WASHINGTON (CN) – The Supreme Court heard oral arguments on Monday on whether troves of Iranian artifacts at American art museums can be used to satisfy a $71.5 million judgment connected to a 1997 Hamas suicide bombing.
Jenny Rubin, one of eight U.S. citizens who was injured in the bombing of a Jerusalem pedestrian mall, initiated the attachment proceedings after Iran show no sign of making good on the substantial judgment against it.
The University of Chicago has one set of the artifacts at issue known as the Persepolis Collection, a group of roughly 30,000 clay tablets containing some of the oldest writing in the world. Another of the sets, known as the Herzfeld Collection, was purchased by the Field Museum in 1945.
This collection includes a cache of 1,200 prehistoric artifacts unearthed in Persia during the early 1900s. Rubin has also sought to attach a collection of clay seal impressions from the ancient Chogha Mish settlement, which the Oriental Institute acquired in the 1960s.
The survivors took their case to the Supreme Court last year after losing their appeal before the Seventh Circuit.
Critical to the case is whether Iran used the artifacts for commercial activity, as required by the terrorism exception, section 1602 of the Foreign Sovereign Immunities Act.
Rubin’s attorney Asher Perlin lamented how long the case has dragged on.
“You know, [Iran is not like] Argentina, where they can’t afford to pay the judgment,” the Hollywood, Florida-based attorney said. “They just don’t. And they don’t care what the American courts say. And Congress finally said enough is enough … we want these judgments enforced. And it’s not about antiquities.”
The museums maintain, however, that they should be considered the artifacts’ rightful owners. As an entity separate from Iran, the museums insist Rubin can’t seize anything.
Perlin called it “preposterous” that Congress would be concerned with extending protections to noncommercial assets merely to avoid “affronting the dignity of a state sponsor of terrorism.”
The FSIA was meant to include everything except diplomatic, military and certain central bank assets, he argued.
“So, once Congress is excluding specifically that narrow class of quintessentially sovereign property, diplomatic property, you know that its extending – it covers everything else,” Perlin said. “There’s no reason, if it didn’t … cover noncommercial use of property … there’s no reason to specifically mention diplomatic property because, obviously that’s going to be included in noncommercial.”
David Strauss, house counsel for the University of Chicago, said FSIA’s language was “explicit.”
“That distinction between commercial and noncommercial property is stated explicitly in FSIA itself in Section 1602,” he argued. “It’s central to the U.N. Convention on the Immunities of States.”
The attorney noted that the International Court of Justice reached a similar conclusion, barring seizure of a cultural center because it was considered noncommercial.
“And that case actually involved the victims of Nazi crimes. So this is extremely deeply rooted principle,” Strauss said. “Now, that’s not to say Congress would not abrogate it. Of course Congress could.”
Strauss also pointed to the Supreme Court’s ruling in the case Helmerich v. Venezuela. Decided just last term, Helmerich involved the seizure of oil rigs by a foreign entity.
Zachary Tripp, assistant to the U.S. solicitor general, told the justice that the case boils down to common sense.
“I mean, obviously, we have a very strong interest in combating state sponsored terrorism, “ Zipp said. “We also have concerns in these cases about reciprocal treatment of our own property abroad. And I think, particularly in light of these concerns which are quite weighty, if Congress was really going to take the step of allowing execution against property of cultural and historic significance to another country and its people, that would be a big deal and not the kind of thing you would expect to see buried in a conforming amendment without remark.”
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