Appeals Court Ruling in the Kim Dong-Shik Case: Chalk Up Another for the Good Guys



Let me first stipulate that I am an economist, not a lawyer (and I didn’t even stay in a Holiday Inn Express last night). But in the holiday rush, many readers may have missed an unusual and perhaps precedential ruling by the U.S. Court of Appeals for the District of Columbia in the case of the Reverend Kim Dong-shik, a US permanent resident who was kidnapped in China by North Korean agents in 2000 and presumed to have been tortured and killed, which may justify me swimming outside my lane today.

The Reverend Kim had been active in assisting North Korean refugees in China and, according to reporting by Carol Morello in the Washington Post, is thought to have come to the attention of the North Korean authorities for these activities and for attempting to convert North Korean athletes at the 1996 Atlanta Olympics. According to testimony at a 2005 South Korean trial, a North Korean abduction team “plotted Kim’s kidnapping for almost a year, snatching him as he hailed a cab and then taking him across the border.” This South Korean trial of one of the accomplices turned out to be critical in the Appellate Court’s ruling.

Normally, foreign governments cannot be sued in American courts under a doctrine known as sovereign immunity. However, as explained by David Post (who not only is a lawyer, but a retired law professor) under a recently enacted provision known as the “terrorism exception” US courts are given jurisdiction in cases  “. . . in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture [or] extrajudicial killing [as defined elsewhere, in the Torture Victims Protection Act] . . . if such act . . . is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.” One can argue whether this provision is a good idea or not; the 2013 US Supreme Court ruling in Kiobel v. Shell Petroleum established “a presumption against extraterritoriality,” with regard to attempts to stretch the 1789 Alien Tort Claims Act (ATCA) which somewhat similarly extends US judicial reach by allowing non-US citizens (but not US citizens) to file suit against US or foreign corporations so long as they are subject to US jurisdiction for practices anywhere in the world that violate US law or the “law of nations.” But it is the law. And as Post continues, “And not only does [the terrorism exception] give the federal courts jurisdiction to hear such claims, it sets out a new cause of action: if the foreign government in question has been designated a “state sponsor of terrorism,” US nationals (or members of the US armed forces, or US government employees) may seek and obtain damages for personal injury or death caused by such “acts of torture” or “extrajudicial killings.” Indeed, North Korea was one of the reasons Congress created the terrorism exception in the first place.

As it were, the Reverend Kim’s son and brother, who live in Chicago, filed suit against the government of North Korea in 2008 just days before it was removed from the list of state sponsors of terrorism. North Korea ignored the proceedings which under normal circumstances would result in a summary judgment against the defendant. But since the defendant is a sovereign, the law specifies that “No judgment by default shall be entered . . . unless the claimant establishes his claim or right to relief by evidence satisfactory to the court.” When the Kims attempted to obtain that default judgment, U.S. District Judge Richard W. Roberts ruled against the family, writing that in the absence of firsthand eyewitness accounts the plaintiffs had failed to “establish the severity of the treatment of Reverend Kim in particular, or that his treatment amounts to torture.”

The appeals panel decided that in dealing with such a closed state as North Korea this standard would effectively deny any plaintiff redress. Specifically, the panel cited the South Korean case as establishing the basic facts of the abduction, and relied on individual declarations and expert testimony (including by my former colleague at HRNK Chuck Downs, and my former boarder David Hawk) that the North Korean government “routinely tortures and kills the people it abducts.” Writing for the panel, Judge David Tatel stated that:

“Our conclusion would no doubt differ if we lacked confirmed evidence that the DPRK was involved in Reverend Kim's disappearance. In that case, finding that the regime tortured and killed him would arguably require too many logical leaps. But that is not this case. Here, the Kims’ evidence that the regime abducted the Reverend, that it invariably tortures and kills prisoners like him, and that it uses terror and intimidation to prevent witnesses from testifying allows us to reach the logical conclusion that the regime tortured and killed the Reverend. In other words, the Kims' evidence is ‘satisfactory to the court.’”

The appeals panel then instructed the trial judge to hear the family’s case for damages.

Whether they will actually be able to collect anything is another matter.  According to Morello’s story, “Asher Perlin, a lawyer who represented the Kims in court, said they might be able to put a hold on North Korean assets in the United States that were never unfrozen after the country was dropped from the list of state sponsors of terrorism. 'Even if there’s nothing there now,' he said in a phone call from Israel, 'at some point they’re going to want to come out of the cold. To do that, they will have to deal with judgments.'”

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