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 ORDER
Plaintiffs Han Kim and Yong Seok Kim bring this civil action
under the terrorism exception of the Foreign Sovereign Immunities
Act (“FSIA”), 28 U.S.C. § 1605A, 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. The plaintiffs allege that
following his abduction, Reverend Kim was forcibly transferred to
North Korea where he was repeatedly tortured by officials,
employees and agents of DPRK.
As a jurisdictional statute, the FSIA permits courts to
enter judgments of liability against foreign states only where a
plaintiff 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)(1). Plaintiffs rely on
the exception for torture, arguing that “[t]he evidence submitted
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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 Fact and Conclusions of Law at 42.)
Although plaintiffs proffer no direct evidence of torture, their
expert testimony and circumstantial evidence purport to establish
plaintiffs’ entitlement to relief.
In Price v. Socialist People’s Libyan Arab Jamahiriya, 294
F.3d 82 (D.C. Cir. 2002), the D.C. Circuit, considering the
sufficiency of allegations of torture on a motion to dismiss,
emphasized the high standard that the statutory definition of
torture imposes.1 The court reasoned that under the statutory
definition, “torture does not automatically result whenever
individuals in official custody are subjected even to direct
physical assault.” Id. at 93. Rather, “[t]he critical issue is
the degree of pain and suffering that the alleged torturer
1
The FSIA adopts the definition of torture contained in
section 3 of the Torture Victim Protection Act, namely “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.”
28 U.S.C. § 1605A(h)(7) (citing 28 U.S.C. § 1350 note).
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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.” Id. In light of this understanding, the court
found insufficient allegations that plaintiffs were held 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 court found that
the “plaintiffs’ complaint offer[ed] no useful details about the
nature of the kicking, clubbing, and beatings that plaintiffs
allegedly suffered,” and “[a]s a result, there [was] 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.” Id. at 93; see also
Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326 F.3d
230 (D.C. Cir. 2003) (finding allegations of forcibly removing
passenger from ship, holding her incommunicado, and threatening
her with death did not constitute torture under FSIA).
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The expert affidavits and accompanying material upon which
the plaintiffs here rely refer to a wide variety of abuses to
which people held in North Korean prison camps are subjected.
For plaintiffs to establish their claim for a default judgment
against a foreign state “by evidence [that is] satisfactory to
the court[,]” 28 U.S.C. § 1608(e), the showing must satisfy the
strict standards articulated in Price regarding useful details
about the torture that Reverend Kim allegedly suffered and the
severity of it. In order to facilitate the jurisdictional
inquiry into whether the plaintiffs’ evidence “satisf[ies] the
TVPA’s rigorous definition of torture,” Price, 294 F.3d at 93,
the plaintiffs will be directed to supplement their proposed
findings of fact and conclusions of law. Accordingly, it is
hereby
ORDERED that the plaintiffs file by October 1, 2012 a
supplement providing further evidentiary support for their
allegation of torture.
SIGNED this 17th day of August, 2012.
/s/
RICHARD W. ROBERTS
United States District Judge
Kim v. Democratic People's Republic of Korea
Combined Opinion