DC Court of Appeals Holds North Korea Accountable for the Torture and Killing of Reverend Kim Dong Shik

In a groundbreaking case, the DC Circuit Court refused to let North Korea avoid liability for the presumed torture and killing of Reverend Kim Dong Shik, kidnapped by North Korean officials in 2001. The government of North Korea had simply refused to appear in the case. The court—drawing on the experience of international tribunals and using an evidentiary standard suggested in an amicus brief by Human Rights First—wisely did not let the brutality and effectiveness of North Korea’s oppression close off an avenue of accountability and redress for the reverend’s family in U.S. Courts. As the Court recognized, Congress intended such an avenue to remain open to hold gross human rights abusers accountable for their actions.

The circuit court reversed a previous decision by the district court, which had dismissed the case, and remanded with instructions to enter default judgment against North Korea.

Reverend Kim Dong Shik was kidnapped from Southern China by North Korea in retaliation for his work in support of North Korean refugees seeking to flee the country. The plaintiffs alleged that Kim was disappeared into North Korea and interned in a kwan-li-so – the DPRK’s infamous penal colonies for political dissidents— where he was tortured and killed.

In 2009, the plaintiffs brought a civil action against the government of North Korea under the terrorism exception to the Foreign Sovereign Immunities Act. North Korea did not respond. The district court dismissed the case, arguing that plaintiffs did not provide sufficient direct evidence to support the claim that Kim was tortured and subsequently killed by North Korean officials. Although plaintiffs could not provide direct evidence as to the fate of Reverend Kim after his abduction, they submitted abundant circumstantial evidence indicating that political prisoners—especially religious ministers—are systematically tortured and executed at the hands of North Korea.

Human Rights First filed an amicus brief, which guided the court on how international human rights tribunals have dealt with the evidentiary difficulties posed by cases of enforced disappearances, especially when states refuse to participate in the proceedings. Essentially, faced with the refusal of states to cooperate these international bodies have allowed plaintiffs to rely on circumstantial evidence. We argued that these standards are in fact compatible with U.S. law and that the court should adopt a similar approach in its decision.

Today’s decision by the Court of Appeals endorsed the rationale proposed by Human Rights First’s amicus brief. In fact, the court recognized that “requiring that the Kims prove exactly what happened to the Reverend and when would defeat the Act’s very purpose: […] compensat[e] the victims of terrorism, and in so doing to punish foreign states who have committed or sponsored such acts and deter them from doing so in the future.” Furthermore, the court stated that “this is especially true in cases of forced disappearance, like this one, where direct evidence of subsequent torture and execution will, by definition, almost always be unavailable, even though indirect evidence may be overwhelming.”

The court concluded that “‘common experience tells us’ that where a plaintiff has produced compelling, admissible evidence that the regime 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. Given Congress’s purpose—holding state sponsors of terrorism responsible for their crimes—such evidence is sufficient to ‘satisf[y] the court.’” Among evidence that the court cited was the recent UN Report of the Detailed Findings of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea.

Finally, the Court of Appeals acknowledged that “[i]nternational tribunals with experience in these kinds of cases have taken the same approach. For instance, the Inter-American Court of Human Rights […] has recognized that circumstantial evidence is ‘especially important’ in cases of forced disappearance […], because ‘this type of repression is characterized by an attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim.’”

This decision marks an important step in holding North Korea responsible for its human rights violations. The court of appeals sends an important message with this case, reaffirming the notion that states that engage in enforced disappearance cannot shield themselves from liability by failing to appear. At the same time this case shows that international human rights law can be a tremendous resource for U.S. litigants. Jurisprudence of international bodies, such as the Inter-American Court of Human Rights or the Human Rights Committee, can provide important guidance to domestic courts that is also fully compatible with U.S. law.

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Published on December 24, 2014

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