A Wake-up Call: Khodorkovsky and the Rule of Law in Russia

JURIST Special Guest Columnist Robert Amsterdam, international defense counsel for Russian billionaire and former Yukos CEO Mikhail Khodorkovsky, recently imprisoned for tax fraud after a long and politically-controversial trial, says his client's case is a call to the West to wake up to fundamental threats to the rule of law in Putin's Russia ...



The knock came in the middle of the night. Five members of the FSB, the Russian state security service, were at my hotel door at 1 AM to let me know that they had determined the extent to which I would be allowed to represent my client. In organising my expulsion and the proposed disbarment of the majority of Mikhail Khodorkovsky's legal team, the Russian Federation had decided that one more overt attack on the rule of law could be snuck past the West during this new period of convergence - a time when the Realpolitiks of the West and East have merged around the superiority of oil over European values, a convergence that is the exact opposite of that once imagined by Soviet-era dissident Andrei Sahakarov and others. Instead of joining with the West on fundamental human rights the Kremlin has managed to collaborate with key Western states around the most base and crude economic interests.

The following note represents an attempt to outline the guiding principles of this new convergence and demonstrate clearly that the Khodorkovsky case, rather than being anyone's view of a "one off" one-time affair, is symptomatic of a method of governing based above all else on the Kremlin's growing belief in its own impunity. The fundamentals of this system are proximity to power, the vertical of power, debasement of judicial independence, the establishment of a new Kremlin-based Oligarchy, and fuel diplomacy as a black jack to be used against recalcitrant nations not willing to bend to the Kremlin's dictates of the Kremlin.

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It is abundantly clear with respect to domestic and foreign policy that both the rule of law and attornment to international treaties have been dispensed with in today's Russia in favor of a Byzantine form of tribute organised by the Kremlin to extort maximum benefit from foreign leaders and maximum control over any form of domestic opposition. The prime example of this non-rule based system of exchange, demonstrated time and time again, has been the relationship between President Putin and erstwhile German Chancellor Gerhard Schroeder. Harking back to the concert of Europe these two leaders, in their 40 or so recent direct meetings, have replaced transparency in foreign relations with the anarchy of personal diplomacy. The result has been some of the most staggering departures from democratic values witnessed in Germany in 50 years. In an example of what I call "constitutional dumping" the German Chancellor supported the illegal expropriation of Yukos as well as appearing to dismiss Russia's role in Chechnya in favor of German companies obtaining the pole position in acquiring Russian energy assets. Schroeder was not alone, as Italy's Berlusconi and France's Chirac were not far behind. In giving up both the rule of law and transparency, evidenced by German Trade Associations publicly instructing companies to clear acquisitions with the Kremlin, Germany has managed to both estrange European neighbours and damage US/German relations while breaching its WTO obligations.

This kind of personal proximity to power is a key aspect of the vertical of power which has been established in Russia over the last number of years without comment from the West. In fact in many ways the attack on the press, NGOs, human rights defenders and even the very basis of Russian federalism post-Beslan has been accepted by Western states as a trade off for stability. It is this logic that has been favored in explaining why Western states have remained silent concerning the illegal auction of Yukos assets and the Khodorkovsky show trial. But how long can the West stay invested in the promotion of autocracy in Russia without some possible backdraft on Western values?

One central aspect of the new vertical of power is the re-emergence of the big lie. The Russian state is presently adopting the big lie as a central organising basis of its media outreach. From the submarine Kursk to the Nord-ost and Beslan hostage-takings to Khodorkovsky, the Kremlin has lied and lied and lied again. Never has the West called out the Russians for this practice. Never has the West combined the growing control of television in Russia with the growing penchant of the Kremlin to dissemble. Never has the integrity of Western leaders themselves been so under attack.

The impunity around the use of the big lie grows exponential with each use. The purchase for something like fair market value of Sibneft at the very time of the destruction of Yukos completely disconnects the attack on Khodorkovsky from both privatisation and tax abuse. Sibneft was a far greater target under both headings. This and the phoney tax audits of foreign companies which were aggressively covered by the press to mask the selective prosecution of Yukos and are now being resolved for pennies on the dollar further demonstrate the complete lawlessness, manipulation and improper purpose that are the hall marks of the present Kremlin.

The debasement of judicial independence as evidenced by the decisions in both Yukos and Khodorkovsky, involving grotesque violations of the right to counsel, right to liberty and right to a fair trial, has done enormous damage to Russian claims of judicial improvement. The willingness of Western courts to enforce decisions of intellectually and morally bankrupt Russian courts as found by the Parliamentary Council of Europe in its recent report concerning Yukos executives serves as a high water mark with respect to western Europe collaborating with the worst tendencies of executive interference in the judiciary. How Russia can use international treaties to enforce these decisions while thumbing its nose at the most basic principles of the European Convention on Human Rights leads the administration of justice in Europe into disrepute.

If the purchase of Sibneft stands for anything other than the selective prosecution of Yukos it stands for the big lie that somehow the Kremlin is intent on attacking either oligarchs or corruption. The Kremlin and the seven advisers closest to Putin control over one quarter trillion dollars of energy-related assets and seem intent on more. The continued silence of the West in respect to the theft of Yukos is being rewarded by a further watering-down of the market economy - the clear intent of the Kremlin is to replace the transparency of Khodorkovsky and Yukos with the black hole of Gazprom and Sibneft. While the West panders to a phoney Kremlin attack on alleged Yukos money laundering it fails to explore who are the partners of Abromovich in his sale of Sibneft assets to the Kremlin.

"Fuel diplomacy" is a term presently used to describe the fairly brazen use by the Kremlin of energy as weapon to be deployed not only for state purposes, but for the very improper purpose of disciplining foreign countries such as the United States or Holland who dare to attack Kremlin policies or practices. Beyond the use of poultry or flowers it is energy that has been used in the "near abroad" of the Ukraine, Baltics and Moldova to discipline neighbours whose policies or pricing is not seen as consistent with the Kremlin. The recent intervention by Russia in the domestic politics of Germany in the staging of the Baltic pipeline signing (a deal that contains a substantial political component) and the pipeline itself demonstrate Europe's weak-kneed willingness to substitute Russia's interests for those of the Baltics or Poland. Why the seizure of Yukos and restructuring of the oil industry by the Kremlin has not been reviewed by the competition authorities in Europe is beyond one's imagination, given the unlimited attack on US industries conducted time and time again by Brussels.

My expulsion and the attempt to disbar my Russian colleagues which commenced at 1 AM that September morning has represented to me just one small example of where Europe, sleeping on these fundamental issues, leaves human rights and the rule of law.


Robert Amsterdam is international defense counsel for Mikhail Khodorkovsky
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