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a previous judgment pronounced by a regularly constituted court affording all the
judicial guarantees which are recognized
as indispensable by civilized peoples.’’ Id.
The Democratic People’s Republic of
Korea (DPRK or ‘‘North Korea’’), long a
mainstay on the State Department’s list of
terror sponsors—in fact, one of a small
handful of bad actors that spurred Congress to adopt the terrorism exception in
the first place, see H.R.Rep. No. 104–383,
at 62 (1995)—has never shied away from
torturing and killing its political enemies.
See generally U.N. Human Rights Council,
Report of the Detailed Findings of the
Commission of Inquiry on Human Rights
in the Democratic People’s Republic of
Korea, U.N. Doc. A/HRC/25/CRP.1 (Feb.
7, 2014). That much is clear. Equally
clear, the Reverend Dong Shik Kim, the
alleged victim in this case, spent nearly a
decade providing humanitarian and religious services to North Korean defectors
and refugees who fled to China seeking
asylum. And there is no question that
North Korean operatives abducted Reverend Kim in 2000 after the government
found out about his activities. In fact, a
South Korean court convicted a DPRK
agent for that very kidnapping. See Han
Kim v. Democratic People’s Republic of
Korea, 950 F.Supp.2d 29, 35 (D.D.C.2013)
(citing Decl. of J.D. Kim).
Beyond that, though, we have no direct
evidence of the Reverend’s fate. After his
family, invoking the terrorism exception,
sued the North Korean government, they
presented numerous witnesses, including
several experts on the regime’s brutal tactics, who claim to have heard second- or
third-hand that the Reverend died as a
result of torture soon after he disappeared.
But no one—not the Kims, not the witnesses who submitted declarations on their
behalf, and not the district court—knows
for certain what happened.
Still, when the DPRK failed to show up
to answer the charges, the Kims asked the
district court for a default judgment holding the regime liable for torturing and
killing the Reverend. The FSIA provides
that ‘‘[n]o judgment by default shall be
entered TTT unless the claimant establishes
his claim or right to relief by evidence
satisfactory to the court.’’ 28 U.S.C.
§ 1608(e). Precisely what that standard
entails—that is, how much and what kind
of evidence the default provision requires—is unclear.
That question is especially vexing where,
as here, the defendant State prevents any
evidence from leaving its borders. Recognizing as much, the district court observed
that since North Korea ‘‘has not participated in the proceedings,’’ since ‘‘there has
been no opportunity for discovery,’’ and
since the ‘‘widely feared TTT repression’’ in
the country ‘‘obscures the precise details
of Reverend Kim’s treatment,’’ the plaintiffs ‘‘cannot be expected to meet a typical
standard for judgment as a matter of law.’’
Kim, 950 F.Supp.2d at 35, 42. Nonetheless, the district court concluded that the
‘‘evidence must be rigorous enough to support the facts necessary for jurisdiction.’’
Id. Relying on Price v. Socialist People’s
Libyan Arab Jamahiriya, 294 F.3d 82
(D.C.Cir.2002), in which this Court rejected an FSIA plaintiff’s allegations because
he had not recounted the precise nature of
his mistreatment, the district court determined that the Kims had failed to carry
their evidentiary burden. Specifically, it
observed that their witnesses could ‘‘not
establish the severity of the treatment of
Reverend Kim in particular, or that his
treatment amounts to torture under the
rigorous definition of that term adopted in
the FSIA,’’ and instead engaged only in
‘‘discussion about the abuses generally in
[North Korean forced-labor] camps to
show that’’ the DPRK ‘‘probably’’ mis-