A recreation of the Amber Room—where did the original go?

WHEN the tribes of ancient Israel defeated the Midianites, the victors got the losers' 675,000 sheep, 72,000 oxen, 61,000 asses and 32,000 female virgins (males and non-virgin women were slaughtered), as well as the gold and jewels. The biblical account suggests that, in that era at least, this was a standard post-conflict resolution of property questions.

These days, the accepted rules on what a conqueror can grab are different. A bid to enforce one of the biggest awards of compensation to a victim of wartime looting is now under consideration by Canada's Supreme Court. The story started when lawyers representing Kuwait Airways filed a commercial claim in an English court in 1991 against Iraq and the state-owned Iraqi Airways for seizing ten aircraft and aircraft parts during the 1990-91 Gulf war. After much wrangling, it gained a $1.2 billion judgment which it is now trying to collect in at least nine jurisdictions. The Canadian court is being asked to rule on whether a Kuwaiti airline can impound some assets in Montreal—including six aircraft and two buildings—that belong to the Iraqi state.

Although aircraft lack the resonance of the cultural treasures which have given rise to some famous disputes over looting, some of the legal arguments are similar, says Christopher Gooding, a lawyer for Kuwait Airways. The rules on respect for property during conflicts have “stabilised” after a long process that began with the Napoleonic wars, according to Wayne Sandholtz, author of a book called “Prohibiting Plunder: How Norms Change”.

Napoleon's campaigns saw such voracious plundering that his foes eventually forced France to give much of it back. The Lieber code, issued by Abraham Lincoln in 1863, set a new norm of respect for property, even in the heat of war. “Private property, unless forfeited by crimes…of the owner, can be seized only by way of military necessity,” it said, while listing individual acts of “pillage and sacking” as crimes.

The Geneva Conventions, the first of which was negotiated by European nations in 1864, and a series of meetings that began in The Hague in 1899, also set limits on the victor's right to claim spoils. And respect for cultural property was mandated by the Hague Convention, concluded in 1954: a treaty which the United States ratified in 2009 and backs diplomatically.

The convention guides judges in private suits over plunder, as well as states wrangling over property after a war. But that does not mean that it is observed, during or after war. One notorious case of wartime theft occurred in American-occupied Iraq, when mobs looted Baghdad's museum and Donald Rumsfeld, then defence secretary, was criticised for his lack of concern. But as Mr Sandholtz argues, legal historians will also recall the fact that other American officials acknowledged their duty to protect the museum, and deplored the way this duty was neglected.

As the history of the 20th century shows, evidence of plunder that meets legal standards is hard to collect in the chaos of war, and against a background of even graver horrors. Among the myriad Nazi crimes against the Jews was the creation of bogus bills of sale or forced transfers of property. Unravelling such documents is still keeping lawyers busy.

And sometimes might still equals right. Russia holds onto much Soviet-era plunder, taken from Germany and other countries, including from private citizens who were anti-Nazis. Some of that is justified as reparation for damage done by Hitler's forces, such as the seizure of the Amber Room, a chamber in a tsarist palace, whose fate is a mystery. In other cases the reason seems to be spite: Russia refuses to hand back, for example, Estonia's presidential seal and regalia, seized during the annexation in 1940.

And there will always be victims of looting who could claim but lack the resources to do so. A glaring case is Congo, whose neighbours intervened and plundered in the chaos that followed Mobutu Sese Seko's fall in 1997. Much of this was documented in UN reports. But in such places the ancient laws of war still apply.