Sovereign immunity
| Pages | 50-55 |
50 Volume 22, July–September 2016 international law update
© 2016 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com
SOVEREIGN IMMUNITY
After District Court enters $71.5
million default judgment against Hamas
organization that allegedly carried
out terrorist attack in Jerusalem in
1997 that injured eight U.S. citizens,
Plaintiffs attempt to enforce judgment
by seeking Persian artifacts held in
museums
In September 1997, eight U.S. citizens were
injured when three Hamas suicide bombers blew
themselves up on a crowded pedestrian mall in
Jerusalem. e attack was carried out with material
support from Iran. In 2003, the victims and their
close family members led a civil action against
the Islamic Republic of Iran in federal court in
the District of Columbia for its role in providing
material support to the attackers. e suit was
brought under the terrorism exception to the
Foreign Sovereign Immunities Act (“FSIA”), then
codied at 28 U.S.C. § 1605(a)(7). A district judge
entered a $71.5 million default judgment.
Because Iran did not pay, the plaintis
commenced enforcement actions around the
country in an eort to collect. For more than a
decade of unsuccessful litigation they were trying
to attach and execute on Iranian assets in order
to satisfy the judgment. e plaintis registered
the judgment in the Northern District of Illinois,
initiating attachment proceedings for the purpose
of executing on four collections of ancient Persian
artifacts: the Persepolis Collection, the Chogha Mish
Collection, and the Oriental Institute Collection,
all in the possession of the University of Chicago;
and the Herzfeld Collection, split between the
University and Chicago’s Field Museum of Natural
History (“the Museums”).
e plaintis identied three possible ways
to reach the artifacts. ey invoked 28 U.S.C. §
1610(a), the “commercial activity” exception to
execution immunity of the FSIA; and section
201 of the Terrorism Risk Insurance Act of 2002
(“TRIA”), Pub. L. No. 107-297, 116 Stat. 2322
(codied at 28 U.S.C. § 1610 note), which permits
holders of terrorism-related judgments to execute
on assets of a state sponsor of terrorism under the
terrorism exception to jurisdictional sovereign
immunity. Iran and the Museums entered a
motion for summary judgment. In their response
to the summary-judgment motion the plaintis
argued that 28 U.S.C. § 1610 (g) of the FSIA is
an independent exception to execution immunity
available to victims of state-sponsored terrorism.
e judge rejected these arguments, entering
judgment for Iran and the Museums. e plaintis
appealed.
e United States Court of Appeals for the
Seventh Circuit arms district court’s decision.
e Court approaches to solve these issues by
identifying rst which of the four collections is
subject to attachment and execution. “[…] Two
basic criteria apply: (1) the artifacts must be owned
by Iran, and (2) the artifacts must be within the
territorial jurisdiction of the district court. See
Republic of Argentina v. NML Capital, Ltd., 134
S. Ct. 2250, 2257 (2014) (‘Our courts generally
lack authority in the rst place to execute against
property in other countries. . . .’).[…]” Applying
these criteria the Court concluded that only the
Persepolis Collection was owned by Iran and in the
University’s physical possession. e three other
collections were outside the reach of this proceeding
because of their location at that time or because of
the absence of Iranian ownership.
e Court then looks at the application of the
foreign sovereign immunity doctrine as dened by
FSIA.
“In 1976 Congress […] enacted the FSIA,
which ‘largely codies the so-called `restrictive’
theory of foreign sovereign immunity rst endorsed
by the State Department in 1952.” Republic of
Argentina v. Weltover, Inc., 504 U.S. 607, 612
(1992). e Act establishes a ‘comprehensive set
of legal standards governing claims of immunity
in every civil action against a foreign state.’
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