Justices Rule Bombing Victims Can’t Seize Iranian Artifacts

(CN) – The U.S. Supreme Court ruled unanimously Wednesday that Americans injured in a 1997 Hamas suicide bombing cannot seize clay tablets and other Iranian artifacts from the University of Chicago to satisfy a $71 million judgment.

Photo courtesy of the University of Chicago.

Resolving a circuit split, the justices found that U.S. victims of state-sponsored terrorism do not have a freestanding right to seize property to collect on judgments against foreign countries.

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

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

The FSIA grants foreign governments immunity from lawsuits in U.S. courts, but includes an exception for countries like Iran that have been designated as state sponsors of terrorism.

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 upheld the lower court’s ruling in 2016, 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.

Rubin and her co-plaintiffs appealed to the U.S. Supreme Court, citing the Ninth Circuit’s ruling in Bennett v. Islamic Republic of Iran, which held that “creative arguments” by Iran’s central bank cannot save it from paying nearly $17.6 million to the victims of terrorist attacks in Israel, Saudi Arabia and elsewhere. The San Francisco-based appeals court rejected Bank Melli’s claims that, as Iran’s national bank, it was immune from the action because it is an instrumentality rather than an alter ego.

However, on Wednesday, the Supreme Court affirmed the Seventh Circuit in an 8-0 ruling against Rubin and the other bombing victims. Justice Elena Kagan did not take part in the decision.

In a 16-page opinion penned by Justice Sonia Sotomayor, the court ruled that section 1610 of the FSIA does not provide a right for those holding judgments against foreign countries to seize property, unless immunity for that property has been rescinded.

“Section 1610(g) serves to identify property that will be available for attachment and execution in satisfaction of a §1605A judgment, but it does not in itself divest property of immunity. Rather, the provision’s language ‘as provided in this section’ shows that §1610(g) operates only when the property at issue is exempt from immunity as provided elsewhere in §1610,” Sotomayor wrote. “Petitioners cannot invoke §1610(g) to attach and execute against the antiquities at issue here, which petitioners have not estab­lished are exempt from immunity under any other provi­sion in §1610.”

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