Document Type

Article

Disciplines

International Law

Abstract

On the Gaza Strip in Israel on April 9, 1995, a suicide bomber drove a van loaded with explosives into a bus on which Alisa Michelle Flatow, an American citizen studying abroad, was traveling.1 Alisa Michelle Flatow sustained a severe head injury because a piece of shrapnel pierced her skull. 2 She died at 10:00 am local time on April 10.3 With respect to the suicide bombing, "the Shaqaqi faction of Palestine Islamic Jihad claimed responsibility for, and in fact perpetrated, the terrorist act which caused the death of Alisa Michelle Flatow.

In general, the Foreign Sovereign Immunities Act ("FSIA") affords foreign states immunity from the jurisdiction of United States courts, with exceptions made for claims of a particular nature.5 One of these exceptions is found at 28 U.S.C. § 1605(a)(7). Enacted as an amendment to the FSIA in 1996, § 1605(a)(7) enables U.S. Courts to entertain cases brought directly against a sovereign foreign state, once it has been formally designated by the United States Department of State as a state sponsor of terrorism, and either commits a terrorist act on its own or provides material support to the perpetrators of a terrorist act, which ultimately results in the death of or injury to an American citizen.6 Accordingly, Alisa Michelle Flatow's father, Stephen M. Flatow, as Administrator of Alisa Michelle Flatow's estate, filed a suit in Federal District Court in Washington, D.C., against the Islamic Republic of Iran, the Iranian Ministry of Information and Security, Ayatollah Ali Hoseini Khamenei, Ali Akbar Hashemi-Rafsanjani, and Ali Fallahian-Khuzestani, jointly and severally, for wrongful death, pain and suffering, solatium, and punitive damages."Given the novel FSIA enactments and [the] Court's special role in the development of foreign sovereign immunity jurisprudence, . . . [Judge Lamberth] engaged in a systematic review of the dispositive legal issues prior to making the determination that the Plaintiff had established [a] claim and right to relief." 8 On March 11, 1998, District Court Judge Lamberth held that: (1) extraterritorial application of FSIA amendments was proper;9 (2) a suicide bombing was an "extrajudicial killing" within the meaning of the state-sponsored terrorism exception to foreign sovereign immunity; 10 and (3) a foreign state sponsor of terrorism is jointly and severally liable for all damages assessed against codefendant officials, agents, and employees, under the state-sponsored terrorism exception to the FSIA. 1 Furthermore, Judge Lamberth found that the value of loss of accretions to Alisa Michelle Flatow's estate was $1,513,220,12 compensatory damages for Alisa Michelle Flatow's pain and suffering was $1,000,000,1 3 and an award of $225,000,000 as punitive damages was appropriate.

However, the attachment of Iranian diplomatic properties in the United States to satisfy the $247 million wrongful death judgment has proved troublesome. The United States government petitioned the District Court to vacate its order to issue writs of attachment on the judgment and to quash the writs because attachment of Iranian properties would harm, among other things, important foreign policy interests of the United States.1 5 Thus, on the surface it appears that the FSIA is providing a right, but the United States Department of State is denying the remedy.

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