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At the end of the 18th century, the legal philosopher Anselm von Feuerbach declared that a perpetrator is only constituted by the deed, and the deed by the law. It is the law the determines the deed (German: Tat) as such, and the one who commits it as an offender (German: Täter). Thus, the perpetrator is at once both the subject of the act (he has the choice to commit it or not) and its result. But what if the state neither names nor punishes the criminal act as such? What if, on the contrary, the state orders it, silently tolerates it, or even rewards it with a medal?

Selma Doborac’s film is about exactly such acts. But her film is called DE FACTO and not “de jure.” So it has less to do with the legal framework than with facticity and the character of the acts and the perpetrators. That these acts were committed de facto, just as the sentences we are hearing here were said or written down, is more important than the question of what both meant de jure

However, since our ethics are formally separated from the law, but nevertheless connected to it, other questions arise: how did the perpetrator come to his act? Is he already a perpetrator in the moment that he commits it? Is the act of a moral or legal nature? And does he think about such questions later? Doborac has two actors, sitting at a three-legged table designed by the artist Heimo Zobernig, alternate in their responses to questions that the audience never hears, but must assume in the silences between answers. The room has many openings, the building is located in a park; the wind rustles audibly through the leaves, and sometimes church bells or twittering birds can be heard. The culturalized nature of the park infiltrates a space in which human nature is being negotiated, a realm as devoid of “nature” as the “natural” exterior.

The two men speaking are mediums—literally. They are mediators, in between. They don’t speak of themselves; they give the statements of others a body and a voice. And they speak rapidly and somewhat tonelessly. No drama. The phrases pass through them like air through a resonating body. Only the little flubs belong to them—and to what extent, is anyone’s guess.

The men were in court; they confessed to a share of the blame, but not the whole thing. They were partly responsible, as if responsibility could be divided like a cake.

“Whatever sings to me, I hear the song in my body,” Roland Barthes once wrote, and in the “rawness” of the voice recognized that which, in the act of speaking, doesn’t belong to oneself, but instead transcends the semantics of sentences. How did it sound, one asks oneself involuntarily, to these two actors, to speak such sentences? Are the flubs a reaction? And what gestures belong to them? Were they told to place their hands on or under the table? One of them wears a kind of blue garment with breast pockets, signalling membership somewhere among federal railway, fire department, or military; the other is wearing a pullover. Does what the latter says become more individual because of this? He’s the one who can hardly say “I” and, as if talking to himself about himself, says “you”: you know, you have.

Both men speak of torture, executions by shooting, rape. Of children that roasted “like suckling pigs”, of women who were raped multiple times and murdered, like those 1200 men who, at the end of a “workday”, lay as “cadavers” in a ditch.

They speak, therefore, of state violence, from the midst of a culture of death, a kind of cult of necrophilia. They speak from the perspective of the perpetrators as well as from that of the onlookers. They took part, they watched, they looked away. And yes, they reflect upon themselves and upon their guilt. They were in court; they confessed to a share of the blame, but not the whole thing. They were partly responsible, as if responsibility could be divided like a cake. But they can list reasons, can draw fine distinctions between themselves and the “animals”, between themselves and “nature”, which, thanks to the use of their reason, they managed to escape.

The “animals”—those are the others, who committed the acts with pleasure and delight, in a state of “permanent psychosis” and equipped with a “permanent erection”. The animalistic pleasure in killing was supposedly abhorrent to the instrumentally rational speakers; they acted for higher purposes—the purity of the nation, for example, or in pursuit of a lofty idea naturally above killing. And they muse upon evil, which ostensibly lives within freedom as within a flip switch. After all, reason is bestowed on everyone, and it alone regulates access to morality. The “animals” have simply made no use of their reason. One is reminded of Himmler’s 1943 speech in Posen, where he said that “to have remained decent” in the face of thousands of murders is a glorious chapter of “our” history. And one wonders, whose history? And how long one will keep having to listen to this endless litany of only half-indebted atrocities. Yes, who is speaking in DE FACTO?

Let’s put it like this: the perpetrator as an imaginary whole, the criminal band of men, which, in this film, has found two bodies and two voices and a legitimation that corresponds to a logic of division. The animal gifted with reason has divided itself into those who remained “decent,” disciplined, and those who ran riot. But they are one and the same animal, even if one knows phrases like “destiny of being” (German: “Seinsgeschick”) and the other was too insignificant to even have given testimony.

We know the pitfalls of human memory […] The historical television shows don’t care; the “contemporary witness” enriches the events with emotions for comprehension.

But is the perpetrator witness to his own act, can he even be? Legally he is entitled to defend himself; in the film, we hear enough about it, up to the heights of philosophical anthropology. But isn’t it also a property of being a witness that one did not participate in the act? The witness’s absconsion from the legal system and elevation in an increasingly mediatized historical narrative is looked upon by historians with scepticism. We know about the pitfalls of human memory, the mistaking of dates and persons, the consolidation of narrated stories that aren’t true. The historical television shows don’t care; the “contemporary witness” enriches the events with emotions for comprehension.

Not in Doborac’s film: the voices remain emotionless and the text montage specifies neither dates nor places nor persons. The depictions remain just as concrete as they are anonymous. The actors’ speaking follows a logic of increasing abstraction; it begins with a description of acts and then extends from the legitimizing of their own actions to the theoretical problems of anthropology and the writing of history. These voices don’t so much give testimony historically or legally as make us into witnesses of an intellectual attitude and history that also provides the ground for the most despicable crimes.

And suddenly the talking stops, and after a moment of blackness one sees a small temple decorated in front with a laurel leaf. It is a so-called friendship temple, the sort which were fashionable in eighteenth-century English gardens—gardens that simulated nature with the rigour of the Baroque, just like the nature one has been seeing the whole time through the openings in DE FACTO. Perhaps a literary friendship circle met in the temple to subtly extol reason and sing the praises of poetry. Did the evil begin here, or should we go back there to a culture of friendship that first made possible social contact with strangers? Or is that asking the wrong question—because it is not about either/or, but rather about that famous “dialectic of Enlightenment,” which, in the “destiny of being,” forgot to think itself through to the end? Even at the end, it’s worth listening carefully.

Eva Hohenberger is an author and media scholar.

Translation: Donna Stonecipher


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