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Ben-Rafael v. Islamic Republic of Iran

February 25, 2008

ELISA NILI CIRILO PERES BEN-RAFAEL, ET AL., PLAINTIFFS,
v.
ISLAMIC REPUBLIC OF IRAN, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge

MEMORANDUM OPINION

On March 17, 1992,*fn1 a suicide bomber drove a truck filled with explosives into the Israeli embassy in Buenos Aires, Argentina, killing twenty-nine people and wounding over two hundred. Hezbollah*fn2 publicly accepted responsibility for the bombing. This action has been brought by the estate of one of the bombing's victims, David Ben-Rafael, and his immediate family members. Plaintiffs contend that Hezbollah's attack depended on material support from defendants the Islamic Republic of Iran ("Iran") and the Ministry of Information and Security of Iran ("MOIS"). Plaintiffs allege that this material support constituted a waiver of defendants' sovereign immunity under the "state sponsor of terrorism" exception to the Foreign Sovereign Immunity Act of 1976 (the "FSIA"), 28 U.S.C. § 1605(a)(7). Plaintiffs further argue that defendants, having been stripped of immunity, are vicariously liable for intentional infliction of emotional distress and wrongful death.

Plaintiffs initiated this action on April 21, 2006, and effected service on April 22, 2007, in accordance with 28 U.S.C. § 1608(a)(4). Defendants failed to respond, and the Clerk of Court entered a default judgment on July 6, 2007. The Court is nevertheless obliged to inquire further to determine if plaintiffs have established their claims "by evidence satisfactory to the court." 28 U.S.C. § 1608(e). In evaluating plaintiffs' claims, the Court "may accept [their] uncontroverted evidence as true and may rely on sworn affidavits." Oveissi v. Islamic Republic of Iran, 498 F.Supp. 2d 268, 272 (D.D.C. 2007) (internal citations omitted). The Court is not required to hold an evidentiary hearing. See, e.g., Bodoff v. Islamic Republic of Iran, 424 F.Supp. 2d 74, 78 (D.D.C. 2006) (entering a default judgment based upon plaintiffs' submissions without an evidentiary hearing). And, it "may take judicial notice of related proceedings and records in cases before the same court." Oveissi, 498 F.Supp. 2d at 272 (internal citations omitted). Having considered the extensive record herein, as well as the findings of others in this district in related cases involving these same defendants, this Court makes the following findings of fact and conclusions of law.

FINDINGS OF FACT

I. Historical Background

The 1979 revolution brought a theocratic ideology to Iran, and a chief goal of the new government was to establish itself as the "global leader of radical Islam." (Clawson Aff. ¶ 16.)*fn3

One of the ways that Iran has pursued this goal is by opposing Israel, "whose very existence Iranian leaders found abhorrent as an insult to Islam." (Id.) In this vein, Iran reached out to like-minded members of Lebanon's Shiite community, who have long-standing historical and cultural ties to Iran, and encouraged them to form what became known as Hezbollah. (Id. ¶¶ 17, 19.) Iran played a "pre-eminent role in the creation of Hezbollah" by providing "political, material, and financial assistance," including the funding of Hezbollah since the mid-1980's, in annual amounts ranging from $25 million to $100 million.*fn4 (Id. ¶ 19.)

Iran exercised control over Hezbollah through its intelligence agency -- MOIS. (Id. ¶¶ 28-29.) MOIS has 30,000 employees, making it the largest intelligence agency in the Middle East. (Id. ¶ 24.) MOIS has served as a conduit between Iran and Hezbollah since the 1980's by providing funds, technical expertise, and instructions from Iran to Hezbollah. (Id. ¶¶ 28-29.) In return, Hezbollah conducted terrorist acts around the world on Iran's behalf. (Id.)

The symbiotic relationship between Iran and Hezbollah has been thoroughly documented by several judges in this district. For instance, in Dammarell v. Islamic Republic of Iran ("Dammarell I"), 281 F.Supp. 2d 105 (D.D.C. 2003), Judge Bates examined claims against these same defendants stemming from the April 18, 1983 bombing of the U.S. embassy in Beirut, Lebanon. Also relying on testimony by Dr. Clawson, the Court found that Iran provided Hezbollah with "military arms, training, and other supplies." Id. at 110. The Court noted that "[Hezbollah] accomplished its terrorist acts not just with the support of the Iranian government generally, but with the specific assistance of MOIS." Id. In particular, Hezbollah was dependent upon Iran for financial support and political guidance at the time of this bombing. See id. at 111. In fact, "Iran was quite directly ordering what targets to do, what not to do." Id. The Court therefore ruled that the evidence "leaves no doubt that Iran and MOIS are responsible for the bombing." Id. at 192.

Just a few months after the 1983 bombing of the U.S. embassy in Beirut, Hezbollah also attacked a military installation in Beirut, killing 241 American serviceman. In Peterson I, Judge Lamberth found that, during the period of the attack, Hezbollah was "essentially a tool of Iran." Id. at 51. Hezbollah had no other major means of support. See id. According to a Defense Department consultant, who testified in March 2003, Iran "invented, created, funded, trained, and runs to this day Hezbollah, which is arguably the world's most dangerous terrorist organization." Id. n.8 (emphasis added) Concluding that defendants were responsible for the attack, the Court found:

[I]t is beyond question that Hezbollah and its agents received massive material and technical support from the Iranian government. . . . [I]t is highly unlikely that this attack could have resulted in such loss of life without the assistance of regular military forces, such as those of Iran.

Id. at 58.

Less than four months after the attack on the military barracks, a group called "Islamic Jihad" claimed responsibility for an assassination in Paris. See Oveissi, 498 F.Supp. 2d at 274. An expert testified that Hezbollah uses the alias "Islamic Jihad" when committing terrorist acts outside the Middle East. See id. at 273; see also Dammarell v. Islamic Republic of Iran ("Dammarell III"), 404 F.Supp. 2d 261, 271-72 (D.D.C. 2005) ("The terrorist group Islamic Jihad has been known by various names . . . [but] perhaps most commonly [as] Hizbollah.") Again, Judge Lamberth concluded that the Paris assassins were "controlled by defendant Iran through defendant MOIS." Oveissi, 498 F.Supp. 2d. at 274.

While these attacks occurred in the 1980's, defendants have also been found to be responsible for Hezbollah's more recent terrorist acts. For example, on June 25, 1996, defendants orchestrated the bombing of a residential complex in Saudi Arabia, killing nineteen U.S. Air Force personnel. See Heiser, 466 F.Supp. 2d at 252. After a "massive" investigation involving over 250 agents, the FBI determined that "senior officials in the Iranian government provided [Hezbollah] with funding, planning, training, sponsorship, and travel necessary to carry out the attack." Id. at 252-53.

Defendants' sponsorship of Hezbollah has also been found to extend to at least 2002. In Sisso v. Islamic Republic of Iran ("Sisso II"), No. 05-CV-0394, 2007 WL 2007582, at **1-4 (D.D.C. July 5, 2007), Judge Bates examined defendants' role in a September 2002 bus bombing in Tel Aviv. While defendants employed Hamas in this bombing rather than Hezbollah, the Court made findings regarding the latter. It determined that, "[b]eginning in 1993, Iran has funded training camps operated in Lebanon by Hizbollah, a terrorist organization controlled and funded by Iran." Id. at *5. The Court also found that during 2002, "Iran provided Lebanese Hizballah . . . with funding, safehaven, training, and weapons. Tehran also encouraged Hizballah and the Palestinian rejectionist groups to coordinate their planning and to escalate their terrorist activities against Israel." Id. at *6.

II. The 1992 Bombing of the Israeli Embassy in Buenos Aires, Argentina

On March 17, 1992, a suicide bomber drove a pickup truck loaded with explosives into the front of the Israeli embassy in Buenos Aires, Argentina. (Clawson Aff. ¶ 32.) The embassy was under repair at the time. (Id.) The ensuing explosion destroyed the embassy and several nearby buildings, including a church and a school. (Id.) The bomb killed 29 people and injured 242; many of the victims were children. (Id.)

Islamic Jihad publicly claimed responsibility for the bombing. (Clawson Aff.¶ 33.) As stated above, Hezbollah sometimes uses the alias "Islamic Jihad" when conducting terrorist activities outside the Middle East. See U.S. DEPT. OF STATE, PATTERNS OF GLOBAL TERRORISM 1 (1992) (hereinafter "PATTERNS OF GLOBAL TERRORISM") (noting that Islamic Jihad is a "covername for Hizballah"); see also Oveissi, 498 F.Supp. 2d at 273 n.3.

The initial investigation into the embassy attack was hampered by controversy. There are indications that corruption or anti-Semitism may explain why the initial investigation stalled.*fn5 It also appears that this attack was soon to be overshadowed by the 1994 bombing of the Asociación Mutual Israelita Argentina ("AMIA"), a Jewish community center in Buenos Aires. Eighty-five people were killed in this attack. (Clawson Aff. ¶ 36.) The community center was undergoing repairs at the time of the bombing, just as the embassy had been two years earlier.*fn6

Unfortunately, the AMIA investigation also stalled because of accusations of corruption.*fn7

However, President Nestor Kirchner re-opened the AMIA investigation in 2003, bringing in investigators who were untainted by the previous charges of corruption. (Id. ¶ 37.) The new investigative team developed a highly detailed report, consisting of thousands of pages, that explained how Iran had directed Hezbollah to bomb the community center. (Id.) A footnote to this report confirmed that Iran and Hezbollah were also responsible for the 1992 bombing of the Israeli embassy. (Id.) Prosecutors formally charged Iran for the AMIA bombing in October 2006. (Id.)

III. Defendants' Role in the 1992 Embassy Bombing

There are two steps in establishing that defendants were responsible for the 1992 embassy bombing. First, the Court must determine that Hezbollah carried out the bombing. Second, the Court must find that defendants provided material support to Hezbollah, and that this support contributed to the terrorist act that resulted in Mr. Ben-Rafael's death.

There is overwhelming evidence that Hezbollah carried out the attack. First, Islamic Jihad publicly claimed responsibility for the bombing. (Clawson Aff. ¶ 33.) Both the State Department and this Court have concluded that "Islamic Jihad" is merely an alias for Hezbollah. See Oveissi, 498 F.Supp. 2d at 273 (expert testified that "members of Hezbollah, under the direction of MOIS, engaged in terrorist activities outside the Middle East using the nom-deguerre 'Islamic Jihad'").*fn8 Second, as discussed above, Argentine authorities have attributed the bombing to Hezbollah. Third, the embassy bombing was remarkably similar to the subsequent attack on the Jewish community center, for which Hezbollah has been formally charged. In both attacks, "a car bomb was used, the targeted building was undergoing repairs and police officers on a security detail inexplicably vanished just before the explosion."*fn9 Fourth, Hezbollah had a strong motive for attacking the Israeli embassy. Just one month before the bombing, Israel had killed Hezbollah's secretary general. (Clawson Aff. ¶ 30.)

Having concluded that Hezbollah carried out the bombing, the Court moves on to the more challenging question of defendants' connection to this specific attack. There are several compelling reasons to credit Dr. Clawson's expert opinion that defendants were complicit in the bombing. (Clawson Aff. ¶¶ 39-40) First, the State Department has reported that defendants were most likely behind the attack. See PATTERNS OF GLOBAL TERRORISM 1 ("There is mounting evidence of Iranian Government responsibility for this act of terrorism.") Second, during the period leading up to the bombing, Iran hosted meetings with Hezbollah for "the stated goal of coordinating efforts against Israel and bringing the Arab-Israeli peace process to a halt." Id. at 21. Third, Argentine authorities determined that Iran and Hezbollah were jointly responsible for the attack on the Israeli embassy. (Clawson Aff. ¶ 37.) And fourth, defendants' role in other similar terrorist acts is highly probative of their involvement in this bombing. See Fed. R. Evid. 404(b). Courts in this jurisdiction have consistently found that defendants directed Hezbollah to commit terrorist acts during the 1980's and in 1996. See e.g., Dammarell I, 281 F.Supp. 2d at 110-11, 192; Peterson I, 264 F.Supp. 2d at 58; Oveissi, 498 F.Supp. 2d at 274; Heiser, 466 F.Supp. 2d at 252-53. Defendants have funded Hezbollah training camps since 1993, see Sisso II, 2007 WL 2007582 at *5, and they provided weapons to Hezbollah in 2002. See id. at *6. This evidence provides compelling support for the Court's finding that defendants were in an ongoing terrorist conspiracy with Hezbollah in March 1992, when Hezbollah bombed the Israeli embassy.

Therefore, the Court concludes that defendants provided material support to Hezbollah in its attack on March 17, 1992, for as opined by Dr. Clawson, this bombing could not have occurred without defendants' "material, financial and technical support." (Clawson Aff. ¶ 40.) While it is unclear whether defendants actually provided the bomb that was used in the attack, they had knowledge of the plot and they provided the support that allowed Hezbollah to carry out the embassy bombing.

IV. Effect of Decedent's Death on Plaintiffs

A. David Ben-Rafael (Decedent)

Mr. Ben-Rafael was a citizen of Israel when he was killed in the bombing of the Israeli embassy in Buenos Aires on March 17, 1992. (Exh. 12, Decedent's Death Certificate.) He was born as David Joel Goldman on September 30, 1948, in the United States. (Weinstein Aff. 2.) He earned his B.A. in international relations from George Washington University in 1971 and immigrated to Israel on January 30, 1974. (Id.) He earned a B.A. in law from Hebrew University in Israel, on May 18, 1976. (Exh. 11, Translated Law Degree.) Decedent changed his name from Goldman to Ben-Rafael upon joining the Israeli Foreign Office on November 5, 1979. (Weinstein Aff. 2 n.1.) He worked in Israel's foreign service until the time of his death. (Id. 2.)

Mr. Ben-Rafael had embarked on a promising career in foreign service. In 1981, he was promoted to the Legal Advisor's Office of the Ministry of Foreign Affairs in Jerusalem. (Weinstein Aff., Aisen Attachment.) From 1983 to 1988, he served as a political secretary in both London and Chicago. (Id.) In 1988, he returned to the Legal Advisor's Office, where he served until he was sent to Buenos Aires in 1990 as the Deputy Chief of Mission at the Israeli embassy. (Id.) He was serving in this capacity when he was killed. But for his premature death, it is more than likely that he would have continued to advance up the diplomatic ladder to the position of Head of Mission. (Id.)

Furthermore, it is likely that Mr. Ben-Rafael would have obtained a much more lucrative position as a private attorney upon retirement. Dr. Meir Rosenne, a partner at an Israeli law firm, was "well acquainted" with Mr. Ben-Rafael. (Rosenne Aff. ¶¶ 1, 7.) Dr. Rosenne served in Israel's foreign service for 41 years prior to entering private practice, and he believes that Mr. Ben-Rafael would have followed a similar path:

[A]fter normal retirement, at the age 67, Mr. Ben-Rafael would have been employable by an Israeli law firms (sic) . . . . An individual with his credentials and work history is highly desirable for employment by a number of significant Israeli law firms. I am personally aware of numerous situations where attorneys with Mr. Ben-Rafael's legal and diplomatic service in the Ministry have been successful in obtaining such post-retirement employment. (Id.¶¶ 9-10.)While there is no way to know for certain whether Mr. Ben-Rafael would have sought a private sector position after his retirement from foreign service, the Court credits Dr. Rosenne's prediction given his experience and knowledge of Mr. Ben-Rafael.

Therefore, the Court finds that Mr. Ben-Rafael's untimely death cut short a promising career. If the terrorist act had not occurred, he was likely to advance in the diplomatic ranks, and upon retirement, he would have ...


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