126
414 FEDERAL SUPPLEMENT, 3d SERIES
plaintiffs A-3, A-35, A-37, B-73, and C-1
through C-32—are the ‘‘legal representatives’’ of claimants who otherwise would
have had standing and thus have standing
themselves to bring this cause of action.
D.
Liability
1. Acts of Torture, Hostage-Taking,
and Extrajudicial Killing
The FSIA requires that an act of ‘‘hostage-taking,’’ ‘‘torture,’’ or ‘‘extrajudicial
killing’’ caused the plaintiffs’ injuries. 28
U.S.C. § 1605(a)(1); see id. § 1605A(c).
North Korea committed all three acts and
in so doing caused the plaintiffs’ injuries.
[29] Hostage-Taking. The FSIA defines ‘‘hostage-taking’’ by reference to the
International Convention Against the Taking of Hostages, which defines the term as
when one ‘‘seizes or detains and threatens
to kill, to injure or to continue to detain
another person TTT to compel a third party
TTT to do or abstain from doing any act as
an explicit or implicit condition for the
release of the hostage.’’ International Convention Against the Taking of Hostages
art. 1, Dec. 18, 1979. The North Koreans
detained the crew members, regularly
threatened to kill or injure them, and used
their capture as leverage to compel the
United States to make a false confession
as a condition of their release. Pls.’ Ex. 5
at 1628. North Korea committed acts of
hostage taking. See Massie, 592 F. Supp.
2d at 74.
[30] Torture. The FSIA defines ‘‘torture’’ as
any act, directed against an individual in
the offender’s custody or physical control, by which severe pain or suffering
TTT whether physical or mental, is intentionally inflicted on that individual for
11, 15–18, 23, 25–26; id. Vol. 7 at 187–191,
195–197, 208–210, 212–217; id. Vol. 8 at 226,
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 Torture
Victim Protection Act of 1991, Pub. L. No.
102–256, 106 Stat. 73, § 3(b)(1) (1992), codified at 28 U.S.C. § 1350 (note § 3(b)(1))).
The crew members were kept in North
Korea’s custody in detention centers, endured intense pain and suffering intentionally inflicted upon them, and were intimidated into participating in North Korean
propaganda and making false confessions.
See supra Part II.B. North Korea committed acts of torture. See Massie, 592 F.
Supp. 2d at 66.
[31, 32] Extrajudicial Killing. The
FSIA’s definition of ‘‘extrajudicial killing,’’
taken from the Trafficking Victims Protection Act, ‘‘contains three elements: (1) a
killing; (2) that is deliberated; and (3) is
not authorized by a previous judgment
pronounced by a regularly constituted
court.’’ Owens I, 864 F.3d at 770. [Redacted]. Their ships’ coordinated maneuvering
and shelling reflected the ‘‘preparation,
meticulous timing, and coordination’’ required to show deliberation. Id. And their
attack was ‘‘neither authorized by any
court nor by the law of nations.’’ Id. Nor
was the Pueblo ‘‘engaged in combat operations,’’ leaving ‘‘no colorable argument’’
that the killing was acceptable under international law. Worley, 75 F. Supp. 3d at
325. North Korea committed an act of
‘‘extrajudicial killing.’’
230; id. Vol. 10 at 52, 61, 63, 67–68.