Russia's Rule of Law an Issue of Security

President Barack Obama and his Russian counterpart Dmitry Medvedev should be good friends by now. Following his visit with the family to the Kremlin earlier this week, the two traveled onward to L'Aquila, Italy for the G8 Summit. This is probably the most consecutive face time that Obama and Medvedev will share over the next few years, and also a critical moment spotlighting what kind of strategy Washington will be taking toward Russia.

Summits are imperfect yardsticks, but so far is looks like the relationship is off to a strong, if not historic, start. It is a strong beginning because modest foundations were laid toward signing a replacement for the START-1 treaty, with good potential to deepen strategic arms cuts in the future. It was historic because Obama disproved the theory coming from the realists which implies that we must avoid conflict and that we cannot criticize Russia's human rights abuses and democratic shortcomings while at the same time cooperating on mutual interests (of course if that were true, than the interests would not be mutual). There even seemed to be a very rare consensus among the Russian presidency and its beleaguered opposition that they were satisfied with the visit.

But what the back-to-back summits also revealed was an emergence of a more definable Obama doctrine, balancing "hard security" issues like arms and nuclear proliferation against "deep security" issues like rule of law and governance. The foreign policy-making we got to see this week was not for short-term domestic consumption, but was rather looking four moves ahead, laying the seeds for a convergence between both rule of law and security.

The concept of deep security was the focus of a recent book by the former Time editor Joshua Cooper Ramo, The Age of the Unthinkable, which argues for a new way of logical thinking about international relations. Part of the deep security approach may at times avoid direct confrontation in favor of engendering changes in the environment for relations. In rather Machiavellian tones, Cooper Ramo writes "If you can understand and master the environment around your enemy, you can indirectly manipulate him, which is far more effective - and inescapable - than trying to persuade or confront him directly."

However, conflict avoidance is not the same as nuanced, dual-pronged approaches. We can observe a brand of this deep security thinking in Obama's earlier entreaties to Iran (the direct-to-the-people video greeting, then later letting Europe take the lead on condemning the crackdowns on protests), the de-fanging of Venezuelan President Hugo Chávez by opposing the Honduran coup (now more people have pinned their hopes on Hillary Clinton and the OAS than ALBA's threats to invade and topple the interim government), and lastly, the positive beginnings of the Russia relationship, beginning with investment deals (already $1.5 billion) and agreed cuts in nuclear arms - which leave Washington in a much better position to advocate for rule of law and democratic improvements in the near future.

There seemed to be some awareness of the Russian policy environment during the Obama visit. The clear message to take away was that this administration approves what President Medvedev says he wants to do, but are disappointed by the authoritarian conduct of PM Vladimir Putin, who "has one foot in the past." Some comments from Obama seemed targeted to diminish Russia's ability to blame all of the country's ills on the United States (especially important if an economic meltdown comes in the next six months, as some predict), and counter the millions spent by the Kremlin on anti-American propaganda: "Now let me be clear: America will not seek to impose any system of government on any other country, nor would we presume to choose which party or individual should run a country."

Yet at the same time, Obama did more talking about democracy, rule of law, and human rights during this visit than anytime seen during the Bush Administration. Meeting with opposition leaders Boris Nemtsov and Garry Kasparov, the president was preemptively defensive in talking about values (when confronted, the first move by authoritarians and their apologists is to talk about double standards and the imposition of foreign values). He commented, "As I've said elsewhere, I don't think these are American ideals and I don't think they are the monopoly of one country. They're universal values. They're human rights. And that's why the United States of America will support them everywhere. That is our commitment. And that is our promise."

Putin and his supporters are likely to oppose being singled out here, but the situation clearly needs to be addressed. Not only have we seen the bereaved family of the slain Forbes journalist Paul Klebnikov continue to be deprived of justice five years after the fact, but also the family of Anna Politkovskaya and others. According to a recent Newsweek piece, some 17 journalists have been killed since 2000 in Russia, and only one killer convicted (only Iraq and Algeria have worse records). I needn't share my deep skepticism that there will be any genuine progress in the investigation of the murder of my one-time acquaintance and colleague Stanislav Markelov, the young and brilliant human rights lawyer who was assassinated on a snowy Moscow sidewalk on Jan. 19, 2009.

Russia's politicized legal system is incapable of successfully administering justice for real crimes such as the murders of Klebnikov, Politkovskaya, and Markelov, but it is exceedingly effective at mounting false cases to railroad political opponents or simply steal property through juridical extortion. For contemporary examples, look no further than the Norwegian company Telenor, which is currently undergoing a controversial legal process to strip away their stake in a local cell phone company to the benefit of certain parties. We also have the onslaught being mounted against William Browder, Hermitage Capital, and HSBC - victims of a $230 million corporate identity theft involving the Ministry of the Interior. Then there are of course the "environmental problems" experienced by Royal Dutch Shell, BP, and others which seem to disappear as soon as Gazprom is sold a majority stake at a knockdown price.

For six years now I have been involved as a lawyer on the international defense team for the political prisoner Mikhail Khodorkovsky, who is currently undergoing a second trial. Though we rarely have good news to report, events this week gave us cause for celebration. During his first official state visit, President Barack Obama directly raised the case with Medvedev, describing it as "odd" that Khodorkovsky should be tried a second time under recycled charges.

"Odd" is putting it lightly. Free of diplomatic caution, one might point out to Medvedev, a self-professed warrior in the battle against Russia's rampant "legal nihilism," that the second round of charges against Mikhail Khodorkovsky actually contradicts the first. At no point have the prosecutors explained how it is possible that the defendants could be convicted of tax evasion on reported income in the first trial, only to claim that this same income was embezzled in the second trial.

As may be expected, Medvedev toed the party line on the Khodorkovsky case, and denied that it was politically motivated. But why bother carrying out a second trial right now? As one of the few civilians in the Kremlin without a history as a KGB officer, many have speculated that Medvedev would strongly prefer to put an end to this trial if he were able to. In a recent interview, the Russian analyst Andrei Piontkovsky speculated that other parties want to implicate Medvedev in this process as a mechanism to curb his independence:

Fortunately there appears to be a growing consensus among other G8 members that Russia should be pressured to take steps to improve rule of law. The Council of Europe recently released a strongly worded report criticizing Russia's rule of law problems, making reference to both the Khodorkovsky and Hermitage cases. As human rights rapporteur, Germany's former Minister of Justice and current MEP Sabine Leutheusser-Schnarrenberger wrote "I cannot help suspecting that this coordinated attack must have the support of senior officials."

The fact that we are seeing the new U.S. administration make a dual push in relations with Russia, signing security agreements on the one hand, while keeping rule of law on the table on the other hand, shows a new way of thinking. In many respects, rule of law is just as important as the nuke agreements, having a far-reaching impact beyond just former oilmen, foreign investors, and a few murdered journalists. If we consider that Russia is one of the world's foremost suppliers of civilian nuclear technology, the #1 exporter of natural gas and #2 exporter of oil, and a strongly growing arms supplier to second tier authoritarian states such as Venezuela (according to SIPRI, Russian arms exports to South America shot up by 900% in the last five year period), we must also conclude that a firmly independent mechanism of accountability must be in place to provide oversight for officials dealing in these matters.

As it stands right now, the executive branch in Russia maintains a tight control over all courts, which has been accompanied by a dramatic worsening of corruption and transparency. I am sympathetic to the argument that Russia is more important than the treatment it often receives in international forums, and further, the country is far too important not to have accountability, law, and oversight. When courts are used as political and personal instruments, one need not imagine the potential security risks posed by abuses of office under such a non-functioning legal system.

While I am optimistic about the possibilities of Russia returning to rule of law, let's not drink the kool-aid yet. The problems in the relationship have deep roots, and cannot be simply blamed on any past administrations. Many of Moscow's complaints about Washington are legitimate, and require more than the rhetoric of "reset." There are many mixed reactions to how Obama's diplomacy was received (in my opinion, we need to give the new approach much more time), and in many, if not most, respects, relations remain unchanged.

As the G8 was wrapping up their final Italian photo shoots, the Russian delegation was boasting about having watered down the group's statement on Iran while blocking any additional sanctions. Obama didn't land a new deal to cancel the missile shield plans for Poland and the Czech Republic to replace with a joint base in Russia, nor am I aware of immediate plans to repeal the draconian and insulting Jackson-Vanik amendment.

That said, it appears that trust has been deepened. Washington showed up, laid its cards on the table, and treated Russia very seriously. Now the ball is in the Kremlin's court to do the same. Regardless of how this turns out, rule of law needs to be brought to the center of Russia's relations with the outside world as a deep security issue, without which other agreements will not have strong and lasting foundations.