THE POTENTIAL OF TESTIMONY IN TRANSITIONAL JUSTICE: WHAT TRUTH CAN IT BRING TO LIGHT?
Laura Degaspare Monte Mascaro
A gaze into Brazilian past and future
For the consolidation of the Brazilian Democratic State of Right, established by the Constitution of 1988, it would be fundamental to understand our dictatorial tradition, marked by violence and barbarism, which has been gradually dissolved to make room to the current democratic regime. We are driven by our temporal existence to give some meaning to tradition starting from the horizon that can be seen from the point where we are standing; in other words, we must dialogue with tradition in order to reach a comprehension that will serve as a base to our future projects (MAMAN, 2003, p. 54), individually and as a community. Accordingly, how can we create a future project of Brazilian society by ignoring its past?
The Brazilian State 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. At that moment, carrying out an agreement so that the redemocratization process could be accomplished in a “pacific” way went through the political understanding that the crimes perpetrated by the agents of the dictatorial regime would be somehow covered up by forgetting. This pact was sealed by the amnesty law (Law nº 6.683/1979).
People didn’t realized, however, that with the veil that has been put over memory, an even greater debasement of human beings was produced, because consisted of a violence that curtailed the very possibility of care towards the human existence while it’s most fundamental freedom.
The apparently gradual transition from the authoritarian regime to the democratic one has concealed a fracture of the worst kind, a disruption that cost the silence of an entire tradition and, thus, of the past that speaks through men. This fracture can be read as the one targeted by Arendt’s philosophical investigations (LAFER, 1995, pp. 49-51): as a gap between past and future that prevents comprehension. What we call here forgetting represented this gap that prevents us from dealing with the past.
Thereby, only with the knowledge and understanding of the criminal violence intromission in large scale at the Brazilian State during the referred historical period will be possible to build a new model of state: that denies on solid grounds this violence and creates dialogical forms of political action.
Memory versus factual truth
Memory, is important to set clear, differs from history, because chooses, selects and is lived at the present, with the concern for the future, and is characterized by the vivid remain of a past (LAFER, 2012). As in Drummond’s poem Resíduo, is about a selection, a pool, a trace and its subjective nonfactual truth:
E de tudo fica um pouco.
Oh abre os vidros de loção
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
e 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.
Yet, how to think at the fulfilling of a collective right to memory in relation to serious human rights violations that occurred during the Brazilian military dictatorship? Further, how to conciliate the construction of such a collective memory with the search for the truth, with the right to truth. Which truth are we talking about when we refer to the work of the National Commission of Truth? With no doubt, according to Celso Lafer (2012), we are talking of factual truth. Nevertheless, can this factual truth encompass memory and understanding of the events?
The National Commission of Truth 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 the Truth Commission comes to contribute with this last approach, however, the extent of history is really hard to be framed within a process as ephemeral as the Commission, which, by the end of its works, must produce a detailed report (LAFER, 2012).
Celso Lafer (2012) considers that, independently from the recognition of the Amnesty Law’s validity and fairness, the Truth Commission has its own merits in the Transitional Justice agenda, once (i) it goes against forgetting; and (ii) represents the affirmation of the collective right to the factual truth concerning those serious human rights violations.
On the other hand, according to his considerations, the fact of torture is irreparable, indelible, and the Truth Commission must be concerned with the very memory of that stain and of what is related to it (LAFER, 2012). However, the stain, the truth that arises from this suffering, not always serves the appeaser purpose that instructs, for instance, amnesty. Derrida wisely questions (2005, p. 84): “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?”
What concerns us here is how to bring these facts to light, and, more importantly, bring them to the light of an individual comprehension, by those directly involved, as well as of a collective understanding, by the people, and even universal. The understanding, however, about the past and the authoritarian tradition must not be unique. Many voices have to be heard at the public space and many narratives built.
Then, truth commissions have the purpose of establishing “one truth” about serious human rights violations occurred during authoritarian regimes, and they are instituted for a determined period of time, having greater or smaller range. Usually, they not only have to put together an archive that ensembles sound and visual records, apart from documentation, transcriptions, deliberations, but also build a report that already operates a cut, a selection, an interpretation (DERRIDA, 2005, p. 84).
Testimonial truth as Saint Augustine’s spiritual understanding
No doubt that the opening of the archives of the dictatorship, while documentary sources of that period, will contribute to the reconstruction of the facts occurred at the time. These documents will be target of assessment and analysis by the historical method. As we mentioned, the comprehensive unveiling of the dictatorial period 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?
In order to fulfill its purpose of uncovering the facts once masked, the truth commission can make use of certain tools such as the disclosure of archives, access to information and testimony. Disclosure of archives 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, once the truth sought is opposite to hiding and dissimulation (LAFER, 2012), we know that each unveiling entails a necessary occultation of a portion that remains concealed. Therefore, there must be different ways of accessing the facts that provides a more complete and multifaceted picture of the so called truth, which is also so fragmented.
The validity of documentation is that it usually brings a much more unchanged version of the facts. Documents are not a place of memory, since memory should be alive. They usually contain a version of the facts registered in the time of the events and 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 significance, which is the heart of its legal certainty and reliability.
Another thing that differs the truth brought by documents of the one brought by testimonies is the fact that documental truth is impersonal. There is no personal “I” in the discourse disclosed by a document. It is usually an institution or a “position” that subscribes it and we cannot be sure about who wrote it. Therefore, the speech brought by the writing in a document is not present, it is absent and so is its author.
Getting back to Plato’s Phaedrus and Derrida’s Pharmakon, on the myth of the invention of writing, this tool is criticized firstly because the writing is far from the speech as the speech is far from the thinking (dianoia) and secondly because it wouldn’t be a medicine to memory, but on the contrary, a poison, once memory is a live thing that should be exercised, not substituted by a prosthesis (NASCIMENTO, 2001; COMPAGNON, 1998, p. 58).
Therefore, the dualism of thought and language is very important when we refer to memory in the philosophical and ethical fields. Aristotle’s Poetics expresses this dualism in the separation between history (muthos) and its expression (lexis). At the classic rhetoric, because of the legal structure of its original practice, such dualism is translated by the dichotomy between intentio and actio, or voluntas and scriptum (COMPAGNON, 1998, pp. 58-62).
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, Saint Augustine sides with a spiritual reading of the text, in opposition to the carnal or corporal 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 in the same way that the body has to be respected, he recognizes that the writing should be preserved as the starting point to the spiritual interpretation (COMPAGNON, 1998, pp. 58-62).
The distinction between carnal and spiritual interpretation is not originally from Agustin, but refers to the Pauline binomial: “the letter killeth, but the spirit giveth life.” (AUGUSTINE, 2009, III, 5)
So, how can we bring up the presence of spirit and soul that is missing in the documents? How can we make the soul rise to the surface?
One of the important things for us to mention at this point is the opening of the Truth Commission for testimony. This opening makes room for a proper space, in midst of the proceedings of the Truth Commission, for the multiplicity of voices and truths of the victims. Note that because they are discourses based on the memory of individuals – and not official documents, to which can be attributed certain certification of the truth as suitability to certain parameters – we are dealing here with the elaboration of discursive truth, from fragments of memory, the selection of these fragments and testimonial speech.
Nuremberg trials focused on documentary evidence and there was no space for the voices of the victims, which, in its turn, was found in the Eichmann trial, due to the testimonies of the victims’ wide range (LAFER, 2012). In the context of the Truth and Reconciliation Commission of South Africa were also collected testimonies, which were analyzed by Derrida’s brilliant lecture Forgiveness, Truth, Reconciliation: What Gender? (2005). At the context analyzed, however, the forgiveness was dealt as a public subject, delegable and exploited by the political utility, what is not intended, at least not explicitly, by the Brazilian National Commission of Truth.
Derrida (2005) questioned whether the validity of testimonies as factual evidence should be trusted, once proof, evidence, will never be of the order of testimony. Maybe not, but they still have the power to bring out a truth other than the factual. Finally, perhaps the goals of the Truth Commission should not be restricted to factual truth, risking, however, having an unpredictable end.
Going back to Augustine (2009), he considers the speech more close to the “the word that we have in our hearts” than what he calls “signs”. According to him:
Just as when we speak, in order that what we leave in our minds may enter through the ear indo 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. (AUGUSTINE, I, 12)
We can observe that Saint Augustine doesn’t establish a difference between what comes from the heart and what comes from the mind, between soul and spirit. Hannah Arendt, on the contrary, does that on The Life of the mind, while explaining how soul could be disclosed as an inauthentic appearance.
Bringing the soul to surface
First of all, appearance not only shows, but also conceals something, as what is veiled and unveiled at the a-letheia. According to Merleau-Ponty ([S. d.] apud ARENDT, 1992, p. 21), quoted by Arendt, “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, Hannah Arendt (1992, pp. 23-25) operates an inversion of hierarchy between appearance and substance, considering that appearance may be more significant than the functions it conceals, which serve to the preservation of the individual and the species. Accordingly, follows the distinction between authentic and inauthentic appearances: from things that spontaneously are offered to the senses and things that only are shown in consequence of a violation of the authentic appearance.
In consequence, what is shown authentically is what distinguishes us as individuals, because from the inside we would look all the same. But why is it important to discuss the testimony? Because this analysis may be adequate not only to the functions of the body, 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 – because both are opposed to the body due to the invisibility that characterizes them – doesn’t apply when it comes to the way of expressing and 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 (spiritual), but the life of the soul is much better expressed in a look, in a sound, in a gesture, than in the speech (ARENDT, 1992, p. 26).
For the spirit, even the mute activity that doesn’t appear already constitutes a kind of speech, the silent dialog of me with myself and, as stated by Augustine (2009, I, 12), 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.
When Hannah Arendt discusses the past of totalitarianism, she argues that this past has proven to be incapable of being “dominated”, indicating that If the refuse to think the unthinkable has prevented us to reevaluate legal categories, that 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 forbid the speech – have shown to be inadequate. Thereby, it is necessary to keep in mind the difference between the unspeakable horror and not so horrific experiences, but frequently repulsive. As stated by Celso Lafer (2012), the fact of torture is irretrievable; however, is the memory of this stain that must be dealt by the Truth Commission.
How, then, can we expose these experiences of suffering into the world of appearances? 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. Involves a decision of what should appear, and how. And so, at the moment of reflection and transfer to the form of speech, is the time to signify the feeling, through the spirit. It is this sense that is given to the experience of suffering, beyond the fact itself, that must be seized and will allow the victim to identify his or herself as such. And how the individual carries this translation, is what makes that suffering and person unique, not the suffering itself (ARENDT, 1992, p. 28).
The scene of the testimony and its character of presence
According to Hannah Arendt (2001, p. 199), the “stories” produced by action and by the web of human relations say a lot about their subject/character, the hero who is in the center of every story – who, however, can’t be called its author, because no single individual can. According to Hannah 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 “we can only know who a man was if we know the story of which he is the hero – in other words, his biography (…)” (ARENDT, 2001, p. 199).
This way, 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 Derrida (2005, pp. 80-84), the scene of the testimony and of truth, 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 the woman has to unveil the traces of violence on her body, either because 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 even enhance the prior violence.
Every violence inflicted on the body, is somehow, sexual abusive. For this reason, some women at the South African Truth and Reconciliation Commission 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, since the experience is revived by the testimony, an objection that could be made to the truth and reconciliation project in South Africa: that these two purposes couldn’t be conciliated (DERRIDA, 2005, p. 78).
One of Derrida’s metaphors that reinforces the aspect of presence of the testimonies is the metaphor of the theater. The limited time of operation of the Truth Commission makes it the stage of a play, when truth comes to the stage. Derrida (2005, p. 85) states that “there is a stage in which scenes, acts, must be represented, with its proper duration, namely, a finite one”. Once the drama and the catharsis have occurred, the curtain must fall.
In this sense, the limited time for the search for 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 enough so that these actors and the audience handle the truth 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.
Not for nothing that Hannah Arendt (2001, pp. 199-200) 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 only achieves its full existence when interpreted at the theater:
“Only the actors and interlocutors who reconstitute the plot of the story can transmit the whole meaning, not so much of the story itself, but of the ‘heroes’ that it highlights.” (ARENDT, 2001, p. 200)
In terms of Greek Tragedy, the universal meaning of the story is revealed by the chorus, that doesn’t mimic and whose commentaries are pure poetry. The theater, thus, is seen by Arendt 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 humanity, and the stage for the aletheia conflict has a cruel, atrocious character, where the ascension an fall of man take place (HEIDEGGER, 2008, 132-133). 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 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.
The tragedy tries to mimic the 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.
Consequently, we wonder if the truth revealed by the testimonies is the kind of truth pursued by the traditional historical method. Maybe the purpose of the truth commission itself, by its final report, is a supposedly objective truth, as an historian could intend to determine and fixate. However, the truth revealed in the testimonies may not be so objective, but yet fragmented and, at large, gathering multiple aspects of the so called truth, each one revealed by a unique speech that brings an singular understanding of what really happened.
As these reports are mostly informed by the live memory, than by a look that remained frozen in time, the most important aspect brought by them is not the fact or the experience 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 scene (DERRIDA, 2005, p. 69).
When a woman in the South African Commission, whose husband was kidnapped and murdered, is invited to hear his assassins’ testimony, she is questioned whether she is willing to forgive them. And she isn’t. 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 political-legal device. 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.]” (DERRIDA, 2005, p. 75).
By saying “only I”, she also means that the first victim, her husband, is dead. This makes us remember Primo Levi’s testimonial and literary work Se questo è un uomo, considering that he, as a survival, admits to write “by power of attorney”, namely, on behalf of those who perished and who cannot return to tell their own death (BOBBIO, 1997). Thereby, we can see what we call intersexuality 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 the cases of indigenous people that had entire villages or communities decimated during the Brazilian military dictatorship – as recently emerged with the “discovery” of the Figueiredo report into genocide, torture, rape and enslavement of indigenous tribes -, this matter is really important to be presented.
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 (2005, p. 76), “when reading the sessions memoirs, with all those filters, we no nothing, we must admit, of what really occurred. Particularly since the irreducible screen of language is at once filtrating and deforming”. The character of presence of the testimony should be sheltered even concerning the language spoken.
Literary memoir and oral testimony
I must make a reservation; however, in view of the option we took in this lecture to approach not all kinds of testimonial reports, but only oral testimonies. Although there are outstanding testimonies belonging to the field of literature, written narrative, memoirs, etc, we had to make a choice for this work, once the way of being of these two kinds of narratives are extremely different and the issues that each one raises in terms of philosophical and linguistic thinking are indeed related, but sometimes are two sides of the same coin, thus, opposed. It is important to stress, then, that testimonial language is different from the testimony itself, which we are now discussing.
Mandela’s memoirs, for instance, written during his martyrdom in captivity for 27 years, was essential for the translation of his pain to the testimonial language. And it was essential for his reconciliation with the oppressor as well, as an intimate process, but not only. According to Derrida (2005, pp. 60-62), his narrative would serve to free the oppressed, but also his oppressor, because it was destined to the other, it brought the reconciliation speech to the other. For Mandela, the political reconciliation process has always been connected to the walk to freedom. The reconciliation appeal had always been connected to the transcendental ideal of freedom, because he intended to address this freedom not only to his people, but to the oppressors as well.
This transcendental and political meaning that was given to his personal experience and suffering shows how can the testimonial language – and the effort of turning all that was lived into a structured and temporal narrative – help us signify history itself, our past of oppression. This is the kind of reading that should be made of the testimonial language: a reading that goes beyond its literal meaning. Quoting St. Augustine (2009, III, 9): “Now, as to follow the letter, and to take signs for the things that are signified by them, is a mark of weakness and bondage, so to interpret signs wrongly is the result of being misled by error”.
The carnal interpretation is typical of formal documents and reports and shouldn’t be reproduced by the commissions’ members and others whenever listening, of even reading, a testimony, because that would mean the “subjection to the flesh by a blind adherence to the letter”.
In addition, the literary aspect of Mandela’s memoires made possible his discourse to be addressed to the world and to future times, surpassing the barriers of time and space. His narrative could transmute the fight for a particular cause, into a universal cause. This extrapolation is more complicated to be achieved by the oral testimony; however, it has its own merits.
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________. A vida do espírito: o pensar, o querer, o julgar. Rio de Janeiro: Relume Dumará/Ed. UFRJ, 1992.
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 The space of these testimonies, however, for the construction of this truth, is not limited to the Truth Commission, having testimonies been collected before other commissions with different purposes, such as reparation and for the creation of other spaces of memory such as the Resistance Memorial in São Paulo, for instance.
 Further, humanity is an abstraction that can never be considered an active agent
 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.
 Free translation by the author.
 As in Jogo, Ritual e Teatro: Um Estudo Antropológico do Tribunal do Júri, by Ana Lúcia Pastore Schritzmeyer.
 Were the beings are hidden and disclosed.
 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.
 Free translation by the author.
 < http://www.theguardian.com/world/2013/may/29/brazil-figueiredo-genocide-report> Accessed on August 9th, 2013.
 Free translation by the author.