HAN KIM v. DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA
Cite as 774 F.3d 1044 (D.C. Cir. 2014)
Democratic People’s Republic of Korea on
official’s family’s claims under the terrorism exception to the Foreign Sovereign
Immunities Act (FSIA); abduction of religious official was well-documented, and experts on the Democratic People’s Republic
of Korea testified that political prisoners
sent to the camp at which religious official
was held were routinely tortured and
starved
to
death.
28
U.S.C.A.
§§ 1605A(g), 1608(e).
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.
Opinion for the Court filed by Circuit
Judge TATEL.
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
1045
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.
I.
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 TTT 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 TTT 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