Han Kim v. Democratic People's Republic of Korea
| Citation | 774 F.3d 1044 |
| Decision Date | 23 December 2014 |
| Docket Number | No. 13–7147.,13–7147. |
| Parties | HAN KIM and Yong Seok Kim, Appellants v. DEMOCRATIC PEOPLE'S REPUBLIC OF KOREA, also known as North Korea and John Does 1–10, Appellees. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Asher Perlin argued the cause for appellants. With him on the brief was Robert J. Tolchin. Meir Katz entered an appearance.
Robert P. LoBue argued the cause for amicus curiae Human Rights First. With him on the brief was Gabor Rona.
Before: TATEL and WILKINS, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge TATEL.
Relying on the “terrorism exception” to the Foreign Sovereign Immunities Act, the family of Reverend Dong Shik Kim sued the North Korean government alleging that it abducted him, confined him to a kwan-li-so —a political penal-labor colony—tortured him, and, ultimately, killed him. When North Korea failed to appear, the Kims asked the district court for a default judgment pursuant to the provision of the Act that authorizes a court to enter judgment if the plaintiff “establishes his claim or right to relief by evidence that is satisfactory to the Court.” The district court denied that motion because the Kims had failed to produce “first-hand evidence” of what happened to the Reverend. We reverse. Admissible record evidence demonstrates that North Korea abducted Reverend Kim, that it invariably tortures and kills political prisoners, and that through terror and intimidation it prevents any information about those crimes from escaping to the outside world. Requiring a plaintiff to produce direct, firsthand evidence of the victim's torture and murder would thus thwart the purpose of the terrorism exception: holding state sponsors of terrorism accountable for torture and extrajudicial killing. In these circumstances, we find the Kims' evidence sufficiently “satisfactory” to require a default judgment.
The Foreign Sovereign Immunities Act (FSIA) generally immunizes foreign governments from suit in the United States. See 28 U.S.C. § 1604. Truly heinous acts, however, can negate that immunity. Under the statute's “terrorism exception,” state sponsors of terrorism may be liable in federal court for torture and extrajudicial killing. See id. § 1605A(a). The FSIA defines those substantive offenses by reference to the Torture Victims Protection Act (TVPA). See id. § 1605A(h)(7) (citing id. § 1350 note). That Act defines torture as “any act, directed against an individual in the offender's custody or physical control, by which severe pain or suffering ... 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 ... 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, 106 Stat. 73, 73 (1992). An extrajudicial killing is “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.” Id.
The Democratic People's Republic of Korea (DPRK or “North Korea”), long a mainstay on the State Department's list of terror sponsors—in fact, one of a small handful of bad actors that spurred Congress to adopt the terrorism exception in the first place, see H.R.Rep. No. 104–383, at 62 (1995)—has never shied away from torturing and killing its political enemies. See generally U.N. Human Rights Council, Report of the Detailed Findings of the Commission of Inquiry on Human Rights in the Democratic People's Republic of Korea, U.N. Doc. A/HRC/25/CRP.1 (Feb. 7, 2014). That much is clear. Equally clear, the Reverend Dong Shik Kim, the alleged victim in this case, spent nearly a decade providing humanitarian and religious services to North Korean defectors and refugees who fled to China seeking asylum. And there is no question that North Korean operatives abducted Reverend Kim in 2000 after the government found out about his activities. In fact, a South Korean court convicted a DPRK agent for that very kidnapping. See Han Kim v. Democratic People's Republic of Korea, 950 F.Supp.2d 29, 35 (D.D.C.2013) (citing Decl. of J.D. Kim).
Beyond that, though, we have no direct evidence of the Reverend's fate. After his family, invoking the terrorism exception, sued the North Korean government, they presented numerous witnesses, including several experts on the regime's brutal tactics, who claim to have heard second- or third-hand that the Reverend died as a result of torture soon after he disappeared. But no one—not the Kims, not the witnesses who submitted declarations on their behalf, and not the district court—knows for certain what happened.
Still, when the DPRK failed to show up to answer the charges, the Kims asked the district court for a default judgment holding the regime liable for torturing and killing the Reverend. The FSIA provides that “[n]o judgment by default shall be entered ... unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” 28 U.S.C. § 1608(e). Precisely what that standard entails—that is, how much and what kind of evidence the default provision requires—is unclear.
That question is especially vexing where, as here, the defendant State prevents any evidence from leaving its borders. Recognizing as much, the district court observed that since North Korea “has not participated in the proceedings,” since “there has been no opportunity for discovery,” and since the “widely feared ... repression” in the country “obscures the precise details of Reverend Kim's treatment,” the plaintiffs “cannot be expected to meet a typical standard for judgment as a matter of law.” Kim, 950 F.Supp.2d at 35, 42. Nonetheless, the district court concluded that the “evidence must be rigorous enough to support the facts necessary for jurisdiction.” Id. Relying on Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82 (D.C.Cir.2002), in which this Court rejected an FSIA plaintiff's allegations because he had not recounted the precise nature of his mistreatment, the district court determined that the Kims had failed to carry their evidentiary burden. Specifically, it observed that their witnesses could “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,” and instead engaged only in “discussion about the abuses generally in [North Korean forced-labor] camps to show that” the DPRK “probably” mistreated the Reverend. Kim, 950 F.Supp.2d at 41–42.
The Kims appeal. We review the district court's application of the law—in this case, its articulation of the FSIA's evidentiary requirements—de novo. See Brayton v. Office of the United States Trade Representative, 641 F.3d 521, 524 (D.C.Cir.2011).
The Torture Victims Protection Act—and, by reference to that Act, the FSIA—describes torture and extrajudicial killing in some detail. An act is torture only if the perpetrator intends to and actually does inflict severe pain in order to punish or to extract information. A killing runs afoul of the statute only if it occurs outside the normal legal process. The statute thus imposes tight constraints on courts required to decide whether an act satisfies the terrorism exception's substantive elements. But when the defendant State fails to appear and the plaintiff seeks a default judgment, the FSIA leaves it to the court to determine precisely how much and what kinds of evidence the plaintiff must provide, requiring only that it be “satisfactory to the court.” 28 U.S.C. § 1608(e).
Our case law provides little help. Indeed, the single case on which the district court relied—Price —differs significantly from this one. In that case, we were considering Libya's motion to dismiss under a “standard ... similar to that of Rule 12(b)(6),” and we granted that motion because the plaintiff's allegations were too general, observing that he “offer[ed] no useful details about the nature” or “purpose of the alleged torture.” Price, 294 F.3d at 93–94. Absent more specific allegations, we explained, we were unable to distinguish between “actual torture” and “mere police brutality.” Id. at 93. Here, by contrast, the issue is whether the Kims are entitled to a default judgment—a question that turns on whether the evidence is “satisfactory to the court.” Of course, the Kims alleged plenty in their complaint, asserting, for example, that “[w]hen Reverend Kim refused to adopt the [official political] ideology [of North Korea,] he was punished by being deprived of all food” and that he “died as the result of [that] starvation and [ ] torture.” Compl., ¶¶ 24–25. If proven with admissible evidence, that treatment would clearly constitute torture within the TVPA's meaning. But while accepting the Kims' allegations as true, the district court concluded that their evidence was too weak to support their claims. Specifically, it emphasized repeatedly that the plaintiffs had failed to “provide any first-hand accounts of Reverend Kim's treatment” that “address[ed] the nature or severity of any torture Reverend Kim suffered, or specif[ied] 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.” Kim, 950 F.Supp.2d at 37 (emphasis added). Properly understood, then, the question before us is not whether the Kims' allegations were specific enough to implicate the terrorism exception and withstand a motion to dismiss, but rather whether the amount and types of evidence they proffered were “satisfactory.” On that question, Price has nothing to say.
Another important distinction separates this case from Price. Having escaped their captors, the Price plaintiffs were alive, present,...
To continue reading
Request your trial