Human Rights First Takes Part in Oral Arguments in the Kim v DPRK Case Before the DC Circuit Court of Appeals

On Thursday, Human Rights First took part in oral arguments as amicus counsel in Kim v. DPRK (North Korea), a case before the Circuit Court of Appeals for the District of Columbia. Reverend Kim Dong Shik was kidnapped from Southern China by North Korea in 2001 in retaliation for his work in support of North Korean refugees seeking to flee the country. The petitioners, Kim’s children, allege that Kim was disappeared into North Korea and interned in a kwan-li-so – the name for North Korea’s 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 seeking damages for the torture and extrajudicial killing of their father, but North Korea didn’t respond. Consequently, the district court dismissed the case after holding that plaintiffs did not provide sufficient evidence to establish that Kim was subjected to torture. While plaintiffs could not provide direct evidence of the types and duration of torture experienced by Kim, they provided abundant circumstantial evidence in the form of expert declarations and reports indicating that political dissidents in kwan-li-so, especially religious ministers like Kim, are routinely subjected to torture and extrajudicial execution.

Our amicus brief helped the Court understand how international human rights tribunals deal with these difficult evidentiary issues. For example, we explained that several international tribunals have noted that perpetrators in cases of enforced disappearance often conceal all evidence as to the treatment endured by the victim or his or her whereabouts.  Thus, as these courts stated, it is almost impossible to obtain direct evidence as to the fate of the victim, and circumstantial evidence is often sufficient.

The brief cited cases from the Inter-American Court of Human Rights holding that circumstantial evidence was sufficient to establish that a person was subjected to enforced disappearance in cases where there was a pattern or practice of similar acts and the victim’s case was linked to that pattern. We also argued that the standards employed by international bodies, such as the Inter-American Court and the European Court of Human Rights, are compatible with U.S. law and can be useful guidance on issues more often litigated in the international sphere.  The brief urged the Court of Appeals to adopt a similar approach in the Kim case.

Robert LoBue, of Patterson Belknap Webb & Tyler LLP, represented Human Rights First at oral argument. He emphasized that the district court’s decision dismissing the case would allow North Korea to thwart the enforcement of human rights simply by not appearing in the case and refusing to disclose any information as to the fate of the victims. Instead, LoBue argued, the Court should recognize that, in this case, evidence of Reverend Kim’s abduction coupled with evidence showing that political prisoners in North Korea are systematically tortured and executed should be sufficient to enter a judgment of default on behalf of Reverend Kim’s children.

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Published on November 24, 2014

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