Holding Iran Accountable for Hamas Terrorist Attacks

The world has watched in horror as tragedy has unfolded in Israel because of the brutal terrorist attacks carried out by Hamas.  Nothing can compensate for the devastating loss of life, for the trauma suffered by those injured or kidnapped, or for the grief, sorrow, fear, and anger felt by family members.  For the past twenty-five years, American victims or family members have held Iran accountable in U.S. courts for its sponsorship and support of murderous and terrorist acts like those carried out by Hamas in Israel.  The U.S. legal system may again be a vehicle to hold Iran and its proxies to account today.

Overview

U.S. law offers possible avenues to hold Iran to account for its material support to Hamas that resulted in the murders, injuries, hostage-taking, and permanent emotional scars suffered by thousands of innocent victims and their family members.  The available actions will depend on the facts, including facts not yet fully uncovered, regarding the planning of the attacks and the participation of other entities.  Based on current reporting, one of the most viable paths may be a lawsuit in a U.S. court against Iran for its support of Hamas, pursuant to the Terrorism Exception of the U.S. Foreign Sovereign Immunities Act, 28 U.S.C. 1605A.  If successful, such a lawsuit could result in a judicial finding of liability against Iran, and also could allow some victims and family members to receive a measure of compensation for their devastating injuries.

Suing Iran in U.S. Court

Foreign states are typically immune from any court’s jurisdiction in the United States under the Foreign Sovereign Immunities Act (“FSIA”, 28 U.S.C. 1602 et seq.); but the Terrorism Exception of the FSIA, 28 U.S.C. 1605A, allows for lawsuits in U.S. courts against a foreign country that supports terrorism or terrorist attacks in certain circumstances.  The Terrorism Exception applies if the country has been designated by the U.S. Government as a state sponsor of terrorism (“SST”) and has engaged in, or provided material support for, the terrorist acts from which the claims arise.  Although some have raised questions about the level of available proof of Iran’s direct involvement in the recent Hamas terrorist attacks, Iran has been long-designated a SST on account of its consistent and ongoing support of terrorism, and has been long-recognized as a lifeline and principal supporter of Hamas (and Hizbollah), including through providing funding, training, refuge, and materials used to plan and carry out terrorist activities.   U.S. courts have held terrorist states liable on far less a record than the evidence regarding Hamas and its attack on Israel.

Using the Terrorism Exception, thousands of victims of state-sponsored terrorism supported by designated State Sponsors of Terrorism (i.e., Iran, Syria, North Korea and Cuba, and previously Libya and Sudan) have successfully held SSTs to account for terrorist acts, obtaining findings of liability and significant judgments against those state sponsors.

Who Could Bring Suit?

The FSIA’s Terrorism Exception allows for litigation against a State Sponsor of Terrorism where either the “claimant or the victim” is a U.S. national, U.S. government employee or contractor, or a member of the U.S. armed forces, opening the court doors to those who were injured or held hostage, and to the estates of those who were killed, as well as the immediate family members of such victims.  Courts have defined “immediate family member” to include husbands and wives, sons and daughters, mothers and fathers, and brothers and sisters.  Courts have also allowed claims by other loved ones if the facts show that the family member’s relationship with the victim was “equivalent” to one of those defined categories (for example, a long-term partner not legally married to the victim).

What happens next?

The principal purpose of a lawsuit under the Terrorism Exception to the FSIA is to obtain a finding of liability against a State Sponsor of Terrorism for its support for terrorist acts.  In many ways, a lawsuit may be the most efficient and most direct way to establish Iran’s responsibility for Hamas’s terrorist acts.  Judgments also typically award substantial monetary damages to victims and family members.  Recognizing the many challenges and incredible difficulty of enforcing such judgments against a terrorist state, the U.S. Government created a further opportunity for relief for the victims through the United States Victims of State Sponsored Terrorism Fund (“USVSST Fund”).  The USVSST Fund was created by Congress in 2015.  It has been funded, in large part, by penalties, fees, and forfeitures paid by those found liable for conducting business with a State Sponsor of Terrorism, and serves as a deterrent to such partnerships and support.  The USVSST Fund therefore provides a further available avenue of relief while victims pursue satisfaction of their judgments around the world. 

Other Possible Avenues

U.S. law, including the Anti-Terrorism Act (“ATA”), may also offer other avenues for claims against Hamas as a foreign terrorist organization, or against other entities that support and fund Hamas, including by bringing suit in U.S. courts.  The path for collecting on judgments arising from such actions may not be as straightforward as from a judgment against Iran, but additional avenues may arise, and this is a further way to impose liability on the perpetrators of terrorist acts.

Iran, and other State Sponsors of Terrorism, and potentially foreign terrorist organizations like Hamas, can be held accountable in U.S. court for their material support of terrorist acts.  No lawsuit, no matter the damages awarded, can ever fully compensate for the tragic losses experienced as a result of the Hamas terrorist attacks, but victims of other terrorist attacks have found the process of seeking some measure of justice through the courts to be meaningful, both personally and globally.  In a time when people impacted by such horrors ask if there is anything to do, the avenues for action can feel limited and elusive.  Holding Iran accountable for its acts through the U.S. legal system can offer one such avenue.  U.S. courts have held Iran accountable for its support of terrorism before.  They can do so again.