Ten victims of a terrorist attack who won a financial judgment against Iran are entitled to seize their claims from $9.4 million in funds owed to Iran’s defense ministry, according to a recent ruling by the US Federal Court of Appeal.
The February 26 ruling upholds a decision reached two years ago in a lower district court based in San Diego, California. The debt relates to dealings between a US private company, Cubic, and Iran prior to the 1979 Islamic Revolution. Cubic, a San Diego-based defense contractor, had arranged to sell Iran air combat systems.
Because of deep political tensions between Iran and the US after the revolution, Cubic sold the system to Canada and ignored Iran’s call for reimbursement. Iran asked for the International Chamber of Commerce to arbitrate the dispute in 1991. In 1997, the international body found that Cubic indeed owed Iran $2.8 million. With interest and legal costs, the figure has since risen to around $9.4 million. The money has been a blocked or frozen asset under US law.
Of the 10 victims named in the court’s judgment, nine of them – Renay Frym, Stuart E. Hersh, Abraham Mendelson, Daniel J. Miller, Elena Rozenman, Noam Rozenman, Tzvi Rozenman, Deborah Rubin and Jenny Rubin — are survivors of a suicide bombing that took place in a pedestrian mall in Jerusalem on September 4, 1997. A lower court judge determined that Iran provided training and other material assistance to the three bombers of the Hamas Group that carried out the attack.
The tenth victim is France Rafii, the daughter of Shapour Bakhtiar, who was Iran’s last prime minister before the 1979 Revolution. Bakhtiar was murdered in 1991, along with his secretary Souroush Katibeh, at his residence in the Paris suburb of Suresnes.
Assassinations with links to the Iranian government
The court ruled that three people had carried out the attacks. Two of them, Fereydoon Boyerahmadi and Mohammad Azadi, managed to escape and were tried in France in absentia. The third, Ali Vakili Rad, was sentenced in France to life imprisonment with a minimum of 18 years of imprisonment. Upon his release, he was welcomed in Iran as a hero. French courts also ruled on the involvement of accomplices to the crime, including Masoud Hendi, who provided the assassins with fake passports.
According to Abdolkarim Lahidji, lawyer and president of the International Federation of Human Rights, these assassinations were committed on behalf of the Iranian government, which bore responsibility for the murders. “The French court stated that the assassinations were organized from Iran, and that the three assassins were sent from Iran to France to carry them out,” he said. “The court did not specify which official of the Islamic Republic had issued the order, but what was clear was that the Islamic Republic had issued the order and was responsible for it.”
Kaveh Mousavi, a lawyer and professor of law at Oxford University, has represented similar cases, including those of Bakhtiar’s wife Shahin Taj Bakhtiar and Bakhtiar’s estate. Responding to the ruling in the US, Mousavi says, “In international law, there is a principle called ‘sovereign immunity.’” Under this principle, no sovereign or state can be tried in the territory of another state. However, this principle has been restricted since the Nuremberg trials of 1945-1946. Restrictions exist in US law under the name of the “Foreign Sovereign Immunities Act Terrorism Exception.” According to this law, the principle of sovereign immunity is not observed in cases of terrorism and crimes against humanity. Victims of such crimes committed by any state can file a complaint in US courts, even if they do not have US citizenship or residency.
Compensation and the US Courts
Even though the 10 victims in this case had filed a complaint under the Terrorism Exception Act, victims of human rights violations have another law in the US courts they can use. The Alien Tort Claims Act (ATCA) of 1789 grants US Federal Courts jurisdiction over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States."
On the differences between filing a complaint under the Terrorism Exception Act and the Alien Tort Claims Act, Mousavi says, “The first difference is that to file a complaint under the Alien Tort Claim Act, the breach of the law does not need to be torture or a crime against humanity. It can be less severe. For example, if someone claimed to have been beaten in prison by Judge Mortazavi, but that the beating did not reach the severity of torture, he could make a claim under this act. Under the Terrorism Exception Act, a plaintiff could only file a complaint if the crime committed was either terrorism or a crime against humanity. The second difference is that the verdict issued under the Terrorism Exception Act would be against the government as a whole, whereas a verdict issued under the Alien Tort Claim Act would be against a specific individual or individuals. Therefore, if a court issues compensation under the Terrorism Exception Act, it would suffice that some assets or properties of that government to be found so that the victim could be compensated. If the verdict was issued under the Alien Tort Claim Act, the compensation could only be paid to a victim if the assets of responsible individuals could be found.”
But frozen assets and confiscated property are not the only possible sources for compensation. Sometimes compensation can be taken from fines paid by banks and financial institutions that helped the Iranian government circumvent the embargo imposed by the US and the UN. BNP Pariba is one of the banks mentioned by Mousavi in this regard. “When it was disclosed last year that BNP Paribas had co-operated with the Iranian government in circumventing the embargo, the US Department of Justice filed a complaint against the bank. But before any verdict was reached, the bank came to an agreement with the US Department of Justice and the US Prosecutor to pay $3.9 million, which would be set aside for verdicts issued against Iran, Sudan and Cuba for terrorism.”
In some cases, a question might arise as to whether victims of the states allied with the US have the same chance at winning judgments in a US Court. “The citizenship does not matter at all in these cases,” Mousavi says. Many sentences up to now have been issued in US courts that are in favor of victims of torture and genocide that took place in countries that are considered to be US allies. In this regard, one can mention the verdict issued against former Philippine President Ferdinand Marcos, or against Chilean General Augusto Pinochet, which resulted in the confiscation of his accounts. Whether a plaintiff can succeed and implement the verdict has nothing to do with his origin, citizenship or residence. The plaintiff only needs to know about the laws on this matter and be able to present enough evidence to support his claim.”
Some victims, however, may have their own reasons not to file a complaint under the aforementioned laws in US courts. Parastou Fourouhar, an Iranian artist and human rights activist whose parents were stabbed to death in November 1998 in the course of a series of “chain murders” carried out by Iranian intelligence agents, is one of them. “The confiscated money belongs to the Iranian people and I cannot seek justice for my parents by bypassing the Iranian people, and through an institution which has blocked the money of the Iranian people. I believe that seeking justice is a process of shedding light for a social mobilization, which stands against injustice and demands accountability from authorities. It cannot be reduced to receiving monetary compensation. The frozen assets and properties belong to the Iranian people and they should decide upon it.”
Kaveh Mousavi has a different take. “Of course, the Iranian people should decide upon the money that belongs to them, but can the Iranian people under the ruling of the current government really decide about matters including frozen assets? If you argue that you should wait until a democratic government rules over Iran, I will respond, what about the victims of the human rights violations of the Iranian government? The truth is that the Iranian people under the current government cannot decide on any matter, including confiscated money.”
Mousavi says these verdicts are really about accountability. “This is not about receiving money, it is more of a symbolic gesture and giving the message to the Iranian authorities that they cannot issue death orders without any consequences. Today, after 70 years, Nazi SS officers are still tried in the courts. If one day a criminal tribunal is established for the trial of the Iranian authorities, these documents can be used as evidence.”