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Stern v. Islamic Republic of Law

July 17, 2003

SHAUL STERN, INDIVIDUALLY AND AS LEGAL REPRESENTATIVE OF THE ESTATE OF LEAH STERN, JOSEPH STERN, SHIMSON STERN, YOCHEVED KUSHNER, PLAINTIFFS,
v.
THE ISLAMIC REPUBLIC OF IRAN, (AKA IRAN, THE REPUBLIC OF IRAN, REPUBLIC OF IRAN, THE GOVERNMENT OF IRAN, IRANIAN GOVERNMENT, AND IMPERIAL GOVERNMENT OF IRAN)
THE IRANIAN MINISTRY OF INFORMATION AND SECURITY, AYATOLLAH ALI HOSEINI KHAMENEI, ALI AKBAR HASHEMI-RAFSANJANI, AND ALI FALLAHIAN-KHUZESTANI, DEFENDANTS.



The opinion of the court was delivered by: Royce C. Lamberth, United States District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. BACKGROUND

This is an action for wrongful death, personal injury and related torts against the Islamic Republic of Iran, the Iranian Ministry of Information and Security, and three senior officials of the Iranian government. The decedent, Leah Stern, was a United States citizen who was killed at the age of 69 in the terrorist bombing in a market in Jerusalem, Israel on July 30, 1997. The plaintiffs, who are the children of Leah Stern, brought this action under the Foreign Sovereign Immunities Act ("FSIA") of 1976, 28 U.S.C. §§1602-1611.

The FSIA establishes federal court jurisdiction over foreign states and their officials, agents and employees in certain enumerated instances. In particular, the FSIA eliminates the sovereign immunity of foreign states and creates a federal cause of action for acts of state-sponsored terrorism "in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extra-judicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources... for such an act if such act or provision of material support is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency... ". 28 U.S.C. §1605(a)(7). The FSIA further provides that"an official, employee, or agent of a foreign state designated as a state sponsor of terrorism... shall be liable to a United States national or the national's legal representatives for personal injury or death caused by acts... for which the courts of the United States may maintain jurisdiction...". 28 U.S.C. §1605 note, Civil Liability for Acts of State Sponsored Terrorism. The Defendants, despite being properly served with process pursuant to 28 U.S.C. 1608, have failed to answer or enter an appearance in this matter, and Defendants' default was entered by the Court on February 13, 2002, pursuant to 28 U.S.C. §1608(e) and Fed.R.Civ.P. 55(a). Notwithstanding indicia of Defendants' willful default, however, this Court is compelled to make further inquiry prior to entering a judgment by default against Defendants. The FSIA requires that a default judgment against a foreign state be entered only after a plaintiff "establishes his claim or right to relief by evidence that is satisfactory to the Court." 28 U.S.C. §1608(e); see also Flatow v. The Islamic Republic of Iran, et al., 999 F. Supp. 1, 6 (1998).

This Court has engaged in a careful review of the evidence presented in this case, in light of Flatow, 999 F. Supp. 1, and the other reported cases under the antiterrorism provisions of the FSIA. See, e.g., Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13 (D.D.C. 2002); Sutherland v. Islamic Republic of Iran, 151 F. Supp. 2d 27 (D.D.C. 2001); Eisenfeld v. Islamic Republic of Iran, 172 F. Supp. 2d 1 (D.D.C. 2000); Jenco v. Islamic Republic of Iran, 154 F. Supp. 2d 27 (D.D.C. 2001); Daliberti v. Republic of Iraq, No. 96-1118, 2000 WL 684813 (D.D.C. May 23, 2000); Anderson v. The Islamic Republic of Iran, 90 F. Supp. 107 (D.D.C. 2000); Ciccippio v. The Islamic Republic of Iran, 18 F. Supp. 2d 62 (D.D.C. 1998); Alejandre v. Republic of Cuba, 996 F. Supp 1239 (S.D.Fla. 1997). Based upon the extensive evidence presented, the Court concludes that the plaintiffs have established their claim and right to relief as set forth below.

II. FINDINGS OF FACTS

The Court received testimony and evidence on the matter of defendants' liability and plaintiffs' damages on January 3, 2003.*fn1 The following findings of fact are based upon the sworn testimony of the plaintiffs' expert witnesses, Dr. Reuven Paz, Dr. Patrick Clawson, Mr. Ronni Shaked and Dr. Alan Friedman, the testimony of the plaintiffs themselves, and the voluminous exhibits entered into evidence.

Plaintiffs have"established [their] claim or right to relief by evidence that is satisfactory to the Court," as required by 28 U.S.C. § 1608(e). The Court finds the following facts to be established by "clear and convincing evidence, which would have been sufficient to establish a prima facie case in a contested proceeding." Weinstein v. Islamic Republic of Iran, 184 F.Supp.2d 13, 16 (D.D.C. 2002).

(1) Leah Stern was born on June 23,1928, and was a citizen of the United States at all relevant times, including July 30, 1997. Affidavit of Joseph Stern, sworn to on January 2, 2003 ("J. Stern Aff.,"), ¶1, Exhibit "A" thereto.

(2) Plaintiffs Joseph Stern (J. Stern Aff, ¶1), Yocheved Kushner (Affidavit of Yocheved Kushner, sworn to on January 2, 2003 ("Kushner Aff."), ¶1), Shimson Stern (Affidavit of Shimson Stern, sworn to on January 2, 2003 ("Shimson Stern Aff."), ¶1) and Shaul Stern (Affidavit of Shaul Stern, sworn to on January 2, 2003 ("Shaul Stern Aff."), ¶1) are U.S. citizens and the children of decedent Leah Stern.

(3) On Friday, July 30, 1997, two suicide bombers belonging to the Hamas terrorist organization and acting on behalf of Hamas entered the Mahane Yehuda outdoor produce market in downtown Jerusalem, which was crowded with Sabbath-eve shoppers. Affidavit of Ronni Shaked, sworn to on January 1, 2003 ("Shaked Aff."), ¶26. Each of the bombers carried a briefcase packed with a powerful explosive charge. Shaked Aff., ¶26. At a pre-arranged signal, the bombers triggered their explosives. Shaked Aff., ¶26. The blasts ripped through the crowded market, killing 15 shoppers, including decedent Leah Stern, and wounding another 168 (hereinafter "the bombing attack"). Shaked Aff., ¶26. In a press release, Hamas claimed responsibility for the bombing attack. Shaked Aff., ¶26.

(4) As a result of the explosion, Leah Stern suffered horrendous injuries. The explosion caused Leah Stern severe burns, and much of the skin on her face was ripped off by the blast. Leah Stern suffered multiple and diffuse lacerations over the facial area, thorax, abdomen and limbs. Several pieces of shrapnel, specifically nails, lodged in her chin, right breast, right arm, both knees and left thigh. Leah Stern also suffered a gaping abdominal wound which exposed her intestines. Her left leg was covered with burns and lacerations from the explosion, and bones in the lower leg were broken. Leah Stern's right leg was partially severed at the knee, and shrapnel lodged in the remaining portion of her leg. Affidavit of Dr. Alan Friedman, sworn to December 31, 2002 ("Friedman Aff."), ¶¶10-17, Exhibit "A" thereto.

(5) Leah Stern expired from her wounds on the scene on July 30, 1997. Id., ¶¶18-20.

(6) Dr. Alan Friedman, an expert in trauma medicine experienced in the treatment of bomb blast victims, testified on the basis of the post-mortem report prepared by pathologists at the L. Greenberg Institute of Forensic Medicine in Tel Aviv that death was not instantaneous for Leah Stern, and that to a reasonable degree of medical certainty, Leah Stern suffered at least several minutes of extreme pain and suffering from the time of the blast until she succumbed to her injuries. Id.

(7) Plaintiffs were informed of the attack and of the death of their mother. J. Stern Aff., ¶7; Kushner Aff., ¶7; Shimson Stern Aff., ¶¶10-13; Shaul Stern Aff., ¶10.

(8) The testimony of plaintiffs, Leah Stern's children, each compellingly demonstrates how from the day of the bombing onward, the lives they had previously lead had been irrevocably shattered. Indeed, the continuing emotional impact of the bombing on Leah Stern's children is clearly evident in the substance of their testimony.

(9) It is clear to the Court that the plaintiffs, children of the decedent, have all suffered great emotional anguish, loss, misery and distress, which has continued from the date of the terrorist attack through today. Each of the children had a close relationship with their mother, who, it is evident from the testimony, made each child feel like his or her relationship was particularly special and close. Although each plaintiff testified about his or her attempts to cope with the loss of their parent, none have been able to fully heal nor cope with the loss, particularly in light of her cruel, violent, agonizing and senseless death.

(10) Israeli police eventually apprehended and charged two men, Muaid Said Bilal (hereinafter "Bilal") and Omar Abdel Rahman al-Zaban (hereinafter "Zaban") with participating in the Mahane Yehuda bombing attack on July 30, 1997. Shaked Aff., ¶27. Affidavit of Dr. Reuven Paz, sworn to on December 29, 2002 ("Paz Aff."), ¶¶54-67. Both Bilal and Zaban were convicted by an Israeli court of the murder of Leah Stern and the other victims of the bombing attack, and of membership in and performing services for Hamas. Shaked Aff., ¶27; Paz Aff., ¶¶54-67. Bilal and Zaban, and other members of their Hamas cell who were apprehended by Israel, provided Israeli police with a detailed account of the planning, funding and execution of the bombing attack by Hamas. Id.; Shaked Aff., ¶28.

(11) The decision to carry out the bombing attack was taken and approved by the Hamas senior command, which is the highest decision-making body in Hamas. Paz Aff., ¶¶59-60. The Hamas senior command, which was based at that time in Jordan, assigned the task of planning and executing the bombing attack to senior Hamas military commander Mahmoud Abu Hanoud. Paz Aff., ¶¶59-60; Shaked Aff., ¶¶29-31.

(12) Mahmoud Abu Hanoud had been active in Hamas since the early 1990s, and was among some 400 Hamas operatives expelled by Israel to Lebanon in 1992. Paz Aff., ¶¶38-39. While in Lebanon, Abu Hanoud received military training from Iranian Revolutionary Guards and from the Iranian proxy group Hizbollah in the use of munitions, explosives, firearms and other terrorist techniques. Id. Upon returning to the West Bank, Abu Hanoud became a senior leader in Hamas and put to use the military and terrorist training he had acquired from Iranian and Iranianproxy forces in Lebanon, planning and executing numerous sophisticated bombing attacks, including the July 30, 1997 bombing.*fn2 Paz Aff., ¶¶38-39; Shaked Aff., ¶¶26-35.

(13) The Hamas terrorist organization was established by Islamic militants in December 1987. Paz Aff., ¶13. Hamas views Muslims as an oppressed minority which must confront a global conspiracy against Islam. Israel and the United States are regarded, in the view of Hamas, as the greatest enemies of Islam. Paz Aff., ¶¶19 and 26.

(14) Hamas opposes a peaceful resolution of the Middle East conflict, and the charter of Hamas, first published in August 1988, states that, "There is no solution to the Palestinian problem except by Jihad." Until at least 1997, Hamas had ruled out any possibility of peace between the Palestinians and Israelis.*fn3 Paz Aff., ¶17, Exhibit "B" thereto.

(15) Until 1992, Hamas was involved in sporadic attacks against Israeli civilians, mainly using primitive weapons such as knives and Molotov cocktails, but was not organized as an effective terrorist organization because its members had not yet received extensive systematic training in munitions, weapons and techniques of conspiracy and insurgency, and did not have adequate foreign financial support. Shaked Aff., ¶¶23, 37; Paz Aff., ¶20.

(16) Hamas began to carry out suicide bombings in Israel in April 1994, soon after Hamas leaders and operatives began receiving training and support from regular and proxy Iranian forces in Lebanon and Iran. Shaked Aff., ¶¶14, 22; Paz Aff., ¶21.

(17) In the early 1980s, The Islamic Republic of Iran, also known as "The Republic of Iran", "Republic of Iran", "The Government of Iran", "Iranian Government", "Imperial Government of Iran", and "Iran" ("Iran"), Affidavit of Dr. Patrick Clawson, sworn to on December 31, 2002 ("Clawson Aff."), ¶36, decided to export its Islamic revolution to other countries by providing material support to militant Islamic organizations around the globe. Paz Aff., ¶22.

(18) Pursuant to its policy of supporting militant Islamic groups, Iran sought out and developed a close relationship with Hamas, and Iran and Hamas eventually entered into a mutually beneficial operational alliance. Paz Aff., ¶¶22-24. The joint goal of the Iran-Hamas alliance is Islamic revolution through jihad, or violent and unrelenting struggle against Israel and the West. Paz Aff., ¶24.

(19) Iran was interested in transforming Hamas into a powerful and deadly terrorist organization for several reasons. Shaked Aff., ¶23. On the ideological plane Iran supports the use of terrorist violence against Jewish and Israeli targets, and by training and funding Hamas to carry out such attacks Iran achieved what it considers an important goal. Shaked Aff., ¶24; Paz Aff., ¶24. Additionally, Iran sought, and still seeks, to strengthen the influence of Islamic groups within Palestinian society. Shaked Aff., ¶24; Paz Aff., ¶¶22-24. By bolstering Hamas, and turning it into a deadly and effective leader in the fight against Israel, Iran boosted popular support for the Islamic movement among Palestinians. Shaked Aff., ¶24; Paz Aff., ¶¶22-29. Likewise, in the political sphere, Iran was and is interested in using Hamas terrorist attacks to disrupt peace negotiations between Israel and the Arabs. Paz Aff., 22-29; Shaked Aff., ¶24. Accordingly, Iran expended great efforts to initiate a financial and operational alliance with Hamas. Paz Aff., ¶¶22-29.

(20) Hamas shares these Iranian policy goals and was willing to help Iran achieve them, in return for weapons, financing, and military training to conduct and expand its armed struggle against Israel. Shaked Aff., ¶25; Paz Aff., ¶¶22-23.

(21) Relations between Iran and Hamas were formalized in 1988, when Iran agreed to Hamas' request to send a delegation to Iran and to establish an official representation in that county. Since that time Hamas has stationed an "ambassador" in Iran. Paz Aff., 32. Iranian-trained Hamas members also serve as liaison officers between Iran and Hamas. Id. Hamas military leader Musa Abu Marzook and Hamas leader Sheik Yassin have also traveled to Iran to coordinate relations. Id.

(22) During approximately the past decade, Iran has given Hamas massive financial support and provided professional terrorist training to hundreds of Hamas operatives. Shaked Aff., ¶¶13-19; Paz Aff., generally.

(23) Iran provides terrorist training and economic assistance to Hamas through its Ministry of Information and Security ("MOIS"). Clawson Aff., ¶32. The MOIS has approximately 30,000 employees and a budget of between $50 million and $100 million.*fn4 Clawson Aff., ¶33. The MOIS provides professional military training for terrorist operations to Hamas, and the funds provided by Iran to Hamas come almost entirely from the MOIS's budget. Paz Aff., ¶31. The MOIS is also responsible for liaising with Hamas and coordinating relations between Iran and Hamas. Paz Aff., ¶32.

(24) For the past decade, Iran has systematically provided military training to hundreds of Hamas terrorists in training camps located in Iran and in Lebanon. Paz Aff., ¶33. The transformation of Hamas into an effective, competent and deadly terrorist organization started in the early 1990's, when Hamas operatives began to receive Iranian military training. Shaked Aff., ¶14.; Paz Aff., ¶34.

(25) Iran operates a large military training camp near Teheran, called "Al-Quds," at which Hamas terrorists are trained. Paz Aff., ¶34; Shaked Aff., ¶22. Training of Hamas operatives in Iran began in the early 1990s. Paz Aff., ¶34; Shaked Aff., ¶22, Exhibits "D" and "E". In 1994 a group of nineteen Hamas members spent three and a half months in intensive military exercises at the Al-Quds camp. Paz Aff., ¶36 thereto. Since that time, large numbers of Hamas operatives have been sent to Iran from the West Bank and Gaza Strip to train at the Al-Quds camp. Paz Aff., ¶34.

(26) At the Al-Quds camp, Hamas operatives are trained in weapons use, manufacturing explosives and bombs, carrying out assassinations, collection and use of intelligence, clandestine operations and terrorist tactics, shooting from moving vehicles and motorcycles, parachuting and diving. Paz Aff., ¶¶35-36. The training at Al-Quds is conducted by the MOIS Revolutionary Guards. Paz Aff., ¶35. One group of Hamas operatives spent several years training in Iran, and underwent officers course in the Iranian army college. Paz Aff., ¶34.

(27) Iran also provides terrorist training to members of Hamas in camps operated by Iran and the Hizbollah terrorist group in Lebanon. Paz Aff., ¶37. Hizbollah is an Iranian proxy organization, controlled, funded and operated by Iran.*fn5 Id. Training is provided to Hamas operatives in Lebanon both by military instructors belonging to Iranian ...


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