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KERR v. ISLAMIC REPUBLIC OF IRAN

February 11, 2003

ANN Z. KERR, ET AL., PLAINTIFFS
V.
THE ISLAMIC REPUBLIC OF IRAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Thomas Penfield Jackson, District Judge

DECISION & ORDER

Plaintiffs in this wrongful death case are the widow of the decedent, Malcolm H. Kerr, the children of Malcolm and Ann Kerr, his surviving sister, and the estates of Malcolm Kerr and a deceased sister.*fn1 Defendants are the Islamic Republic of Iran ("Iran") and the Ministry of Information and Security ("MOIS") of the government of Iran. The cause of action upon which suit is brought is the murder of Malcolm Kerr in Beirut, Lebanon, in January, 1984, allegedly committed by defendants' agents as an act of terrorism in furtherance of defendants' political objectives.

Subject matter jurisdiction is conferred upon this Court by the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1330(b) and 1605(a)(7). Defendants have been properly served with process pursuant to 28 U.S.C. § 1608(a)(4), and have failed to answer or otherwise respond to the complaint within the time allotted or otherwise. The Clerk of Court has entered a default, and the case has, as others have done, therefore proceeded ex parte. Upon the evidence presented to the Court December 17-19, 2002, and the facts found therefrom as set forth below pursuant to Fed.R.Civ.P. 52(a), for the reasons hereinafter set forth the Court concludes that judgment will be given for the plaintiffs.*fn2

I.

Malcolm H. Kerr, born in Beirut in 1931 of American parents (and thus a U.S. citizen), was appointed President of the American University of Beirut ("AUB") by its Board of Trustees in March of 1982.*fn3 He was at the time 51 years of age, and, in the years since his graduation from Princeton in 1953, had become a world renowned scholar of Arabic and Middle Eastern politics and history, for most of his career as a member of the faculty of the University of California Los Angeles ("UCLA"). Among the many attributes commending him to the AUB trustees as its President, Dr. Kerr had lived in Beirut intermittently throughout his life, had previously both studied and taught at AUB, and spoke fluent Arabic.

Malcolm Kerr and his wife, Ann, also a U.S. citizen, met at AUB where both were students in 1954, and were married in 1956 in the U.S. Dr. Kerr received his Ph.D. from Johns Hopkins in 1958 and promptly returned to AUB as a member of the faculty.*fn4 After post-doctoral studies at Oxford University in 1961-62, the Kerrs came home to the U.S. and Malcolm Kerr began a 20-year academic career at UCLA, ultimately serving as chairman of its Department of Political Science.

The Beirut to which the Kerrs returned to begin Malcolm Kerr's tenure as President of AUB in the summer of 1982, however, was vastly different from the tranquil city they recalled from earlier years there. Lebanon's civil war had begun in 1975, and by 1982 nearly a score of factions, secular as well as sectarian, were actively engaged in armed conflict with one another vying for political control of the country. Two months prior to Dr. Kerr's arrival on campus the Israeli army had invaded Lebanon in pursuit of Palestinian militia who had fled to Lebanon, adding to the carnage. And perhaps most daunting (although its malevolence was not yet fully manifest) the Iranian government had surreptitiously adopted a policy of employing the indigenous Shi'ite population to commit acts of terrorism against Westerners in Beirut in an effort to export the tenets of its own Islamic fundamentalist revolution to Lebanon.*fn5

During Dr. Kerr's first months at AUB acts of terrorism became nearly as commonplace in Beirut as the pervasive conventional combat between factions. In April 1983 the United States Embassy in West Beirut was demolished by a suicide bomber with a truck bomb. The following October two military barracks occupied by U.S. Marines and French troops were similarly destroyed, with many lives lost.*fn6

The AUB campus remained an enclave of serenity, however, until the morning of January 18, 1984, when Dr. Kerr was assassinated by gunshot wounds to the back of his head as he approached his office on the third floor of AUB's College Hall. He died instantly. The assailants, glimpsed briefly by witnesses as they fled, were described as two young men. The killers were never identified or apprehended, but although responsibility for Dr. Kerr's murder might theoretically have been ascribed to any of the multitude of factions then battling for control of the city, according to the testimony of former U.S. Ambassador Robert Oakley, and U.S. Ambassador to Lebanon at the time, Reginald Bartholomew, U.S. intelligence agencies quickly identified the fundamentalist Islamic Shi'ite organization, Hizbollah, also sometimes known as Islamic Jihad, as the perpetrator, acting at the instigation, and with the logistical and financial support, of the Islamic Republic of Iran and MOIS.*fn7

As this Court has found on many prior occasions, Hizbollah's militant operatives actually committed terrorist acts in Lebanon in the 1980's — including Dr. Kerr's murder — at the bidding of its Iranian controllers in MOIS. Originally simply a component of the Lebanese Shi'a community, Hizbollah evolved from a militia known as Amal, and was developed by MOIS as an instrument of violence, the ultimate objective being to establish Lebanon as a fundamentalist Islamic state from which all Western influence — particularly American — had been expunged. To that end Iran enlisted and trained Hizbollah recruits, financed their operations, provided their weapons and other logistical support, and gave them sanctuary as needed to enable its agents to evade capture.

This Court has repeatedly found Iran liable for terrorist acts committed by Hizbollah. See. e.g., Stethem v. Islamic Republic of Iran, 201 F. Supp.2d 78 (D.D.C. 2002); Wagner v. Islamic Republic of Iran, 172 F. Supp.2d 128 (D.D.C. 2001); Anderson v. Islamic Republic of Iran, 90 F. Supp.2d 107 (D.D.C. 2000); Cicippio v. Islamic Republic of Iran, 18 F. Supp.2d 62 (D.D.C. 1998). The Court takes judicial notice of the record in those cases, and the evidentiary record in this case as well amply demonstrates that Hizbollah was directly responsible for Malcolm Kerr's murder. Not only did "Islamic Jihad" publicly take credit for it at the time, Dr. Kerr's assassination fits into a pattern of terrorist attacks perpetrated against prominent Americans by Hizbollah starting with the kidnapping of AUB's acting president, David Dodge, in 1983.*fn8 Following Dr. Kerr's assassination, save for suicide bombings and the hijacking murder on TWA Flight No. 847, Hizbollah reverted primarily to multiple hostage takings as its preferred terrorist tactic. From the hostage release negotiations, it became apparent that Hizbollah would seize and hold the hostages, but the duration of their captivity, however, was then dictated exclusively by Iran.

II.

Foreign states are immune from suit in the United States courts unless one of the exceptions to the FSIA, 28 U.S.C. § 1601-1611 applies. The so-called "Flatow Amendment" to the FSIA in 1996 authorized suits against foreign states that sponsor terrorism for:

personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources (as defined in section 2339A of title 18) for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such ...

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