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Iranian Artifacts Can’t Pay for Hamas Bombing

CHICAGO (CN) - Americans injured in a 1997 Hamas suicide bombing, owed $71.5 million by Iran, cannot seize Iranian artifacts from the University of Chicago to satisfy the judgment, the Seventh Circuit ruled.

Three suicide bombers of the Palestinian fundamentalist Sunni-Islamic group Hamas blew themselves up on a crowded pedestrian mall in Jerusalem on Sept. 4, 1997.

Eight severely injured U.S. citizens and their families, led by Jenny Rubin, sued Iran, the attack-sponsor, in D.C. Federal Court in 2003, under the terrorism exception to the Foreign Sovereign Immunities Act, or FSIA.

Though the plaintiffs won a $71.5 million default judgment that year, Iran did not pay.

The victims then registered the judgment in Chicago Federal Court, initiating attachment proceedings to execute on four collections of Iranian artifacts then held by the University of Chicago's Oriental Institute and the city's Field Museum of Natural History.

The artifacts include about 30,000 clay tablets of some of the oldest writings in the world, which Iran loaned to the Institute in 1937, known as the Persepolis Collection.

Also at issue are Dr. Ernst Herzfeld's collection of about 1,200 prehistoric artifacts found in Persia in the early 1900s, which the Field Museum bought in 1945, as well as clay seal impressions from the ancient Chogha Mish settlement, which the Institute acquired in the 1960s.

A federal judge awarded Iran and the museums summary judgment, finding that Iran had not used the artifacts for commercial activity, as required by the terrorism exception, section 1602 of the FSIA.

The bombing victims appealed, arguing that a third party's commercial use of the property — i.e. the university's study of the Persepolis Collection — triggers section 1610 of the FSIA.

But the Seventh Circuit affirmed the lower court's ruling Tuesday, agreeing with the defendants and amicus curiae the United States that the law says the foreign state itself must use its property for a commercial activity to qualify under section 1610.

"While the passive-voice phrasing in Sec. 1610(a) introduces some ambiguity about whose commercial use matters, Sec. 1602's declaration of purpose clarifies that foreign states may lose execution immunity only by virtue of their own commercial use of their property in the United States, not a third party's," Judge Diane Sykes wrote for the three-judge panel. (Emphasis in original.)

The court tossed aside the plaintiffs' claim that the declaration is irrelevant history.

"Sec. 1602 is legislation, not legislative history," Sykes wrote. "It was written, debated, and enacted by Congress and signed into law by the president—in the same manner and at the same time as Sec. 1610." (Emphasis in original.)

The activity need not be carried on by the foreign state, the ruling states.

"Seizing a foreign state's property is a serious affront to its sovereignty—much more so than taking jurisdiction in a lawsuit," Sykes wrote. "Correspondingly, judicial seizure of a foreign state's property carries potentially far-reaching implications for American property abroad."

The judge added, "The plaintiffs' interpretation of Sec. 1610(a) turns this important principle on its head. A third party's commercial use of a foreign state's property, which cannot establish jurisdiction over the foreign state, would suffice to strip the foreign state's property of its execution immunity. That cannot be right."

But Judge David Hamilton dissented from the majority's opinion.

"In interpreting an ambiguous statutory text, we can and should draw on statutory purpose and legislative history," Hamilton wrote. "We must choose one side or the other. The balance here should weigh in favor of the reading that favors the victims. We should not attribute to Congress an intent to be so solicitous of state sponsors of terrorism, who are also undeserving beneficiaries of the unusual steps taken by the Rubin panel."

The university's lead attorney, Matt Allison with Baker & McKenzie in Chicago, said the university and the Institute are "pleased" with the ruling.

"They deplore the acts of terrorism that led to this proceeding, but the artifacts at issue here are immune from attachment under U.S. law," Allison wrote. "The Oriental Institute looks forward to its continuing research on these important historical pieces."

One of the Field Museum's attorneys, William Ferranti in Portland, Ore., said they are "very pleased that the court recognized not only the shortcomings in plaintiffs' theories of attachment, but also that the antiquities in the Field Museum's Herzfeld Collection are owned by the museum—not Iran."

The plaintiffs' principal counsel, Asher Perlin with Florida Professional Law Group in Hollywood, Fla., said they are "disappointed" with the ruling and are "considering our options regarding further review."

Another of the plaintiffs' attorneys, James Murphy with Adler Murphy & McQuillen in Chicago, declined to comment on the ruling.

One of Iran's attorneys, Tim Corcoran with Berliner Corcoran & Rowe in D.C., also declined to comment.

The U.S. Attorney's Office did not return a request for comment Thursday.

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