HAN KIM v. DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA Cite as 950 F.Supp.2d 29 (D.D.C. 2013) DISCUSSION I. JURISDICTION AND LIABILITY UNDER THE FSIA Before Congress amended the FSIA in 2008 to add the § 1605A(c) private right of action, the D.C. Circuit explained that at base, ‘‘[t]he FSIA is undoubtedly a jurisdictional statute which, in specified cases, eliminates foreign sovereign immunity and opens the door to subject matter jurisdiction in the federal courts.’’ Price v. Socialist People’s Libyan Arab Jamahiriya, 294 F.3d 82, 87 (D.C.Cir.2002); see also Maritime Int’l Nominees Establishment v. Republic of Guinea, 693 F.2d 1094, 1099 (D.C.Cir.1982) (‘‘[T]he absence of immunity is a condition to the presence of subject matter jurisdiction.’’). The door is opened only for cases that fall into one of the statute’s specifically enumerated exceptions. Here, Han and Yong rely on the exception eliminating foreign sovereign immunity in cases ‘‘in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, [or] extrajudicial killing, TTT if such act TTT is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.’’ 28 U.S.C. § 1605A(a)(1). The FSIA imposes the additional jurisdictional requirements that the foreign state have been designated as a state sponsor of terrorism during a specified period, that the claimant or victim have been a United States national at the time of the torture, and that the foreign state have been afforded a reasonable opportunity to arbitrate the claim. 28 U.S.C. § 1605A(a)(2). Section 1605A(c) provides the private right of action for a U.S. citizen against such a foreign state for personal injury or death caused by an act of torture engaged in by the foreign state’s officials acting in their official capacity. 28 U.S.C. § 1605A(c). In actions under this provision, ‘‘a foreign state shall be vicari- 31 ously liable for the acts of its officers, employees, or agents.’’ Id. Because plaintiffs must allege the elements of a claim under § 1605A(c) in order to meet the requirements for waiver of foreign sovereign immunity, liability will exist whenever the jurisdictional requirements of § 1605A(a) are proven. See Kilburn v. Islamic Republic of Iran, 699 F.Supp.2d 136, 155 (D.D.C.2010) (‘‘[T]he § 1605A(c) cause of action is fulfilled by demonstrating that the foreign sovereign performed acts described in subsection (a)(1) of § 1605A, which addresses immunity and subject matter jurisdictionTTTT Although an analysis of a foreign sovereign’s potential immunity and liability should be conducted separately, the elements of immunity and liability under § 1605A(c) are essentially the same in that § 1605A(a)(1) must be fulfilled to demonstrate that a plaintiff has a cause of action.’’); see also Gates v. Syrian Arab Republic, 580 F.Supp.2d 53, 64–69 (D.D.C. 2008) (explaining that § 1605A(c) provides a private right of action where subject matter jurisdiction exists under § 1605A(a)). The FSIA adopts the definition of torture contained in section 3 of the Torture Victims Protection Act (‘‘TVPA’’). 28 U.S.C. § 1605A(h)(7) (citing 28 U.S.C. § 1350 note). The TVPA defines torture as 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, intimi-