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Indonesia has enacted laws which provide mandatory protection for victims of human trafficking. It also has mandatory drug laws which, in some cases, lead to the death penalty. This legislative conflict together with investigative and prosecutorial failure risks the execution of human trafficked victims who are used as drug mules in organized crime. In countries where there is no statutory defence to criminal conduct, there is a need to approach criminal conduct in a way that protects victims. This includes mechanisms to ensure non-prosecution and non-punishment. The recent reprieve for Mary Jane Veloso, albeit temporary at the time of writing, is an opportunity for Indonesia to lead a new global approach to victim protection.

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The right to a fair trial is enshrined in international and domestic law around the world. This article makes the simple argument that the focus on the rights of victims of human trafficking and efforts to increase the rate of prosecutions of human traffickers should not come at the cost of alleged traffickers’ rights to a fair trial, as a failure to uphold fair trial rights places them at risk of unfair prosecution. I consider the extent to which the transnational criminal legal regime regulating human trafficking at the international level provides for these fair trial rights, suggest that the fundamental purposes of transnational criminal law exist in a state of tension against the aims of the international human rights regime, and conclude that further empirical research on the legal experiences of human traffickers is necessary.

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