Refusal to apply common sense to issues of current EU-Russian relations has so far blinded commentators to the peculiar behavior of the Magnitsky Act’s number one lobbyist before the European Union. In the following reportage on a seminar devoted to these matters sponsored by the ALDE bloc and held at the European Parliament building on Wednesday, I propose to break that taboo…
The Indefatigable Bill Browder: Selling the Magnitsky Act to Europe
by Gilbert Doctorow, Ph.D.
The event, the panel, the venue
It was billed as a seminar on “Russian political prisoners,” organized by the neo-liberal ALDE bloc of the European Parliament and held in one of the EP conference rooms on 5 June. The semicircular rows of seats could accommodate perhaps 250. In fact the audience numbered about half that. By age, 20 to 30 year olds predominated, and among them mostly representatives of the fair sex. There was a sprinkling of silver haired males, like myself, with, one may presume, a professional interest in the proceedings. Judging by the use of headphones for translation, more than half of those present were Russian speakers with sufficient fluency to dispense with English translation.
Most interestingly, the inner circle of seats closest to the dais was specifically reserved for MEPs, of whom only one, the Greens deputy from Germany, Werner Schultz, actually took a place. Indeed, apart from the panel, the only other European Parliamentarian present was the ever vigilant Russophobe Vytautas Landsbergis, MEP from Lithuania, an intellectual and freedom fighter of long standing, the first head of state of post-Communist Lithuania, who came in to audit the event at midway.
However, the absence of the supposed target audience for the event is misleading. The seminar was scheduled to take place one day after the publication of an Address to Foreign and Interior Ministers of the EU signed by 47 European Parliamentarians pressing on the EU executive the adoption of a law similar to the so-called Magnitsky Act passed by the US Congress and signed by President Obama last fall. And, notwithstanding the various particular messages and particular concerns of the diverse panel, united only in its opposition to the Putin regime, the event was called to promote such a Magnitsky bill and those on the podium spoke in unison in its favor, disseminating the (manifestly false) idea that the bill enjoys broad support within Russia and is only opposed by the regime itself. The entire proceedings were video recorded, presumably for future use in the halls of power by the event’s sponsors.
Further on, we will come back to the question of who those 47 MEP signatories calling for a European Magnitsky Act were and what the political weight of their action may be. But first I would like to say a few words about the panelists, who were all stars in their own right, about their remarks to the audience and about the brief question period which followed their two hours and 45 minutes of lectures to us in this “seminar” which, by its structure and relative weighting of time, tells a great deal about the interactive disposition of the self-proclaimed democrats who were our hosts.
The meeting was opened and moderated by ALDE MEP from Lithuania Leonidas Donskis, member of the EP Subcommittee on Human Rights. It is noted in his biographical sketch that Donskis was EP Rapporteur for the Annual Report on Human Rights and Democracy in the World 2011, and that his activities as defender of human rights have extended across the globe and are not limited to Russian issues. At the same time it is apparent that his concerns for dealing with evil have not motivated him to sponsor legislation similar to that now recommended for application against Russia to other parts of the world that raise the hackles of rights defenders. I mention this to call out the exceptionalism that runs through and through the intent of the seminar organizers.
In any case, the short speech by Donskis was slick enough though it had a number of debatable assumptions tucked in: that the West won the Cold War, that the post-Communist period in Russia under Boris Yeltsin was very promising in terms of human rights, and that Russia is now slipping back to Soviet era legislation with the new law on NGOs and other recent repressive measures. In the foreground, the speaker’s main purpose was to underscore the existence of political prisoners in Russia, among whom the most important is Mikhail Khodorkovsky. Indeed Donskis called Khodorkovsky a ‘European political prisoner,’ someone who fought for the rights of us all and around whom European human rights defenders should rally today as they once did in honor of the brave Russians like Sakharov during Soviet times.
The highest ranking Russian opposition figure on the panel spoke next. Mikhail Kasyanov, Russian premier from 2000-2004 in Vladimir Putin’s first presidential term, but thereafter acrimonious foe of the Kremlin over its alleged authoritarianism, chose to address the audience in Russian, perhaps mindful of the bitter criticism to which the State Duma later subjected Russian participants who spoke English in a similar conference held on 4 March in the Senate Office Building in Washington under the auspices of Freedom House. And indeed in other ways Mr. Kasyanov minded his P’s and Q’s in his speech, in line with the fears stated later during the seminar that the Russian panelists could expect to find themselves under the close scrutiny of the investigative authorities upon their return home.
Nonetheless, Kasyanov, as a co-leader of ALDE’s main local partners in the Russian Federation, the PARNAS political grouping, did not disappoint his hosts. He waxed eloquent on the point that Russia does have political prisoners today, whatever denials President Putin and his entourage may make. In his words, these prisoners go beyond Khodorkovsky to take in the dozen prisoners from the Bolotnaya Square riot of May 2012 whose trial is scheduled to open on 6 June and the Pussy Riot case defendants now serving time in their prison colonies, as well as many other unnamed victims of the regime. Kasyanov brought with him and had distributed in the hall a brochure detailing the case of the prisoners taken by the authorities at Bolotnaya, whom, he claims, were the innocent victims of a state supervised provocation. The intent of the authorities was in this interpretation to scoop up, in Noah’s ark fashion, exhibits from right and left political movements for show trials that will serve to instill fear in the yuppies who came out against the authorities in December 2011 and May 2012 calling for the regime’s fall. In the view of Kasyanov, Russia is living through times of state lawlessness. But he finished his oration with nothing more dramatic than a call for the Russian government to declare amnesty, and there is nothing seditious in that, to be sure.
Looking at the other speakers, it is worth noting the diversity of their backgrounds and of their areas of principal activity in the opposition today. The point in their being brought before us was obviously to show the heterogeneity of the opposition and to put faces on it. As to their arguments, they can be summarized in collective fashion because, except for one of them, Bill Browder, they were all playing supportive roles, and seemed to be in nodding agreement over one another’s remarks. They came together on the repressive turn of Putin’s regime in his third presidential term now that the social contract between the authorities and the people of exchanging growing prosperity for political passivity was violated by the government’s inability to ensure further income growth. They bemoaned the fate of young people who had done nothing on Bolotnaya and whose lives were now about to be ruined in the forthcoming trials and likely extended terms of imprisonment. They sagely agreed that it is a universal rule that no one should strike back at police, the charge leveled against the defendants, but added the qualification ‘except when the police act unlawfully’ – intentionally leaving unanswered the question of who is to define unlawful action by the state’s defenders in the midst of a demonstration turned riot and when.
It was pointed out from the dais that the Putin regime has been repeatedly found guilty by the European Court of Human Rights for violation of its commitments as a member of the Council of Europe and has been forced to pay awards amounting to 5,000 euros to some, 7,000 euros to other claimants over state abridgment of their human rights. As the speaker said with barely concealed sarcasm, Russia’s sales of gas and oil to Europe are sufficient to cover all of these fines and they remain a taboo subject.
The speakers came together on the similarities between the present regime and the Brezhnev epoch which first spawned the Russian (and European) human rights movement in terms of its corruption, inability to reform and growing arbitrariness and they pointed to the dissimilarity in terms of the susceptibility of the present ruling elites to pressure from the West over their fondness for travel to Europe and ownership of real estate and bank accounts abroad. Beyond this commonality of assertions, these speakers were there to confirm and approve the initiatives of one man, their fellow panelist William Browder, to whom I shall devote special attention below.
I begin my brief sketch of panelists with the venerable Ludmila Alexeeva, the 86-year old member of the Moscow Helsinki Committee, the living bridge to the golden age of Russian dissidents, the times of Andrei Sakharov. Alexeeva is rightly respected for her decades-long dedication and activism in Europe-wide human rights campaigning. She bears international honors, including those from the National Endowment for Democracy in the United States, where she spent 16 years starting with her emigration from the USSR in 1977 till her return to post-Communist Russia in 1993. The first cavil in her case is that she has perhaps kept the umbilical cord connecting her to Washington for a bit too long. The biographical notes show that even today she broadcasts as a freelancer on a weekly human rights program for Radio Liberty, that holdover of America’s Cold War propaganda machine. And judging by her speech, she enjoys all too well the illusion that the Cause goes on. The notion of Russia slipping into Soviet era repression serves her vanity and blinds her to realities. Her references to 1937 in her condemnation of the government’s current crackdown on sedition show a serious failure of judgment.
At the other end of the age spectrum was Pavel Khodorkovsky, son of the cause célèbre former billionaire serving his tenth year in confinement. Twenty-eight years old, Pavel is the perfect embodiment of the yuppies who constituted the spontaneous social-networkers, the tweets and facebook folks behind the mass demonstrations against Putin and also the foot soldiers in the demonstrations. In recent years, Pavel has been an ardent defender of his father’s innocence, or martyrdom, at public forums on several continents. In his words, Mikhail Khodorkovsky was guilty only of daring to promote pluralism and of challenging the Kremlin’s stranglehold on power; that and the fault of excessive philanthropic spending did him in.
The apple does not fall far from the tree, and Pavel succeeded in demonstrating to the audience that he received a good dose of his father’s arrogance and presumption. In answer to one of the handful of questions which closed out the seminar, he spoke on behalf of all 142 million Russians in confirming their pride in their European heritage and eagerness to join the European Union. Quite apart from the improbability that he knows what he is talking about, I doubt this was a statement that will go down well with MEPs of all political persuasions.
Panelist Vadim Klyuvgant has been the lead lawyer on the defense team for Mikhail Khodorkovsky. He was present on the panel to lend a non-political and expert validation to the condemnations of the arbitrary and authoritarian regime of Vladimir Putin issued by fellow panelists who are politically engaged. Rounding out the panel there was Anna Karetnikova, from the emblematic human rights center “Memorial” that, like the Helsinki Watch Group, traces its history back to the bad old days of the Soviet Union. And, finally, there was Vladimir Kara-Murza a sharp-tongued debater from the PARNAS movement of Kasyanov and Nemtsov who as final speaker ensured no stone in the anti-Putin repertoire was left unturned.
Taken all together, the aforementioned panelists denigrated the Putin regime, exposed its repression, celebrated its victims and unfurled a weapon to keep the dragons in the Kremlin at bay, the cross before which the Russian Dracula would shrink back: a European Magnitsky Act.
And this brings us to the unique panelist who has been the guiding spirit behind the Magnitsky Act in the United States and now is leading the lobbying effort to bring it to Europe, Mr. Bill Browder, CEO of Hermitage Capital Management, the employer of the unfortunate lawyer Sergei Magnitsky who was caught in the system while protecting the interests of his boss and paid with his life.
No blushing violet, Bill Browder treated the audience to a brief history of his personal efforts to make those Russian officials whom he believes were guilty of Magnitsky’s death pay a heavy price, all the while blackening the image of Russia in the world and setting the stage for the use of visa bans to punish the Putin regime in the future. The outstanding feature of the bill he promoted on Capitol Hill was the extraterritorial jurisdictional claims of American justice and its imposition of penalties on foreign officials without proven guilt. The second feature was elasticity in extending the sanctions that make it a promising lever, or perhaps cudgel, to bend Russian policies in any domain to what best suits Washington in the future.
After several years of intense lobbying, Browder and his allies, drawn chiefly from the Neocon camp, succeeded in winning bipartisan support in the Congress for their bill. And they were then astute in using the opportunity opened by Russia’s WTO accession to pressure the administration into accepting the Act in exchange for removal of the long outdated Jackson-Vanik amendment which now put America in violation of its own WTO obligations.
Browder exulted in the confusion and dismay he says passage of the Magnitsky Act dealt the Kremlin, which for a time did not know how to respond to this public slap. And when the Putin team did find its own antidote, its “anti-Magnitsky Act,” which featured the cut-off of American adoptions of handicapped and ailing Russian orphans, then that only further tarnished the Kremlin’s image, exposing its heartlessness and cynicism in making the defenseless pay for the sins of its own highly placed officials. (Never mind that the handicapped constituted no more than 10% of the overall number of international adoptions or that the global numbers of such adoptions had been falling precipitously for five years before the new ban.)
Now that America had acted, Browder told us, he had shifted his lobbying work to Europe, where the opportunities for exerting leverage on the Kremlin were many times bigger given the proximity of Russia to Europe and the far greater need of its elite to enjoy unrestricted travel and the fruits of property ownership just a few hours by plane from Moscow.
At first Browder tried to bring his message to EU Member States one by one. He began in Ireland and believed he was making traction in winning over their parliament to his position on the Magnitsky legislation. However, the Russian embassy struck back, threatening the Irish with a ban on their adopting Russian orphans. To listen to Browder’s explanation, this adoption issue was of such overriding importance in Ireland that it amounted to blackmail, and the Irish folded.
This experience persuaded Browder that he must go straight to the European Parliament and take the Union in one go. Hence the joining of forces with ALDE, the latest address of the 47 signatory MEPs and the seminar we were attending.
There were only 15 minutes left for questions from the floor after all the panelists had had their say and the audience of sweet young things did not appear very promising of challenges to the authority from the dais. But appearances can be deceptive, and from one young Russian male and from a matronly British lady and from some other speaker or two, the panelists were given to understand that the enemy is not sleeping.
The lady from the UK was a bit disorganized and rambling in presenting her rhetorical question to the effect that we know there are more than 10,000 Palestinians who have been rotting in Israeli detention camps for more than 10 years under conditions less favorable than those which Mikhail Khodorkovsky endures, yet why is the European Parliament taking no energetic action to defend their rights similar to what it now proposes to direct against the Russian Federation. There was no proper answer from the dais to this suggestion of double standards, although it was pointed out that the EU has statutory restriction of entry onto its territory by members of Mugabe’s regime in Zimbabwe and Lukashenko’s regime in Belarus.
Another question from the floor delivered in Russian was more skillfully prepared: if as the speakers insist, Russia has lost cases brought by its citizens in the European Court of Human Rights and has had to pay out a great deal of compensation to buy off its victims, then why has the Khodorkovsky case not been recognized by the same Court as a politically motivated case, i.e., why has the judgment against Khodorkovsky not been overturned? This unexpected blow caught the members of the otherwise complacent panel off guard. They tried to sidestep the issue by saying that only the first of several complaints filed by Khodorkovsky was rejected by the Court, which found that his trial was not politically motivated and “that the charges against him were grounded in ‘reasonable suspicion.’” But in saying that the other complaints simply have not yet been heard, the panelists produced a shabby impression: they could hardly take the Court to task after having boasted of its findings against the Russian government in other, petty cases.
The question that was not asked:
And now I would like to present the question which was not asked, one which examines the postulate at the very center of the whole notion that Europe has significant leverage over Russia in the form of visa liberalization.
It was alleged by speaker after speaker that the objective of the Russian government is to obtain visa free travel to the EU for 15,000 service passport holders. These are holders of biometric passports, thus satisfying technical conditions of the EU to ensure third country nationals from the CIS and further afield do not take advantage of open borders. And they are by definition privileged officialdom, the ruling elite of Russia. These are the people who have accounts and property in the EU our panelists told us.
However, this is an intentional misrepresentation of the objectives of Vladimir Putin’s government, which are precisely to end visas for the 142 million Russian citizens and 500 million Europeans over two way travel for all purposes whatsoever. And there is nothing peculiar to Europe as a travel destination in this proposal. It is part of an across the board endeavor by the Russian Federation to enable its citizens to travel the world freely and it has been going on for more than a decade. It is an objective they have already reached with several dozen countries, all of which have enjoyed a surge in Russian tourism since introducing the reform. It helps to explain the enormous rise in foreign travel by ordinary Russian citizens since the year 2000, now on the level of 10 million persons going abroad each year. At the same time, the notion that ownership of property in the EU and bank accounts is limited to the elite of 15,000 is totally nonsensical.
Let us be plain about it: for at least the past five years the objections to visa free travel to Europe for the general population of Russians have come exclusively from the side of the EU and were spearheaded by the Baltics, by Poland and by others in the New Europe who were taking their revenge for Soviet domination of their countries in the past. The step by step liberalization of visa regimes, including the special regime for service passport holders has been imposed on the Russians by the EU. In this context, the proposition that withholding the privilege from service passport holders is a self-standing issue is a deplorable distortion of the political facts.
Address of European Parliamentarians issued 4 June 2013
Let us now take a step back and look at what events immediately preceded the seminar on “Russian Political Prisoners” at the European Parliament. It must be noted that the release of the Address signed by 47 MEPs and opposing further visa liberalization with Russia until a Magnitsky Act is put in place was timed to coincide with the semi-annual EU-Russia Summit going on in the city of Yekaterinburg, where it was widely expected that the representatives of the European Commission and of the European Council would sign an agreement on visa free regime for 15,000 service passport holders. The Address by the Parliamentarians served notice on the EU executive bodies that legislators would vote against such liberalization.
Who were the signers of this Address and what immediate results did their action have on the outcome of talks in Yekaterinburg?
In terms of nationality, we find that among “normal” countries, the UK and Germany have the largest presence, with 5 and 4 deputies respectively. If we speak of New Europe, meaning the former Communist bloc countries, then they account for 21 out of 47. The Baltic States, at 11, formed the largest contingent among the signatories, with Estonia alone accounting for 6. It is no secret that Estonia’s MEP Kristiina Ojuland has been one of the most energetic organizers of all initiatives on Russia undertaken by ALDE in the past couple of years and has acted as the seeing eye-dog to ALDE chairman Guy Verhofstadt in his various trips to Moscow to coordinate anti-Putin activities with PARNAS. How useful to Verhofstadt, to ALDE and to the anti-Russian cause with its Magnitsky Act spearhead she will be going forward remains to be seen now that she has been ejected from her Reform Party in Estonia over a vote-rigging scandal that broke the day before the seminar opened (rendering her unable to be present as ‘host,’ per the printed and online invitations).
Looking at the signatories by party, it is not surprising that ALDE (20) of the center-right and their comrades in arms on foreign policy issues, the Greens (6), account for more than half the deputies. However, the presence of 11 members of the European People’s Party delegates is possibly more significant for the ultimate political impact because this center-right group is the single largest party family in the European Parliament generally, holding down 13 of the 27 heads of state and government in the European Council and 13 of the commissioners in the European Commission.
Yet, in raw numbers the 47 deputies only account for about 6% of the 754 members of the European Parliament. It is hard to see how they can capture the will of the Parliament as a whole or how the Parliament can frustrate the will of the EU executive bodies in reaching some accommodation with Russia over visas and much else.
At the same time it remains a fact that the sides made no progress in Yekaterinburg over the visa issue. In his speech summarizing the results of the Summit, European Commission president Jose Manuel Barroso mentioned still unresolved technical issues as having prevented any signed agreement on visa liberalization though he sounded customarily upbeat about the issue’s being eventually solved to mutual satisfaction.
The visa liberalization issue has been and remains a bellwether of the EU-Russian relationship. And this relationship has entered stormy times of late with a couple of key issues ready to hand by way of explanation. First there has been the issue of the Russian crackdown on NGOs and the selected measures of the tightened state security since Putin’s inauguration. Second there has been the yawning gap between Russian and EU positions over the Syrian civil war. Both disputes are by themselves sufficient to explain the breakdown in negotiations over visa liberalization at this time without any reference to the Address of the MEPs and the proposed Magnitsky legislation.
What are the chances of this European Magnitsky bill going forward?
More generally, it is hard to see any comparability in the situation which prevailed in the US and that facing the European Union with respect to Russia. The US has no strategic economic interests in common with Russia. Europe does. Where it is cheap to posture in Washington, where no business can be hurt, that is not at all the case in Brussels, where the $350 billion in bilateral trade with Russia has mobilized substantial two way capital investments of private business as well and supports very large numbers of jobs in each camp.
A practical problem with the proposed law is that the initiators are using the Sergei Magnitsky case to ram through restrictions on travel that are, in effect elastic, and can be extended at will by EU political authorities whenever there is a new hot issue on which the EU and Russia take different sides. The notion of violation of human rights that would justify any group of officials being added to the list is not defined. If the intentions of its backers including Browder and Kasyanov were to be followed, the logic is that the President of the Russian Federation, Vladimir Putin, should head the list, in which case relations between the EU and Russia would be put on a war footing.
Without going into the merits of the arguments over culpability for Sergei Magnitsky’s death and the degree of due diligence in the investigation of the circumstances carried out by Russian authorities, one thing is clear: we are witnessing the reemergence of a Cold War issue that once upon a time, particularly in the United States, went under the heading “better dead than Red” or vice versa, and which can be restated in more universal and timeless manner as: do we prioritize justice or peace? By prioritizing justice as is the wont of the ALDE party, the EU would be consciously rejecting the mission for which it received the Nobel Prize for Peace last year, namely ensuring a European continent free of the blight of war that turned much of the 20th century into a living hell.
And now for Mr. Browder
Finally, it does seem appropriate to ask a few questions about the performance of the indefatigable Mr. Browder in lobbying for the Magnitsky Act.
Is this how top level businessmen behave? Do they spend three years actively lobbying Congress over an issue of this nature? Do they launch a new personally led campaign in Europe? In short, do we take Mr. Browder’s avowals of concern over Russian villainy at face value?
Let us consider for a moment what the norm is in business. This past Monday, 3 June, I attended a gathering of alumni of a leading American business school which is attached to one of the Ivy League campuses. Our guest speaker was a very accomplished and well regarded executive who had a successful career in a succession of multinational corporations in several different domains. His job responsibilities put him in charge of what may be described as the most successful and large scale Western high-tech joint venture in China. He now holds a non-executive position on the boards of several major Belgian corporations.
This executive came away from his time in close working association with the Chinese fully sharing their view of the superiority of their meritocracy model for economic and scientific management. He is left uncertain how to reconcile his open admiration for an authoritarian, nominally Communist regime over the democracies of the Western world which seem to him to have inverted their values, giving unjustified advantage to lawyers and finance personnel over the technological innovators, and who suffer from short-termism.
I would argue that our speaker was broadly representative of the senior corporate executives I met in my 25 year career in international business: they seemed never to have met a dictator they didn’t like. After all, big businesses are not democracies. They are embodiments of the ‘vertical of power’ and their open floor plan offices, first name terms of address and delayering of personal assistant positions in no way change that stark reality.
So where does Mr. Browder and his one-man crusade against Russian officialdom fit in this setting? Should he be taken at his word as a disinterested fighter for human rights?
I posed this question directly to our moderator, Leonidas Donskis, during the little cocktail reception that followed the panel presentation. To his credit, Dr. Donskis replied that no, he did not know the details surrounding Bill Browder. As always, dear MEPs, the devil is in the details.
© Gilbert Doctorow, 2013
G. Doctorow is an occasional guest lecturer at St. Petersburg State University and Research Fellow of the American University in Moscow. His latest book, Stepping Out of Line: Collected (Nonconformist) Essays on Russian-American Relations, 2008-12, is available in paperback and e-book from Amazon.com and affiliated websites worldwide. Also on sale in Sterling and Waterstone’s booksellers, Brussels.