Kim v. North Korea – Petition to Appeal

7/27/2019 Kim v. North Korea Petition to Appeal

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United States District Court for the

District of Columbia Docket No. 09-cv-648

IN THE

United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT

HAN KIM, et al.,

Plaintiffs-Petitioners,

v.

DEMOCRATIC PEOPLES REPUBLIC OF KOREA,

Defendant-Respondent.

>> >>

PETITION FOR PERMISSION TO APPEALPURSUANT TO 28 U.S.C. 1292(b)

Robert Joseph Tolchin

Meir Katz

Application for admission pending

THE BERKMAN LAW OFFICE, LLC

Attorneys for Plaintiffs-Petitioners

111 Livingston Street, Suite 1928

Brooklyn, New York 11201718-855-3627


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Table ofContents

TABLE OF AUTHORITIES i i iBACKGROUND 1QUESTIONS PRESENTED 5

PETITION FOR PERMISSION TO APPEALPOINT ITHE DECISION BELOW REACHES CONTROLLING QUESTIONSOF LAW 6POINT IITHERE IS SUBSTANTIAL GROUND FOR DIFFERENCE OFOPINION RELATING TO THE CONCLUSIONS OF THE COURTBELOW 8POINT IIIREVERSAL OF THE DECISION OF THE COURT BELOW WILLMATERIALLY AND PERMANENTLY ALTER THE COURSE OFTHIS LITIGATION 10POINT IVTHE ISSUES PRESENTED FOR APPEAL ARE EXCEPTIONALLYIMPORTANT IN LIGHT OF THE FACT THAT EXPLICITLYINCRIMINATING EVIDENCE IS RARELY AVAILABLE AGAINSTSTATE SPONSORS OF TERRORISM THAT HAVE DEFAULTED INLITIGATION 10POINT VTHE DECISION BELOW IS PLAINLY WRONG ON THE MERITS 11

CONCLUSION 20


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ADDENDUMCERTIFICATE OF PARTIES, RULINGS, AND RELATED CASES alDECISION APPEALED FROM a2

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Table ofAuthoritiesCasesHill v. Republic a/Iraq, 328 F.3d 680 (D.C. Cir. 2003) 20Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82 (D.C.

Cir. 2002) passimUnited States v. Morton, 467 U.S. 822 (1984) 6Statutes28 U.S.C. 1292(b) 5-6, 828 U.S.C. 1350 note ("TVPA") passim28 U.S.C. 1605A passim28 U.S.C. 1608 1, 13, 18

Rules and RegulationsFED.R.Clv.P. 55(a) 1

Other AuthorityMELANIE KIRKPATRICK, ESCAPE FROM NORTH KOREA: THE UNTOLDSTORY OF ASIA'S UNDERGROUND RAILROAD (2012) 3

MERRIAM-WEBSTER ONLINE DICTIONARY, TORTURE, http://www.merriam-webster.com/dictionary/torture 13

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BACKGROUNDThis is an action by the son and brother of a devout Christian minister and

human rights activist who resided in China. The minister, Reverend Kim, waskidnapped by principals and agents of the Democratic People's Republic of Korea(North Korea) and forcibly taken to a prisoner camp for political prisoners, as iscommon in North Korea. In that camp for political prisoners, Reverend Kim wastortured and, to a near certainty, killed.

The son and brother of Reverend Kim ("Plaintiffs") filed suit against NorthKorea pursuant to 28 U.S.C. 1605A seeking to hold it liable for the torture andextrajudicial killing of their deceased relative and properly served North Koreapursuant to 28 U.S.C. 1608. North Korea failed to respond and the Plaintiffsobtained default pursuant to FED.R.ClV.P. 55(a). The Plaintiffs then moved for defaultjudgment.

In support of their motion for default judgment, the Plaintiffs submitteddetailed proposed findings of law and fact, as well as declarations and affidavits fromthe following people:

Han Kim, one of the Plaintiffs in this action. Yong Seok Kim, the other of the Plaintiffs in this action. Dani Butler, another child ofReverend Kim (not a party to this litigation).


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Yoshikuni Yamamoto, Senior Researcher for the Committee for Human Rightsin North Korea (HRNK) (based in Washington, D.C.). Mr. Yamamotoprovided the court below with written expert testimony.

J.D. Kim, Esq., who provided the court below with a verified translation of aSouth Korean court decision that was directly relevant to this litigation.

Do Hee-Youn, a resident of South Korea and a member of the Citizen'sCoalition for Human Rights of Abductees and North Korean Refugees (basedin Seoul, South Korea) and a representative of the Antihuman CrimeInvestigation Committee (based in Seoul, South Korea). Mr. Do has a networkof informants who confidentially provide him with information about the stateof prisoners in North Korea and provided the court with information that hehad about the fate ofReverend Kim.

Cho Bong Ill, a former solider in the North Korean army who fled North Koreaand provided the court with his first-hand knowledge of both the North Koreanmilitary and Reverend Kim.

Bae Jae Hyun, a former colleague of Reverend Kim who provided the courtwith his first-hand knowledge ofReverend Kim.

Professor David Hawk, the former Executive Director of the United Statessection of Amnesty International and Officer-In-Charge of the CambodiaOffice of the UN High Commissioner for Human Rights, and currently a

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consultant to the U.S. Committee for Human rights in North Korea (based inWashington, D.C). Prof. Hawk, an expert on human rights in North Korea,provided the court below with written expert testimony.

Ernest C. (Chuck) Downs, a former senior official of the U. S. Department ofDefense, and an expert on North Korea. Mr. Downs twice provided the courtbelow with written expert testimony.

Additionally, the Plaintiffs provided the court below with documentary evidence

from the following sources: The U.S. Department of State. The Congressional Research Service. The United Nations Special Rapporteur on the Situation of Human Rights in

the Democratic Peoples Republic ofKorea. Human Rights Watch. MELANIE KIRKPATRICK, ESCAPE FROM NORTH KOREA: THE UNTOLD STORY OF

ASIA'S UNDERGROUNDRAILROAD (2012). The Washington Post. New York Times. Newsweek Magazine. Korea Times.

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The Defendant did not challenge the Plaintiffs' motion for default judgment orchallenge any of the evidence presented by the Plaintiffs. The court below (Roberts,J.) held in light of this testimony and other evidence that

Reverend Kim was abducted at the behest ofDPRK security forces, notin accordance with any legitimate judicial or other process, due to Kim'sreligious work and assistance to North Korean refugees. Therefore, theplaintiffs have sufficiently shown that any mistreatment of ReverendKim was done purposefully.... The experts in this case describeconditions at [sic] an established and extensive system of penal colonieswhere the DPRK regularly holds abductees and political prisoners, andopine that reports from defectors stating that Reverend Kim was torturedand is either still in custody or has died as a result of his treatment arecredible.

Dist.Ct.Op. at 30-33. The court's holding on this point is significant and bearselaboration: The court held that Reverend Kim was (1) abducted, (2) on behalf ofNorth Korea, (3) unlawfully, (4) for the purpose of harming him. The court furtheraccepted expert testimony that (5) North Korea maintains penal colonies to houseabductees and political prisoners and that (6) Reverend Kim was very likely torturedand is ether still being tortured or has died as a result of that torture.

Nevertheless, the court denied the Plaintiffs motion for default judgment on thegrounds that the Plaintiffs' voluminous evidence that Reverend Kim was tortured, as

that term is used for the purposes of 28 U.S.C. 1605A, was inadequate. The courtreasoned that this Court's decision in Price v. Socialist People's Libyan ArabJamahiriya, 294 F.3d 82 (D.C. Cir. 2002), compelled demonstration of ReverendKim's torture and death beyond a reasonable doubt. The court found that the

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Plaintiffs, who were denied the opportunity to engage with the Defendant indiscovery and had limited access to evidence, could not meet that high burden. Thecourt then certified its decision for interlocutory appeal under 28 U.S.C. 1292(b).

QUESTIONS PRESENTED(1) Whether Price v. Socialist People's Libyan Arab Jamahiriya, 294 F.3d 82

(D.C. Cir. 2002), requires plaintiffs in a default proceeding against a rogue state toproduce evidence that proves their claims of torture beyond a reasonable doubt, when

it is impossible to produce a body, photographic evidence, or first-hand eye witnesstestimony.

(2) Whether a finding that someone is a victim of "extrajudicial killing" for thepurposes of 28 U.S.C. 1605A when he was killed by being tortured to deathrequires that the victim's decedents first prove that he was a victim of "torture" (asthat word is used in 28 U.S.C. 1605A).

(3) Whether a plaintiff is entitled to a default judgment in a 28 U.S.C. 1605Acase where the plaintiff has submitted clear evidence that (a) the defendant forciblykidnapped the victim, (b) transported him back to the defendant state, (c) the victimhas never been seen or heard from again, (d) the defendant viewed the victim as apolitical enemy, (e) the defendant has a long history of torturing and killing itspolitical prisoners, (f) the defendant 's network of political prison camps is welldocumented and known to the U.S. intelligence community, (g) the defendant state ishighly secretive and would kidnap and kill anyone that it found leaking information

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about its political prisoners to the outside world (and particularly to the UnitedStates), and (h) the Plaintiffs' informants spoke to them and their agents about thiscase on condition that they remain anonymous as a result of their fear for their livesand the lives of their family members.

(4) Was the order of the court below denying the plaintiffs motion for defaultjudgment properly made?

PETITION FOR PERMISSION TO APPEAL

POINT ITHE DECISION BELOW REACHES CONTROLLING QUESTIONSOF LAW

The court below certified this case for interlocutory appeal sua sponte.Dist.Ct.Op. at 33-35. In the process, the court considered all of the statutoryrequirements of28 U.S.C. 1292(b) and found them all present.

The court's principal ruling was that it lacked subject matter jurisdiction overthis case. Dist.Ct.Op. at 33. A court that lacks subject matter jurisdiction over anissue lacks authority to rule on that issue or dispute. United States v. Morton, 467U.S. 822, 828 (1984). Before reaching that larger issue, the court made twopreliminary rulings.

First, the court held that where a plaintiff alleges extrajudicial killing under 28U.S.C. 1605A on the grounds that the victim was tortured to death,"the... extrajudicial killing claim relies squarely upon an adequate showing that [the

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victim] was tortured." Dist.Ct.Op. at 6. This decision was material to the court'sresolution of the extrajudicial killing claim. Since the court would later hold that thePlaintiffs had not satisfied the statutory requirements for a torture claim, they also didnot satisfy the statutory requirements for an extrajudicial killing claim. In otherwords, the court's decision not to address the extrajudicial killing claimindependently was fatal to that claim.I

Second, the court held that in order to obtain default judgment in a 28 U.S.C.

1605A torture claim, a plaintiff must demonstrate, beyond a reasonable doubt/ butwithout the benefit of discovery, the specific nature of the victims injuries, theirfrequency, and the body parts they affect. See Dist.Ct.Op. at 33. It is not enough,wrote the district court, to allege, and produce expert testimony in support of theallegation, sufficient to give rise to a strong inference that the victim died from hisinjuries. See Dist.Ct.Op. at 32-33.

I As the Plaintiffs will discuss further in the last part of this Petition, the districtcourt made a serious error of logic here. Finding that someone was "tortured todeath," as that term is used in the vernacular for the purpose of pleading a distinctclaim, is different from a finding that the person was "tortured," as that word isdefined by statute for a different purpose. For this reason alone, the district court'sdecision ought to be reversed.2 The district court never actually uses the words "beyond a reasonable doubt."But it also never explicitly states what standard of proof it insisted upon. Given thecourt's account of the fact and expert testimony that it accepted, Dist.Ct.Op. at 14-28,30-33, the decision defies explanation if one does not assume that the court belowinsisted that the plaintiffs meet the extraordinarily high burden known as "beyond areasonable doubt." As the court's decision makes clear, the Plaintiffs' evidenceproved the matter well beyond the "preponderance of the evidence" and the "clearand convincing" standards.

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These holdings were dispositive of the Plaintiffs claims. They turn on questionsof law and are therefore the proper subject of a 28 U.S.C. 1292 interlocutoryappeal. See also Dist.Ct.Op. at 34 ("Here, the determination of subject matterjurisdiction qualifies as a controlling question of law.").

POINT II

THERE IS SUBSTANTIAL GROUND FOR DIFFERENCE OFOPINION RELATING TO THE CONCLUSIONS OF THE COURTBELOW

The district court expressly acknowledged that "there is a substantial groundfor difference of opinion about whether plaintiffs have presented the requisitequantum of evidence to show that Reverend Kim was tortured under the FSIA." ld. at34 (internal quotation marks omitted). Indeed. The Plaintiffs in this case submitteduncontroverted evidence demonstrating that (a) agents of North Korea forciblykidnapped Reverend Kim, (b) they transported him back to North Korea, (c) he hasnever been seen or heard from again, (d) North Korea viewed Reverend Kim as apolitical enemy, (e) North Korea has a long history of torturing and killing itspolitical prisoners, (f) North Korea's network of political prison camps is welldocumented and known to the U.S. intelligence community, (g) North Korea ishighly secretive and would kidnap and kill anyone that it found leaking informationabout its political prisoners to the outside world (and particularly to the UnitedStates), and (h) the Plaintiffs' informants spoke to them and their agents about thiscase on condition that they remain anonymous as a result of their fear for their lives

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and the lives of their family members. Based on this evidence, the court accepted thatReverend Kim was (a) abducted, (b) on behalfofNorth Korea, (c) unlawfully, (d) forthe purpose of harming him. The court further accepted expert testimony that (e)North Korea maintains penal colonies to house abductees and political prisoners andthat (f) Reverend Kim was very likely tortured and is ether still being tortured or hasdied as a result of that torture. Id. at 30-33. The court further acknowledged that

[North Korea's] failure to respond to the complaint or to respond to anyof the congressional inquiries regarding Reverend Kim's fate, in part,obscures the precise details of Reverend Kim's treatment following hisabduction by [North Korean] agents. Moreover, the widely feared natureof [North Korean] repression appears to force those individuals who mayknow details about Reverend Kim's whereabouts and treatment toconvey such information sparingly and anonymously.

Id. at 31.Notwithstanding all of this evidence, and despite the fact that getting more

explicit evidence out of North Korea is impossible as a practical matter;' the districtcourt held that the Plaintiffs had not proven that Reverend Kim was "tortured" for thepurposes of 28 U.S.C. 1605A. This holding is contrary to logic and has no basis in28 U.S.C. 1605A or this Court's holding in Price, upon which the district courtpurports to rely. There can be no doubt that there is substantial ground for differenceof opinion relating to the district court's conclusions.

3 It is impossible in part because North Korea defaulted in this case, thuspreventing the Plaintiffs from serving it with discovery requests and requests foradmission and from deposing North Korean officials who might have first-handknowledge of the facts of this case.-9-


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POINT IIIREVERSAL OF THE DECISION OF THE COURT BELOW WILLMATERIALLY AND PERMANENTLY ALTER THE COURSE OFTHIS LITIGATIONAs noted above, the district court concluded that it lacks subject matter

jurisdiction. If this Court denies the instant Petition, the district court will have nochoice but to dismiss the complaint. If, however, this Court reverses the district court,that reversal will likely directly result in the entry of default judgment on behalf of

the Plaintiffs. This distinction is roughly comparable to the difference between nightand day. See also Dist.Ct.Op. at 35.

POINT IVTHE ISSUES PRESENTED FOR APPEAL ARE EXCEPTIONALLYIMPORTANT IN LIGHT OF THE FACT THAT EXPLICITLYINCRIMINATING EVIDENCE IS RARELY AVAILABLE AGAINSTSTATE SPONSORS OF TERRORISM THAT HAVE DEFAULTED INLITIGATIONThe net effect of the district court's decision is to immunize secretive regimes

like North Korea from the protections created by 28 U.S.C. 1605A and relatedstatutes. Under the district court's reasoning, it is impossible to gain default judgmentfor torture under 28 U.S.C. 1605A absent an eyewitness to the torture (who iswilling to put his own life and the lives of his family on the line in order to testify),photographic evidence of torture (where the photograph is admissible as evidencepursuant to the Federal Rules of Evidence), or the physical presence of the victim

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himself (dead" or alive). But North Korea takes the secrecy of its oppression veryseriously. It goes to great lengths to prevent the release of any such evidence-particularly to the United States. Thus, notwithstanding the overwhelming evidencethat North Korea regularly engages in torture and extrajudicial killing of its politicalprisoners, the effect of the district court's decision is to bestow a form of practicalimmunity on North Korea.

Nothing in 28 U.S.C. 1605A, the Foreign Sovereign Immunities Act

("FSIA") in toto, or this Court's decision in Price, indicates a desire or intent toimmunize North Korea. This Court ought to clarify that Price means no such thing.

POINT VTHE DECISION BELOW IS PLAINLY WRONG ON THE MERITSThis Court should grant the Plaintiffs' request for leave to appeal and then

reverse the district court without further briefing.1. The Plaintiffs alleged that North Korea is liable under 28 U.S.C.

1605A for the extrajudicial killing of Reverend Kim. See Dist.Ct.Op. at 5 ("Theamended complaint also alleges that Reverend Kim was 'tortured to death by officers,employees and agents of defendant North Korea[,]"'). 28 U.S.C. 1605A definesextrajudicial killing with reference to section 3 of the Torture Victims Protection Act

4 If the plaintiff can produce the dead body, the body could possibly be subjectto a forensic analysis, which would become the subject of an expert report. However,even forensic analysis might be incapable of determining the circumstances orfrequency of the trauma inflicted upon the victim. It seems that by the reasoning ofthe court below, even such compelling testimony would be rejected.-11-


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("TVPA"), 28 U.S.C. 1350 note. The TVPA requires "a deliberated killing notauthorized by a previous judgment pronounced by a regularly constituted courtaffording all the judicial guarantees which are recognized as indispensable bycivilized peoples." Id. The district court's entire analysis on that claim follows:

Here, plaintiffs have not alleged a targeted bombing or a deliberateexecution. Instead, by alleging that Reverend Kim was tortured to deathand that this murder qualifies as an extrajudicial killing, the plaintiffsmust show that North Korean agents deliberately killed Reverend Kimby torturing him. Thus, the plaintiffs' extrajudicial killing claim reliessquarely upon an adequate showing that Reverend Kim was tortured.Dist.Ct.Op. at 6. It assumed, improperly, that where a litigant alleges deliberatekilling by torture, he must first establish a claim for torture. The court went on to holdthat the Plaintiffs did not establish a claim for torture and therefore could notestablish a claim for extrajudicial killing.

The trouble is that the TVPA defines extrajudicial killing, as the court itselfacknowledged. Torture, which has its own definition under the TVPA, is not one ofthe elements of a claim for extrajudicial killing. See 28 U.S.C. 1350 note. Rather,all a plaintiffmust show to establish a claim for extrajudicial killing is that the victimwas (1) deliberately (2) killed (3) without legitimate authorization. By alleging and

then demonstrating with satisfactory evidence that Reverend Kim was deliberatelykilled by North Korea, which tortured him to death, the Plaintiffs adequatelysupported a claim for extrajudicial killing. "Death by torture" is not an independentclaim or a variation of a claim for torture, it is rather the means by which North

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Korea executed Reverend Kim. Similarly, if a plaintiff alleges that a victim wasdeliberately killed by poisoning, "death by poisoning" is merely the means by whichthe victim was executed and does not form a new claim or add to the elements thatthe claimant must prove in order to establish a claim for extrajudicial killing.

There is no doubt that in order to obtain default judgment under 28 U.S.C. 1608(e), by evidence satisfactory to the court, the Plaintiffs needed to provide someevidence that Reverend Kim was "tortured" as they used that word in their complaint.

See, e.g., Kim v. Democratic People 's Republic ofKorea, No. 09-cv-648, Dkt. No.5,First Amended Complaint ("FAC") at ~ 1 ("Reverend Kim Dong Shik, was abductedon January 16, 2000 by officials, employees and agents of defendant DemocraticPeople's Republic ofKorea ("North Korea"), and was then tortured and murdered byofficials, employees and agents of defendant North Korea." (emphasis added)). But itis obvious from the context that the Plaintiffs did not intend to adopt the legaldefinition of torture contained in the TVPA. Rather they used that word in thevernacular.

MERRIAM-WEBSTER ONLINE DICTIONARY defines "torture" (as a verb) as "tocause intense suffering to," or "to punish or coerce by inflicting excruciating pain." Itoffers the word in contextual examples, which include "Don't torture yourself overthe mistake." http://www.merriam-webster.com/dictionarv/torture.Itis to that lower(vernacular) standard that the Plaintiffs must be held because it is in that sense thatthe used the word "torture" with regard to their extrajudicial killing claims.

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Of course, the torture in this case was far more pernicious than that imaginedby Webster's dictionary. As the Plaintiffs pointed out to the district court in theirproposed findings of fact, "A torture that can kill is indeed 'torture' for the purposesof the FSIA." Kim v. Democratic People's Republic ofKorea, No. 09-cv-648, Dkt.No. 52, Plaintiffs' Revised Proposed Findings ofFact at 10. The Plaintiffs adequatelydemonstrated that Reverend Kim died as a result of his treatment in his prison campin North Korea. As they will demonstrate below, that meets the demanding definitionof torture in the TVPA. But that analysis is irrelevant here. All that the Plaintiffs mustshow is that Reverend Kim was deliberately "tortured" (defined in the vernacular) todeath. They have done so.

The district court's resolution of the Plaintiffs' extrajudicial killing claim onthe grounds that the Plaintiffs could not establish a different, unrelated, claim is anabuse of discretion. That holding should be summarily reversed.

2. In resolving the Plaintiffs' claim for torture under 28 U.S.C. 1605A,which is likewise defined with reference to the TVPA, the district court relied heavilyupon this Court's decision in Price. Accordingly, some consideration of that decisionis in order:

Price was a contested dispute. Libya, the state sponsor of terrorism in Price,filed a motion before the district court to dismiss the case for lack of jurisdiction,which was denied. Libya then sought and received an interlocutory appeal to this

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Court.' At issue on appeal was "whether plaintiffs have alleged facts that are legallysufficient to revoke Libya's immunity under the FSIA." Price, 294 F.3d at 85. ThisCourt concluded that "the allegations supporting plaintiffs' torture claim are notadequate to bring the case within the statutory exceptions to foreign sovereignimmunity. The complaint in its present form is simply too conclusory to satisfy[statutory requirements]." Id. (emphasis added). The case involved a pair ofAmericans who were doing business in Libya. They were accused by the Libyan

government of engaging in "anti-revolutionary propaganda," were arrested and sentto a political prison for 165 days (including time served post-acquittal). In that prison,"they endured deplorable conditions... , including urine-soaked mattresses, a crampedcell with substandard plumbing that they were forced to share with seven otherinmates, a lack ofmedical care, and inadequate food [and] were 'kicked, clubbed andbeaten' by prison guards, and 'interrogated and subjected to physical, mental andverbal abuse.'" Id. at 86 (quoting the complaint). The Court went on to note that"torture," for the purposes of the TVPA (and thus 28 U.S.C. 1605A) is limited tothat which "is sufficiently extreme and outrageous to warrant the universalcondemnation that the term 'torture' both connotes and invokes." Id. at 92. The Court

5 The court below brushed aside, without logical justification or legal authority,the significant distinctions between this case and Price. Dist.Ct.Op. at 8 ("Price'sreasoning is equally instructive for determining whether a plaintiff in a defaultproceeding has established subject matter jurisdiction."). This is a default proceeding,not a contested dispute. And it is on the Plaintiffs' motion for judgment, rather than adefendant's motion to dismiss for lack of jurisdiction. As the Plaintiffs will explain,those distinctions are significant.-15-


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explained that not all pain and suffering, even when the result of a "direct physicalassault" is "torture," and noted that "[t]he more intense, lasting, or heinous the agony,the more likely it is to be torture .... Not all police brutality, not every instance ofexcessive force used against prisoners, is torture under the FSIA." Id. at 93 (emphasisin original).

The Price Court declined to specify what specific elements make up torture orto otherwise define that term (beyond the definition provided by the TVPA). Nor

could it have-what constitutes torture under the TVPA depends upon an analysis ofthe facts and circumstances. Indeed, what qualifies as "torture" in one case might notin another. For example, piercing a part of a victim's body with a broad sword on adaily basis would probably be deemed torture in the absence of other mitigating facts.However, if the victim was previously (prior to his captivity) injured and paralyzedfrom the neck down so that such punctures caused him no pain, perhaps thatexperience, unpleasant as it surely would be, might not constitute "torture." Perhapsrecognizing that, the Price Court engaged in a fact specific analysis:

[The] complaint offers no useful details about the nature of the kicking,clubbing, and beatings that plaintiffs allegedly suffered. As a result,there is no way to determine from the present complaint the severity ofplaintiffs' alleged beatings-including their frequency, duration, theparts of the body at which they were aimed, and the weapons used tocarry them out-in order to ensure that they satisfy the TVPA's rigorousdefinition of torture. In short, there is no way to discern whetherplaintiffs' complaint merely alleges police brutality that falls short oftorture. Thus, the facts pleaded do not reasonably support a finding thatthe physical abuse allegedly inflicted by Libya evinced the degree ofcruelty necessary to reach a level of torture.-16-


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Id. at 93-94 (emphasis added). The court below, however, misunderstood thatlanguage from Price to affirmatively require all district courts in this Circuit toascertain "the[] frequency [and] duration [of beatings and other inflicted pain and] theparts of the body at which they were aimed," regardless of the other circumstances.See Dist.Ct.Op. at 20,22,25, 27-28, 32-33. And it was the very fact that the Plaintiffscould not produce evidence relating to which of Reverend Kim's body parts theDefendant targeted, and how frequently those body parts were targeted, that provedfatal in this case. Dist.Ct.Op. 31-33. Of course, this Court did not intend in Price torequire all 28 U.S.C. 1605A plaintiffs to satisfy precisely the same inquiry.

Reverend Kim's treatment undoubtedly was exceptionally harsh and painful. Itwas surely "sufficiently extreme and outrageous to warrant the universalcondemnation," Price at 92. And it almost certainly resulted in his death. That is"torture" for the purposes of the TVPA.

3. Price is distinguished from this case because it was an action todetermine the sufficiency of the pleadings. The Price Court was duty-bound todetermine, on the basis of the pleadings and any factual evidence presented, whether

the allegations created a basis for subject matter jurisdiction. But this is a defaultjudgment action after the entry of default against the defendant. The factualallegations in the complaint were never challenged and must be accepted as true, evenfor the purposes of establishing subject matter jurisdiction. Indeed, as Price itself

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said, "When reviewing a plaintiffs unchallenged factual allegations to determinewhether they are sufficient to deprive a foreign state defendant of sovereignimmunity, we assume those allegations to be true." Id. at 93. Accordingly, if the well-pleaded factual allegations in the complaint were sufficient to establish subject matterjurisdiction-they were and the court below never said otherwise-then the court hassubject matter jurisdiction.

It is true that 28 U.S.C. 1608(e) imposes an additional burden on courts in

FSIA default judgment actions:No judgment by default shall be entered ...unless the claimant establisheshis claim or right to relief by evidence satisfactory to the court.

The statute means what it says. In order to enter default judgment, the court mustsatisfy itself that adequate evidence has been presented. The statute says nothingabout subject matter jurisdiction. Subject matter jurisdiction was thus established bythe complaint and entry of default. The court below abused its discretion by finding,on the grounds stated, that it lacked subject matter jurisdiction.

4. The fact that this is a default proceeding, not a contested dispute,likewise distinguishes Price in light of the fact that the Plaintiffs have diminishedaccess to evidence. The court below acknowledged this fact and then lamented:"Unfortunately for plaintiffs, no D.C. Circuit opinion appears to allow suchcircumstances to lessen the plaintiffs' exacting burden of proof." Dist.Ct.Op. at 31.But no D.C. Circuit opinion holds that the Plaintiffs burden of proofis not diminished

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as a result of a willful default. And common sense dictates that it must be. The districtcourt's failure to recognize this was clear error.

5. As noted above, the district court imposed (without so acknowledging)upon the Plaintiffs the highly exacting burden ofproving its case beyond a reasonabledoubt. It demanded first-hand testimony-when none is available because theDefendant has taken steps to assure its unavailability-describing the scope andnature of the specific maneuvers that North Korea used against Reverend Kim. It

failed to properly credit numerous accounts of North Korea's general tactics in theprisons in which Reverend Kim was incarcerated and expert testimony stating thatReverend Kim nearly certainly suffered the same fate. See, e.g., id. at 19-20. Thedistrict court specifically failed to properly credit certain highly probativedeclarations by Plaintiffs' experts, such as these two:

9. The brutal punishment that Reverend Kim was most probablysubjected to includes severe beatings while in stress positions (such aswhile suspended from the ceiling), near-starvation, and forced physicalexertion to the point of absolute physical exhaustion.10. I am aware of the testimony of approximately 1000 former NorthKorean prisoners who served time in North Korean prison camps. I donot know of any case in which the former prisoner was not subjected totorture while in the prison camp. There is a steady flow of testimony offormer prisoners that describe the most severe types of torture.Kim v. Democratic People's Republic of Korea, No. 09-cv-648, Dkt. No. 50,Supplemental Declaration ofEmest C. (Chuck) Downs.

The district court cited a number of cases debating precisely what the Plaintiffsburden of proof ought to be, noting that some courts required "clear and convincing"

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evidence while many others seemed to require only general reasonableness.Dist.Ct.Op. at 10-13; see also Hill v. Republic ofIraq , 328 F.3d 680 (D.C. Cir. 2003)(imposing a reasonableness standard). None of the cases cited imposed theexceptionally high standard required by the court below. And the court belowprovided no basis for its decision to impose such a high standard, particularly in lightof the fact that this was a default proceeding. The district court abused its discretionby requiring Plaintiffs to prove their case beyond a reasonable doubt.

CONCLUSIONFor the reasons stated herein, this Court should grant the Plaintiffs leave to

appeal and should reverse the order of the district court.Dated: Brooklyn, New York

June 24,2013Respectfully submitted,THE BERKMAN LAW OFFICE, LLCAttorneys for the Plaintiffs-Petitioners

Ofcounsel:Robert J. Tolchin, Esq.Meir Katz, Esq.

Application for admission pending

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ADDENDUM


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Pursuant to Circuit Rules Sea) and 28(a)(1), Appellants Kim et al. herebyprovide the following certificate of parties, rulings, and related cases.

(A) Parties and Amici. The following is a list of persons who areknown to be parties to this case at this time:

Plaintiffs-Appellants : Han Kim and Yong Seok Kim.Defendant-Appellee: Democratic People's Republic of Korea (A.K.A. North

Korea).

Intervenors & Amici: There are no interveners and no known amici.(B) Rulings Under Review. The ruling under review is the district

court's June 14,2013 Memorandum Opinion and Order by Judge Richard W. Robertsof the U.S. District Court for the District ofColumbia. The Opinion and Order deniedthe Appellants' motion for default judgment pursuant to 28 U.S.C. 160SA (theForeign Sovereign Immunities Act). The Court, on its own motion, certified this casefor interlocutory appeal pursuant to 28 U.S.C. 1292(b). The Opinion and Order isappended to this Petition.

(C) Related Cases. There are no known related cases.

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Case 1:09-cv-00648-RWR Document 56 Filed 06/14/13 Page 1 of 36

UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

)HAN KIM, e t a l . , ))

Pla in t i f f s , ))

v . ))

DEMOCRATIC PEOPLE'S REPUBLIC )o f KOREA, e t a l . , )

)Defendants. )

--- - - - - - ---- - - - )

Civ i l Act ion No. 09-648 (RWR)

MEMORANDUM OPINION AND ORDERPla in t i f f s Han Kim ("Han U ) and Yong Seok Kim ("Yong U ) br ing

t h i s c iv i l ac t ion under the t e r ror i sm exception of the ForeignSovereign Immunities Act ("FSIA U ) , 28 U.S.C. 1605A(c) , seekingdamages aga ins t of f i c i a l s , emp loye es and agents of defendantDemocratic People ' s Republic of Korea ("DPRK U ) in connect ion withthe January 16, 2000 abduct ion of Reverend Kim Dong Shik("Reverend Kim U ) , who i s Han's fa the r and Yong's bro the r .Following h is abduct ion, Reverend Kim was forc ib ly t r ans fe r red toNorth Korea where the p l a in t i f f s a l lege he was repeated lyt o r tu red by o f f i c i a l s , employees and agents of DPRK.

P la in ti f f s f il e d su i t and served DPRK fol lowing therequirements of 28 U.S.C. 1608(a) - (b) . DPRK f a i l ed to answero r o th erw ise respond to the complain t , and p l a in t i f f s securedent ry of de fau l t under Fed. R. Civ. P. 55(a ) . The p l a in t i f f sthen moved fo r de f au l t judgment and have submit ted proposed

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- 2 -f indings of fac t , along w ith support ing dec la ra t ions anddocumentary evidence , and proposed conclusions of law.

The FSIA p erm its c ou rts to exerc ise sub jec t mat te rj u r i sd i c t i on and en t e r judgments o f l i a b i l i t y aga ins t fore igns t a t e s only where a p l a i n t i f f pleads and produces s a t i s f a c to ryevidence t h a t a fore ign s t a t e ' s conduct f a l l s within one of theenumerated except ions to sovere ign immunity. 28 U.S.C. 1605A(a) , (c) . The p l a i n t i f f s here re ly on the except ion fo rto r ture , arguing t h a t " [ t ] he evidence submi tt ed demons tr at es t ha tit i s fa r more l i ke ly than not t ha t Reverend Kim suffered andcontinues to su f f e r the t o r tu r e and bru t a l condi t ions meted outto a l l ' enemies ' o f the DPRK unfor tuna te enough to f a l l in to thehands of the DPRK's secur i ty se rv ices . " P l s . ' Proposed Findingsof Facts and Conclus ions of Law ( "Pls . ' Proposed Facts") a t 42.However, p l a i n t i f f s ' evidence regarding DPRK's al leged t rea tmentof Reverend Kim appears i n su f f i c i en t to meet the high standardrecognized in t h i s c i r cu i t t ha t i s s e t by the FSIA's def in i t ionof t o r tu r e . Because the FSIA prec ludes j u r i sd i c t i on over t h i sac t ion aga ins t a fore ign sovere ign fo r conduct not shown bysa t i s fac tory evidence to meet th e high s tandard s e t fo r proof o ft o r tu re , the p l a i n t i f f s ' motion fo r defau l t judgment wi l l bedenied but the case wi l l be ce r t i f i ed fo r an i n t e r locu to ryappeal .

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- 3 DISCUSSION

I . JURISDICTION AND LIABILITY UNDER THE FSIABefore Congress amended the FSIA in 2008 to add the

1605A(c) pr iva te r i gh t of ac t ion , the D.C. Ci rcu i t expla inedt h a t a t base , " [ t ]he FSIA i s undoubtedly a j u r i sd i c t i ona l s t a tu t ewhich, in spec i f i ed cases , el iminates fore ign sovere ign immunityand opens th e door to sub jec t mat te r j u r i sd i c t i on in the federa lcour t s . " Price v. Soc ia l i s t People ' s Libyan Arab Jamahir iya , 294F.3d 82, 87 (D.C. Cir . 2002); see also Marit ime I n t ' l NomineesEstabl ishment v. Republic of Guinea, 693 F.2d 1094, 1099 (D.C.Cir . 1982) (" [T] he absence of immunity i s a condi t ion to thepresence of sub jec t mat te r j u r i sd i c t ion . " ) . The door i s openedonly fo r cases t ha t f a l l in to one of the s t a tu t e ' s spec i f i c a l l yenumerated except ions . Here, Han and Yong re ly on the exceptione lim i n at in g f or eig n sovereign immunity in cases " in which moneydamages are sought aga ins t a fore ign s t a t e fo r persona l in ju ry ordeath t ha t was caused by an ac t of t o r tu r e , [or] ex t r a jud i c i a lk i l l i ng , if such ac t . . . i s engaged in by an o f f i c i a l ,employee, or agent of such fore ign s t a t e while ac t ing within thescope of h is o r her of f ice , employment, or agency." 28 U.S.C. 1605A(a) (1) . The FSIA imposes the add i t iona l j u r i sd i c t i ona lrequirements t h a t the fo re ig n s t a t e have been des igna ted as as ta te sponsor of t e rror i sm during a spec i f i ed per iod , t ha t thecla imant or vic t im have been a United Sta tes na t iona l a t the t ime

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- 4 -of the t o r tu r e , and t h a t the fore ign s t a t e have been af fo rded areasonable o pp ortu ni ty to a rb i t r a t e th e cla im. 28 U.S.C. 16 05A(a) (2) . Sect ion 1605A(c) provides the pr iva te r i gh t ofac tion fo r a U.S. c i t i zen aga ins t such a fore ign s t a t e fo rpersona l i n ju ry o r death caused by an ac t of t o r tu r e engaged inby the fore ign s t a t e ' s o f f i c i a l s ac t ing in t h e i r o f f i c i a lcapac i ty . 28 U.S.C. 1605A(c) . In ac t ions under th i sprovis ion , "a fore ign s t a t e sha l l be v ica r ious ly l i ab l e fo r th eac t s o f i t s o f f i c e r s , employees, or agen ts . " Id .

Because p la in t i f f s must a l lege the elements o f a claim under 1605A(c) in o rde r to meet the requirements fo r waiver o ff or eig n s ov er eig n immunity, l i a b i l i t y wi l l ex i s t whenever t hej u r i s d i c t i ona l requirements o f 1605A(a) are proven. SeeKilburn v. Is lamic Republic of I ran , 699 F. Supp. 2d 136, 155(D.D.C. 2010) (" [T]he 1605A(c) cause of ac t ion i s f u l f i l l e d bydemonstra t ing t h a t th e f or eig n s ov er eig n performed ac t s descr ibedin subsec t ion (a ) (1) o f 1605A, which addresses immunity a ndsub jec t mat te r j u r i sd i c t i on ... Although an ana l ys is o f afo re ign sovere ign ' s po ten t i a l immunity and l i a b i l i t y should beconducted s epa r a t e ly , th e elements of immunity and l i ab i l i t yunder 1605A(c) a re e s sen t i a l l y th e same in t h a t 1605A(a) (1)must be fu l f i l l e d to demonstra te tha t a p l a i n t i f f has a cause ofac t ion . " ) ; see a l so Gates v . Syr ia n Ara b Repub l i c , 580 F. Supp.2d 53, 64-69 (D. D.C. 2008) (explain ing t h a t 1605A(c) provides a

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- 5 -pr iva te r i gh t of ac t ion where sub jec t mat te r j u r i sd i c t i on ex i s t sunder 1605A(a)) .

The FSIA adopts the de f in i t i on of t o r tu r e contained insec t ion 3 of th e Torture Victims Protec t ion Act ("TVPA"). 28U.S.C. 1605A(h) (7) (c i t ing 28 U.S.C. 1350 no te ) . The TVPAdef ines t o r t u r e as

any ac t , d i rec ted aga ins t an i nd iv idua l in th eoffender ' s custody or ph ys ica l con t ro l , by which severepain o r su f fe r ing (o ther than pain o r su f fe r ing a r i s ingonly from o r i nhe ren t in , or i nc iden ta l to , l awfulsanc t ions ) , whether phy sica l o r mental , i si n t en t iona l ly i n f l i c t ed on t h a t in div id ua l fo r suchpurposes as obta in ing from t h a t i nd iv idua l or a t h i rdperson in fo rma tio n o r a confess ion , punish ing t h a tind iv idua l fo r an ac t t ha t i nd iv idua l o r a t h i rd personhas committed or i s suspected of having committed,in t imida t ing or coercing t h a t in div id ua l o r a t h i rdperson, o r fo r any r ea so n b ased on d isc r imina t ion o fany kind.

TVPA, Pub. L. No. 102-256, 3 (b) (1) , 106 S ta t . 73, 73 (1992) .The amended complain t a lso a lle ge s t ha t Reverend Kim was

" to r tu red to death by of f i c e r s , emplo ye es and agents of defendantNorth Korea[ , J " Am. Compl. en 27, and t ha t Reverend K im 's "murder"thus qua l i f i e s under 28 U.S.C. 1605A as an ex t r a jud i c i a lk i l l i ng , id . en 33. The FSIA adopts the de f i n i t i on o fex t r a jud i c i a l k i l l i ng contained in the TVPA: "a de l ibe ra tedk i l l i ng not author ized by a previous judgment pronounced by ar egu la r ly cons t i tu t ed c ou rt a ff or din g a l l the j ud i c i a l guaranteeswhich are recognized as indispensable by c iv i l i z ed peop le s . "TVPA, Pub. L. No. 102-256, 3(a ) , 106 Sta t . 73, 73 (1992) .

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- 6 -Courts have found t h a t ex t r a jud i c i a l ki l l ing occurs , fo r example,where a defendant de l ibe ra te ly k i l l s ind iv idua l s by a t a rge ted orde l ibe ra te bombing, see, e . g . , Owens v. Republic of Sudan, 826 F.Supp. 2d 128, 150 (D.D.C. 2011); Valore v. Is lamic Republic ofI ran , 700 F. Supp. 2d 52, 74 (D. D.C. 2010), or de l ibe ra te lyassass ina tes or executes an ind iv idua l , see Oveiss i v. Is lamicRepublic of I ran , 573 F.3d 835, 839-40 (D.C. Cir . 2009); Kilburn ,699 F. Supp. 2d a t 152-53; Bakht iar v. Is lamic Republic of I ran ,571 F. Supp. 2d 27, 34 (D.D.C. 2008). Here, p la in t i f f s have notal leged a t a rge ted bombing or a de l ibe ra te execution . In stead ,by al leg ing t h a t Reverend Kim was t o r tu red to death and t ha t t h i smurder qua l i f i e s as an e x tr aj u di ci al k i ll in g , the p l a i n t i f f s mustshow t ha t North Korean agents de l ibe ra te ly k i l l ed Reverend Kim byt o r tu r ing him. Thus, the p l a i n t i f f s ' e x tr aj ud i ci al k i ll in g claimr e l i e s square ly upon an adequate showing t ha t Reverend Kim wast o r tu red .

The D.C. Ci rcu i t has emphasized the high s tandard t ha t thes ta tu to r y d e fi ni ti on o f t o r tu r e imposes. In Price , ani n t e r locu to ry appeal of a d i s t r i c t co ur t order re j ec t ing Libya ' scla im of sovereign immunity in i t s motion to dism iss , the cour to f appeals considered the su f f ic iency of the compla in t ' sa l l ega t ions of t o r t u re . The c i r cu i t ' s reasoning meri t srecount ing in some de ta i l :

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The seve r i t y requirement i s c ruc i a l to ensur ing t ha tthe conduct prosc r ibed by the Convention and the TVPAi s su f f i c i en t l y extreme and outrageous to warrant theun iver sa l condemnation t ha t th e term ' t o r t u r e ' bothconnotes and i nvoke s . [O]nly ac t s of a ce r ta ingrav i ty sha l l be considered to cons t i tu te to r tu r eThe term ' t o r t u r e , ' . i s usual ly reservedfo r extreme, de l ibe ra te and unusua l ly crue l p rac t i c e s ,fo r example, sus ta ined s ys temat ic b e at in g , appl ica t ionof e l e c t r i c cu rren ts to sens i t ive pa r t s of th e body,and ty ing up or hanging in pos i t ions t ha t cause extremepain . The c r i t i c a l i s sue i s the degree o f painand su f fe r ing t h a t the a l leged t o r t u r e r in tended to ,and ac tua l ly did , i n f l i c t upon the v ic tim . The morein tense , l a s t i ng , or heinous the agony, the more l i ke lyit i s to be t o r t u r e . [I]n order to cons t i t u t eto r tu r e , an ac t must be a de l ibe ra te and ca lcu la t ed ac tof an ext remely crue l and inhuman na tu re , spec i f i c a l l yin tended to i n f l i c t excrucia t ing and agonizing physica lor menta l pain or s u f f e r i n g . [T]or ture does notautomat ica l ly r e su l t whenever in div id ua ls in o f f i c i a lcustody are subjec ted even to d i r e c t phys ica l a s sau l t .Not a l l po l ice bru t a l i t y , not every ins tance ofe xc es siv e f orc e used a g ai ns t p r is o ne rs , i s t o r t u reunder the FSIA . [ I ] t i s espec ia l ly impor tantfo r the cour t s to ensure t h a t fore ign s t a t e s are nots t r ipped of t h e i r sovere ign immunity unless they havebeen charged with ac tua l t o r tu r e , and not mere po l iceb ru t a l i t y .

Price , 294 F.3d a t 92-93 ( in t e rna l quota t ions and c i t a t i onsomi t ted) . In ad dit ion , fo r abuse to cons t i tu te to r tu r e it mustbe i n f l i c t ed i n t en t iona l ly , not merely i n c i den t a l l y . Id . a t 93("In order to lose i t s sovere ign immunity, a fore ign s t a t e mustimpose su f fe r ing c rue l ly and d el ib er ate ly , r ath er than as theunforeseen o r unavoidable inc iden t of some l eg i t imate end ." ) .

In l i gh t of t h i s meaning, the court found i n su f f i c i en t towaive sovere ign immunity a l l ega t ions t ha t p la in t i f f s were held

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- 8 -for approximately th ree months in a po l i t i c a l pr ison where theya l leged ly "endured dep lo ra b le c ond it io n s while inca rce ra ted ,i n cl uding u r ine -soaked mat t res ses , a cramped c e l l withsubstandard plumbing t ha t they were forced to share with sevenother inmates , a lack of medical care , and inadequa te food," andfu r the r "were kicked, clubbed and beaten by pr ison guards , andin te r roga ted and subjec ted to p hy sic al , menta l and verba l abuse . "Id . a t 86 ( in t e rna l quota tio n s om itte d) . The P rice court fu r the rfound the complaint inadequate because it "says v i r t ua l l y nothingabout the purpose of the a l leged t o r t u re . " Id . a t 94; see alsoSi mps on v . Soc i a l i s t People 's Li b ya n Arab Jamahir iya , 326 F.3d230, 234 (D.C. e i r . 2003) ( f inding aJ lega t ions of fo rc ib lyremoving passenger from cru ise ship , hol di ng pas se ngerincommunicado and th rea ten ing her with death if she moved fromher quar te r s did not r i s e to the l eve l of t o r tu r e under the FSIAand s t a t e a c la im) .

Price cons idered the su f f i c i ency of t o r tu r e a l l ega t ions whenthe defendants moved to dismiss the complaint fo r lack of sub jec tmat te r j u r i sd i c t i on . Pr i c e ' s reasoning i s equal ly i n s t ruc t ivefo r determining whether a p l a i n t i f f in a defau l t proceeding hases tab l i shed sub jec t mat te r j u r i sd i c t i on . When a cour t reviewsunchal lenged f ac tu a l a lle g at io n s on a motion to dismiss , thea l l ega t ions are assumed to be t rue fo r purposes o f asse ss in g

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- 9 -subject mat te r j u r i sd i c t i on . Price , 294 F.3d a t 93. Simi la r ly ,fo r the purposes o f examining s ub je ct m atte r j u r i sd i c t i on on amotion f or en t r y of de fau l t und e r the FSIA, cour ts accept thep l a i n t i f f s ' f ac tu al a lle g at io n s as t rue . Sisso v . I s l amicRepublic of I ran , 448 F. Supp. 2d 76, 81 & n .S (D.D.C. 2006)(reasoning on motion fo r en try of defau l t in FSIA proceeding t ha tcour t was "prec lude[d] a t th i s s tage o f the l i t i ga t i on frommaking factua l f indings t ha t are i ncons i s t en t with thea l l ega t ions of the complaint" and exp l i c i t l y accepted " a l l ofp l a i n t i f f s ' f ac tu al a lle g at io n s as t r u e [ . ] " ) . However, toes tab l i sh sub jec t mat te r j u r i sd i c t i on , the a l l ega t ions must besu f f i c i en t l y de ta i l ed . At th e pleadings s tage , the Pr ice cour taccordingly found inadequa te th e a l l ega t ions before it, ho ldi ngt ha t

p l a i n t i f f s ' complaint offe rs no useful de t a i l s aboutthe natu re of the k ic ki ng , c lu bb in g, and bea t ings t ha tp l a i n t i f f s a l l eged ly su f fe red . As a r e su l t , the re i sno way to determine from the p re sen t complaint thesever i ty of p l a i n t i f f s ' a ll eg e d b ea tin g s - - inc ludingt he i r frequency, durat ion , the par t s of the b ody a twhich they were aimed, and the weapons used t o car rythem out - - in orde r to ensure t ha t they sa t i s fy theTVPA's r igorous de f in i t i on of t o r tu r e .

Pric e , 294 F. 3d a t 93 . Beyond t he plea d ings s ta ge , p la i nt i f f s"have to prove t he mer i t s o f t h e i r claims before they can obtaina de f a u l t judgment " and " t he ev idence they pre sen t wi ll have t oprovide suppor t " fo r the t heor i e s of l i a b i l i t y t hey a l lege .

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- 10 -Sisso, 448 F. Supp. 2d a t 79 n .2 . I t fo l lows t h a t p l a i n t i f f smust provide su f f i c i en t l y de ta i l ed proof of t h e i r a l l ega t ionst ha t DPRK agents to r tured Reverend Kim in order to ensure t ha tth e conduct " s a t i s f [ i e s ] the TVPA's r igorous de f in i t i on oft o r t u re . " Price , 294 F.3d a t 93.I I . STANDARDS FOR DEFAULT JUDGMENT

Defau l t judgment aga ins t a fore ign s t a t e s ha l l be ente redonly where a p l a i n t i f f "es t ab l i shes h is cla im or r i gh t to r e l i e fby evidence t h a t i s s a t i s f a c to ry to the Court." 28 U.S.C. 1608(e) . The "sa t i s f ac to ry to the cour t" s tandard i s ident ica lto th e s tan dard fo r en te r ing defau l t judgment aga ins t the UnitedSta tes under Fed. R. Civ. P. 55 (d) ( requi r ing c la imant to"es t ab l i sh [ ] a cla im or r i gh t to r e l i e f by evidence t ha ts a t i s f i e s the cou r t " ) . Hi l l v. R epublic of I raq , 328 F.3d 680,683 (D.C. Cir . 2003) (c i t ing H.R. Rep. No. 94-1487, a t 26(1976)). Neith er s ta nd ar d, however, i s ea s i l y def ined. SeeSmi t h ex re I . Smit h v . I slam i c Emi r a t e of Afghan i s t an , 262 F.Supp. 2d 217, 223 (S.D.N.Y. 2003) (observing t h a t " [ t ]he i s sueappears to have def ied de f in i t i ve reso lu t ion la rge ly because inmost cases the evidence o f the defau l t ing defendan t ' s l i ab i l i t yi s qui te compel l ing and thus the m atte r can be d ec id ed w ith ou t amore concise meaning of ' evidence s a t i s f a c to ry to the cour t ' " ) .The D.C. Ci rcu i t has not a dd re ss ed the ques t ion , and lower cour ts

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- 11 -have a r t i c u l a t e d varying r a t i o n a l e s f o r wha t q uan tum of evidencei s " s a t i s f a c t o r y . u

Some c o u r t s i n FSIA d e f a u l t proceedings have found t o be" s a t i s f a c t o r y u evidence t h a t they d e s c r i b e d as " c l e a r andconvincing. u See, e . g . , Weinste in v. I s l a m i c Republic of I r a n ,184 F. Supp. 2d 13, 16 (D.D.C. 2002) ( f i n d i n g j u r i s d i c t i o n a lf a c t s " e s t a b l i s h e d by c l e a r and convincing evidence , which wouldhave been s u f f i c i e n t t o e s t a b l i s h a prima f a c i e case i n ac o n t e s t e d proceeding U ) ; Mousa v. I s l a m i c Republic o f I r a n , 238 F.Supp. 2d 1, 3 (D.D.C. 2001) (same). But t h e reasoning o f t h e s ecases suggests s t r o n g l y - - and i n some cases i n d i c a t e s e x p l i c i t l y- - t h a t c l e a r and convincing evidence was c o n s i d e r e d as u f f i c i e n t , r a t h e r than a necessary , quantum o f p r o o f . See,

~ , Campuzano v. I s l a m i c Republic of I r a n , 281 F. Supp. 2d 258,269 (D.D.C. 2003) (concluding t h a t " t h e p l a i n t i f f s have gonebeyond t h e n e c e s s a r y burden o f ' evidence s a t i s f a c t o r y t o thec o u r t ' and have proven each e lement by c l e a r and convincingevidence U )

Other c o u r t s have drawn an analogy between t h e FSIA d e f a u l ts tandard and t h a t f o r judgment as a m a t t e r of law, e i t h e r a f t e r aj u r y t r i a l o r on summary judgment. One c o u r t held t h a t t h e FSIAd e f a u l t s t a n d a r d " c a l l [ s ] f o r proof by evidence o f a n a t u r e andq u a l i t y s u f f i c i e n t t o suppor t summary judgment under Fed. R. Civ.

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- 12 -P. 56, namely, ora l or wr i t t e n tes t imony unde r oath, made uponper sona l kn owled ge b y wi t n e s se s compe t en t t o t e s t i f y to th ema t t e r s s ta te d th e re in . " Hi l l v . Repub l i c o f I raq , 17 5 F. Supp.2d 36 , 38 n. 4 (D. D. C. 2001) ( refe r r i ng to then - cu r r ent Ru le56(e) ) .1 In Ungar v . Is lamic Republ i c of I ran , 211 F. Sup p . 2d91, 98 (D.D .C. 200 2 ), the cour t cons idered t he Hi l l s tandard ,among oth e r s , bu t t hen pu rp o r te d t o op t f o r the s ta ndard fo rjudgment as a mat t e r o f law a f t e r a ju r y t r i a l , s e t fo r th inFe de r a l Rule of Civ i l Proc e d u re 50 (a) , wh ic h t he cou r t des c r ibe das "a l ega l ly su f f i c i en t ev iden t i a ry bas i s for a reasonable ju ryt o f ind for p l a i n t if f ." I d. a t 98. 2 Severa l subsequent c ou r t s ,s ee, e .g . , Ga t e s , 580 F. Sup p. 2d a t 63, have a dop te d as t he

(This case was reversed in pa r t by Hil l v . Republi c of I raq ,328 F.3d 680 (D.C. Cir . 2003). The D.C. C i rc u it r eje cte d theburden of proof on damages fo r defau l t judgment t h a t the d is t r i c tcour t a r t i cu l a ted , bu t "d i d no t add r es s th e q ues tio n of t heFSIA's p la i n t i f f ' s burden on proof on l i a b i l i t y ." Hil l , 328 F. 3da t 683- 8 4 .

2 The Federa l Rule of Civ i l P ro ce du re 5 0(a) s tandard i s mores t r i ngen t than the Ungar cou r t ' s formula t ion sugges t s . Judgmentas a m atte r o f law aga ins t a par ty may be granted only if " thecourt f inds t ha t a reasonable ju ry would not have a l ega l lysu f f i c i en t e v id e ntia ry b as is to f ind fo r the par ty on [an]i s sue . " Fed. R. Civ. P. 50(a) ; see a lso Anderson v. Liber tyLobby, Inc . , 477 U.S. 242, 250 (1986) (holding tha t the summaryjudgment s tandard "mir rors the s tandard for a d ir ec te d v er dic tunder Federa l Rule of Civi l Procedure 50(a) , which i s t h a t thet r i a l judge must d i r e c t a verd ic t i f , under th e governing law,there can be bu t one reasonable conclusion as to the verd ic t") .In t h i s l i gh t , the s tandards ac tua l ly appl ied in H il l and Ungarare v i r t u a l l y i d en t i c a l .

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- 13 -s tandard t h a t the p la in t i f f s must put for th a " le g al ly s u ff ic ie n tp rima fac ie case . " See, e .g . , Kilburn, 699 F. Supp. 2d a t 150.

In te rpre t ing the " sa t i s f a c to ry to th e cour t" standard torequi re a le g al ly s u ff ic ie n t prima fac ie case bes t accounts fo rthe postu re of de fau l t proceedings under the FSIA. Where thedefendant has no t par t ic ipa ted in the proceedings and there hasbeen no oppor tun i ty fo r discovery, p la in t i f f s cannot be expectedto meet a typ ica l s tandard for judgment as a mat te r o f law.However, the p l a i n t i f f ' s evidence must be r igorous enough tosuppor t the fac t s necessary fo r j u r i sd i c t i on .

In FSIA de fau l t proceedings, " the cour t may accep t as t ruethe p l a i n t i f f s ' uncontroverted evidence . " Wachsman v. Is lamicRepublic of I r an , 603 F. Supp. 2d 14 8, 155 ( D. D.C. 2009)( in ternal quota t ions om itted) (quoting Elah i v. Is lamic Republicof I ran , 124 F. Supp. 2d 97, 100 (D.D.C. 2000)); see also Gates,580 F. Supp . 2 d a t 63 (same); Alejand re v. Repub l i c o f Cuba, 996F . Supp. 12 39 , 1 2 43 (S.D. Fla. 1997 ) (s a me ) . The ev i denceprovided , however, i s sub jec t to the Fede r a l Rul e s o f Evidence .See, e .g . , Dal ibe r t i v. Republic of I raq , 14 6 F. Supp. 2d a t 21n.1 (D.D.C. 2001) (not ing t ha t " [ i ]n th e absence o f defensecoun s e l , the Court us ed pa r t i cu l a r care t o d r aw thefind i ngs of f a c t and c o nc lus ions o f law f rom admiss ib le tes t imo n yin accordance with th e Federa l Rules of Eviden ce" ) . Hearsay

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- 14 -evidence t he re fo re i s normally inadmiss ib le because it lackssu f f i c i en t indic ia of r e l i a b i l i t y . Expert witnesses , however,may re ly on hearsay evidence to reach t he i r conclus ions . Fed. R.Evid. 703. Pla in t i f f s may pre sen t t h e i r evidence in the form ofa f f idav i t s or dec la ra t ions , see Campuzano, 281 F. Supp. 2d a t 268(c i t ing Weinste in, 184 F. Supp. 2d a t 19) , and an ev iden t ia ryhear ing i s not required before a defau l t judgment aga ins t afore ign s t a t e i s en te red . See Ben -Rafa el v . Is lamic Republic ofI ran , 540 F. Supp. 2d 39, 43 (D.D.C. 2008).I I I . PLAINTIFFS' EVIDENCE

Pla in t i f f s have submit ted t h e i r own dec la ra t ions , as well asdec la ra t ions from family member Dani But l e r , and from mul t ip l eexper t s on North Korea. Exhibi t s i nc lud e c ong re ss ion alr eso lu t ions r e l a t i ng to Rever end K im 's abduc t ion , and pressmater ia l s , book excerpts and r epor t s from human r igh t sorgan iza t ions and th e U.S. Sta te Department about North Korea.The p la in t i f f s re ly in par t i cu l a r on th e d ec is io n of a SouthKorean cour t t h a t t r i ed and convicted a DPRK in te l l igence agentfo r crimes in clu din g th e abd uctio n o f Reverend Kim. Pla in t i f f shave provided a sworn English t r ans l a t i on of t h a t dec is ion . SeeDeclara t ion of J .D. Kim (ce r t i fy ing t r ans l a t i on of Decision ofSeoul Joong Ang J i Bang Court, C rim in al Par t 23 ("South Koreancour t dec i s ion") ) . The judgment o f the South Korean cour t i s a

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- 15 -proper sub jec t o f jud i c i a l not ice under Fe de r a l Rul e of Ev i dence201 to e s t ab l i sh th e fac t of fo re ign l i t i g a t i on and the resu l t ingact ions o f th e fore ign cour t . Fe d . R. Ev id . 201 (p e r mi t t i ngj ud i c i a l not ice of a fac t t h a t i s not sub jec t to reasonabledispute because it can be accura te ly and read i ly determined fromsou rces wh o s e accuracy canno t reasonably be ques t ioned ) ; s ee,e .g . , Jordan (Bermuda) Inv. Co. , Ltd. v. Hunter Green I nv s . Lt d . ,154 F. Supp. 2d 682, 689 (S.D.N. Y. 2001) (t ak ing j ud i c i a l no t i ceof fo re ign cour t judgment); Luxpro Corp. v. Apple Inc . , No. C 1003058 JSW, 2011 WL 10860 27, a t *3 (N.D. Cal . March 24 , 20 11 )(same). A dec la ra t ion ce r t i fy ing under pena l ty o f per jury t ha tthe t r ans l a t i on of the dec is ion i s t rue and cor rec t accompaniesth e d ec is io n and su f f i c e s to e s t ab l i sh i t s accuracy. See 28U.S.C. 1746. Reci ted below, without an a t tempt to parse th eadmiss ib i l i t y of a l l of it, i s the evidence presented by thep l a i n t i f f s .

North Korean re fugees who were able to escape to Chinawould s tay in sec re t safe -houses t ha t non-governmentalorganiza t ions and r e l i g i ou s humanitar ian groups had es tab l i shedor t ha t Chinese l oca l s in the area with e thn ic Korean descentwould suppor t . Report of Yoshikuni Yamamoto ("Yamamoto Decl ." )1 17. In response , th e DPRK es tab l i shed a network of l oca lagents in China under DPRK's secur i ty se rv ice s to abduct

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- 16 -de fec to rs and th e humani ta r ian workers who a s s i s t ed them. Id .

~ ~ 18, 23. On September 17, 2002, DPRK l e ade r Kim Jong- I Iadmit ted p ub lic ly to Prime Minis te r Koizumi of Japan t h a t DPRKs ec u ri ty s er vi ce s had engaged in kidnapping Japanese c i t i z en sbetween 1977 and 1983. Declara t ion o f Ernes t C. Downs ("DownsDeclo") 20.

In 1993, Reverend Kim moved to China to work as a miss ionaryp ro v id in g human it ar ia n and re l ig ious se rv ices to th e fam ilie s o fNorth Korean defec to r s and re fugees who had f l ed acro ss the Sino-Korean border seek ing asylum. Yamamoto Decl. 20. He hadprevious ly worked with th e Spec i a l Olympics in China and workedto ra i se money fo r medica l supp l i e s fo r needy ch i ld ren . Hel e a r n e d of th e p l i gh t of North Korean refugees and a t oncecommitted himsel f to a id t h i s disadvan taged community.Declara t ion o f Han Kim ("Han Decl ." ) ~ ~ 19, 21. Reverend Kim se tup numerous re fugee she l t e r s and a schoo l fo r expa t r i a t e NorthKorean ch i ld ren and handicapped persons in the Chinese town ofYanji . He named the school the "School of Love." Yamamoto Decl.

20.DPRK i n t e l l i gence agen t Hua was convicted on Apr i l 21, 2005

by a South Korean Court in Seoul , fo r h is involvement in planningand execut ing va r ious abduct ions o f c i v i l i a n s from China to NorthKorea fo l lowing th e i n s t ruc t i on s of a sen io r DPRK i n t e l l igence

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- 17 -o f f i c i a l . South Korean c ou rt d ec is io n a t 1. One of the crimesfo r which Hua was conv ic ted was h is d i r e c t involvement inplanning and carry ing out the abduct ion of Reverend Kim. Id . a t2. Hua was sentenced to ten years imprisonment . Id . a t 1. Thep l a i n t i f f s al lege t h a t agents p ro se cu te d fo r abduct ing ReverendKim provided in fo rmat ion concerning Rever end K im 's t o r tu r e inNorth Korea, and c i t e to the South Korean cour t d ec is io n fo rsupport . P i s . ' Proposed Facts a t 8; Revised Proposed Findings ofFacts and Conclus ions o f Law a t 18. However, the cour t dec is ionmakes no re fe rence to Reverend Kim being t o r tu red in North Korea.

Members of the United Sta tes Congress have inves t iga ted theDPRK pol icy of abduct ing fore igners and have i ssued variousr eso lu t ions regarding the i ssue . On June 11, 2002, the House ofRepr es en ta ti ve s i ss u ed a reso lu t ion urging the governments of theUnited Sta tes , South Korea and China to seek a fu l l accountingfrom th e DPRK regarding the whereabouts o f Reverend Kim. DownsDecl. 25, Ex. A. On July 11, 2005, the House ofRepresenta t ives i ssued a reso lu t ion condemning the DPRK's use ofabduct ions and demanding th e re tu rn of ind iv idua l s being held inNorth Korea. Id . 25, Ex. C. On January 28, 2005, an I l l i no i scongress iona l delegat ion , inc luding then-Uni ted Sta tes SenatorBarack Obama, sen t a l e t t e r to North Korean Ambassador to theUnited Nations Pak Gil Yon, which spec i f i c a l l y asked t ha t North

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- 18 -Korea fo r thwi th i nves t iga te th e c ir cum sta nc es o f Reverend Kim'sabduc t ion and f a t e , and which s t a t ed t h a t its s igna to r i e s wouldnot suppor t th e removal of the DPRK from th e S ta t e Depar tment ' slist of Sta te Sponsors o f T erro rism un t i l th e whereabouts o fReverend Kim had been made known. Id . 25, Ex. E . This l e t t e rwas fo l lowed by a l e t t e r from Represen ta t ive Henry Hyde in h iscapac i ty as th e Chairman o f th e House Committee on I n t e rna t i ona lRela t ions , dated November 4, 2005, a f t e r th e I l l i no i scongress iona l de lega t ion had r e t u rned from a t r i p to Japan. Id .

25, Ex. F.A r ecen t ly d e c la s si fi ed i n te r na l Sta te Department cab le

da ted February 3, 2000, from r e pr e se n ta ti v es s ta t io n e d in Seoulcommunicat ing with headquar te rs in W ash in gto n, D .C ., s t a t e s t h a ta l o ca l Chinese paper r epo r t ed t h a t Chinese i nves t i ga to r s had"s t rong ev idence" t h a t Reverend Kim was kidnapped from China byDPRK agen ts who had crossed over in to China in l a t e December toplan th e abduct ion . Id . 26, Ex. G. The cab le au thored amere two weeks a f t e r Reverend Kim's abduct ion - - f u r the r r epo r tedt h a t ten people were invo lved in Reverend Kim's ki dnapping,inc lud ing a couple pos ing as North Korean de fe c t o r s , and th a tReverend Kim was held hos tage in China before be ing t r anspor t edi n to North Korea by h is cap to rs . Id . The S ta t e Depar tment ' s2003 count ry r epo r t on North Korea d i s cus ses North Korea ' s

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- 19 -r e spons ib i l i t y fo r disappearances and r e f e r s to "unconfirmedrepor t s t h a t in January 2000 North Korean agen ts kidnaped a SouthKorean c i t i z en , Reverend Kim Dong Shik , in China and took him toNorth Korea ." Decl . of Robert Tolch in , Dkt. No. 37 a t 3. TheSta t e Department a l so recounts t h a t North Korea engaged int o r t u re inc lud ing "severe bea t ings , e l e c t r i c shock, prolongedperiods o f exposure , humil ia t ions such as publ i c nakedness , andconf inement to smal l ' punishment c e l l s [ . ] " rd . a t 4. The repor tdescr ibes harsh pr i son cond i t ions in North Korea w here" s t a rva t i on and execu t ions were common" and former pr i sone rsrepor ted severe bea t ings and " t o r t u re involving w ater fo rced in toa v ic t im ' s s tomach with a rubber hose and pumped out by guardsjumping on a board p la ce d a cro ss the v ic t im ' s abdomen( . ]" rd . A2009 Sta te Department count ry r epo r t on human r i gh t s prac t ices inth e DPRK s ta te s th a t th e North Korean government was respons ib lefo r d i sappearances and t h a t " [ i ] n 2008 th e media repor ted SouthKorean miss ionary Kim Dong-shik had most l i ke ly died with in ayear o f h is 2000 d is ap pe ar an ce n ea r the China-DPRK borde r . "Decl. of Rober t Tolch in , Dkt. No. 38 a t 3. The 2009 repor tr e i t e ra t e s th e repor t ed t o r tu r e methods and th e harsh cond i t ionso f th e pr i sons in North Korea. rd . a t 3-4 . However, th e Sta t eDepartment cab le and r epor t s do not provide any f i r s t -handaccount s of Rever end K im 's t r ea tmen t , o r address th e na tu re or

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- 20 -s e v e r i t y o f any t o r t u r e Reverend Kim s u f f e r e d , o r s p e c i f y t h ef requency o r d u r a t i o n o f t h e a c t s o f t o r t u r e o r t h e p a r t s o f t h ebody a t which t h e y were aimed o r any weapons used t o c a r r y themo u t .

Exper t r e s e a r c h on human r i g h t s abuses i n North Korea hasr e p o r t e d widespread and s y s t e m a t i c r e p r e s s i o n by DPRK o p e r a t i v e so f DPRK c i t i z e n s and f o r e i g n n a t i o n a l s , s p e c i f i c a l l y by means o ff or ce d a b d u c ti o n s and conf inement i n kwan- l i -so , o r p o l i t i c a lp e n a l - la b o r c o lo n ie s . The r e p o r t s a r e based on f i r s t - h a n daccount s and s a t e l l i t e photography, among o th e r d a t a .D e c l a r a t i o n o f P r o f e s s o r David Hawk ("Hawk D e c l . " ) ~ ~ 8-13.P r o f e s s o r David Hawk has e x p e r t i s e i n human r i g h t s i n NorthKorea, has p u b l i s h e d e x t e n s i v e l y on t h a t i s s u e , and hasi n t e r v i e w e d s c o r e s o f former p r i s o n e r s with f i r s t - h a n d accountso f t r e a t m e n t i n North Korean camps. He d e c l a r e d t h a t p r i s o n e r so f t h e pena l c o l o n i e s f a c e h a r s h c o n d i t i o n s and t r e a t m e n t ,i n c l u d i n g b e lo w - s u b s i st en c e food r a t i o n s , b a c k - b r e a k in g f o r ce dp h y s i c a l l a b o r , b r u t a l b e a t i n g s , l o n g - t e r m s o l i t a r y conf inement ,r a p e , and f o r c e d a b o r t i o n . r d . ~ ~ 14-19. P r i s o n e rs a r e f o r c e dt o perform l a b o r twelve o r more hours a day, seven days a week,and r e c e i v e o n l y enough food t o be kept on t h e verge o fs t a r v a t i o n . r d . 14. P r i s o n e r s o f t e n endure " l o n g - t e r ms o l i t a r y conf inement i n punishment c e l l s which do not have enough

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- 21 -space fo r a person to complete ly l i e down or s tand up, causinginmates to exper ience a lo s s of c i rcu la t ion and atrophy of l egs ,and o fte n le ad in g to d ea th w ith in severa l weeks." Id . err 15.According to Hawk, "(a ] t tempted escapees a re a utoma ti ca ll yexecuted and o ther 'ma jor ' ru le -b reaker s are pub l ic ly executed byhanging or f i r ing squad in fron t o f the assembled pr isoners oft ha t sect ion of the camp." Id . "Many inm ates c an no t withstandthe harsh cond i t ions of t h e i r imprisonment and a s ign i f i c an tnumber die wi th in a year of th e i r a rr iv al to th e kwan-l i -so . Ala rge number of those who survive develop permanent d i s ab i l i t i e s- - s igns o f p re m atu re a gin g, hunchbacks and o ther physica ldeformi t ies due to the bru t a l work condi t ions and ce l l s i z e s . "Id . CJ[ 16. Hawk s t a t ed tha t a def in ing cha rac t e r i s t i c of DPRK'spo l i t i c a l pena l - l abor colonies i s t h a t "pr i soner s a re notformally a r r e s t ed , charged (or even to ld of t h e i r offense) , ort r i ed in any s o r t of j ud i c i a l procedure ." Id . err 11.

Hawk sa id(w]hi le I do not have any f i r s thand knowledge aboutReverend Kim's case spec i f i c a l l y , given my extens iveexper ience with th e DPRK and th e manner in whichabductees r epa t r i a t ed from China were usual ly t r e a t ed ,it i s l ik ely th at [Reverend Kim] would have beeni n i t i a l l y he ld in a ku-ryu- jang, or a DPRK po l icede tent ion and i n t e r roga t ion f a c i l i t y , before beingt r an sf er re d to a kwan- l i - so . I t also seems l ike ly tome t ha t Reverend Kim, a t a minimum, would have beensubjec ted to th e harsh t rea tment a fforded to a l l of i t spr i soner s . But because Reverend Kim was such avaluab le t a rge t of the DPRK and so much planning,

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- 22 -e f f o r t and o t h e r r e s o u r c e s had gone i n t o h i s abduct ion,it i s c l e a r t o me t h a t Reverend Kim was s u b j e c t e d t oa d d i t i o n a l b r u t a l i t y .

rd . 20. Reports and concerns about R ev ere nd K im 's t r e a t m e n thave c i r c u l a t e d widely enough t h a t he would have been more l i k e l yt o be viewed by t h e DPRK as a high-va lue t a r g e t warrant ing harsht r e a t m e n t . r d . Hawk " b e l i e v e [ s ] t h a t t h e v ar i o us r e p o r t s of[Reve rend Kim 's ] t o r t u r e and e v e n t u a l s t a r v a t i o n , from theaccounts o f o t h e r p r i s o n e r s , a r e l i k e l y t o be r e l i a b l e anda c c u r a t e l y d e s c r i b e how Reverend Kim was t r e a t e d by h i s c a p t o r sfrom t h e t ime he was abducted and i n c a r c e r a t e d u n t i l h i s unt imelyd e a t h . " r d . Hawk does not d e t a i l from t h e r e p o r t s t h e n a t u r e o rs e v e r i t y o f t h e t o r t u r e Reverend Kim s u f f e r e d , o r t h e frequencyo r d u r a t i o n o f t h e a c t s o f t o r t u r e o r t h e p a r t s o f t h e body a twhich they were aimed o r any weapons used t o c a r r y them o u t .

Ernes t C. Downs, a former s e n i o r o f f i c i a l o f t h e U.S.Department o f Defense who served from 2001 t o 2008 on t h e boardof the United S t a t e s Committee f o r Human Rights i n No r t h Korea,s t a t e d t h a t it i s " c l e a r . t h a t (Reverend Kim] was abductedby DPRK agents from China and f o r c i b l y brought t o North K o r e a [ . ] "Downs Decl. 33. According t o Downs, DPRK agent s haves p e c i f i c a l l y abducted and imprisoned people who have a s s i s t e dNorth Korean d e f e c t o r s as wel l as C h r i s t i a n m i s s i o n a r i e s .Supplemental D e c l a r a t i o n o f Ernes t C. Downs ("Downs Supp. Decl ." )

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- 23 -6(b) - (d ) . Bec au se Rever end Kim a s s i s t ed North Korean de fec to rs

and was a Chr i s t i an miss ionary , he was l i ke ly a "va luable andimportant t a rge t to th e governmen t and ru l ing pa r t y of th e DPRK."Id . 6(a ) - ( c ) . Based on th e tes t imony o f o t he r Nor th Koreanpr i sone rs , Downs s t a t e s t h a t pr i sone rs a re fo rced to labor fo rmore than tw elv e h ours per day, som etim es s ix teen hours , and th ef a i l u re to meet product ion quotas leads to " add i t i ona l har dl abor , l e ss food, and excep t iona l l y pa in fu l phys ica l p unishmen t . "Downs Decl. 11i see also Downs Supp. Decl. 11. Thus," [p ]r is on er s in North Korea ' s p o l i t i c a l pr i sons do no t of t ensurv ive . " Downs Supp. Decl. 7. Downs s t a t e s t h a t he i s awareo f the t es t imony o f 1000 form er N orth Korean pr i sone rs and Downs"does not know o f any case in which th e former pr i sone r was notsubjec ted to t o r t u r e while in the pr i son camp." Downs Supp.Declo 10. Downs prov ides numerous examples from formerp ri so n er s d e sc ri bi ng inmate mis t rea tment in DPRK pr i sons andf a c i l i t i e s . I n pa r t i cu l a r , Dow ns submits an exce rp t from Hawk 'sbook The Hidden Gulag which recoun ts inmates who were sub jec t t oburnings , sk in p ie r c ing , water t o r t u re , being hung by wris t s orupside-down, s le ep d ep riv at io n , food depr iva t ion , f a c i a l and shinbea t ings with r i f l e bu t t s , whippings with be l t s , bea t ings in th elegs wit h a wooden s t ave , u nd er siz ed p un is hment c e l l s wh e r ede ta inees could no t s tand up or l i e down and placement in

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- 24 -punishment ce l l s fo r a week or more. Id . , Ex. 1 a t 148-52.Downs also a t t aches an account of a pr i soner who was hung by h ishands and fee t , s tabbed in the lower abdomen and held over a f i reun t i l he l o s t consciousness . Id . , Ex. 2 a t 57-58.

Downs a l so opines t ha t "Reverend Kim's ki l l ing was motivatedby po l i t i c a l cons ide ra t ions . " Downs Decl. 7. In h is opinion,"a fore igner abducted by the DPRK fo r po l i t i c a l purposes, such asReverend Kim, a f t e r elev en y ears would still e i t he r belanguishing in a North Korea pr i son camp or would have a l readybeen k i l l ed . " Id . 34. He "be l i eve[ s ] t ha t cred ib leinformat ion on [Reverend Kim's] t rea tment in North Korea has beenobta ined from defec tors . " Id . He s t a t e s t ha t Reverend Kimprobably was subjected to "severe beat ings while in s t r e s spos i t ions (such as while suspended from the ce i l i ng ) , nears t a rva t ion , and f or ce d p hys ic al e xe rt io n to the po in t o f abso lu tephys ica l exhaus t ion ." Downs Supp. Decl. 9. In addi t ion , Downsa sse r ts th at he i s c er ta in th at "Reverend Kim has been sub ject toexcept ional ly pa in fu l , bru ta l , and outrageous t rea tment while inpr i son . " Id . 8. Downs also s t a t e s t ha t " [c ] red ib le sourceshave repor ted t ha t Reverend Kim died as a r e su l t of h is to r tureand malnu t r i t i on . " Id . 6( i ) . Thus, Downs concludes t ha tReverend Kim's "dea th re su l t ed from t o r tu r e and malnu t r i t ionde l ibe ra t e ly caused by h is North Korean cap to rs . " Id . 13.

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- 25 -Downs ne i t he r i d en t i f i e s the former pr i soner s , the de fec to rs orother cred ib le sources fo r the se conclus ions , nor revea ls t h e i rbas i s of knowledge about Reverend Kim, nor says he has spokenwith any of them. Downs does not provide de t a i l s from thec red ib le i nf ormat ion r ec ei ve d concerning the sever i ty of ReverendKim's bea t ings , such as t h e i r frequency, durat ion , the par t s ofthe body a t which they were aim ed, or the weapons used to carrythem out .

Do Hee-Youn, a member of a South Korea-based human r igh t sorgan iza t ion , h ea rd " th ro ug h the in fo rmat ion net" t ha t ReverendKim died in North Korea as a r e su l t of t o r tu r e and malnutr i t ionin February 2001. Decla ra t ion of Do Hee-Youn ("Do Hee-YounDecl ." ) 13. Yoshikuni Yamamoto, a researcher a t a human r igh t sorganiza t ion in Washington, DC, s ta ted genera l ly t h a t " i t wasreported" t h a t Reverend Kim was t o r tu red a f t e r re fu sin g toco l labora te and t h a t he died in February 2001 and was bur ied inDis t r i c t 91 mi l it ar y t ra in in g base in Sangwon-ri near Pyongyang.Yamamoto Decl. 22. Nei ther dec la ra t ion suppl ied de t a i l s aboutthe na tu re o f the repor ted t o r t u re .

Human Rights Watch re leased a 2007 r epor t discuss ing themis t rea tment o f pr i soner s a t detent ion f ac i l i t i e s in North Korea.This r epor t s t a t e s t h a t

p riso ne rs a re sub jec t to s t r i p s ea rc he s, v erb al abuseand t h rea t s , bea t ings , forced l abor , and l ack of food-a26-


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- 26 -and medicine, among o t h e r abuses. Torture and o t h e rc r u e l and inhuman t r e a t m e n t appears widespread and canoccur throughout t h e process o f i n c a r c e r a t i o n i n NorthKorea [ . ]

North Korea: Harsher P o l i c i e s a g a i n s t Border -Crosse rs , Dkt. No.35-1 a t 8. In p a r t i c u l a r , the r e p o r t i n c l u d e s accounts fromformer p r i s o n e r s who s t a t e t h a t t h e guards

would make [ p r i s o n e r s ] s i t down and s t a n d up r e p e a t e d l yu n t i l [they] c o ll a p s e d , o r forced [them] t o hang ontoc e l l b a r s o r bang [ t h e i r ] heads onto c e l l b a r s .Guards b e a t people a l l t h e t ime - - they used s t i c k s orb e l t s . They a l s o slapped o r kicked inmates f o rd i s o b e d i e n c e .

Id . S im i l a rl y , t h e United Nations S p e c i a l Rapporteur on t h es i t u a t i o n o f human r i g h t s i n t h e DPRK r e l e a s e d a r e p o r t whichd e s c r i b e d what it c a l l e d DPRK's record o f t o r t u r e and inhumant r e a t m e n t , a r b i t r a r y d e t e n t i o n and use o f p r i s o n camps. P l s . 'Supp. Submission o f New Auth. , Ex. 1, Human Rights Council , Rep.of the S p e c i a l Rapporteur on t h e s i t u a t i o n of human r i g h t s i n t h eDPRK, 22d S e s s . , U.N. Doc. A/HRC/22/57 (Feb. 1, 2013). Thisr e p o r t s t a t e d t h a t , i n 2007, t h e r e were r e p o r t s t h a t DPRKa u t h o r i t i e s engaged i n " t o r t u r e , p u b l i c e x e c u t i o n s , andp e r s e c u t i o n o f p o l i t i c a l d i s s i d e n t s . " I d . , Annex 1


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- 27 -the harsh condi t ions im posed by the cr imina l j u s t i cesystem and re la ted detent ion give r i se to a p le thora ofabuses, inc luding t o r tu r e and crue l , inhuman anddegrading t rea tment . The abuses a re u biq uito us , andinc lude degrading trea tm ent of deceased persons .

Id . , Annex 1 23. The UN Specia l Rapporteur c i t e s 2011 repor tswhich s t a t e t ha t DPRK cor rec t iona l of f i c e r s bea t inmates and t h a tt o r tu r e was occurr ing a t var ious camps in the DPRK. Id . , Annex 1

~ ~ 25-26. In add i t ion , " [ t ] he Secre ta ry -Genera l noted in 2012t ha t some repor t s a l so ind ica te the ex is tence of pr i son campswhere t o r tu r e and execut ion a re widespread." Id . , Annex 1 27.The r epor t i d en t i f i e s the po l i t i c a l l abor camps and s t a t e s t h a tthe Specia l Rapporteur has cons i s t en t ly expressed concern about"unreasonable and abusive punishments" and " to r tu r e and de tent ionwithout due process of law" and the "harsh cond i t ions" in thecamps where "no c l o ~ h i n g i s provided" and inmates are "expectedto work long hours perform ing manual labour ." Id . , Annex 1

~ ~ 48-51, 54. Nei ther r epor t provides any f i r s t -hand knowledgeof Reverend Kim's mis t rea tment . The r epor t s do not de t a i l thefrequency or durat ion of the ac t s of t o r tu r e a t the DPRK pr isoncamps.

P la in ti f fs c it e an excerpt from Melanie Kirkpa t r i ck ' s 2012book Escape from North Korea t h a t s t a t e s t h a t Reverend Kim wast o r tu red and murdered by the Nor th Kor ean s. PIs . ' Supp.Submission of New Author i ty , Dkt. No. 55, Ex. 1 a t 150-51. The

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- 28 -excerpt s t a t e s t h a t Reverend Kim was t r anspor ted to a po l i t i c a lpr i son camp and " [h)e appears to have been beaten and s tarved todeath a f t e r refus ing to renounce h is r e l i g i on . " Id . a t 152.Kirkpa t r ick also s t a t e s t ha t "according to [Reverend Kim's)family , h is remains are b elie ved to be in People ' s Army Camp 91,a garr ison on th e ou t sk i r t s of Pyongyang." Id . ( footnoteomi t ted) . K i rk pa tr ic k r ep o rt s as the source fo r these de t a i l sthe p l a i n t i f f s ' amended complain t and the f i l i ngs docketed int h i s case . See Melanie Kirkpa t r ick , Escape from North Korea 329n.20 (2012) . In any event , th e K irk pa tr ick ex cerp t does notde t a i l the na tu re or seve r i ty of the t o r tu r e , or the frequency ordura t ion of th e ac t s o f t o r tu r e or the par t s of the body a t whichthey were aimed or any weapons used to ca r ry them out .IV . JURISDICTION IN THIS CASE

Sect ion 1605A(a) (2) (A) (i) ( I) provides in re levan t pa r t t ha ta cour t s ha l l hear a cla im under 1605A aga ins t a fore ign s t a t ei f t ha t s t a t e "was des igna ted as a s t a t e sponsor of te r ror ism a tthe t ime the [ to r ture o r ex t r a jud i c i a l k i l l i ng ] occurred,and . e i t h e r remains so designated when the claim i s f i l edunder t h i s sec t ion or was so d esigna ted w ith in th e 6-month periodbefo re the cla im i s f i l ed under t h i s sec t i on [ . ] " North Korea wasdesignated as a s t a t e sponsor of t e rror i sm in 1988. See Notice ,Determinat ion Pursuant to Sect ion 6( j ) of the Export

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Kim v. North Korea – Petition to Appeal