29 May Thoughts on Scott Turow’s ICC Novel, TESTIMONY
I have just finished reading the novel, in which a burned-out former US Attorney joins the ICC to investigate the disappearance, and presumed murder, of 400 Roma in Bosnia. I have always been a huge Scott Turow fan; I’ve read every book he’s ever written, most more than once, and the best one — the classic PRESUMED INNOCENT — five or six times. And there are many good things in TESTIMONY, such as the investigative scenes in Bosnia. In general, the various twists in turns in the story are vintage Turow, with fingers being pointed in all directions and the ending coming as a suitably-foreshadowed surprise.
It is also worth noting that Turow’s decision to set the book at the ICC instead of the ICTY is actually quite clever. We are not in CROSSING LINES territory here. Bosnia is a member of the Court and the Roma massacre took place in 2004, so the ICC clearly has jurisdiction. More importantly, Turow is on firm ground when he explains that the ICTY considered the case but ultimately decided it did not have jurisdiction over it. As ICL nerds know, the ICTY Statute requires crimes against humanity to be connected to armed conflict — the nexus requirement first adopted by the IMT. The Roma massacre lacks the requisite nexus, because there was no armed conflict in Bosnia in 2004.
Unfortunately, that is the legal high point of the book. The rest is replete with errors about the ICC and international criminal law in general. Some of those errors are fundamental, while others are minor but frustrating for how easily they could have been avoided.
The initial error is a doozy: Turow has the Pre-Trial Chamber (PTC) authorise the investigation into the Roma massacre, despite the fact that Bosnia self-referred the situation to the ICC. The book even contains a mock decision pursuant to Art. 15, the proprio motu provision! That is, of course, completely wrong: because Bosnia self-referred, the PTC did not have to authorise the investigation. The OTP was free to investigate the massacre on its own. And that error, in turn, undermines the entire setup of the book, which opens with a scene in which the sole survivor of the Roma massacre testifies before the PTC. The hearing is not only “unprecedented,” as Turow says — it’s pointless, because the OTP could have simply interviewed the witness itself.
Many of the other errors concern the functioning of the ICC. Here they are, in order they appear in the book. Sorry for the lack of page numbers — I was reading on my iPad with the text resized:
 It is not at all surprising to find a US prosecutor at the ICC, despite what Turow says. There have always been Americans working at the Court, including some very senior prosecutors like Christine Chung. (As an aside, Turow never bothers to explain why the ICC was willing to hire Bill Ten Boom to investigate the Roma massacre. All he says is that the US wanted an American prosecutor on the case, because the US Army might have been involved — a fact that would obviously have worked against hiring an American.)
 An ICC judge would never ask a prosecutor for permission to question a witness. Questioning by the judges is routine and expected.
 Dick Cheney did not support unsigning the Rome Statute because he was afraid of being prosecuted for waterboarding. The unsigning took place in May 2002 — before the US had waterboarded anyone.
 The Cambodia and Sierra Leone tribunals are not located in the Hague.
 It’s the Jurisdiction, Complementarity, and Cooperation Division, not the “Complementarity Section.”
 The principle of complementarity doesn’t require the Court to wait 30 days for a state to act before pursuing an investigation.
 The ICC’s judges select the President of the Court, not the Court’s member states.
 Not all NATO states have joined the ICC. (Turkey has not.)
 The ICC could not sue the US at the ICJ to force it to disclose records. The ICC is not a state and the US does not accept the ICJ’s compulsory jurisdiction.
 There is no legal reason why the ICC could not use documents the US produced in (ostensible) violation of the American Service-Members Protection Act (ASPA).
 Neither the President of the Court nor the Registrar has any say in how the OTP allocates funds to investigations. (Turow consistently has both involved in the OTP’s decision to exhume the cave in which the Roma massacre supposedly took place.) That’s a serious mistake.
 Nothing in the ASPA makes it illegal for a member of the Court to investigate in the US. (Another claim Turow makes again and again.)
 The forcible transfer and massacre of the Roma are not war crimes, because there is no armed conflict. If they were committed during an armed conflict, the ICTY would have — and should have — prosecuted those acts.
I’m surprised that the New York Times described TESTIMONY as “well-researched,” because unfortunately it’s not. Or perhaps it is more accurate to say that Turow did his research but didn’t learn from it. According to the Author’s Note, Turow spoke to multiple officials at the ICC — including Judge Tarfusser, Fatou Bensouda, and the Registrar, Herman von Hebel — as well as to ICC experts like my friend Alex Whiting. I’m pretty sure all of those individuals know that the PTC doesn’t have to approve an investigation pursuant to a state referral.
Finally, a note about verisimilitude. It’s easy to dismiss errors like these as irrelevant in a work of fiction. As someone who spent a few years writing television in Hollywood, I have a degree of sympathy for that position. I think it’s fine to fudge the truth when it’s dramaturgically necessary to do so. But there is no excuse for fundamental mistakes like the PTC authorisation — especially when those mistakes can be so easily solved. All Turow had to do was delete the sentence that says Bosnia referred the situation to the ICC. Moreover, there is no point in making simple mistakes that are in no way necessary for the story; that’s just sloppy writing.
Let’s face it: many Americans will learn about the Court for the first time from this book. And they will come away with some basic misunderstandings about how the Court operates.