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
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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)