Roger writing the LAWmag

Iraq Steals, Kuwait Still Suffers

Courts from New South Wales to Nunavut at all points in between routinely deal with theft. But when one state steals from another, the assets are usually substantial and the litigation proportionately complex.

Still, theft is theft.

On August  2, 1990, Iraq suddenly invaded Kuwait, where they found 15 lovely empty airliners at the airport, all decked in shiny Kuwait Airways colors, including 5 Airbus 310s, 3 Airbus 300s and two Boeing 767s.

The Iraqi "law" behind the theft:

"On 8th and 9th August (1990) the Revolutionary Command Council of Iraq passed Resolutions 312 and 313. These resolutions proclaimed the sovereignty of Iraq over Kuwait and its annexation to Iraq. Subsequently various Presidential Decrees of the government of Iraq designated Kuwait a Governate within Iraq and appointed a Governor of the Governate of Kuwait."1

A month later, 10 of the airplanes were discreetly flown to Iraq and repainted with the colors of Iraqi Airways.

By January 1991, Iraq had been beaten out of Kuwait and forced to account for the theft.

Four of the aircraft had been destroyed during the Gulf War, bombed by Coalition forces while grounded at the Mosul, Iraq airport. The other six had been secreted into Iran which eventually surrendered them to Kuwait Airways but only upon payment of $20 million.

On January 11, 1991, Kuwait Airlines filed an action against Iraq Airways in London, England and the chase was on.

Eighteen years later, in 2005, the High Court granted Kuwait Airways judgment in damages in an amount of $1.2-billion, and costs.

Like with so many smaller civil actions, it is often from the wealthy defendant that it is most difficult to collect.

But Kuwait Airways had feelers on the ground.

Aware that Iraq Airways was about to take delivery of six new airplanes from Bombardier in Montréal, and that the government of Iraq owned two commercial office buildings in Montréal, Kuwait Airways chose to pursue collection of its English judgment in La Belle Province.

The High Court orders were registered in Montreal for enforcement purposes.

Then, writs of seizure on the Bombardier and real property assets were issued on August 27, 2008.

Iraq did not respond offering full compensation for the lost assets.

Iraq is,well, Iraq.

Canadian lawyers representing Iraq tried to overturn the seizure claiming that given the international law components of the case, there was no jurisdiction to seize the Bombardier says aircraft and two buildings. In essence, the Republic of Iraq claimed state immunity, relying on, of all things, a Canadian statute, the State Immunity Act.

One big boy of Canadian law stands to cash-in on the oil-drenched retainer of the Republic of Iraq: Heenan Blaikie of Montreal.

On appeal, the Québec Court of Appeal agreed with Iraq and quashed this is the seizure orders, prompting an application to appeal to Canada Supreme Court, which was granted in August of 2009.

As the months trickle by and briefs, counter briefs, appeal books and counter-books trickled into the Supreme Court registry office, millions of dollars are dished out in legal fees ... all merely seeking to render to Caesar what belongs to Caesar.

No common criminal, properly prosecuted, could escape the wrath of a common law court, especially if in the commission of a crime, thousands were killed.

And yet, because the State of Iraq benefits from the extraordinary cushion of international law, Kuwait Airways must hope, perhaps in vain, that nine old fogies in Ottawa can do them justice.

Not bloody likely.

The Nazis spirited away millions of dollars of assets belonging to Jews during the Second World War. Napoleon plundered Europe of its treasures during his many campaigns. Russia holds onto the presidential seal of Estonia.

And the State of Iraq giggles in the no man’s land of law as the toothlessness of international law is made patently clear again with courts of law’s seeming inability to disable this last relic of anarchy; might equals right.

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Posted in Commercial Law, Crime and Criminal Law, Current Events, International Law
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