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Correcting an American Judgment on Hamas’ Murder of Three Teens

Filed under: International Law, Jerusalem

Correcting an American Judgment on Hamas’ Murder of Three Teens
The three murdered Israeli teens. From left to right: Eyal Yifrach, 19, Gil-ad Shaar, 16, and Naftali Fraenkel, 16

1. Factual Background

On the evening of June 12, 2014, 16-year-old Yaakov Naftali Fraenkel (“Naftali”) along with Gilad Michael Sha’ar and Eyal Yifrach were taken hostage by members of the Hamas terror organization while on their way home from the boarding school Mekor Chaim in the area of Gush Etzion in the administrated territories. A half-hour after they were abducted at gunpoint, the boys were murdered by their captors. Their Hamas kidnappers buried them, and after 18 days of searching, the bodies were found on land owned by the head of a Hamas cell. On August 20, 2014, Hamas officially took responsibility for kidnapping and murdering the three teenagers.

Naftali, his six siblings, and parents lived in Nof Ayalon, an Israeli settlement that straddles the Green Line separating the administered territories and Israel. Naftali, his mother, Rachel Devora Sprecher Fraenkel, and six siblings had both Israeli and American citizenship. Naftali’s father, Abraham Ron Fraenkel is and has always been an Israeli citizen.

2. Legal Proceedings

On July 9, 2015, Naftali’s family brought suit in the District Court for the District of Columbia Circuit against the Islamic Republic of Iran (“Iran”), the Iranian Ministry of Information and Security (MOIS), and the Syrian Arab Republic (“Syria”) (collectively, “defendants”).1

Foreign states are immune from the jurisdiction of U.S. federal courts subject to several exceptions codified in Foreign Sovereign Immunities Act of 1976 (“FSIA”). The exception to sovereign immunity set out in FSIA article §1605A (a), known as “the terrorism exception,” applies to this situation. Additionally, in 2008, the FSIA was amended and article §1605A(c) provides a private cause of action by which a foreign state that sponsors terrorism can be held liable for specific enumerated damages arising from terrorist activities: economic damages, solatium (which is compensation for loss of the deceased and is awarded to close family members for hurt feeling or grief), pain and suffering, and punitive damages. The Fraenkels (“plaintiffs”) advanced a cause of action under the FSIA §1605A (c) as well as causes of action under Israeli Tort law.2

In their action, the plaintiffs claimed that the defendants (Iran, MOIS or Syria) provided material support and resources to Hamas in furtherance of Naftali’s kidnapping and murder. The question before the District Court was whether any or all the defendants can be held liable for monetary damages to the Fraenkel family.3

Although the plaintiffs properly served the defendants with process, none of them filed a response to the claims and did not appear in court. Consequently, the Fraenkels’ filed a motion for a default judgment.

On December 6, 2016, the District Court began a two-day hearing on liability and damages, and on March 31, 2017, entered a default judgment in favor of the Fraenkels’ and against the defendants (an Opinion filed by United States District Judge Rosemary M. Collyer).

U.S. District Court Judge Rosemary Collyer
U.S. District Court Judge Rosemary Collyer (AllGov)

The District Court’s analysis of the liability question is divided into two: liability to U.S. citizen plaintiffs and liability to Abraham Fraenkel, an Israeli citizen. It determined that Rachel Fraenkel and her six surviving children had provided satisfactory evidence that Iran and Syria, two state sponsors of terrorism, are legally responsible for the abduction and murder of Naftali. This was due to the longstanding material support and resources provided to Hamas by Iran and Syria that allowed Hamas to flourish as a terrorist organization.

The evidence demonstrated that during the time leading up to the abduction and murder, the two countries provided funds, weapons, and training to the organization.4 The District Court noted that although no evidence has been given “directly linking a weapon or a dollar provided by Iran and Syria to the kidnapping and murder of Naftali,” both countries were hostile to Israel and knew of Hamas’ tactics and ideological goals and supported its efforts.5 The hostage-taking and murder were a foreseeable consequence of Iran and Syria’s support and assistance to Hamas. In conclusion, the District Court found that the U.S. citizen plaintiffs had satisfactorily proved their claims in support of their private cause of action for damages pursuant to §1605A(c).6

With regard to Plaintiff Abraham Fraenkel, since he is not a U.S. national, and thus does not have a private right of action under §1605A(c),7 the District Court determined that Israeli law governed Abraham’s tort claims.8 It concluded that Abraham had established negligence by Iran and Syria under Israeli law.9 The District Court ruled that Iran and Syria breached their duty of care to the plaintiffs by engaging in the continuous support and financing of Hamas, despite knowledge of Hamas’s terrorist activities in Israel.

After imposing liability on the defendants for providing material support to Hamas and facilitating the kidnapping and murder of Naftali, the verdict set the compensation.

The District Court awarded damages to U.S. national plaintiffs in accordance with §1605A(c).10 It granted Naftali’s estate $ 1 million for his pain and suffering, because: “it is clear from the evidence Naftali Fraenkel suffered from the moment he was taken hostage up until his death,” a span of approximately 30 minutes.11 In addition, it awarded Naftali’s estate $50 million in punitive damages jointly and severally between Iran and Syria.12 The District Court ruled that the award of punitive damages was warranted. The purpose of such damages is two-fold: to punish those who are engaged in outrageous conduct and to deter others from future engagement in similar conduct. The defendants clearly intended to cause significant harm in multiple ways when they provided material support to Hamas, a terrorist organization that brutally attacks innocent civilians.13

The District Court also found that the Fraenkel family was entitled to solatium damages.14 Accordingly, U.S. citizen plaintiffs, Rachel Fraenkel and Naftali’s six siblings, received $3.1 million in solatium damages.15 As to Abraham Fraenkel, the District Court found that he was entitled to compensatory damages under Israeli law. It found that Abraham had suffered harm that affected his daily functioning; therefore, Israeli law allowed him to be awarded damages. The District Court granted Abraham Fraenkel $1 million in solatium damages.16

The Fraenkels, who had requested $340 million, an amount comparable to awards in other, similar such lawsuits,17 moved to reconsider the damages award and in particular the solatium damages that were granted. They contended that the District Court erred in failing to determine the solatium damages awards in conformity with the remedial scheme established in Estate of Heiser v. Islamic Republic of Iran (2006).18 They also argued that the District Court erred in awarding solatium damages in amounts less than the amounts awarded in Gates v. Syrian Arab Republic (2008).19

On June 28, 2017, the District Court denied the motion for reconsideration.20 It held that Heiser was not a verdict of a superior court and thus not binding. The District Court further elaborated on the reasoning behind the original amounts of damages awarded. It opined that the Fraenkels deserved damages below the amount awarded to the plaintiffs in Gates. In reaching that conclusion, the District Court, in its reconsideration, relied on two principal points.

3. The Court’s Surprise Reversal

The first was, that unlike the victims in Gates, who were American contractors who served the U.S. Army during the Iraq war, Naftali was a target of Hamas because of his Israeli citizenship.21

Secondly, in contrast to its initial statement, when the District Court said that Naftali was kidnapped from the Alon Shvut Junction, the District Court said on reconsideration that he was kidnapped while hitchhiking from the Gush Etzion Junction; and according to the testimony of the Fraenkels’ own expert, Gush Etzion Junction was identified as “the site of many terror attacks.”

The District Court also stated that the Fraenkels had “accepted the risks of living in a community built across the Green Line in Israel, and sending Naftali Fraenkel 40 miles further into the West Bank for high school in Gush Etzion, [which] is about six miles from Hebron, a predominately Palestinian city” (emphasis added – M.N.).22

The District Court Judge appeared to believe that the above considerations and facts distinguished the case of the Fraenkels from Gates; thus justifying lower damages awards than those awarded in Gates.23

The Fraenkels appealed the denial of their motion for reconsideration. On June 8, 2018, the United States Court of Appeals for the District of Columbia Circuit (the Court) gave its decision on Fraenkel v. Islamic Republic of Iran24 (an opinion for the Court filed by Senior Circuit Judge Edwards).

The issues on appeal were limited only to the District Court’s damages rulings and referred to the three claims made by the Fraenkels. First, they argued that in determining the awards for solatium damages, the District Court relied on clearly erroneous factual findings and improper considerations. Second, they argued that the District Court misapplied Gates. Third, they contended that the District Court “broke from precedent” in failing to follow Heiser’s remedial scheme.

The Court found merits in the first two contentions.25

The Appeals Court found two problems with the District Court’s judgment. The first pertained to its reliance on the terrorists’ intent to target Israelis as a justification for limiting the amounts of solatium damages awarded to Naftali’s survivors. The second referred to its supposition that solatium damages should be limited because Naftali and his family assumed the risks that he might be kidnaped and killed by terrorists.26

The District Court’s Judge indicated that the Fraenkels should obtain solatium damages awards below the amounts granted to the plaintiffs in Gates, because Naftali was targeted for being Israeli, while the victims in Gates were targeted for being U.S. nationals. In its analysis of that consideration the Appeals Court expounded that it could not find any legal basis pursuant to the FSIA for limiting a plaintiff’s solatium damages awards because the victim of an extrajudicial killing was targeted for his affiliation with Israel, rather than the U.S.27 Furthermore, the Appeals Court noted that the District Court’s reasoning did not comport with its own interpretation of “solatium”28 and its acknowledgment that “the lives of each member of the family will be forever altered because Naftali is not with them.”29

The Appeals Court then examined the other suggestion of the District Court for limiting the Fraenkels’ solatium damages in comparison to the amounts granted to the plaintiffs in Gates. The District Court had suggested that Naftali and his parents assumed the risks that he might be killed and kidnapped by terrorists.30 The Appeals Court said that it was obvious that the District Court had taken into account the facts concerning the location of the Fraenkels’ community and Naftali’s school while assessing and reducing the amounts. The Appeals Court agreed with the Fraenkels that the District Court erred in so doing.31

The Appeals Court did not find any authority that applied the “assumption of risk”32 doctrine to limit solatium damages under FSIA.33 According to the Court, the family of a boy hailing a ride home from school on a public road and engaged in no unlawful behavior does not assume the risk of being abducted and murdered afterward. “The District Courts’ suggestion to the contrary was [an] error.”34

As for the location of the kidnapping, Fraenkels’ expert35 issued a supplemental report correcting his earlier statement and clarifying that Naftali was kidnapped from the Alon Shvut Junction. This site was stated initially by the District Court,36 and according to its own findings was not unduly dangerous: “[i]t was common for students and others individuals to wait for rides in that junction.”37 Consequently, the Appeals Court noted that even if assumption of risk were relevant, the District Court erred in concluding that Naftali accepted a heightened risk of terrorist attack based on the history of the junction from where he was abducted.38

The Appeals Court also found that the District Court had failed to explain how the risks associated with residing in the Fraenkels’ community adversely affected their anguish and grief.39

Not only did the Appeals Court find no basis to apply the assumption of risk doctrine under the FSIA to reduce solatium damages awards,40 but it also showed that in fact, the amendment of the FSIA implies the converse. The Court noted that given the Congress’ expansion of remedies under the FSIA for victims of state-sponsored terrorism overseas in areas fraught with high levels of terrorism, it is hard to imagine that Congress intended that district courts would limit solatium awards under §1605A(c) for families such as the Fraenkels who live in areas that may face an increased occurrence of terrorist attacks.41

The Appeals Court, therefore, decided to “reverse and remand the District Court’s judgment on the solatium damages awards so that the court [in the original-M.N.] may reassess these damages without any suggestion that Naftali and his immediate family ’accepted the risk’ that he might be kidnapped and killed by terrorists.”42

The Appeals Court determined that there was no statutory basis for district courts to award solatium damages in the amounts Heiser found commonly awarded.43 District Court had the discretion to determine the damages that were due under the FSIA. It did not abuse its discretion unless it issued a judgment based on error of law.44

The Court fully considered the Fraenkels’ objections to the pain-and-suffering and punitive damages amounts awarded by the District Court and found no merits in the objections. The awards were consistent with the applicable law, reasonable, supported by adequate explanation, and within the discretion of the District Court.45

In its conclusion, for the above-mentioned reasons, the Appeals Court reversed the District Court’s judgment on solatium damages awards and remanded the case to the District Court for further consideration that would conform to that opinion.

The Court affirmed the District Court’s pain-and-suffering and punitive damages awards.46

4. Review and Analysis

This section focuses on two issues: the first relates to the attitude to the victim of the crime of terrorism through the lens of the District Court; the second relates to the message to be inferred in relation to counter-terrorism.

4.1 The Victim of the Crime of Terrorism through the Lens of the District Court

“The death here was that of a sterling young man on the cusp of his life. He committed no offense except of being a Jewish and Israeli. He was kidnapped and killed without regard to his individual personhood. In that sense his murder was senseless.”47 Yet, despite those words, expressing her empathy, District Court Judge Collyer decided to set solatium compensation to the Fraenkels at $4.1 million, an amount lower in comparison to those granted under other FSIA cases.48 Not only did the District Court deny the motion for reconsideration of that amount, but in its decision on reconsideration the District Court also stated that the Fraenkels accepted the risk by living in a community built across the Green Line in Israel, and sending Naftali for high school in Gush Etzion which is about six miles from Hebron, a predominately Palestinian city.49 In so determining, the District Court imposed responsibility on innocent parents of an innocent victim, who was abducted and murdered by terrorists.

At times when the national law of different states criminalizes terrorism or adopts counter-terror legislation; and international law condemns all forms of terror and encourages states to take action to prevent and combat it,50 it might be expected that a judgment rendered by a U.S. District Court would express its abhorrence of the scourge of terrorism and award damages accordingly.

But instead, the Judge ruled limited amounts and justified the low penalty imposed on the grounds that the location of the Fraenkels’ home, Naftali’s school, and the site of the abduction indicated that the deceased Naftali and his family knowingly exposed themselves to the danger of terrorist attacks.51 The Appeals Court had agreed with the Fraenkels, and rightly so, that in determining the awards for solatium damages the District Court had relied on clearly erroneous factual findings and improper considerations.52 Moreover, as the Appeals Court indicated,53 given the U.S. Congress’s expansion of remedies under the FSIA for victims of terrorism, a crime with no vindication, the rationale of the District Court to lower solatium awards cannot withstand scrutiny.

4.2 The Message to Be Inferred in Relation to Counter-Terrorism

The second issue pertains to Hamas, a terrorist organization that officially took responsibility for kidnapping and murdering Naftali and his two friends,54 as well as to the two defendant states, Iran and Syria, that sponsor and support terrorism. The District Court acknowledged that Iran had been designated by the U.S. Department of State as a state sponsor of terrorism continuously since January 19, 1984, whereas Syria had been designated by the U.S. Department of State as a state sponsor of terrorism continuously since December 29, 1979.55 Moreover, the District Court also acknowledged that Iran and Syria did provide financial assistance and resources to Hamas in Israel which facilitated the hostage-taking and murder of Naftali Fraenkel.56 The District Court added: “[t]he foreign policy of both the Iranian and Syrian governments has been to support Hamas in Israel in order to disrupt the Israeli-Palestinian peace process…It was foreseeable, therefore, that Hamas would use the training, money, and weapons provided by Iran and Syria to carry out terrorist attacks against Jews in Israel, such as Naftali Fraenkel.”57

Those observations, however, did not affect the District Court Judge’s decision in awarding the lower solatium damages.58 The amounts that were granted were not only limited, but also contrary to the purpose underlying the legislative actions of the FSIA which were intended to deter “state-sponsored terrorism” in those areas of the world such as the area where Naftali lived and was murdered.59 In a similar manner, it is also contrary to U.N. Security Council and General Assembly’s resolutions,60 as well as to universal and regional instruments related to the prevention and suppression of international terrorism61 which call upon states to take appropriate measures to thwart terrorism such as ending the transfer of funds and weapons intended for terrorist purposes.

What message can Syria and Iran infer from the limited amount of damages? Will they be deterred or rather interpret it as a license to continue their state-sponsorship of terrorism?

5. Conclusion

It is hoped that on remand the District Court will determine the appropriate amounts of solatium damages and consistent with the opinion of the Appeals Court.

Lamentably, Judge Collyer was correct in concluding: “The death of Naftali Fraenkel was a tragic event for which money can never compensate his family.”62 Yet, the following quotation from Flatow v. Islamic Republic of Iran, the first case decided against Iran under the terrorism exception to the FSIA63 can serve as Exhibit A: “[t]his is the paradox of solatium; although no amount of money can alleviate the emotional impact of a child’s or sibling’s death, dollars are the only means available to do so.”64

* * *


1 Fraenkel v. Islamic Republic of Iran (“Fraenkel I”), 248 F. Supp. 3D 21, 43 (D.D.C.2017), at 1-2,4,6, 23. See

2 28 U.S.C. § 1605A See

Since Plaintiff Abraham Fraenkel is not a U.S. national he does not have a private right of action under §1605A(c). Nevertheless, the District Court concluded that it had jurisdiction over Abraham’s complaint pursuant to §1605A (1), which enumerates the exceptions of foreign states’ immunity from the jurisdiction of courts in the U.S, and the claim can be heard because the victim, Naftali, was a U.S. national as required under §1605A(a)(2)(A)(ii)(I). See supra note 1, at 14-17; see also infra note 24, at 5, 8,12.

3 Supra note 1, at 1

4 Id. at 20-22.

5 See id., at 22.The Hamas, which is an arm of the Muslim Brotherhood, was founded to liberate Palestine, including modern-day Israel, from Israeli occupation and to establish an Islamic state, under fundamentalist Islamic rule, in the territories under the control of the Palestinian authority. For the text of the Hamas Charter see

6 Id. at 22.

7 See supra note 2.

8 Supra note 1, at 22-24.

9 25. The Israeli civil tort of negligence is codified in the Civil Wrongs Ordinance (CWO) at §35, 2 LSI (New Version) 14-15 (1972). Negligence requires a finding of the same elements as U.S. law: duty, breach, causation and injury. See supra note 1, at 24.

10 See supra. The plaintiffs did not seek economic damages.

11 Supra note 1. at 27.

12 Id. at 30-31.

13 Id. at 28-29.

14 Id. at 28, 31.

15 Id. at 28, 31.

16 Id. at 30-31.

17 See “Outrageous Decision in US Court“, July 3, 2018,

18 Estate of Heiser v. Islamic Republic of Iran, 466 F. Supp. 2d 229 (D.D.C. 2006). In Heiser the District Court reviewed prior FSIA decisions and summarized typical amounts awarded for solatium based on the nature of relationship between the victim and his family members. The Fraenkles claimed them to be baselines that should direct other district court judges. Infra note 24, at 2.

19 Gates v. Syrian Arab Republic 580 F. Supp. 2d 53 (D.D.C. 2008), as quoted in infra note 24, at 3.

20 Fraenkel v. Islamic Republic of Iran (“Fraenkel II”), 258 F. Supp. 3D 77 (D.D.C.2017). See infra note 24, at 10.

21 See infra note 24, at 10-11.

22 Id. at 11,19.

23 Id. at 11.

24 Fraenkel v. Islamic Republic of Iran, No. 17-7100 (D.C.Cir. 2018), 1, 11. See

25 Id. at 12.

26 Id. at 16.

27 Id. at 17-18.

28 Supra note 14 and accompanying text.

29 Supra note 1, at 28. See also supra note 24, at 18.

30 Supra note 22 and accompanying text.

31 Supra note 24, at 19.

32 The doctrine of assumption of risk can be used to bar recovery for a negligent act when a plaintiff has incurred a known risk. See id.

33 Id.

34 Id. at 20.

35 Supra note 22 and accompanying text.

36 Supra note 1, at 1, 3, 6.

37 Id. at 3.

38 Supra note 24, at 21.

39 Id.

40 Supra note 33 and accompanying text.

41 Supra note 24, at 22.

42 Id. The Court also ruled that on remand the District Court should not regard Naftali’s dual citizenship to set the appropriate amounts of solatium damages to grant the Fraenkels. See id. at 18.

43 Id. at 22-23; see also supra note 18 and accompanying text.


44 Supra note 24, at 24.

45 Id. at 25.

46 Id.

47 Supra note 1, at 29-30.

48 See supra note 17.

49 Supra note 22 and accompanying text.

50 See Alan Baker, The Legal Response to Terrorism, March 1, 2017, Jerusalem center for public affairs,; See also infra note 60 and accompanying text.

51 Supra note 24, at 3.

52 Supra notes 25, 30-42 and accompanying text.

53 Supra note 41 and accompanying text.

54 See supra.


55 Supra note 1, nn. 9-10.

56 Supra note 1, at 20.

57 Supra note 1, at 22.

58 It should be noted, that whereas the Court decided to reverse and remand the District Court’s judgment on the solatium damages awards, it affirmed the District Court’s punitive damages awards. See supra notes 42, 45 and accompanying text, although higher amounts of punitive damages were also granted. See supra note 1, at 29.

59 Supra note 24, at 5, 21.

60 For example, U.N. General Assembly Resolution 60/288 of September 20, 2006 which launched “The United Nations Global Counter-Terrorism Strategy”, and is referred to in other resolutions. See G.A.Res. 60/288, U.N. Doc. A/RES/60/288 (September 20, 2006).

61 International instruments related to the prevention and suppression of international terrorism (2008),

62 Supra note 1, at 31.

63 Supra note 24, at 13-15.

64 Flatow v. Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998)