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950 FEDERAL SUPPLEMENT, 2d SERIES
dating or coercing that individual or a
third person, or for any reason based on
discrimination of any kind.
TVPA, Pub. L. No. 102–256, § 3(b)(1), 106
Stat. 73, 73 (1992).
The amended complaint also alleges that
Reverend Kim was ‘‘tortured to death by
officers, employees and agents of defendant North Korea[,]’’ Am. Compl. ¶ 27, and
that Reverend Kim’s ‘‘murder’’ thus qualifies under 28 U.S.C. § 1605A as an extrajudicial killing, id. ¶ 33. The FSIA adopts
the definition of extrajudicial killing contained in the TVPA: ‘‘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.’’ TVPA, Pub. L. No.
102–256, § 3(a), 106 Stat. 73, 73 (1992).
Courts have found that extrajudicial killing
occurs, for example, where a defendant
deliberately kills individuals by a targeted
or deliberate bombing, see, e.g., Owens v.
Republic of Sudan, 826 F.Supp.2d 128, 150
(D.D.C.2011); Valore v. Islamic Republic
of Iran, 700 F.Supp.2d 52, 74 (D.D.C.2010),
or deliberately assassinates or executes an
individual, see Oveissi v. Islamic Republic
of Iran, 573 F.3d 835, 839–40 (D.C.Cir.
2009); Kilburn, 699 F.Supp.2d at 152–53;
Bakhtiar v. Islamic Republic of Iran, 571
F.Supp.2d 27, 34 (D.D.C.2008). Here,
plaintiffs have not alleged a targeted
bombing or a deliberate execution. Instead, by alleging that Reverend Kim was
tortured to death and that this murder
qualifies as an extrajudicial killing, the
plaintiffs must show that North Korean
agents deliberately killed Reverend Kim
by torturing him. Thus, the plaintiffs’ extrajudicial killing claim relies squarely
upon an adequate showing that Reverend
Kim was tortured.
The D.C. Circuit has emphasized the
high standard that the statutory definition
of torture imposes. In Price, an interlocu-
tory appeal of a district court order rejecting Libya’s claim of sovereign immunity in
its motion to dismiss, the court of appeals
considered the sufficiency of the complaint’s allegations of torture. The circuit’s reasoning merits recounting in some
detail:
The severity requirement is crucial to
ensuring that the conduct proscribed by
the Convention and the TVPA is sufficiently extreme and outrageous to warrant the universal condemnation that
the term ‘torture’ both connotes and invokesTTTT [O]nly acts of a certain gravity shall be considered to constitute torture TTTT The term ‘torture,’ TTT is
usually reserved for extreme, deliberate
and unusually cruel practices, for example, sustained systematic beating, application of electric currents to sensitive
parts of the body, and tying up or
hanging in positions that cause extreme
painTTTT The critical issue is the degree
of pain and suffering that the alleged
torturer intended to, and actually did,
inflict upon the victim. The more intense, lasting, or heinous the agony, the
more likely it is to be tortureTTTT [I]n
order to constitute torture, an act must
be a deliberate and calculated act of an
extremely cruel and inhuman nature,
specifically intended to inflict excruciating and agonizing physical or mental
pain or sufferingTTTT [T]orture does not
automatically result whenever individuals in official custody are subjected
even to direct physical assault. Not all
police brutality, not every instance of
excessive force used against prisoners,
is torture under the FSIATTTT [I]t is
especially important for the courts to
ensure that foreign states are not
stripped of their sovereign immunity
unless they have been charged with actual torture, and not mere police brutality.
Price, 294 F.3d at 92–93 (internal quotations and citations omitted). In addition,