The Kremlin’s Western Lawyers

By

Originally published in the American Interest

In Syria, as in Ukraine and Georgia before, Russia is using warfare to achieve its goals, operating through brute force and fear. In the West, it uses lawfare, exploiting the rule of law to launch politically motivated cases that are factually or legally meritless in order to terrorize individuals in the Kremlin’s sights.

Over the past 16 years, Vladimir Putin has built a system in Russia in which power is centralized in the Kremlin and the rule of law is suppressed. The Putinist narrative is built on projecting Russia as a bulwark against a decadent and morally bankrupt West, a civilization entirely at odds with the Motherland. But here’s the odd thing. As the Kremlin has pumped anti-Western propaganda across the country’s airwaves and television channels, Russia has increasingly turned to the West to secure its interests—and perhaps nowhere more so than the West’s courts.

It is a situation that reflects Putin’s approach to the international system. Russia is attempting to survive in a globalized world—but on its own terms. It wants to be simultaneously a part of the West and apart from the West.  This has been the Kremlin line since at least 2012, when Putin returned to the presidency. Putin wants Russia to be recognized as a global power by having a seat at the table alongside the world’s key actors, but he wants these same actors to accept Russia’s right to interfere in the affairs of sovereign states, to undermine global security, to interpret international law and norms as he sees fit, and to submit to its other interests.

Russia uses a number of tactics to advance these interests, and, in doing so, subvert the West from within. The Kremlin funds foreign television, newspapers, and websites, bankrolls fake research institutions, think tanks, and political movements, and backs useful idiots, agents of influence, and other dubious characters.  The Kremlin has also, through its lawfare, weaponized Western legal professionals as agents of Russia’s foreign policy.

The experience of Sergey Pugachev, a Russian financier who was once known as “Putin’s banker,” is a case in point. A formerly well-connected Russian Senator, Pugachev saw his standing fall dramatically in 2010, when Mezhprombank, which he co-owned, defaulted on its debts and lost its banking license after receiving a 40 billion ruble bailout from Russia’s Central Bank. In 2013, two years after he left Russia for the UK, a Moscow court alleged that Pugachev was to blame for Mezhprombank’s collapse.   The case was brought by the state-run Russian Deposit Insurance Agency (DIA), Mezhprombank’s liquidator.

Pugachev argues that Mezhprombank’s bankruptcy was caused because the Russian state stole billions of dollars of assets from him, including shipyards, and construction and energy projects. A number of those assets ended up under the control of Igor Sechin, one of Putin’s closest associates. The DIA—represented by Stephen Smith QC and Ben Griffiths of London-based Erskine Chambers, and by Hogan Lovells, a global law firm co-headquartered in London—argues thatMezhprombank collapsed because Pugachev stole hundreds of millions of dollars of the Russian Central Bank’s bailout for his personal benefit. In the summer of 2014, London’s High Court, after receiving an application from the DIA, issued a worldwide freezing injunction against Pugachev, freezing his assets up to $2 billion.

Pugachev claims that the case against him is politically motivated. Whatever the truth, there are other examples where this is more clear-cut.

Since Putin came to power in Russia, few political acts have been quite as brazen as his government’s imprisonment of Mikhail Khodorkovsky, in 2003, and subsequent dismemberment of Yukos, Russia’s largest oil company at the time, in 2007. In the years since, Bruce Misamore, Yukos’s former chief financial officer, has led a small band of other former executives in trying to recover assets for the company’s shareholders and its employee pension fund. In 2004, Misamore took his case to the European Court of Human Rights (ECHR). Russia, he argued, had unlawfully seized Yukos after imposing bogus taxes and selling it via a sham auction. In a final ruling, announced in 2014, the ECHR found in Misamore’s favour and awarded the Yukos shareholders 1.9 billion euros ($2.5 billion) in damages.

Throughout the ECHR proceedings, Russia was represented by London-based barrister Michael Swainston QC, of Brick Court Chambers, while Devereux Chambers’ Timothy Brennan QC, similarly based in London, provided tax advice. Russia also instructed its counsel team directly. “Russia doesn’t show up in court rooms in the West as Russia,” Misamore explains. “I mean, there might be a few people from the Russian government there, but it shows up in the form of Western law firms. … Now, that’s the face of Russia in the court rooms.

”The Pugachev and Yukos cases hint at the extent to which the Kremlin uses Western lawyers to defend its interests, but in other cases Russia’s fingerprints are far less evident.

Take the case of Bill Browder, founder of Hermitage Capital Management. In 2012, Pavel Karpov, a former Russian policeman, filed a libel case against Browder in London’s Royal Courts of Justice. In a series of videos posted online, Browder had accused Karpov of playing a part in the death in 2009 of his Russian lawyer, Sergei Magnitsky. Karpov claimed that, because Browder had linked his name to Magnitsky’s murder, his “substantial reputation in the jurisdiction of England and Wales” had been damaged. To represent him in court, Karpov retained the services of Andrew Coldicott QC, one of the UK’s most expensive libel barristers, and Geraldine Proudler, of the London-headquartered international law firm Olswang.

Such an outlay achieved little. Ruling in 2013, Mr. Justice Simon threw out Karpov’s claim, noting that “there is a degree of artificiality about his seeking to protect his reputation in this country.” But exactly how Karpov, whose official monthly salary was US$500, afforded his legal representation (Karpov’s court costs alone were estimated at £2 million), is an important question. And it is one that was partly answered in court papers submitted by Anthony White QC, Browder’s barrister. Noting that Karpov “does not [sic] have the means to pay for this litigation himself,” White alleged, “The court cannot be satisfied that the Russian state is not behind the claims in some way”.

The West should take a careful look at what is happening here.

Having destroyed anything resembling the rule of law in Russia, the Kremlin now ensures that the West helps in its efforts to both prosecute its enemies and evade justice for its crimes. The Magnitsky and Yukos affairs are two of the most egregious and well-documented case studies of the darker side of Putinism. In both cases the Kremlin abused Western laws and judicial systems in its attempts to achieve political ends.

Russia, of course, is not alone in using lawfare against the West. China’s “Three Warfares” doctrine, adopted in 2003, identifies the rule of law as an offensive weapon to achieve political and commercial gains. It is currently manipulating the 1982 United Nations Convention on the Law of the Sea in order to establish a greater footing in the South and East China Seas. Terrorists and their sympathizers have long viewed the law as an instrument to limit and undermine those seeking to stop them: an al-Qaeda training manual instructed captured militants to file false claims of torture in order to occupy their captors and position themselves as victims.

But Russia stands out because it uses lawfare to greater effect than others, and the lack of attention paid to Russia’s lawfare is reflective of a broader failure, by the West, to understand the threat posed by the Kremlin.

In most Western capitals, there has been—and there remains, despite the events of the past three years—a profound reluctance to see Russia, under the leadership of Putin, for what it is; a grotesquely corrupt and cynical kleptocracy that is dangerously fixated on the West. Russia is a country that is focused on undermining the West and its institutions—among them, the European Union, NATO, and the various bodies and laws that regulate the post-World War II and post-Cold War order—when and wherever the opportunity presents itself. Its use of Western courts to abuse the rule of law should be seen in this context.

Faced with this situation, there are a number of practical steps the West could take to counter Russia’s lawfare. Public information campaigns and professional legal education is required to explain that law claims are increasingly tools of war. Those who use lawfare must be challenged, under existing domestic and international law, through the West’s courts; the West should be as committed to winning the lawfare battle as it would be a military battle. The West should utilize aggressive litigation tactics against those who enable lawfare, such as seeking sanctions against lawyers who frequently make frivolous arguments or violate security regulations.

Reforming Western legal systems in such a way as to prevent them from aiding and abetting Putin’s kleptocracy is not an impossible task.

Both Russia and Western lawyers have grown accustomed to the profitable pragmatism of the past 16 years. They would argue that they are doing nothing wrong. For the former, the West has a fair playing field and an established structure of free and fair judges and lawyers. For the latter, Russia is entitled to legal representation and a fair hearing by an independent and impartial tribunal. But this comes at a price: These lawyers are working steadily, in their own ways, to undermine Western security and support the spread of Russia’s aggressive authoritarianism.

HJS



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