By John Helmer, Moscow
Melchior Wathelet (lead image, left), the Advocate-General of the European Court in Luxembourg, publicly recommended on May 31 that the court should dismiss a challenge to the legality of European Union sanctions by the Russian state oil company Rosneft. Wathelet has a history of secret operations against Moscow. That history ought to have disqualified Wathelet from participating in the Rosneft case, lawyers at the court say. "He should have done so voluntarily," one of the lawyers adds. "Instead, Wathelet, along with the Belgian President of the Court, Koen Lenaerts, have kept the past secret, allowing a serious conflict of interest to influence the outcome of the case."
As the minister of justice in his native Belgium, Wathelet supervised the Belgian state security service, and officially participated himself over several years in NATO spying, military operations and propaganda schemes against Russia and the Soviet Union. Details of Wathelet's involvement in NATO’s Operation Gladio were not known to Rosneft when Wathelet was assigned to the case. Rosneft’s Anglo-American law firm did not investigate Wathelet’s bacckgournd. Also, the law firm, Hage Joseph Aaronson, has kept from Rosneft the knowledge that one of their own lawyers was a long-serving officer in the US Defence Intelligence Agency.
Lawyers engaged in European Court cases in Luxembourg say they are astonished by the conflict of interest. "This case is hugely important," said one source engaged in a parallel sanctions proceeding. "If Rosneft were to win, the legality of sanctions would collapse." A London lawyer adds he is surprised that Rosneft management and its lawyers in Luxembourg failed to challenge Wathelet's participation in the case.
Wathelet is not denying the information about his past involvement in NATO operations. He won't explain why he and the presiding judge, Court President Koen Lenaerts, acted together to arrange his assessment of the Rosneft legal papers.
Wathelet, 67, trained in law at Harvard University in the US and spent most of his career as a politician in a centre-right political party in Belgium. Between 1988 and 1995 he was a deputy prime minister and the Minister of Justice. In 1995 he was Minister of Defence (pictured below, left). In the justice post, he supervised Albert Raes , longtime head of Belgium's State Security Service (WSSE). At the Defence Ministry, he supervised Belgium's military cooperation with NATO headquarters in Brussels.
Lenaerts (above, right), 61, is also a Harvard law school graduate. In Belgium he was a protégé of Wathelet’s. Wathelet appointed Lenaerts first as Belgium’s state attorney at the European Court between 1986 and 1989; then, starting in 1989, he promoted him to be a judge of the Court.
Last year, when Lenaerts was assembling a 15-judge panel to rule on the Rosneft case, he also decided that Wathelet should produce the advocate-general's opinion to guide the judges. "Not every case is assigned an advocate-general," a Luxembourg source says. Other court sources acknowledge that Lenaerts's decision to act as chief judge in the Rosneft case, and pick 14 other judges to sit with him, signals how important the case is.
"The Advocate-General's opinion is usually influential with the judges," a court source notes. "For Lenaerts to pick Wathelet, with a background like he had in Belgium, has another meaning. Silendo libertatem servo ["By being silent, I serve freedom"] – that's Wathelet's motto. Look it up. " This is a reference to the motto of NATO's Operation Gladio (Latin for sword) between 1956 and 1990.
Wathelet was forced out of the Belgian government in 1995. His exit followed charges of interference from the justice ministry in the faulty prosecution and early release from prison of members of a pedophile ring; they has been convicted of pandering to the sexual tastes of high Belgian officials. Wathelet was also accused of involvement in the ring himself, but no allegations came to court, and Wathelet has not been charged with wrongdoing. The challenge by the European parliament to his fitness as a European Court judge failed in 1997; read more.
Before the pedophile scandal led to Wathelet's outing from Belgium and his promotion to the bench in Luxembourg, his involvement in Operation Gladio also came under official scrutiny by the Belgian senate in 1991. The Belgian investigation was triggered by disclosures in France and Italy, indicating that the US and British secret services had set up a NATO operation for recruiting, arming, training and operating groups of men in the NATO member states. Their mission to start with, according to the Belgium senate record, was to "stay behind" after invasion, and prepare resistance to occupation by enemy forces. Although Belgium has twice been occupied by German troops, and then by the British and American armies, the only enemy in the Gladio plan was to come from Moscow.
In practice, Gladio agents and their commanders were fanatical ideologues, German collaborators, haters of both Russia and communism, who organized violence against domestic left-wing organizations, as well as terrorist attacks against the general population. The Brabant killings in Belgium, which occurred between 1983 and 1985, have never been solved, but some investigations have believed Gladio operatives were involved.For details, click.
As justice minister Wathelet was the superior of Albert Raes, head of the Belgian State Security Service (VSSE) from 1977 until 1990. Raes, it has been confirmed, was directly in charge of the police participation in Gladio. Raes was also in charge of counter-intelligence against KGB operations in Belgium. In the Gadio command too was Colonel Bernard Legrand, head of the Belgian military intelligence service (GISS). Together, these men and their agencies jointly ran SDRA8, as the Belgian unit of Operation Gladio was known. For an investigative report by the London Observer, read this.
In February 1991, Wathelet testified before a commission of Belgian senators, that he had known of Operation Gladio from the beginning of his term in office, perhaps earlier. He admitted he had participated in equipping the Gladio agents with special long-range radios and stocks of arms; and that he picked agents for training in Belgium, as well as in Germany. How much more Raes told Wathelet, and how the two of them agreed to keep secrets Wathelet could publicly deny authorizing, the Belgian senate commission failed to determine. Wathelet's attempt to remove Raes was controversial at the time. It is unclear whether he was trying to sanction Raes or protect the two of them, and the identities of others in the Gladio network.
In his senate testimony Wathelet defended the secrecy of Gladio, and also its operations. "Today", he was reported by Le Soir as saying, "I have the greatest concern about our ability to keep a secret….I think we should respect a priori the work of these people."
An investigation of the Europe-wide operations of the Gladio units, and the involvement of the US and British secret services in directing their operations, was published in November 2004 by Daniele Ganser (below, right). He is an academic at the Swiss Institute for Peace and Energy Research (SIPER) in Basel. He wrote his PhD dissertation on NATO clandestine operations; this was published as a book titled NATO's Secret Armies: Operation Gladio and Terrorism in Western Europe.
Ganser retells from the official and press records of the Belgian investigations what Wathelet had known and what he had done. The details can be found on pages 131, 132, and 140 of the book. According to Ganser's study, those directly involved in Gladio were soldiers and policemen. Wathelet's role, Ganser says today, "was in the background, though a knowing one, and possibly one of direction."
At the European Court, the European Union (EU) statute requires that it is "the duty of the Advocate-General, acting with complete impartiality and independence, to make, in open court, reasoned submissions on cases which, in accordance with the Statute of the Court of Justice of the European Union, require his involvement."
In the Rosneft case, the rules of the court did not "require" Wathelet's involvement. They do require his "complete impartiality and independence". Do Wathelet, and his Belgian protégé, President Lenaerts, qualify?
Ganser and the Belgian media archives are not the only source of evidence on Wathelet and Operation Gladio. Experts and official archives in Luxembourg and elsewhere have been available to Rosneft's lawyers in London and Luxembourg if they had wanted to challenge Wathelet's appointment to the case, before he submitted his 59-page opinion on May 31. Details of the document urging the rejection of the Rosneft case, and expert opinion on its legal faults, can be followed here and here.
European Court lawyers and experts say a challenge to an advocate-general on grounds of prejudice, conflict of interest or prior involvement is extremely rare in the 64-year history of the court. According to one Luxembourg source, "I've never heard of a challenge." He acknowledges the Rosneft case "could not be timed at a worse moment for the Americans, the British and their allies in the EU. Opinion against sanctions is growing in German and French political circles, and it's obvious public opinion throughout Europe no longer trusts EU institutions."
Wathelet was asked to explain why he had not recused himself from the Rosneft case:
He replied through a spokesman: "Mr Wathelet has no comment to make."
Rosneft was initially listed for EU sanctions on its trade, financing, and technology on July 31, 2014; for details, read this. On October 9, 2014, the company lodged its initial challenge at the European Court. The following month, in November, it filed in the UK High Court, challenging the legality of the British government's action to introduce the sanctions against the company. On February 15, 2015, the High Court decided to suspend judgement, and pass the case to the European Court for a preliminary ruling. The British decision can be read here. The European Court then received the High Court's application, and the Luxembourg proceeding commenced. A grand chamber hearing in front of Lenaerts and 14 fellow judges was held on February 23, 2016.
Source: http://www.europas.irtea.gr/?page_id=2496 Court rules do not permit publication of the transcripts of hearings. The transcript is reserved for the judges.
The advocate for the court was Wathelet. The advocate for Rosneft was a British Queens's Counsel, Pushpinder Saini. He addressed the court for 30 minutes, he claims, but he refuses to identify the names of the judges, or comment on what happened. A court source has provided a public record of the judges, who include Antonio Tizzano, Vice President of the court, as well as judges representing the most anti-Russian of EU member states — Lithuania, Romania, Poland, and Croatia. For the full court list, click.
Instructing Saini was Rosneft's solicitor in the case, Joseph Hage, a partner in the London and New York firm of Joseph Hage Aaronson (JHA). For a reason he won't explain, Hage does not appear on his company's list of partners. Hage (no photograph is available) advertises his work at the European Court extensively on his firm's website. He mentions his role in defending former Ukraine President Victor Yanukovich (below, left) and his son, Alexander Yanukovich, in a challenge to the EU sanctions imposed on them in March 2014. That case commenced in May 2014, months before Hage was engaged by Rosneft. Hage has issued nine press releases on the Yanukovich case; he doesn’t mention his work on the Rosneft case at all.
Rosneft's chief executive is former deputy prime minister Igor Sechin (above, centre). His deputy chief executive and head of Rosneft's legal department at the time of the EU sanctions in 2014 was Larissa Calanda (above, right). Calanda was removed from her office a month ago, in late May. According to the Moscow press reports she had been dismissed by Sechin.
Sources close to the company disclaim responsibility for the decisions apparently taken by Calanda on the sanctions litigation in London and in Luxembourg.
It also appears that Rosneft executives were not aware of Wathelet's past. Accordingly, no instructions were given to Hage and Saini to challenge the advocate-general's conflict of interest. Rosneft was also unaware that the JHA lawfirm includes a veteran American spy and a former US Army officer.
Michael Richter in the New York office of JHA says he served as a high-ranking officer of the Defense Intelligence Agency (DIA) and on the staff of the US Director of National Intelligence. Richter makes no secret of this background, and regularly publishes on intelligence topics. In one, he wrote: "To be clear: An intelligence agency cannot long function without secrecy, and I take my oath seriously." Richter is also a member of the editorial board of a publication of the Central Intelligence Agency (CIA) called Studies in Intelligence: Journal of the American Intelligence Professional.
Also on the list of JHA lawyers is Peter Jerdee. Before he went to work in civvies, Jerdeee served for four years as an officer in the US Army Judge Advocate General's Corps.
Rosneft executives appear not to have known of these men’s backgrounds when they engaged their law firm. Whether the Russian company would have objected that their backgrounds posed a conflict is not known. London legal sources say there has been speculation that when Rosneft and other Russian individuals and corporations on the sanctions list tried to engage major international law firms with US ties, there has been informal pressure from Washington on the lawyers not to get involved. JHA is a relatively small, new firm, the sources suggest, with "little scope for Chinese walls to protect against conflicts as there are in the larger, more established firms. When lawyers are approached by a client [like Rosneft], they ought to be asking: 'are we going to be in difficulty with the client if this information is known?'"
Hage was asked to respond to the conflict of interest questions for Rosneft arising from Wathelet's past; Hage's involvement with the Yanukovich family; and the US Government records of Richter and Jerdee.
Hage's assistant confirmed he had received the questions. Hage refuses to answer. Rosneft also declines to comment.
NOTE: The involvement of the Belgian secret services in the official investigation of the downing of Malaysian Airlines MH-17 in Ukraine in July 2014 is also a mysterious secret. Among the 298 dead, just 4 were Belgian nationals. There were an equal number of German victims, and many more from the UK and Indonesia. Those countries are not, however, represented on the Joint Investigation Team JIT), now probing what caused the crash and who was responsible. The members of the JIT represent The Netherlands, Malaysia, and Australia, with the largest representation among those killed; the Ukraine; and Belgium. The spokesman for the JIT refuses to give the name or government agency of the Belgian on the JIT, or explain why Belgium is represented at all.