Conflicting judgment: Starmer at the ICJ

October 1991: Serbian women walk through the ruins of Vukovar, Croatia | Image by: Mark Milstein / Alamy Stock Photo

It was the defining atrocity of the 1991 Croatian war of independence that gave birth to the term ‘ethnic cleansing’. In the aftermath of the indiscriminate bombardment of the Croat-held town of Vukovar, Serbian paramilitaries forcibly drove out the Croat population and executed more than 200 prisoners of war seeking refuge in a local hospital.

Some 23 years later a group of 20 international lawyers, led by three British human rights barristers, gathered in a luxury boutique hotel in The Hague, a stone’s throw from the International Court of Justice (ICJ), where they prepared to establish in law that the Vukovar massacre and other war crimes of the conflict had constituted an act of genocide.

The stakes in February 2014 could not have been higher. The massacre had proved to be an open sore in relations between the peoples of Croatia and Serbia, and threatened hopes of a lasting peace in the region.

The effort was ultimately unsuccessful, but the participation of one of the legal team has consequences that are relevant today and could be even more apposite in the near future.

Keir Starmer wasn’t actually the first choice to join the team. Barristers professor Philippe Sands KC and professor James Crawford, both world-renowned experts in inter-state disputes, had been working on the Vukovar case for several years. But in 2014 they realised they needed to add to the team an expert in international criminal law – someone who could handle the cross-examinations and get to grips with the criminal law elements of the case.

Their first choice had been Ben Emmerson, the former UN special rapporteur on human rights and counter-terrorism who had notched up a wealth of experience in these kind of cases. Emmerson, however, was not available. So Sands decided to call up one of his old colleagues, a high-profile lawyer who had recently left his job as head of the United Kingdom’s Crown Prosecution Service. 

Starmer, a human rights lawyer, had completed his five-year term as director of public prosecutions (DPP) and was looking for something new. Yet appointing the former state prosecutor to the case would be a gamble, particularly as Starmer had never appeared before the ICJ.

It proved to be a pivotal moment in Starmer’s career, at a time when he was considering entering the world of politics. In 2015 Starmer was elected as Labour MP for Holborn and St Pancras.

Sands, a professor of law who has written critically acclaimed books about the Holocaust and his own family’s suffering at the hands of the Nazis, tells The House: “I contacted Keir because we needed a criminal law expert; these were serious crimes and I knew Keir would be able to conduct the cross-examination of the witnesses.”

The legal claim of genocide against Serbia had been running for 15 years before Croatia won the right to bring the allegations before the ICJ in The Hague. 

But the case had taken on a sectarian character after the Serbian government counter-claimed against Croatia, alleging Croatian soldiers and paramilitaries had committed atrocities against the Serbs in the 1990s that they said amounted to genocide. 

In an emotionally charged, month-long hearing, the Serbs also made repeated references to Croatia’s Nazi history when Croat paramilitaries murdered Serbs in the Second World War. 

The British, American and Croatian lawyers, instructed by Croatia’s Ministry of Justice to fight the case, were anxious about how Starmer, a novice international lawyer planning a career in politics, would mix with the established and settled team assembled by the Croat government. Others wondered how he would cope with the emotional strain of the case.

Vesna Crnić-Grotić, professor of law at the University of Rijeka, the Republic of Croatia’s government agent in the case, says it was important that all lawyers involved were team players who would also be able raise strong arguments under the intense emotions likely to be brought out in a case where acts of genocide were to be discussed and debated.

The lawyers arrived in The Hague in February 2014 to prepare for the start of the hearings the following month and were billeted at the Hotel Hampshire, which the Croatian government had rented out for the duration of the case. 

Starmer had ended his term as DPP in 2013 and, in the weeks before he flew out to the Netherlands to join the others, received his knighthood for ‘service to law and justice’. 

He was not emotional but very professional… acting as a calming influence

There were obvious concerns that the hot-shot prosecutor might want to use the case to grandstand or to embellish his political credentials. These concerns were eased when Starmer appeared at a 6.30am breakfast meeting in the hotel dining room wearing jeans and a T-shirt. 

Crnić-Grotić remembers his understated approach helped to reassure the other lawyers that Starmer was not there to play to the gallery. Says Sands: “He added substance. But he also had a sense of collegiality in a case that had very widely ranging views from the most extreme to the most reasonable. He articulated a path through that level of complexity.”

Luka Misetic is an American trial lawyer who, for more than 14 years, had successfully defended Croats accused of war crimes. In 1999 he became the youngest ever attorney to defend a case in front of an international criminal tribunal. 

Misetic did not know Starmer before the case, nor was he aware of the British lawyer’s political ambitions. He remembers the meetings held in the hotel’s snug – a cosy bar with an open fire where the lawyers also unwound after a day in court.

“There was no pretence about him,” says Misetic, “you could have a beer with him.”

Crnić-Grotić says the Croatian side showed a film to the court of the devastation of Vukovar after the siege: “He [Starmer] was in charge of the [legal] presentation of Vukovar, the city that suffered the most during the war. And I remember he delivered a beautiful speech on the basis of the heart-breaking witness statements. He also questioned the Croatian witnesses [there weren’t any Serbian witnesses] in the case.”

Starmer only had 15 minutes to cross-examine each witness, far less than he was used to working as a prosecutor or human rights barrister. 

“It was intense,” adds Misetic. “It was emotional for the client, very politically charged. There was some explosive rhetoric in the hearing itself, I think, causing some serious hostility in the hearing.”

In perhaps the most testing moment in the case, the Serbian government lawyers compared the Croatian leaders to the Nazis who met in the infamous Wannsee conference in January 1942 to agree what was to become the Holocaust. 

“That kind of rhetoric,” says Misetic, “created a very intense atmosphere,” which he says was further inflamed by the added contention that “anybody who denies that comparison is a Holocaust denier”.

Misetic, Sands and Crnić-Grotić all say that Starmer rose to the challenge without letting his feelings get the better of him.

“He was not emotional,” says Misetic, “but very professional… acting as a calming influence.”

Sands, who was also impressed with Starmer’s calm demeanour, is certain the case helped to frame the Labour leader’s stance on the current crisis in the Middle East where he has steadfastly refused to call for a ceasefire.

In recent days both the Palestinians and the Israelis have accused each other of genocide. The issue has proved to be divisive inside the Labour Party and Starmer has suffered a stream of resignations from his opposition front bench, although not his shadow cabinet.

“What’s going on in Israel and Gaza,” says Sands, “raises similar sorts of issues, in terms of crimes being committed and the horrible situation. How do you deal with that level of complexity? I think that the [genocide] case must have contributed to his sense of these kind of situations. It introduced him to the complexity of very strongly held political views of the Serbs and the Croats, a point of real tension.”

Sands and some of the other British lawyers were aware of Starmer’s interest in taking up politics and even discussed this with him during their time together in The Hague.

Important lessons in handling such bitter enmity were learnt during the month-long hearing.

“[We were] looking for a path that is going to be attractive for a group of judges who are looking for something that is coherent over the longer term,” says Sands. 

There have been only two findings of genocide by international courts since the end of the Second World War. The first was the Rwandan genocide in1994 during the Rwandan civil war when up to 800,000 of the Tutsi minority ethnic group, as well as some moderate Hutu and Twa, were killed by armed Hutu militias. 

The second took place the following year during the Bosnian war when around 8,000 Bosnian Muslim men and boys were murdered in and around the town of Srebrenica.

All those on the Croatian team recognised that although they had a strong case of genocide, and a number of Serb military leaders had already been convicted of war crimes, it would be an uphill struggle to persuade the judges to rule in their favour. 

At the end of the hearings in March 2014, Starmer returned home to pursue his political career in earnest. A year later, the ICJ judges finally published their findings in the case, rejecting both the Croatian and the Serbian claims of genocide. 

The Croatian government spent €3.7m on bringing the case, most of which went on their outside legal team. It was never a straightforward litigation and showed how politics and the law do not always make happy bedfellows. Yet even airing the allegations in public inched the peace process forward.

Sands says it was important that the lawyers in the case did not “respond instantly to an emotional pull” but instead “reflected on the bigger picture and the consequences of the longer term”.

Sands also says this has helped Starmer find a political path through the current crisis in the Middle East: “I think he [Starmer] has been doing that on Israel and Gaza. I know he has been supported by some people and criticised by others. But I think that he has got the tone absolutely right in adopting a non knee-jerk response – I respect that and admire that.”

For some, however,  including a number of his own MPs, Starmer failed to find the right emotional register in responding to recent events in Gaza. The Labour leader would do better, they say, to be less judicious in his phrasing. 

If he succeeds in reaching No 10 it won’t be the last time his instincts as a lawyer condition his political approach, for better or worse. 

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