United States Court of Appeals, District of Columbia Circuit
Argued November 20, 2014.
Appeal from the United States District Court for the District of Columbia. (No. 1:09-cv-00648).
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.
Tatel, Circuit Judge:
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, first-hand 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 ...