The opinion
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
HAN KIM, et al., )
)
Plaintiffs, )
)
v. ) Civil Action No. 09-648 (RWR)
)
DEMOCRATIC PEOPLE’S REPUBLIC )
of KOREA, et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiffs Han Kim (“Han”) and Yong Seok Kim (“Yong”) bring
this civil action under the terrorism exception of the Foreign
Sovereign Immunities Act (“FSIA”), 28 U.S.C. § 1605A(c), seeking
damages against officials, employees and agents of defendant
Democratic People’s Republic of Korea (“DPRK”) in connection with
the January 16, 2000 abduction of Reverend Kim Dong Shik
(“Reverend Kim”), who is Han’s father and Yong’s brother.
Following his abduction, Reverend Kim was forcibly transferred to
North Korea where the plaintiffs allege he was repeatedly
tortured by officials, employees and agents of DPRK.
Plaintiffs filed suit and served DPRK following the
requirements of 28 U.S.C. § 1608(a)-(b). DPRK failed to answer
or otherwise respond to the complaint, and plaintiffs secured
entry of default under Fed. R. Civ. P. 55(a). The plaintiffs
then moved for default judgment and have submitted proposed
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findings of fact, along with supporting declarations and
documentary evidence, and proposed conclusions of law.
The FSIA permits courts to exercise subject matter
jurisdiction and enter judgments of liability against foreign
states only where a plaintiff pleads and produces satisfactory
evidence that a foreign state’s conduct falls within one of the
enumerated exceptions to sovereign immunity. 28 U.S.C.
§ 1605A(a), (c). The plaintiffs here rely on the exception for
torture, arguing that “[t]he evidence submitted demonstrates that
it is far more likely than not that Reverend Kim suffered and
continues to suffer the torture and brutal conditions meted out
to all ‘enemies’ of the DPRK unfortunate enough to fall into the
hands of the DPRK’s security services.” Pls.’ Proposed Findings
of Facts and Conclusions of Law (“Pls.’ Proposed Facts”) at 42.
However, plaintiffs’ evidence regarding DPRK’s alleged treatment
of Reverend Kim appears insufficient to meet the high standard
recognized in this circuit that is set by the FSIA’s definition
of torture. Because the FSIA precludes jurisdiction over this
action against a foreign sovereign for conduct not shown by
satisfactory evidence to meet the high standard set for proof of
torture, the plaintiffs’ motion for default judgment will be
denied but the case will be certified for an interlocutory
appeal.
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DISCUSSION
I. JURISDICTION AND LIABILITY UNDER THE FSIA
Before Congress amended the FSIA in 2008 to add the
§ 1605A(c) private right of action, the D.C. Circuit explained
that at base, “[t]he FSIA is undoubtedly a jurisdictional statute
which, in specified cases, eliminates foreign sovereign immunity
and opens the door to subject matter jurisdiction in the federal
courts.” Price v. Socialist People’s Libyan Arab Jamahiriya, 294
F.3d 82, 87 (D.C. Cir. 2002); see also Maritime Int’l Nominees
Establishment v. Republic of Guinea, 693 F.2d 1094, 1099 (D.C.
Cir. 1982) (“[T]he absence of immunity is a condition to the
presence of subject matter jurisdiction.”). The door is opened
only for cases that fall into one of the statute’s specifically
enumerated exceptions. Here, Han and Yong rely on the exception
eliminating foreign sovereign immunity in cases “in which money
damages are sought against a foreign state for personal injury or
death that was caused by an act of torture, [or] extrajudicial
killing, . . . if such act . . . is engaged in by an official,
employee, or agent of such foreign state while acting within the
scope of his or her office, employment, or agency.” 28 U.S.C.
§ 1605A(a)(1). The FSIA imposes the additional jurisdictional
requirements that the foreign state have been designated as a
state sponsor of terrorism during a specified period, that the
claimant or victim have been a United States national at the time
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of the torture, and that the foreign state have been afforded a
reasonable opportunity to arbitrate the claim. 28 U.S.C.
§ 1605A(a)(2). Section 1605A(c) provides the private right of
action for a U.S. citizen against such a foreign state for
personal injury or death caused by an act of torture engaged in
by the foreign state’s officials acting in their official
capacity. 28 U.S.C. § 1605A(c). In actions under this
provision, “a foreign state shall be vicariously liable for the
acts of its officers, employees, or agents.” Id.
Because plaintiffs must allege the elements of a claim under
§ 1605A(c) in order to meet the requirements for waiver of
foreign sovereign immunity, liability will exist whenever the
jurisdictional requirements of § 1605A(a) are proven. See
Kilburn v. Islamic Republic of Iran, 699 F. Supp. 2d 136, 155
(D.D.C. 2010) (“[T]he § 1605A(c) cause of action is fulfilled by
demonstrating that the foreign sovereign performed acts described
in subsection (a)(1) of § 1605A, which addresses immunity and
subject matter jurisdiction. . . . Although an analysis of a
foreign sovereign’s potential immunity and liability should be
conducted separately, the elements of immunity and liability
under § 1605A(c) are essentially the same in that § 1605A(a)(1)
must be fulfilled to demonstrate that a plaintiff has a cause of
action.”); see also Gates v. Syrian Arab Republic, 580 F. Supp.
2d 53, 64-69 (D.D.C. 2008) (explaining that § 1605A(c) provides a
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private right of action where subject matter jurisdiction exists
under § 1605A(a)).
The FSIA adopts the definition of torture contained in
section 3 of the Torture Victims Protection Act (“TVPA”). 28
U.S.C. § 1605A(h)(7) (citing 28 U.S.C. § 1350 note). The TVPA
defines torture as
any act, directed against an individual in the
offender’s custody or physical control, by which severe
pain or suffering (other than pain or suffering arising
only from or inherent in, or incidental to, lawful
sanctions), whether physical or mental, is
intentionally inflicted on that individual for such
purposes as obtaining from that individual or a third
person information or a confession, punishing that
individual for an act that individual or a third person
has committed or is suspected of having committed,
intimidating or coercing that individual or a third
person, or for any reason based on discrimination of
any kind.
TVPA, Pub. L. No. 102-256, § 3(b)(1), 106 Stat. 73, 73 (1992).
The amended complaint also alleges that Reverend Kim was
“tortured to death by officers, employees and agents of defendant
North Korea[,]” Am. Compl. ¶ 27, and that Reverend Kim’s “murder”
thus qualifies under 28 U.S.C. § 1605A as an extrajudicial
killing, id. ¶ 33. The FSIA adopts the definition of
extrajudicial killing contained in the TVPA: “a deliberated
killing not authorized by a previous judgment pronounced by a
regularly constituted court affording all the judicial guarantees
which are recognized as indispensable by civilized peoples.”
TVPA, Pub. L. No. 102-256, § 3(a), 106 Stat. 73, 73 (1992).
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Courts have found that extrajudicial killing occurs, for example,
where a defendant deliberately kills individuals by a targeted or
deliberate bombing, see, e.g., Owens v. Republic of Sudan, 826 F.
Supp. 2d 128, 150 (D.D.C. 2011); Valore v. Islamic Republic of
Iran, 700 F. Supp. 2d 52, 74 (D.D.C. 2010), or deliberately
assassinates or executes an individual, see Oveissi v. Islamic
Republic of Iran, 573 F.3d 835, 839-40 (D.C. Cir. 2009); Kilburn,
699 F. Supp. 2d at 152-53; Bakhtiar v. Islamic Republic of Iran,
571 F. Supp. 2d 27, 34 (D.D.C. 2008). Here, plaintiffs have not
alleged a targeted bombing or a deliberate execution. Instead,
by alleging that Reverend Kim was tortured to death and that this
murder qualifies as an extrajudicial killing, the plaintiffs must
show that North Korean agents deliberately killed Reverend Kim by
torturing him. Thus, the plaintiffs’ extrajudicial killing claim
relies squarely upon an adequate showing that Reverend Kim was
tortured.
The D.C. Circuit has emphasized the high standard that the
statutory definition of torture imposes. In Price, an
interlocutory appeal of a district court order rejecting Libya’s
claim of sovereign immunity in its motion to dismiss, the court
of appeals considered the sufficiency of the complaint’s
allegations of torture. The circuit’s reasoning merits
recounting in some detail:
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The severity requirement is crucial to ensuring that
the conduct proscribed by the Convention and the TVPA
is sufficiently extreme and outrageous to warrant the
universal condemnation that the term ‘torture’ both
connotes and invokes . . . . [O]nly acts of a certain
gravity shall be considered to constitute torture
. . . . The term ‘torture,’ . . . is usually reserved
for extreme, deliberate and unusually cruel practices,
for example, sustained systematic beating, application
of electric currents to sensitive parts of the body,
and tying up or hanging in positions that cause extreme
pain . . . . The critical issue is the degree of pain
and suffering that the alleged torturer intended to,
and actually did, inflict upon the victim. The more
intense, lasting, or heinous the agony, the more likely
it is to be torture . . . . [I]n order to constitute
torture, an act must be a deliberate and calculated act
of an extremely cruel and inhuman nature, specifically
intended to inflict excruciating and agonizing physical
or mental pain or suffering . . . . [T]orture does not
automatically result whenever individuals in official
custody are subjected even to direct physical assault.
Not all police brutality, not every instance of
excessive force used against prisoners, is torture
under the FSIA . . . . [I]t is especially important
for the courts to ensure that foreign states are not
stripped of their sovereign immunity unless they have
been charged with actual torture, and not mere police
brutality.
Price, 294 F.3d at 92-93 (internal quotations and citations
omitted). In addition, for abuse to constitute torture it must
be inflicted intentionally, not merely incidentally. Id. at 93
(“In order to lose its sovereign immunity, a foreign state must
impose suffering cruelly and deliberately, rather than as the
unforeseen or unavoidable incident of some legitimate end.”).
In light of this meaning, the court found insufficient to
waive sovereign immunity allegations that plaintiffs were held
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for approximately three months in a political prison where they
allegedly “endured deplorable conditions while incarcerated,
including urine-soaked mattresses, a cramped cell with
substandard plumbing that they were forced to share with seven
other inmates, a lack of medical care, and inadequate food,” and
further “were kicked, clubbed and beaten by prison guards, and
interrogated and subjected to physical, mental and verbal abuse.”
Id. at 86 (internal quotations omitted). The Price court further
found the complaint inadequate because it “says virtually nothing
about the purpose of the alleged torture.” Id. at 94; see also
Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326 F.3d
230, 234 (D.C. Cir. 2003) (finding allegations of forcibly
removing passenger from cruise ship, holding passenger
incommunicado and threatening her with death if she moved from
her quarters did not rise to the level of torture under the FSIA
and state a claim).
Price considered the sufficiency of torture allegations when
the defendants moved to dismiss the complaint for lack of subject
matter jurisdiction. Price’s reasoning is equally instructive
for determining whether a plaintiff in a default proceeding has
established subject matter jurisdiction. When a court reviews
unchallenged factual allegations on a motion to dismiss, the
allegations are assumed to be true for purposes of assessing
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subject matter jurisdiction. Price, 294 F.3d at 93. Similarly,
for the purposes of examining subject matter jurisdiction on a
motion for entry of default under the FSIA, courts accept the
plaintiffs’ factual allegations as true. Sisso v. Islamic
Republic of Iran, 448 F. Supp. 2d 76, 81 & n.5 (D.D.C. 2006)
(reasoning on motion for entry of default in FSIA proceeding that
court was “preclude[d] . . . at this stage of the litigation from
making factual findings that are inconsistent with the
allegations of the complaint” and explicitly accepted “all of
plaintiffs’ factual allegations as true[.]”). However, to
establish subject matter jurisdiction, the allegations must be
sufficiently detailed. At the pleadings stage, the Price court
accordingly found inadequate the allegations before it, holding
that
plaintiffs’ complaint offers no useful details about
the nature of the kicking, clubbing, and beatings that
plaintiffs allegedly suffered. As a result, there is
no way to determine from the present complaint the
severity of plaintiffs’ alleged beatings -- including
their frequency, duration, the parts of the body at
which they were aimed, and the weapons used to carry
them out -- in order to ensure that they satisfy the
TVPA’s rigorous definition of torture.
Price, 294 F.3d at 93. Beyond the pleadings stage, plaintiffs
“have to prove the merits of their claims before they can obtain
a default judgment” and “the evidence they present will have to
provide support” for the theories of liability they allege.
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Sisso, 448 F. Supp. 2d at 79 n.2. It follows that plaintiffs
must provide sufficiently detailed proof of their allegations
that DPRK agents tortured Reverend Kim in order to ensure that
the conduct “satisf[ies] the TVPA’s rigorous definition of
torture.” Price, 294 F.3d at 93.
II. STANDARDS FOR DEFAULT JUDGMENT
Default judgment against a foreign state shall be entered
only where a plaintiff “establishes his claim or right to relief
by evidence that is satisfactory to the Court.” 28 U.S.C.
§ 1608(e). The “satisfactory to the court” standard is identical
to the standard for entering default judgment against the United
States under Fed. R. Civ. P. 55(d) (requiring claimant to
“establish[] a claim or right to relief by evidence that
satisfies the court”). Hill v. Republic of Iraq, 328 F.3d 680,
683 (D.C. Cir. 2003) (citing H.R. Rep. No. 94-1487, at 26
(1976)). Neither standard, however, is easily defined. See
Smith ex rel. Smith v. Islamic Emirate of Afghanistan, 262 F.
Supp. 2d 217, 223 (S.D.N.Y. 2003) (observing that “[t]he issue
appears to have defied definitive resolution largely because in
most cases the evidence of the defaulting defendant’s liability
is quite compelling and thus the matter can be decided without a
more concise meaning of ‘evidence satisfactory to the court’”).
The D.C. Circuit has not addressed the question, and lower courts
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have articulated varying rationales for what quantum of evidence
is “satisfactory.”
Some courts in FSIA default proceedings have found to be
“satisfactory” evidence that they described as “clear and
convincing.” See, e.g., Weinstein v. Islamic Republic of Iran,
184 F. Supp. 2d 13, 16 (D.D.C. 2002) (finding jurisdictional
facts “established by clear and convincing evidence, which would
have been sufficient to establish a prima facie case in a
contested proceeding”); Mousa v. Islamic Republic of Iran, 238 F.
Supp. 2d 1, 3 (D.D.C. 2001) (same). But the reasoning of these
cases suggests strongly –- and in some cases indicates explicitly
-- that clear and convincing evidence was considered a
sufficient, rather than a necessary, quantum of proof. See,
e.g., Campuzano v. Islamic Republic of Iran, 281 F. Supp. 2d 258,
269 (D.D.C. 2003) (concluding that “the plaintiffs have gone
beyond the necessary burden of ‘evidence satisfactory to the
court’ and have proven each element by clear and convincing
evidence”).
Other courts have drawn an analogy between the FSIA default
standard and that for judgment as a matter of law, either after a
jury trial or on summary judgment. One court held that the FSIA
default standard “call[s] for proof by evidence of a nature and
quality sufficient to support summary judgment under Fed. R. Civ.
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P. 56, namely, oral or written testimony under oath, made upon
personal knowledge by witnesses competent to testify to the
matters stated therein.” Hill v. Republic of Iraq, 175 F. Supp.
2d 36, 38 n.4 (D.D.C. 2001) (referring to then-current Rule
56(e)).1 In Ungar v. Islamic Republic of Iran, 211 F. Supp. 2d
91, 98 (D.D.C. 2002), the court considered the Hill standard,
among others, but then purported to opt for the standard for
judgment as a matter of law after a jury trial, set forth in
Federal Rule of Civil Procedure 50(a), which the court described
as “a legally sufficient evidentiary basis for a reasonable jury
to find for plaintiff.” Id. at 98.2 Several subsequent courts,
see, e.g., Gates, 580 F. Supp. 2d at 63, have adopted as the
1
This case was reversed in part by Hill v. Republic of Iraq,
328 F.3d 680 (D.C. Cir. 2003). The D.C. Circuit rejected the
burden of proof on damages for default judgment that the district
court articulated, but “did not address the question of the
FSIA’s plaintiff’s burden on proof on liability.” Hill, 328 F.3d
at 683-84.
2
The Federal Rule of Civil Procedure 50(a) standard is more
stringent than the Ungar court’s formulation suggests. Judgment
as a matter of law against a party may be granted only if “the
court finds that a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on [an]
issue.” Fed. R. Civ. P. 50(a); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 250 (1986) (holding that the summary
judgment standard “mirrors the standard for a directed verdict
under Federal Rule of Civil Procedure 50(a), which is that the
trial judge must direct a verdict if, under the governing law,
there can be but one reasonable conclusion as to the verdict”).
In this light, the standards actually applied in Hill and Ungar
are virtually identical.
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standard that the plaintiffs must put forth a “legally sufficient
prima facie case.” See, e.g., Kilburn, 699 F. Supp. 2d at 150.
Interpreting the “satisfactory to the court” standard to
require a legally sufficient prima facie case best accounts for
the posture of default proceedings under the FSIA. Where the
defendant has not participated in the proceedings and there has
been no opportunity for discovery, plaintiffs cannot be expected
to meet a typical standard for judgment as a matter of law.
However, the plaintiff’s evidence must be rigorous enough to
support the facts necessary for jurisdiction.
In FSIA default proceedings, “the court may accept as true
the plaintiffs’ uncontroverted evidence.” Wachsman v. Islamic
Republic of Iran, 603 F. Supp. 2d 148, 155 (D.D.C. 2009)
(internal quotations omitted) (quoting Elahi v. Islamic Republic
of Iran, 124 F. Supp. 2d 97, 100 (D.D.C. 2000)); see also Gates,
580 F. Supp. 2d at 63 (same); Alejandre v. Republic of Cuba, 996
F. Supp. 1239, 1243 (S.D. Fla. 1997) (same). The evidence
provided, however, is subject to the Federal Rules of Evidence.
See, e.g., Daliberti v. Republic of Iraq, 146 F. Supp. 2d at 21
n.1 (D.D.C. 2001) (noting that “[i]n the absence of defense
counsel, the Court used particular care to draw the . . .
findings of fact and conclusions of law from admissible testimony
in accordance with the Federal Rules of Evidence”). Hearsay
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evidence therefore is normally inadmissible because it lacks
sufficient indicia of reliability. Expert witnesses, however,
may rely on hearsay evidence to reach their conclusions. Fed. R.
Evid. 703. Plaintiffs may present their evidence in the form of
affidavits or declarations, see Campuzano, 281 F. Supp. 2d at 268
(citing Weinstein, 184 F. Supp. 2d at 19), and an evidentiary
hearing is not required before a default judgment against a
foreign state is entered. See Ben-Rafael v. Islamic Republic of
Iran, 540 F. Supp. 2d 39, 43 (D.D.C. 2008).
III. PLAINTIFFS’ EVIDENCE
Plaintiffs have submitted their own declarations, as well as
declarations from family member Dani Butler, and from multiple
experts on North Korea. Exhibits include congressional
resolutions relating to Reverend Kim’s abduction, and press
materials, book excerpts and reports from human rights
organizations and the U.S. State Department about North Korea.
The plaintiffs rely in particular on the decision of a South
Korean court that tried and convicted a DPRK intelligence agent
for crimes including the abduction of Reverend Kim. Plaintiffs
have provided a sworn English translation of that decision. See
Declaration of J.D. Kim (certifying translation of Decision of
Seoul Joong Ang Ji Bang Court, Criminal Part 23 (“South Korean
court decision”)). The judgment of the South Korean court is a
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proper subject of judicial notice under Federal Rule of Evidence
201 to establish the fact of foreign litigation and the resulting
actions of the foreign court. Fed. R. Evid. 201 (permitting
judicial notice of a fact that is not subject to reasonable
dispute because it can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned); see,
e.g., Jordan (Bermuda) Inv. Co., Ltd. v. Hunter Green Invs. Ltd.,
154 F. Supp. 2d 682, 689 (S.D.N.Y. 2001) (taking judicial notice
of foreign court judgment); Luxpro Corp. v. Apple Inc., No. C 10-
03058 JSW, 2011 WL 1086027, at *3 (N.D. Cal. March 24, 2011)
(same). A declaration certifying under penalty of perjury that
the translation of the decision is true and correct accompanies
the decision and suffices to establish its accuracy. See 28
U.S.C. § 1746. Recited below, without an attempt to parse the
admissibility of all of it, is the evidence presented by the
plaintiffs.
North Korean refugees who were able to escape to China
would stay in secret safe-houses that non-governmental
organizations and religious humanitarian groups had established
or that Chinese locals in the area with ethnic Korean descent
would support. Report of Yoshikuni Yamamoto (“Yamamoto Decl.”)
¶ 17. In response, the DPRK established a network of local
agents in China under DPRK’s security services to abduct
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defectors and the humanitarian workers who assisted them. Id.
¶¶ 18, 23. On September 17, 2002, DPRK leader Kim Jong-Il
admitted publicly to Prime Minister Koizumi of Japan that DPRK
security services had engaged in kidnapping Japanese citizens
between 1977 and 1983. Declaration of Ernest C. Downs (“Downs
Decl.”) ¶ 20.
In 1993, Reverend Kim moved to China to work as a missionary
providing humanitarian and religious services to the families of
North Korean defectors and refugees who had fled across the Sino-
Korean border seeking asylum. Yamamoto Decl. ¶ 20. He had
previously worked with the Special Olympics in China and worked
to raise money for medical supplies for needy children. He
learned of the plight of North Korean refugees and at once
committed himself to aid this disadvantaged community.
Declaration of Han Kim (“Han Decl.”) ¶¶ 19, 21. Reverend Kim set
up numerous refugee shelters and a school for expatriate North
Korean children and handicapped persons in the Chinese town of
Yanji. He named the school the “School of Love.” Yamamoto Decl.
¶ 20.
DPRK intelligence agent Hua was convicted on April 21, 2005
by a South Korean Court in Seoul, for his involvement in planning
and executing various abductions of civilians from China to North
Korea following the instructions of a senior DPRK intelligence
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official. South Korean court decision at 1. One of the crimes
for which Hua was convicted was his direct involvement in
planning and carrying out the abduction of Reverend Kim. Id. at
2. Hua was sentenced to ten years imprisonment. Id. at 1. The
plaintiffs allege that agents prosecuted for abducting Reverend
Kim provided information concerning Reverend Kim’s torture in
North Korea, and cite to the South Korean court decision for
support. Pls.’ Proposed Facts at 8; Revised Proposed Findings of
Facts and Conclusions of Law at 18. However, the court decision
makes no reference to Reverend Kim being tortured in North Korea.
Members of the United States Congress have investigated the
DPRK policy of abducting foreigners and have issued various
resolutions regarding the issue. On June 11, 2002, the House of
Representatives issued a resolution urging the governments of the
United States, South Korea and China to seek a full accounting
from the DPRK regarding the whereabouts of Reverend Kim. Downs
Decl. ¶ 25, Ex. A. On July 11, 2005, the House of
Representatives issued a resolution condemning the DPRK’s use of
abductions and demanding the return of individuals being held in
North Korea. Id. ¶ 25, Ex. C. On January 28, 2005, an Illinois
congressional delegation, including then-United States Senator
Barack Obama, sent a letter to North Korean Ambassador to the
United Nations Pak Gil Yon, which specifically asked that North
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Korea forthwith investigate the circumstances of Reverend Kim’s
abduction and fate, and which stated that its signatories would
not support the removal of the DPRK from the State Department’s
list of State Sponsors of Terrorism until the whereabouts of
Reverend Kim had been made known. Id. ¶ 25, Ex. E. This letter
was followed by a letter from Representative Henry Hyde in his
capacity as the Chairman of the House Committee on International
Relations, dated November 4, 2005, after the Illinois
congressional delegation had returned from a trip to Japan. Id.
¶ 25, Ex. F.
A recently declassified internal State Department cable
dated February 3, 2000, from representatives stationed in Seoul
communicating with headquarters in Washington, D.C., states that
a local Chinese paper reported that Chinese investigators had
“strong evidence” that Reverend Kim was kidnapped from China by
DPRK agents who had crossed over into China in late December to
plan the abduction. Id. ¶ 26, Ex. G. The cable -- authored a
mere two weeks after Reverend Kim’s abduction -- further reported
that ten people were involved in Reverend Kim’s kidnapping,
including a couple posing as North Korean defectors, and that
Reverend Kim was held hostage in China before being transported
into North Korea by his captors. Id. The State Department’s
2003 country report on North Korea discusses North Korea’s
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responsibility for disappearances and refers to “unconfirmed
reports that in January 2000 North Korean agents kidnaped a South
Korean citizen, Reverend Kim Dong Shik, in China and took him to
North Korea.” Decl. of Robert Tolchin, Dkt. No. 37 at 3. The
State Department also recounts that North Korea engaged in
torture including “severe beatings, electric shock, prolonged
periods of exposure, humiliations such as public nakedness, and
confinement to small ‘punishment cells[.]” Id. at 4. The report
describes harsh prison conditions in North Korea where
“starvation and executions were common” and former prisoners
reported severe beatings and “torture involving water forced into
a victim’s stomach with a rubber hose and pumped out by guards
jumping on a board placed across the victim’s abdomen[.]” Id. A
2009 State Department country report on human rights practices in
the DPRK states that the North Korean government was responsible
for disappearances and that “[i]n 2008 the media reported South
Korean missionary Kim Dong-shik had most likely died within a
year of his 2000 disappearance near the China-DPRK border.”
Decl. of Robert Tolchin, Dkt. No. 38 at 3. The 2009 report
reiterates the reported torture methods and the harsh conditions
of the prisons in North Korea. Id. at 3-4. However, the State
Department cable and reports do not provide any first-hand
accounts of Reverend Kim’s treatment, or address the nature or
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severity of any torture Reverend Kim suffered, or specify the
frequency or duration of the acts of torture or the parts of the
body at which they were aimed or any weapons used to carry them
out.
Expert research on human rights abuses in North Korea has
reported widespread and systematic repression by DPRK operatives
of DPRK citizens and foreign nationals, specifically by means of
forced abductions and confinement in kwan-li-so, or political
penal-labor colonies. The reports are based on first-hand
accounts and satellite photography, among other data.
Declaration of Professor David Hawk (“Hawk Decl.”) ¶¶ 8-13.
Professor David Hawk has expertise in human rights in North
Korea, has published extensively on that issue, and has
interviewed scores of former prisoners with first-hand accounts
of treatment in North Korean camps. He declared that prisoners
of the penal colonies face harsh conditions and treatment,
including below-subsistence food rations, back-breaking forced
physical labor, brutal beatings, long-term solitary confinement,
rape, and forced abortion. Id. ¶¶ 14-19. Prisoners are forced
to perform labor twelve or more hours a day, seven days a week,
and receive only enough food to be kept on the verge of
starvation. Id. ¶ 14. Prisoners often endure “long-term
solitary confinement in punishment cells which do not have enough
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space for a person to completely lie down or stand up, causing
inmates to experience a loss of circulation and atrophy of legs,
and often leading to death within several weeks.” Id. ¶ 15.
According to Hawk, “[a]ttempted escapees are automatically
executed and other ‘major’ rule-breakers are publicly executed by
hanging or firing squad in front of the assembled prisoners of
that section of the camp.” Id. “Many inmates cannot withstand
the harsh conditions of their imprisonment and a significant
number die within a year of their arrival to the kwan-li-so. A
large number of those who survive develop permanent disabilities
-- signs of premature aging, hunchbacks and other physical
deformities due to the brutal work conditions and cell sizes.”
Id. ¶ 16. Hawk stated that a defining characteristic of DPRK’s
political penal-labor colonies is that “prisoners are not
formally arrested, charged (or even told of their offense), or
tried in any sort of judicial procedure.” Id. ¶ 11.
Hawk said
[w]hile I do not have any firsthand knowledge about
Reverend Kim’s case specifically, given my extensive
experience with the DPRK and the manner in which
abductees repatriated from China were usually treated,
it is likely that [Reverend Kim] would have been
initially held in a ku-ryu-jang, or a DPRK police
detention and interrogation facility, before being
transferred to a kwan-li-so. It also seems likely to
me that Reverend Kim, at a minimum, would have been
subjected to the harsh treatment afforded to all of its
prisoners. But because Reverend Kim was such a
valuable target of the DPRK and so much planning,
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effort and other resources had gone into his abduction,
it is clear to me that Reverend Kim was subjected to
additional brutality.
Id. ¶ 20. Reports and concerns about Reverend Kim’s treatment
have circulated widely enough that he would have been more likely
to be viewed by the DPRK as a high-value target warranting harsh
treatment. Id. Hawk “believe[s] that the various reports of
[Reverend Kim’s] torture and eventual starvation, from the
accounts of other prisoners, are likely to be reliable and
accurately describe how Reverend Kim was treated by his captors
from the time he was abducted and incarcerated until his untimely
death.” Id. Hawk does not detail from the reports the nature or
severity of the torture Reverend Kim suffered, or the frequency
or duration of the acts of torture or the parts of the body at
which they were aimed or any weapons used to carry them out.
Ernest C. Downs, a former senior official of the U.S.
Department of Defense who served from 2001 to 2008 on the board
of the United States Committee for Human Rights in North Korea,
stated that it is “clear . . . that [Reverend Kim] was abducted
by DPRK agents from China and forcibly brought to North Korea[.]”
Downs Decl. ¶ 33. According to Downs, DPRK agents have
specifically abducted and imprisoned people who have assisted
North Korean defectors as well as Christian missionaries.
Supplemental Declaration of Ernest C. Downs (“Downs Supp. Decl.”)
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¶ 6(b)-(d). Because Reverend Kim assisted North Korean defectors
and was a Christian missionary, he was likely a “valuable and
important target to the government and ruling party of the DPRK.”
Id. ¶ 6(a)-(c). Based on the testimony of other North Korean
prisoners, Downs states that prisoners are forced to labor for
more than twelve hours per day, sometimes sixteen hours, and the
failure to meet production quotas leads to “additional hard
labor, less food, and exceptionally painful physical punishment.”
Downs Decl. ¶ 11; see also Downs Supp. Decl. ¶ 11. Thus,
“[p]risoners in North Korea’s political prisons do not often
survive.” Downs Supp. Decl. ¶ 7. Downs states that he is aware
of the testimony of 1000 former North Korean prisoners and Downs
“does not know of any case in which the former prisoner was not
subjected to torture while in the prison camp.” Downs Supp.
Decl. ¶ 10. Downs provides numerous examples from former
prisoners describing inmate mistreatment in DPRK prisons and
facilities. In particular, Downs submits an excerpt from Hawk’s
book The Hidden Gulag which recounts inmates who were subject to
burnings, skin piercing, water torture, being hung by wrists or
upside-down, sleep deprivation, food deprivation, facial and shin
beatings with rifle butts, whippings with belts, beatings in the
legs with a wooden stave, undersized punishment cells where
detainees could not stand up or lie down and placement in
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punishment cells for a week or more. Id., Ex. 1 at 148-52.
Downs also attaches an account of a prisoner who was hung by his
hands and feet, stabbed in the lower abdomen and held over a fire
until he lost consciousness. Id., Ex. 2 at 57-58.
Downs also opines that “Reverend Kim’s killing was motivated
by political considerations.” Downs Decl. ¶ 7. In his opinion,
“a foreigner abducted by the DPRK for political purposes, such as
Reverend Kim, after eleven years would still either be
languishing in a North Korea prison camp or would have already
been killed.” Id. ¶ 34. He “believe[s] that credible
information on [Reverend Kim’s] treatment in North Korea has been
obtained from defectors.” Id. He states that Reverend Kim
probably was subjected to “severe beatings while in stress
positions (such as while suspended from the ceiling), near
starvation, and forced physical exertion to the point of absolute
physical exhaustion.” Downs Supp. Decl. ¶ 9. In addition, Downs
asserts that he is certain that “Reverend Kim has been subject to
exceptionally painful, brutal, and outrageous treatment while in
prison.” Id. ¶ 8. Downs also states that “[c]redible sources
have reported that Reverend Kim died as a result of his torture
and malnutrition.” Id. ¶ 6(i). Thus, Downs concludes that
Reverend Kim’s “death resulted from torture and malnutrition
deliberately caused by his North Korean captors.” Id. ¶ 13.
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Downs neither identifies the former prisoners, the defectors or
other credible sources for these conclusions, nor reveals their
basis of knowledge about Reverend Kim, nor says he has spoken
with any of them. Downs does not provide details from the
credible information received concerning the severity of Reverend
Kim’s beatings, such as their frequency, duration, the parts of
the body at which they were aimed, or the weapons used to carry
them out.
Do Hee-Youn, a member of a South Korea-based human rights
organization, heard “through the information net” that Reverend
Kim died in North Korea as a result of torture and malnutrition
in February 2001. Declaration of Do Hee-Youn (“Do Hee-Youn
Decl.”) ¶ 13. Yoshikuni Yamamoto, a researcher at a human rights
organization in Washington, DC, stated generally that “it was
reported” that Reverend Kim was tortured after refusing to
collaborate and that he died in February 2001 and was buried in
District 91 military training base in Sangwon-ri near Pyongyang.
Yamamoto Decl. ¶ 22. Neither declaration supplied details about
the nature of the reported torture.
Human Rights Watch released a 2007 report discussing the
mistreatment of prisoners at detention facilities in North Korea.
This report states that
prisoners are subject to strip searches, verbal abuse
and threats, beatings, forced labor, and lack of food
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and medicine, among other abuses. Torture and other
cruel and inhuman treatment appears widespread and can
occur throughout the process of incarceration in North
Korea[.]
North Korea: Harsher Policies against Border-Crossers, Dkt. No.
35-1 at 8. In particular, the report includes accounts from
former prisoners who state that the guards
would make [prisoners] sit down and stand up repeatedly
until [they] collapsed, or forced [them] to hang onto
cell bars or bang [their] heads onto cell bars. . . .
Guards beat people all the time –- they used sticks or
belts. They also slapped or kicked inmates for
disobedience.
Id. Similarly, the United Nations Special Rapporteur on the
situation of human rights in the DPRK released a report which
described what it called DPRK’s record of torture and inhuman
treatment, arbitrary detention and use of prison camps. Pls.’
Supp. Submission of New Auth., Ex. 1, Human Rights Council, Rep.
of the Special Rapporteur on the situation of human rights in the
DPRK, 22d Sess., U.N. Doc. A/HRC/22/57 (Feb. 1, 2013). This
report stated that, in 2007, there were reports that DPRK
authorities engaged in “torture, public executions, and
persecution of political dissidents.” Id., Annex 1 ¶ 22. In
2008, the Secretary-General stated that reports from DPRK
“continue to indicate trends of torture, inhumane conditions of
detention, public execution, ill-treatment of refugees” and the
Special Rapporteur stated that
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the harsh conditions imposed by the criminal justice
system and related detention give rise to a plethora of
abuses, including torture and cruel, inhuman and
degrading treatment. The abuses are ubiquitous, and
include degrading treatment of deceased persons.
Id., Annex 1 ¶ 23. The UN Special Rapporteur cites 2011 reports
which state that DPRK correctional officers beat inmates and that
torture was occurring at various camps in the DPRK. Id., Annex 1
¶¶ 25-26. In addition, “[t]he Secretary-General noted in 2012
that some reports also indicate the existence of prison camps
where torture and execution are widespread.” Id., Annex 1 ¶ 27.
The report identifies the political labor camps and states that
the Special Rapporteur has consistently expressed concern about
“unreasonable and abusive punishments” and “torture and detention
without due process of law” and the “harsh conditions” in the
camps where “no clothing is provided” and inmates are “expected
to work long hours performing manual labour.” Id., Annex 1
¶¶ 48-51, 54. Neither report provides any first-hand knowledge
of Reverend Kim’s mistreatment. The reports do not detail the
frequency or duration of the acts of torture at the DPRK prison
camps.
Plaintiffs cite an excerpt from Melanie Kirkpatrick’s 2012
book Escape from North Korea that states that Reverend Kim was
tortured and murdered by the North Koreans. Pls.’ Supp.
Submission of New Authority, Dkt. No. 55, Ex. 1 at 150-51. The
- 28 -
excerpt states that Reverend Kim was transported to a political
prison camp and “[h]e appears to have been beaten and starved to
death after refusing to renounce his religion.” Id. at 152.
Kirkpatrick also states that “according to [Reverend Kim’s]
family, his remains are believed to be in People’s Army Camp 91,
a garrison on the outskirts of Pyongyang.” Id. (footnote
omitted). Kirkpatrick reports as the source for these details
the plaintiffs’ amended complaint and the filings docketed in
this case. See Melanie Kirkpatrick, Escape from North Korea 329
n.20 (2012). In any event, the Kirkpatrick excerpt does not
detail the nature or severity of the torture, or the frequency or
duration of the acts of torture or the parts of the body at which
they were aimed or any weapons used to carry them out.
IV. JURISDICTION IN THIS CASE
Section 1605A(a)(2)(A)(i)(I) provides in relevant part that
a court shall hear a claim under § 1605A against a foreign state
if that state “was designated as a state sponsor of terrorism at
the time the [torture or extrajudicial killing] occurred, . . .
and . . . either remains so designated when the claim is filed
under this section or was so designated within the 6-month period
before the claim is filed under this section[.]” North Korea was
designated as a state sponsor of terrorism in 1988. See Notice,
Determination Pursuant to Section 6(j) of the Export
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Administration Act of 1979; North Korea, 53 Fed. Reg. 3477-01
(Feb. 5, 1988). North Korea’s designation was rescinded on
October 11, 2008. See Notice, Rescission of Determination
Regarding North Korea, 73 Fed. Reg. 63540-01 (Oct. 24, 2008).
Thus, North Korea remained designated as a state sponsor of
terrorism within the 6-month period before this action was filed
on April 8, 2009.
Section 1605A(a)(2)(A)(ii)(I) further requires that “the
claimant or the victim was, at the time the act . . . occurred
. . . a national of the United States.” An individual deemed to
owe a permanent allegiance to the United States and who actively
pursues U.S. citizenship can be held to be a “national of the
United States” in satisfaction of § 1605A(a)(2)(A)(ii)(I). See,
e.g., Saludes v. Republica de Cuba, 577 F. Supp. 2d 1243, 1252
(S.D. Fla. 2008). At the time of Reverend Kim’s abduction,
plaintiff Yong Kim was a U.S. citizen and plaintiff Han Kim can
be deemed to have been a U.S. national. He had lived in the U.S.
since 1992 and became a Permanent Resident owing a permanent
allegiance to the U.S. In 1999, before his father’s abduction,
he began the application process to become a naturalized American
citizen with the intention of remaining in this country.
Supplemental Declaration of Han Kim at 1-2.
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For any “production of pain” to constitute torture under the
TVPA definition, the act must be “purposive, and not merely
haphazard . . . [or] the unforeseen or unavoidable incident of
some legitimate end.” Price, 294 F.3d at 93. Plaintiffs’
proffered evidence includes expert opinions, a type of evidence
that courts have credited in FSIA default actions. See Kilburn,
699 F. Supp. 2d at 143, 152. Hawk asserts that DPRK’s policy is
to imprison “political prisoners and others deemed to be
opponents of the DPRK regime” to “deter dissent in the larger
population[.]” Hawk Decl. ¶ 10. Hawk and Downs state that
Reverend Kim was targeted by DPRK because of his “humanitarian
activities” and because he was a Christian missionary who
assisted North Korean defectors. Hawk Decl. ¶ 21; Downs Supp.
Decl. ¶¶ 6(a)-(d), 7. In particular, Downs states that he is
“virtually certain that Reverend Kim’s killing was motivated by
political considerations.” Downs Supp. Decl. ¶ 7. Hawk adds
that in DPRK’s penal camps, “prisoners are not formally arrested,
charged (or even told of their offense), or tried in any sort of
judicial procedure.” Hawk Decl. ¶ 11. The South Korean court
decision and the expert evidence reflect that Reverend Kim was
abducted at the behest of DPRK security forces, not in accordance
with any legitimate judicial or other process, due to Kim’s
religious work and assistance to North Korean refugees.
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Therefore, the plaintiffs have sufficiently shown that any
mistreatment of Reverend Kim was done purposefully.
However, the plaintiffs’ submissions do not establish the
severity of the treatment of Reverend Kim in particular, or that
his treatment amounts to torture under the rigorous definition of
that term adopted in the FSIA. DPRK’s failure to respond to the
complaint or to respond to any of the congressional inquiries
regarding Reverend Kim’s fate, in part, obscures the precise
details of Reverend Kim’s treatment following his abduction by
DPRK agents. Moreover, the widely feared nature of DPRK
repression appears to force those individuals who may know
details about Reverend Kim’s whereabouts and treatment to convey
such information sparingly and anonymously. See, e.g., Do Hee-
Youn Decl. ¶ 2 (describing “network of individuals that have
supplied . . . information concerning North Korean matters” and
explaining “many of these individuals are kept confidential to
ensure their safety from potential retribution against them by
the North Korean government”). Unfortunately for plaintiffs, no
D.C. Circuit opinion appears to allow such circumstances to
lessen the plaintiffs’ exacting burden of proof.
Here, the declarations of the plaintiffs and Butler reflect
no actual knowledge of how Reverend Kim was treated in the DPRK.
The South Korean court decision convicted a DPRK agent of
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abducting Reverend Kim, but does not refer to Reverend Kim being
tortured. The congressional resolutions and correspondence
sought, but did not provide, details about Reverend Kim’s
treatment. The State Department reports discussing abuse in DPRK
prisons and media speculation that Revered Kim died provide no
first-hand accounts detailing his treatment. The reports from
Human Rights Watch and the United Nations provide no first-hand
accounts of Reverend Kim’s mistreatment and do not detail the
frequency or duration of the acts of torture at the prison camps.
The Kirkpatrick book excerpt recounts information docketed in
this case but adds no first-hand information about Reverend Kim’s
treatment, or any details about the nature or severity of his
torture, or the frequency or duration of any acts of torture or
the parts of his body at which they were aimed or any weapons
used to carry them out. Two of plaintiffs’ declarants, Do Hee-
Youn and Yoshikuni Yamamoto, recounted hearsay reports that
Reverend Kim was tortured and died. The declarants did not,
though, reveal the sources of the reports, specify their bases of
knowledge, or provide useful details about the nature and
severity of any torture.
The experts in this case describe conditions at an
established and extensive system of penal colonies where the DPRK
regularly holds abductees and political prisoners, and opine that
- 33 -
reports from defectors stating that Reverend Kim was tortured and
is either still in custody or has died as a result of his
treatment are credible. However, Hawk does not report that the
prisoners he spoke with had personal knowledge of Reverend Kim’s
treatment. Hawk also does not describe the nature or severity of
the torture Revered Kim suffered, or the frequency or duration of
acts of torture upon him or the parts of the body at which they
were aimed or any weapons used to carry them out. Likewise,
Downs does not identify the sources he deems credible upon whom
he based his opinion that Reverend Kim probably died as a result
of deliberate torture and malnutrition. He does not reveal their
bases of knowledge about Reverend Kim or say whether he has
spoken with them. Nor does Downs provide details regarding the
severity of Reverend Kim’s beatings. Price constrains us from
employing discussion about the abuses generally in these camps to
show that mistreatment of Reverend Kim occurred that rose to the
level of torture under the TVPA. As the plaintiffs have not
satisfied the requirements of the FSIA, subject matter
jurisdiction is lacking.
Although the plaintiffs have not provided sufficient
evidence to support jurisdiction under the FSIA, a district court
ruling on whether facts in a complaint adequately allege a basis
for invoking the torture exception under the FSIA should be
- 34 -
immediately appealable. See Price, 294 F.2d at 92 (allowing
Libya to immediately appeal a district court decision rejecting
Libya’s argument that the facts alleged in the complaint do not
bring the case within an FSIA immunity exception). Moreover,
this case qualifies for an interlocutory appeal under 28 U.S.C.
§ 1292(b). That statute provides that an interlocutory appeal
may be certified to the court of appeals when
a district judge . . . shall be of the opinion that
such order involves a controlling question of law as to
which there is substantial ground for difference of
opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the
litigation.
28 U.S.C. § 1292(b). “Under § 1292(b), a controlling question of
law is one that would require reversal if decided incorrectly or
that could materially affect the course of litigation with
resulting savings of the court’s or the parties’ resources[]” and
“include[s] issues that would terminate an action if the district
court’s order were reversed.” APCC Servs., Inc. v. Sprint
Communic’ns Co., L.P., 297 F. Supp. 2d 90, 95-96 (D.D.C. 2003)
(internal citations and quotation marks omitted). Here, the
determination of subject matter jurisdiction qualifies as a
controlling question of law. See id. Also, there is “a
substantial ground for difference of opinion” about whether
plaintiffs have presented the requisite quantum of evidence to
show that Reverend Kim was tortured under the FSIA. Cf. Doe v.
- 35 -
Qi, 349 F. Supp. 2d 1258, 1312-17 (N.D. Cal 2004) (discussing
Price and collecting cases applying the standard for sufficient
factual allegations to allege torture under the FSIA). Finally,
“[w]hen there are substantial grounds for difference of opinion
as to a court’s subject matter jurisdiction, courts regularly
hold that immediate appeal may ‘materially advance the ultimate
termination of the litigation.’” Al Maqaleh v. Gates, 620 F.
Supp. 2d 51, 55 (D.D.C. 2009). Certification for an
interlocutory appeal in this case, then, is warranted.
CONCLUSION AND ORDER
Subject matter jurisdiction over this action depends in part
upon an adequate demonstration that Reverend Kim was tortured
following his abduction. Plaintiffs have not met to the court’s
satisfaction the high standard recognized by this circuit under
the FSIA for showing that Reverend Kim was tortured. Thus, the
court lacks subject matter jurisdiction over this action. The
motion for default judgment will be denied, and the case will be
certified for interlocutory appeal on the issue of the requisite
quantum of evidence for sufficiently alleging torture under the
FSIA. Accordingly, it is hereby
ORDERED that plaintiffs’ motion [14] for default judgment
be, and hereby is, DENIED. It is further
- 36 -
ORDERED that this case be, and hereby is, certified for
immediate appeal under 28 U.S.C. § 1292(b) because it involves a
controlling question of law as to which there is a substantial
ground for difference of opinion, and an immediate appeal may
materially advance the ultimate termination of this litigation.
It is further
ORDERED that all proceedings in this case be stayed upon the
application of the plaintiffs for an interlocutory appeal under
28 U.S.C. § 1292(b) of the finding that the court lacks subject
matter jurisdiction under the FSIA.
SIGNED this 14th day of June, 2013.
/s/
RICHARD W. ROBERTS
United States District Judge