Detained Ukrainian Pilot’s Lawyer Lobbies Washington for New Sanctions

In July 2014, Ukrainian military pilot Nadiya Savchenko — who had taken leave from the army to fight for a volunteer battalion — mysteriously appeared in Russian custody. Moscow accused her of calling in an artillery strike that killed two Russian journalists in eastern Ukraine. But Savchenko’s lawyers say she is innocent and is being used as a political pawn in the Kremlin’s wider standoff with Ukraine and the West.

Since then, a high-profile court battle has unfolded in western Russia over Savchenko’s fate. A decision is expected at the end of March, and a guilty verdict is almost universally expected. But her legal team is preparing to hit back: They are pushing Washington to sanction Russian officials whom they accuse of abducting Savchenko, as well as officials in Moscow for allegedly fabricating the case against her.

“We need to keep the pressure on the Russian government,” Ilya Novikov, one of the head lawyers representing Savchenko in Russia, told Foreign Policy in a recent interview. “A strong message needs to be sent to the Kremlin: Either release Nadiya or face sanctions.”

Novikov is calling for Russian officials involved in Savchenko’s case to be sanctioned under the Magnitsky Act, an American law passed in 2012 requiring the U.S. government to freeze assets and deny visas to Russian citizens guilty of gross human rights violations. Novikov told FP he met with State Department officials in Washington last week and called for at least 30 people who were involved in the alleged kidnapping and prosecution to be included on his so-called “Savchenko list.” He said the list could contain up to 100 names if it included Russian officials who have called for the Ukrainian pilot to be sent to jail or even executed.

The Magnitsky Act was named for Sergei Magnitsky, a Russian lawyer who died in custody in 2009 after he accused Russian officials of a massive tax fraud scheme. The law not only requires the State Department to identify and sanction Russian individuals it judges specifically responsible for Magnitsky’s death, but also other Russian citizens “responsible for extrajudicial killings, torture, or other gross violations of internationally recognized human rights” in other cases.

“Savchenko’s lawyers need to show that she is unfairly detained and make it pretty clear that there are a number of Russian officials responsible for her detention,” Bill Browder, CEO of Hermitage Capital Management and an architect of the Magnitsky Act, told FP.

Browder was Magnitsky’s employer. He called the law a powerful piece of legislation — not only because it names human rights violators publicly and blocks them from coming to the United States, but also because it serves as a U.S. Treasury blacklist for banks worldwide.

“The moment they are on a Treasury list, there is no bank in the world that will do business with them,” said Browder. “Every bank is worried about being under pressure from the U.S. Treasury.”

A State Department official who spoke on condition of anonymity declined to comment on potential future sanctions but told FP that the United States “remains deeply disturbed by the Russian Federation’s decision to move forward with this baseless case.”

“The only true justice would be to dismiss the charges immediately and return Nadiya Savchenko to her Ukrainian homeland, a commitment Russia made when it signed the Minsk agreements,” the State Department official said.

When asked about the possibility of sanctions through the Magnitsky Act resulting from the Savchenko case, an official from the Russian Embassy in Washington told FP on Wednesday that any new sanctions “would be counterproductive” to relations between Washington and Moscow.

In defending Savchenko, Novikov has teamed up with Mark Feigin and Nikolai Polozov — the two Russian lawyers who defended the punk protest band Pussy Riot in 2012. The three have sought to poke holes in the 8,000-page case submitted by the Russian prosecution and have already pointed to many discrepancies.

From replicated eyewitness accounts to the prosecution’s questionable claim that Savchenko crossed into Russia as a refugee, the lawyers have had more than enough to dig into regarding the investigation conducted by Russia’s Federal Security Service, or FSB, one of the successor agencies to the KGB. The central component of the Russian prosecutor’s case is that Savchenko is responsible for the deaths of two journalists.

But in early February, her lawyers introduced as evidence declassified mobile phone monitoring by Ukraine’s special forces that picked up conversations from pro-Russian separatists on June 17, 2014, the day of the artillery attack on the two journalists. The logs show that at 10:46 a.m., rebels reported they had captured a female soldier, which is believed to be Savchenko. The defense claims this shows Savchenko could not have called in the attack on the two Russian journalists, who are believed to have been killed closer to noon.

Even so, her lawyers do not expect to win the trial, noting the political nature of the Russian courts — and of the case itself. Moreover, Savchenko’s defense team says the operation that smuggled her to Russia was engineered by FSB officers with connections to the Kremlin.

The lawyers claim to have the transcript of a June 2014 phone conversation between Valeri Bolotov, then leader of the pro-Russian separatist Luhansk People’s Republic, and Pavel Karpov, an FSB officer and former assistant to Vladislav Surkov, one of Russian President Vladimir Putin’s top aides. During the call, Bolotov and Karpov discuss interrogating Savchenko and plot details for her eventual transport to Russia.

Novikov and the rest of Savchenko’s defense team hope this evidence can convince the State Department and lawmakers on Capitol Hill to add new names to the Magnitsky list. On Feb. 13, 2015, the U.S. Senate approved a bipartisan resolution by Sens. Ben Cardin (D-Md.) and Roger Wicker (R-Miss.) expressing “solidarity with the Ukrainian people while condemning the government of Russia for its actions and calling for the immediate release of Ms. Savchenko.” However, Congress has done little else to help Savchenko since then and a Senate Democratic aide told FP that “it is unclear at this time whether or not this case would appropriately be considered under the law.”

A number of other Ukrainians are also being detained or on trial in Russia, though Savchenko is the only one charged with offenses directly related to the war in eastern Ukraine. Last year, film director Oleg Sentsov was sentenced to 20 years in prison on terrorism charges that his lawyers said were fabricated. Sentsov said he was tortured while in Russian custody in his captors’ attempt to force him to incriminate himself.

But Savchenko’s status as a captured female soldier has made her a national hero in Ukraine, where she was elected in absentia into the country’s parliament in 2014. Her celebrity status has only grown throughout her trial, and she has gone on hunger strike and worn traditional embroidered Ukrainian shirts during her court appearances.

This notoriety has led to speculation that Savchenko may be used as a bargaining chip in either a potential prisoner swap or a renewed push to enforce the largely stalled Minsk 2 cease-fire agreement between Moscow and Kiev. The most likely candidates for a swap include two Russian soldiers facing trial in Ukraine: Alexander Alexandrov and Yevgeny Yerofeyev both admit they were serving Russian soldiers on a reconnaissance mission on Ukrainian territory.

“I wouldn’t rule out a prisoner swap or sanctions. Both are real possibilities,” said John Herbst, director of the Atlantic Council’s Eurasia Center and former U.S. ambassador to Ukraine.

A prisoner swap would require the Russian authorities to change Savchenko’s status from a criminal to a prisoner of war, which would need legal maneuvering in Moscow. While the threat of sanctions could potentially force Russia’s hand, Moscow has so far resisted attempts to release Savchenko, and on Wednesday, prosecutors called for her to serve a 23-year sentence at a prison colony if found guilty.

With a verdict expected in the coming month, Savchenko doesn’t appear to be going home anytime soon.

Photo credit: DMITRY SEREBRYAKOV/AFP/Getty Images