the role of testimony and testimonial analysis in human rights advocacy and research' in state...

Patel, Ian (2012) 'The Role of Testimony and Testimonial Analysis in Human Rights Advocacy and Research' in State Crime: Journal of the International State Crime

Initiative, London, Pluto Press, 1.2, 2012.

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THE ROLE OF TESTIMONY AND

TESTIMONIAL ANALYSIS IN

HUMAN RIGHTS ADVOCACY

AND RESEARCH Ian Patel

Ian Patel is a Postdoctoral Research Fellow in the School of Law, King’s College London.

Abstract: This article addresses the prominence of testimony evidence in the practice and theory of human rights. It examines the use of testimony in legal mechanisms, by international advocacy organizations, and in academic human rights research. It reflects on the reasons behind the prominence of testimony, treating it as a source of evidence, an advocacy tool, and a trope within human rights discourse. This article places testimony in political context, and explores the political implications of the fact that the narrative accounts of victims of state crime are utilized by international advocates/experts as a primary source of evidence. As an original theoretical discussion, this article critiques what it perceives to be the dominant epistemology of testimony in a human rights context. It concludes that the meaning and uses of testimony in a human rights context are curated by international experts, a trend that risks the disenfranchisement of witnesses from the meaning and uses to which their testimony is assigned.

Keywords: testimony; self-‐narration; liberalism; research methods; victim representation; sources of evidence



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Introduction: Testimony As Narrative Research Evidence

In the past thirty years, narrative-‐based research – that is to say, research whose primary empirical data is comprised of narrative(s) – has risen to prominence in a number of fields. This has been identified as a “narrative turn” in the social sciences. More precisely, (most) narrative research draws on the accounts of specific individuals which are referred to generically in terms such as self-‐narration, life history, autobiographical narration, biographical analysis, oral history, and testimony.1

In the field of human rights research and advocacy, narrative-‐based documentary evidence and testimony in general have also increasingly been accorded value.2 This may seem a rather truistic point to make. From the abolitionist movement onwards, human rights campaigns have always relied on publicity, and have therefore circulated eyewitness testimony as a device to immediately arrest the attention of the reader or viewer.3 We all know – equally – the empirical force behind testimony as it registers in our consciousness. Like seeing, hearing is believing. Yet in what follows I will suggest that the role of testimony in the context of human rights goes far beyond a visual technological device to grab people’s attention. Richard Rorty famously observed that rights claims are made at an idiomatic level as “sad and sentimental stories” (Rorty 2003: 122). I want to explore the implications of Rorty’s statement here.

Although the demand for measureable outcomes in human rights initiatives has led to the packaging of data into easily digested statistical tables, there has also been a reliance on testimony as a mainstay in sourcing evidence. This has led Leigh Payne to ask whether the field of human rights is experiencing a surfeit of stories, a “stockpiling” of testimony.4 There are of course different types of testimony evidence. Legal testimony in an international criminal trial is different to an instance of common law confession evidence; a semi-‐structured interview with a survivor of state violence is

1 In this article I adopt the term “self-‐narration” over these variations. This is not because I believe that first-‐person accounts present a coherent “self”. Rather, I favour self-‐narration because it alludes to an underlying assumption in most narrative research that a first-‐person account provides valuable insight into that person’s experiential realities. Since narrative accounts are often framed by a demand for coherent “self”-‐presentation, “self-‐narration” is a choice term capturing the demand for narrative coherence and the experiential reality supposedly identifiable in narration. 2 By “human rights advocacy” I am referring particularly to international NGO networks and their attendant campaigns, reports and media resources. By “human rights research” I am referring to international criminal justice, truth and reconciliation commissions, transitional justice, restorative justice, and research on post-‐conflict societies and on civil reconstruction in post-‐conflict situations. 3 See section on “Visual Anthropology” in American Anthropologist 108.1 (2008). 4 Payne’s observation was made as a respondent to a panel on “Testimonial analysis, use, and aftermath” at Ways of Knowing After Atrocity: A Colloquium on the Methods Used to Research, Design and Implement Transitional Justice Processes, Oxford Transitional Justice Research, University of Oxford, June 2012.



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different to a “life history” of a refugee; and a UK victim impact police statement is different to a focus group transcript of regional CSO leaders.

At particular issue in this article is the reliance on “marginalized”, “silenced”, “oppressed” narratives in the theory and practice of human rights, and the uses to which such narratives are directed. I use the term “self-‐narration” in this essay to refer to narratives told in the first person by a narrator who recounts the extreme experiences of conflict situations. I use the terms “testimony” and “testimony paradigm” to indicate the legal prominence of self-‐narration within human rights advocacy and research as well as its attendant epistemology. “Self-‐narration as testimony” is a phrase used to indicate the promotion of self-‐narration as a species of testimony within human rights research and advocacy.

The deliberation and houseroom given to the self-‐narration of victims and survivors of state crime has been an important part of procedural justice. While the psychological benefits of “speaking out” remain in question, there is nevertheless much to suggest the use-‐value of testimony for testifiers themselves, who can experience a sense of (albeit a nebulous term) acknowledgement. Accordingly, testimony is often viewed in terms of the recent incremental advances in victim-‐centred justice.

In a broader sociological sense, testimony is seen to provide an “on the ground” perspective, and in this regard has become a key heuristic among researchers in their attempt to understand the experience of conflict. Indeed it is difficult to challenge the reliance on testimony evidence without risking the criticism that in doing so one represses the voices of those who have suffered oppression. From an academic vantage, challenging testimony evidence risks appearing obscurantist or recalling a Derridean critique of language that denies narratives consensual meaning. Although this article fundamentally takes issue with the reliance and promotion of self-‐narration as a species of sociological and legal evidence in a human rights context, my intention is not to delegitimize narrative-‐based evidence. Rather, I wish to suggest the ways in which our ideas about self-‐narration as a form of testimony invite certain assumptions about the act of account-‐giving itself that complicate our attempts at interpretation. Specifically, I want to interrogate the interpretative move by which instances of self-‐narration are “given voice” – that is, are made to fit a framework of testimonial analysis – a move which neutralizes the researcher’s frame of interpretation. This article, then, moves between the epistemic status of first-‐person narrative accounts and the practical uses and effects of testimony evidence in the field of human rights.

My intention is to show that self-‐narration is evidentiary and meaningful as testimony; yet, at the same time, I want to suggest that it is the object of certain misplaced assumptions that lead in some cases to tendentious standards of interpretation. My purpose in this article is to approach the dominant international model of human rights interpretation not simply as an ideologically freighted enterprise, but as a series of epistemological claims. In doing so, this article touches on a different question: can Western academics and practitioners reasonably hope to engage with the narratives of their respondents in a way that is dialogic as opposed to conscribing or prescriptive, yet at the same time empirically valid?



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Testimony evidence in a human rights context is presented as an end in itself, as something which bears inherent use-‐value. Yet human rights organizations collect testimony in terms of its exchange-‐value, too. The testimony of witnesses forms “thick rivers of fact”, which might be siphoned and filtered into evidence by future legal mechanisms or political movements (Cmiel 1999: 1246).5 Human rights advocacy also makes use of testimony as a campaign tool that harnesses the affective spectacle of testimony and the reactive emotion it can provoke in readers, listeners, and viewers.

Existing critiques of testimony evidence tend to question either its supposed utility or its supposed ideological disinterestedness. Recent examples of the public circulation of testimony, in for instance the former Yugoslavia and Rwanda, have shown that the dissemination of documentary evidence does not necessarily provoke international political action or local mobilization. Political critiques of testimony evidence have addressed what is claimed to be the top-‐down, expert arbitration of testimony. They take to task the unequal dynamic of power between expert interpreters of testimony on the one hand and, on the other, those persons whose narratives are utilized as evidence (Pittaway et al. 2010; Mander 2010).6

This article proceeds in a different manner, by challenging certain epistemological and hermeneutic assumptions in dominant interpretations of self-‐narration as testimony. This analysis might be described as endogenous to human rights, in the sense that it examines the internal assumptions of human rights claims and human rights as a Western epistemic knowledge. While this article recalls existing work on “epistemic communities” and “hermeneutic injustice”, it concentrates not simply on the shared epistemic assumptions within networks and powerful geopolitical constituencies, but on epistemological assumptions about narrative accounts as a species of evidence (Haas 1992; Fricker 2007).

I suggest that the assumptions behind the dominant epistemology of testimony are in the first place fallacious, and in the second place ideologically encoded. I do not call for self-‐narration to be subject to stricter standards of proof, or for that matter to any new interpretative frame. Rather, my focus is on the actions of human rights experts, who (I suggest) make their narrative subjects the mouthpiece of pre-‐existing human right credos.

This article begins from the understanding that human rights researchers and advocates (myself included) act “as collectors, filterers, translators, and presenters of information regarding alleged violations” (Metzl 1996: 705). Human rights may exist as a moral call or appeal, but in application it is codified as a collection of norms and abstract designates and categories. The abstract schema of human rights is given specificity by reference to case studies, but I would suggest that its emphasis on the individual as the unit of human rights is ratified by the “voice” of the human rights claimant. When human rights researchers and advocates utilize testimony evidence, however, they ferry its knowledge and curate its meaning, and in doing so trammel the narrative accounts of others with

5 An example of such an organization is the Abdorrahman Boroumand Foundation, which collects testimonies from relatives and friends of those killed or disappeared in the Islamic Republic of Iran. 6 For an excellent critical analysis of international advocacy networks, see Subotic (2012).



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their own normative understanding. The epistemology of testimony as understood by many practitioners and experts tends to mask this process of collecting, filtering, and translating.

This masking occurs in the assumption that an instance of testimony evidence is the unique particular which proves the general normative rule. Human rights testimony and human rights norms come into use correspondingly as a person petitions for rights previously denied them. Human rights advocates are able to refer to victims’ accounts of their experiences as “testimony” as opposed to mere “narratives” because of the assumption that self-‐narration is emblematic of human right norms. A witness’s account of events gives us much contextual and cultural content, but crucially it is also understood to be the sign of the self-‐determining human rights claimant, functioning therefore as a kind of testimony. By the same token, individual self-‐narration is often made to serve a collective or community function, a process supported by the assumption that the narrating “I” is surrogate to a collective “we”.

The interpretive move by which an instance of self-‐narration is converted into victim testimony is too often elided by the epistemology of the interpreter herself – an epistemology which merges epistemic claims with morality and politics. The further move by which victim testimony is integrated into a wider programme of political action, in which human rights is promoted and enforced across the world, also tends to be elided.

Focussed on the evidentiary framing of human rights interpretation, this article is not a comment on, for instance, local NGO organizations that collect testimony. Rather, I focus on international and Western academic application of such testimony. When referring to examples of international or academic application of testimony evidence I am not taking issue simply with the understanding of individual international experts within these arenas. I am also taking into consideration their place in an international order of liberal states which, through the vehicles of humanitarian advocacy and international human rights law, acts or attempt to act on behalf of victims of conflict.

This article begins by examining the broader epistemological implications of the rise of narrative research, specifically in the field of human rights advocacy and research, and then reveals the extent to which the epistemology of testimony and the liberal project of human rights are mutually dependent. A critical analysis of the epistemology of testimony in human rights advocacy and research is both timely and necessary. A survey of 33 human rights fellows found that 68 per cent indicated the semi-‐structured interview as their choice research method (Reed and Padskocimaite 2012: 4).7 Like other types of evidence based in self-‐narration, interview evidence is employed as an indicator of “people’s perceptions, meanings, definitions of situations and constructions of reality” (Punch 2005: 168). While there is a great deal of literature on technical aspects of qualitative

7 The most popular methods were: semi-‐structured interview (61 per cent), case study (45 per cent), ethnography (36 per cent), archival research (27 per cent) and statistical analysis (21 per cent).



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interviewing, little work has been done on the epistemological assumptions implicit in such qualitative research.8

Since the epistemology of testimony is a relatively under-‐researched area, I hope this article will clarify some of the ways in which certain key terms in the field of human rights – testimony, truth-‐telling, recognition – are underpinned epistemologically. I hope this discussion will be of use to others working on research methods in the field of human rights, and will be a contribution to existing literatures on rights consciousness, evidentiary sources, victim empowerment, and victim representation.

The Turn to Narrative in the Social Sciences

Before engaging the epistemology of testimony, it is first necessary to chart briefly the rise of narrative in the social sciences. The “narrative turn” in the social sciences was a turn towards self-‐narration as a species of evidence.

In Doing Narrative Research (2008), the authors write that: “In the last two decades, narrative has acquired an increasingly high profile in social research… [It] is a popular portmanteau term in contemporary western social research” (Andrews et al. 2008: 2).9 This emphasis on narrative as a qualitative frame has given rise to several general texts for social researchers, as well as others that examine its influence within specific disciplinary areas, such as sociology, education studies, cognitive science, healthcare, and social work, among others.10 The narrative paradigm is not qualitatively prescriptive, since methodologically it belongs to the “highly epistemologically-‐contested field of discourse analysis” (Andrews et al.: 1–2).

Where in other fields self-‐narration is valued as a measure of psychological states of being – the eponymous “self” of self-‐narration – in the field of human rights research a further component is integrated into self-‐narration’s epistemic status.11 I will attempt to reveal the ways in which human

8 As China Miéville (2006: 2) has observed, with respect to international law, within most textbooks “theoretical assumptions are generally unacknowledged and implicit”. 9 Amanda Anderson (2006: 3), for instance, writes that by the late 1980s, there was an established critical “interest in first-‐person perspectives and in the lived experiences of diverse social groups”. 10 General texts include Clandinin and Connelly (2000), Elliot (2005) and Chamberlayne et al. (2000). 11 Many disciplines have come to value what many see as the narrative constitution of psychology and identity. As a typical critical statement in this vein has it: “[W]e lead our lives as stories, and our identity is constructed by both stories we tell ourselves and others about ourselves and by the master narratives that consciously or unconsciously serves as models for ours” (Rimmon-‐Kenan 2002: 11). Jerome Bruner (2002: 89) describes selves as stories that “impose a structure, a compelling reality on what we experience”. In more general terms, philosopher Marya Schechtman (1996: 93) advocates a “narrative



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rights advocacy and research promotes narrative as a type of evidence that pertains not simply to the psychological realities of a victim, survivor or witness, but one which also serves a testimonial function.

First-‐Person Accounts: From Storytelling to Empirical Resource

First-‐person accounts have undergone something of a reappraisal in the hierarchy of credibility.12 Non-‐fiction storytelling in the humanities has traditionally been placed in a tradition of rhetoric or polemic, but more recently it has come to be valued as an empirical resource. Following Iris Young’s dictum that “storytelling” can be “an important bridge between the mute experience of being wronged and political arguments about justice”, there has been much critical attention focussed on the relationships between storytelling, jurisprudence, and social justice (Young 2000: 72).13 As Sidonie Smith and Kay Schaffer (2004: 1) write, the 1990s has not only been labelled “the decade of human rights”, but also the “decade of life narratives”. First-‐person life narratives “begin to voice, recognize, and bear witness to a diversity of values, experiences, and ways of imagining a just social world and of responding to injustice, inequality, and human suffering” (Smith and Schaffer 2004: 1).

In an important sense, then, the reliance of human rights advocates and researchers on the personal accounts of individuals has been politically motivated. As Richard Weisberg has observed, narrative-‐based research tends to emphasize the ability of self-‐narration to undermine the authoritative discourses of those in power. Within Western culture, many of us, including prominent researchers, have been

far less sceptical of individual eye-‐witness accounts than of the manner in which institutional forces ignored, warped and distorted them for their own purposes… in the context of our own generation, the eye-‐witness gains credibility just as the political or institutional or cultural account is precisely devalued. (Weisberg 1991: i–iii)

self-‐constitution view”, and maintains that people’s lives are narrative in form. A person “creates his identity by forming an autobiographical narrative – a story of his life”. In the same vein, Charles Taylor (1989: 47) suggests that a “basic condition of making sense of ourselves” demands that “we grasp our lives in a narrative”. 12 For a discussion of the notion of a hierarchy of credibility, see Sanders (1987: 238). 13 See also Braithwaite (2007), Beverley (1992), Bell (2010), Pranis (2001), Neimeyer and Tschudi (2003).



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In the face of authoritarian regimes which have silenced the accounts of individuals by destruction or by disseminating their own propagandizing discourse, the personal accounts of witnesses of state crime among others have provided a hugely important counter-‐narrative. Self-‐narration, on this basis, was formulated as valuably indicative of the experience of witnesses to events.

With this promotion of self-‐narration in the field of human rights came a type of essentialism about what it meant to give an account of oneself. This was not a humanist stress on the immutable value of self-‐narration so much as a proclamation of its discursive integrity from social and political forces. Analyses that utilize testimony evidence, in other words, often presuppose self-‐narration as the self-‐sufficient practice by which human beings exercise in language what is significant to or about them. Narrative is reified as the essential practice of self-‐knowing, leaving its structures, co-‐optive influences, and social relations unproblematic to it. As the human function best placed to act as a vehicle of critique to hegemonic systems of meaning, which “silence” or overwrite the human speaking voice, narrative is afforded the worth of a universal, innate human capacity. Such essentialism is maintained even when narrative is held in relation to historico-‐cultural formations. The ability to narrate is often presented as the practice of a universal and unchanging dignity that is naturalized as a narrative human condition. For example, the abolitionist slogan “Am I not a man and a brother?” works publicly as a political and moral appeal, but in an epistemological sense it also works metaphysically to confirm a (socially interdependent) human condition.14

Self-‐Narration As Testimony

From the discussion above, we can now identify a further inflection given to self-‐narration as an empirical resource. As a witness or victim or survivor of human rights violations, one’s account of one’s experiences is presumed to carry a testimonial freight by dint simply of its existence. Felman and Laub (1992: 5) have described “testimony” as “a crucial mode of our relation to events of our times… our era can precisely be defined as the age of testimony”. If ours is an “age of testimony”, it is because we live in “an age in which witnessing itself has undergone a major trauma” (Felman 1991: 76). The in extremis pain of recent history establishes the need for testimony and the ethical right of traumatized human subjects to be heard and thus acknowledged. On this basis, survivors of historical suffering, and their stories of survival, demand to be granted an epistemic status by precisely those structures of knowledge and power that have failed them.15 The crises of recent history have, in other words, instituted a crisis of reference. Amid the unmeaning of war and

14 This rather complex relationship between self-‐narration and philosophical notions of selfhood is explored in Wright (2006). 15 For a discussion of institutional failure and a concomitant “rejection of the claims of collective belonging”, see Turner (1996: 47).



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atrocity, and among the fragmentary detritus of documentary evidence left by that devastation, testimony rises to the fore as a kind of “traumatic realism” (Rothberg 2000).16

When a narrative account is identified as testimony in a human rights context this tends to be a deliberate attempt to identify that narrative account as (i) a species of empirical evidence, and (ii) one that carries with it a certain moral imperative contained in the act of bearing witness. Testimony, in this sense, is seen to marry legal with moral and affective forms of persuasion.

Put crudely, in its very broadest sense, testimony means “people telling other people things”.17 Most testimony (in this broad sense) involves some kind of narrative. Furthermore, some type of self-‐narration – “I was there; this is what I saw; and now I’m telling you what I saw” – is implicit in most kinds of testimony. This kind of minimal testimony can provide a wealth of factual information for those wishing to collect verifiable evidence about a situation. Self-‐narration in the field of human rights is carrying a heavier burden, however. Because the experiences at stake are so unique and extreme, self-‐narration in such contexts is urged to cleave to a more declarative and revelatory script. The formula in this latter case might read something like: “I was there; this is what I saw, lived through, and experienced; this is the effect it had on me and who I am; and this is why I’m telling you about it.” Because self-‐narration in a human rights context is so freighted with experiential extremities, it is elevated to a form of knowledge in itself. Testimony is the name we give to this form of knowledge. The interpreter assigns a value to the content of such testimony beyond what is empirically relevant to the existing body of documentary evidence. To take a fictional example: “Security forces came to our house and arrested me, though they did not have a warrant. My father-‐in-‐law became short of breath and fainted from the shock of it.” That the speaker in this fictional example was arrested without a warrant has legal and political implications, but the hurt of the family member, and the emotional effect of this hurt on the speaker, too has legal and political implications. Those who are called upon to speak of their experiences are thus poised to answer to these dual functions of empirical knowledge and experiential knowledge.

16 “Traumatic realism”, Michael Rothberg (2000: 140) writes, “is marked by the survival of extremity into the everyday world.” Recent historical suffering has been so extreme as to empty out previous models of realism based on moral and political traditions complicit in that suffering. In this vacuum a “traumatic” realism survives as the first point of reference by which to rebuild. Rothberg also places traumatic realism beside “a demand for documentation…and a demand for the risky public circulation of discourses on the event” (2000: 7). 17 For existing discussions on the epistemology of testimony, see Coady (1992), Lackey (2008), Lackey and Sosa (2006), Graham (1997), Fricker (1994). On testimony as an acquired source of knowledge, see Lackey (1999). On testimony-‐based belief, see Stevenson (1993) and Sosa (1994). Also see Hume’s ([1777] 1972) influential account of testimony.



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Table 1 Epistemological assumptions: self-‐narration as testimony

Political assumptions

Testimony:

1. Speaks truth to power, thereby promoting justice.

2. Confirms the individual’s standing as a claimant to human rights protections.

3. Bears witness to injustice.

4. Promotes an accurate historical record.

Social assumptions:

Testimony:

1. Promotes mutual understanding.

2. Gives verbal form to identity.

3. Is the currency of forgiveness and reconciliation.

4. Aids mutual recognition.

Psychological assumptions:

Testimony:

1. Provides a verbal transcription of lived experience.

2. Promotes individual healing.

3. Reveals individual experiences and social (as opposed to ideological) norms.

4. Presents a singular cohering self-‐portrait.

The epistemology of testimony is a paradigm that views first-‐person narratives as a kind of a lattice of legal and political meaning. Under this paradigm self-‐narration is a knowledge that both verifies certain facts about a situation and satisfies the need for representation of the extreme experiences to which victims of state crime are subject.



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This integration of self-‐narration into a testimony paradigm is complex and needs more critical attention. I believe the epistemological claims made on behalf of self-‐narration take their cue from traditions within criminology – specifically, the need for empirical investigation into the experiences of victims (Green 1990; Hillyard 1993).18 I believe self-‐narration in human rights research has been subject to a process of epistemological overcompensation, however. Self-‐narration as empirical resource has been conflated with the idea of self-‐narration as testimony, meaning that self-‐narration has come to serve as the basis of a knowledge that is somehow both empirical and political, both affective and petitioning.

In most cases, of course, self-‐narration in a human rights context does indeed warrant deliberation from a number of perspectives and, too, provides a compelling knowledge of conflict situations. I want to question however the purposiveness the testimony paradigm confers on all instances of self-‐narration. Self-‐narration utilized as evidence in a human rights context tends to be presented as serving a truth-‐telling function. As we shall see, however, not all acts of self-‐narration can responsibly be said to sound the proclamation of certain enshrined political goods. Because self-‐narration as testimony need not pertain to empirically verifiable facts to be valid, but, rather, can qualify as such simply as an account of individual experience, the purposiveness implied to self-‐narration is left unquestioned. As legal critic Jan-‐Melissa Schramm (2000: 5) explains:

[T]his is the essential ambiguity of the term “testimony” – that it not only encompasses narratives of experience which need lay no immediate claim to issues of truth or falsehood, but that it seeks to be regarded as a species of evidence. Seen as evidence, testimony serves as a vehicle for the attestation of the “real” because of its roots in ancient notions of legal and religious authority.

While contiguous to legal definitions, the general term “testimony” can be seen as a type of evidence whose weight of proof is not solely dependent on empirically verifiable standards. The open reference of its epistemology has allowed human rights advocacy and research to direct testimony as it pleases, towards ends rooted not simply in a conclusive empirical world, but in “real” political goods.

This process by which self-‐narration is presented as conforming to existing human rights norms can be blunt and heavy-‐handed, and on other occasions it is masked by a researcher’s objective methodology. Whether this is critical complacency or something more pernicious is a question too complex to address here.

18 Criminologists have paid special attention to the narratives of offenders: see Bennett (1981) and, more recently, Presser (2009). In a basic sense, offender narratives shed light on the norms held by an offender as they differ from those of the wider moral and legal community in which the offender lives.



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The Framing of Testimony

We can now move on to consider how self-‐narration as testimony is presented and by whom. I would suggest that in the field of human rights advocacy in particular testimony is often presented as ratifying an existing normative discourse about human rights. This process in effect disenfranchises original narratives of their own terms of reference in favour of normative international discourses on human rights.

Most commonly, human rights supporters use narratives to promote recognition of others living under repressive circumstances. As Osler and Zhu (2011: 225) have put it, by promoting and adopting “narratives as a pedagogical tool” we support “recognition of our common humanity and responsibility to others in distant places, beyond the limiting framework of the nation state”. This is a hugely important task, and narrative can indeed be used to further such a purpose. Yet often human rights advocacy fails to interrogate the frame by which such narratives are interpreted. Too often, the frame in which testimony evidence is viewed and presented is an internationally codified, liberal conception of human rights. Osler and Zhu, for example, betray a lack of critical awareness when they state: “Using the framework of the UDHR, we argue that the study and creation of life histories can aid understanding of universal human rights within different cultural settings” (Osler and Zhu 2011: 124). The discourse of the UDHR might well be comparable to a piece of testimony evidence, but human rights advocates often (wittingly or unwittingly) reproduce and perpetuate liberal human rights norms in the act of “giving voice” to the narratives of others.

Professional advocacy networks promoting human rights internationally are strategic procurers of testimony evidence. As Schaffer and Smith (2004: 14–15) have summarised:

In the midst of the transits that take stories of local struggle to readerships around the world, NGOs and activists enlist stories from victims as a way of alerting a broader public to situations of human rights violations. They also solicit and package stories to attract readerships. The kinds of stories they choose – sensationalized, sentimentalized, charged with affect – target privileged readers in anticipation that they will identify with, contribute to, and become advocates for the cause. The frames they impose on stories are designed to capture the interest, empathy, and political responsiveness of readers elsewhere, in ways they have learned will “sell” to publishers and audiences. NGOs harness their rights agendas to the market and its processes of commodification.

Human rights advocacy, then, can be bluntly utilitarian in its use of victims’ stories, in the name of making public “authentic” accounts of political oppression. Advocacy in this sense refers to the organizational effect of advocacy, as opposed to the individual understanding of the advocate. Given the exigencies of advocacy campaigns it is perhaps inevitable that human rights advocacy groups seek to make an explicit connection between testimony evidence and the rights agenda to which



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they are committed. I wish to further explore however the manner in which the epistemology of testimony is seen to legitimize the “enlisting” of testimony.

To uncover the epistemology of testimony we need to turn to academic constructs and applications of testimony. In human rights research, testimony evidence belongs to qualitative data, in counter-‐distinction or complementary to quantitative data. Such testimony evidence is gained most commonly by “collecting textual data through interviews and/or observation of individuals or groups of people” (Pham and Vinck 2007: 234). Archival evidence and court and tribunal evidence may also be utilized. Some common testimony evidence collection tools include: “informant interviews, focus group discussions, participant observation and direct observation” (ibid.: 234). Qualitative interviewing has its own categories: “open-‐ended”, “structured”, “semi-‐structured”, and so on. This data may also be integrated into a process of “systematic data collection of information or knowledge using scientific approaches” (ibid.: 232). Often, testimony evidence is converted into datasets which are then subject to “coding”, “the process of classifying and quantifying information for the purpose of statistical analysis” (Sikkink 2011: 135). Testimony evidence can be presented alongside statistical data garnered from, for instance, population-‐based surveys or structured questionnaires.

I list these qualitative research methods mainly to contextualize my analysis, since my focus lies more in the epistemological assumptions which orientate such methods. Crucially, empirical surveys, scholarly articles, and NGO reports are all littered with quotations from respondents in a way that is not critically explained or justified methodologically.19 While methodology chapters justify the variant of interview or observation used and its coding method – or the manner in which a report’s quantitative data complements its qualitative data or vice versa – these do little to explain the epistemology orientating them.

Of particular concern is the way in which testimony evidence is framed by and thus conscripted to pre-‐existing norms about account-‐giving as a human rights practice in itself. In March 2012 Human Rights Watch published a report entitled “I Had to Run Away”: The Imprisonment of Women and Girls for “Moral Crimes” in Afghanistan. The report is based on 58 interviews of women and children accused of “moral crimes”. As a Human Rights Watch report, its recommendations are pitched directly to Afghanistan’s Supreme Court, the Attorney General, the Afghan Independent Human Rights Commission (AIHRC), the United Nations, and “International Donors”, among others. Its recommendations – framed by domestic constitutional and legal issues, and relevant international human rights law and treaties – are made concrete and given experiential reference by the testimonies of those interviewed. The exact phrase “I had to run away” does not actually appear in the report, and appears to have been coined to highlight a general rule about the report’s data. “Of the 42 married women and girls interviewed for this report, 22 were arrested as a direct result of having run away in order to flee abuse by their husband or family members of their husband” (HRW 2012: 39).

19 For an example of a highly accomplished piece of research which nevertheless falls into this trap, see Stover et al. (2011).



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The story is told of a woman named Gulara, who was married against her will at age 15:

Her husband had been promised to another girl when he was born but his father, for reasons unknown to Gulara, decided to break the engagement and marry his son to her instead. She said this caused disagreements within her husband’s family, but her family was unaware of this when they agreed to the marriage. She told Human Rights Watch: I had so many problems with domestic violence. Everyone in my husband’s family was treating me in a really bad way. When we got engaged, it was my father-‐in-‐law who came to our house and asked for me for his son. But the father-‐in-‐law himself was beating me a lot from just the time I got married. She said she was also beaten by her brother-‐in-‐law. Gulara went to a shelter to try to get help with these problems and asked them to help her obtain a divorce. Instead, Gulara says that the shelter returned her to her husband after he promised not to repeat his prior actions. However, the situation worsened. My husband said, “Now you have found the ways and the places where you can go and complain about us.” My situation day-‐by-‐day got worse and then I was forced to run away. (HRW 2012: 51)

What is quoted of Gulara’s narrative amounts to 90 words. It is debatable whether this length of quotation, together with the direct quotation from other respondents, is appropriate to the interview data as the primary source of evidence. The shifts of focus within the report – from the temporal and circumstantial specificities of individual self-‐narration; to the regional political concerns of prosecutors and police; to the macro-‐discourses of ICCPR, CEDAW, and ICESCR – will be a familiar hermeneutic to most readers. I would suggest that the amalgamated phrase “I had to run away”, as the eponymous statement of the report itself, is the trope by which the report signals its political legitimacy and methodological integrity. This is despite the fact that the testimonies used in the report are summarily converted into an international language of civil and political rights. While this may be a laudable enterprise, such an epistemology declares legitimate what should be open to critique.

The mechanisms favoured by the dominant institutions and state parties in the promotion of human rights and transitional justice are overwhelmingly legalistic, and more specifically centre on the rule of law, constitutional reform, and democratic enfranchisement. Human rights advocacy and research are at once beholden to and complicit in these institutions and state parties. In this legalistic landscape, and amid the demands from donors for outcomes and measurable results, it might be said to be a curious turn of fate that human rights research and advocacy would continue to rely heavily on that most qualitative of evidentiary sources, the narrative account. In this sense, the rise of so-‐called “history from below” analysis may serve as a useful reference in our understanding of the sustained promotion of testimony evidence.



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In its human rights variation, “justice from below” wishes to critique what it sees as the top-‐down promotion of justice, by suggesting that formal legal institutions and sanctioned transitional mechanisms form a dominant script, which detaches scholars and practitioners from local needs, definitions of justice, and relevant cultural practices (McEvoy and McGregor 2008). Because justice-‐from-‐below advocates aim to enfranchise unheard accounts into the currency of human rights evidence, their ability to be self-‐critical can be diminished by what they see (correctly) as a pressing moral and political need. Just as “history from below” has been criticized (ironically) for co-‐opting grassroots movements into dominant historical paradigms, “justice from below” has been criticized for promoting expert arbitration of justice processes. As Tshepo Madlingozi (2010: 225) has written:

Whether it is through field reports, policy papers, or academic papers and manuscripts, transitional justice experts’ professional advancement is based on being able to “speak about” and “speak for” victims. Despite the constant references to the need to have “victims’ voice be heard”, to have “victim-‐centered or bottom-‐up transitional justice processes”, and to have “victim empowerment”, transitional justice scholars and practitioners have not genuinely interrogated how their programmes and interventions have led to the disempowerment or empowerment of victims.

For our purposes, Madlingozi establishes that the epistemology of testimony assumes the dependency of account-‐givers on the expert agency of professional interpreters. Rather than promoting or empowering account-‐givers’ critical understanding of their own socio-‐political context, justice-‐from-‐below analysis performs a top-‐down orchestration of narrative meaning in the very act of supposed liberation. To return to the notion of a hierarchy of credibility, in the final account it is the human rights advocate herself who outranks the narrative voice on which she relies as evidence. The agency by which a narrative is given meaning is not borne by the author of the narrative, but, rather, by their advocate. Miranda Fricker has written persuasively on the notion of “hermeneutical injustice”. This occurs when a person is in effect written out of the deliberative process by which norms are instituted and meaning constructed. This process belongs to an unequal distribution of “the shared resources for social interpretation” (Fricker 2009: 148). In the case of testimony evidence, the authors of the testimonies themselves are too often left un-‐empowered, and thus unable to participate in the deliberative process by which rights claims are formulated, despite the fact that their own story is a source of evidence supporting the rights claim itself.

Much post-‐conflict human rights research challenges the centralization of a state regime by examining local experiences. Because such research starts from a specific instance before moving to more general concerns, it risks making an individual’s narrative answerable to the particular credo or critical telos of the researcher herself. To take a more specific example, there is a certain logic followed by human rights research which draws on the accounts of survivors of a regime: a Survivor must ipso facto be the bearer of an important testimonial account.20 Those researchers engaged on

20 As Roger Luckhurst has written in The Trauma Question (2008: 2), “extremity and survival are the privileged markers of identity. Concentration camp inmates, Vietnam and Gulf veterans, victims of



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a justice-‐from-‐below analysis must check the logic which suggests that localized conflict is best understood through local accounts. As Phil Clark has shown in his research on the Rwandan genocide, many survivors were in hiding during the atrocities and were unable to shed light on local killing practices (Clark 2010). Epistemologically speaking, a narrative account is a discrete and unique entity, and a rather poor vehicle for making generalizations about a complex historical period or conflict. This is not to say, of course, that survivors cannot ameliorate the historical record. Neither is it the case that retrospective accounts inevitably parrot state-‐authored discourses or act as ciphers of a state. Yet narrative evidence is far more fragile – more rhetorically conditioned – than it is convenient to recognize.

From here, I want to suggest my own theory of the epistemological assumptions by which testimony evidence is allowed to be so (mis)used. At this point the reader might ask what I am arguing for in the interpretation of testimony evidence. Do I wish to argue for testimony evidence as non-‐purposive self-‐narration as opposed to purposive testimony – and, if so, what does this mean? I do not have space here to propose a theory of self-‐narration as unsusceptible to end goals such as reconciliation, collective memory, and so on. Rather, I want to interrogate the notion of human rights researchers as legitimate interlocutors with the narratives of their respondents. Testimony evidence in human rights advocacy and research is formalized in quasi-‐legal fashion, as if the researcher were prosecutor and the respondent his witness. Yet testimony evidence is made to serve expressly political ends beyond the legal sphere. This is not however something I want to redress in formal legal terms. Rather, I want to question the expressly political ends to which testimony evidence is subject – ends which reach far beyond the legal notions of representation in which human rights advocates trade. Furthermore, I want to suggest that a particular epistemology of testimony is the means by which human rights advocates mask this process of political co-‐option.

There are inherent qualities that tend to be vouchsafed implicitly to self-‐narration by those who advocate first-‐person narratives as a species of testimony evidence. The assumptions underwriting testimony evidence in human rights advocacy are of course wide-‐ranging, and examples can be found of rigorous contextualizing as well as breezy complacency. A danger facing all those engaged in narrative research is the assumption that a person’s account presents a fully formed and coherent “self” communicated in toto by the act of narration. (This tends to be circumvented within human rights research by the implicit claim that respondent narratives are purposed by their authors to articulate what is most important to them.) The pitfalls of retrospective narration and of memory in general are well accounted for – as one might expect, since much testimony evidence is retrospective (Holocaust evidence being a case in point).21 Yet other problems are more often than not left unidentified. A set of difficulties follows the deracination of an account from its rhetorical contingencies, eliding the fact that every account is audience-‐driven. That is to say, every self-‐

atrocities, traumatized parents and survivors of disaster are the subject of intensive political, sociological, biological, psychiatric, therapeutic and legal investigation and dispute.” 21 To take a popular example, Primo Levi’s memoirs operate according as much to the personal psychological needs of remembrance as they do to the needs of historical accuracy. More concerning, however, is the state of Israel’s intercession in the interpretation of Shoah texts.



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narrating account addresses itself to a “call to account” by an “other” (audience), and to this extent every account is inevitably persuasive, tactical, interlocutory, purposive and appeal-‐based in answering this other. Interviewers, for instance, need to be mindful of the way in which respondents will tend to reproduce existing discourses about, say, political oppression and political hope – often in ways which reflect the interviewer’s own lexicon, political discursive allegiances, and turns of phrase.22

Testimony Evidence in Formal Mechanisms

International criminal justice and truth commissions have also given a special place to testimony evidence. Since the “paper trail” is often hard to follow after a regime, the accounts of victims and perpetrators take on a particular significance.23 Since “international tribunals base their factual determinations virtually exclusively on eyewitness testimony”, and rely on victims and perpetrators indirectly as embodiments of national suffering or iniquity respectively, the accounts of individuals can sometimes appear to be at the very heart of international criminal justice and truth commissions (Combs 2010: 14). In truth commissions, “[p]roof of accountability is not required or provided other than through the testimony of the perpetrator himself” (Duff et al. 2007: 295). Particularly in the South African example, truth commissions have on occasion promoted the accounts of victims in their capacity to further the causes of social reconciliation, national unity and “healing”. What is more, testimony within participatory processes such as truth commissions, in which actors have been predetermined as either “victims” or “offenders”, is subject to a pre-‐existing consensus of what defines suffering, damage, wrongdoing, persecution, reconciliation, and so forth. In this way, self-‐narration can be harnessed ideologically to further the ends of, say, the discourse of the ICCPR. While it may seem obvious that different mechanisms will produce different “truths”, the exigencies of transitional politics mean that this potential for plurality goes unacknowledged, as a particular mechanism’s “truth” becomes the official account of a historical period or conflict.

David Mendeloff (2004: 358) has usefully brought together the various ends to which first-‐person accounts are directed as a species of testimony evidence. The list is extensive but deserves to be recounted at length in order to give the reader the full scope of the presumed uses of testimony evidence in a human rights context. Both in academic constructs and within the mechanisms themselves, “truth-‐telling” or testimony evidence has been presented as promoting:

22 Translation theory has much to say in this context, too, since much human rights research works with translated data. Translation issues are however too complex to address here. 23 The Nuremberg Tribunal had a wealth of Nazi documentation to draw on as evidence, yet more recent regimes have been more adept at destroying incriminating document evidence.



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• Justice • Accountability • Peace • Discrediting of old regimes/elites • Official historical record • Settling of conflict over past • Healing of individual victims • Group reconciliation • New shared history • Exposing institutional pathologies • Individual criminal accountability • Human rights education • Rule of law • Democracy • End to human rights abuses

Advocates of testimony evidence have a tendency to promote self-‐narration as a kind of political discourse. The experts delivering mechanisms like truth commissions are engaged in a process of prescriptive translation, whereby testimony is not only made legible as a kind of political discourse, but is in effect made answerable and accountable to the goods it is presumed to promote.

For a specific example of the strictures to which self-‐narration is subject in order to be recognized as evidence, we can turn to the ongoing Khmer Rouge Tribunal (or ECCC) in Cambodia. All Civil Parties must complete a Victim Information Form to be accepted by the court. There has been little critical attention paid to the format of this form. Beyond requesting basic information about the potential Civil Party, only in Part B of the form, “Information about the alleged crimes”, is space given over for Civil Parties to describe the crimes they suffered. This space, I would estimate, allows a maximum description of 20 words. Other details about crimes suffered are given in multiple-‐choice Yes/No answers. The only other opportunity Civil Parties have to tell their story is an optional “Supplementary Information Form”, which provides space for a narrative of around 1,000 words. Very few Civil Parties will be asked to testify in court. The percentage of those Civil Parties in the second case who are given this opportunity is likely to be around 2 per cent. Yet this has not prevented an access of legal scholarship discussing victim participation at the court – both celebrating advances already made and criticizing their limitations – yet none of these interrogated the narrative form of victim participation as such (Diamond 2010–11; Pham et al. 2009).



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Questioning the Coherence of Testimony Evidence

I do not wish here to iterate the political critique of human rights advocacy as an imperialist liberal cultural enterprise, or to rehearse the ethical questions surrounding the implications of speaking for another. Rather, I want to challenge the primacy of testimony as an empirical constant. Before interrogating the ideological motivations behind the epistemology of testimony, it is first necessary to examine in yet more detail the assumptions of this epistemology. Next, I want to examine the politics of recognition and recognition generally as a human rights good that necessitates the subjection of testimony to external norms.

What is particularly relevant regarding the epistemology of testimony evidence is the issue of explicitness. Legal testimony requires a level of explicitness, of disclosure, that is suspended in other contexts. In non-‐legal circumstances, what is broadly called “testimony” can rely on implicitly conveyed information leaving the listener or reader to make assumptions extra-‐verbally communicated (technically, this is referred to as the conversational implicature) (Grice 1989). In the legal situation, as Duncan Prichard (2004: 114) writes, since “we cannot rely on the veracity of such implicatures”, meaning “it will be necessary for the lawyers concerned to extract fully what an agent’s testimony is so that there will be no subsequent ambiguity”.

I am suggesting that human rights advocacy and research often makes explicit on behalf of others what it sees to be a coherent human rights discourse latent within first-‐person accounts. In order to achieve such explicitness it must implicitly advance norms of coherence within self-‐narration in the act of testimonial analysis. If such an epistemological agenda is legitimized by implicit appeal to the explicitness norm outlined above, it is lent further support by the assumptions of narrative research in the social sciences. As the authors of Beyond Narrative Coherence (2010) write:

The narrative turn in the social sciences, beginning in the early 1980s and gathering momentum in the 1990s, almost exclusively assumed that there is a vital and many-layered relationship between narrative and coherence. Narratives were conceptualized in terms of coherence: linguistic, temporal, sequential and so on… Coherence was assumed as a norm for good and healthy life stories. (Hyvärinen et al. 2010: 1)

Part of the human rights researcher’s job is to bring the purposive direction of a first-‐person account into the light – applying norms of coherence as he does so – and at the same time to appeal to the political goods to be had by such a revelation. This is equal to subjecting narrative evidence to a coherence paradigm. As the same authors write:

The coherence paradigm generally implies that (i) good and competent narratives always proceed in a linear, chronological way, from a beginning and middle to an end, which also constitutes a thematic closure; (ii) the function of narrative and story-telling is primarily to



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create coherence in regard to experience, which is understood as being rather formless… (iii) persons live better and in a more ethical way if they have a coherent life-story and coherent narrative identity (or, in contrast, narrative is understood as being detrimental because it creates such coherence). (Hyvärinen et al. 2010: 1–2)

This is a major criticism of all narrative-‐based social science research, but one that is currently being redressed by practitioners in the field. Evidence on the effects of trauma has done much to problematize the coherence norm (Andrews 2010: 148).24 But in the field of human rights advocacy, without sustained challenge, it remains implied that self-‐narration naturally coheres to human rights norms.

Despite misgivings about the uses to which self-‐narration as testimony has been steered and the epistemological assumptions to which it is subject, it is not enough simply to throw out narrative practice and interpretation with this dirty bathwater. As Norman Denzin (1989: 62) suggests, we are not tasked with identifying narrative coherence to be either an illusion or a reality, but, rather, we must inquire into “how individuals give coherence to their lives… [the] sources of this coherence, [and] the narratives that lie behind them”.

If we are to see self-‐narration as a sub-‐set of testimony – that is, as a truth-‐telling action that carries a special authority – we must temper this special status with an examination of the political and epistemological assumptions that accompany narrative as a species of evidence. I suggest that too often self-‐narration as testimony is conscripted to act as a mouthpiece to a liberal discourse, a process that is masked by appeal to testimony evidence as an inherent political good.

24 In the face of mental disorders exhibited by veterans of the Vietnam war, PTSD was formally recognized by the American Psychiatric Association (APA) in 1980 and added to the Diagnostic and Statistical Manual of Mental Disorders (DSM). Formally defined, PTSD relates to an extraordinary experience involving “actual or threatened death or serious injury, or a physical threat to the physical integrity of the self”. See American Psychiatric Association (2000: 467–8). On occasion legal practitioners are now advised by experts on the effects of trauma. In January 2012, clinical psychologist Dr Jane Herlihy, who directs The Centre for the Study of Emotion and Law, travelled to Phnom Penh to advise Co-‐Lead Civil Party Lawyers among others of the implications of civil party participation, and particularly the risks of re-‐traumatization, in the light of failings during the first case.



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Conscripting Local Voices into Liberal Discourse

To return to the framing of testimony within a liberal human rights discourse, testimony tends to be promoted as a form of truth-‐telling about the subject. Liberal traditions of self-‐representation, legal autonomy, negative freedoms, and civil and political rights have together provided the normative foundation of modern Western ideas about human rights, and too often set the frame of interpretation of self-‐narration in human rights advocacy and research. This may only be indirect – only an assumption – yet it gives a powerful inflection to interpretations of testimony evidence. Since self-‐narration is realized by individuals, narrative voices are assumed to confirm certain attendant truths about the individual as such at the same time as they describe specific experiences and beliefs. It is in this sense that self-‐narration interpreted at the level of testimony can be said to conscript narratives to a liberal human rights cause.

Giving an account of oneself in a human rights context tends to be seen as a form of self-‐representation. Narratives of victims are taken to implicitly recall liberal ideas of freedom, what the 1948 Universal Declaration of Human Rights (UDHR), Article 19, calls “the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.25

The central epistemological assumption underwriting testimony evidence has its basis in a notion of liberal self-‐determination: I am free to give an account of myself and in so doing proclaim the value of my life. As the sign of those rights I am born into, I am free to vindicate, reflect on, or celebrate my lived experiences, this narrative acting as a testimony which in itself can be seen as a form of legal, moral, and political standing.

When human rights advocates and researchers imply that the narratives of victims cohere to such a formulation, they are merely reproducing epistemological assumptions about subjectivity in the modern world. As modern liberal theory would have it: “In speaking for themselves, and by contracting a social whole with others who also represent themselves, subjects move from a domain of exploitation, illusion and heteronomy to a spontaneous order of equal and self-‐determining individuals” (Colebrook 2005: 5).26 The modern liberal subject is scripted and must cleave to certain norms in its self-‐expression. If the testimonial analysis of a human rights advocate is concerned to corroborate liberal goods, it may be necessary to deracinate a respondent’s narrative account from the practices or technologies in which it is rooted, in order to give voice to an underlying script about liberal subjectivity.

25 As Paul Eakin (2001: 113) has written, “autobiography”, despite its regulation by “normative models of personhood”, lends itself to “egalitarian individualism”: “As we might say in the States, the right to write our life stories is a natural extension of the right to life, liberty, and the pursuit of happiness.” 26 See also Jean-‐Jacques Rousseau (1968: 143).



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Human rights texts, in the liberal tradition, are those in which the speaking human voice is free to affirm itself as a mode of authority in itself. Implicit to such human rights discourse is a knowledge-‐claim about what the speaking voice at its humanist best should sound like. In liberal ideology, the human rights “voice” as experiential uniqueness and as agentic self-‐representation collude to form a single rhetoric: it is exactly the humble, vulnerable, hard-‐won, confessional human voice that is authorized to sound the victory of liberal individualist freedom. As Paul Fairfield (2000: 174) has written: “It has been a guiding intuition of liberal morality that the self possesses a capacity for autonomous agency and self-‐creation.” This autonomous agency is more precisely defined as a person’s ability, protected as a right, to reflect on the norms to which they are subject. As Habermas’s well-‐known statement has it, “the modern legal order can draw its legitimacy only from the idea of self-‐determination: citizens should always be able to understand themselves also as authors of the law to which they are subject as addressees” (Habermas 1996: 449). The difficulty, in the context of our discussion, is that the authors of first-‐person “victim narratives” are not given the opportunity to reflect on the dominance of Western liberal subjectivity, yet remain open to conscription to the liberal cause nevertheless.

In the liberal tradition, the subject’s self-‐determination can be seen as co-‐extensive with his self-‐authoring: “Liberals traditionally have defended the right of the individual to become its own author” (Fairfield 2000: 174). Despite “limitations”, liberalism justifies itself by “positing individual self-‐creation as a worthy ideal”, in which individuals become “the principal author of their own lives” (ibid.). This self-‐narrating faculty is not simply something to be negatively protected by a liberal dispensation, but is the site of an individual’s moral accountability: “Moral agents are free, and are even under an obligation, to assume responsibility for their own narrative history as well as for their particular actions” (ibid.: 168). Liberal conceptions of the self invest a strong belief in the autonomous power of self-‐narration.

If the liberal subject is conceived according to an idea of the self as agent, and testimony evidence (as I am suggesting) is made to fit a model of liberal subjectivity, at what point is agency conferred on the authors of testimony? It may be impossible for human rights experts to secure the subjects of testimony the material agency that comes from living under democratic and non-‐repressive conditions, but surely it is possible for such experts to further their hermeneutical agency, in the form of participation in the meaning of their narrative history?

It is not an exaggeration to say that human rights advocacy relies on testimony evidence as one of its central tropes, and that testimony is seen to correspond to certain negative freedoms. The content of what we might say under duress of torture or coercive interrogation techniques is atrocious precisely because of the value we accord to our self-‐declarations as the index of our humanity (and, increasingly, identity). The unrecognizable, coerced narrative about oneself that might be obtained by torture is a kind of echo that lends one’s self-‐narration as a free juridical subject a more sombre timbre. The case of the Pakistani-‐born American citizen Aafia Siddique, whose arrest is reported to have been premised on that fact that her second husband’s uncle, Khalid Sheikh Mohammed, had named her as an al-‐Qaeda operative during his interrogation by the CIA, has an immediate complication in this sense. Her name was revealed by Mohammed under (questionable)



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interrogation techniques (likely to have included so-‐called waterboarding) designed to force confession.27 This case, in which a person is likely to have been made to speak under duress, recalls the doctrine of the “fruit of the poisonous tree”. This doctrine stipulates that information revealed by a confession obtained by police, where this confession is later ruled to have been improperly obtained, is inadmissible evidence. If the “tree” itself is poisonous, then anything produced by that tree – its “fruit” – must too be toxic and therefore disregarded.28 Self-‐narration in the context of human rights, then, is always a strange kind of fruit. In liberal discourse it is upheld as the emblem of a subject’s self-‐determination. But this emblematic status has an underside as forced or coerced speech.29

In the context of the evolution of human rights, Joseph Slaughter (1997: 407) has proposed that “human rights in general, and human rights law in particular, can be understood in terms of narrative genres and narrative voices”. Drawing on the work of Adeno Addis, Slaughter traces an “individualist” credo in international human rights law dependent on an Enlightenment (Descartes and Rousseau) conception of the universal knowable subject.30 This juridical subject is a victoriously autonomous self, “the hero of her own personal narrative of human dignity, enlightenment, and liberation” (Slaughter 1997: 411). This self-‐declarative narrative presents itself as discrete from the normative social world that precedes and exceeds it.

For Slaughter, the subject enshrined in human rights discourse should be defined in terms of her ability to “speak” as a subject rather than in terms of an inherent humanness: “As conceptions of the speaking subject change, whether over time or across cultures, so too must conceptions of human rights that guarantee the subject’s ability to narrate herself” (ibid.: 412). We are shocked into social relationality and responsibility by our ability to speak (or have our speech silenced or coerced): “the testimony offered by victims of human rights abuses tends to suggest that, even if the subject is ultimately unknowable, the individual, through self-‐narration, experiences herself as a distinct spatio-‐historical being” (ibid.: 429). If human rights exist on a “continuum of narratability”, human rights violations “target the voice” – and, therefore, “the voice should be the focus of international human rights instruments” (ibid.: 407). This notion concentrates self-‐narration as the focus of political norms: “As we better understand what a subject needs to be able to tell her story, we can evaluate entitlements and prohibitions for their effectiveness in guaranteeing the ability to self-‐narrate” (ibid.: 430). For Slaughter, human rights norms must be redefined in terms of the “liberty to tell one’s story” (ibid.: 415).

27 At the time of Khalid Sheikh Mohammed’s interrogation (2002–03), however, such techniques had not been ruled illegal by the Attorney General. See Mark Tran (2008). 28 This legal metaphor represents a general principle in United States law; in English law, on the contrary, such evidence is not inadmissible. See Paul Mirfield (1997: 336). 29 The idea that a right (autonomous speech) attains its meaning in the “mirror” of its counter-‐value (coerced or forced speech). For a discussion of such binary coding and more general discussion of “systems theory”, which helps explains the processes of reduction and totalization by which the law operates, see Emilios Christodoulidis’s chapter “Luhmann’s Systems Theory” (1998: 89–91). 30 For further discussion, see Addis (1992).



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One may think that Slaughter over-‐emphasizes the importance of self-‐narration when he refers to it as the measure of human rights. In one sense, Slaughter’s claim chimes nicely with the rise of victim-‐centred justice, which emphasizes victim participation (testimony) as central to victims’ procedural justice. By promoting self-‐narration in this way, Slaughter in fact perpetuates the notion of self-‐narration as synonymous with testimony. Yet if we are to believe Slaughter when he says that self-‐narration is the sign of the liberal subject itself – and therefore inescapable given that liberalism is the dominant global political order – one may in fact do well to promote “effectiveness in guaranteeing the ability to self-‐narration”, howsoever we wish to define the terms of such a guarantee.

In this sense it is no surprise that post-‐1990 Nelson Mandela – at once liberal politico and local voice of victimhood – would become a figurehead for the export of human rights and transitional justice across the globe. In 1995, for instance, the Washington DC Institute of Peace produced a three-‐volume work entitled Transitional Justice: How Emerging Democracies Reckon With Former Regimes, with a foreward by Mandela. In his foreward, Mandela speaks a justice script whose legitimacy is confirmed by readers’ knowledge of Mandela as a local testifier to apartheid oppression: “In nearly all instances, the displaced regimes were characterised by massive violations of human rights and undemocratic systems of governance. In their attempt to combat real or perceived opposition, they exercised authority with very little regard to accountability” (Mandela 1995: xxi). Mandela’s aim in this statement is to make undemocratic and repressive rule conform to a standardized justice script, made in the name of “an international community predicated on human dignity and justice” (ibid.). Figures like Mandela and Aung San Suu Kyi are paraded around the Western world because, among other reasons, they appear to be a combination of local experience and global liberalism, and will speak to that effect.

We have been discussing the imperative to self-‐narrate in the liberal tradition. Slaughter’s notion that self-‐narration presents distinct spatio-‐historical realities confirms it as an important evidentiary resource for coming to terms with human lives and the political realities that shape them. Yet, as we have seen, we must question the extent to which the epistemology of testimony follows a different pattern, by which the meaning and supposed utility of narrative accounts are orchestrated on behalf of their authors by expert intermediaries.

In the case of human rights advocacy and research which utilizes the stories of others, we must remain alert to this credo of self-‐narration as liberal subjectivity, yet we are dealing with its corollary – namely, an institutionalization of testimony by which its final meaning and value is realized by a second party. In this sense, transitional justice – which among other things heralds a nation’s entrée into the international order of liberal states – seems particularly relevant to our discussion. The transitional justice enterprise involves the dissemination of individuals’ stories. As Madlingozi (2010: 211) puts it,

the transitional justice entrepreneur gets to be the speaker or representative on behalf of victims, not because the latter invited and gave her a mandate but because the



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entrepreneur sought the victim out, categorized her, defined her, theorized her, packaged her, and disseminated her on the world stage.

Within this process, “‘the story’ is the central device in sustaining the transitional justice industry” (ibid.: 225). The story is also, of course, an individualizing trope, converting victims from their place within wider social movements into the unit of human rights, the individual.

We now may be able to see one way in which the epistemology of testimony supports a power relation: Alcoff and Gray (1993: 278, 284), for instance, in their treatment of survivor discourse, maintain that “[b]efore we speak we need to look at where the incitement to speak originates, what relations of power and domination may exist between those who incite and those who are asked to speak, as well as those to whom the disclosure is directed”. Where I do fall in with the political critique of testimony evidence, then, is on this question of agency. The dissemination of the narratives of victims and survivors is indeed a political good, but this needs to be counterpoised with the harms of victim dependency on expert interpretation.

Testimony Evidence and Norms of Recognition

We have been discussing the deep epistemological currents running through the liberal enterprise of human rights advocacy. We can now move to consider a final epistemological assumption: not only is self-‐narration something which serves a truth-‐telling function, it is also assumed to be beholden to a logic of recognition. Like “truth-‐telling”, “recognition” as a trope of human rights advocacy and research is dangerously under-‐theorized.

Securing victims of state crime with a sense of acknowledgement and recognition has been a central concern of so-‐called victim-‐centred justice. This discussion is not intended to detract from the sense of recognition that has been felt by many participants in transitional justice mechanisms and human rights projects. Rather, it seeks to question “recognition” as a term and sub-‐set of justice in international formulations of human rights.

In the dominant human rights paradigm, “to recognize” is a transitive verb – that is to say, a person is recognized to be something. Those who have suffered a particular kind of violent oppression are recognized to be victims of human rights violations. What kind of normative understanding is perpetuated in such acts of recognition?

Recognition, we might say, belongs to the closed economy of prevailing political categories and legal norms. To be recognized within such conditions is at the same time to be regimented within a particular value-‐order. What is sustaining to the subject in such conditions is also sustaining to the prevailing value-‐order.



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I have suggested above that epistemology is often the means by which political allegiances are neutralized. I now want to discuss in more detail this merging of narrative, epistemology, testimony, and politics. I will suggest that human rights advocacy recognizes self-‐narration as an expressly political account, and in doing so regulates such narrative evidence according to its own norms.

To speak of testimony as “political accounts” is also to confront the manner in which human rights culture and institutions stage, instigate, and provide space for (and, more often, regulate, orchestrate, and define) the reception of testimony that bears on experience of social suffering or political oppression. As Veena Das and Arthur Kleinman (2001: 21) have suggested in a discussion about such testimony, “at the macro level of the political system”, there is the need for “the creation of a public space that gives recognition” to individuals’ accounts. The notion that the international community has a responsibility to allow houseroom for the political accounts of others to be recognized is well-‐known. The epistemology of human rights advocacy adapts this theme to imply that testimony, as political discourse, has a responsibility to cohere with current schemes of political recognition.

If social recognition refers to established norms of social and moral personhood, political recognition, in the above sense, refers not simply to these same norms, but to the paradigms of the human personality protected in the discourse of human rights that exists in international law. Recognition, in the texts of international law, belongs to the “unified, monadic, self-‐possessed individual” of libertarian philosophy (Slaughter 2007: 19). The idea that self-‐narration concerning social suffering or oppression must frame itself in established political languages is underwritten by an assumption that the author of such a narrative is speaking as a political subject. As a political subject, one speaks a language of “sameness”, a discourse of “common modalities of the human being’s extension into the civil and social order” (ibid.: 17). It is as though the self-‐narrating subject must perform the equal humanity and fundamental dignity of the human personality found in both the self and others, so that this abstraction, protected in law, can be recognized, ratified, achieved. Slaughter has written of this performativity that such “acquisition of human rights fluency climaxes in a recognition scene in which the individual formally recognizes itself as a subject of human rights – as one subject among others” (ibid.: 253). The self-‐narrating subject, in this view, recognizes her own place within a process of political recognition only after she herself has performatively taken authorship of it.

Given that testimony is an established road to political recognition and hence forms of enfranchisement, to risk unintelligibility and misrecognition might be seen as inadequate to the task of political action. Incomplete recognition may diminish the intelligibility and therefore the effectiveness of one’s account. To qualify as political discourse, and thus utilizable evidence, testimony is made to traffic in normative or recognizable discourse. Since narrative-‐based evidence is made to function as a kind of testimony within public processes of political recognition, it is urged towards making its narrative subjects, especially the “self” at the centre of narration, fully recognizable. Until this process of recognition becomes dialogical as opposed to unilateral, victims of state crime will continue to be incorporated into a dominant paradigm of human rights in the act of recognition.



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This discussion of the political function that self-‐narration asks or is asked to perform might lead us to think that, in effect, there are two ways of giving an account of oneself. The first we give as the image of human rights law, a political subject mobilized as an accountable being legally and institutionally. This first-‐order account is dependent on those norms which form and inform our status as a subject and provide the political frames available to us.31 Thus, in accounting for ourselves politically, we might call upon our status as a national citizen protected by standards of human rights, a nationality that is secured in turn by a sovereignty that is recognized under international law. If we position ourselves as rightful claimants to such political rights following our citizenship, we are by the same token accountable to the established legal and moral order that underpins such rights. Equally, in narrating oneself as a political subject, there is a further normative expectation that one speaks into embodiment the abstract, legal conception of the individual. One’s self-‐recognition as a political subject is simultaneously made to uphold “the right [of everyone] to recognition everywhere as a person before the law” (Article 6, UDHR). To become a claimant to certain rights, as Seyla Benhabib (2001: 16) has written, presupposes a “prior claim of membership”. In having a relationship to such rights, she maintains, “one is already a member of an organized political and legal community”, and such entitlements “create reciprocal obligations among consociates, that is, among those who are already recognized as members of a legal community”. Moreover, to speak about oneself in the language of rights is to come into full possession of those rights – to become “integrated” to those “practices and rules, constitutional traditions and institutional habits, which bring individuals together to form a functioning political community” (Benhabib 2001: 55).

The “second” account we give according to our own personal conception of ourselves. This second-‐order narrative is accountable to one’s sense of oneself as a social being perhaps but, unlike the first account, it serves no instrumental or pragmatic function. That is, second-‐order accounts do not operate under a regulatory demand but are better positioned to risk unintelligibility, unofficial status, and self-‐criticism. An account pragmatically aimed towards securing established political rights or “recognition”, or an account that must satisfy a real-‐world demand made of it, often cannot risk second-‐order ambiguity, self-‐questioning, or paradox (paradox here used in the strict sense of statements made against or “beyond” received paradigms). Second-‐order accounts stand in tension with, and can be made to function as a critique of, first-‐order accounts. It should be clear that human rights advocacy – because of its commitment to effectiveness – is primed to turn second-‐order accounts into first-‐order ones. Many human rights researchers, for instance, worry that respondents are telling them what the international community wants to hear. And can we blame them for doing so?

31 This notion of “first-‐order” and “second-‐order” self-‐narration is indebted to Nancy Fraser (2010), who relates these terms to conceptions of justice.



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Closing Remarks

In the field of human rights research, there remains the urgent criminological need to conduct empirical investigation into the experiences of those who have suffered under forms of political oppression. Narrative-‐based evidence ought to remain central to human rights research in the light of this need. Yet researchers and advocates must more firmly address the trend by which the narrative accounts of witnesses are adapted to the explicitness and tendentiousness of purposive testimony.

Where human rights research is concerned, special attention must be paid to epistemology. This discussion has revealed the urgent need for an epistemology that is not only faithful to the social world presented in the narratives of victims, but one that is framed to advance victims’ consciousness about and participation in the political meaning of their narratives. In order to prevent victims of state crime becoming the mouthpieces of a self-‐proclaiming liberal discourse, human rights advocates might put greater effort into furthering the hermeneutical participation of victims. It may be that such a dialogical project, in which experts and respondents together construct the meaning and frames of reference of a testimonial account, is inappropriate to the professional practice of human rights advocacy. In this case, testimony evidence should nevertheless cease to be used as a device against censure – as a methodological trope designed to protect the credibility and progressiveness of an advocacy cause.

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