By HILARY LEILA KRIEGERKhodorkovsky 224.88(photo credit: )
Mikhail Khodorkovsky celebrated his 43th birthday on Tuesday. Despite the occasion, he spent the day alone, as he now spends all of his days. Khodorkovsky has been placed in solitary confinement in a Siberian prison a year into a nine-year sentence for fraud and tax evasion.
That punishment far exceeds the crime, according to his attorneys, who in any case label the charges fabricated and politically motivated. Though it has been a full year since the verdict was delivered, Khodorkovsky's lawyers have continue to crusade on his behalf. Perhaps the most outspoken member of his team, Robert Amsterdam, made his case in Israel recently when he gave an interview to The Jerusalem Post during a brief visit.
The Canadian-born lawyer accuses Russian President Vladimir Putin's administration of not only wrongfully prosecuting and mistreating his client, but of silencing opposition and eroding private enterprise. He's not the only one to give voice to such accusations, though Amsterdam does so more robustly and with better soundbites than many others.
A host of human rights groups criticized Khodorkovsky's arrest, while the Parliamentary Assembly of the Council of Europe passed a resolution declaring it reeked of suggestions that the interest of the state "goes beyond the mere pursuit of criminal justice, and includes elements such as the weakening of an outspoken political opponent, the intimidation of other wealthy individuals and the regaining of strategic economic assets."
Amsterdam has a background international litigation and human rights work, and his profile since taking on Khodorkovsky has soared - thelawyer.com this year placed him on its "Hot 100" list. He said that after years of being treated as a Cassandra, the West is finally starting to take his warnings seriously.
In 2003, Khodorkovsky, then the CEO of the oil giant, Yukos, was arrested along with his business associate, Platon Lebedov. Several other "oligarchs" who also felt under threat left the country, including some who ended up in Israel. They were both found guilty and sent to separate prisons in what has been dubbed Russia's biggest post-Soviet trial.
Even Sergei Markov, a Kremlin-affiliated analyst who directs Russia's Institute of Political Studies, admitted that the Khodorkovsky trial had political motivations. In a telephone interview from Moscow, Markov stressed his belief that Khodorkovsky is guilty as charged. "But this trial was started just against Khodorkovsky and not any others, and this was for political reasons," he said. "The political reason was very simple: he didn't follow the new rules of the game for oligarchs."
Or rather the rule: "Don't pretend to be political leaders," according to Markov.
For refusing to remove himself from political activities, which happened to be opposed to Putin's, Khodorkovsky went through a trial that was "not ideal" in the words of Markov - but then, he noted, no Russian trials are.
"The [state's] attorneys made some mistakes in the procedures, and many more in number than in American [courts], but for sure less than in most Russian courts," because of the intense international scrutiny, he said. And, he noted, the will of the people was behind bringing Khodorkovsky to court - to see the disastrous control of the oligarchs ended and the dirty dealings that gave them billions repaid.
Yitzhak Brudny, a senior lecturer in politics and history at Jerusalem's Hebrew University, agreed that there is much popular resentment against the oligarchs and many were happy to see Khodorkovsky punished - though he attributed some of that to the government's whipping up of anti-oligarch sentiment.
Even so, Brudny said, "of course it was a miscarriage of justice."
Khodorkovsky provoked Putin both by extending the influence of his Yukos oil empire abroad and by failing to show adequate respect - wearing a "turtleneck [and] a cheap Chinese watch" to meetings with the president - according to Brudny.
"He had political ambitions of his own. A guy with that much money is a threat," he said. He backed Amsterdam's assessment that the verdict was predetermined; the proceedings heavily flawed, including harassment of lawyers and witnesses; and Khodorkovsky's treatment in custody appalling.
Even the grounds on which the trial was brought were problematic, by Brudny's estimation. "He did a lot of stuff, but a lot of what he did was legal then," which hasn't kept him from being prosecuted for it now, he said - on top of which Russian legal codes are so contradictory that what constitutes an offense is largely a matter of interpretation, and whim.
But Brudny pointed out that that "Khodorkovsky wasn't exactly an angel on these matters" and dismissed Amsterdam's claims that the greatest reason for his client's prosecution was his pressing for greater transparency in business.
"Khodorkovsky understood that the way he conducted his business was a political challenge to the Kremlin. Western observers talk about 'political' in the sense that he was trying to get control of this political area or that. That's all fairly unimportant compared to the role model he was developing in Russia, which was that transparency and privatization was the way for Russia to go in the future," Amsterdam told the Post. "There is no greater threat to a government run by the Interior Ministry and the secret police than transparency, because a secret police government thrives on secrecy."
"They [the Kremlin] couldn't care less whether he was transparent or not," Brudny countered, noting that Khodorkovsky had developed a reputation for successfully lobbying the legislature to pass laws in Yukos's favor and had only begun to push for Western standards of reporting and tax regulations in the past few years. "That was a nice PR piece."
Brudny also doubts how well the West is listening to what Amsterdam is shouting from the rooftops.
"The West is more wary of Russia," he noted, but also said: "Let's not be idealistic ... The West is going to buy Russian gas regardless of what regime is there."
Israel, for one, currently buys about 90 percent of its oil from Russia. But that doesn't mean it's dependent on the the former superpower for its energy resources, according to analyst Amit Mor, CEO of the Herzliya-based Eco Energy investment and consulting firm. He said Israel can buy oil on the international market from a host of other sources, likely for a similar price.
While in Israel, Amsterdam warned the Jewish state not to enter into any energy deals with Russia, particularly with state-owned Gazprom and Rosneft (the latter of whose IPO, slated for fall, Amsterdam brands an attempt to "launder" its stolen Yukos assets). "Dealing with Gazprom is in fact making the Kremlin a partner in whatever you do," he said, alluding to ongoing discussions between Jerusalem and Moscow over the possibility of a revolutionary linking up of gas supply lines. Those kinds of arrangements, he warned, are part of Russia's gameplan to use energy to influence foreign countries.
"There is a political risk for Israel importing gas from Russia, since Russia already demonstrated earlier this year that it can cut its supply of gas" for political reasons, Mor acknowledged, referring to Gazprom's decision to cut deliveries to Ukraine this winter. But he added that Israel hasn't even thought about the policy implications of the theoretical Gazprom deal because it wouldn't come to pass for years, if ever.
Markov, however, defended the Ukraine move as a sign that Putin is "giving up the political approach," since he is now selling gas to Ukraine as market prices. "They decided business is business."
Brudny termed Markov's comment disingenuous. "Give me a break. It's a political decision," he said. "Russia wants to use this [energy resources] for leverage, because this is one of the few levers left to it."
Still, he said, when it comes to the Western take on Putin's machinations, "Even the anti-Communists don't think that this is the Soviet Union."
What is Khodorkovsky's status right now?
Khodorkovsky is illegally held seven time zones away from Moscow. Under Russian law he's supposed to be near his family. They have not only put him on the other side of the world, on the border of China, they have put him in the most inaccessible location in the gulag. And there is a gulag, and there are political prisoners. Khodorkovsky is one of a growing number of political prisoners, of which there are hundreds.
What do you mean by gulag?
This is not a normal penitentiary system. These are not normal camps. Russia does have some normal penitentiaries, but their camp system is not normal. They have Khodorkovsky on the border of China, in freezing and completely isolating conditions, contrary to international human rights law, contrary to international prisons standards ... Khodorkovsky was stabbed a few weeks ago. The onus is on the government of Russia to explain how this could have happened while he is under their illegal arrest. Khodorkovsky is at risk of his life ...
Khodorkovsky is the world's first energy hostage. This entire attack, including his illegal arrest and the illegal arrest of others, and the charges against others, some of whom are even here, this legal attack can now be seen in retrospect to be the ugliest and most corrupt corporate takeover in history, because the people in charge have shown themselves willing to corrupt the courts, to corrupt the judges, and to engage the secret police of Russia, all in this attempt to not only steal Yukos, but to reenergize the state's role in the energy sector as a means of both projecting Russian power and obtaining vast profits, some of which does not find its way into the state coffers.
You have also called the court proceedings a show trial.
The judges weren't independent; the prosecutors did not represent an independent arm of the state. In other words, under European law, there's this notion of equality of arms, which is actually guaranteed under the European Convention, which means that the defense and the prosecution have equal access to the evidence, basically on an equal footing. In this case, that was simply not the case. In fact, the prosecution, and I can give you examples, would engage in harassment of witnesses - orchestrated harassment - so that days before they'd be called to testify by the defense, the prosecutors would call them in. It got so bad that the lawyers had to basically stand up and say we're not calling witnesses, because these people are having to flee the country. There's an ongoing level of intimidation.
The judges would consistently deny exonerating evidence onto the record. They would come up with fairly ridiculous rulings in order to avoid having exculpatory evidence put on the record. Khodorkovsky and Lebedov would be brought into the court as if they had committed acts of mass terror instead of fraud. They'd be brought in by special forces ...
The judges would play around with dates to try to time it so it wouldn't embarrass Putin. For instance, when the sentence was handed out, they delayed it past [an] anniversary celebration, so that when Putin had world leaders to Russia, he wouldn't be embarrassed by the verdict. It was just a constant manipulation. And sensitive hearings for the trial would always happen on Friday, after the news cycle. It was just a consistent thing.
As recently as a few weeks ago, the Russia authorities served an order on the orphanage that Khodorkovsky's parents run, to try to confiscate the orphanage which would destroy the lives of dozens of poor orphans. And they served this order late on a Friday during a holiday period in Russia. It's just commonly done, cynically done, all the time to attempt to manage the press.
I've heard from people who followed the case that there were a lot of shady dealings involving Khodorkovsky, and that there are real grounds for charges to be brought against him.
I can only tell you that if they had the goods on this man, then somebody has to explain to me why they didn't show them. This was the forum. They had him on trial and they fabricated the evidence. So if they did have it, and I've heard that from people, the Russian press is full of it. They accept that it was a political case. They accept that the trial was bogus. But they add in their final paragraph to make sure that they don't fall too far afoul, "But we know he did something bad somewhere."
I'm not talking about the Russian press.
Even generally, that's not law. [Let's say] you're charged with defamation. Someone can say, "I saw you beat someone up six years ago." That's not really justification. And I think that's something we need to understand. Because the people who are propagating this are the FSB (Federal Security Services), and the worst oligarch on the worst day does not compare with what you are dealing with just with the organization of prosecutors in Russia, let alone the FSB, when they are determined to get you because a political higher-up has decided he wants to steal a company or somebody has become this new enemy of the people. The only organized criminal group I saw during the trial was the prosecution working with the FSB to treat these people in an inhuman way and fabricate evidence ...
I think trying to worry about charges that were never brought in the '90s seems to be much more of a deflection. They had their chance to try Khodorkovsky. [It] is very clear to me that if they had anything on him, they would have actually conducted a real trial, and they would have produced real evidence and they would have produced real witnesses, and it speaks volumes that they couldn't.
Where do you think the West is on this?
There has been a tectonic shift in Europe and the United States toward Russia. People have woken up. People do understand. A year ago I was whining. I'm no longer whining ...
People who always try to resurrect the '90s even though it might not be legally relevant [are] trying to mentally rationalize the West's silence, because it doesn't fit together - this image we have of the New Russia with what's going on. What I say to everyone is that Rosneft is the "Ah-ha" moment. Rosneft is the reason and the moment where we can see the entire plot hatched by the Kremlin come to life. Because by putting Rosneft on the market, what the bureaucrats are doing is whitening the black money. They are getting western investors to be complicit in their behavior so that after the term of Putin they can sanitize their ill-gotten gains.
This flies with Western investors?
No. Rosneft has raised a lot of questions with Russian investors. But my sense is that we won't stop it. The Russian Federation has vast amounts of money. They have a vast PR organization working with them. They have oodles and oodles of the best lawyers money can buy. I'm sure this will go ahead. My job at this point is simply to make people aware of what they're dealing with.
When did this shift happen?
If Yukos was the wake-up call, the shut off of gas to the Ukraine was the slap across the face. Now each ongoing attempt by the Kremlin - for instance, there is an ongoing dispute between Russia and Belarus, between Russia and Ukraine, between Russia and Georgia, all over money. Each one of these starts to be seen in a larger context ...
The attack on Yukos, the attack on Khodorkovsky is not a small thing. It's a huge sea change.
What do you think the West should be doing?
The US is in a position, along with the rest of the western world, to push Russia to abide by international law. We've given Russia a free pass. They consistently violate the European Convention[s]; they consistently violate the Euro-Russia Partnership; they consistently violate international human rights norms; and they violate a very important treaty called the energy charter, which they don't acknowledge having ratified, but which I believe in law they have ratified.
Why have they gotten a "free pass"?
Because the West has not formulated a coherent and consistent policy on Russian behavior and on Russian energy. Because the Russians have been incredibly good at dividing the West, dividing the Europeans, dividing Germany from everyone else. Because Germany is the one that has the inside track on energy - dividing Europe from the United States. Clearly the US administration has done a complete recalibration of the Russian relationship, and that's only positive. They understand that the Russians are the major obstacle to energy security in the world, coming only a close number two to Iran. They understand that it is critically necessary that Russia [return] to the energy charter. And I am suggesting that it is critically necessary that the West exert pressure on behalf of Khodorkovsky to demonstrate that the West understands that Russia's turn away from international legal principles, from a market economy, from privatization, will ultimately be disastrous for all, because without the security of the rule of law, the hundreds of billions of dollars that are needed for investment in Russia will not occur. Russia must have foreign investment in order for energy security to be guaranteed, but that foreign investment can't happen in an environment where the protection of private property doesn't exist.
Are there any specific actions you'd like to see the West take?
One of the most important things for the West to do is make a commitment to stop dealing bilaterally with Russia on issues relating both to energy and the rule of law, and to have a united front [against] Russia on these issues. Because I completely believe that it is not Europe that is dependent on Russia for energy, it is Russia that is dependent on Europe and the United States for currency. As soon as we internalize that, we will be able to start an honest dialogue.
What about Israel?
For Israel, I would only stress that it should not make a bilateral mistake of overdependence on Gazprom. There is a critical, critical need for Israel, like every other country, to diversify its energy sources. And one of the things that is clear is that the Russian Federation is determined to use energy as a foreign policy weapon. So if that's the case, Israel has to go into that relationship with its eyes wide open. And as Gazprom is run by the Kremlin, when the people from Gazprom come to negotiate a deal, they need to be asked about Iran, they need to be asked about the missiles for Syria. And frankly, they need to be asked about Khodorkovsky and the rule of law, because those are all issues that are relevant when you're dealing with a long-term supplier of energy [resources].
What the Minister of Infrastructure needs to understand is that Gazprom is the Kremlin. It is not a separate business. I don't care who owns some of its shares. It is controlled directly by the Kremlin and it is the avowed policy of the Kremlin to use Gazprom for political purposes. That needs to be internalized and understood. So if Israel wants to make itself dependent on the Kremlin for energy, that could be of significant impact on a whole gamut of Israeli relationships.
Is there not a fear of alienating Russia and pushing it too hard on the issue of Iran and Syria?
It's a fear born of ignorance. Because if you know Russia, you know the only country that has more to fear from Iran [than Israel] is Russia. And I don't think that's well perceived. People treat Russia as if somehow it's going to be an honest broker with Iran. You need to look at the fact that Russia has an open conflict going on, and understand the dynamic of that conflict with Iran to know that whether or not Israel buys gas from Gazprom has very little to do in the mix.
The Russian public doesn't seem to have much sympathy for Khodorkovsky or feel he has been wrongly imprisoned.
I believe there's far more empathy for Khodorkovsky in Russia than people will admit in polls. You have to remember that when he ran for the Duma last year, the reason they accelerated the appeal and made it a transparent farce - the judges on that appeal didn't even try to hide that the timing of the appeal was directly related to Khodorkovsky running for office - they were afraid he was going to win. So this blackening of his name that goes on continuously isn't working for the Russians, and that's why I'm afraid they'll come up with some other fabricated charge.
Khodorkovsky's father is Jewish. Is anti-Semitism a factor in his case?
It's complex. Khodorkovsky is not Jewish in the practicing sense, but in Russia he is perceived as Jewish by some. It's hard to say, but the incredibly vicious nature of the attack on this man - combined with the nature of the FSB, which has taken [over] from the KGB - certainly leads me to believe that [anti-Semitism] is one element, as much as one would like to completely deny it.
Is it a factor in your own case? The authorities actually made you leave the country.
I think I was expelled not because I was a Jew, but because I was his lawyer. I was exposed to anti-Semitic abuse, but my Russian colleagues are absolute heroes, because what happened to me is nothing compared to the threat they face day in and day out.
How has being barred from Russia affected your work?
The attempt was to stop me from functioning. I haven't stopped functioning, because so much of what the Russians want to achieve is outside of Russia. They want to maintain their impunity with the West, and I'm quite willing to deal with them in Europe and the United States. Certainly it's my goal to return to Russia. The problem is that when I first started to go to Russia, we could reach people on television, we could reach people in the press, we could reach people on radio. By the time of the trial, it was very clear to me that what we were trying to say to people on television wasn't getting heard. The state television had basically been completely overtaken. Some of the newspapers, if they're not owned by the government, have a selective level of censorship. And in radio [there's] a strong amount of government control and self-censorship.
Do you seen any reason for hope in the case?
Sure, because we have a completely unpredictable scenario in Russia; because there is no rule of law; because there is no certainty on either the economic or legal front. In a strange way, it plays for you because it leads to opportunity ... Russia is nothing if not capable of change. I mean, the Putin of the second term is barely recognizable from the Putin of the first term, so anything is possible.
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