Robert Amsterdam: “The Rule of Law Is Universal”

Robert Amsterdam is an international lawyer from Canada who is known for defending victims of political repression all over the world. He was among the leaders of the defence of Mikhail Khodorkovsky and he is now engaged in the defence of the Red Shirts.

Robert Amsterdam talked to Iivi Anna Masso in Tallinn on January 28, 2011. The interview was published in Diplomaatia 90 / February 2011 (also in Estonian).

IAM: How consciously political is your practice of law? Could it be seen, at the same time, as an advocacy of the so-called Western values, human rights and the rule of law?
RA: I am being accused of promoting Western values all the time, right now, in connection with my work in Thailand. We are bringing a 130-page request to the prosecutor of the ICC (the International Criminal Court) to indict the present prime minister on crimes against humanity. Every few years the Thai military comes out of its barracks and murders civilians with impunity. This has been going on for decades. Some of the biggest massacres were in 1973, 1976, 1992. They include burnings, rapes, murders, in dozens. The Bangkok massacre this year had 90 dead, 2000 wounded. This is the first attempt to catalogue this indiscriminate, yet systematic behaviour and to try to bring the perpetrators to justice.It is quite foreign for Thais to hire outside counsel and to document this violence because the government murders people and then quickly talks about peace and reconciliation. But it is very similar to the juntas of the 1970s in Latin America who wanted to self-amnesty themselves after they had murdered and tortured thousands. We cannot really let them get away with it in the 21st century. I would say we face a difficult burden in this case because our approach to the ICC will be based not on them having signed the agreement, but on the fact that the present prime minister is a British subject.

This will make all sorts of new laws if we are successful. But if we are unsuccessful, we will still have done something not done in Thai history – we will force the Thai government to account for itself because a stinging indictment like this with tremendous detail about the planning of this action against civilian leaders is at the minimum going to demand an answer. I think making authoritarian leaders answer is a critical step in moving societies towards democracy.

We don’t hear much about this. Thailand has a reputation of a peaceful country.

It is unbelievably violent. Then again, you do not hear much about it.

Why is that?

Because Thailand has a huge PR budget – ‘the land of a thousand smiles’. They are far more effective than the Kremlin in PR and image control. Interestingly, a British colleague told me that of British citizens murdered overseas, 10% are murdered in Thailand. This is a number you would have associated with Mexico, but it is just a very underreported fact.

You are also involved in an ongoing case in Kyrgyzstan.

Yes. We represent the fuel supplier to the US airbase at Manas, which has been targeted by some leading Kyrgyz politicians who wanted to steal the contract, to set up a company and to siphon off money from the contract, frankly, to line their pockets. We have watched a massive investigation go on against our client, which effectively absolves them of any wrongdoing. But that hasn’t stopped the Kyrgyz authorities who have attempted again and again to mount illegal disinformation campaigns as well as illegal search and seizure of premises. So, my partner has been in Bishkek for many weeks and we are not only fighting them, but we are fighting a government that is very media-savvy, which has got a lot of people in the Western press speculating about how long our client will survive. It is a very well orchestrated campaign. What we have done that shocked them is that we have gone right into Kyrgyzstan and we have answered the critics head on. My partner is meeting with the government as we speak, meeting with members of civil society and working very hard to disabuse people of this campaign. But this is a lesson: those countries that remain close to Russia copy Russia. This is a classic Kremlin-style campaign, but it is happening thousands of miles away.

Is Russia involved there?

Oh, indeed. Russia wants Gazprom to survive this. Number one, it’s great money. Number two, imagine how much more leverage Russia would have on the US, if it controlled the gas tanks of the American base. It is almost amazing.

Your most well known case is the Khodorkovsky case. Are you still involved in that?

No. I left the case about a year ago after 6 years. Mr. Khodorkovsky has a great team of lawyers and, quite frankly, I don’t think I could add any more to the terrific team we had.

In the Toronto Star you said recently that you never expected to win the case in the first place, but you saw the merits of involvement in the fact that the case gained publicity and people understood he was not a regular criminal.

I often call what we do ‘asymmetric advocacy’. What we’re trying to do is not only to defend a case, but – in the age of the Internet – to defend a reputation. From day one, Khodorkovsky wanted it to be clear that he was an honest and straightforward businessman and he did not want the Kremlin to take away all that he had fought for. Yes, I think we have achieved that. I think the one thing that the Kremlin has not done is destroyed his reputation.

How did you end up doing what you are doing? How do people all over the world find you?

I would have to say that in Thailand and Kyrgyzstan it was by word of mouth. As for Khodorkovsky, we did this major case that is still going on in Guatemala and that got a lot of attention over the years because it involved us representing a group who was prepared to take on the whole oligarchy, which we were prepared to do. That case has been something of a template case for what we did for Khodorkovsky, in Nigeria or for the Red Shirts in Thailand, in Kyrgyzstan and for other cases – we’ve been involved for the last year in a major dispute in the Czech Republic. So, it is really an amalgam of various roles that are not just legal in nature, but that also very much involve understanding politics.

This brings us back to the question of promoting democracy. You have said elsewhere that you do not call yourself a human rights lawyer, you do not believe in human rights as a religion. To what extent is your activity motivated by idealism?

I have met human rights heroes. Anna Politkovskaya was a human rights hero and a friend. A colleague of mine, a Russian lawyer, was murdered three years ago – a hero and a friend. Karinna Moskalenko is like a sister to me – I adore the lady, she is a hero, a friend and somebody I admire greatly, and she is a human rights lawyer. I am a business lawyer who believes in the rule of law and who has come to human rights as somebody in the street. When I do cases, I don’t do them from behind a desk.

I have come to human rights in the last 15 years from the concept of the rule of law, from watching political repression, suppression, murders, and from seeing that human rights are an important way to frame these disputes. But it is like with everything else – intellectually I am someone who needs constant challenges, and to work just on this rarefied human rights litigation, where you go from case to case arguing interesting points of human rights law, is nothing I can do. I did a major pro bono case last summer in Kenya on behalf of an employee of the UN who had been physically and mentally broken by the UN with respect to his activities in Zimbabwe. It was a deeply moving experience and it cost me a tremendous amount of money, so I can’t afford to be a human rights lawyer all that often.

When I can, I do so. We freed a political prisoner in Bulgaria. Again, it was a tremendous investment for us, but we freed him by our ability to use international law, international criminal law and political knowledge. If I was doing that 24/7, I would be a human rights lawyer. I am not doing that 24/7. What I and my team have done for the Red Shirts is a big step for them. It has been a huge 9-month effort to try to bring criminals to justice, criminals who are in one case even educated. It’s very difficult when human rights abusers look that good to make people understand. It is easier to paint Vladimir Putin as a human rights abuser than Abhisit of Thailand, but they are graphic abusers and I witnessed it when I was in Bangkok. It was absolutely horrific to witness.

Who accused you of promoting ‘Western’ values in connection with the case?

I have been accused of everything there. They are not used to dealing with somebody actively advocating for these people whom they consider to be the ‘unwashed’ – there is almost a racial element in the case of the Red Shirts. The Bangkok elite often refers to them in pejorative terms. It is quite amazing.

How do people in the West see what you are doing? Do you ever hear things like ‘don’t mess with foreign regimes – they have their own culture and ways of doing things’?

All the time. We get warned off cases; we get attacked for sticking our noses in where we should not be. All the time.

At the same time, there are Russian liberals complaining that Western people do not care enough for their own values or the rule of law elsewhere. Do you think we should be promoting the so-called Western values, the rule of law and human rights more actively?

The rule of law is a universal value, as are human rights. In Russia, I have met with ‘sovereign democracy’ as some sort of opponent to human rights. In Asia, I have met with ‘Asian values’. In my press conference on Monday, I intend to quote Confucius. I don’t think human dignity is minimised because of the colour of your skin. I think that human dignity is minimised because elites have an economic interest in screwing people. That is one of the reasons why I am not just a human rights lawyer – I believe that much of the political repression we see is economic in nature. The older I get, the more I respect Karl Marx.

How have things changed since the collapse of the Soviet Union? Soviet dissidents used to be respected and listened to in the West. Have we become more cynical since then?

Yes, there is a sense in the West that people who treat these people seriously are backward-thinking, that there is a new opportunism that abounds and that if you are not part of that, you are not relevant. I think it is clear that there is a lot of hubris, a lot of belief in the West that the liberals don’t represent all of Russia. I find that kind of amusing because I would say that the elites in the West do not reflect the real West. I think the liberals in Russia are as reflective of their people as many Western leaders are of theirs.

You have recently used the phrase ‘corruption diplomacy’. What do you mean by that?

Gerhard Schröder and Silvio Berlusconi are my pin-up boys for corruption diplomacy. It means Putin’s pension plan – the idea in Europe that people who are close to the Russians can be sure of a cosy sinecure when they leave office. Prodi was offered a job. I think a former Finnish prime minister took a job. The Russians basically have let it be known that if you treat them well during your term of office, they will give you a pension when you leave.

In Finland, it seemed that people did not really mind.

Yes, this is Finland. It has a different concept in terms of dealing with Russia. So it’s true.

We have enough people here in Estonia who promote the same attitude that we should not let our values in foreign policy get in the way of business.

To those people one of the interesting answers is to suggest that they move to Moscow and spend six months there. When I was fighting Chávez, we freed a political prisoner in Caracas. I used to say to the supporters Chávez had in the US that I would like each of them to spend two weeks without security in Caracas and then tell us what they think of Chávez. It is really easy when you fly in on a private jet or when you make a tremendous amount of money through someone else’s corruption to hail a particular country or group. But when you have got to live there, it’s a different story.

How should one respond to that new cynicism?

I certainly think that there have got to be ways of demonstrating the business value of the rule of law in protecting investments. There must be objective ways of demonstrating it. I found in my Thai case that I was approached by a number of major Thai industrialists who told me they supported what we were doing because they viewed the rule of law and democracy as being in the economic interest of the country; because with the rule of law and democracy come fairer competition, less oligarchic tendencies, more rational distribution of assets. This has been pointed out in study after study.

So, there should be no opposition between promoting democracy and pragmatism?

No, I think there is a lack of understanding, which is why I am a big believer that business and NGOs should engage in a lot more discussion and a lot less confrontation.

You have talked about Russia’s attempts to re-establish its ‘spheres of influence’.

I am dealing with that. We need to understand that Georgia was a debacle for the West. I don’t think we get how bad it was. And then for Sarkozy, who was a witness to Russia’s breaches of the agreement with Georgia, to sell them the Mistral is in my view… I have no words to describe how I feel about this. So, it is a big win for the Eurasian element within the Russian polity. I watch how aggressive they are in Kyrgyzstan; I see what they have done in many other regions of the CIS; the warming with the Poles which I welcome – which, frankly, already seems to be cooling – and the more aggressive they have been with Lithuania in respect to gas prices, energy. We need to understand that there is this aspect in Russian foreign policy that sees a major benefit in conflict.

I am writing a paper on frozen conflicts, a sort of typology of Russian foreign policy that the Americans do not understand. The Americans have this concept that all great powers – which Russia is in my view – have this ultimate desire for peace; it is just a matter of how they get them to attend to their own interests. One of the things I’ve been trying to say to people is that that is not true in Russia. Russia is a country that has and sees benefits in areas of frozen conflicts, in instability. It is a hydrocarbon producer that benefits from elevated prices. It is a gas producer that has managed to freeze out its one major competitor – Iran. Iran has massive stocks of natural gas; they are frozen. What Russia wants to do is to move Iranian stocks through Turkey, Afghanistan and away from the West. It is brilliant – Russia benefits from Iran being a frozen conflict. We need to understand that benefit. I think we need a tremendous rethink of our Iranian policy and a rethink of (and a re-education on) Turkey, which is a wildly important country in the Med right now, particularly given what has happened in Iraq.

Rethinking Iranian policy in what way?

Iran represents an opportunity for outreach and engagement, a serious opportunity. It is crazy for me to say, but I have more historical understanding of and empathy for the Iranian people that outweigh the simple default demonisation, which has overcome so many in the West. I think finding intelligent ways at least to engage with Iranian civil society and even with some of the theocratic leaders is important. A frightening thing that is occurring is that Ahmadinejad – through a really bright foreign policy move in Latin America, coupled with finding alternative markets for Iranian goods – may be beating the sanctions and consolidating its power, which is the last thing that any of us should want.

Do you think that we should be worried about Russia’s policy of ‘spheres of influence’ here – in Estonia and the Baltic states?

Yes. I think we in the Baltic states should develop a new narrative for our foreign policy. Instead of a zero-sum game between Washington and Moscow, we should be reaching out to countries like Brazil, India, South Africa; be less interested in only getting our legitimisation through Washington and the EU; be more outward looking, finding ways to balance Russia and the US; and become of more interest. It seems to me that Washington takes you for granted. And Russia – it is a different relationship. The way to be more attractive to both is to be different.

How would that affect our relations with Russia in your view?

They would not know how to deal with you. You would represent much more of an opportunity, firstly, because you could be a major bridge to Russia for many of those countries, so you would be more of an opportunity and less of a threat. At the same time, you would break the paradigm of instinctive anti-Russian activity, which they accuse you of day after day. I was here during the Bronze soldier action and did a debate at the Oxford Union on the day that they did the cyber attack. I held up the Guardian with the picture of the soldier and the cyber attack and I wanted to debate the Oxford Union on the issue ‘Is the Internet a force for good?’ – I said it was a force for evil.

Or perhaps both?

Or both, exactly.

In your speech in Toronto last August you talked about the ‘politics of economic disruption’ in connection with Russia. What do you mean by that?

A gas OPEC. Igor Sechin in Nicaragua, Cuba, Venezuela. He is a market disruptor. He has not seen a market he does not want to screw up. If Russia – between Igor Sechin and Vladimir Putin, they are big followers of Jack Welch – if they are in any market, they want to be Number One and Number Two. The only difference with Jack Welch is that they want to have sufficient size, so that they can disrupt that market. That is why we all have to be very careful when someone who does not think exactly the way we do benefits from international disputes and disruption because the commodity prices go up. It is a worry. It is in our interest for Russia to have a more balanced economy, especially as in Russia there is no clear dividing line between personal assets and state assets.

You have often been involved in cases, in which state power is involved.

That is largely my practice. That is why I call it ‘asymmetric advocacy’ – because we are often up against states. In taking on Thailand, the level of abuse hurled at me has been almost as bad as in my first divorce. It is terror and it is amusing actually. I have encountered more anti-Semitism in Thailand than in Russia, which is amazing. It is very funny – I have always been a defender of Vladimir Putin on the issue of anti-Semitism. In my view, in the history of Russia, Putin is the leader most sensitive to the Jewish population that Russia has ever had. Truly, whatever you want to say about the man, in terms of his relationship with Israel and the Jewish people, it is very difficult to criticise him. I can criticise arms sales to Syria and Iran, but in terms of dealings within Russia, the FSB is wildly anti-Semitic and Putin is not.

In Thailand, I have totally unexpectedly encountered this massive wave of anti-Semitism – very public, very weird references that you would have seen in a German paper in the 1930s, but really out there in the modern press. It is really quite shocking.

It seems that we in the West do not notice it when it occurs in non-Western societies?

I found it pretty amazing. It is so unanticipated that it is almost more shocking than if it were to occur in Russia, where in fact it does occur, but you almost discount it because you expect it.

Chávez has also come out with some strong anti-Semitic statements.

Chávez is an anti-Semite, a historical anti-Semite. That is tied to the Perón school, which was wildly anti-Semitic. I have also had a case against Chávez: we had a political prisoner, a wealthy banker, imprisoned for two years when I met him. We had to come up with a strategy. The local counsel had tried everything. Fortunately, we managed to get to the UN Working Group on Arbitrary Detention. We had written a massive working paper, which they reviewed. They found that our client had been arbitrarily detained. On that basis we got the man released. Tragically, the judge who released him was incarcerated that day and he is still in jail.

How would you comment on the recent terror attack in Domodedovo, Moscow?

I call it the ‘horizontal of incompetence’. It is clearly a failure of governance. Medvedev must have issues as a parent because he seems to only have two speeds: he either fires you or promotes you. He does not do much to discipline or to set up structures of discipline for governance. It is embarrassing to watch this. In my blog, Grigory Pasco has a great post about fighting your tail – always addressing the last event as opposed to looking forward.

Do you see similarities or differences with regard to the attacks in the West?

It is different because there is confidence in the West that our security services are engaged in a battle. The danger in Moscow is that everybody knows the security services are engaged in destroying businesses and their hearts are not in this war that seems to have been launched against Moscow, this war of terror. People feel very exposed in Moscow because they do not believe the government can handle this in any form. This has broken an old promise by Putin, which was: you may lose your freedom, but I will give you your safety. That is not there any more. I find this attack – I think many people who travel in and out of Moscow airports find this attack – very, very concerning.

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