Hill v. Republic of Iraq, 1:99CV03346 (TPJ).

• Decision Date: 05 December 2001
• Docket Number: No. 1:99CV03346 (TPJ).,1:99CV03346 (TPJ).
• Parties: Mel J. HILL, et al. Plaintiffs, v. REPUBLIC OF IRAQ, et al. Defendants.
• Court: U.S. District Court — District of Columbia

175 F.Supp.2d 36

Mel J. HILL, et al. Plaintiffs, v. REPUBLIC OF IRAQ, et al. Defendants.

No. 1:99CV03346 (TPJ).

United States District Court, District of Columbia.

December 5, 2001.

Mark McLaughlin Hager, American University, Washington College of Law, Washington, DC, Daniel Wolf, Michael D. Lieder, Cynthia J. Totten, Sprenger & Lang, P.L.L.C., Washington, DC, for Mel J. Hill, Vivian C. Hill, Michael Barner, Richard Biasetti, Shane Foley, Jack Frazier, Cheryl Graham, As executor of estate of Lloyd Graham, David O. Morris, Mike Nickman, James P. Roach, plaintiffs.

Mark McLaughlin Hager, American University, Washington College of Law, Washington, DC, Steven Michael Sprenger, Daniel Wolf, Michael D. Lieder, Cynthia J. Totten, Sprenger & Lang, P.L.L.C., Washington, DC, for Young Hee Roach, Susan E. Vinton, Charlie Amos, Sarrah Amos, Petrica Brown, Richard Guy Sementelli, William Van Dorp, Floyd Watson, Mary Watson, plaintiffs.

Daniel Wolf, Sprenger & Lang, P.L.L.C., Washington, DC, for Charles Coutre, Timothy Glenski, Gene Lovas, Myrl Lynn, B.J. Tinch, Stuart Williams, movants.

DECISION AND ORDER

JACKSON, District Judge.

In the summer of 1990 military ground forces of the Republic of Iraq crossed its border with Kuwait, invested the capital of Kuwait City, and seized control of the country with the objective of annexing it to Iraq. Kuwait's resistance was minimal, and within hours Kuwait was an occupied country.

In conjunction with its invasion of Kuwait, Iraq quarantined all foreign nationals then present within the borders of the two countries, denying them visas to depart. When international opposition to the invasion developed to the point at which military action against Iraq appeared likely, Iraq declared that the foreign nationals would be detained indefinitely "so long as Iraq remains threatened by an aggressive war." The detainees were promptly characterized as hostages — "innocent people, citizens of many nations, held against their will in return for concessions" — by the President of the United States who announced that Iraq would be held responsible for "the safety and well-being" of those who were Americans.¹

The U.S. Department of State estimated at the time that there were approximately 30,000 foreigners of all nationalities confined within the borders of Iraq and Kuwait, of whom 2500 were Americans. Their captivity began August 2, 1990, the day of the Iraqi invasion of Kuwait. It ended mid-December, 1990, when the last were allowed to depart. In the interim they survived, day-to-day, under conditions of greater or lesser adversity, none of which were, however, conducive to their safety and well-being.

I.

This action was commenced by approximately a score of United States citizens (or their personal representatives) who were detained against their will in Kuwait and Iraq between August and December, 1990. They sue the Republic of Iraq and its President, Saddam Hussein, for money damages for hostage-taking, false imprisonment, personal injury, intentional infliction of emotional distress, and in some cases assault, battery, and loss of consortium. The action is brought pursuant to certain 1996 amendments to the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602-1611 ("FSIA") allowing such actions to be brought for the first time by private citizens against foreign sovereign nations and their agents and instrumentalities.

Subject matter jurisdiction of this Court derives from 28 U.S.C. §§ 1330(b) and 1605(a)(7) and venue in the District of Columbia is provided for by 28 U.S.C. § 1391(f)(4). The original complaint was filed on December 15, 1999, and an amended complaint, adding new plaintiffs, was filed July 19, 2000. Both were properly served on defendants pursuant to 28 U.S.C. § 1608(a)(4) on April 19, 2000, and October 17, 2000, respectively.² The defendants failed to plead or otherwise defend the action, and the Clerk of Court declared them in default on January 16, 2001.³ Accordingly, the Court held an evidentiary hearing on October 9-13, 2001, to be later supplemented by declarations submitted under oath by non-testifying plaintiffs, from which the facts set forth below are found pursuant to Fed.R.Civ.P. 52(a) upon evidence satisfactory to the Court.⁴

II.

Of the 2500-odd Americans believed to have been present in Kuwait or Iraq on August 2, 1990, to whom exit was refused by Iraqi authorities, approximately half or more, eluded capture and escaped on their own. Others eluded capture for a time and took temporary refuge in private dwellings of relatives or friends until apprehended. Some were interned in hotels, at a U.S. Embassy, or an ambassadorial residence. A particularly unfortunate number were transported to various industrial or military sites throughout Iraq and confined in close proximity to anticipated targets of air strikes by allied aircraft once military operations by coalition forces against Iraq commenced.

All of them, to varying degrees, were subject to privations and hardships, and forced at gunpoint to remain where they were placed or transported. They were obliged to forage for sustenance or were maintained by their captors on minimal rations of often spoiled foodstuffs. They were deprived of sanitary facilities, changes of clothing, and medical supplies. Even drinking water was in short supply, as was shelter from desert heat or cold. Some were forced to inhabit impossibly congested and vermin-infested sleeping quarters. And they were all kept in constant fear throughout for their lives, acutely conscious of the indeterminate duration of their captivity, and the unknown fate of family members from whom they were separated, both in-country and at home.

According to the testimony of former Ambassador Morris D. Busby, Coordinator for Counterterrorism of the U.S. Department of State from 1988 to 1991, it was the Iraqi strategy at the time to use the foreigners in its custody as bargaining commodities — to extract concessions from the United States and its coalition allies in exchange for their release, and until their release to take advantage of their presence to moderate any military reprisals by the allies.

The accounts given by the several witnesses who gave live testimony typify the experiences of other plaintiffs whose evidence was supplied by declaration.⁵

The "Human Shield" Hostages

Charles Joseph Kolb

In August, 1990, Kolb was a U.S.-born 29-year-old English teacher employed by the U.S. Department of State to teach English at the American Cultural Center in Baghdad, Iraq. He had lived in Baghdad for nearly a year and was at the time engaged to marry an Iraqi woman. Informed by a friend that foreigners were being taken into custody on August 2nd, he remained primarily in seclusion in his residence, contacting no one. On August 28th he returned to his house after a short foray outdoors to find Iraqi security police present, and fled to his office only to find Iraqi authorities there as well. He was arrested, detained at a hotel for two days, then driven by bus with about 20 other Westerners who were dropped off at various places of detention about the city.

Kolb was eventually taken to the Dohra Oil Refinery, a working refinery just outside Baghdad, with two other men. He lived there in a small house for about a month, during which he was homosexually molested by a guard on one occasion. He and other Western males were then again driven by bus some 240 kilometers north to an underground complex of an unknown character in the desert near Kirkuk where they lived two men to a shack. They had no running water or electricity and were permitted to leave the shack for meals only. Several days later they were moved once more to a nearby gas refinery where they slept on cots in a vermin-ridden storage shed. They were fed meals of rice and bread twice a day.

Kolb remained at the gas refinery until mid-December when the last of the hostages were released. (Others of his co-hostages had left from time to time earlier.) He and three remaining companions were driven by pickup truck back to Baghdad. He was detained at a hotel for several days until an exit visa was arranged for him. He returned to the U.S. via Frankfurt on December 18th. In the course of his detention he suffered from chronic diarrhea and lost 25 to 30 pounds.

He never saw his fiancée again, and has abandoned any thought of ever returning to the Middle East.

Apostolos Eliopoulos

Eliopoulos was born in Athens, Greece in July, 1952, and became a naturalized U.S. citizen in 1982, as did his wife, Angela, whom he married in 1976. With a degree in technology management from the University of Maryland, he became a computer programmer, worked as such in Saudi Arabia, Bahrain, and Kuwait, and in June, 1990, began a new job with the Kuwait office of Arthur Anderson & Co. He was Arthur Anderson's sole representative in Kuwait, providing consulting services to such clients as Kuwaiti Airways and the Kuwaiti Department of the Interior, and had been promised a full partnership in the company as of September, 1991.

Eliopoulos celebrated his 38th birthday barely a week before the Iraqi invasion on August 2nd. He and his family — wife, son, and daughter — had been living in Kuwait for over three years, and had established their home in a suburb of Kuwait City.

On August 2nd, Angela and the children were away on vacation in Greece. Eliopoulos was awakened at home by a call from the U.S. Embassy alerting him to the invasion and instructing him to stay at home indoors. Two days later he and two companions had ventured out for supplies when their car was stopped by Iraqi troops, and they were taken into custody at gunpoint even as the Iraqis were actually returning the fire of Kuwaiti troops nearby. (A captured Kuwaiti was executed by a gunshot to the head in their presence.)

Eliopoulos and his companions were transported by truck to various official buildings in the city, interrogated along with other...