WARMBIER v. DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA
Cite as 356 F.Supp.3d 30 (D.D.C. 2018)
North Korea’s increased nuclear and conventional weapons testing.’’ Id. ¶ 20. Thus,
‘‘[i]t was not an accident that Otto’s arrest
occurred in early January 2016,’’ because
at that time, North Korea ‘‘was then pursuing the rapid and highly public expansion of its nuclear weapons program.’’ Id.
¶ 21. On January 6, 2016, just four days
after North Korea seized Otto at the Pyongyang International Airport, ‘‘North Korea
claimed to have tested the nation’s first
hydrogen bomb,’’ and ‘‘[o]n September 9,
2016, North Korea announced that it successfully tested a nuclear warhead that
could be mounted onto ballistic missiles.’’
Id. Even if North Korea ‘‘may have gone
ahead with these weapons tests whether or
not it had Otto in its custody,’’ North
Korea ‘‘would have believed that having
Otto gave it an extra level of security that
would deter the United States from being
aggressive in response.’’ Id.
Additionally, legislation to sanction
North Korea had been pending in the U.S.
Congress in 2015, which ‘‘North Korea
would TTT have been aware and apprehensive of TTT before it seized Otto.’’ Id. ¶ 22.
Less than two weeks after enactment in
the United States of the North Korea
Sanctions and Policy Enhancement Act of
2016 (H.R. 757, Pub. L. 114–122), North
Korea made public Otto’s purported ‘‘confession.’’ Id. Then, Otto’s trial and sentencing occurred on March 16, 2016, the day
after ‘‘President Obama had signed an Executive Order imposing a variety of sanctions on North Korea,’’ with Otto’s trial
held on the actual day this Executive Order became effective. Id. ¶ 23.
Just as in Massie, where North Korea
took hostage the USS Pueblo crew to ‘‘extract a public apology’’ from the United
States, in violation of the FSIA, here, too,
North Korea detained, convicted and imposed a lengthy prison term on Otto in
order to gain leverage as North Korea
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engaged in highly publicized nuclear and
long-range missile tests and the United
States developed its North Korea sanctions policy. See Massie, 592 F.Supp.2d at
65, 67; see also Hekmati, 278 F.Supp.3d at
162 (finding sufficient proof of hostage taking under the FSIA when ‘‘Iran detained
Hekmati on false espionage charges and,
for four-and-a-half years, continuously
threatened to kill, injure, and detain him,
in an effort to compel the United States to
release Iranians imprisoned in the United
States or make other political or financial
concessions to Iran.’’). This is sufficient
evidence for hostage taking.
Another pernicious purpose of North
Korea’s hostage taking must be highlighted. North Korea, as a totalitarian state,
exercises tight control on its own media
and citizenry, and by seizing an American
hostage, seeks to extend this control outside its borders by muting criticism of its
actions in the United States and the international community through the explicit
and implicit threat to the safety and wellbeing of the hostage. See H’rg Tr. (Rough)
at 121 (Expert Prof. Sung-Yoon Lee) (explaining that North Korea publicly portrays itself as a ‘‘high-functioning’’ nation
‘‘based on the TTT rule of law’’ to maintain
‘‘the semblance of normalcy’’); id. at 104
(Expert David Hawk) (stating that North
Korea ‘‘care[s] about its international reputation with respect to human rights’’). As
Otto’s case illustrates, fear that public criticism of North Korea will result in reprisal
against the hostage worked as North Korea intended to keep the Warmbiers and
their family and friends silent about Otto’s
detention.
U.S. government officials repeatedly
cautioned the Warmbiers that North Korea threatened to injure Otto if they spoke
out publicly about Otto’s confinement and
questioned or criticized publicly the North
Korean story about the circumstances of