Refugee on Trial: The Hole in the Donut

The eleventh piece in our Polity of Literature series:

Concluding our trilogy about “the hole in the donut”—that rule-bound space within which our readings of others can have shared, verifiable legitimacy (see PoL #10 and Addendum to PoL #10)—Dutch artist and writer Niels Bekkema looks at the different kinds of rules laid down by courts, immigration authorities, and by artists working to critique these systems. Watching Iranian-Dutch artist Ehsan Fardjadniya’s 2019 performance piece, “Refugee on Trial,” talking to the asylum lawyer Frans-Willem Verbaas, whom Fardjadniya cast in this verité performance, and attending sessions of the criminal court recommended by Verbaas, Bekkema thinks through the various rituals and rules of public story-telling via his own experience as a minimum wage phone-bank caller for the government, a helper for asylum seekers housed in a Dutch ex-prison, and as an artist seeking the most direct connection between work and audience. He finds that the asylum seeker, the artist, and the accused are all at risk of being misread—often with disastrous consequences. Narrower rules might stop the most egregious misreadings, but they can erase the space of personal judgment that gives our readings meaning. More flexible rules—or no rules at all—threaten to cast us out into the solitude of our whims and personal quirks, robbing us of the shared structure that makes reading and judgment collective. In this social and political drama there is no easy resting place. The essay is illustrated by Ken Krimstein.

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I got my art school degree in 2011, in the midst of an economic crisis, and the only job I could find was answering tax questions at a government-run call centre in Groningen (the Dutch city where I’d studied). Although all the information was easily found online, my job training included a mandatory three-week course in tax administration and phone etiquette. One of the “tricks of the trade” they taught me was how to extrapolate concrete questions from the shaggy-dog stories I heard every day, while simultaneously navigating the online script to locate the proper official responses. As a state employee, I had to follow the script exactly. My words had legal standing; they had consequences. I was told to say “according to the information I currently have at my disposal” at least once per conversation. It’s a sneaky phrase for sure: the word “currently” meant that matters could change. The words “according to” cast doubt on the reliability of the source. Uttering these words ensured that whoever called couldn’t sue me or the state, should I make serious mistakes leading to loss or damage. Not only did that phrase make my daily tasks more dull and repetitive, it made the language I employed to those in need of assistance less trustworthy and undermined the clarity and usefulness of the help I gave. I thought a more personal approach would be better, and I began to deviate from the script a little, in an attempt to sound less like a computer and more human. It made the work more interesting, and what harm could there be, I thought, as long as I conveyed accurate information? The department that monitored my calls disagreed. They shared Max Weber’s belief that bureaucrats ought to derive their authority from the law as it is written, and not from other common sources such as charisma, affection, or tradition. So, after a year of answering ninety phone calls a day and receiving monthly warnings from my supervisors, I quit.

A decade passed. I moved to a different city and paid very little rent. I lived off a small income from temporary kitchen jobs, escaping into Carson McCullers’ and Torgny Lindgren’s novels during my time off. The living I made was so meager that the insurance company and tax authorities didn’t believe I could get by on it. Of course it wasn’t said in so many words, but the implication was clear: I must be hiding income and I needed to pay for that. For a year, I was sent “from pillar to post” and kept in a suspended state of waiting, a limbo in which nothing was ever solved, and I often thought back to that one phrase “according to the information I currently have at my disposal.” In the end I found my way through that bureaucratic labyrinth, but I’ve remained distrustful of the language of bureaucracies. Whether on the delivery end, as an employee of the state, or on the receiving end, as a citizen (or someone who hopes to become one), bureaucratic rules seemed to me to shut down the space of our humanity, silencing exactly what we seek when we enter into society together.

Another of my temporary jobs was helping recently-arrived asylum seekers settle while awaiting their asylum procedure. I worked in Veenhuizen, in the remote north of the Netherlands, at one of the many large sheltering facilities the government set up in 2014 and 2015. These facilities are always located in less-populated places, out of the public eye (which always puzzled me, considering how central the refugee is in the Dutch political debate, but that’s another matter). The facility at Veenhuizen was a disused prison in the woods near a small village. There was little to do for the asylees at any time of year, and during Ramadan most of them slept during the day to preserve their energy. To pass these quiet days, I’d walk the circumference of the facility by following the tall prison fence that nobody had bothered to tear down. Most newcomers needed to be told that they could ignore the barbed wire, the CCTV-cameras, and all the other remnants of the facility’s former use, that, in fact, they could come and go as they pleased. Mostly I helped organize their housing, moving beds, explaining the laundry, and establishing protocols to help these scores or hundreds of strangers live amicably together for a few weeks. Officially, my only duty was to make sure each of them showed up to their interview with the Immigration and Naturalization Department (IND), the bureaucrats responsible for processing refugees and deciding on their fates, and for the most part I succeeded.

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The Dutch legal scholar, Ralph Severijns, spent those same years working as a policy advisor to the IND, which sparked his curiosity about the central encounter in the asylum process: the interview. Severijns made it the subject of his PhD study, ultimately conducting more than a hundred hours of conversations with the IND bureaucrats who carry out the interviews and manage the decision-making process, which leads either to asylum or to the state’s refusal to grant it. The stakes couldn’t be higher. Last year, Severijns’ PhD thesis was published as a book, Zoeken naar zekerheid (or, Search for Certainty). It’s interesting whose “search” he means. In this portentous meeting of the state with the masses of hopeful applicants, many of whom have traveled far without any certainty and few resources, Severijns focuses on the bureaucrats. It is the IND worker’s “search for certainty”—trying to hear and judge the asylee’s story fairly—that this fascinating book unpacks and inspects. Their encounter is fraught with life and death consequences. Reading the first-hand accounts in the many interviews Severijns transcribed in his book, I hardly recognized the men that the IND workers were judging. Although I’d spent hours of every day for many months with precisely these same men, and had heard many of the same stories, the shadowy, fragmented lives being interrogated by the IND were hardly recognizable. At Veenhuizen, when these same men were relaxing in their relatively unstructured off-time prior to “the interview,” they were voluble, loquacious, given to joking and sentimentality. I was no judge, just a sympathetic ear, so I could marvel at their stories, and go with them wherever they wanted to take me. This established a common ground that let them tell me a lot they might never communicate in the official interviews. So, who knew these men better? I’m grateful nobody ever asked me to decide their fate; because no one did, I was able to know them plainly, similar to the way we know our neighbors.

I’d taken the job in Veenhuizen to build up enough savings to pay for a Master of Fine Arts program in Rotterdam. I’d been accepted, and now I needed to find the money to cover my costs. When I began working, I was counting the weeks and months until quitting time, watching my savings grow toward an end date when I would move on, back to my “real life” as an artist; but as my political awareness grew through the stories I heard, and the “asylum seeker world” slowly opened its doors to me, I hesitated. This wasn’t just a job. But nor was it the future I’d envisioned for myself. I’m an artist, that’s my work, and my education was still underway. In Fall 2014, I quit the job in Veenhuizen and started the MFA program at the Piet Zwart Institute in Rotterdam.

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Artists live in the world, of course, and every choice I made to focus my energy on “art” begged the question, as opposed to what? The world we’re in is in our art, naturally. For some artists that’s a massively complicated and defining presence. Ehsan Fardjadniya is a Kurdish Iranian artist who escaped Iran in the early 2000s, threatened for the images he’d drawn of various powerful Imams. He made his way to the Netherlands, where he was given asylum in 2001, and was able to attend graduate art school here and in London. I met Ehsan last November, shortly after reading the book by Ralph Severijns, when I went to Amsterdam to see his performance piece, “Refugee on Trial.”

Ehsan’s overarching ambition is to “attempt to catalyse change by intervening in systems of power and normativity.” This passage from Ehsan’s website describes a strategy that I was familiar with. Especially in the wake of the Occupy movements of 2011 and 2012 (in which Ehsan took part), contemporary artists have situated their work—the site and materials of their art-making—within existing non-art political processes, such as housing, social services, or the policing of public space. The Occupy Movement itself is a good example. Ehsan’s art practice is a series of such interventions, more often performative, as with “Refugee on Trial,” than object-based, as with his earlier drawings and sculptural pieces. “Refugee on Trial” would have no actors, he told me. In fact, he himself would play the plaintiff, “Ali J.” A retired judge and working lawyers would play their respective roles. The audience wouldn’t idly spectate the drama either, it would be up to them to decide on Ali Js’ fate, at the trial’s conclusion, using an online voting app.

On a rainy November evening, it took me about twenty minutes to walk from Amsterdam’s Central Station to Pakhuis de Zwijger, one of the city’s many former industrial buildings repurposed for the cultural economy, a kind of arts corollary to the ex-prisons that had become shelters for asylum seekers. The performance would take place on the fifth floor, in “The Studio,” a large, multifunctional room often used for meetings and congresses. That night, it served as a surrogate courtroom.

“What you’re about to see isn’t theatre, and it isn’t fiction,” the moderator, an asylum lawyer named Marq Wijngaarden, explained as the officials of the court and Ali J. took their seats on the stage.

Ali J. is a young man from Afghanistan who requested asylum in the Netherlands as protection from threats he received from the Taliban. The IND rejected his initial asylum application, finding his story inconsistent and unbelievable. Ali J. and his attorney believe that his fear of persecution is well founded, but the state’s representative, played by Frans-Willem Verbaas (by day a defense lawyer for asylum seekers, a miscasting that proved to be unavoidable; the IND refused to provide anyone for Ehsan’s performance, so he cast one of their traditional opponents in the role), isn’t keen on reversing the earlier decision made by his colleagues. On stage, his rimless glasses reflect the yellow spotlights as he points out that Ali J. never published any articles, nor did he enjoy any formal training as a journalist. “He’s not a journalist, he’s a fixer. Fixers are everywhere in Afghanistan, and whoever does it knows it can be risky. Why can’t Ali J. just move cities in Afghanistan and solve his own problems?” If the IND will recognize that Ali J. is a journalist, his burden of proof will be lowered (journalists enjoy special protections in asylum law) and he’ll stand a better chance of winning.

Ehsan, as Ali J., runs his finger along the collar of his black button-down shirt, which is tight around his neck, before answering that the Taliban are active everywhere in Afghanistan. There is no safe city to move to. Already the Taliban had recognized him and tried to steal some of his colleague’s expensive equipment. Ali J. says he feared for his life ever since, a fear that was confirmed when he was shot at while grocery shopping, back in Afghanistan.

“But how do you know those bullets were meant for you?” The question comes from the audience, another feature of Ehsan’s adaptation of the court process: like on daytime talk-TV, we in the audience get to speak up.

Ali J. is silent, seeming put off by the question. Sweat pearls down his face as he stammers something about putting one and one together – “They told me they wanted to kill me, and then they shot at me. There’s a logic to it.”

The IND representative’s opinion remains unchanged, though. “An interpreter working for the army is not himself a soldier,” the play-acting defense lawyer explains calmly. “This is also the case with a fixer helping journalists. Moreover, Ali J. hasn’t been threatened since 2010.”

“For the Taliban, he’s a journalist. That’s what matters.” Ali J.’s attorney says. “He assisted the New York Times, he had a press card, it’s two sides of the same coin. And it’s a known fact that the Taliban has a long memory when it comes down to people who helped the Americans.” But the Taliban would not decide Ali J.’s fate that evening. He was safe inside a performance piece in a Dutch arts venue, far away from the Taliban’s reach. His fate wasn’t even up to the judge, who, after the closing arguments reminded us that human sympathy alone is insufficient grounds for a legal judgment. He made a few other concluding remarks and pointed our attention to the web-link projected behind him, where we would cast our votes. The lights came up.

I pulled the site up on my phone and stared for a while at the “yes” and the “no,” feeling anything but certain. The professional lawyers and judges whom Ehsan had summoned to take part in his performance, knew (and they did what they could to remind us) that fair and just verdicts come from rule-bound legal procedures, indifferent to the personal qualities that make us feel sympathy for one person but not another. Yet the conventions of theatre, of art—the whole framework that Ehsan had imposed—begged us to think with our hearts, to feel our natural sympathy with the teller-of-the-tale. The facts I learned in those 90 minutes added up to uncertainty, but my heart said “yes.” And so I voted “yes”—why not?—along with 70% of the audience. Ali J. had asylum! The judge looked back at the score, and read out one of the two verdicts he’d written a few days earlier, then closed the hearing. The crowd surged out of the small performance hall, filling the staircase with talk of going for a night cap or out to a dance club or a corner café for tea before bed. Pakhuis de Zwijger bustled with mingling audiences from several different events, all now ending. It was close to midnight, and I hurried to the Central Station to catch a late train home. It hadn’t stopped raining.

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I’ve always been sympathetic to art that makes me think about politics. The refugee crisis, for example, feels urgent, personally and politically. Any attempt to make the public look directly at the human lives at stake will matter to me. But what’s “directly” visible in art, is always the art. As with Adorno’s fundamental objection that “it’s barbaric to write poetry after Auschwitz,” I resist the displacement that art can bring, putting itself at the centre of something that’s already its equal, or more, simplifying our political problems by inviting us to think of them as artistic problems. After my brief confusion at the end of “Refugee on Trial,” I still wanted to know more, not about Ali J. or artistic interventions in systems of power and normativity, but about those systems. I phoned the asylum lawyer whom Ehsan had enlisted to play the IND worker, a man called Frans-Willem Verbaas.

“Normally, the judge is rather passive, he asks fewer questions,” Frans-Willem Verbaas’s voice sounds clearly through my phone speaker. “The asylum seeker barely gets a chance to talk. He can only make some remarks at the trials closing, but the idea is to keep it brief. You’d say that a judge has to ask questions if he wants to know whether something really happened or not. But that doesn’t happen very often. When a whole case is at stake, that’s, of course, very strange.”

“Why is that, do you think?” It was a cold Saturday morning in January. The streets outside were quiet and the sky as clear as glass. Our spare room’s radiator warmed me.

“Well, the underlying doctrine of Dutch administrative law [the type of law under which asylum cases are litigated] is that the judge doesn’t have the same expertise as the executive body. So, judges can’t easily deviate from the conclusions of the investigation conducted by, in this case, the IND. They can either agree, or annul the decision and refer the case back to the IND procedure. But they have to decide if a decision is reasonable, they are not allowed to do the decision-making over again by themselves. So, as you understand, this puts a lot of power into the hands of the executive body.”

“Right.”

“I guess you can already see it coming: after a nullification an asylum seeker re-enters the procedure, but then the IND can reject him again and the whole circus starts all over.”

“So how does a judge intervene in that cycle?”

“What’s peculiar is that the judge rules on the basis of the dispute. That means on the basis of what has been argued. So, if the lawyer doesn’t argue it, the judge won’t look at it. That’s an important limitation.”

“I see, it’s very strict.”

“Yes. For example, since Ali Js’ lawyer didn’t say: ‘there’s a policy that states you enjoy special protection if you carry out journalistic work, therefore he doesn’t have to be a formal journalist,’ then a judge would not take that specific law into account.”

“And do you think the state would keep such a thing quiet?”

“Not necessarily on purpose, but, well, if they’ve already rejected asylum, then the process strategy is often ‘let’s see what we can get away with.’ If they think they’ll lose the case, they might revoke a decision, because they certainly don’t want jurisprudence to develop in the wrong direction. The policy is restrictive. And that means for asylum seekers, it’s ‘no, unless…’ But well, you can’t say they’re out to reject, I think that’s just a little too sharp. Every civil servant is different. A bureaucracy is not a person.”

At my end of the phone line I smiled silently, recalling the remarkably varied characters Ralph Severijns portrayed in his book about the IND. For all our attempts to make an impersonal, rule-bound system in which every individual is treated the same, there’s never any overcoming the human encounter at the centre.

Severijns called this structure of decision-making, “the hole in the donut.” The fairness and authority of the judgment rests in the strict rules that surround the decision maker—the donut—while in the middle is an undefined space of deep uncertainty—the hole— where one human being must judge another. Both must exist, the donut and the hole, for judicial processes to be “just,” that is, to render defensible decisions.

“It doesn’t come to mind to many people to visit a court if you have no business there,” Frans-Willem added, “but it might be worth your while to take a look. It’s hard to form an image of what I’m talking about if you’ve never seen an actual trial yourself.”

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In the nineteenth century, ships docked and unloaded their cargoes at Rotterdam’s Rijnhaven, where the cargoes were transferred to river boats that journeyed deep into Europe along the inland waterways that converge here. But as the decades passed, labour migrated away from the city, onto artificial islands on the North Sea, and the old port has been laying empty in the middle of the city. While its former warehouses grew red with rust, blockbuster architectural projects made their appearance on the riverbank. There’s talk that the municipality might partially drain the long-vacated port to make a park and a city beach, but plans change all the time in a city that’s perpetually reinventing itself.

One of the Rijnhaven’s new uses came in 1997, when the Wilhelminahof—a complex of red brick high rises that house tax administrative and governmental offices—was completed at the water’s edge. Its northern extension, a sinister block of stone-clad concrete built in a semi-brutalist style, would look like an oversized bunker if it didn’t have an oxidized copper roof. This is the Rotterdam Court of Justice. Inside, nearly 185,000 cases are litigated annually by 200 judges. It is one of the biggest courts in the country.

On a Monday morning in February, I cycled there through the rain and strong winds to see how judges reach verdicts (the news that morning told me storm Ciara crossed the city the night before). I considered going to a case like “Refugee on Trial,” but the few refugee hearings that day concerned which EU country had to take responsibility for processing the asylum seeker, and such hearings tend to be quite unspectacular compared to the swiftness with which a criminal judge reaches a verdict (or so said the kind receptionist downstairs).

After passing through the X-ray machine and walking down closed corridors only to be flagged down by yet another friendly guard, I finally found the criminal courts on the fifth floor. By that time it had stopped raining and the diffuse morning light swept in, appending shadows to the leatherette sofas, the bubbling water-coolers, the potted ficus and philodendrons. In the waiting room there were bailiffs and a few attorneys donning their barrister’s gowns. The classroom-sized court chamber itself resembled a conference room in an upscale motel. The judge, sitting on a slightly elevated platform with the court reporter and the public prosecutor, had long, porcelain teeth and urged me to sit down quickly; the day’s schedule was full and he had every intention of keeping to it.

By far the most interesting case that morning concerned a young man who allegedly stole electricity to power a marijuana plantation in his apartment. The case was accompanied by a thick pile of paperwork, prepared by the police officers, with evidence meant to prove the plaintiff’s illegal activities. After the judge completed the opening rituals (asking the plaintiff his name, address and his date of birth), he asked if the young man had anything to say before the prosecutor read the charges. The young man replied that he’d never set foot in the apartment; he was forced to sign the contract to settle his gambling debts.

“Forced by who?” the judge asked.

“What they’ll do to me is worse than what you’ll do…”

“Alright, then I give the floor to the public prosecutor.”

The public prosecutor stood up and recited her arguments: responding to a neighbour’s complaint, the police found empty fertilizer bags, suspicious light fixtures and electric cables in the plaintiff’s apartment. They also found that the fuse box had been tampered with, so it didn’t register use of electricity. In short, proof that the apartment was used for a marijuana plantation. Tampering with the fuse box not only resulted in a theft of electricity, it also put the neighbours under serious risk of a fire breaking out. For this fact, combined with the bulk production of marijuana, she wanted to send the young man to prison for three months.

The prosecutor’s passionate argument to incarcerate the plaintiff was memorable, but it failed to impress the defendant’s attorney. He began his counter arguments by pointing out the state’s inconsistencies—in the evidence file numbering, errors in the page count, the blurry photographs made by the police—with the same level of engagement you’d expect from a teenager telling you about their day at school. The pinnacle of his long, sprawling argument, however, was the wrongful conclusions the police and the public prosecutor had drawn from the evidence: “If empty buckets, electrical cables and some bags of plant fertilizer prove that my client is running an illegal marijuana plantation, well, let’s just say I hope the police won’t look at the shed in my garden.”

“What a mess!” The judge threw the evidence file on his desk. The public prosecutor looked away in silence. Then the judge turned to the plaintiff, who’d kept his gaze locked on the floor in front of him throughout the case. “Sometimes the law can work in your favour.”

The young man and his attorney left in sweet relief. He was a free man, for now at least: the prosecutor needed some time to decide if she’d appeal. She seemed downcast, but I felt glad for the plaintiff. I was also glad I saw this specific case, because the judge showed precisely why impersonal procedural rules are necessary to pass valid judgments on other human beings. The young man might have been guilty, but sending him to prison based on false evidence wouldn’t only have been an injustice to him, but also to the system by which we make judgments at all. It was different when I worked for the government-run phone bank. Of course, then I didn’t need to judge anyone, I only provided information. But the impersonal, procedural language I used was a hindrance then. It made those who needed my assistance even more vulnerable, instead of protecting or empowering them.

In the end, it wasn’t the outcome, but the path the judge took to reach that outcome that interested me most. At the same time it clarified why I felt the voting process in “Refugee on Trial” was off-putting: the yes/no voting app had stripped our decision making of any rules or regulation. There was no weight of evidence, no responsibility to base our judgments in a common process; the options were “yes” or “no,” and we were not asked to give reasons. And isn’t the use of sovereign power without reason, rules, or explanation what drives many people to flee from their home countries?

As I saw the prosecutor’s disappointed look when the young plaintiff left the chamber, I began to wonder what would happen if this was the work of art, this witnessing of a real trial? What would happen if, as an artistic gesture, you invited the audience to see a public trial, to ask them to simply be present as the officials of the court perform their duties and issue their verdicts, so they can see the direct effects on human lives that follow from acts of speech, instead of asking your audience to take on the role of a judge or jury? Wouldn’t that open up a space for critical discussion where art’s political potential could be fully realized?

“I’d hoped you would see something more interesting today.” The judge leafed through the day’s schedule on his desk. “But after lunch, all I can offer is more illegal marijuana plantation cases.”

“No worries,” I replied. I’d had enough for one day. Besides, I wanted to take a closer look at the waiting room outside, the threshold where people undergo the transformation from social subjects into subjects of law, the border that separates the space of sovereign judgment from the chaos outside.