Human Rights Court and Truth Reconciliation Commission for the Settlement of Human Rights in Indonesia JUNAEDI

resolution of past human rights violations through extra-judicial organizations is an advanced step towards resolving the case, whereas a conflict approach can be used to settle the case. The existence of the Human Rights Law provides a new frontier in implementing the principle of restorative justice in the approach of case settlement. It is hoped that such restorative justice can create a political balance between the past and the future.


INTRODUCTION
The transition from authoritarian regime to a democratic government is often followed by a question to the settlement of human rights violations committed by the previous regime.Such question then was answered by transitional government in many mechanisms and one of the mechanisms is the establishment of the TRC like in South Africa. 1 The establishment of the commission by the transitional government is an effort to provide the best middle way within two-sided attitude to punish the perpetrators of the previous regime on the one hand and forgiveness or amnesty for what happened in the past on the other hand.The option to establish the commission in many countries 2 may

ABSTRACT
The law on human rights court has brought the new hopes for certain people have suffered because of the human rights violation happened in the past government (before the law enacted in the years of 2000).The demand of justice has been made by victims, the families of victims and other sympathetic parties by bringing those who have violated human rights in the past.The demand for justice does not only focus on human rights violations, which occurred in the past but also similar human rights violations that will occur in the future.The existence of a permanent Human Rights Court seems to imply that human rights will be upheld and protected.The resolution of past human rights violations via a conflict approach is preferable for the national reconciliation.The not also satisfy all factions within the nation, especially the victims or their families, but the choice should be determined as the past incidents are very complex in term of legal, social and political dimension.
The establishment of the TRC in the context of the transition government is the way to turn from totalitarian governance towards democratic government. 3forementioned transitions are sticking the question of attitude and responsibility for crimes against humanity by the previous regime.According to Phillips and Albon, this question contains two important issues, namely: recognition (acknowledgment) and accountability (accountability). 4Confession contains two options: "remember" or "forget".Accountability confronts us with a choice between doing the "prosecution" or "forgive".
In abovementioned controversy, the significance of the establishment of the TRC is not just as an alternative from Ad Hoc Human Rights Court, but also as abreast.It is the key to a strong effort to use a human rights perspective and humanist paradigm that promotes the interests of the victims on the one hand and saving the lives of the general public on the other.TRC is a tool for applying the concept of restorative and reparative justice on the one hand and constructive settlement on the other hand. 5mplies a concept of justice that comes out of a typical classical Aristotelian grip (commutative justice/ contractual, distributive, corrective and punitive) and grip of Rawlsian-Habermasian that fosters fairness in equality (justice as fairness) that can only be applied in a more normal situation.TRC also introduced the concept of progressive justice 6 which emphasizes punishment of the crime (criminal justice), demolition of history (historical justice), preferential treatment and respect for the victim (reparatory justice), administrative justice, and the overhaul of the constitution (constitutional justice) that founded on the principle of rule of law, popular sovereignty or democratic legitimacy that puts the law, and not just ruled by law, the rule of law is not necessarily democratic.In addition to that, the establishment of this commission mistakenly assuming as only multiplies the commission list in Indonesia, and mistakenly also when there is a suspi-cion that TRC was only a partial effort and just making it up.More mistakenly cynicisms when TRC is just simply extend the chain of impunity or otherwise simply be dragged and packed the jail with all those guilty in the past.
Following Luc Huyse (1995), 7 truth is both retribution and deterrence; the truth always serves as trouncing the punisher and deterrence.Moreover, the spectrum of retribution-reconciliation, responsibility or ideal attitude we take is selective punishment, a model that emphasizes formal responsibility or legal selectively.Therefore, our type of transition is the replacement initiated by its own person which fits with these selective models.Although referring to the handover of power from Suharto to Habibie, so it appears that our type of transformation was the government initiative, but the change is based on the insistence of the people, especially the students.
This Essay would gives an overview of the existence of human rights court in Indonesia and discuss some certain issue in related with the court, there are the establishment of the Human Rights Court based on the law 26/2000 regarding Human Rights Court, the court jurisdiction, the enactment of the retroactivity principle in such Law, Witness protection in the court and certain issue in related with the extra judicial mechanism.

The Establishment of The Human Rights Court
The existence of the Human Rights Court in the scope of national law was preceded by the birth of Law No.39/1999 regarding Human Rights, particularly article 104 Law No.39/1999 which is as follows: 1.A Human Rights Court will be established within the area of General Judicature in order to trial severe human rights violations.2. The Court referred to in paragraph (1) will be established by law within a period of a maximum of 4 (four) years.

Before the establishment of the Human Rights
Court referred to in paragraph (2), cases of human rights violations as referred to in paragraph (1) will be heard by the authorized Court.
According to such directions, the Human Rights Court was established by Law No. 26/2000, which was ratified and enacted on 23 November 2000.
The enactment of Law No. 39/1999 concerning Human Rights is inseparable from the order of the People's Advisory Assembly of the Republic of Indonesia (TAP MPR RI) No.XVII/MPR/1998 regarding Human Rights.The mandate presented by the aforesaid TAP MPR RI was to order the highest state institutions and all government apparatus to respect, enforce and disseminate an understanding of human rights to society. 8n order to improve the protection of human rights and develop a situation conducive to the implementation of human rights in line with the Indonesian Ideology of Pancasila, the Indonesian Constitution (UUD) of 1945 and the Universal Declaration of Human Rights, a national commission called the National Commission for Human Rights (Komnas HAM) 9 was established.Within the framework of increasing the protection of human rights the establishment of Komnas HAM was very strategic.The role of Komnas HAM is to elucidate, examine, observe, research, and mediate on human rights issues, as determined by law. 10 The existence of Komnas HAM within the framework of observation and reporting of cases of severe human rights violations is strengthening the national legal system in the field of human rights.As part of the law enforcement elements involved in matters of severe human rights violations, Komnas HAM have been legally inaugurated as the sole initial investigator.11 The existence of the Human Rights Court within the scope of general judicature implies that in cases that are not determined by Human Rights Law, Law No.2/1986 regarding general judicature will prevail.This is mentioned in article 2 Law No.26/2000, which states that the Human Rights Court is an extraordinary court in the sphere of general judicature.The submission of the Human Rights Court to the general judicature implies that the organizational structure of the Human Rights Court is subject to general judicature and not to any other judicature.In addition, article 49 of the Human Rights Law states as follows: "Regulations regarding the authority of a Superior with The abovementioned clause further confirms that in cases of severe human rights violations there is no submission to any other judicature except to general judicature, nor any recognition of cases of interconnecting jurisdictions.Therefore, it can also be stated that the stipulations concerning interconnecting jurisdictions in Chapter XI of the Indonesian Criminal Law Procedural Code (KUHAP) is invalid in the settlement of cases of severe human rights violations.
It is hoped that the establishment of the Human Rights Court will protect human rights, both of individuals and of groups, and become the basis for law enforcement, legal certainty, justice and a sense of security for individuals and groups against severe human rights violations. 12The existence of Human Rights Law also implies the expectation of stabilising national unity as aspired to in TAP MPR-RI No.V/MPR/2000 regarding the stability of National Unity.
The existence of Human Rights Law also constitutes an effort by the Indonesian nation to participate in maintaining world peace and ensuring the implementation of human rights, 13 as set forth in the Universal Declaration of Human Rights.As such the establishment of the Human Rights Court is very important, particularly in international relationships where respect for human rights is held in high regard.In Law No. 26/2000, Human Rights are clarified as being a set of rights which are part of the essence and the existence of humanity itself as creatures of God who must be respected, held in high regard and protected by the state, the law, the government, and all individuals for the sake of the value and worth of humanity. 14n the general explanation section of Law No.26/2000, paragraph 6 sub-paragraph 1, it is clearly stated that severe human rights violations are defined as extraordinary crimes with a broad impact at both the national and international level and do not constitute criminal acts as regulated in the Indonesian Criminal Law Code (Kitab Undang-Undang Hukum Pidana -KUHP), and that such acts also cause great damage both materially and immaterially which result in both individuals and communities feeling insecure, and therefore an immediate remedy is required in order to restore the supremacy of law in order to achieve peace, order, harmony, justice and prosperity for all members of society".

Jurisdiction of The Court
Severe human rights violations are not merely legal matters but also have political dimensions that are different than ordinary crimes.The settlement of cases of severe violations of human rights must represent both of these dimensions.Thus the limitations of severe violations of human rights are not just based on law alone, because if they were based on law alone they could not be amended like ordinary crimes.The inclusion of political dimensions is what gives severe violations of human rights their own individual characteristics and thus they are considered as main focus in every state.General explanation of the law has categorized the crimes that have been mention in the law as extraordinary crimes. 15he what is important is the intent of the acts concerned.This is in line with the implementation of Indonesian Criminal Law, whereby the number of victims is not the focus of the classification of the criminal act concerned, but rather the intention of the act concerned to cause destruction or annihilation.

The Enactment of Retroactivity Principle in The Law of Human Rights Court in Indonesia
In the framework of enforcing human rights law several legal principles are adopted.Those principles are explicitly described in the Articles of Law No.26/2000.The principles described in Law No.26/2000 are identical to the principles of the Indonesian Criminal Law Code.
The legitimacy of the Human Rights Court's authority to trial human rights cases is set out in Article 4 Law No.26/2000.With an acknowledgement of authority to trial cases of severe human rights violations, there are specific rules concerning criminal acts other than those criminal acts that are already regulated in the Indonesian Criminal Law Code.
As a specific law that regulates human rights offences and the legal proceedings for those offences, Law No.26/ 2000 concerns both material offences and formal offences.In addition, as a law concerning specific criminal acts, there are exceptions to principles that are generally included in the Indonesian Criminal Law Code (KUHP) or the Indonesian Criminal Law Procedural Code (KUHAP).These exceptional are that as long as not otherwise determined by Law No.26/2000 then the general criminal law prevails, thus in this case the principle of Lex Specialis derogat Legi Generalis is valid.
The validity of the Lex Specialis derogat Legi Generalis principle, must fulfil the following criteria: a. Exceptions to the general law are implemented by regulations of the same level as the law concerned.b.The exception concerned is clarified in that particular law.Thus the exception is only valid to the extent that it is clarified and the part that is not excluded is still valid as long as it does not contravene the implementation of that particular law. 24cording to Human Rights Law there is no impunity 25 for perpetrators of severe human rights violations whether those perpetrators are military personal or civilians.This loss of impunity is clarified in Article 42 Law No.26/2000, which states as follows: 1) A military commander or someone effectively acting as a military commander can be held responsible for a criminal act committed within the jurisdiction of the Human Rights Court, which are committed by soldiers effectively under their command or control, or effectively under their authority and control and the criminal act concerned was a result of improper control of troops, that is: a.The military commander or aforementioned person knew or based on the situation at the time should have known that those troops were committing or had just committed a severe human rights violation; and b.The military commander or aforementioned person did not take the appropriate and necessary actions within the scope of their authority to prevent or stop the act or to deliver the perpetrator to the authorities to be questioned, investigated and charged.2) A superior whether a policeman or other civilian: a.The superior knew or deliberately ignored information which clearly showed that their subordinates were committing or had just committed a severe human rights violation; and b.The superior did not take the appropriate and necessary action within the scope of their authority to prevent or stop the act or to deliver the perpetrator to the authorities to be questioned, investigated and charged.
3) Any act as mentioned in paragraph (1) and paragraph ( 2) is liable to the same punishments as those described in Article 36, Article 37, Article 38, Article 39, and Article 40.
In Law No.26/2000, Article 43 paragraph (1) states as follows: "Severe human rights violations, which occurred before this law was enacted, will be investigated and judged by the Ad Hoc Human Rights Court" Pursuant to this clause it is clear that Law No.26/ 2000 adopts the retroactive principle.The enactment of a law for settling past human rights violations clearly contravenes the non-retroactive principle as set forth in Article 1 paragraph 1 of the Indonesian Criminal Law Code. 26he enactment of the retroactive principle for severe human rights violations is not a deviation in view of international law practices. 27The same deviation occurred when the Nuremberg and Tokyo trials were held for World War II war criminals in 1946 and 1948 28 .In fact, the principles of the Nuremberg trials have been acknowledged as the international norm.Those international law practices were followed up and authenticated by the establishment of an ad hoc Tribunal for the ex-colonies of Yugoslavia (1993) and an ad hoc Tribunal for Rwanda (1994). 29he enactment of the retroactive principle in Law No.26/2000 has caused a constitutional dilemma.This is because in Article 28 I Amendment II of the Indonesian Constitution (Undang-Undang Dasar -UUD) 1945, it is stated that retroactive principles cannot be enacted.However the stipulations of the constitution are answered by Article 28 J Amendment II of the Indonesian Constitution, 1945, which states as follows: "In enjoying their rights and freedoms every individual is subject to the limitations stipulated by the law in order to ensure the acknowledgement and respect of the rights and freedoms of others and in order to fulfil the just demand for consideration of morality, religious values, security, and public order in a democratic society".
The abovementioned Article 28 J states that every citizen is subject to the limitations stipulated by the law.In other words, the retroactive principle was legally enacted in order to protect human rights.
Another reason for the enactment of the retroactive principle for past human rights violations is based on a consideration of morality, religious values, security and public order in a democratic society in the name of justice.The enactment of the retroactive principle for the purpose of enforcing the law in cases of past severe human rights violations is more based on political considerations.This situation occurred because during the transition process from an authoritarian government to a democratic government a middle road is required in order to resolve national crisis, and for the sake of political stability.
The aforementioned political reasons do not mean an abandonment of juridical procedures, because the existence of Human Rights Law means that juridical procedures are very important.Consideration of political issues occurs because severe human rights violations that have occurred in the past cannot be separated from the scope of previous government political policy.It is undeniable that human rights violations that have occurred in various parts of the world are inseparable from the politics behind those acts.
The enactment of the retroactive principle as stated in Article 43 paragraph 1 Law No.26/2000, still leaves us with a significant legal problem, which is the time limit for the effectiveness of the retroactive principle.The enactment of the retroactive principle without any time limits will give rise to fluctuating interpretations of this principle.Because without any time limit for past severe human rights violations, it can be said that the past referred to begins at the time of Indonesian independence and goes until 23 November 2000.
The establishment of Law No.26/2000 concerning the Human Rights Court was intended to provide legal certainty, however the enactment of the retroactive principle without any time limits may cause legal uncertainty.Some people may respond to the above statement by referring to the existence of the expiration principle in the Indonesian Criminal Law Code, however in Human Rights Law the expiration principle is not enacted pursuant to criminal law.This matter is clarified in Article 46 of the Human Rights Court law, which states as follows that for severe violation of human rights as set forth in this law the expiration principle is not valid.
The existence of this clause confirms that there is no definitive time limits for past human rights violations.The enactment of a time limit is very important for legal certainty in enforcing the law in cases of past severe human rights violations.Thus, there are needs to be a time limit for the "past" meant by the law, whereby this is regulated in an amendment to Human Rights Law.
However, along with the movement of time and the need for legal certainty concerning the aforementioned time limit, in the opinion of this writer, Article 43 paragraph 2 30 Law No.26/2000 must be implemented effectively.The time limit for past severe human rights violations can be determined by the National Commission of Human Rights (Komnas HAM) after sorting through those cases at the time that the reports of those human rights violations are submitted to Komnas HAM.Thus the sorting out and determination of the time limit can be carried out by both those organizations as well as the executives.

PRESIDENTIAL DECREE ON TANJUNG PRIOK AS AN ENTRY POINT FOR THE AD HOC HUMAN RIGHTS COURT
Presidential Decree No. 53/2001 was the legal basis for the establishment of an ad hoc human rights court for two cases: the case of the post-referendum events in East Timor in 1999 and the 1984 Tanjung Priok case.The Decree provided recognition for the victims, families and supporters, especially in the case of the 1984 Tanjung Priok incident, for their many years of hard work.The Decree acknowledged that the incident was indeed classified in the terms used by Article 7 as a past gross violation of human rights.Establishing the ad hoc human rights courts had the effect that all judicial measures in respect of the prosecution of the case had a clear legal basis.The Decree brought hope for the victims' families that they would learn the truth about the incident and find the whereabouts of relatives missing since the incident occurred.
The Decree also showed the initial commitment of the post-Reform government to ordering the implementation of the Reform agenda in relation to the examination of past human rights abuses.The promulgation of the Decree cannot be separated from the efforts of the victim to gain official recognition of the incident as a past gross violation of human rights.These efforts represent an example of the establishment of a caucus between victims, NGOs specifically involved in human rights issues and members of the DPR.Another factor contributing to the eventual official recognition of the incident were the activities of political parties and the struggle of some to become members of the DPR.As outlined above, some key figures related to the incident became members of the DPR and in fact one even became the Deputy Speaker of the DPR as in the case of A.M. Fatwa.The existence of these people in the DPR contributed to the passing of a vote in favour of a letter of recommendation from the DPR acknowledging the incident as constituting an Article 7 past gross violation of human rights.This process of recognition was highlighted by A.M. Fatwa in interviews with the author: "While we decided that the Tanjung Priok incident qualified to be classified as a past gross violation of human rights, all the member of the [DPR] Commission for Law and National Affairs agreed to recommend Tanjung Priok as a past gross violation of human rights, after we heard the opinions of all the members and also of members of the community who had come to us". 31 After received the recommendation of the DPR, President Abdurrahman Wahid promulgated Presidential Decree No. 53/2001 specifically establishing ad hoc human rights courts for East Timor and Tanjung Priok.President Megawati Soekarnoputri subsequently revised the Decree through Presidential Decree No. 96/2001 to clarify the timeframe and location of the subject incidents.In legal terms this Decree meant that the ad hoc human rights court could only examine matters within the specified locus and tempus laid down in the Decree.Localising and limiting the Tanjung Priok incident meant that any incidents or security policies re-lated to the incident could not be the subject of prosecution or judicial findings.In fact, as discussed in Chapter Two on the incident, there were a number of security operations aimed at accusing individuals of being involved in the Tanjung Priok incident.In an interview with the writer, A.M. Fatwa referred to these efforts: "… I was arrested by security officials even though at the time of the incident I was not attending the sermon in Tanjung Priok.I was arrested and detained a week after the incident while I was having a meeting with some Islamic student organizations (Islamic Students' Associations or HMI, Indonesian Islamic Students (PII) and many others) and H.R. Darsono was in my Musholla… Later I found out that I was put on trial because of the publication of the White Paper 32 about the Tanjung Priok incident as referred to in the primary charge before the court".
The narrowing of the jurisdiction as laid down in the Decree also meant that the Ad Hoc Human Rights Court could not prosecute acts related to the destruction of documents in relation to data about patients brought to RSPAD Gatot Subroto military hospital following the events.As discussed earlier in Chapter Four about incidents, the destruction of documents containing data about the patients at that time has had a large impact on the investigation when the investigators wanted to collect information in relation to the victim's wounds or to cross-check the information against other information relating to dead victims.Identification of the victims was and still is up until today very important, not only to count the number of victims but also to identify the victims with a view to compensating them.Such limitation of the court's jurisdiction meant that the forced detention of some victims could not be prosecuted either because the decree was limited to only the deeds which occurred at Tanjung Priok on the one date of 12 September 1984.This was despite the fact that such actions constituted a series of arbitrary acts having a close relationship with the incident or the events following the incident.

EXTRA JUDICIAL MECHANISM: FROM TRUTH RECONCILIATION COMMISSION TO THE ISLAH MECHANISM IN TANJUNG PRIOK CASE
Human Rights Law determines that both judicial mechanisms and extra judicial mechanisms will be established, extra-judicial mechanisms take the form of a Truth and Reconciliation Commission.The Truth and Reconciliation Commission has the task of enforcing truth by revealing past misuses of power and human rights violations, in accordance with the valid laws and regulations and to implement reconciliation from the perspective of the nation's joint interests. 33he settlement of cases of human rights violations that occurred in the past is not easy, particularly if settlement is conducted through judicial mechanisms or by bringing the perpetrator before the court.Difficulties that may arise are in the gathering of evidence including witnesses, victims, or articles of evidence that may be used to catch the perpetrator.These difficulties should be able to be eliminated if past human rights violations are viewed as a lesson to the entire nation not to conduct similar violations in the future.The Truth and Reconciliation Commission could be the answer to consolidating national unity in order to build a future and forget the past.
Based on the abovementioned explanation, the focus of the Truth and Reconciliation Commission will be the investigation of past human rights violations.Even though the law has legitimized the use of the retroactive principle to settle human rights violations, experts consider that the retroactive principle should be given a strict time limit.However, it is still proving difficult to find specific factors for limiting this time frame.The settlement of cases through Truth and Reconciliation Commission could reduce political friction that could prolong the settlement of cases if taken to court.Furthermore a special investigation is required to investigate whether an incident in the past constitutes severe human rights violations or not.Investigations of severe human rights violations have a higher degree of difficulty than the investigations of ordinary criminal cases.
The difficulty of conducting aforementioned investigations is evident from the fact that when an incident of severe human rights violations has occurred in the past it is highly likely that the evidence has already disappeared, been damaged, or is difficult to find because the conditions of the field of investigation at the time the incident occurred and the conditions at the time of the investigation are very different.Consequently the investigation of severe human rights violations requires special procedures.These include investigation procedures and special authority being granted to Komnas HAM.
Amnesty shall be granted as in return for revealing the truth of an incident of severe human rights violations.Amnesty shall only granted if when the perpetrator reveals the truth; their confession and apology are accepted by the nation.In the event that the Head of State does not grant amnesty, then requests for compensation and rehabilitation will not be viable and only restitution is possible as it concerns the relationship between individuals and not with the state.
The concept of the Truth and Reconciliation Commission in South Africa is a concept used by the Christians called absolution. 34The most important duty of the Truth and Reconciliation Commission is to discover the facts, when, where, who the perpetrators are, and who the victims are.In this Commission a person who testifies or confesses to a criminal act that has been committed in a complete and detailed manner is then granted amnesty or absolution 35 as a reward for revealing the truth.This is the basis for the birth of a new order of Reconciliation. 36he settlement of cases of past severe human rights violations through Truth and Reconciliation Commissions is an effort to implement Restorative Justice.Restorative Justice is a basic framework for regulations concerning the victims of crime, which demand changes to the understanding that criminal law violations are violations of the rights of victims of crime, as well as violations of public and state interests. 37Existential admissions and the legal position of victims of crime in the criminal justice system are mechanisms for conflict resolution by the provision of restitution, compensation and rehabilitation as part of criminal law and punishment.Acknowledgement of the rights of victims is very important to the settlement of cases of past severe human rights violations, in which the victim is given the opportunity to speak and receive an explanation regarding major incidents of human rights violations that occurred. 38he concept of the Truth and Reconciliation Commission has been applied in South Africa and several other countries; nonetheless the implementation of this Commission in Indonesia still requires in-depth study to adjust it to the characteristics of human rights violations in Indonesia.The importance of understanding the application of the concept of the Truth and Reconciliation Commission can be seen in the Tanjung Priok case.Try Sutrisno attempted to settle the matter by holding an islah (Islamic mechanism of dispute settlement) with the victims and the victim's families.
The islah method proposed by one of the victim to Try Sutrisno 39 who was the Military Commander of the Greater Jakarta Region at the time of the Tanjung Priok tragedy, has not solved the problem from a legal aspect, however it is a possible option if based on Human Rights Law whereby the method of dispute settlement opened up is a judicial mechanism as explained above.Although in fact islah is one of the dispute settlement methods, which can be offered in Islam to break the ice between the parties concerned as a result of a specific incident, that has distanced those parties.Nurcholish Madjid stated that islah is a middle road as well as a humanitarian option. 40Moreover about the ishlah will be discussed more comprehensively on the next part of this paper.

ISLAH: BETWEEN RESTORATIVE JUSTICE EFFORTS AND THE AD HOC HUMAN RIGHTS COURT: A FORGIVENESS IN THE CONTEXT OF ISLAH
What is meant by forgiveness here are internal acts restraining oneself or exercising patience to refrain from taking action as vengeance, accompanied by a change in the way the past is viewed so that restoration is achieved of both the relationship between oneself and a perpetrator and of relations with one's fellow humans in the interests of realising a better future. 41Forgiveness in the context of reconciliation is often referred to by the term "political forgiveness".Political forgiveness cannot be separated from the reconciliation process, because forgiveness represents an integral part of the process of reconciliation, together with truth, justice and peace. 42 Lederach 43 asserts that reconciliation is based on a conceptual framework inspired by Psalm (85:10), "truth and mercy have met together; peace and justice have kissed."Revelation of the truth is a fundamental feature because if the truth is not revealed the conflict will never be able to be resolved.
From the experience of the truth and reconciliation commissions of a number of countries which have experienced conflict such as South Africa, 44 El Salvador 45 and Northern Ireland 46 , without a revealing of the truth and the presence of an acknowledgement by perpetrators, it is difficult to achieve forgiveness in the process of collective political forgiveness, 47 and the process of reconciliation is also hindered.However, truth also has to be accompanied by the willingness to forgive on the part of victims because without love and forgiveness, healthy relationships and the process of healing will never be realised. 48But forgiveness also has to be accompanied by justice because without the enforcement of justice the wounds caused by conflict will not heal and will in fact become even deeper. 49In the end reconciliation is expected to realise a resolution for everyone, not merely a resolution for one group or a merely a handful of individuals alone. 50olitical forgiveness is not the same as the cliché "forgive and forget" because this concept will merely raise the negative side of victims' memories which continue to be unable to be erased from their memories of the terrible events they have experienced.This negative side will in fact create the desire for revenge.Political forgiveness in fact brings to the fore "remember and forgive" which is far better because by remembering, despite the certainty of heart ache and pain, the memory of the past can be harnessed and directed positively so it is able to represent a shared check preventing future repetition.
One of philosophers who emphasises the concept of forgiveness in her political philosophy is Hannah Arendt. 51According to Arendt, forgiveness is an act to better oneself and the community over past acts which indeed cannot be changed and is predicted to produce a better future.She further maintains that forgiveness is a medicine for humanity to erase the trauma and rehabilitate itself from the shackles of events which occurred in the past.Therefore in the public sphere forgiveness is useful for rebuilding public space destroyed by the presence of thoughtless mass society devoid of identity, the reversal of the hierarchy of action (actionlabour), the defeat of zoon politicon and the victory of animal laboran.In developing the concept of forgiveness, Arendt is of the view that mistakes (wrong doing) are an integral part of being human and are an everyday occurrence in relations between people.Forgiveness therefore is something that is very important and necessary so life does not stop and continues to move forward properly.
Apart from the concept of forgiving as a medicine for the destruction of humanity's public sphere, promise and rebirth are two further concepts that can become a kind of medicine.If forgiveness is rehabilitation of past action, promise is commitment or "guarantee of certainty" of a better future.Arendt is aware of the weakness of human action which is not able to predict the future.However, promise is "certainty" from the ocean of uncertainty which blankets humanity, and birth is potential human action which a child possesses that will be realised in adulthood.Birth holds the hope of healing the bitter wounds of the past.Like Martin Luther King Jr., Arendt is also of the view that what moves forgiveness is the strength of love (only love has the power to forgive).But this love is located in the private sphere.Because of this, she offers the concept of "respect" which makes it possible for forgiveness to be carried out in the public sphere."Respect" is friendship without intimacy and closeness.Therefore, forgiveness is action as the realisation of responsibility towards humanity.
Meanwhile, Molly Andrews 52 argues that forgiveness will always be carried out in relation to every kind of perpetrator of past mistakes as long as there is regret and repentance.There can be found the elements of action, person (agent) and situation in any criminal incident.Action or the carrying out of some act can never be forgiven, the situation must be understood and the agent who carries out the action is the element which is forgiven. 53Rationally, metaphysically and even psychologically, a criminal incident is not able to be reduced to the agent alone 54 .Reduction of this kind ignores the human capacity to repent, choose and transform oneself for the better.
From the preceding discussion it can be concluded that forgiveness is inner action to restrain oneself 55 or to exercise patience to not take revenge, accompanied by a changed way of looking at the past with the effect of restoring oneself and relationships with others to achieve a better future.This understanding is consistent with the conclusion of Donald Shiver and Mary Lean 56 : "Forgiveness is an act that joins moral-historical-truth, forbearance from revenge, empathy for wrongdoers, and commitment to repair a fractured human relationship".
Shiver and Lean's statement sees forgiveness as possessing four dimensions.The first is historical truth, meaning that forgiveness is meaningless if truth is not revealed.The past must be discussed, remembered and may not be forgotten let alone supressed or subverted.Second is empathy for the wrong doers, as, notwithstanding their wrong, he or she is still a human capable of doing wrong and of sin.The third dimension is freeing the heart from revenge against the persons who have caused hurt.Fourth is a commitment to restoring fractured human relationships.
Baumeister argues that forgiveness should be put in the context of religion because forgiveness is not only about mechanisms but is also a reminder. 57He further maintains that forgiveness is a value in the human mind that is influenced by people's religious values.In contrast, Meek and McMinn argue that for non-religious clients and therapists 58 many clinical psychologists have detached forgiveness from its religious foundations.Phillips asserts that for many Christians forgiveness might be an unconditional value, an act of love and compassion offered to others regardless of the context or situation. 59zyumardi Azra 60 on the other hand emphasises four different dimensions of forgiveness.In the first place forgiveness starts with a moral assessment.In an Islamic context it is referred to as muhasabah, that is, carrying out introspection and moral assessment of a bitter event that has caused injury.Secondly, there is a decision concerning restitution, compensation of victims or punishment of perpetrators.Forgiveness in this view does not always remove punishment; however, it has to prevent the taking of revenge.The third dimension is the nurturing of empathy for the perpetrators who after all remains ordinary persons.The fourth is developing understanding that pure forgiveness is necessary for renewing relations between people, a willingness to live side by side peacefully accepting all the weaknesses and mistakes of each.

ISLAH AS A BREAKTHROUGH BE-TWEEN THE ACTORS IN THE TANJUNG PRIOK INCIDENT
As discussed in the previous chapter, the Islah agreement can be categorized as a victim-based justice initiative because it arose as a breakthrough between the victims and the military officers responsibility for the incident.The participants in the settlement had a mutual understanding of the incident and wanted to forgive each other as well as achieving reconciliation for a better future.The previous chapter on the contents of the Islah Charter argued that both parties had a mutual understanding that the incident had been an unwanted tragedy and that they wanted to accept that it represented God's will.Furthermore, they stated in the Charter that they deeply regretted that the tragedy had occurred at that time.A mutual understanding like this, accompanied by a statement of regretful, was important in addition for seeing that the tragedy had represented an unwanted incident.They fully understood that each party really wished that the tragedy had not occurred.
The Islah Charter between the actors involved in the Tanjung Priok incident was a breakthrough by making an agreement between the actors and by using consent.Reconciliation through the Charter between the victims and the military officials involved in the inci-dent was an attempt from all the signatories to give priority to the brotherhood of all Muslims.Creating harmony between all the signatories was also a purpose of the Charter.The Islah can also be described as a kind of mediation between victims and offenders to settle confrontation between them and settle the case before the court trial.
Interviewed on television in March 2001, Dewi Wardah 61 interpreted the Islah as a way of reducing the government's "headache" over finalising past gross violations of human rights through judicial processes.The Islah contained an agreement by the victims that the defendants not be prosecuted through the Court and to resolve the case before the trial.Further, Dewi Wardah said that the Islah was a way for the mainly poor residents to live comfortably and peacefully because they would no longer be terrorised, followed, intimidated or turned into a political commodity.Taking the settlement option by signed the Charter was the best for the disabled victims and particularly the victims' children and their heirs.
The consent of the parties in signed an agreement was based on sincerity, mature consideration, clarity of thought and a sense of responsibility for the sake of the national interest and of future generations.The consent discussed above of all the signatories to the Charter can be categorized as an initiative based on a desire to look forward.Through the Islah Charter, the parties also asked the government to rehabilitate their names and those of the former prisoners arrested in relation to the incident.In addition, they also wanted the government to provide compensation in some form as an indication of a sense of humanity that was fair and civilized to all the victims.In the closing section of the Islah Charter, the parties express the hope that what has been achieved through the Islah can be a model for resolving other conflicts that have not been resolved. 62rominent Islamic intellectual Nurcholish Madjid expressed the view that with the signing of the Islah, from an Islamic point of view, other legal efforts would not be needed.He also believed that a harmonious relationship between the parties would be created after the Islah Charter.Nurcholish Madjid stated further that the settlement achieved through the Islah had an im-portant value from the point of view of religion, philosophy and even ideology which would be appreciated by all of humanity and civilization. 63

CONCLUSION
The enactment of the Human Rights Law has opened a new page in the enforcement of the supremacy of law against human rights violations, not excluding human rights violations, which occurred in the past.The transition from a military government towards a democratic government must be accompanied by the protection of human rights.This transition has brought to the surface all manner of past repressions by the government apparatus.
The demand to bring to justice various severe human rights violations' occurring in the past has made the nation remembers the tragedies of those times.One of the demands of victims, the families of victims and other sympathetic parties is that action should be taken against those who have violated human rights in the past.During this transition period, these people demand justice.The demand for justice does not only focus on human rights violations, which occurred in the past but also similar human rights violations that will occur in the future.The existence of a permanent Human Rights Court seems to imply that human rights will be upheld and protected.Cases of severe human rights violations that occurred in the past should be resolved through the ad hoc Human Rights Court and the Truth and Reconciliation Commission.
The official Elucidation of Law No. 26/2000 on Human Rights Courts clearly states that the provisions of Articles 7 and 8 of Law No. 26/2000 are to have the same meaning as in the Rome Statute of the International Criminal Court.However, the procedural law still uses the out-of-date Law No. 8/1981 on Criminal Procedure and this resulted in many obstacles in proving crimes and admitting evidence.Former chairman of the panel of judges Andi Samsan Nganro complained about the difficulty of leading the panel, especially in relation to admitting evidence.The procedural law used in the Ad Hoc Human Rights Court should also have referred to the International Criminal Court's provi-sions relating to procedural law and should have provided the panel of judges with the authority to create the methods and types of evidence needed to find the evidence appropriate for delivering justice.
It is clear from the explanation above that the human rights court legislation should be amended in response to the above experience.An academic draft of a draft law is urgently needed.This draft should also specify clearly the elements of crimes that need to be proved.A draft law should also specify the role of the panel of judges in legal findings, especially in relation to the law of criminal procedure with a view to ensuring the delivery of justice.This would ensure that the procedural law is not overly rigid, but rather that it is subject to change by the panel of judges in the name of delivering justice for the victims.The procedures for compensation should also be clearly provided for and include the possibility of awarding compensation without the conviction of a defendant.These measures would help apply principles of victim-based justice in the human rights court.
Further, although the human rights court law provides for the possibility of prosecuting past gross human rights violations, the provisions regarding the mechanisms for the establishment of an ad hoc human rights court created the possibility of "political intervention" into the law.Giving the role of arranging an ad-hoc human rights court without clearly defining the mechanism gave a blank check to politicians to indulge in political intervention in the establishment of an adhoc human rights court.In response to the current establishment provisions an amending draft law should clearly define the mechanism for the establishment of human rights courts.
The mechanisms for resolving cases of human rights violations being proposed will improve if they are firmly committed to justice.The resolution of past human rights violations via a conflict approach is preferable for the national reconciliation.An attitude of looking further to the future of development via national reconciliation is the method proposed for this stage of governmental transition.This concept was successfully carried out in South Africa, and gave birth to the national reconciliation.
The resolution of past human rights violations through extra-judicial organizations is an advanced step towards resolving the case, whereas a conflict approach can be used to settle the case.The existence of the Human Rights Law provides a new frontier in implementing the principle of restorative justice in the approach of case settlement.It is hoped that such restorative justice can create a political balance between the past and the future.Van Zyl further stated that since its first appearance in Argentina and Uganda in the medium 1980, KKR has become an international phenomenon.More than 20 countries have chosen the way of establishing the TRC as a way to account for human rights violations that occurred in the past.Some of them noted a great success, though of course there are the partially successful, and there were also some hit by failures.Ibid.Progressive justice is the way of implementing justice that depersonalized the retribution or revenge in punishment but in order to achieved other purposes in example the reduction of crime (including its reduction by deterrence) and the protection of the public.Progressive Justice also want to achieve the reform and rehabilitation of offenders, and the making of reparation by offenders to persons affected by their offences -that distinguish justice from revenge.See Allen, Rob.  15 General Explanation.Indonesia Supranote 8. 16 "Assault aimed directly at the civilians" means a set of activities carried out on civilians as a continuation of the policy of the authorities or policy which is related to an organization (see explanation section of Article 9).Indonesia Supranote 8. 17 Murder here is as set forth in Article 340 of the Indonesian Criminal Law Code.Indonesia Supranote 8. 18 Extermination includes acts that cause suffering which are carried out deliberately, and includes the delay of food and medical supplies, which may result in the annihilation of civilians.Indonesia Supranote 8. 19 Enslavement here includes trade in humans, particularly the trade of women and children.Indonesia Supranote 8. 20 Deportation or forced transfer of residents means the forced transfer of people via exile or other forceful acts from the area where they validly live, without any basis permitted by international law.Indonesia Supranote 8. 21 Torture in this stipulation means deliberately or illegally causing serious pain or suffering, whether physically or mentally, of prisoners or people under supervision.Indonesia Supranote 8. 22 Forced disappearance of people means the arrest, detention or kidnapping of a person by or with the authorization, support or approval of the state or of an organization's policy, followed by the refusal to admit to the expropriation of freedom or to provide any information regarding the fate or condition of the person concerned, with the purpose of keeping them from the protection of the law for a long period of time.Indonesia Supranote 8. 23 Apartheid crimes are inhuman acts the same as those described in Article 8, which are conducted in the context of an institutional regime in the form of oppression or domination by a certain group or groups of other races for the purpose of maintaining that regime.Indonesia Supranote 8. 24 Sudikno Mertokusumo, Mengenal Hukum (Suatu  Pengantar), (Know the Law (An Introduction)) 1 st edition.(Yogyakarta: Liberty, 1996). 25Impunity is an exemption from punishment (The New Webster Dictionary, Op.Cit.) 26 The problem of the contradiction of the retroactive principle is also stated in Article 18 paragraph 2 Law No.39 year 1999 regarding human rights, where it is stated that "no person can be charged and punished for a crime, except on the basis of laws and regulations which were already in existence before the crime was committed".The issue of legality in criminal law is often used as a reason to reject the authority of the ad hoc human rights court to investigate, hear and judge cases of human rights violations, by the legal advisors of the defendant in the ad hoc human rights court.The information comes from interviewed with Widodo Supriyadi (Prosecutor of Attorney General Office), interviewed held in 22 nd of May, 2012 at Attorney General Office. 27General Explanation section.Indonesia Supranote 8. 28 39 This is as mentioned by Syarifuddin Rambe in the interviewed that held in 10 of May, 2012 at his house in Tanjung Priok.He mentioned that on the meeting with Try Sutrisno, he explained about the initiative to make an Islamic settlement called Ishlah and proposed Nurcholish Madjid (prominent scholar and Ulama) to be a mediator between victims and military officer at that time of incident occurred, Ishlah mechanism is the way to reconcile all actors in Tanjung Priok 1984, and not to be a such of commodity for certain people or group by raising this issues all the times, we want to live in peace and give our pardoned for the all happened in the incident, Rambe said in the interviewed.40 Paul. "Dilemmas of Transitional Justice: The Case of South Africa's Truth and Reconciliation Commission."JOURNAL OF INTERNATIONAL AFFAIRS-COLUMBIA UNIVERSITY 52 (1999): 647-668 2 Atmasasmita, Supranote 4. 29 United Nations, Basic Facts About the United Nations, (New York: Department of Public Information United Nations, 1998), page.269. 30Article 43 paragraph 2 states that "the ad hoc human rights court as mentioned in paragraph 1 was established at the request of the Indonesian Legislative Assembly based on certain events and by Presidential Decree".Indonesia Supranote 8. 31 Personal interview 2012 at his DPR office. 32The White Paper was a report and criticism a number of prominent figures at the time of the Tanjung Priok incident.All were associated with the organization called the Petition of 50 (Petisi 50).At the time AM Fatwa was secretary and HR Darson was chairman of the Petisi 50 group. 33Final paragraph of General Explanation, Law No. 26/2000 regarding The Human Rights Court.In addition, the establishment of the Truth and Reconciliation Commission is also mentioned in the People's Advisory Assembly (MPR) Decree Number V/MPR/2000 on the Consolidation of National Unity.Indonesia Supranote 8. 34 H.M. Dandala, in "Role of The Religious Communities in Bringing Reconciliation in South Africa", (the paper was delivered at an International Conference: National reconciliation: Learning from the Experience of South Africa, Jakarta, 22 nd March 2001), page 2. 35 In the Law of the South African Truth and Reconciliation Commission (The Promotion of Unity and Reconciliation Act 1997), it was stated in the preamble "...the garnating of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with political objectives committed in the course of conflicts of the past during the said period (1 st March 1960 -6 th December 1996)…" 36 Reconciliation means an adjustment, or to bring together two things which differ one from the other so that they can now agree and be as one.(Webster Dictionary,Op.Cit.) 37Mudzakkir, "Posisi Hukum Korban Kejahatan dalam Sistem Peradilan Pidana," (The Legal Position of Victims of Crime in the Criminal Justice System) (Doctoral dissertation, University of Indonesia, Jakarta, 2001). 38International Crisis Group, "ICG Asia Report on Indonesia: Impunity Versus Accountability for Gross Human Rights Violations," (Jakarta, 2 February 2001), page 26.