WARMBIER v. DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA
Cite as 356 F.Supp.3d 30 (D.D.C. 2018)
against prisoners, is torture under the
FSIA.’’ Id. (emphases in original).
[17] The TPVA lists certain purposes
for which extreme and outrageous measures might be torturous, such as ‘‘obtaining from that individual or a third person
information or a confession,’’ 28 U.S.C.
§ 1350 (note), although the list of purposes
in the TVPA ‘‘was not meant to be exhaustive,’’ Price, 294 F.3d 82 at 93. In sum,
‘‘[i]n order to lose its sovereign immunity,
a foreign state must impose suffering cruelly and deliberately, rather than as the
unforeseen or unavoidable incident of some
legitimate end.’’ Id.
[18] Here, ascertaining precisely what
North Korea did to Otto to cut off the
blood flow to his brain, rendering him
blind, deaf and brain dead, is not forensically doable, but also is unnecessary.
Certainly, Otto, who was returned by
North Korea to the United States with
severe brain damage that eventually killed
him, see Kanter Decl. ¶ 21, was ‘‘incapacitated’’ and ‘‘unable to testify about [his]
experiences,’’ Owens, 864 F.3d at 787. Further, North Korea has not appeared in this
case and, not surprisingly, no witnesses
are available to provide any eyewitness or
even hearsay evidence on this point. Indeed, North Korea ‘‘is known to intimidate
defectors and potential witnesses.’’ Kim,
774 F.3d at 1048; see also, e.g., Hawk
Expert Decl. ¶ 28 (‘‘North Korea is known
to intimidate potential witnesses to its human rights abuses to prevent information
about such abuses from reaching the outside world.’’). Accordingly, ‘‘[w]ith a dearth
of firsthand evidence, reliance upon secondary materials and the opinions of experts is often critical in order to establish
the factual basis of a claim under the FSIA
terrorism exception.’’ Owens, 864 F.3d at
787; see also Kim, 774 F.3d at 1049
(‘‘[W]here a plaintiff has produced compelling, admissible evidence that the regime
47
abducted the victim and that it routinely
tortures and kills the people it abducts, the
courts can assume that the defendant
probably tortured and killed the victim.’’).
‘‘In these circumstances, requiring that the
[plaintiffs] prove exactly what happened to
the [victim] and when would defeat the
Act’s very purpose’’ of ‘‘punish[ing] foreign
states who have committed or sponsored
such acts and deter them from doing so in
the future.’’ Kim, 774 F.3d at 1048.
The plaintiffs have satisfactorily established that North Korea more likely than
not barbarically tortured Otto to extract a
false confession and then, after a proceeding characterized by North Korea as a
‘‘trial,’’ used Otto’s lengthy sentence as
leverage against the United States to further North Korea’s own foreign policy objectives. Here, as in similar cases, reliance
on expert testimony is sufficient and appropriate. See, e.g., Owens, 864 F.3d at
787; Kim, 774 F.3d at 1049 (finding sufficient evidence of torture where experts
‘‘reported that victims of forced disappearance in North Korea usually suffer torture’’ and that the victim was an ‘‘especially likely target’’). Three separate experts
on North Korea confirm that Otto was
tortured during different stages of his detention in North Korea.
First, Otto was likely tortured while interrogated to obtain a false confession.
David Hawk, an expert on human rights in
North Korea who has interviewed many
North Korean refugees, see Hawk Expert
Decl. ¶¶ 1–4, and whose testimony the D.C.
Circuit has previously credited, see Kim,
774 F.3d at 1050, opined that Otto ‘‘was
almost certainly subject to harsh interrogation methods, including torture and/or
other cruel, inhuman or degrading treatment or punishment,’’ Hawk Expert Decl.
¶ 37. North Korea ultimately obtained a
false confession from Otto, and ‘‘the initial
or pretrial interrogation stage, when inter-