An Empty Chair

Among my notebooks is one from 2018 that has in it a sketch of a vacant chair. Even before I saw the chair, which sat facing the bench in one of Bangkok’s military courtrooms, I had learned that it would be vacant. En route to the courtroom in which the chair sat on a November morning, a uniformed clerk carrying a bundle of papers had asked the lawyer whom I was accompanying which case we were coming for. When the lawyer told her, she remarked that it would be postponed. The witnesses had sent word that they would not be attending. The lawyer did not appear surprised. She had expected that they might not attend, as they had not previously.

The witness chair was the only one vacant in an otherwise crowded courtroom that morning. There were fourteen defendants in all, five of whom had been brought up from the holding cells by the jailers lingering around the door. They had been captives since the days and weeks after a military coup in 2014. The defendants had eight lawyers between them. A clutch of supporters had come to offer encouragement and, later, to take the detainees food. A handful of military prosecutors sat across from the defense attorneys. A judge advocate managed the proceedings, which began over an hour late. The other two judges were not trained for the role. They were serving officers who had been appointed to make up a panel. While the judge advocate asked questions, spoke with the court clerk, and tapped on a computer keyboard, they sat mutely. One leafed through documents in an effort to appear attentive and surreptitiously looked at his phone. The other was sullen. His military insignia glinted occasionally from under the black robe draped over his uniform as he moved otherwise imperceptibly in the fluorescent lighting.

The defendants were being prosecuted because they had been active in circles aiming for political reform in Thailand, including via amendment of the law criminalizing criticism of the monarchy. They had been brought to a military court under junta orders to have soldiers try certain types of offences against civilians. But instead of being heard and adjudicated promptly, their case sat like a pool of water through which the paddle wheels of judges turned languidly. No genuine attempts were made to have prosecution witnesses, who numbered over a hundred, depose. On this day, the soldiers and police who were scheduled to appear as witnesses were said to be on official duties in a city far from Bangkok. They could not make it to court. The defense lawyers pointed out, not for the first time, that it was not necessary for all the named witnesses to come. They were each going to testify to the same thing: that they had evidence that the accused had met in their city to conspire to plant a bomb in the area of Thailand’s central criminal court. The testimony of one would suffice. The prosecutor disagreed. The judge advocate set another hearing date. With that, he and his two companions left the room.

Risky Performativity

Is it not strange that army officers serving under a military dictatorship that was keen to remove political trial from the ambit of the civilian courts would then defer passing judgment on their political enemies? Başak Ertür’s performative theory of political trials helps me to understand why not. This is a sophisticated and thought-provoking study that suffers from neither of the shortcomings that Jens Meierhenrich and Devin Pendas (Reference Meierhenrich, Pendas, Meierhenrich and Devin2016, 5) associate with the literature on political trial: first, that it fails to “look past the derogatory connotation of the notion of the political trial” and, second, that it lacks theoretical ambition. Spectacles and Specters is sensitive to the many valences of the political trial. It is theoretically ambitious. If Meierhenrich and Pendas are right about the literature’s shortcomings, then this book serves as a major corrective to it.

Ertür begins by threading an argument about the potential of the political trial through a rereading of three classic texts by Otto Kirchheimer (Reference Kirchheimer1961), Hannah Arendt ([Reference Arendt1963] 2006), and Judith Shklar (Reference Shklar1986). These are much discussed works, which have many times been brought into conversation by others and by the authors themselves. What do we get from yet another engagement with them? For Ertür, the answer to that question is that each author shows “an incipient recognition of the various ways in which legal proceedings operate performatively” (175). It is from this recognition that she builds her own performative theory of political trial.

All concepts have to be handled with care. Performativity, which has been popularized by Judith Butler’s (Reference Butler1993) reworking of speech act theory to explain the category of gender, demands extra caution. Ertür writes about the “onslaught of theatrical misreadings” (9) of Butler, whose own attempts to clarify the concept appear to have had the opposite effect. The basic point is that the performative is not the same thing as performance. It is not an invitation to get caught up in the drama of a political trial but, instead, to attend to the ways in which law’s practice, somewhat like gender’s, produce “the effects that it names” (Butler Reference Butler1993, 2). Trial does this by creating conditions for statements that enact what they say. During certain trials, law has the potential to announce the arrival on the scene of politics which author the law that announces them. But that potential is not ordinarily, let alone automatically, realized. Because the performative is reiterative, and constrained by convention, it typically reinstitutes, rather than destabilizes, practices. Convention, for its part, creates the appearance that law is doing no more than codifying prior relations. The potential for transformative change lies in the possibility that participants in a trial can identify and act on opportunities to intervene in ways that break the relation between reiteration and reinstitution of categories and norms through conventions.

Though reiteration tends to reinstitute, it need not do so if the timing and tone of an intervention are right. Trial has this potential because, as Ertür notes, pointing to Kirchheimer’s (Reference Kirchheimer1961) crucial distinction between trial and show trial, a trial “always involves an irreducible element of risk” (25; emphasis in original) for those who participate in it. A simulated trial, like simulated sex or war, should not be mistaken for the real thing. Where a trial is staged as public theatre for propaganda purposes, or where it is reduced to the administrative processing of captives behind closed doors, then it ceases to be a trial at all. Functionally speaking, for a political trial to be a political trial, it must do more than aim to eliminate political enemies or instruct the public on a position or ideology. Though Ertür’s interlocutors agree that at their crudest political trials target enemies, to reduce them to this function is to mistake them for instruments with which to dispatch certain matters at hand and to communicate about them to relevant publics.

As Ertür writes, it is in his search for a yardstick of political justice that Kirchheimer (Reference Kirchheimer1961) “moves away from a mostly instrumentalist account of political trials to an acknowledgement of their performative potentials” (30). Tying this thread to Arendt’s famous “report” on the trial of Adolf Eichmann, Ertür finds in the latter “an acute understanding of a range of the performative possibilities it held” (31)—possibilities that were not the captives of sovereign schemes for particular political goals. Whereas the state of Israel was taken up with holding Eichmann responsible for crimes against the Jewish people, Arendt saw the trial as a missed opportunity to transcend sovereignty by attending to his actions as crimes against all humanity. That is to say, the trial had the potential to contribute to the making of a different, enlarged political community than the one that its architects opted to build. If realized, this imagined political community would at once have been the source of an unprecedented type of law and its outcome.

Performative theory’s promise, for Ertür, lies in how it locates inquiry in between the poles of structure and agency, neither contained by sovereign schemes nor fetishizing, for the purposes of her project, political defendants’ “heroic resistance” (13). Instead, it describes, as Butler (Reference Butler2015, 63) has written, “both the processes of being acted on and the conditions and possibilities for acting.” It allows for the element of risk necessary for a trial to be political and extends the capacity for enactment of perfomative statements from the interpretive acts of legal authorities—preeminently, judges—to all participants in a trial. A genuine trial must leave room “for failure, errancy, subversion, and resignification” (10). There is always the possibility of trouble because authority is itself forever latently in trouble. Anyone in the room, not only the judge, the prosecutors, or the defense attorneys, might utter a performative statement that could destabilize the proceedings, as Ertür shows through a reading of the 1969 testimony of Bobby Seale in the trial of the Chicago Eight. By usurping the speech of legal authority, Seale exposed the vulnerability of sovereign conventions whose effectiveness depends on their being reiterated.

That is why, I think, the witness chair in the Bangkok courtroom sat vacant. What prevented anybody from occupying it was the trouble that the case being heard could foreseeably have caused to the sovereign conventions that buttressed the court’s legal walls. It was not that the particular witnesses called that day might have said something that would render them or even the prosecution case vulnerable to the defense’s attack, though that was, to be sure, one possibility. The problem was bigger than that. The case’s removal from a civilian to a military court had not mitigated the risk of the case going awry. It may have done the opposite, since there were no intermediaries between the army and its enemies in the military court. As the performative potential of the trial could not be foreclosed, judgment was instead deferred through the non-appearance of the soldiers and the police. Long before the absurdly long list of prosecution witnesses was exhausted, or the defendants were given a chance to be heard, the case was transferred back to the civilian courts once the junta was dissolved in 2019.

Impossible Recognition

A few months after the witness chair sat empty in that military courtroom, Ertür was making her way along the corridors of Istanbul’s new Palace of Justice. Unlike me in Bangkok, she was not at the building to observe. She was there because she had been accused of coproducing terrorist propaganda by signing a petition to support the peaceful settlement of the long-running war between Turkish state military forces and the Kurdistan People’s Party. After a short hearing, her trial was postponed. Before it was reconvened, the Constitutional Court in Ankara ruled that the charges against her and hundreds of others violated their freedom of expression, and the case was dropped.

Though Ertür’s book opens with this personal story of political dissidence on trial in present-day Turkey, its second half does not lean toward this type of trial but, instead, toward the legal afterlives of the Armenian genocide. Its emphasis on political trials in the aftermath of this specific genocide means that readers looking for a study that extends the theory developed in the first half to a variety of different settings will be disappointed. Spectacles and Specters goes deeper, not broader, as it goes on. It is silent on many other types and histories of political trials and on works that resemble or draw inspiration from the classics already discussed, such as Hinton’s (Reference Hinton2016) study of the trial of the Khmer Rouge commander Comrade Duch in the hybrid Extraordinary Chambers in the Courts of Cambodia. It is quiet about other historically proximate events and institutions, such as the Tokyo trials of Japanese war criminals that were modelled on Nuremberg, which Shklar (Reference Shklar1986) severely criticizes, not to mention other trials of Japanese officers and officials that were held throughout Asia (Wilson et al. Reference Wilson, Cribb, Trefalt and Aszkielowicz2017).

But Ertür is not playing the part of historian or surveyor. She is not obliged to do that kind of work and nor is she trying to. Her goal in this part of the book is to dislocate “the meaning-making centrality of Nuremberg” (4) as a precedent for addressing and understanding political justice in response to catastrophic violence. In building and trying out a theory with which to think through the character and consequences of political trial, her juxtaposition of the Armenian genocide and Jewish Holocaust is effective, and the cases discussed are compelling. She offers sound reasons for choosing them, while leaving it to the reader to infer what motivates her politically.

The hinge on which the latter half of the book turns is the trial of Songhomon Tehlirian. On March 15, 1921, Tehlirian shot and killed Talat Pasha in Berlin. Pasha, an Ottoman statesman, had designed and overseen the Armenian genocide. On the stand, Tehlirian spoke in a riddle: though he had killed a man, he was not a murderer. He had not acted of his own volition. His family was among the massacred. His mother’s ghost had urged him to do it. As the trial participants heard other witnesses recounting the Ottoman atrocities, the perpetrator alchemically became the victim. How? According to Ertür’s account, it was not through recourse to the facts about whether Talat had authored the massacres and expulsion of Armenians. Instead, his transformation came through the participants’ regard to whether Tehlirian believed that Talat was responsible or not. The apparition of his mother mattered not because the courtroom was full of people who believed in ghosts but, rather, because this specter contained “the impossible recognition of what we now call genocide” (126). It gave shape to facts that justified killing a man who ought to have been held criminally responsible for genocide but who was walking the streets of Germany with impunity.

That Talat was going around Berlin freely is one of two things that makes Tehlirian’s act instructive for Arendt ([Reference Arendt1963] 2006). Tehlirian, she notes, had no legal avenue to seek justice. No tribunal existed that an Armenian could approach for redress. The Allied governments had issued an unprecedented statement in 1915, a month into the genocide, that they would hold the Turkish government and its officials responsible. Had they done so, the killing would have been unjustifiable. But they had not. The other noteworthy thing for Arendt ([Reference Arendt1963] 2006, 265) was that, having killed Talat, the killer immediately surrendered to police and “insisted on being tried.” In this way, he transformed the situation by inviting law to play its part in adjudicating. But, as Ertür warns, this is not a way of saying that law in this moment reappears untainted by bloodshed, to obtain mastery over a violent act that is not of its doing. Had a tribunal existed to try Talat, the ghost of Tehlirian’s mother would not have had to exhort her son to go fire a gun. Tehlirian had to take the law, as it were, into his own hands because there was no tribunal. In this way, law was complicit in his unsanctioned violence.

Law’s complicity in violence is further revealed in two subsequent cases that the book discusses. One is the 2007 revenge killing for Talat of Hrant Dink, a leading Armenian journalist and activist, following years of judicial harassment by the Turkish state. The other is the case of Doğu Perinçek, a Turkish politician whom the European Court of Human Rights in 2015 acquitted of denying the Armenian genocide. Perinçek’s denial was not literal but interpretive (Cohen Reference Cohen2001). He did not deny the deportation and massacre of Armenians but, rather, that what had happened constituted genocide. This type of denial is a method to defer judgment. We agree that bad things happened, but were they genocide? As Ertür observes, adjudicators who gesture toward competing interpretations of historical facts and ruminate on the problems they pose for legal rulings, like the judges in the first hearing of Perinçek’s case in Strasbourg, are not actually deciding anything at all. They are putting off deciding by going along with the politics of interpretive denial.

On appeal, the superior chamber of the European Court of Human Rights did not make the same mistake of running aground the historical and legal hermeneutic sandbars that trapped the lower chamber. It did decide. Ertür says that how it decided shadowed Tehlirian’s case. Bypassing questions of how to interpret historical fact, the appellate judges emphasized that what they needed to consider were the politics of genocide denial in present-day Europe. They were neither considering nor deferring the question of whether what the Ottomans did to the Armenians was genocide because that was not the heart of the problem for the court. What mattered was what it meant for Europeans now that a Turkish politician had gone around the place insisting that there had been no genocide.

Having laid the grounds for the trial to transcend sovereign schemes and imagine a new kind of political relation between Europe and its neighbors, the superior court judges unfortunately then retreated to provincialism and genocide exceptionalism, which had perverse results. While denial of the Jewish Holocaust in Europe was antidemocratic and anti-Semitic, they observed, the denial of the Armenian genocide did not have the same corrosive effects on the continent. Though the situation might be different in Turkey, that was not their concern. The effect of the ruling, Ertür writes, was to declare: “[T]heir ghosts are not our ghosts; our judgement does not bear on their world” (172). In Turkey, meanwhile, Perinçek’s acquittal was celebrated as putting an end to the “lie of genocide” (172), as if the Eurocentric judges had done the one thing that they had avoided doing—namely, issuing a verdict on the historical facts.

A Precautionary Lesson

Reflecting on the Perinçek case, Ertür asks about “the task of legal judgement in the face of hyperproductive denialism” (173), which colonizes institutions, propagates interpretations, and sponsors scholarship that redoubles genocidal violence legally and historiographically. Though she asks about this task in the wake of the ruling a decade ago, her inquiry is all the more pertinent today. The state of Israel now stands accused in the International Court of Justice of genocide. Its prime minister and a former defense minister are wanted by the International Criminal Court for war crimes and crimes against humanity—though not genocide, which has a higher evidentiary threshold.

Benjamin Netanyahu and Yoav Gallant might never sit in the defendants’ chairs. After the Court issued warrants for their arrest, a few parties to the Rome Statute, including Germany, declined to indicate if they would effect the court’s arrest warrants were they able to do so. American politicians and pundits urged their president to exercise legislated authority to “use all means necessary and appropriate” to release the accused, should they ever be brought to the Hague (Al Jazeera, 2024). While the United States welcomes criminal indictments of Africans and Russians, when it comes to the Israeli military and political classes, it seems, judgment must be forever deferred.

Even if it is against the odds that the two men may be tried, then the trial could become ensnared in the kinds of indeterminacy and legalism that led to the perverse outcome in the Perinçek case. The hyperproductive denialism of the Israeli state surpasses the Turkish state’s denials of genocide. As with Turkey, this is nothing new. Over four decades ago, Edward Said (Reference Said1979, 51) wrote that, throughout their modern history, Palestinians have been the subjects of one denial after the next, such that to criticize Zionism was not so much to criticize an idea but, rather, “a wall of denials.” Today, those denials are of every conceivable type: literal, interpretive, and implicatory. The last of these is a form of denial in which the psychological, political, and moral implications of one’s actions are also denied (Cohen Reference Cohen2001, 8). By manipulating an empowered Jewish identity forged from survival of the Holocaust and the trial of Eichmann, among other sources, the Israeli state insists on the rightness of its cause no matter the cost.

What resources does Spectacles and Specters offer to help us think and act in such dark times? My hopeful reading is that, in their constant refrain, such denials reveal how vulnerable they are to critique and that, on trial, they could not be sustained—not because of their simple recounting and auditing of facts, to be sure, though these matter. Rather, they could not be sustained because of the performative potential of a political trial to move its participants and observers to recognize the impossible—namely, “that this level of atrocity is humanly possible” (126), even now.

My less hopeful reading is that, in the end, the book’s precautionary lesson for anyone seeking political justice is, to put it crudely, beware of what you wish for. Political trials are not for the risk averse. If the performatives of sovereigns and states can misfire, then legal responses to state violence can themselves have unintended consequences. Political trials do not have predetermined outcomes, and those occasions when their performative potential to transform politics is realized are precious because they are rare.