This week a complainant against Kuwait received what he described as a positive judgement and “undeniable victory” over a ruling by the World Bank’s arbitration body, the International Centre for Settlement of Investment Disputes (ICSID), in a case that is closely tied to the Malaysian 1MDB scandal.

It was back in March 2023, that the Kuwaiti courts had convicted three of their nationals for money laundering 1MDB connected cash stolen from Malaysia as part of an organised crime orchestrated by the Malaysian Jho Low.

These were the son of the then prime minister, Sheikh Sabah, his lawyer and college pal Hamad al Wazan. They received between seven and ten years terms of imprisonment.

Two foreigners were also  convicted in their absence, namely Jho Low himself, now a fugitive in China, and Bachar Kiwan, the French whistleblower in the case whom the Kuwaiti government has at various times charged and imprisoned over totally separate matters and then later sought to have extradited under an INTERPOL Red Notice that was declined by the Spanish courts.

The most recent crime for which Bachar had been charged in Kuwait was ‘people smuggling’.  This was on the grounds that he had smuggled himself out of the country as he sought to escape a string of other charges that had been brought against him by his former business partner, Sheikh Sabah, after he had refused to participate in Jho Low’s money laundering through the companies they jointly owned.

As the ruling by the ICSID spells out, people smuggling is supposed to relate to the abusive trade of others across foreign borders, not an attempt to escape oneself from abusive foreign legal actions.

The Spanish courts had arrived at the same conclusion back in 2020 as did the UN as did the UN’s Human Rights Council Working Group on Arbitrary Detention, which again ruled in April 2023 that Bachar Kiwan had been the victim of abusive and arbitrary litigation by the government of Kuwait.

Bachar had initially brought his problems to Sarawak Report after he had finally been released from the attempted extradition from Spain.

Till that point the wider public who had been following his case (mainly in Kuwait) had been treated to a litany of vilification against the businessmen in their local media as the target of a powerful royal who had initiated waves of legal action against him accusing him of corrupt practices. To say he had developed a bad name in Kuwaiti circles was an understatement.

Bachar explained the situation differently, namely that he had for years acted as the business manager and partner of Sheikh Sabah (himself the business representative of the then top political family) but had found himself in disagreement with the Sheikh after Jho Low had enticed Sabah into accepting billions of laundered Chinese yuan into his business and personal accounts.

By July 2016, as Jho Low was proposing to transfer the cash under the pretext of transparently bogus commodity transactions, Bachar had become aware of Jho Low’s status as a globally notorious financial fraudster.  This was particularly the case once the US Department of Justice issued asset seizures related to 1MDB in mid-July.

He warned his partner that he could not sanction the use of their companies in this manner which cause the Sheikh to start a series of denunciations and moves to remove Bachar from the businesses he had built up thanks to licences the royal family could control and therefore removed.

In 2017, Bachar was finally convicted of allegedly tampering with board minutes and despite an appeal being lodged he was thrown into prison for over 70 days, during which time he says he was brutally tortured and pressed to sign confessions.

It was during a period of release that he fled the country (or, as the Kuwaiti court has chosen to describe it, “people -smuggled” himself to freedom back in France).

The personal and financial consequences of Bachar’s brush with the angry royal have been devastating. His businesses have been lost and family members were imprisoned after his departure.

However, after he decided to impart all that he knew about the crooked activities of Jho Low and his erstwhile partner cum persecutor to Sarawak Report the tables turned against the Sheikh and his collaborators in Kuwait.

Bachar had access to enormous amounts of documentation that proved his case that the corruption was led by the Sheikh himself who had become blinded by the billions that Jho Low was planning to launder through his Kuwaiti accounts at the newly installed branch of ICBC bank.

The plan was to conduct the criminal transactions behind the front of a fake Road and Belt project which the Chinese state was apparently supporting through the Road and Belt Fund plus a number of major Chinese state companies including the construction giant CCCC which had already become embroiled in Najib’s corrupt bailout plans for 1MDB using inflated contracts.

Sarawak Report had long had knowledge of the other side of the global story and Bachar’s information helped this blog and from here global investigators and the Kuwait authorities to put together a full picture of how Najib and Jho Low worked to steal over a billion dollars from the ECRL rail and two pipeline contracts which were then funnelled by Chinese state companies into Kuwait and then out to pay bills and debts incurred by the Malaysians’ corrupt practice.

The publicity prompted action by the Kuwait authorities which had for years protected the Sheikh and targeted Bachar instead. There were new brooms in the political arena and finally justice was served with the convictions referred to.

However, Bachar himself received no official thanks, rather the opposite. The case that was brought before the courts treated the whistleblower (who had gained not one penny from the crime but rather had lost his livelihood and assets) as an equal party to the crime.  He too was sentenced to a decade in jail and has been painted widely in Kuwait as the foreigner who had led their local royal lad astray.

The UN Human Rights Council has dismissed the conviction as a travesty securing Bachar’s rights and reputation outside Kuwait.  However, the businessman had lost his entire business and assets which had been effectively confiscated thanks to unjust legal action on the part of a political powerful individual in Kuwait.

He took his complaint to the World Bank under the treaty between France and Kuwait that protects business entities from abusive behaviour by the state in either country. On Tuesday ICSID ruled that he was indeed the victim of such an abuse and “denial of justice” serious enough to constitute a violation of the France-Kuwait Investment Treaty.

In a rare repudiation of Kuwait’s legal system the ICSID recognised Bashar Kiwan’s investor status, rejecting Kuwait’s attempt to label him a criminal.  In its judgement the arbitrator found that Kuwait had committed three due process violations including the ‘people trafficking’ conviction which it described as “egregious””

“However, the Human Smuggling Conviction, in circumstances where it is undisputed that the Claimant was the object being smuggled, makes no sense and is contrary to international law principles and protections against victims of human trafficking…. Therefore, the Tribunal finds the Human Smuggling Conviction to be so egregious and absolute in its denial of justice, based as it is on a crime that the Claimant – as the object of smuggling – simply could not commit”

The tribunal also found Kuwait’s ‘defamation conviction’ against Kiwan to be a “flawed judgement” following  “major irregularities in the case”.  Likewise, it condemned an ‘arbitrary decision’ to  hold Mr. Kiwan personally liable for USD 14 million in a so-called  AWI Dividends Decision. This was part of the powerful sheikh’s abuse of power to target his former partner the tribunal pointed out:

“The Tribunal found evidence that “Sheikh Sabah weaponised insolvency (and criminal and other civil) court procedures in a concentrated and concerted campaign to put the pair’s joint investments out of the reach of the Claimant [Bachar Kiwan]. As discussed […] in relation to the AWI Dividends Decision, he further utilized the insolvency processes to ensure that certain investment value was transferred to him.”

Thanks to his connections, the Tribunal found Kuwaiti “the Prime Minister’s son was able to get an unusual level of assistance from the insolvency administrators and the first instance court in the Human Smuggling Conviction and Defamation Decision cases.” 

The arbitration court points out in the ruling that these findings of breaches against Bachar Kiwan are entirely separate to the later decision by Kuwaiti prosecutors to include him in their charges over 1MDB.

The ICSID did not take a view on whether or not it was fair to prosecute Bachar over the matter that had turned Sheikh Sabah against him, but rather said his guilt or otherwise was irrelevant to the earlier case where Kuwait had acted in violation of its treaty obligations in the way it treated the French investor.

For Bachar it is a “full vindication”, he told Sarawak Report, following several years of loss. A statement put out on his behalf included a demand for compensation to be pursued by France on their behalf. “The Kiwan family is grateful and relieved that the injustices they suffered have been recognised by the highest international authorities. The French government must now demand that the Kuwaiti government fully restore the Kiwan family’s rights and honor, and fairly compensate them. Otherwise, what happened to the Kiwan family could continue to happen to any French family living in Kuwait.”

Perhaps unsurprisingly, the Kuwaiti government has sought to obtain some justification of its own from amongst the comprehensive and extensive criticism in this ruling.

According to reports, its response and sponsored coverage has made no mention of the humbling criticism of Kuwaiti’s human rights and legal violations, focusing almost exclusively instead on the refusal of the court to award compensation on the grounds that Bachar Kiwan has yet to exhaust the country’s own legal paths for such reparations (in particular for the expropriation of his company, Al Waseet, that he says had generated $250 million).

Bachar has told Sarawak Report that he is not concerned by the lack of such an award. To the contrary he says that the ruling has at last provided the basis for him to pursue this very matter through the civil courts and Kuwait was forced to carry its own costs of defending the case to the tune of $6.6 million (several times his own).