RECONCILIATION AS THE GOAL 

‘Reconciliation’ is indeed a key term in the formation of a TRC. It will come to be a controversial aspect in the role of the commission. So what is reconciliation really?

Nowadays reconciliation is more about socio-politic pyschology. To guarantee that the community is spared from any more political violence – even as a final goal the individual, the group and the state must handle terrible injustices - the door of forgiveness must remain open to the perpetrator. Reconciliation then is the preparedness to forgive or forget political bitterness for the sake of creating a better political system in the future. In short, reconciliation emphasises reaching that final goal, rather than criminal prosecution.

Citing Carlos S. Nino, human rights policy advisor to Argentian President Alfonsin, punishment can certainly have valuable consequences – for example preventing the same crimes from being repeated by demonstrating that no one is immune from the law, or consolidating democracy by upholding the rule of law. “But criminal procedures perhaps have a few limitations that need to be balanced with the goal of maintaining a democratic system… Once we realise that preservation of the democratic system is an unconditional prerequisite that makes prosecution possible, the issue of the destruction of the democratic system takes precedent over the widespread violation of human rights,” says Nino in his book The Duty to Punish Past Abuse of Human Rights Put Into Context: The Case of Argentina.

Whatever the weaknesses of TRCs, we cannot ignore the end value of democratic stability and peace. Truce may not fix all wrongs, or heal all wounds, however it will certainly save many lives. If security has been achieved, the space of responsiblity will develop with humanitarian awareness.

Because of this framework, those who object to TRCs see it as part of a political movement to protect human rights violators. For those who accept it, on the other hand, the TRC is appraised as a realistic resolution in the middle of a period of political transition.

Those who object to a TRC are not completely wrong, but they can be reassured based on three fairly strong reasons. First, international law obligates states to try serious crimes. The Inter-America Human Rights Court, among others, states repeatedly that amnesty cannot be accepted if its function is merely to cover up crimes.

Second, recent developments indicate that high state officials can now be taken to court. For example, as a result of ad hoc trials in the former Yugoslavia and Rwanda, there have been efforts to establish the International Criminal Court (ICC). The most spectacular application of ‘universal jurisdiction’ was the arrested of General Pinochet in London.

Third, victims find it hard to accept reconciliation offered by a TRC. It is not yet certain whether reconciliation will heal sadness suffered due to the crimes described.

Proponents of a TRC have a strong basis. Knowing the facts, a nation can debate honestly why and how these terrible crimes could happen. Expert Human rights lawyer Aryeh Neier says identification of those responsible while pointing out their crimes can itself become a punishment.

In the end, the reason some countries decide to resolve the problems of their past with a TRC and others not is determined by political maneuvering, the nature of the democratisation process, and the distribution of political power during the political transition and after it. Moral and legal considerations do not have a big influence. The facts, however, indicate that of those countries who become democratic before 1999, only Greece had a court of law that was able to meaningfully punish a reasonable amount of its authoritarian officials. Most countries gave that responsibility to a TRC.

It would be very useful for Indonesia if parties started to see a TRC as a path towards the gate of reconciliation, and respect for human rights. A TRC, however must happen in conjunction with improvement in the legal, political, and military systems, which can in turn reduce future occurrences of gross human rights violations. Legal practitioner Todung Mulya Lubis comments that a TRC shouldn’t be seen as the only medicine to effectively heal wounds of the past.

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