Testimony is a privileged instrument for the production and preservation of memory andin certain cases, it can be said to bethe main tool for buildingshared memories concerning traumatic periodson individual memories. This article intends to discuss the role of testimony in Arendt's theory – considering, on the one hand, her criticism of the abundance of testimonies in the Eichmann trial and, on the other hand, the importance narrative, memory and metaphor acquirein her furtherwork –, and consequently how testimony could rehabilitate justice and judicial trials, specially concerning crimes against humanity.

At least four kinds of testimony of crimes against humanity may be distinguished. First, the judicial testimony, which followswell-defined rules and to help establish the responsibility of the accused. In theory, everything that is not directly linked to the circumstances of the criminal fact should be disregarded. Secondly, close to judicial testimonies, are extra-judicial testimoniessuch asthose produced in Truth Commissions, which is a dispositive used in transitional justice¹. A third type would include testimonies that are produced in the context of social sciences studies, which is the case of anthropology studies or studies on oral history, and, finally, the fourth and last form: spontaneous testimonies, which usually assume artistic shapes: autobiographical novels, movies, theater plays, interviews? etc.

In trials concerning crimes against humanity, which implicate “a shared memory”, testimony has a preponderant role. Unlike ordinary trials, testimony here has the role of establishing the facts not only to condemn the accused, but also to recognize the victims as such, and honor their individual and collective memory. The testimony produced at judicial instances aim at making oblivion more difficult and, above all, making negacionism impossible. As Antoine Garapon reminds us, “listening to testimonies becomes more than an act of procedure conceivedto enlighten the court members ona particular case. It means to prevent a criminal project from remaining dubious – it means to prevent its posthumous victory” (GARAPON, 2002, p. 207).

Such “new” roles attributed to trials are strongly criticized by certain authors,who deem criminal procedure solely responsible for establishing the facts that are relevant for the judgment of an individual's guilt or innocence. In her report of the Eichmann trial,Hannah Arendt criticized the high number of testimonies for the prosecution, affirming that what was in stake at the Jerusalem court was not whether the victims had suffered, or what they might tell during their testimony, but rather what the accused had done, notably, his criminal actions (ARENDT, 2006).

The analysis oftwo historical trials, Eichmann's in 1961² and Barbie's in 1987³, reveals certain common features that give us a chance to discuss testimony and its functions. This approach isn't unprecedented in human sciences’ literature, but is always highly instructive. These trials have many common characteristics: both have happened long after Second World War, both were filmed and mediatized and, which is very important for the development of International Criminal Law, they have renewedthe discussions concerning the contour and specificity of the definition for “crime against humanity”. The testimonies in both trials allowed the juridical definition of crime against humanity to be refined and deepened.

Leora Bilsky representsthe conflict between Arendt's and Hausner positions regarding the role of testimonies in the Eichmann trial astwo opposing views on how to tell the story: “that is, whether the story should be told through written documents or the oral testimonies of survivors” (BILSKY, 2004, p. 94).

Allegedly, Arendt had interpreted Hausner's attempts to stage the Jewish tragedy, which consisted on digressions from the narrow framework of a criminal trial, as signs that the trial was being used to pursue a political agenda – something reprehensible from the point of view of a liberal theory that regards law and politics as mutually exclusive. However, Bilsky argues that Arendt's main concern was not with the political character of the trial – which couldn't be avoided –, since she was aware that “Eichmann's trial could not be contained within the scope of narrow legalistic considerations (…)” (BILSKY, 2004, p. 95), although, for the author, both Arendt and Hausner tried to hide their political views behind legal concerns. So, the true question would be “which type of politics a trial can legitimately promote in facilitating a transition to democracy while still remaining true to liberal principles of a criminal's defendant's right to a fair trial” (BILSKY, 2004, p. 96).

Arendt's critique to Hausner political enterprise would be rather that his rhetoric divided the world into two groups, us and them, victims and perpetrators, which would make it difficult to understand Nazism in its complexity, as an universal example of the persecution of a minority group and, most importantly, one that is subject to repetition⁴. This rhetoric strongly relied on innumerous testimonies of the Jewish victims.

On the one hand, to rely exclusively or primarily on documents, as did the prosecution at Nuremberg, would introduce distortions in the history of the Jewsprecisely in thecrucial historical moment when the identity of the Israeli people was being defined, since those documents adopted the perspective and language of the perpetrators. It would also mean the obliteration of the victims’ voices and their stories of suffering and humiliation. On the other hand, Arendt strongly criticized the use that was made of such documents by the prosecution, since they would reverberate an absent and sterile voice, if compared to the voices of the victimsthere present:

No doubt one of the chief objective mistakes of the prosecution at Jerusalem was that its case relied too heavily on sworn or unsworn affidavits of former high-ranking Nazis, dead or alive; it did not see, and perhaps could not be expected to see, how dubious these documents were as sources for the establishment of facts. Even the judgment, in its evaluation of the damning testimonies of other Nazi criminals, took into account that (in the words of one of the defense witnesses) “it was customary at the time of the war-crime trials to put as much blame as possible on those who were absent or believed to be dead” (ARENDT, 2006, p. 72).

Of course Arendt didn't intend to focus exclusively on the perspective of the perpetrators of such hideous crimes, but she criticized the exaggeration in the number of Israeli witnesses, the inability of the defense to question those witnesses, the lack of connection between the testimonies and the criminal facts involving Eichmann, and clearly feared that allowing the immeasurable suffering of the victims to enter the courtroom, through their oral testimonies, would undermine the trial's capacity to achieve and provide some measure of understanding (BILSKY, 2004, p. 105):

This could mean that from a strictly judicial perspective, many testimonies exceeded or didn't fulfill their role, but considering the context in which Eichmann's trial took place, – a moment of profound crisis in which tradition cannot inform one'sjudgment or understanding of the world – testimonies could serve the purpose of helping understand and judge the past, and even of rehabilitating justice to deal with such a complex and multifaceted past, to which traditional laws and procedures didn't apply.

The Eichmann Trial raised many questions, which Arendt was committed to answer from that momenton⁵. Maybe at the time she couldn't perceive that the theory she would develop on thinking and judging would raise testimony to a prominent place; still, her inquiring whether the courtroom was the proper forum for those testimonies is very pertinent, considering that the prominent role of the victims most certainly undermined the right of the defendant to a trial that focused on proving his actions (BILSKY, 2004, p. 113).

According to Bilsky, Arendt's opinion on the importance of the victims’ testimonies began to change during her reporting on Eichmann's trial, when she states that “Everyone, everyone should have his day in court” (ARENDT, 2006, p. 229), referring to the testimony of Zindel Grynszpan, which had touched her deeply. “At this point[, notices Bilsky,] she seems to have abandoned the legalistic framework into which she had tried to fit the trial and was reminded of her own ethics of storytelling” (BILSKY, 2004, p. 114).

In the development of this “ethics of storytelling”, Arendt gave great importance to narrative, remembering and metaphor in thought and judgment (LAFER, 2007), these being essential to understanding, and closely related to testimony.

For Arendt, thinking is inextricably linked to remembering: every event that is remembered is thought of, she notes, and to tell a story is an adequate form of thinking it through. The memory to which she refers doesn't necessarily relate to the factual truth that must be established in court; however, it is absolutely essential to understanding: “The interrelationship of thinking and memory consists therein that all thinking is actually a thinking-along things” (ARENDT, 2005, p. 680).

Moreover, Arendt believes that, as the conducting wire for the faculty of thinking, remembrance is also essential to moral philosophy, which is deeply connected in its turn, with the silent dialogue between me and myself. For Arendt, forgetting is the safest way to escape punishment and thinking, since repenting consists in not forgetting what one has done and revisiting it in thought. So, in her view, the worst crimes are not the ones the criminal cannot forget and hunt him to despair, but rather those that are forgotten, because the criminal never took the time to think them through, and “without remembrance, nothing can hold them back” (ARENDT, 2003, p. 95).

Another element that is inseparable from thinking is metaphor. According to Weigel (2009, p. 98), “thinking (…) maintains a proximity to poetry, to the language of metaphor, to sensual perception in analogies and to experience”, which is made evident in her Denktagenbuch. It must be noted that thinking is by no means equivalent to philosophy⁶, and therefore the conceptual and philosophical language is not adequate to the movement of thought. The literary interest demonstrated by Hannah Arendt in her early writings⁷ never quite disappeared, it continued as she became a recognized American author and political theorist, as her Denktagebuch expresses through the flow of thought itself and in the many hidden poems. Poetics was “an essential requisite of her thinking and philosophizing” (WEIGEL, 2009).

But how can poetics be defined as “the path of, or to, thought” (WEIGEL, 2009)? Mainly because of the metaphorical character they share. On the one hand, the metaphorical character of language is what makes thinking and poetics possible, since “those areas that lie beyond the world of the visible, the material, and the phenomenal” (WEIGEL, 2009, p. 106) rely on metaphorical transposition, which brings them closer to our sensual and known world, and make the invisible somehow apprehensible and communicable. On the other hand, the referred transposition is what evidences the impossibility to reach and retrace the invisible origin of that which is utterly unknowable, namely, the truth (ARENDT, 2005, p. 60-61).

This is coherent with the quote of Plato's “Seventh Letter” by Arendt in her conference dedicated to her friend the poet W. H. Auden in 1970, “Thinking and Moral Considerations”. Plato states “(…) there is no way of putting it in words like other things which one can learn. Hence, no one who possesses the very faculty of thinking (nous) and therefore knows the weakness of words, will ever risk putting thought down in discourse (…)”⁸. Therefore, there will always remain a certain element in thinking that is invisible and untranslatable, the nous. However, thinking itself is the effort made to transpose even this element to language. Although such effort is destined to fail, Arendt still makes it; the existence of the Denktagebuch is in itself proof of this, as well as passages such as:

In this poem, Arendt tries to translate precisely the aporia of the (im)possibility of thinking, conserving, and therefore understanding an experience of invisible nature, such as pain. When commenting on Zindel Grynszpan's moving testimony (ARENDT, 2006), she implies that the ideal medium to tell such a destructive and painful story would be poetry, which, in fact, can be considered a way to testify. According to Derrida (2004, p. 521) the act of testifying is about “constituting your own poetics”, a poetics that is at the same time singular and general enough to be understood exemplarily, general enough to build a bridge towards the other and towards the world⁹.

When Arendt discusses the past of totalitarianism she argues that refusing to think the unthinkable was an obstacle to understanding the totalitarian past, because many attempts of translating these experiences hadproven inadequate. Every way of exposing suffering, apart from some physical signs, is nothing but the product of the activity of thinking – that which thinking produces from this raw material –, which differs from suffering itself. The moment, therefore, of reflection and transfer to words is the moment of signifying the traces left by the lived experience (ARENDT, 1978). Testimony also relies on the same metaphorical character of language to make the invisible and internal traces apprehensible by themselves and others: “[l]anguage, by lending itself to metaphorical usage, enables us to think, that is, to have traffic with non-sensory matters, because it permits a carrying-over, metapherein, of our sense experiences” (ARENDT, 1978, p. 110).

Weigel (2009) also highlights the relationship between metaphor and the understanding of that for which we lack the threads of unmistakable proof, not only in the philosophical and metaphysical world, but also in the realm of human affairs. Testimony is frequently referred to by Arendt – and also by other authors that have extensive work on this subject, such as Derrida – precisely as something that doesn't offer undeniable evidence, thus cannot be considered factual and unmistakable proof, which brings it closer to an effort of understanding and drives it away from an instrument of proof.

In testimony, as the act of testifying, memory conjugates both psychic and physical inscriptions that change the self, inscriptions that can take the form of oblivion, of masking, but that transform profoundly the subject of the experience, and can constitute the meaning of an event shared by many. Thereby, we resume to the importance of testimony in Hannah Arendt's work, since it is also a way to come into contact with examples, as well as to tell experiences, which are other important components of the arendtian reflection on storytelling and understanding.

Regardless whether it tells the story or establishes the facts, the word of the testimony is constitutive. As Annete Wieviorka (2002) reminds us, “Testimony has the function of making us visualize the horror through the words of the victim.”¹⁰ In the Eichmann trial, the prosecutor Hausner, referring to the presence of the victims that would testify, defended that “the only way to finger touch the truth was to ask each one to tell a tiny fragment of what he has lived”. The telling of a certain chaining of circumstances by just one testimony is sufficiently tangible to be visualized. Taken together, the successive disposition of unlike people that have lived different experiences would provide an image eloquent enough to be registered. “So I hoped, (he said) to give the phantom of the past one more dimension, that of the real” (WIEVIORKA, 2002, p. 96-7)¹¹.

Laurent Douzou (2009, p. 18) states, on the participation of testimonies in the Barbie trial and on the importance of judicial testimony: “The solemnity of a court of law, where the speech is not distributed arbitrarily, where it doesn't resound like in any other place, where the orality of the debates leaves each one free to take its time, to release the flow of emotion, to choose his own words, to look them up, to babble, such solemnity grants an unique importance to the victims’ words.”¹² Wieviorka (2002, p. 113) reminds us that “when a testimony is given within the judicial field, it acquires a double dimension: political and social.”

From a judicial perspective, Antoine Garapon affirms that the trial for crimes against humanity can be considered as a “symbolical return to life” for the victims, who recover their dignity. The judicial testimony not only certifies the facts, it also gives living proof that the word of the victims has been taken into consideration. According to Garapon (2002, p. 162, 166-167, 256), in such cases “have a formal forum, means to offer the possibility to re-inscribe the individual experience of an unprecedented violence in a political narrative that gives meaning to the events (and) to make such silenced violence audible.”¹³

According to Françoise Sironi, from a psycho-analytical perspective “when it is constituted as testimony in a trial for a crime against humanity, the victim's speech is psychopolitical. It is once again heard, publically, due to a trial, and not denied nor turned against itself, as at the time the facts took place” (SIRONI, 2009, p. 151).¹⁴ “The judicial act contributes (pricelessly) to repair the hurt, denied identities: those of the living, as those of the dead. From a psychological perspective, the trial allows the live memory to be appeased […] then a true work of memory and a work of grief (to take place)” (SIRONI, 2009, p. 152-53).¹⁵

Particularly in testimonies concerning crimes against humanity, the trial becomes a privileged place of memory. According to Garapon(2002, p. 256), “the trial will put an end to the livehistory and allow the inauguration of the time of memory.”¹⁶

It should not be forgotten that it is from Second World War, and from the impact caused by the narratives of concentration camps survivors, that the memory acquires a public role as a theme, connected henceforth with the notion of limit situations and trauma. In the case of Nazi crimes, making use of Hannah Arendt's terminology, their project of a crime without witnesses, of eliminating the victims without leaving traces, of anonymous deaths, and of deleting the stories of individual sufferings, has failed. And this is due to testimonies that were constantly challenging oblivion. The project of creating holes of oblivion, in Arendt's words, was defeated by memory.

Arendt recognized that trials such as Eichmann's could not be considered ordinary criminal trials, and, as such, raised unprecedented moral questions and required new and unprecedented solutions so that justice would prevail – at least a justice not based exclusively on the positivity of law and on a singular and linear account of history, since “the unjust cannot always be known from universal normative judgment” (ASSY; HOFFMANN, 2012, p. 24). One of these possible solutions would be to attribute a prominent position to testimonies in trials concerning crimes against humanity.

We have tried to show that testimony is present in Arendt's theory both as poetics and as storytelling, to which the author, according to Celso Lafer (2007), has always attributed great importance as a mean to achieve understanding. Thereby, testimony would introduce a new dimension in transitional justice trials, regarding an understanding of the criminal fact that exceeds its proof. The connections between testimony, storytelling and poetics are evidently much richer and complex than what has been indicated inthis article, which proposes to retrace a path through Arendt's thoughts that enlightens their importance in her work, despite her criticism of the role of testimonies in the Eichmann trial, which were indeed pertinent. Assy and Hoffmann (2012, p. 24), following a similar path, conclude that “Arendt's account of judgment is intertwined with her idea of testimony (…). Judgment to her is a political faculty, namely one to articulate the testimony of the defeated. It is closely linked to anamnesis, in which testimony plays a crucial role.”

Consequently, the role of testimonies in historical trials like those of Eichmann and Barbiehave allowed the development of transitional justice, together with their particular tools such as truth commissions – considering particularly the South Africa Truth and Reconciliation Commission, where the words of the victims acquire a fundamental role for the outcome of the transitional process. International fora, such as the International Criminal Court, have increasingly considered the testimony of the victims as a privileged means of proof.

In the case of mass crimes committed in South America by military dictatorships, in Brazil, Argentine and Chile, for example, the testimonies that were produced before the Truth Commissions, at the judicial trials, or even by works of art, have benefited from this period know as “The Era of testimony”, inaugurated by historical trials such as Eichmann's and Barbie's, where a privileged space was attributed to the testimonies of the victims.