to operate across borders, making it imperative for countries to collaborate in their law enforcement efforts. The digital nature of these crimes complicates the identification and apprehension of offenders, as they can easily conceal their identities and locations. This highlights the urgent need for enhanced international cooperation and information sharing among law enforcement agencies to effectively combat human trafficking facilitated by online fraud.

The principle of universal jurisdiction allows Indonesia to pursue legal action against foreign nationals who engage in human trafficking through online fraud, even if the acts were committed outside its territory. This principle is crucial in ensuring that perpetrators cannot evade justice simply by operating from a different jurisdiction. The application of this principle is supported by international treaties and conventions that obligate states to take action against human trafficking, reinforcing the notion that such crimes are of global concern. By asserting jurisdiction over foreign nationals, Indonesia can send a strong message that human trafficking will not be tolerated, regardless of where the crime occurs.

Accordingly, universal jurisdiction appears as one of the most far-reaching forms of extraterritorial jurisdiction. Over the years, it has generated a tremendous amount of academic and civil society interest. Actual prosecutions, let alone trials on the basis of universality, remain few and far between, however—even if, as of late, their number appears to be growing somewhat.(Langer & Eason, 2019)

Moreover, the integration of the UU TPPO with the UU ITE provides a comprehensive legal framework for addressing cyber-enabled human trafficking. The UU ITE contains provisions that criminalize various forms of online fraud, which can be utilized to prosecute traffickers who exploit digital platforms to recruit and exploit victims. For instance, Articles 27 and 28 of the UU ITE address fraudulent activities and the dissemination of false information, which can be directly applicable to cases of online trafficking. This legal synergy between the two laws enhances Indonesia’s ability to respond to the challenges posed by human trafficking in the digital age, allowing for a more effective prosecution of offenders who utilize technology to perpetrate their crimes.

However, the challenges of prosecuting foreign nationals involved in human trafficking through online fraud are compounded by issues of evidence collection and jurisdictional cooperation. Law enforcement agencies must navigate the complexities of digital evidence, which often requires international collaboration to obtain data from foreign servers or platforms. This necessitates the establishment of mutual legal assistance agreements and partnerships with other countries to facilitate the sharing of information and resources. The ability to gather and present evidence in a manner that is admissible in court is critical for securing convictions against traffickers, particularly when they operate across multiple jurisdictions.

The theory surrounding universal jurisdiction fails to adequately differentiate between criminal liability and the prerogatives of the state to prosecute, mistakenly assuming that a special basis or relationship is necessary to establish such jurisdiction. The argument unfolds by examining the nature of criminal liability and highlighting its close connection to substantive justifications for punishment. This indicates that a court’s authority regarding an offender reflects its ability to address the reasons for criminal liability, although its authority in relation to other courts may prevent a jurisdictional claim. Therefore, for Court X to assert universal jurisdiction over a crime means claiming the capacity to address substantial reasons for criminal liability and asserting that no other institution possesses a prerogative (or a prerogative strong enough to challenge the significance of Court X’s penal response). Furthermore, there is good reason to believe that significant reasons for criminal liability are independent of relationships, even in the case of ordinary crimes. An important implication is that a significant portion of our discussions related to jurisdiction in criminal law theory should focus on the various legitimate aims and interests of states and other international institutions.(Reeves, 2017)

In conclusion, the criminal liability of foreign nationals involved in human trafficking through online fraud is a multifaceted issue that requires a robust legal framework and international cooperation. Indonesia’s legal provisions, particularly the UU TPPO and UU ITE, provide a solid foundation for prosecuting such offenses. However, the effectiveness of these laws hinges on the ability of law enforcement agencies to collaborate across borders, share information, and adapt to the evolving landscape of cybercrime.

CONCLUSION

Based on the findings and discussions presented in the previous sections, several key conclusions can be drawn regarding the criminal liability of foreign nationals involved in human trafficking through online fraud, particularly in the context of Indonesian law and international legal frameworks. The complexities surrounding this issue necessitate a multifaceted approach that encompasses both legal and practical considerations. First and foremost, the application of criminal responsibility theories to foreign nationals involved in human trafficking and Indonesian victims in cases of online fraud requires a careful examination of the perpetrator’s intent and negligence, as well as their capacity for accountability under both domestic and international law. The existence of international agreements, such as the Palermo Convention, alongside the principle of universal jurisdiction, facilitates the prosecution of offenders even when their actions occur outside Indonesian territory. This underscores the importance of a legal framework that accommodates the complexities of transnational crimes, particularly those facilitated by digital platforms, where the anonymity and reach of the internet can obscure the identities and locations of both perpetrators and victims.

Moreover, the concept of jurisdiction in international law is critical in addressing human trafficking offenses involving foreign nationals. The two primary approaches to jurisdiction—territorial and universal—highlight the necessity for states to assert their authority over individuals engaged in international crimes, such as human trafficking. Universal jurisdiction is particularly relevant in this context, as it empowers countries to pursue legal action against individuals involved in transnational crimes, regardless of where the crime was committed. This is essential for preventing impunity and fulfilling international obligations to combat such offenses. In cases of human trafficking involving online fraud, foreign nationals who communicate digitally with Indonesian victims abroad can be prosecuted under the principle of universal jurisdiction, provided there is evidence of their awareness of the potential harmful consequences of their actions. This consideration of intent—whether it be malicious intent (dolus) or negligence (culpa)—is crucial in determining the level of accountability for the perpetrator, ensuring that those who exploit vulnerable individuals are held responsible for their actions.

Overall, the prosecution of foreign nationals involved in human trafficking through online fraud requires robust international cooperation and the application of universal jurisdiction principles. This approach ensures that offenders can be held accountable, even when their crimes are committed outside the jurisdiction of the victim’s country. The challenges posed by digital evidence and the need for cross-border collaboration further emphasize the importance of establishing mutual legal assistance agreements and partnerships among nations. Such cooperation is vital for effective law enforcement and for the protection of victims, who often find themselves in precarious situations due to the transnational nature of these crimes.

Furthermore, by integrating international legal principles with national laws, Indonesia has a strong foundation to assert jurisdiction over foreign nationals committing crimes abroad that affect Indonesian citizens through social media. This highlights the necessity for harmonization between the Law on the Eradication of Human Trafficking (UU TPPO), the Law on Information and Electronic Transactions (UU ITE), and international protocols to effectively address cross-border legal challenges. The alignment of these legal frameworks not only enhances the capacity of Indonesian authorities to combat human trafficking but also reinforces the country’s commitment to upholding human rights and protecting its citizens from exploitation.

In conclusion, the criminal liability of foreign nationals involved in human trafficking through online fraud is a multifaceted issue that requires a comprehensive legal approach. By leveraging international cooperation and harmonizing domestic laws with global standards, Indonesia can enhance its capacity to combat human trafficking and ensure that perpetrators are brought to justice, regardless of their location. This commitment to addressing transnational crime not only protects victims but also reinforces Indonesia’s role in the global fight against human trafficking. As the landscape of crime continues to evolve with advancements in technology, it is imperative for legal systems to remain adaptable and proactive, ensuring that they are equipped to respond effectively to the challenges posed by cyber-enabled human trafficking. Through sustained efforts and collaboration, Indonesia can contribute significantly to the international community’s endeavors to eradicate human trafficking and safeguard the rights and dignity of individuals worldwide.

Declaration of Conflicting Interests

The authors state that there is no conflict of interest in the publication of this article.

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