The Empire strikes back: Russian mirroring countermeasures in the legal domain

Inside of the International Criminal Court. Source ICC

“Admit nothing, deny everything, and make counter-accusations.” Legend attributes these words to the CIA. At the same time, the Russian authorities decided to turn the apt aphorism into a strategy. They frequently decide to mirror sanctions, court decisions, or arrest warrants in response to the so-called “actions of unfriendly countries.” 

In addition to undermining democracy by discrediting the referendum, another Russian narrative in the legal domain is “I wonder who the judges are!” Just a quick note: this catchphrase originates from Griboyedov’s “Woe from Wit,” which is one of the most quotable and canonical Russian verse comedies. The saying is an eloquent symbol of distrust of authorities (especially the judiciary). Literally, “it means contempt for the opinion of authorities acting as judges, who are no better than those they are trying to criticize.” However, its cultural dimension seems to be supplemented by the legal one. If the accusers or the judges are not without sin, how trustworthy are their conclusions? Let’s look at some cases of counter-accusations. 

The International Criminal Court against “known to be innocent Putin”

Russia turns the decisions of civilized world institutions upside down – for example, the latest one. The Investigative Committee of Russia initiated a criminal case in absentia against the prosecutor and three judges of the International Criminal Court. They had previously issued an arrest warrant of the President of Russia, Vladimir Putin, and the Commissioner for Children’s Rights, Maria Lvova-Belova.

Russia signed the Rome statute recognizing the ICC in 2000 but never ratified the agreement to become a member. It formally withheld its signature in 2016, a day after the court released a report that classified the Russian annexation of Crimea as an occupation.

According to the Russian investigators, they suspect the prosecutor of the International Criminal Court, Karim Khan, of “knowingly accusing an innocent person of a crime.” This is allegedly combined with preparations for an attack on a foreign state representative enjoying international protection in order to complicate international relations. As a reminder, the International Criminal Court suspects Putin and Lvova-Belova of committing war crimes: unlawful deportation and transfer of children from the occupied territories of Ukraine to the Russian Federation. Putin’s guilt consists, in particular, of initiating legislative changes that facilitate the acquisition of Russian citizenship. For the Russian Investigative Committee, however, there are no grounds for criminal responsibility. Obviously, for Russia, Putin, any other dictator, or his supporters will be considered innocent under any circumstances.

The Investigative Committee also pointed out that heads of state (in this case Putin) have “absolute immunity from the jurisdiction of foreign states.” In the kingdom of crooked mirrors, they seem not to have heard that the immunity of heads of state does not prevent the International Criminal Court from carrying out justice. This has been repeatedly confirmed in practice, for example, in the cases of the Sudanese President Al-Bashir, and the Libyan leader Muammar Gaddafi.

Russian Foreign Ministry spokeswoman Maria Zakharova added that Russia is not a party to the Rome Statute of the International Criminal Court and bears no obligations under it. Therefore, its decisions have no legal consequences for Russia. This objection is also invalid. “According to the ICC Statute, the court has jurisdiction over crimes committed in the territory of Ukraine”, – said ICC President Piotr Hofmanski. The nationality of the alleged perpetrators doesn’t matter in this case. Additionally, 43 states have referred the situation in Ukraine to the court.

The Assembly of States Parties reacted to these measures and Dmitry Medvedev’s threats of missile attacks against the Court. The European Union has also supported the ICC. In May, the EU High Representative for Foreign Affairs and Security Policy, Josep Borrell, stated: “Any Russian acts against the ICC’s mandate and attempts to intimidate those involved in the ICC’s investigation of international crimes committed in Ukraine are politically motivated, baseless, unjustified and unacceptable. They are a further expression of the Kremlin’s disregard for international rules and international law.” The EU countries expressed their full confidence in the independent and impartial court, which more than 120 states have entrusted with accountability for the gravest crimes.

But the Russian authorities did not stop there. On April 28, 2023, the State Duma adopted a new law criminalizing assistance to foreign and international bodies. This law prohibits cooperation with international bodies “to which Russia is not a party,” such as (surprise!) the International Criminal Court or any ad hoc international tribunals that may be established to prosecute Russian officials and military personnel, as well as foreign courts. Such institutions include, for example, Ukrainian courts and the District Court of The Hague, which issued a ruling related to Malaysia Airlines Flight MH17, which was shot down over eastern Ukraine in July 2014. Such cooperation is punishable by up to five years in prison. Vyacheslav Volodin, the speaker of Russia’s lower house of parliament, literally introduced the new law as a response to the ICC’s arrest warrants. He also offered to authorize Putin “to take any measures to protect citizens in case international structures make decisions that contradict the norms of the Constitution” (it is not specified what kind of measures Volodin was talking about). As if Russia ever needed permission to commit gross violations of international law.

“The law in Russia is a new toxic addition to the growing array of draconian criminal legislation adopted in recent years in the name of ‘state security,” – Balkees Jarrah, associate international justice director at Human Rights Watch, said.

Ukraine’s Constitutional Court discriminates against separatists

However, the judges of the International Criminal Court are by no means the first victims of Russian contempt for justice. Back in May 2018, the same Investigative Committee of Russia launched a criminal investigation against 15 judges of the Constitutional Court of Ukraine. In March 2014, they declared the so-called “Declaration of Crimean Independence” as well as the resolution on holding the Crimean referendum unconstitutional. More than four years have passed since these events. Around the same time, in 2018, anti-Putin rallies took place in Russian cities, but seeing coincidences is the prerogative of Russian analysts.

What were the judges accused of? On the basis of the concluded agreement, Russia kindly annexed Crimea. The Constitutional Court of the Russian Federation found no contradictions in this treaty with their Constitution. However, the Constitution of Ukraine is not so lenient towards violations of international law. So the Constitutional Court of Ukraine, acting in compliance with all applicable laws, allegedly “violated the principle of the right to self-determination in a discriminatory manner”. Here, the Russian authorities even cynically quoted the UN Charter, omitting other principles. The official legal ground for the prosecution was Article 136 of the Russian Criminal Code (infringing equality of human rights and civil liberties).

A brief journalistic investigation by the BBC showed that the norm is extremely unpopular. Russian sources also indicate that there have been no actual convictions under this article.

The internal logic of the wording is rather weird: the judges allegedly committed a crime against Russian citizens. Russian legislation allows for the prosecution of such foreigners. But if Crimea is supposedly independent, it is not subject to the jurisdiction of the Constitutional Court of Ukraine and can ignore its decisions. If the Russians recognize this jurisdiction, they will also recognize that Crimea is Ukrainian. How did the judges violate the equality of rights and freedoms? And equality of whose rights? Equality with the so-called citizens of other territories occupied by Russia? Also, only a person with official powers in Russia can commit this crime. Since when does the Constitutional Court of Ukraine consist of Russian officials?

This absurd criminal case raises more questions than answers.

It should be noted that there was no news about this case after the announcement of its initiation. Law enforcement bodies in Russia have lost their impetus.

Russia vs. Lithuania … and history

However, this Russian practice was constantly spreading. In a few months (in July 2018), the Russian investigative bodies took on the Lithuanian prosecutors and judges – and showed even more remarkable persistence in this case.

For many years, Lithuania and the other Baltic states – Latvia and Estonia – tried to bring to justice those involved in the bloodshed of 1991. On January 13, 1991, 14 civilians peacefully protecting the Vilnius television tower were killed by the Soviet military, and more than 700 people were injured. The repression continued until August 1991 (including the Medininkai case). In 2019, after three years of hearings, 67 Russian, Ukrainian, and Belarusian citizens, including former Soviet Defense Minister Dmitry Yazov, were convicted of war crimes and crimes against humanity.

The day after the verdicts were announced, the Russian Foreign Ministry called the hearing “extremely unfriendly and essentially provocative,” and the decision itself “disgraceful, biased, and politically motivated.” Putin stated that the occupation of the Baltic states was “by consent”. Obviously, he was referring to the secret protocols of the Molotov-Ribbentrop Pact, which actually authorized the annexation of the Baltic states in 1940. Regarding Lithuania, Russian propagandists use the same accusations as against Ukraine – Lithuania is a totalitarian state in the interpretation of the events of 1991; the restoration of Lithuania’s independence is a unilateral withdrawal from the Soviet Union…

Later, the aforementioned Investigative Committee filed charges against the Lithuanian judges who found the perpetrators guilty. The former Minister of Justice of Lithuania, Elvinas Yankevičius, said: “There is no guarantee that tomorrow the same actions couldn’t be brought against any EU member state. Today, Lithuanian judges and prosecutors have become a target. Tomorrow it can be the Dutch investigating the downing of the Malaysia Airlines flight MH17 in Ukraine, the UK working on the Skripals poisoning case in Salisbury, or the Polish attempting to fully investigate the crash of the plane en route to Katyn in 2010.”

Significantly, this incident generated much more publicity than the investigation against the Constitutional Court of Ukraine. In its statement, the Ministry of Foreign Affairs of Lithuania expressed the assumption that such actions contradict the true position of the Russian people and harm bilateral relations. Such considerations were still relevant in 2018. Besides, it was pointed out that such actions are open pressure; Russia clings to the Soviet past and creates an alternative reality instead of respecting the sovereignty of its neighbours. The accusation, on the other hand, is not substantiated by objective evidence and is especially cynical because Russia did not respond to the requests for cooperation from the General Prosecutor’s Office and the Ministry of Justice of Lithuania. Moreover, Russia actively hid and protected the key perpetrators of the crimes and took all possible measures to help them evade responsibility.

In November 2019, the European Parliament reacted with its resolution. The act mentions that the USSR annexed Lithuania, but in 1991, Russia, as its legal successor, recognized the restoration of Lithuania’s independence. Proceedings in such criminal cases against prosecutors and judges cannot be considered legitimate because criminal prosecution for their professional activities is a form of unacceptable external influence, according to the UN Basic Principles on the Independence of the Judiciary. Judges of EU member states are considered judges of the EU as a whole. Thus, MEPs call on all Member States not to transfer any personal data to Russia that could be used in criminal proceedings against Lithuanian judges and to refuse Russia’s requests for related legal assistance in this regard. EU countries and Interpol should also ignore all international arrest warrants against the accused Lithuanian officials and be more consistent in their policy towards Russia. This state is breaching more and more international laws and commitments against good neighbourly relations, thus undermining any prospect of future cooperation.

Total mirroring and counter-accusations as a way of life

Why so much attention to the courts of different instances and countries of origin? The rule of law, democracy, and protection of human rights can only exist formally without an independent judiciary. The intimidation of judges, the disregard of court rulings, and the mockery of justice in general are designed to make lawlessness a matter of course.

Incidentally, the Kremlin has previously rejected an order from the United Nations’ highest court – the International Court of Justice – to cease its attack on Ukraine. Moscow also boycotted a hearing on the case earlier, arguing in a written submission that the court didn’t have jurisdiction. It also said it was acting in self-defence with the invasion.

After the decision was announced, Kremlin spokesman Dmitry Peskov told reporters that Russia “cannot take this decision into account.” As simple as that.

Earlier, in 2015, The Russian Constitutional Court had raised the possibility of not executing at all or only partially executing specific European Court of Human Rights judgments concerning Russia should they be held to be contrary to the Russian Constitution. According to this ruling, international treaties (in particular, the European Convention on Human Rights) are binding but wrongfully interpreted by the ECHR judges. Legal scholars from Russia still wonder (as well as Griboyedov) who the judges from ECHR are to restrain Russia in anything?

In order to proceed in this regard, Russia had preemptively withdrew from the Council of Europe on March 15, 2022, before the Committee of Ministers expelled it from the organization the next day. Russia then stated it would not comply with any European Court of Human Rights judgments. Furthermore, legislative authorities in Russia outlawed the enforcement of such judgments. Nevertheless, under the European Convention on Human Rights, and as confirmed by the court, Russia remains bound by its obligations for violations committed up to September 16, 2022, when Russia ceased to be a party to the Convention.

… The thief often shouts the loudest, “Catch the thief.” Russian mirror countermeasures are implemented not only by the court and law enforcement agencies.

Negative reciprocity can be traced back to 2015 in various areas of the law.
For instance, such framing can be noticed in the following laws:

  • The Law allows the seizure of property of foreign governments. The explanatory note to the legislation mentions Russia’s disadvantageous position because “the number of claims against Russia in foreign courts is growing.” Surely, principles of reciprocity are also mentioned. The Law was probably adopted in response to the seizure of Russian property in France and Belgium in 2014, following the verdicts of the Permanent Court of Arbitration and the European Court of Human Rights. Under them Russia had to pay $39.9 billion to former shareholders of the YUKOS oil company (November, 2015);
  • The Law ‘On the Measures (Countermeasures) in Response to Unfriendly Actions of the USA and(or) other Foreign States’. It also refers to all organizations allegedly controlled by such ‘unfriendly states’ or even officials and citizens. Such organizations can be banned or their activities can be restricted almost arbitrarily – due to the will of Putin (June, 2018);
  • Amendments to the abovementioned Law. It prohibits providing information on credit institutions’ clients and transactions to the competent authorities of foreign states ((including judicial authorities), unless they receive permission from the Bank of Russia. The liability for violation is also established. (May, 2022)
  • The one criminalizing “confidential cooperation” with foreign governments or international organizations deemed contrary to Russia’s broadly defined “state security,” punishable by up to eight years in prison (July, 2022); 

Certainly, counter-sanctions are also symmetrical. While imposing new sanctions, Putin constantly uses the exact phrase “to mirror their actions”. In particular, in May 2022, Russia banned the entry and froze the assets of the President and 12 other US officials. The list included the Secretary of State, the Secretary of Defence; but also Joe Biden’s son, and former Secretary of State Hillary Clinton. 398 members of Congress were also included in the mirror black list of persons non-grata. One of the Russian foes, Democrat Rep. Adriano Espaillat of New York, tweeted in response: “My night couldn’t have ended any better.” In June, another 61 people, including heads of defence, aviation, and media companies, lost a priceless chance to visit Russia. As American commentators joke, Hillary will have to do without a cottage in Sochi, and Biden’s plans to start a business in Moscow after the presidency will go down the drain. But despite the jokes, it is being called the beginning of a new Cold War. Instead, the example of Ukraine convincingly denies it: the war is in full swing, in a hot phase. It is not only against and on the territory of Ukraine. It is against the rule of law, common sense, and reality.

Olha Nykorak, German Marshall Fund of the United States research fellow, postgraduate researcher in constitutional law

The project is implemented with the support of the Ukreate Hub program from the Open Lithuania Foundation.

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