1050
774 FEDERAL REPORTER, 3d SERIES
and religious activities made him an especially likely target.
[2] Recall that maltreatment is actionable under the FSIA only if purposeful
and particularly harsh and that killings are
prohibited only if they occur outside the
limits of the normal legal process. The
Kims’ experts make a compelling case that
North Korea violated both provisions.
Professor David Hawk, an expert on
human rights in North Korea who has
interviewed dozens of former kwan-li-so
prisoners, reports that such prisoners regularly endure harsh treatment, including
starvation, brutal beatings, rape, and
forced abortion. Decl. of Professor David
Hawk ¶¶ 14–19. Although acknowledging
that he lacks ‘‘firsthand knowledge about
Reverend Kim’s case specifically,’’ Professor Hawk believes it ‘‘likely that [Reverend Kim] would have been TTT transferred
to a kwan-li-so ’’ and that, once there, the
Reverend—a ‘‘valuable target of the
DPRK’’—would have suffered ‘‘additional
brutality’’ even beyond that typical of Korean labor camps. Id. ¶ 20. That treatment, he reports, would probably mean
twelve hours of physical labor per day,
seven days a week, and ‘‘longterm solitary
confinement in punishment cells which do
not have enough space for a person to
completely lie down or stand up, causing
inmates to experience a loss of circulation
and atrophy of legs, and often leading to
death within several weeks.’’ Id. ¶ 15.
Ernest Downs, a former senior Defense
Department official and member of the
board of the U.S. Committee for Human
Rights in North Korea, testifies with even
more certainty: of the one thousand former prisoners with whose testimony he is
familiar, he ‘‘do[es] not know of any case in
which the former prisoner was not subjected to torture while in the prison camp.’’
Supplemental Decl. of Ernest C. Downs
¶ 10. That treatment includes ‘‘kneeling
motionless’’ for hours on end, ‘‘water torture,’’ ‘‘ ‘pigeon torture’ with TTT arms
pinned behind [the] back and attached to
cell bars in ways that made it impossible
either to stand up or sit down,’’ and other
typical torture that is, regrettably, too
commonplace to require detailed description here. Id., Ex. 1, at 149.
[3, 4] Of course, suffering alone is insufficient to establish a claim under the
FSIA’s terrorism exception. To qualify as
torture, the mistreatment must be purposeful—that is, the defendant must have
targeted the victim, for instance, to punish
him for his religious or political beliefs.
Along these lines, Professor Hawk testifies
that North Korea’s policy is to imprison
‘‘political prisoners and others deemed to
be opponents of the DPRK regime’’ to
‘‘deter dissent in the larger population.’’
Hawk Decl. ¶¶ 9–10. According to Professor Hawk, moreover, North Korea targeted Reverend Kim not only because of his
‘‘humanitarian activities,’’ but also because
he was a Christian missionary who proselytized to defectors. Id. ¶ 21. For his
part, Downs is ‘‘virtually certain’’ that Reverend Kim, ‘‘a foreigner abducted by the
DPRK for political purposes,’’ would have
been singled out for ‘‘exceptionally painful,
brutal, and outrageous treatment’’ and is
probably dead ‘‘as a result of his torture
and malnutrition.’’ Decl. of Ernest C.
Downs ¶ 34; Downs Suppl. Decl. ¶¶ 6(i),
7, 8. This expert testimony is more than
sufficient to ‘‘satisf[y]’’ us that North Korea purposefully tortured Reverend Kim.
With respect to extrajudicial killing, the
Kims need demonstrate only that the
DPRK killed the Reverend without due
process. Professor Hawk ‘‘believe[s] that’’
the Reverend suffered an ‘‘untimely death’’
due to starvation. Hawk Decl. ¶ 20. Going even further, Downs believes that the
Reverend’s ‘‘death resulted from torture
and malnutrition’’ and was ‘‘deliberately