United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
Thursday evening in June 2014 three young men, Yaakov Naftali
Fraenkel, Gilad Michael Shaer, and Eyal Yifrach waited at a
junction in Alon Shvut, Israel, to find a ride home. A car
stopped to offer a ride and all three young men got in,
expecting to be home soon. The vehicle's driver and other
passenger had a different idea: they were members of Hamas
looking for Israeli hostages to use as leverage with Israel
to obtain the release of jailed Hamas members. But nothing
went as planned that night and all three young men were not
saved for ransom, but were almost immediately killed and
buried by the Hamas kidnappers.
question raised by this lawsuit is whether any or all of The
Islamic Republic of Iran, The Iranian Ministry of Information
and Security, and The Syrian Arab Republic can be held liable
for money damages to the family of Yaakov Naftali Fraenkel
under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C.
§ 1602 et seq (2012).
are Abraham Ron Fraenkel, Rachel Devora Sprecher Fraenkel,
the parents of Yaakov Naftali Fraenkel, and his siblings Tzvi
Amitay Fraenkel, A.H.F., A.L.F., N.E.F., N.S.F., and S.R.F.
Plaintiffs filed this action on July 9, 2015 against
Defendants The Islamic Republic of Iran (Iran), The Iranian
Ministry of Information and Security (MOIS), and The Syrian
Arab Republic (Syria). Plaintiffs advance a cause of action
under the FSIA, 28 U.S.C. § 1605A(c), as well as the
following causes of action under state law: wrongful death,
survival damages, intentional infliction of emotional
distress, negligent infliction of emotional distress, civil
conspiracy, and aiding and abetting. As between Iran and
MOIS, Plaintiffs allege vicarious liability or respondeat
the Defendants filed an answer or otherwise appeared. The
Court proceeded to a default setting as provided by §
1608(e), which requires a court to enter default judgment
against a non-responding foreign state only where “the
claimant establishes his claim or right to relief by evidence
satisfactory to the court.” 28 U.S.C. § 1608(e).
The Court held a two-day hearing on liability and damages
beginning on December 6, 2016. Plaintiffs presented evidence in
the form of live testimony, affidavit, and original
documentary and recorded evidence. Plaintiffs presented
credible expert testimony from two experts concerning the
assistance to Hamas from Iran and MOIS; two experts concerning
Syria's assistance to Hamas; a retired member of the
Israel Defense Forces concerning the investigation into the
kidnapping and death of Naftali Fraenkel, Gilad Shaer, and
Eyal Yifrach; and a psychiatrist concerning the mental and
physical effects of Naftali Fraenkel's death on his
parents and siblings. From the entire record, the Court makes
the following findings of fact and conclusions of law.
FINDINGS OF FACT
The Kidnapping and Murder of Naftali Fraenkel
Yaakov Naftali Fraenkel was sixteen years old in June 2014
and attended boarding school at Mekor Chaim in Gush Etzion.
His family lived in the Nofa Ayalon settlement. Ex. 12,
Declaration of Abraham Ron Fraenkel ¶¶ 2, 5 (A.
Naftali is survived by his parents and six siblings. A.
Naftali was a talented student, taking advanced courses in
sciences and other subjects. R. Fraenkel T-1-32-34; A.
Fraenkel T-1-106. He was also a skilled musician and played
the guitar and sang for his family, especially on the
Sabbath. R. Fraenkel T-1-32-33, 36, 40; see also
Exs. 9-A16 and 9-B (photograph and video of Naftali); A.
Fraenkel Decl. ¶ 42.
Naftali traveled home to Nofa Ayalon from school on the
weekends and at the end of every term. R. Fraenkel T-1-10.
Thursday, June 12, 2014, Naftali sent his parents a text
telling them he was coming home a day early from school.
Id. at 10; A. Fraenkel T-1-90-91. Naftali waited
with a friend from school, Gilad Shaer, and another young
man, Eyal Yifrach, at a junction in Alon Shvut to hitch a
ride to his home in Nofa Ayalon. Spitzen T-2-9-10; Ex. 21,
Declaration of Arieh Dan Spitzen (Spitzen Decl.) ¶ 21;
see also A. Fraenkel T-1-92. It was common for
students and other individuals to wait for rides at that
car picked up Naftali, Gilad, and Eyal around 10:00 p.m. from
the hitchhiking post in Alon Shvut. Spitzen T-2-9-10. There
were two men already in the car, the driver and a passenger.
Id. at 10.
Immediately after the three young men entered the car, one of
the terrorists brandished a gun and told them they were
kidnapped, but to be calm and they would not be hurt.
Around 10:30 p.m. emergency services received a phone call
from Gilad. The police were able to match Gilad's phone
number with the record of the emergency call. Id. On
the call a voice is audible, most likely Gilad, saying the
young men had been kidnapped; a voice could also be heard
speaking in Arabic and Hebrew and saying “put your head
down”; there was music in the background; and then
sounds like muffled gunshots and a person moaning in physical
pain. Id. at 10-11; R. Fraenkel T-1-17; A. Fraenkel
T-1-96-99; Ex. 26 (audio-recording of emergency call).
Fraenkels expected Naftali to arrive home late, which was not
unusual. R. Fraenkel T-1-10-11. Around 3:30 a.m., Mr. and
Mrs. Fraenkel were awakened by their daughter A.L., because
someone was banging on the front door. Id. at 11.
They opened the door to find the police, who were looking for
Gilad, Naftali's classmate, because Gilad had never come
home that night and his parents thought he might have stayed
with the Fraenkels. Id. After looking in
Naftali's room, the parents discovered that Naftali was
also missing. Id.
Within hours of learning the young men were missing, the
Israeli police became aware of the phone call made by Gilad
to emergency services. Id. at 16; see also
police were able to trace the cell phone belonging to Gilad
to its last known location in the Hebron region. R. Fraenkel
T-1-12. Hebron is an area “populated mostly by Arabs
and some of which are very hostile to Israeli
citizens.” Id. at 13.
Eighteen days of massive searching for the three young men
ensued. On June 30, 2014 their bodies were found in a parcel
of land called Hirbet Aranbeh, which belonged to Hussam Ali
Hasan al-Qawasmeh. Spitzen T-2-13-14; A. Fraenkel T-1-93.
Hussam al- Qawasmeh was the head of a Hamas cell within the
Izz al-Din al-Qassam Brigades called the Hussam Qawasmeh
Brigade. See Spitzen Decl. ¶¶ 35-38.
Also around the time of the kidnapping, the families of two
known Hamas members went to the Palestinian police to inform
them that the two Hamas members were missing: Marwan
Sa'di Abd al-Afu al-Qawasmeh and Amer Omar Abd al-Qadar
Abu Aisha. Spitzen T-2-16-17, 19-20.
Hamas “is an arm of the Muslin Brotherhood” that
believes “the land of Palestine[, ] which is for all
purposes  where Israel sits and also where the Palestine
authority sits[, ] is a Muslim land that needs to be under
Muslim rule, and a fundamentalist, Muslim rule, from the
Muslim Brotherhood.” Spitzen T-1-125.
Hamas “believe[s] in the elimination of Israel, ”
Id. at 125-26, and to achieve that goal engages in
education, indoctrination, and terrorism. Acts of terror are
normally conducted through the operative branch of Hamas
known as the Izz al-Din al-Qassam Brigades. Id. at
Hamas also engages in charitable outreach through an entity
called the Al-Nur Prisoner Society. Al-Nur provides
charitable funds to support the families of Hamas members in
prison as a consequence of their participation in Hamas, as
well as “the families of terrorist[s] who were killed
during actions.” Id. at 128.
owner of the land where the bodies were found, Hussam Ali
Hasan al-Qawasmeh, was the head of the cell that planned and
carried out the kidnapping and murder of Naftali, Gilad, and
Eyal. Spitzen T-2-7-8. Hussam al-Qawasmeh was apprehended by
the Israeli police and interrogated about the crimes. Hussam
al-Qawasmeh provided a statement to the police. In his
statement he told the police that the intention was to kidnap
a single person and hold that person for ransom to secure the
release of Hamas sympathizers, but the young men were killed
because they resisted. Id. at 11, 18, 22-23.
Hussam al-Qawasmeh also informed police that Abu Aisha was
the driver of the vehicle that picked up the three young men
in Alon Shvut. Id. at 20. Marwan al-Qawasmeh was the
other individual in the car. Id. at 20-21.
Funding for the kidnapping was provided by Hussam
al-Qawasmeh's brother, Mahmoud Ali Hasan al-Qawasmeh.
Id. at 21-22.
weapons used were purchased by Hussam al-Qawasmeh from Adnar
Muhammed Eid Izzat Zaru. Id. at 25.
Immediately after the kidnapping and murder of the three
young men, Abu Aisha and Marwan al-Qawasmeh sought shelter
from Hussam al-Qawasmeh and requested his assistance in
burying the bodies. Id. at 26-27. Hussam al-Qawasmeh
and Marwan al-Qawasmeh loaded the bodies into another car and
Hussam al-Qawasmeh drove them to his land in Hirbet Aranbeh
for burial. Id. at 27. Marwan al-Qawasmeh and Abu
Aisha then went into hiding in Hebron. Id. One of
the locations where the two men hid was owned by Arafat
Ibrahim Muhamad al-Qawasmeh. Id. at 28.
August 20, 2014, Hamas officially took responsibility for the
kidnapping and murder of Naftali, Gilad, and Eyal by way of a
press conference in Istanbul. The spokesperson for Hamas was
Saleh Muhamed Suleiman al-Arouri. Id. at 28-29;
see also Ex. 23 (recording of Hamas press
Iran and MOIS's Role in Assisting Hamas in
Plaintiffs presented expert witness testimony concerning the
assistance of Iran and MOIS to Hamas in Israel. From this
evidence, certain conclusions are clear. Iran and MOIS
supported Hamas by: (1) facilitating recruitment, training,
and safe haven and (2) providing financial assistance.
“The Iranian regime loudly proclaims its right to
support what they describe as resistance acts and what the
governments in the region and governments in Europe and the
U.S. government describe as terrorism because it involve[s]
attacks on unarmed civilians.” Clawson T-2-123-24.
“Iran has been described in the U.S. Government for
more than 20 years as the principal state sponsor of
terrorism globally and Iran has provided generous financial
assistance and is providing training and provided a lot of
different types of weapons.” Id. at 124.
Since 1984, Iran has been on the U.S. State Department's
list of state sponsors of terrorism. See Ex. 40,
Declaration of Patrick L. Clawson (Clawson Decl.) ¶ 31.
Iranian support for Hamas began to wane in 2012, but did not
stop completely. Levitt T-2-116-117. Iranian support for
terrorism by Hamas increased again in 2013 and 2014. Clawson
T-2-125; see also Ex. 34, Declaration of Dr. Matthew
Levitt (Levitt Decl.) ¶¶ 41, 60 (“The U.S.
State Department's Country Report on Terrorism
2014 notes that Iran is not shy about its willingness to
finance Hamas. ‘Since the conclusion of [Operation
Protective Edge], ' the report notes, ‘Iranian
governmental officials have publicly stated their willingness
to resume Iran's military support of Hamas.' The
report goes on to note that ‘historically, Hamas has
received funding, weapons, and training from
Iran.'”) (quoting Country Reports on Terrorism
2014, United States Department of State, Bureau of
Counterterrorism (June 2015), available at
(last visited Mar. 29, 2017)).
Facilitating in the recruitment, training, and safe haven of
Iranian support for Hamas includes training, intelligence
support, and safe haven of individuals through political
cover. Levitt T-2-115.
Political cover comes in the form of public affirmation of
the goals and ideology of Hamas. Id. “Iran is
very vocal about it[s] belief that Hamas is in the right and
because it is in its terminology fighting occupation, all
means of fighting said occupation are legitimate[;] and
[Iran] tries to build up support for [Hamas] within the
region and within Muslim countries and to protect it from
opposition of political circles.” Id.
Iran and its leaders are very vocal about their support for
Hamas and its anti-Israel activities. Levitt Decl.
¶¶ 41-43, 61. Hamas is also vocal in recognizing
and thanking Iran for its support. Id. ¶¶
early as 2007, Israeli security officers noted the importance
of Iran in training Hamas operatives. Clawson Decl. ¶ 41
(noting Hamas dispatched people to Iran for months or years
Providing financial support to Hamas
Iran's primary mode of financial support to Hamas has
come through the provision of funds and weapons. Levitt
T-2-115. It is estimated that Iran has most likely provided
hundreds of millions of dollars to Hamas. Id.;
see also Levitt Decl. ¶ 39.
Hamas has received much of its revenue through state
sponsorship, including from Iran. Levitt T-2-111. Iran
provides funds to Hamas's charitable organizations, such
as the Al-Nur Prisoner Society, as a means to launder and
process the money to Hamas for use in the West Bank and the
Gaza Strip. Id. at 111-13; see also Levitt
Decl. ¶ 36.
Based on a 2015 State Department report, Iran was funding
Hamas in 2013 and 2014. Levitt T-2-118; see also
Levitt Decl. ¶¶ 63, 67. Additionally, in March
2014, the Israeli Navy seized a ship, the Klos-C, that was
smuggling weapons from Iran to the Gaza Strip for use by
Hamas. Levitt T-2-118-19; see also Clawson Decl.
Monetary support from Iran is also forwarded directly by
MOIS. Levitt Decl. ¶ 49. MOIS is “the successor
agency to [Iran's] respected spy agency called SAVAK, run
by the Shah.” Clawson Decl. ¶ 21.
Iran has used MOIS to facilitate and conduct terrorist
attacks and funnel weapons and finances to terrorist groups
through diplomatic pouches. Id. ¶ 24 (citing
Patterns of Global Terrorism 1990, United States
Department of State, Office of the Coordinator for
Counterterrorism (April 29, 1991), available at
https://fas.org/irp/threat/ terror90/ (last visited Mar.
Canadian Secret Intelligence Service report from 2002 noted
that the Palestinian police discovered a direct transfer of
$35 million to Hamas from MOIS. See Levitt Decl.
¶ 49 (citing Terrorist ...