On April 9, 1995, Alisa Flatow, an American college student spending a semester studying in Israel, was killed in a terrorist attack when the bus in which she was traveling collided with a van loaded with explosives. In March 1998, her family went to court and was awarded $22.5 million in compensatory damages and $225 million in punitive damages.

Stephen M. Flatow v. Islamic Republic of Iran is one of the most influential cases on American foreign policy in the last half-century and involved all three branches of government. Its implications are felt to this day. Flatow’s lawsuit is the very basis of current lawsuits by families of American victims of Oct. 7 against Iran. See: https://www.steinmitchell.com/news-217.

To understand the background of Flatow v. Iran (1999), we fast forward to Warmbier v. North Korea (2018), which describes the unfortunate plight of a young Jewish man in North Korea, and the efforts of his mother to exact retribution from that country. The judge in this case, Beryl Howell, Chief United States District Judge, was also Jewish.

Foreign Sovereign Immunities Act

In 1812, the Supreme Court ruled in Schooner Exchange v. M’Faddon that a private party could not sue the government of France. Following international principles, U.S. courts routinely refused to hear claims against foreign governments, even where those claims related to commercial activities.

This changed in 1976 when Congress passed the Foreign Sovereign Immunities Act (FSIA). This act granted a United States court the power to determine if a foreign country should be immune from suit. In 2004, the Supreme Court held that FSIA should work retroactively.

For Example: Nazi Loot

Maria Altman was born in Vienna in 1916, and fled her home after it was annexed to the Third Reich in 1938 (“Anschluss”). The Nazis looted her home and took six paintings by the renowned painter Gustav Klimt. The paintings made their way to the hands of the Austrian government.

In 2000, Altman filed suit against Austria. Four years later, in Republic of Austria v. Altman (2004), the Supreme Court ruled that under FSIA, Austria was not immune from suit. In 2006, an arbitration panel ruled that Austria must return the paintings to Altman and the other family heirs. After their return to Altman, the paintings were sold at auction and fetched a total of $325 million. Altman died in 2011, shortly before her 95th birthday. She used the proceeds of the lawsuit to pay for Holocaust education. Other FSIA suits also involved Jewish victims of terror.

Otto Warmbier and North Korea

In 2015, Otto Warmbier, a 21-year-old Cincinnati native and University of Virginia student, took a five-day trip to North Korea. He wanted to explore, and he viewed the trip to North Korea as an opportunity to experience a different culture and way of life.

Although Warmbier’s parents were nervous about his trip, a University of Virginia professor advised him that travel to North Korea was safe with certain tour groups. The website for the operator of his tour group, Young Pioneer Tours, attested to the safety of their guided trips into North Korea.

On Jan. 2, 2016, Warmbier’s scheduled departure date, he was detained at the airport. On Jan. 3, 2016, the tour company explained that he missed his flight because North Korea officials took him out of the security line at the Pyongyang Sunan International Airport, and he could not leave North Korea with the rest of his group. Over the next few days, the tour company reassured Warmbier’s parents that everything was fine, and that their son’s inability to leave North Korea “was just a misunderstanding.”

The State Department and Warmbier’s Detention

When Warmbier was detained, the U.S. State Department advised his parents that his detention was part of North Korea’s “normal routine” when “they want something,” and assured them that, “based on history,” he would “be home in six months.” The State Department cautioned the Warmbiers against speaking to media outlets or publicly about his detention because North Korea was “going to want something for Otto,” and the more the family spoke publicly, “the more it’s going to cost.”

Given the repeated cautions against speaking publicly, Warmbier’s parents were “terrified,” “afraid to speak out or discuss” him “with anyone,” including their neighbors and friends. They had a “sixth sense” that “things were bad for Otto,” but what transpired was worse than they “could have imagined.”

On Jan. 22, 2016, the Korean Central News Agency reported that Warmbier was under investigation and had been arrested. On Feb. 29, 2016, North Korea televised Warmbier reciting a prepared “confession” to “severe crimes against” the Democratic People’s Republic of Korea (DPRK), that amounted to him allegedly taking down a poster with a political slogan supporting North Korea’s dictator, Kim Jong-Il, from a hotel’s staff-only area at the behest of a church in Ohio and the CIA.

The family attempted to send Warmbier emails through the State Department, which forwarded them to Swedish intermediaries in North Korea for delivery to the imprisoned student, but his parents have no idea if he received any correspondence.

In June 2017, Joseph Yun, an American diplomat with ties to North Korea, informed the Warmbiers that their son had been in a coma for over a year. Shortly thereafter North Korea pardoned Warmbier, who was transported to Cincinnati on June 13, 2017.

When the family saw Warmbier, his condition was “horrible” and he was “unrecognizable.” There were signs that the North Koreans had tortured the young man horrendously. Since hiss death, North Korea has denied any responsibility, calling his death a mystery and blaming it on “botulism” and the United States government.

In 2018, the Warmbiers sued North Korea, under the premise that FSIA grants an American court jurisdiction over a foreign country that tortures and kills American citizens.

FSIA Terrorism Exception

Under the FISA Terrorism exception, a foreign state is not immune from the jurisdiction of the United States courts or of the States in any case “… in which money damages are sought against a foreign state for personal injury or death that was cased by an act of torture…”

Service to North Korea

Under FSIA, a United States citizen may sue a State Sponsor of Terrorism for the damage it caused him or her. To do so one must “serve” the country with “service of process.” In this case, since no normal diplomatic channels existed, “North Korea—a state sponsor of terrorism—was served by mailing the necessary papers through DHL and delivered to North Korea.”

Damages

The court awarded Otto Warmbier’s estate: $6,038,308 for his estimated economic losses; $96,375.80 for his medical expenses; $15 million in compensatory damages for his pain and suffering; $15 million each to Warmbier’s father and mother on account of their bereavement and suffering through the ordeal; and $300 million in punitive damages. The total damage award was $501,134,683.80.

The Court concluded: “Ordered that the plaintiff shall, at their own cost … send a copy of this Order to the defendant North Korea.”

Otto Warmbier’s Jewish Soul

According to interviews with the media after Warmbier’s death, the State Department warned his parents not to divulge that their son was, and identified as, Jewish. (TimesofIsrael.com: https://bit.ly/4btNUs8)

In 2014, Otto Warmbier went on a Birthright trip to Israel. He wrote the following blog post about his trip to Jerusalem and the Western Wall.

“The Western Wall was a truly incredible experience for me. Just being at a spot that has been so central to Judaism for thousands of years was completely surreal. The power that emanated from the wall showed on the faces of all those who were near it.

“When I was forced to step away to avoid holding up the group for the third time, it honestly felt like saying goodbye to a loved one,” he went on. “It was difficult to wrap my mind around the concept of such a pinnacle—I had done what so many Jews wish to do. Each year at Chanukah, my family finishes the prayer by saying ’Next year in Jerusalem.’ For me, it was this year in Jerusalem. And this day at the Western Wall.”

May his memory be a blessing. Yehi zichro Baruch.

Eliyahu Asher Prero, Esq., is a certified mohel and practicing lawyer. Rabbi Prero graduated magna cum laude from Seton Hall Law in 2023 with a concentration in intellectual property law, and served as a clerk for the Honorable Thomas A. Sarlo in the Superior Court of New Jersey, Civil Division-Bergen County. He is currently an associate at the law firm Schenck, Price, Smith & King, where he focuses on constitutional law, civil litigation, and medical malpractice defense.