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3.2S

3.2.6 – The Potential of Testimony in Transitional Justice: what Truth Can It Bring to Light?

The Potential of Testimony in Transitional Justice: what Truth Can It Bring to Light?
Laura Degaspare Monte Mascaro, University of Sao Paulo
laura.mascaro@hannaharendt.org.br

Abstract: Frequently, authoritarian regimes that perpetrate administrative massacres leave a mark on the past of a people’s history, which has to be remembered and understood so that people can project its future with freedom. Considering that the transitional justice process can be an opportunity for emerging the memory of a traumatic past and of its horrifying events, this article intends to discuss the role of testimony (and testimonial truth) actualizing the right to truth and memory, questioning the principles and the forms whereby courts and truth commissions usually search for the factual truth; and outlining how testimony could be able to deal with the wounds of the past and their unrepresentability, exposing a truth that surmounts the facts. The examples explored in the article are from the Eichmann trial in Israel, the South African Truth and Reconciliation Commission (TRC) after Apartheid, and the Brazilian National Truth Commission (NTC) after the military regime.

I. Introduction

The Holocaust (also known as Shoah, “the catastrophe”) was an unprecedented event, which produced a disruption between past and future. Such disruption represents a gap that forbids us to properly treat the wounds of the past from memory and understanding. Thus, the way sciences, philosophy and other fields of knowledge understood the world and man was suddenly no longer adequate, there were not enough categories to understand the barbarism of the recent events.

For Hitler would have imposed a new categorical imperative to men: to direct their thinking so that Auschwitz won’t repeat itself, such concern oriented the theory of thinkers who dedicated their comprehensive regard to the twentieth century, like Hannah Arendt, and that remain fundamental until today.

Arendt was very much concerned with the memory of totalitarianism, since such memory and understanding would prevent the outbreak of an event of similar proportionsi;ii, and, accordingly, always attributed great importance to narrative and experience as means to achieve comprehensioniii.

Therefore, the events of World War II led to a new relationship with the past, which instigates a change in various fields of thought like history, philosophy, law and literature. These changes emerge from a new way of dealing with memory and of understanding the past.

Even today, it is essential to think about these changes, considering that a lot has been written to increase our knowledge of the events themselves, but our understanding of the events is still an unfinished work, since it depends on thinking itself and its categories.

In the history field, the task would be the rescue, remembrance and historical narrative of the tragedy. However, after Auschwitz the relationship with the past starts to be guided by the category of trauma and by oblivioniv.

Historiography, an invention of the nineteenth century, which sought to know the past as it occurred, no longer seemed adequate for this investigation. Its view of the past was intended to be able to archive all eventsv. Enlightenment concepts that were the basis of this historiography – namely, progress and linear ascension of history – no longer made sense when we realized that at the peak of reason and technique’s development emerged the most unimaginably irrational violence that humanity was able to produce, disguised under a mechanistic cover.

In return, we have watched the growing importance to history of the memory record, which captures the fragmentary character of the event and its human dimension in its most sensitive way. Such record would be rooted in individual and community experience, in the attachment to symbolical sites and wouldn’t have as its goal the full translation of the past and its mastering.

Moreover, the relation of this historical past with trauma could no longer be seen as an object subject to domination, but rather domination became reciprocal, making it impossible and undesirable to fully know the past.

However, the response to historicism could not be a compliment to frivolous oblivion. The task of remembering and understanding persists, but recognizing that as the truth is unveiled a portion always remains hidden. The memory record, undoubtedly more selective and operating a double bind between remembering and forgetting, expresses such recognition.

We consider that the tension between history – closer to the science of historiography – and memory shouldn’t be dissolved, but integrated in the rescue and narration of the events of the twentieth century. Such dichotomy couldn’t be exclusionary, because the dignity and the need of history’s vocation remain intact for its purpose of struggle against deliberate lie, against distorting sources and documents, and against invention that seeks to promote amnesty.

On one hand, the question as to how to deal with epistemological issues such as these in face of twentieth century events puts science and classical metaphysics into question, as well as their understanding of the truth. On the other hand, it is in the face of these edge-phenomena that thought finds new paths. Thus, by rescuing and reorganizing the shards of the past, philosophy might question the principles of knowledge and truth that have been pushed to their limits. From this reordering, it would be possible to give them a meaning and understand them.

We consider that the testimony is one of the expressions of these changes and questionings at the justice field, while it dialogues and challenges other fields of thinking and knowledge.

The paradoxical task of communication (struggle against oblivion, repression, and repetition) and of recognition of the unrepresentability, demands from imagination new forms of ordering the world that have also an paradoxical relationship with the reality: of loyalty and of overcoming, because what language allows one to express is, in fact, always fiction.

It is worth mentioning, finally, that the experience of the Shoah, of the fracture it produced – together with the attempts to overcome the understanding gap between the past and the future – works as a reference to transitional (or transformativevi) justice systems, which deal with past regimes of administrative persecution and massacres. Transitional justice in the world is to a great extent influenced by authors who thought about the totalitarianism and the barbarism of the Holocaust (sometimes even experienced these events), and sought to rescue the very possibility of thinking and understanding the world after Auschwitz.

Considering that the transitional justice process can be an opportunity for the memory of a traumatic past and of its horrifying events to emerge, the present article intends to discuss the role of testimony (and testimonial truth) in actualizing the right to truth and memory, questioning the principles and the forms whereby courts and truth commissionsvii usually search for the factual truth; and outlining how testimony could be able to deal with the wounds of the past and their unrepresentability, exposing a truth that surmounts the facts. For this purpose, we intend to call upon some examples from the Eichmann trial in Israel, the South African Truth and Reconciliation Commission (TRC) after Apartheid, and the Brazilian National Truth Commission (NTC)viii after the military regime.

2. Memory versus factual truth

Firstly, it is important to determine which kind of truth Transformative Justice processes usually seek. Considering the two main formal mechanisms of transitional justice, which are trials and truth commissions, the truth they seek should be factualix.

We aren’t trying to match commissions and trials as equivalent forums. But perhaps the kind of truth they aim to establish with their narratives is closest to the factual. However, we must acknowledge that the narrative constructed by the storytellers on trials should focus on the facts pertinent to actions of the person sitting at the defendant’s seat, while truth commissions must construct a broader narrative, focusing on the crimes perpetrated within a certain time and space. For the latest purpose, the stories of both perpetrators and victims must be considered.

Also, in Brazil, for instance, the NTC wasn’t created to have a legal approach to the facts and responsibilities – which would reach a final conclusion in a certain moment that cannot be altered, culminating in the res judicata. Historical judgment, on the contrary, is much more open and subject to revisions. The work of this truth commission should contribute with the historical judgment, however, it is impossible to frame the extent of history within the existence of such a commission, which is so ephemeral and culminates, by the end of its works, in a detailed reportx.

In spite of the differences between these mechanisms, which must always be taken into consideration, we could agree that the main source of the historical truth they seek is the event itself, the fact. This source may determine the tools they use, the understanding they have of a traumatic past and how they treat the wounds it has inflicted.

In order to fulfill its purpose of uncovering the facts once masked, truth commissions and courts can make use of certain tools such as the disclosure of files, access to information and testimony from the victims and perpetrators. Disclosure of files and access to information usually grants experts access to documents kept in secret by the same institutions that perpetrated crimes in the past. Although it is a very valuable and necessary resource that goes against hiding and dissimulationxi, the truth as aletheiaxii shows us that each unveiling entails an occultation. Therefore, there must be different ways of accessing the facts that provide a more complete and multifaceted picture of the so-called truth, which is also fragmented.

Testimony, which is also a resource largely used by truth commissions and courts for reconstituting events, may not be so adequate for this purpose, once its immediate source isn’t the event itself but its memory. The mnemonic representation of the event will not provide the court with a unambiguous truth, like a document is expected to do. However, it represents more accurately the conflicting essence of the truth and has no intention to unveil the entire history.

It is important, then, to show the distinctive character of memory: it is selective and is lived at the present with a concern for the future, and is characterized by the living remain of a pastxiii. As in Drummond’s poem Resíduoxiv, it is about a pool, a trace and its subjective nonfactual truth:

(…)
And from everything a little remains
Oh open the lotion bottles
and muffle
the unbearable stink of memory.
But from everything, awful, a little remains,
and under the rhythmic waves
and under the clouds and the winds
and under the bridges and under the tunnels
and under the blazes and under the sarcasm
and under the slime and under the vomit
and under the sob, the prison, the forgotten
and under the spectacles and under the scarlet death
and under the libraries, the asylum, the triumphing churches,
and under yourself and under your already stiff feet
and under the hinge of the family and of the class,
Always remains a little of everything.
Sometimes a button. Sometimes a rat.
(free translation by the authorxv) xvi

3. Truth in face of reconciliation and amnesty

Another obstacle transitional justice has to face in its purpose of searching for the truth, apart from its fragmentary and conflicting character, is political.

According to Lafer’s considerations on the NTC, the fact of torture is irreparable, indelible, and that is why transitional justice should be concerned not only with historical truth, but also with the memory of the stain violence has producedxvii. However, the stain, the truth that arises from the suffering and the trauma, not always serves the appeaser purpose that instructs for instance amnestyxviii and reconciliation. Derridaxix wisely raises the question: “what does ‘truth’ means here, and what to do when the so said ‘truth’ can be an obstacle to reconciliation, rather than conduct towards it?”xx

Leora Bislky (2004) considers that the Kastner case, for instance, was a shadow over the historical narrative the prosecution wanted to tell at the Eichmann trial, since Hausner believed that allowing the subject of the collaboration of the Jewish leaders with the Nazis to emerge during the trial went against the educational purpose he aimed to achieve by letting the Holocaust victims have their day in courtxxi. The reconciliation he sought between Israeli society and Holocaust victims meant it was necessary to hide this piece of the narrative. According to Bilskyxxii, for Hausner:

Neither the Kastner trial, which was a form of self-castigation by survivors, nor the Nuremberg trials, which advanced the agenda of the victorious Allies, could be seen as providing the kind of reconciliation with the past needed by the Israeli society.

Arendtxxiii, on the contrary, believed that reconciliation should be with reality, with things as they are and with past as it was. Out of this acceptance can arise the faculty of judgment, which will also work to prevent the repetition of these facts in the future. However, she also states that reality arises only when facts are organized into a comprehensible narrative, thus, acquiring some humanly comprehensive meaning. What must be asked then is: how to tell this story?

What concerns us here is how to bring these events into light, and, more importantly, bring them into the light of an individual comprehension, by those directly involved, as well as of a collective understanding. Such understanding, however, will never be singular, since the faculties of thinking and of judging, needed for understanding, do not lead to a universal conclusionxxiv. However, they will be more representative, the greater the number of voices they are able to. So, many narratives must be built at the public space, to improve the exchange of experiences and examples.

Accordingly, testimonies go against the purpose of establishing “one truth” about serious human rights violations occurred during authoritarian regimes. Usually courts and truth commissions follow this purpose and are very limited, once they are instituted for a determined period of time, having greater or smaller range regarding the events they are supposed to judge or unveil. However, in spite of building a report – that already operates a cut, a selection, an interpretation – or reaching a judgment, courts and truth commissions must assemble a file of sound and visual records, apart from documentation, transcriptions, deliberationsxxv. Such file and the transitional justice Process memorabilia may give room to a more plural understanding of the traumatic events.

4. Testimonial truth as spiritual understanding

No doubt that disclosing files, as documentary sources, contributes to the reconstruction of the facts occurred. These documents are subject of study and analysis through the historical method. As we mentioned, the comprehensive unveiling of a past marked by the trauma of administrative massacres depends not only on the facts to be discovered. The big question would be: how to look at and treat the wounds of the past?

We must recall the disagreement between Arendt and Hausner on how to tell a story: whether the story should be told through written documents or through the oral testimonies of survivorsxxvi.

The value of these documents is that they usually bring a much more original version of the facts, considering that they are not a place of memory – since memory should be alive. They usually convey a version of the facts registered at the time of the events that has been conserved. They are what can be called a trail traced by the writing, which has to be brought to life by the expert’s interpretation. They usually carry a very literal meaning, which is the heart of its legal certainty and reliability. Accordingly, the decision of the prosecution at the Nuremberg trials, to rely primarily on documents, was taken to guarantee their objectivity.

Another element that differs the truth borne by documents from the one borne by testimonies is the fact that documental truth is impersonal. There is no personal “I” in the discourse conveyed by a document. It is usually an institution or a “post” that subscribes it and one cannot be sure about who wrote itxxvii. Therefore, the speech conveyed by the writing in a document is rather absent than present and so is its author. According to Bilskyxxviii:

For the purposes of a trial, documents do seem to provide a more reliable source. There is no need to depend on the retentive memory of witnesses many years after the event. A document speaks in a steady voice that cannot be silenced or interrupted. (emphasis added)

Getting back to Plato’s Phaedrus and Derrida’s Pharmakon, on the myth of the invention of writing, this “tool” is criticized firstly because writing is far from speech as speech is far from thinking (dianoia) and secondly because it wouldn’t be a medicine for memory, on the contrary, it would be a poison, since memory is a live element that should be exercised, not substituted by a prosthesisxxix.

Therefore, the dualism between thought and language is very important when we refer to memory in the philosophical and ethical fields. Aristotle’s Poetics expresses this dualism by separating history (muthos) from its expression (lexis). In the case of classic rhetoric, due to the legal structure of its original practice, such dualism is translated by the dichotomy between intentio and actio, or voluntas and scriptumxxx.

Saint Augustine denounces the hermeneutic mistake that consists in privileging the scriptum, instead of the voluntas, considering that the writing is equivalent to the body that imprisons the spirit or the soul. Thus, Augustine sides with a spiritual reading of the text, in opposition to the carnal or physical reading, and identifies the body with the writing and the canal reading with the one that cannot go beyond the text and cannot infer other meanings apart from the literal one. However, it is clear that as the body must be respected, the writing should be preserved as the starting point to the spiritual interpretationxxxi.xxxii

So, how can we bring out the presence of spirit and soul that is missing in the documents? How can we make the soul rise to the surface?

The opening of transitional justice to testimonies makes room for a proper space, within the proceedings, for the multiplicity of voices and truths of the victims. It must be remarked that once they are discourses based on the memory of individuals – and not on official documents, to which can be attributed certain certification of the truth as adequacy to certain parameters – we are dealing here with the building of discursive truth from fragments of memory, their selection and ordering.

Nuremberg trials focused on documental evidence and there was no space for the voices of the victims, which, on its turn, was found in the Eichmann trial, due to the wide range testimonies of the victimsxxxiii. Certainly:

The most important legacy of the Eichmann trial was Hausner’s decision to base the prosecution’s case on the testimonies of around a hundred Holocaust survivors about their experiences and suffering under Nazi rule. These testimonies were largely responsible for creating the consciousness of the Holocaust in Israel and throughout the world.xxxiv (emphasis added)

In the context of the TRC, testimonies were also collected, which were analyzed on Derrida’s brilliant lecture Forgiveness, Truth, Reconciliation: What Gender?. In that context, forgiveness was dealt as a public subject, delegable and exploited for political utility.

Derridaxxxv questioned whether the validity of testimonies as factual evidence should be trusted, since proof, evidence, will never be of the order of testimony. Maybe not, but it still has the power to bring out a truth other than the factual. Perhaps the purpose of trials and truth commissions should not be restricted to factual truth, with the risk of having unpredictable outcomes. Arendt feared, with good reason, that oral testimonies by survivors would open the door to the suffering of the victims – a suffering that had no measure and could not be comprehendedxxxvi.

This is why we must face the question of whether the courtroom (or truth commission) is the proper forum for such endeavor. Bilsky xxxviiasks “what is the added value of a courtroom to the testimony of survivors and does it justify the risks of turning the trial into a show trial (…)”? The answer is never simple and, most of all, never uniform to all transitional justice cases or mechanisms, depending on many political and circumstantial factors.

Going back to Augustinexxxviii, he considers speech closer to the “the word that we have in our hearts” than what he calls “signs”:

Just as when we speak, in order that what we leave in our minds may enter through the ear into the mind of the hearer, the word which we have in our hearts becomes an outward sound and is called speech; and yet our thought does not lose itself in the sound, but remains complete in itself, and takes the form of speech without being modified in its own nature by the change.

We can observe that Augustine doesn’t establish a difference between what comes from the heart and what comes from the mind, between soul and spirit. Arendt, on the contrary, does that on The Life of the mind, while explaining how soul could be disclosed as an inauthentic appearance.

5. Bringing soul to surface

First of all, appearance not only reveals, but also conceals, as what is veiled and unveiled at the a-letheia. According to Merleau-Pontyxxxix, “nothing, no side of something shows itself without effectively hiding the others”. Therefore, protection might be one of the most important features of appearance.

Subsequently, Arendtxl operates an inversion of hierarchy between appearance and essence, considering that appearance may be more significant than the functions it conceals, which serves the preservation of the individual and the species. Then follows the distinction between authentic and inauthentic appearances: from things that spontaneously are offered to the senses and things that only are shown as consequence of a violation of the authentic appearance.

Consequently, what is shown authentically is what distinguishes us as individuals, considering that from the inside we would look all the same. But why is this important to testimony? Because this analysis may be adequate not only to the body functions, but also to the dichotomy spirit/soul versus language.

Appearance shows a power of major expression compared to what is internal. The presupposition that soul and spirit are the same – since both are opposed to the body due to their invisibility – doesn’t apply to the way of expressing and of making them come to the world of appearances. What applies to the spirit doesn’t apply to the soul. The metaphorical discourse is indeed adequate to the activity of thinking, but the life of the soul is much better expressed in a look, in a sound, in a gesture, than through speechxli.

For the spirit, even the mute activity that doesn’t appear, already constitutes a kind of speech – the silent dialog of me and myself – and, as stated by Augustinexlii, isn’t altered in nature when takes the form of speech. Our feelings, passions and emotions, on the other hand, have the same trouble of our internal organs to become part of the world of appearances.

The situation experienced by the prosecution in the Eichmann trial sets a clear example: Hausner, while preparing the witnesses to testimony, was confronted with the difficulties they had in telling a coherent story. He faced the phenomenon that Lawrence Langer calls “deep memory”, a moment when the trauma surfaces and engulfs onexliii.

When Arendt discusses the past of totalitarianism, she argues that this past has proved itself not susceptible to “domination”, indicating that if the refuse to think the unthinkable has prevented us to reevaluate legal categories, which appear to be harmless side issues, what to say about the horror? This is an obstacle for the understanding, since a lot of attempts to translate experiences – which are mostly emotive and prohibit speech – have shown to be inadequatexliv. As stated by Laferxlv, the fact of torture is irretrievable; however, how to treat the memory of this fact that opened a wound, as the inscription of the trauma?

How, then, can we expose these experiences of suffering into the world of appearances, when its representation is denied by the inauthenticity of its appearance. Every form of demonstrating that suffering, apart from physical signs, is nothing more than what the activity of thinking does with this raw material, and is distinct from the suffering itself. It involves a decision on what should appear and how. The moment of reflection and transfer to the form of speech is the time to signify the feeling, through the spirit. It is this meaning that is given to the experience of suffering, beyond the fact itself, which must be seized and will allow the victim to identify herself as such. And how the individual carries this translation is what makes that suffering and that person unique, not the suffering itselfxlvi.

When a woman in the TRC, whose husband was kidnapped and murdered, was invited to hear his assassins’ testimony, she is questioned whether she is willing to forgive them. And she was not. Her “exact” words were: “No government can forgive. [Silence.] No commission can forgive. [Silence.] Only I can forgive. [Silence.] And I’m not willing to forgive [Silence.]”xlvii;xlviii. With this statement she goes beyond her unique and unspeakable suffering. She signifies it, going against the sense of a forgiving taken from her by a government, or any other political-legal device.

By saying “only I”, she also means that the first victim, her husband, is dead. This recalls Primo Levi’s testimonial and literary work Se questo è un uomo, considering that he, as a survivor, admits to write “by power of attorney”, namely, on behalf of those who perished and who cannot return to tell their own deathxlix. Hausner also claims to speak in the name of six million dead, which also raised the issue of the victims’ representationl. Thereby, we can see intertextuality arise from the multiple references established consciously or not between one speech and the other.

Also, this woman’s statement, which was translated from a local language, raises the issue of the language that is imposed to the witnesses in their testimony. The mandatory or adequate language to these commissions tends to impose certain logic, sometimes, legal or political to what is said or translated. Considering cases such as the indigenous people that had entire villages or communities decimated during the Brazilian military dictatorship li, this issue is really important. The character of presence of the testimony should be sheltered even concerning the language spokenlii.

6. The scene of the testimony and its character of presence

According to Arendtliii, the “stories” produced by action and by the web of human relations say a lot about their subjects, the “hero” who in the center of each story – who cannot be called its author, because no single individual canliv. According to Arendt, the real story, in comparison to a fictional one, has no visible creator because isn’t created and the only “who” it reveals is its hero. Therefore “who somebody is or was we can only know by knowing the story of which he is himself the hero – his biography (…)”lv. This relates intimately to the important question raised during the Eichmann trial, which remains essential to all transitional justice trials and truth commissions: who is to tell the story?

The decision of whether letting the victims speak in trials or truth commissions is crucial. Arendt`s initiallvi insistence that the court established the truth trough more objective tools could have served to repeat the silencing intended by the Nazis – the erasure of the human voice as a reliable witnesslvii.

Apart from bringing the soul to surface, the victims’ voices can have a profound effect on the audience, as happened at the Eichmann trial. According to Bilskylviii “the abstract knowledge about the Holocaust was made real through the authentic voices of the survivors”.

Thus, another important aspect of the testimony and its differing presence is the attendance of the victim or witness in body and soul, as we commonly say. According to Derridalix, the scene of the testimony and of the unveiling of truth, stages the witness’ body that can also be a victim (of torture, rape). New issues arise from this presence: the violence inflicted upon the testimonial body at the very moment of the testimony, by testimony, by its veracity, either because for the first time a woman has to unveil the traces of violence on her body, either because she has to report one or several abuses. As pointed out by Arendt, in some cases, the suffering as found in the soul cannot be spoken, because it would make the victim revive or relive? or even enhance the prior violencelx.

Every violence inflicted on the body, is somehow, sexually abusive. For this reason, some women at the TRC couldn’t reveal the truth, being incapable of manifesting what had been inflicted upon them, precisely because their public and private speech about the experience had been murdered a priori. Sometimes, the condition of testimony doesn’t exist and, when it does, obstacle could be brought against the truth and reconciliation project in South Africa, since these two purposes might not be reconcilablelxi;lxii.

One of Derrida’s metaphors that reinforces the aspect of presence of the testimonies is the metaphor of the theater. The limited time of activity of truth commissions makes them the stage of a play, when truth comes on stage. Derridalxiii states that “there is a stage where scenes, acts, must be represented, with their proper duration, namely, a finite one”lxiv. Once the drama and the catharsis have occurred, the curtain must fall.

Thereby, such limited time to seek the truth is a theatrical time, controlled, as well as the structure of the stage, the actors, the acts and the scenes that take place in a particular time and space. A question that rises inevitably is whether this singular performance is sufficient so that these actors and the audience handle the truth that was presented and not presented. It is also curious that the metaphor of the theater is often used to understand and picture the court and trial. Even though the purpose of a truth commission is not the same as the purpose of a trial, were the facts and the truth will be interpreted as they fit in the criminal law standards or not, both are limited in time and have the character of presence when it comes to the testimonies, which make both resemble a performance.

Bilskylxv brings the same metaphor up to characterize the court:

Every seasoned practitioner knows that trials are rarely an accurate representation of the past. More often they reenact past events in a concentrated and dramatized form. The theatrical aspects of a trial help reveal a truth about the past that might otherwise remain obscured, but they also contribute to the symbolic reenactment of the original crime within the courtroom, thereby causing victims to relive the trauma. (emphasis added)

Not for nothing Arendtlxvi states there are many ways to reify the content and meaning of action and discourse in a work of art, however, the best way to express the action and discourse revealing character, which is intimately connected to the live flow of speech and action, is the drama that “imitates” action. The mimesis element is present also in the act of writing the play; however, it is fully portrayed when interpreted at the theater:

Only the actors and speakers who re-enact the story’s plot can convey the full meaning, not so much of the story itself, but of the “heroes” who reveal themselves in it.lxvii

Regarding the Greek Tragedy, the universal meaning of the story is revealed by the chorus, that doesn’t mimic and whose commentaries are pure poetry. Arendt, thus, sees the theater as the art of politics par excellence. We must highlight the conflict of the Greek Tragedy, which is: how can one act politically (praxis), when one is not free?

Heidegger, in his Parmenides, shows an opinion on the Greek tragedy that also relates its way of representing to the character of the polis. The polis, as historical residence of the Greek humanitylxviii, and the stage for the aletheia conflictlxix, has a cruel, atrocious character, where the ascension and fall of man take placelxx;lxxi. The disclosure and concealment of the being happen on the basis of the speech and, very particularly, are pictured at the tragedy. The tragic mask that makes it so different from the subsequent dramatic arts is a symbol of the duality of aletheia that existed in the polis.

The tragedy tries to mimic action, outlining the boundaries of freedom. The Greek tragedy essentially portrays human freedom against the fate guided by the daimons. The essence of tragedy, therefore, lies in the political man in full action, not in the modern political action, we must say, but in the original one, which is close to Arendt’s understanding of politicslxxii.

Such rapprochement of the stage, the court and politics meets Leora Bilsky’s transformative justice theory. She states: “the political struggle waged in the courtroom transforms dry and distant story or abstract ideological worldviews into a living story with a name, a face and a body. It turns the theoretical dilemma into actuality and makes it accessible to the larger public.”lxxiii Therefore, trials and truth commissions constitute privileged political forums, where testimony has also the role of an important political discourse that, as we explored, reveals the agent as a victim and as part of a certain community.

7. Conclusion

For all the above, we can conclude that maybe truth commissions and trials as transitional justice mechanisms seek for a supposedly objective, singular, truth, as historiography could intend to determine and fixate. However, the truth revealed by testimonies may not be so objective and extensive, but rather fragmented and, at large, gathering multiple aspects of the so called truth, each one revealed by a unique speech that brings a singular picture of the real.

As these reports are informed by the live memory, rather than by a look that remained frozen in time, the most important aspect brought by them is not the fact or the event itself, but what has been done with it: how it was processed and interpreted by the spirit and thinking over the years. The movement of the spirit, according to Derrida’s interpretation of Hegel, is what constitutes its method and this movement is what is on the scenelxxiv.

Therefore, testimonies are a powerful tool for telling a story. They certainly unveil a fragmented and unpredictable truth, one of many voices that may frustrate the outcomes politically intended in a certain transitional justice stage.

On the one hand, testimonies may always raise unexpected issues or reactions that scape from any rehearsal. The testimonies in the Eichmann trial, for instance, were very risky for the historical narrative the prosecution sought to promote, specially the ones of the witnesses who were the most relevant to providing the case of the prosecution. And in the end that risk ended up disturbing that narrative and making other interpretations possible, such as Arendt’s.

On the other hand, deciding to sustain his case through the testimonies of Holocaust survivors, Hausner made possible for the voices of the victims to be finally heard, ending a silence that dated from the Holocaust and even characterized itlxxv. This trial also became a model for ulterior transitional justice processes because it put the spotlight on the who, on the identity of the victims who told the story, and allowed these people to be part of the past and future of a people.

The element of surprise that arises from testimony is intrinsic to it and to all transitional justice processes. One must deal with these outbursts and plot twists by trying to understand them and to form a meaningful narrative. This is the part for historians, writers, philosophers and other storytellers to act.

Notes

i Not an identical repetition, rather a reissue of mechanisms of exclusion, violence and annihilation.

ii This concern is expressed in several works such as Eichmann in Jerusalem and Responsibility and Judgment.

iii In the preface to Between Past and Future, she stresses the importance of the meaning of events in the mind of the ones telling a story: “The point of the matter is that the “completion,” which indeed every enacted event must have in he minds of those who then are to tell the story and to convey its meaning, eluded them; and without this thinking completion after the act, without the articulation accomplished by remembrance, there simply was no story left that could be told.” (Arendt, Hannah. Between Past and Future: Eight Exercises in Political Thought. New York: Penguin, 1968. 6). Furthermore, the faculty of thinking and judging are founded in memory and example, whether arising from experience or fiction.

iv It is noteworthy that Auschwitz configured one of history’s largest attempts of “memorycide”. Forgetting, in its original meaning from the Greek is a kind of concealment, like a veiling that subtracts something essential and alienates the man from himself. Thus, such forgetting would prevent the unveiling of the very meaning of the human, which is consistent with that understanding gap we have described.

v Seligmann-Silva, Márcio. “Reflexões sobre a memória, a história e o esquecimento”. In História, memória, literatura: o Testemunho na Era das Catástrofes organized by Márcio Seligmann-Silva, 60-3. Rio de Janeiro: Companhia José Aguilar Editora, 1967.

vi Leora Bislky uses the designation “transformative justice” due to the ability of a trial to serve as a consciousness-transforming vehicle, and she asks: “what kind of politics is advanced by it and how can it be used to promote the formation of a democratic society?” However, she doesn’t ignore its limitations: “Whatever social transformation the court can induce, it is never as radical as the one achieved by a political revolution” (Bilsky, Leora. Transformative Justice: Israeli identity on trial. The University of Michigan Press, 2004. 3.)

vii It is important to enlighten that we have chosen these two important mechanisms of transitional justice systems to guide our analysis. However, testimonies may appear in other less official spaces, such as memorials, documentaries etc.

viii Unfortunately, it has not been possible to draw a conclusive analysis from the works of the current Brazilian National Truth Commission because it has not yet concluded its works. We will try to discuss the potential of the testimonies based mainly on the analysis carried out from the Eichmann trial and the South African Truth and Reconciliation Commission. However, the analysis of the testimonies of the Brazilian National Truth Commission may serve as the topic for a future paper.

ix Hannah Arendt believed that the truth present in trials should be factual, which she has repeatedly stated in Eichmann in Jerusalem. According to Celso Lafer (“Justiça, História, Memória: reflexões sobre a Comissão da Verdade”. Conference presented at the Seminário Internacional: História Contemporânea: Memória, Trauma, Reparação. Rio de Janeiro, UFRJ, IH/IFCS, May 10th. 2012.), truth commissions, in particular the Brazilian NTC, represent the assertion of the collective right to the factual truth concerning serious human rights violations.

x Lafer, Celso. “Justiça, História, Memória: reflexões sobre a Comissão da Verdade”. Conference presented at the Seminário Internacional: História Contemporânea: Memória, Trauma, Reparação. Rio de Janeiro, UFRJ, IH/IFCS, May 10th. 2012.

xi Ibid.

xii The truth as aletheia has a conflicting nature since it encompasses the uncovering and simultaneous concealment of the being. It never allows us to remove the veil completely and look directly at the face of what is.

xiii Lafer, Celso. “Justiça, História, Memória: reflexões sobre a Comissão da Verdade”. Conference presented at the Seminário Internacional: História Contemporânea: Memória, Trauma, Reparação. Rio de Janeiro, UFRJ, IH/IFCS, May 10th. 2012.

xiv We may translate this word by “Residue” or “Trace”. In order to establish a dialogue with the French word trace explored by Jacques Derrida, the title “Trace” would be more adequate.

xv (…) E de tudo fica um pouco./ Oh abre os vidros de loção/ e abafa/ o insuportável mau cheiro da memória./
Mas de tudo, terrível, fica um pouco,/e sob as ondas ritmadas/e sob as nuvens e os ventos/ e sob as pontes e sob os túneis/ e sob as labaredas e sob o sarcasmo/ e sob a gosma e sob o vômito/ e sob o soluço, o cárcere, o esquecido/ sob os espetáculos e sob a morte escarlate/ e sob as bibliotecas, os asilos, as igrejas triunfantes/ e sob tu mesmo e sob teus pés já duros/ e sob os gonzos da família e da classe,/ fica sempre um pouco de tudo./
Às vezes um botão. Às vezes um rato.

xvi
Drummond De Andrade, Carlos. “Resíduo”. In Obra Completa, organized by Afrânio Coutinho, 163-165. Rio de Janeiro: Companhia José Aguilar Editora, 1967.

xvii
Lafer, Celso. “Justiça, História, Memória: reflexões sobre a Comissão da Verdade”. Conference presented at the Seminário Internacional: História Contemporânea: Memória, Trauma, Reparação. Rio de Janeiro, UFRJ, IH/IFCS, May 10th. 2012.

xviii
The Brazilian redemocratization process has imposed to our community in general, and to the victims and familiars of the dead and missing during the military regime in particular, a burden even heavier than the reconciliation: the onus of forgetting. Carrying out a social agreement that would lead the redemocratization process in a “pacific” way went through the political understanding that the crimes perpetrated by the agents of the dictatorial regime should be somehow covered up by forgetting. The Amnesty Law sealed such oblivion pact (Law nº 6.683/1979).

xix
Derrida, Jacques. “O Perdão, a verdade, a reconciliação: qual gênero?”. In Jacques Derrida: pensar a desconstrução, organized by Evando Nascimento, 45-92. São Paulo: Estação Liberdade, 2005.

xx
Free translation by the author.

xxi
In Israeli society, the story of the victims of the Holocaust had been missing until the Eichmann trial, since the Nuremberg trials did not address the Holocaust from the perspective of the victims, but from the perspective of the perpetrators.

xxii
Bilsky, Leora. Transformative Justice: Israeli identity on trial. The University of Michigan Press, 2004. 101-2.

xxiii
Arendt, Hannah. Between Past and Future: Eight Exercises in Political Thought. New York: Penguin, 1968.

________. Eichmann in Jerusalem: a report on the banality of evil. London: Penguin UK, 2006.

xxiv
Arendt, Hannah. Responsibility and Judgment. New York: Schocken Books, 2003.

xxv
Derrida, Jacques. “O Perdão, a verdade, a reconciliação: qual gênero?”. In Jacques Derrida: pensar a desconstrução, organized by Evando Nascimento, 45-92. São Paulo: Estação Liberdade, 2005.

xxvi
Bilsky, Leora. Transformative Justice: Israeli identity on trial. The University of Michigan Press, 2004. 93-4.

xxvii
However, it is possible to say that in the cases of transitional justice trials and truth commissions, most frequently the documents tell the facts in the language of the perpetrators and from their point of view. But the institutional point of view cannot be disregarded.

xxviii
Ibid., 105.

xxix
Derrida, Jacques. A Farmácia de Platão. São Paulo: Editora Iluminuras, 2005.

Compagnon, Antoine. Le démon de la théorie: Littérature et sens commun. Paris: Édition du Seuil, 1998.

Nascimento, Evando. Derrida e a Literatura: “notas” de literatura e filosofia nos textos da desconstrução. 2 ed. Niterói: EdUFF, 2001.

xxx
Compagnon, Antoine. Le démon de la théorie: Littérature et sens commun. Paris: Édition du Seuil, 1998. 58-62.

xxxi
Ibid.

xxxii
The distinction between carnal and spiritual interpretation is not originally from Augustine, but refers to the Pauline binomial: “the letter killeth, but the spirit giveth life.” (St. Augustine. On Christian Doctrine. Christian Classics Ethereal Library, 2009. III, 5)

xxxiii
Lafer, Celso. “Justiça, História, Memória: reflexões sobre a Comissão da Verdade”. Conference presented at the Seminário Internacional: História Contemporânea: Memória, Trauma, Reparação. Rio de Janeiro, UFRJ, IH/IFCS, May 10th. 2012.

xxxiv
Bilsky, Leora. Transformative Justice: Israeli identity on trial. The University of Michigan Press, 2004. 105.

xxxv
Derrida, Jacques. “O Perdão, a verdade, a reconciliação: qual gênero?”. In Jacques Derrida: pensar a desconstrução, organized by Evando Nascimento, 45-92. São Paulo: Estação Liberdade, 2005.

xxxvi
Bilsky, Leora. Transformative Justice: Israeli identity on trial. The University of Michigan Press, 2004. 105.

xxxvii
Ibid., 111.

xxxviii
St. Augustine. On Christian Doctrine. Christian Classics Ethereal Library, 2009. I, 12.

xxxix
[S. d.] apud Arendt, Hannah. A vida do espírito: o pensar, o querer, o julgar. Rio de Janeiro: Relume Dumará/Ed. UFRJ, 1992. 21.

xl
Arendt, Hannah. A vida do espírito: o pensar, o querer, o julgar. Rio de Janeiro: Relume Dumará/Ed. UFRJ, 1992. 23-5.

xli
Ibid., 26.

xlii
St. Augustine. On Christian Doctrine. Christian Classics Ethereal Library, 2009. I, 12.

xliii
Bilsky, Leora. Transformative Justice: Israeli identity on trial. The University of Michigan Press, 2004. 107.

xliv
Thereby, it is necessary to keep in mind the difference between the unspeakable horror and not so horrific experiences, but frequently repulsive.

xlv
Lafer, Celso. “Justiça, História, Memória: reflexões sobre a Comissão da Verdade”. Conference presented at the Seminário Internacional: História Contemporânea: Memória, Trauma, Reparação. Rio de Janeiro, UFRJ, IH/IFCS, May 10th. 2012.

xlvi
Arendt, Hannah. A vida do espírito: o pensar, o querer, o julgar. Rio de Janeiro: Relume Dumará/Ed. UFRJ, 1992. 23-5.

xlvii
Free translation by the author. 28.

xlviii
Derrida, Jacques. “O Perdão, a verdade, a reconciliação: qual gênero?”. In Jacques Derrida: pensar a desconstrução, organized by Evando Nascimento, 75. São Paulo: Estação Liberdade, 2005.

xlix
Bobbio, Norberto. “Primo Levi, se questo è un uomo”. Nuova Antologia. – A. 132, fasc. 2202 (apr.-giu. 1997): 19-23.

l
Bilsky (Transformative Justice: Israeli identity on trial. The University of Michigan Press, 2004. 107) argues that sometimes the lawyer seems to possess all the necessary qualities for translating the testimonies into an intelligible sequence. However, she notices “(…) the very act of translation from the living experience of the survivor to the categories of law actually does violence to his experience, effacing its important part”. We must also be attentive to the fact that this isn’t the fist translation operated, considering that the act of testimony can be thought as the first one.

li
As recently emerged with the “discovery” of the Figueiredo report into genocide, torture, rape and enslavement of indigenous tribes – <http://www.theguardian.com/world/2013/may/29/brazil-figueiredo-genocide-report> Accessed on August 9th, 2013.

lii
The local languages or dialects also translate the singularity of the victims’ untranslatable suffering. And the meaning of certain words or expressions can easily get lost when the witness is “advised” to use a more convenient language, or when its speech is translated or reported by other experts with their own words, belonging to a certain métier, let it be legal, journalistic, psychological etc. According to Derrida (“O Perdão, a verdade, a reconciliação: qual gênero?”. In Jacques Derrida: pensar a desconstrução, organized by Evando Nascimento, 76. São Paulo: Estação Liberdade, 2005.), “when reading the sessions memoirs, with all those filters, we know nothing, we must admit, of what really occurred. Particularly since the irreducible screen of language is at once filtrating and deforming” (translation by the author).

liii
Arendt, Hannah. The Human Condition. Chicago: The University of Chicago Press, 1958.

liv
Further, humanity is an abstraction that can never be considered an active agent.

lv
Arendt, Hannah. The Human Condition. Chicago: The University of Chicago Press, 1958.

lvi
We believe that Hannah Arendt must have become more flexible on this matter, admitting the importance of testimonies because of her later text “Truth and Politics”, where she states that factual truth in trials “is established by witnesses and depends upon testimony; it exists only to the extent it is spoken about” (Arendt, Hannah. Between Past and Future: Eight Exercises in Political Thought. New York: Penguin, 1968. 238).

lvii
Bilsky, Leora. Transformative Justice: Israeli identity on trial. The University of Michigan Press, 2004. 111.

lviii
Ibid.

lix
Derrida, Jacques. “O Perdão, a verdade, a reconciliação: qual gênero?”. In Jacques Derrida: pensar a desconstrução, organized by Evando Nascimento, 80-4. São Paulo: Estação Liberdade, 2005.

lx
This was actually the case of one of the testimonies in the Eichmann trial, that of Yehiel Dinur, who lapsed into incoherence before collapsing on the witness stand (Bilsky, Leora. Transformative Justice: Israeli identity on trial. The University of Michigan Press, 2004. 108).

lxi
Far from healing the wounds, sometimes this speech reactivates the hate, even because the character of presence of the testimonies makes the meeting between the victim and the perpetrator a very plausible possibility.

lxii
Derrida, Jacques. “O Perdão, a verdade, a reconciliação: qual gênero?”. In Jacques Derrida: pensar a desconstrução, organized by Evando Nascimento, 78. São Paulo: Estação Liberdade, 2005.

lxiii
Ibid., 83.

lxiv
Free translation by the author.

lxv
Bilsky, Leora. Transformative Justice: Israeli identity on trial. The University of Michigan Press, 2004. 110.

lxvi
Arendt, Hannah. The Human Condition. Chicago: The University of Chicago Press, 1958.

lxvii
Ibid., 199-200.

lxviii
The way the Greeks inhabited the world and expressed themselves literarily and poetically at that original space of politics was the tragedy, making use of myth language to express the covering and uncovering of being, discussing the issue of the historical struggle of man against his fate. According to this analysis, this is the true meaning of the tragedy.

lxix
Were the beings are hidden and disclosed.

lxx
It is not incidental that men are pictured like this in the tragedy, because the need for the tragedy comes from this rooting of the polis in the conflicting character of aletheia.

lxxi
Heidegger, Martin. Parmênides. Petrópolis: Vozes, 2008. 132-3.

lxxii
Arendt, Hannah. The Human Condition. Chicago: The University of Chicago Press, 1958.

lxxiii
Bilsky, Leora. Transformative Justice: Israeli identity on trial. The University of Michigan Press, 2004. 3.

lxxiv
Derrida, Jacques. “O Perdão, a verdade, a reconciliação: qual gênero?”. In Jacques Derrida: pensar a desconstrução, organized by Evando Nascimento, 69. São Paulo: Estação Liberdade, 2005.

lxxv
Nevertheless, by not granting immunity to defense witnesses, prosecution accomplished to show mainly the side of the victims, which also limited and certainly undermined the defendant’s rights and made him a symbol for the crimes of the Nazi regime as a whole. This is another element that makes us question whether the court would be the most adequate stage for this performance, where certainly politics and legal aspects are bumping into each other all the time.

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