Terror Victims at the Museum Gates: Testing the Commercial Activity Exception under the Foreign Sovereign Immunities Act

Villanova Law Review, Dec 2008

By Alicia M. Hilton, Published on 01/01/08

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Terror Victims at the Museum Gates: Testing the Commercial Activity Exception under the Foreign Sovereign Immunities Act

Only their trafficking in illicit narcotics, arms trafficking and money laundering exceeds terrorists' trade in cultural property. Terror Victims at the Museum Gates: Testing the Commercial Activity Exception under the Foreign Sovereign Immunities Act Alicia M. Hilton 0 0 Thi s Article is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. For more information , please contact Hilton: Terror Victims at the Museum Gates: Testing the Commercial Activi Article TERROR VICTIMS AT THE MUSEUM GATES: TESTING THE COMMERCIAL ACTITY EXCEPTION UNDER THE FOREIGN SOVEREIGN IMMUNITIES ACT ALICIA M. HILTON* I. INTRODUCTION IMAGINE that you are sharing a meal with friends at an outdoor cafe. Suddenly, three Hamas suicide bombers detonate improvised explosive devices packed with shrapnel and chemical poisons. Five innocent people are killed, and nearly two hundred are injured. You survive the attack, but burns cover more than forty percent of your body, and you suffer over one hundred shrapnel entry wounds. Surgeons will insert a steel plate in one of your legs, and you have permanent nerve damage in your hands, perforated eardrums, chronic infections, scarring, post-traumatic stress disorder (PTSD) and depression. Medical bills will wreck your finances. Hamas's assets are exceedingly difficult to reach in any court, but the foreign government that sponsors Hamas owns priceless artifacts on loan to American museums. Do these cultural treasures offer a remedy for your injuries? This terror victim above is not a hypothetical one. Noam Rozenman was a victim of a September 1997 Hamas terror attack in Jerusalem and is one of the nine plaintiffs in Rubin v. Islamic Republic of Iran1. Iran trained and financed the Hamas suicide bombers who detonated the explosions at * Visiting Scholar, Chicago-Kent College of Law; J.D., 1997, The University of Chicago Law School; B.A. in Sociology, 1988, The University of California at Berkeley. Prior to practicing law, the author was a fine art consultant in San Francisco art galleries and an FBI Special Agent in New York. As an FBI Special Agent, the author was a member of a foreign counterintelligence squad and also worked undercover in two long-term criminal cases, posing as a drug dealer with ties to organized crime. 1. 349 F. Supp. 2d 1108 (N.D. II1. 2004); see also Rubin v. Hamas, No. 02-0975 (RMU), 2004 U.S. Dist. LEXIS 20883, at *1-2 (D.D.C. Sept. 27, 2004) (describing claims for damages for personal injury and other torts due to injuries sustained at suicide bombing); Campuzano v. Islamic Republic of Iran, 281 F. Supp. 2d 258, 267 (D.D.C. 2003) (detailing Rozenman's injuries from bombing). After obtaining default judgment against Iran, the Rubin plaintiffs filed suit against Hamas in the United States District Court for the District of Columbia under the AntiTerrorism Act, 18 U.S.C. ยง 2333 (2008). See Rubin, 2004 U.S. Dist. LEXIS 20883, at *3 (detailing nature of suit). Hamas failed to appear or respond, and the court entered a default judgment against Hamas. See id. at *8-11 (describing outcome of suit). The court used its previous findings of fact from Campuzano and trebled damages pursuant to the Anti-Terrorism Act's provision for recovery of threefold damages. See id. at *9-11 (setting forth damages award). As of this writing, the plaintiffs have not succeeded in recovering their awarded damages from Iran. (479) [Vol. 53: p. 479 a crowded pedestrian mall.2 Americans injured by the attack brought suit in the United States against Iran, its Ministry of Information and Security and senior Iranian officials under the Foreign Sovereign Immunities Act (FSIA) .3 The Rubin plaintiffs won a default judgment against Iran for $71.5 million in compensatory damages. 4 Nevertheless, more than ten years after the attacks, the plaintiffs in that case have yet to realize any meaningful recovery. 5 Iran has minimal assets in the United States. Accordingly, the Rubin plaintiffs have identified as their only meaningful source of recovery priceless Persian artifacts on loan from Iran to American museums and other Persian artifacts held by American museums that may belong to Iran. 6 In the Rubin suit-now before a federal district court in Chicagothe plaintiffs seek to attach the Persepolis Tablets, the Chogha Mish Collection, the Herzfeld Collection at the Field Museum of Natural History and other Persian artifacts owned by Iran that are held at the University of Chicago's famed Oriental Institute. 7 If the Rubin plaintiffs succeed, they may seek to attach Iranian-owned Persian collections held at other Ameri8 can museums. 2. See Campuzano, 281 F. Supp. 2d at 262 (recounting testimony of experts Dr. Patrick Clawson, Dr. Bruce Tefft and Yigal Pressler regarding Iranian involvement (...truncated)


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Alicia M. Hilton. Terror Victims at the Museum Gates: Testing the Commercial Activity Exception under the Foreign Sovereign Immunities Act, Villanova Law Review, 2008, Volume 53, Issue 3,