Kim v. North Korea - Findings of Fact Submitted

Case 1:09-cv-00648-RWR Document 52 Filed 02/01/13 Page 1 of 92
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
--------------------------------------------------------------------- X HAN KIM, et al., Plaintiffs, -againstDEMOCRATIC PEOPLES REPUBLIC OF KOREA, et al., Defendants. --------------------------------------------------------------------- X Civil Action No: 09-648 (RWR)
(REVISED) PROPOSED FINDINGS OF FACTS AND CONCLUSIONS OF LAW
NITSANA DARSHAN-LEITNER & CO. Nitsana Darshan-Leitner International co-counsel 10 Hataas Street Ramat Gan, 52512 Israel
THE BERKMAN LAW OFFICE, LLC Counsel for Plaintiffs 111 Livingston Street, Suite 1928 Brooklyn, New York 11201 (718) 855-3627 Fax: (718) 504-4943 By: Robert J. Tolchin (D.C. Bar #NY0088) Meir Katz Pro hac vice (pending) (D.C. Bar # 995431)
TABLE OF CONTENTS TABLE OF CONTENTS.............................................................................................................. i INTRODUCTION ........................................................................................................................1 SUMMARY..................................................................................................................................3 A. Capture..............................................................................................................................3 B. Incarceration .....................................................................................................................4 C. Extrajudicial Killing..........................................................................................................5 D. Torture...............................................................................................................................7 E. Liability...........................................................................................................................11 FINDINGS OF FACT.................................................................................................................13 A. Relevant Background......................................................................................................13 B. The Abduction and Torture of Reverend Kim Dong Shik..............................................14 C. South Korean Court Decision .........................................................................................19 D. Declaration of Professor David Hawk ............................................................................29 E. Declaration and Supplemental Declaration of Ernest C. (Chuck) Downs......................35 F. Declaration of Yoshikuni Yamamoto .............................................................................44 G. Affidavits of Do Hee-Youn, Cho Bong II and Bae Jae Hyun ........................................49 H. Documentary Evidence...................................................................................................51 CONCLUSIONS OF LAW ........................................................................................................58 A. The Foreign Sovereign Immunities Act, In General.......................................................58 B. Extrajudicial Killing Under the Foreign Sovereign Immunities Act ..............................61 C. Presumption of Killing Pursuant District of Columbia Law ..........................................62 D. Torture Under the Foreign Sovereign Immunities Act ...................................................64 E. The Claimants are Nationals of the United States for the Purposes of this Litigation...............................................................................................................................66 F. North Korea is not Immune from this Action.................................................................68 FINDINGS REGARDING LIABILITY.....................................................................................69 COMPENSATORY DAMAGES ...............................................................................................71
A. Yong Seok Kim...............................................................................................................77 B. Han Kim..........................................................................................................................81 PUNITIVE DAMAGES .............................................................................................................87 CONCLUSION...........................................................................................................................88
INTRODUCTION This is a civil action for damages pursuant to the Foreign Sovereign Immunities Act (FSIA) 28 U.S.C. 1602 et seq., brought by United States citizens whose father and brother respectively, Reverend Kim Dong Shik (Reverend Kim), was abducted on January 16, 2000 by officials, employees and agents of defendant Democratic Peoples Republic of Korea (DPRK), and was then forcibly transferred to North Korea where he was repeatedly tortured and then killed by officials, employees and agents of the DPRK. The plaintiffs are Reverend Kims son Han Kim (Han), who was a Permanent Resident of the United States at the time of his fathers abduction but who became in 2003 and remains today a United States citizen, and Reverend Kims younger brother Yong Seok Kim (Yong), who was on January 16, 2000, and remains today, a United States citizen. Plaintiffs allege that the abduction and torture of Reverend Kim was planned and overseen by the named defendant in this action, the DPRK (defendant).1 Plaintiffs Complaint was filed on September 4, 2009 (Dkt. #1) and plaintiffs First Amended Complaint was filed on December 22, 2009. (Dkt. #5). As required by 1608(a)-(b) of the FSIA, the Clerk of the Court initiated service of process on the defendant, which process included copies of the First Amended Complaint, summonses and a Notice of Suit and Korean-language translations thereof. (Dkt. #8). Service was effected on defendant on May 20, 2010, pursuant to the provisions of FSIA 1608(a)-(b). (Dkt. #11). After the sixty-day period provided by 1608 had passed without the defendant filing an answer or otherwise responding to this action, plaintiffs moved for entry of default against
The Complaint also names as defendants John Does 1-10 but, because these defendants have neither been identified nor served, they are hereby dismissed from this action.
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defendant pursuant to FED.R.CIV.P. 55(a). (Dkt. #10) On May 21, 2010, the Clerk of the Court entered default against defendant. (Dkt. #12). Notwithstanding defendants default, the FSIA requires that a default judgment against a foreign state be entered only after a plaintiff establishes his claim or right to relief by evidence that is satisfactory to the Court. 28 U.S.C. 1608(e). Thus, pursuant to 1608(e), this Court cannot enter default judgment in this case unless it finds that the plaintiffs have shown by evidence that is satisfactory to the Court that the Court has jurisdiction and that the defendant is liable. See, e.g., Holland v. Islamic Republic of Iran, 496 F. Supp. 2d 1, 12 (D.D.C. 2005) (Every case brought against a foreign state raises two distinct and crucial legal questions. First, the Court must look to whether it has jurisdiction to hear the claim. In the context of claims implicating the parameters of the FSIA, this jurisdictional determination is guided by an inquiry into whether the case falls within one of the statutory exceptions to the sovereign immunity of a foreign state. Second, the Court must consider the actual liability of the defendant foreign sovereign. (citations omitted)). At the same time, under 1608(e) the Court may accept as true the plaintiffs uncontroverted evidence. Wachsman v. Islamic Republic of Iran, 603 F. Supp. 2d 148, 155 (D.D.C. 2009) (internal quotations omitted) (citing Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97, 100 (D.D.C. 2000)). See also Botvin v. Islamic Republic of Iran, 604 F. Supp. 2d 22, 26 (D.D.C. 2009) (same); Gates v. Syrian Arab Republic, 580 F. Supp. 2d 53, 63 (D.D.C. 2008) (same); Alejandre v. Republic of Cuba, 996 F. Supp. 1239, 1243 (S.D. Fla. 1997) (same). The satisfactory to the court standard contained in 28 U.S.C. 1608(e) is identical to the standard for entry of default judgments against the U.S. government in Rule 55(e). Compania
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Interamericana Export-Import, S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948, 951 (1996). For the reasons set forth below, the Court finds that plaintiffs have clearly demonstrated both the Courts jurisdiction and the defendants liability for their injuries by evidence that is satisfactory to the Court. 1608(e).
SUMMARY A. Capture Reverend Kim moved to China in 1993 to work as a Christian missionary providing humanitarian and religious services to the families of North Korean defectors and refugees who had fled across the Sino-Korean border seeking asylum. North Korean official policy throughout the period that Reverend Kim was in China was to stop the flow of defectors and refugees to China. North Korea viewed the flow of defectors as a political embarrassment that undermined the communist regime. North Korean border guards were instructed to shoot to kill in order to prevent prospective escapees from getting across the border. In addition, North Korea activated squads of agents who crossed into Chinese border towns in order to capture and imprison North Koreans who had fled. North Korea is particularly harsh with Christians and South Korean sympathizers, apparently under the assumption that Christians and South Korean sympathizers organize to achieve political goals, including the overthrow of the North Korean regime. (Dkt. #38, p. 8; Dkt. #35, p. 15). In 1999, North Korean officials learned of Reverend Kims humanitarian activities in China and resolved to imprison him. (Dkt. #20, p. 27). They did so on January 16, 2000. (Dkt. #20, p. 29-31). As described below, Reverend Kim was imprisoned in North Korea where he was -3-
subjected to brutal torture by officers, employees, and agents of the DPRK. (Dkt. #22, 11-13; Dkt. #50). North Korea is an ultra-secretive and insular regime which spares no efforts to hide its oppressive and brutal tactics to the outside world. (Dkt. #19, 24). It is thus rare for a plaintiff in a case like this to produce a smoking gun, i.e., documentary proof of North Koreas direct involvement in an alleged crime. While the scope of the eyewitness evidence is unsurprisingly limited, it, together with the expert testimony provided by the plaintiffs, provides sufficient support for the Plaintiffs allegations and this Courts findings, as described below. B. Incarceration Reverend Kim was likely initially held in a ku-ryu-jang, a North Korean police detention and interrogation facility, and then transferred to a kwan-li-so, a political penal-labor colony. (Dkt. #29, 9, 20). The kwan-li-so house a large proportion of political prisoners and others deemed to be opponents of the North Korean regime. Political prisoners, typically along with their family members, are abducted by North Korea, denied any sort of judicial process, and often serve lifetime sentences. The kwan-li-so play an important role in North Koreas policy of deterring and silencing dissent and of ensuring swift retribution against those who are suspected of wrongdoing or wrong-thinking. (Dkt. #29, 9-10). Reverend Kim was likely selected for the kwan-li-so because he was widely known as an aid worker helping North Korean defectors, (Dkt. #19, 23), and because he was a Christian minister and missionary. (Dkt. #38, p. 8; Dkt. #35, p. 15). Indeed, North Korean officials commented about Reverend Kim prior to his capture, stating that one had to eliminate a force like [Reverend Kim] who prayed in a negative way in churches. (Dkt. #20, p. 27). Reverend Kim, just as the other prisoners of the kwan-li-so, was denied any sort of due process and was incarcerated for the remainder of his life. -4-
Prisoners of the kwan-li-so face horrendous conditions and are treated without regard to the most fundamental of human rights. One of the most salient features of day-to-day prisonlabor camp life is the combination of below-subsistence food rations and tedious and backbreaking forced physical labor, exceeding the physical capabilities of the prisoners. The prisoners generally labor for twelve or more (often as many as sixteen) consecutive hours per day, seven days a week. Their food provisions are woefully inadequate and, accordingly, prisoners will often eat what they can find, commonly including plants, grasses, bark, rats, and snakes. (Dkt. #29, 14; Dkt. #50, 11). The combination of below-subsistence-level food rations and outrageous working conditions leads to a large number of prisoner deaths during incarceration. (Dkt. #29, 14). Many inmates cannot withstand the harsh conditions of their imprisonment and a significant number die within a year of their arrival to the kwan-li-so. A large number of those who survive develop permanent disabilitiessigns of premature aging, hunchbacks, and other physical deformities due to the brutal work conditions and cell sizes. Many prisoners become disabled from work accidents or require amputations due to hypothermia resulting from exposure to harsh weather conditions. (Dkt. #29, 16). C. Extrajudicial Killing Reverend Kim is reported to have died in his North Korean prison camp in February 2001. (Dkt. #19, 22-23; Dkt. #29, 20). Prisoners routinely die within North Koreas prisons from disease, starvation, or exposure. (Dkt. #37, p. 3; see also Dkt. #38, pp. 2-3; Dkt. #35). Conditions in the prisons are so bad, prison guards must dispose of the dead bodies of prisoners nearly every day. (Dkt. #35, p. 11). Indeed, one of the common features of North Korean prison camps is their mass graves. (Dkt. #38, page 4). -5-
Reverend Kim died in prison, very likely at the hands of his prison guards. (Dkt. #50, 12-13). There is no evidence that Reverend Kim was ill prior to his capture by North Korea. And there is a great deal of evidence suggesting that his death, like the deaths of so many others in North Koreas prisons, was caused by the prison guards as a direct result of his detention. While no first-hand eye-witness testimony to that effect was produced to this Court, substantial second-hand evidence was. In particular, Mr. Do Hee-Youn, who is an activist in Seoul, South Korea, and maintains a network of informants in order to get information out of North Korea, declared that he learned through his informants that Reverend Kim died in prison as a result of torture and malnutrition. (Dkt. #22, 13). Plaintiffs expert Ernest Downs similarly opined based on his review of the facts and extensive knowledge of North Koreas prisons. (Dkt. #50, 13). The Court finds that testimony to be highly credible and that death as a result of torture and malnutrition is an extrajudicial killing for the purposes of FSIA. While this Court is able to conclude that Reverend Kim was killed by his prison guards in or about February 2001, the plaintiffs would be able to recover for extrajudicial killing even if the Court could not so conclude. D.C. CODE 19-505 provides (in pertinent part, with emphasis added): (4) In the absence of prima facie evidence of death under paragraph (2) or (3) of this subsection, the fact of death may be established by clear and convincing evidence, including circumstantial evidence. (5) If an individual is presumed to be dead under section 14-701, the individuals death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier. D.C. CODE 14-701 provides (in full, with emphasis added): If a person leaves his domicile without a known intention of changing it, and does not return or is not heard from for seven years from the time of his so leaving, he shall be presumed to be dead in any case where his death is in question, unless proof is made that he was alive within that time. -6-
As explained further below, those provisions, which codify the common law, create a presumption of death after seven years. Given that seven years have passed since Reverend Kim was last seen or heard from, he is presumed dead as a matter of law. And given that he was not known to be unhealthy at the time he disappeared, and that the fatality rate due to torture and starvation in North Korean prisons is exceptionally high, the statutes compel the presumption that Reverend Kim died in a manner that amounts to an extrajudicial killing for the purposes of the FSIA. Jones v. Metropolitan Life Ins. Co., 116 F.2d 555, 555 (D.C. Cir. 1940) (abrogated by D.C. CODE 19-505(5) with regard to presumed date of death); see also Hamilton v. Rathbone, 9 App. D.C. 48, 1896 WL 14763, *4 (D.C. Cir. 1896) (applying the presumption and noting that after seven years, the burden of proof falls on a party seeking to establish that the disappeared is still alive). D. Torture While all prisoners in the kwan-li-so are treated severely, Reverend Kimdue to the (imagined) threat that he once posed on North Korea and all the planning, effort and other resources that had gone into his abductionwas likely singled out for additional brutality. (Dkt. #29, 20). His death was likely caused by that extreme brutality and starvation. (Dkt. #29, 20). North Korean prisoners are routinely subject to strip searches, verbal abuse and threats, extraordinarily severe beatings while in stress positions, near starvation, forced hard labor wellbeyond physical capacity, medical experimentation (including with biological and chemical weapons), and a pervasive lack of food and medicine. This statement by a woman in a North Korean temporary detention facility (while awaiting sentencing) is fairly typical of the prisoners accounts that manage to leak out of North Korea: -7-
Except for the time when we ate, washed ourselves or slept, we were ordered to sit up straight without moving. If we moved, we were punished. They would make us sit down and stand up repeatedly until we collapsed, or forced us to hang onto cell bars or bang our heads onto the cell bars. Sometimes they punished everyone if one of us couldnt keep up. Guards beat people all the timethey used sticks or belts. They also slapped or kicked inmates for disobedience. (Dkt. #35, pages 10-11). Another witness provides a similar description of the prison guards efforts to maintain order in the prisons: I saw a woman forced to stand up and sit down about 100 times. She fell, with white foam in her mouth. (Dkt. #35, page 11). Food in North Korean prisons is not just lacking in quantity, it lacks nutrition. A fistful of powdered corn stalk is a typical meal for a prisoner. The corn stalk often causes stomach aches and diarrhea. Indeed, many people died after eating the corn stalk powder and suffered from diarrhea for about a week. (Dkt. #35, page 11). Thus, even the little nutrition that the prisoners get forms a significant part of their tremendous suffering. Moreover, the State Department reported that in at least one prison, clothing is issued just once every three years. And medical care, even where a prisoner contracts a serious illness, is often denied entirely. (Dkt. #37, page 4). According to the State Department, political prisoners, such as those in the kwan-li-so, are routinely subject to outright physical torture. In particular, prisoners are subject to severe beatings, electric shock, prolonged periods of exposure, humiliations such as public nakedness, and confinement to small punishment cells, in which prisoners were unable to stand upright or lie down, where they could be held for several weeks. (Dkt. #34, page 4). That torture routinely results in death. Indeed, [t]he U.S. Committee for Human Rights in North Korea claimed that approximately 400,000 persons died in prison since 1972. (Dkt. #34, page 4).
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One former inmate (who successfully escaped) testified before the United States Senate that inmates are typically forced to work sixteen to seventeen hours per day. She witnessed severe beatings and a particularly ruthless form of torture utilized by North Korean prison guards: they would force water into their victims stomach using a rubber hose and then expel that water by jumping on a board placed across the victims abdomen. The former inmate also testified that inmates are used to test chemical and biological weapons and to conduct other experiments. (Dkt. #37, page 4). North Korean prison guards also have the common practice of hanging inmates from the ceiling by their wrists. One inmate of a kwan-li-so has testified that he was tortured with hot coals while being hung from the ceiling after members of his family tried to escape. (Dkt. #38, page 4). Severe punishment in other forms, including old-fashioned brutal physical beatings, are very common (likely a daily occurrence) in the kwan-li-so. (Dkt. #29, 15-16). Another customary punishment is the long-term solitary confinement in punishment cells which do not have enough space for a person to completely lie down or stand up, causing inmates to experience a loss of circulation and atrophy of legs, and often leading to death within several weeks. (Dkt. #29, 15). And the guards use the little food allocated to prisoners as another means of exacting punishmentthey will sometimes punish prisoners who are consistently in a state of near-starvation by reducing their food rations. (Dkt. #29, 16). The physical torture of prisoners does not stop there. Most prisoners are not allowed to marry or have children (or to have intimate relations with each other), except for a very few privileged couples. But they are not isolated from prisoners of the opposite sex either. That, coupled with the fact that their prison terms are indefinite, amounts to a rather cruel form of abuse. The prison guards exacerbate the pain caused by denying the prisoners the opportunity to -9-
have physical relations by raping the female prisoners. It is not uncommon for female prisoners to become pregnant as a result of that rape. The result: There have been especially horrific reports of forced abortions and baby killings at the kwan-li-so. (Dkt. #29, 17). The State Department describes the kwan-li-so as harsh, indicates that many sentenced to the kwan-li-so are simply not expected to survive, and that the prisoners in the kwan-li-so consistently reported violence and torture. (Dkt. #38, page 4). Not surprisingly, no specific evidence pertaining to Reverend Kim is available. This is because North Korea is hiding that evidence from the world. North Korea does not allow inspection of prisons or detention camps by human rights monitors. (Dkt. #38, page 4). North Korea has not appeared in this litigation. If it had, the Plaintiffs would be able to serve North Korea with interrogatories, requests for admission, and would be able to perform depositions. With that discovery and the good-faith participation of the North Korean government, this Court believes, that the Plaintiffs would have been able to clearly demonstrate that Reverend Kim suffered from some or all of the forms of torture described above. North Koreas decision to hide information from the world and to deprive the Plaintiffs the right to perform discovery cannot free it from liability. The Court finds persuasive the declaration of Professor Hawk, who testified that Reverend Kim was likely singled out for additional brutality which was (credibly, in Professor Hawks eyes) reported to have caused his death, (Dkt. #29, 20), and Mr. Do Hee-Youn, who informed the Court that he has learned through his informants that Reverend Kim died in prison as a result of torture and malnutrition. (Dkt. #22, 13). A torture that can kill is indeed torture for the purposes of the FSIA. The Court additionally finds persuasive the declaration of Ernest Downs, who explicitly opined, based upon his review of the facts and his extensive -10-
knowledge of North Korean prisons, that (1) Reverend Kim has been subject to exceptionally painful, brutal, and outrageous treatment while in prison, (2) he was likely subject to severe beatings while in stress positions (such as while suspended from the ceiling), near-starvation, and forced physical exertion to the point of absolute physical exhaustion, (3) Reverend Kim died in prison, and (4) Reverend Kims death resulted from torture and malnutrition deliberately caused by [Reverend Kims] North Korean captors. (Dkt. #50, 8, 9, 13). Mr. Downs noted in particular that he is familiar with approximately the testimony of 1000 former North Korean inmates and declared under oath that he is not aware of a single case in which a prisoner escaped torture. (Dkt. #50, 10). Downs attached an Exhibit to his declaration outlining some of that testimony, which is briefly described below. It clearly illustrates both how common torture is in North Korean prisons and how cruel it is. Beatings that cause permanent injury or death appear to be daily occurrences. Perhaps more striking, former prisoners explain that as painful as the beatings are, other tactics employed by prison guardssuch as demanding that prisoners kneel motionless for many hours at a time or deny them the ability to stand or sit for often weeks at a timeare far more painful. (Dkt. #50-1). This Court is not prepared to find, without evidence, that Reverend Kim was the one prisoner of a thousand (or more) to escape torture. Rather, the Court finds, in accord with the uncontroverted evidence produced by the plaintiffs, that Reverend Kim was tortured. E. Liability 28 U.S.C. 1605A requires that a plaintiff demonstrate that (1) they seek monetary damages; (2) for torture or extrajudicial killing; (3) at the hands of a foreign state through its officials, employees, and/or agents acting within the scope of that position, employment, or agency; (4) where the foreign state is a designated state sponsor of terrorism at the time of the -11-
underlying events (or shortly thereafter) and within the six months prior to the initiation of the lawsuit; and (5) the plaintiffs are nationals of the United States. Points one, three, and four are plainly demonstrated. Given that the court has found that Reverend Kim died while in the custody of North Korea as a direct result of the actions of North Korean prison guards, the plaintiffs have demonstrated that Reverend Kim was a victim of extrajudicial killing. Because this Court finds that Reverend Kims death was caused in large part by the torture to which he was subjected, it easily finds that Reverend Kim was tortured. (Death is not a condition precedent to finding that the victim has been tortured. But it is certainly sufficient to find that the victim was tortured.) Moreover, the specific acts to which Reverend Kim was undoubtedly subject to are horrific and outrageous and clearly satisfy the strict definition of torture as set forth in the FSIA, as interpreted by the District of Columbia Circuit Court of Appeals. See, e.g., Price v. Socialist Peoples Libyan Arab Jamahiriya, 294 F.3d 82 (D.C. Cir. 2002). Finally, one of the plaintiffs was a United States citizen at the time of Reverend Kims abduction and was certainly a U.S. national at all relevant times. The other plaintiff, Han Kim, was not a United States citizen until 2003. Nevertheless, because he was a Permanent Resident since 1992, has owed his permanent allegiance to the United States since his arrival in 1992, and applied for citizenship in 1999 (prior to Reverend Kims abduction), the Court finds that Plaintiff Han Kim was a U.S. national for the purposes of this litigation prior to Reverend Kims abduction. North Korea, for its actions at issue in this case, is within the exception to sovereign immunity provided by 28 U.S.C. 1605A and is therefore subject to this Courts jurisdiction. The Court finds that it is liable for the (1) torture and (2) extrajudicial killing of Reverend Kim, for the (3) loss of consortium and solatium that the plaintiffs suffered and continue to suffer as a -12-
result of the disappearance of their father and brother and for the lack of closure to this episode (they have never seen Reverend Kims body or received official word from North Korea that Reverend Kim is dead), and for (4) the emotional distress that they have suffered and continue to suffer as a result of the disappearance of Reverend Kim and for the lack of closure. Additionally, given the cruelty shown by North Korea in the events that give rise to this case and in light of the fact that other courts in similar cases have so held, the Court finds that the plaintiffs are entitled to punitive damages. For the reasons described below, the Court awards Yong damages of $10,000,000 and Hun damages of $15,000,000. Additionally, the Court awards the plaintiffs collectively punitive damages of $300,000,000.
FINDINGS OF FACT A. Relevant Background Defendant DPRK is a one-party totalitarian state modeled as a Stalinist dictatorship. At the time this action was filed and the relevant events took place, North Koreas Supreme Leader, Kim Jong-Il, ruled over his citizens with an iron fist, limited all political and economic freedoms, and tolerated no dissent. The new North Korean leader, Kim Jong-Un, follows in his fathers (and predecessors) footsteps. Every aspect of social, political, and economic life is tightly controlled by the state. (Dkt. #20, pp. 3-4) Human rights organizations have identified North Korea as one of the most repressive regimes in the world, with a brutal record of human rights violations. (Dkt. #29, 21; Dkt. #35 (see also Dkts. #37-38 (reports by the State Department))). Those who have managed to escape from North Korea have reported that torture, starvation, rape, medical experimentation, forced labor, and murder are utilized by the regime and its security services to maintain complete control over the population. The death penalty is -13-
regularly imposed on those accused (and the families of those accused) of even minor political infractions against the state. (Dkt. #19, 10; Dkt. #50, 8). Defendant DPRK has for decades frequently abducted, imprisoned, tortured and murdered foreign citizens. In 2002, Supreme Leader Kim Jong-Il himself, in an unprecedented acknowledgment of his regimes brutality, publicly admitted that the DPRKs security services had engaged in the kidnapping of Japanese citizens between 1977 and 1983. In October 2005, North Korea acknowledged for the first time having kidnapped South Korean citizens in previous decades, claiming that several abductees, as well as several POWs from the Korean War, were still alive in North Korea. (Dkt. #30, 20). In the mid 1990s in particular, the DPRK experienced especially harsh economic conditions and widespread food shortages that compelled many of its citizens to attempt to defect to China, despite the grave threat of outrageous and brutal punishment for those who are caught. (Dkt. #34, 35 and 36). In order to stop the flow of defectors, the DPRK established a network of local agents in China under its security services that were deputized to abduct defectors and their conspirators. (Dkt. #19, 18). Pursuant to official DPRK policy, in the immediate period leading up to Reverend Kims abduction the DPRKs security services were especially active in hunting down and abducting refugees and defectors who had crossed into China, as well as other perceived enemies of the regime. The overall goal in effectuating this policy was to bring these abductees to North Korea where they were imprisoned, tortured, and frequently killed. (Dkt. #20, pp. 3-4). B. The Abduction and Torture of Reverend Kim Dong Shik Reverend Kim was born in South Korea in 1947. He graduated Koshin University in Pusan and was ordained as a Presbyterian minister. He was the father of two children from his -14-
first marriage and adopted five additional children with his second wife whom he married after his first wife was tragically killed in an automobile accident. Reverend Kim was employed for many years as a minister in South Korea on behalf of the Chicago Evangelical Holiness Church, a Korean-American church located in Illinois. He held American Permanent Resident status and frequently visited his family and employers living in the United States. In 1993, Reverend Kim moved to China to work as a missionary providing humanitarian and religious services to the families of North Korean defectors and refugees who had fled across the Sino-Korean border seeking asylum. He first worked with the Special Olympics in China and worked to raise money for medical supplies for needy children, and then learned of the plight of North Korean refugees and at once committed himself to aid this disadvantaged and downtrodden community. (Dkt. #17, 19, 21). At the time, tens of thousands of North Koreans were living in China after fleeing the dismal humanitarian conditions and political oppression in their homeland. There had been widespread shortages of basic food supplies in North Korea for decades and the oppressive policies of the DPRK continued. Humanitarian conditions and health care in neighboring China are vastly superior. Accordingly, many North Korean citizens risked imprisonment, torture, and even death to escape to China in order to feed themselves and care for their families. (Dkt. #34, 35 and 36). In the Chinese city of Yanji, Reverend Kim set up numerous refugee shelters and a school for North Korean children and handicapped persons in China. He named the school The School of Love. (Dkt. #19, 20). He also set up a church called the House of Love. (Dkt. #20, 26).
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During this period, the DPRK and its security agencies took active steps to stop the flow of defectors and refugees to China, which it viewed as a political embarrassment that undermined the ruling Communist regime. The DPRK increased its military patrols along the Chinese border, its security services gathered information about those seeking to defect, and it carried out pre-emptive arrests and imprisonments. DPRK border guards had a policy of shooting to kill anyone attempting to escape North Korea for China. In addition, the DPRK security services organized squads of agents who crossed into Chinese border towns in order to hunt down North Koreans who had fled. (Dkt. #20, p. 4). These agents frequently disguised themselves as refugees and infiltrated the shelters and hide-outs of those who successfully reached China. Once located, the agents abducted the refugees and defectors and brought them back to North Korea where they were imprisoned in harsh labor camps, tortured, underwent reeducation programs, and in some instances were executed. The most severe sentences and treatment were inflicted by North Korea on Christian activists or those who attempted to make their way to South Korea (the latter being viewed as the arch-enemy of the DPRK). (Dkt. #19, 12-13). As elaborated upon below, DPRK security forces learned of Reverend Kims activities on behalf of the North Korean defectors and refugees and decided to abduct him and bring him to North Korea in order to thwart his work on behalf of those who had escaped and to deter others from engaging in similar activities. (Dkt. #20, p. 27). In 1999, a group of DPRK intelligence agents was dispatched to actively carry out abductions of North Korean defectors and their South Korean sympathizers in China. During this time a senior DPRK intelligence official instructed this group to target Reverend Kim for abduction. The group was promised a large monetary reward for succeeding in this operation, -16-
and over the next several months the group met on several occasions to plan the abduction. In early 2000, the group learned through an informant planted at the House of Love that Reverend Kim was scheduled to arrive in Kil Lim Sung Yun Gil Shi in China on January 15, 2000 and on the following day deliver a sermon at the Yun Kil Shi Christian Church. The group decided that this was their opportunity to act. (Dkt. #20, pp. 27-30). The initial plan of the DPRK agents was to abduct Reverend Kim as he exited the church after the sermon, with one group of agents responsible for blocking the road leading out from the church and another group of agents charged with grabbing Reverend Kim and ferrying him away into a waiting taxi hired by the agents for the operation. (Dkt. #20, pp. 29-31). However, after the sermon, roughly 200 church members surrounded Reverend Kim as he and several church members left by car for lunch at a local restaurant. The group of DPRK agents followed Reverend Kim to the restaurant and waited outside. When Reverend Kim exited the restaurant, he entered the front passenger seat of the taxi hired by the agents, which had positioned itself right outside of the restaurant. Before the car drove off, two of the DPRK agents entered into the taxi through its back seats. A second group of DPRK agents waited in a second car parked at a nearby gas station. (Dkt. #20, pp. 29-31). Reverend Kim was transferred to the second car of the DPRK agents, and, because of a delay at the North Korea border crossing, was taken to the home of one of the agents. After a well-placed phone call by one of the DPRK agents to a cooperative security agent of the Chinese Border Patrol, the crossing into North Korea was temporarily unguarded. The DPRK agents quickly arrived at the Yalu River crossing. Two DPRK agents took a handcuffed Reverend Kim across the Yalu River and placed him into the custody of a high-ranking DPRK intelligence official. (Dkt. #20, pp. 29-30). -17-
Reverend Kim was imprisoned in a labor camp in North Korea for political detainees where he was subjected to brutal torture by officers, employees and agents of the DPRK. (Dkt. #22, 11-13; Dkt. #50, 7-13). In 2005, several former DPRK intelligence agents were arrested by South Korean law enforcement officials and prosecuted for their role in abducting refugees and defectors who had escaped to China. The plaintiffs learned much of the information that forms the basis of this litigationincluding the details of Reverend Kims arrest and subsequent imprisonmentfrom these agents. Specifically, the plaintiffs learned that Reverend Kim had been forcibly taken to North Korea and tortured by officers, employees and agents of the DPRK, acting within their office, employment and agency. (Dkt. #20). One of these DPRK intelligence agents, Liu Yong Hua (Hua), was convicted on April 21, 2005 by a South Korean Court in Seoul,2 for his involvement in planning and executing various abductions of civilians from China to North Korea pursuant to the instructions of a senior DPRK intelligence official. (Dkt. #20). One of the crimes for which Hua was convicted was his direct involvement in planning and carrying out the abduction of Reverend Kim. Hua was sentenced to ten years imprisonment and continues to serve this sentence today. A certified version of the court decision of the Hua trial and its English translation (the South Korean Court Decision) have been entered into evidence (respectively, Dkt. #26 and Dkt. #20). The DPRK is an ultra-secretive and insular regime which spares no efforts to hide its oppressive and brutal tactics to the outside world. (Dkt. #19, 24). It is thus rare for a plaintiff in a case like this to produce a smoking gun, i.e., documentary proof of the DPRKs direct involvement in an alleged crime. However, the South Korean Court Decision is such a smoking
The Seoul Joong Ang Ji Bang Court, Criminal Part 23.
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gun. The South Korean Court Decision represents the result of exhaustive investigation into the activities of DPRK intelligence agents in China by a South Korean court, and its determinations directly tie the DPRK and its activities to the abduction of Reverend Kim. The plaintiffs have also submitted expert declarations from Professor David Hawk (Professor Hawk), Ernest C. (Chuck) Downs (Downs), and Yoshikuni Yamamoto (Yamamoto) regarding the oppressive nature of the DPRK and its prison camps in general and the Reverend Kim abduction in particular. Mr. Downs, Mr. Yamamoto, and Professor Hawk offered documentary evidence, including government reports, publications, and other information, in addition to their affidavit testimony. Plaintiffs also have submitted declarations from Reverend Kims daughter, Dani Butler, and several relatives, colleagues or friends of Reverend Kim: Do Hee-Youn, Cho Bong II and Be Jae Hyun. Although some of plaintiffs evidence is cumulative, given the uniqueness of, and the level of detail and insight provided by, the South Korean Court Decision, the Court will summarize this document at length. It will then summarize and further describe some of the other evidence offered by the plaintiffs. C. South Korean Court Decision In July 1998 Hua came under the influence of Ji Young Soo (hereinafter Director Ji), who was a senior member of the Foreign Affairs Department of the DPRK Security Agency. (Dkt. #20, p. 6). His introduction to Director Ji was made by one of his acquaintances, Kim Song San (Song San), a DPRK intelligence agent operating in China. Hua complained to Song San that his efforts to smuggle mushrooms out of North Korea had recently been stymied. Song San indicated to Hua that Director Ji could facilitate his smuggling efforts. Hua and Director Ji met to -19-
discuss their mutual objectives and agreed that Hua would be permitted to continue smuggling across the North Korean boarder in exchange for his provision of assistance to Director Ji. Specifically, Director Ji requested that Hua actively assist Song San and Park Kun Chun (Kun Chun), another employee of the DPRK security apparatus, to abduct North Korean defectors hiding in China and bring them back to North Korea. (Id.) Director Ji noted that Song San and Kun Chun were not familiar with China, and would be relying on Hua to help get them oriented and blend in to the local population. Director Ji further instructed Hua that he would need to be actively involved in executing jobs (a euphemistic reference to the armed abduction of targeted civilians) in China, in recruiting others who would be loyal assistants in the execution of the jobs, and to keep their arrangement secret from his family or anyone else who was not directly involved in the ongoing operation. (Id.) Hua purchased an apartment with funds provided by Director Ji, which he used as a base of operations for himself, Song San, and Kun Chun to move freely throughout China. During the next two years or so, Hua and the people he helped recruit to assist in fulfilling the instructions of Director Ji, would, under the direction, direct support, and infrastructure provided by Director Ji, carry out nine successful abductions and two failed abductions of individuals located in China. To stay in contact with Director Ji, Hua provided Director Ji with his cell phone number and address. Hua also received Director Jis phone number and stored it in his phone. Immediately following their initial meeting, Hua received the assistance of Director Ji as the former endeavored to resume his mushroom smuggling operations. He successfully completed twenty smuggling trips, enabling him to sell his mushrooms in China for a profit. (Id. at p. 7).
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In December of 1998, Song San and Kun Chun visited Hua at his residence and informed him that they had been ordered by Director Ji to perform some jobs. As they were unfamiliar with China, they asked Hua for his direct involvement and assistance. They also said that the jobs would require additional manpower and Hua recruited for that purpose three childhood friends who were living in China. Hua informed these friends that they were to capture North Koreans who had escaped to China and return them across the border. When one of Huas friends responded hesitantly, Hua treated the friends to food and alcohol and shortly thereafter obtained their consent to join the operation. (Id. at pp. 7-8). Song San thanked Huas three friends for their assistance and impressed upon them the need for secrecy, instructing them not to let their families know of their activities. Song San also provided each member of the group with code words to ensure secrecy. (Id. at p. 8). The group was primed for action, and over the course of the next several months would carry out the following eleven operations at the direction and expense of Director Ji: 1. Abduction #1: In the middle of January 1999, Song San and another DPRK operative Han Tae Kun (Tae Kun) visited Hua at his home and conveyed instructions by Director Ji to abduct Liu Yung Bum (Bum), who was described as having cooperated with South Korean security agents and planning anti-DPRK acts. They were to return him to North Korea. (Id. at pp. 8-9). Bums abduction was planned jointly by DPRK agents Song San, Tae Kun, Hua, and his local associates. The plan called for Song San and Tae Kun to dress as Chinese security officers and for Hua to shadow Bum. The group refined their plan by coordinating to block-in Bum as he cut through an alley, with Tae Kun closing in from one direction and Hua and Song San from another. The group proceeded as planned; when Bum was surrounded Song San struck him so -21-
that he could not resist and then restrained him with handcuffs. The group then placed Bum in a vehicle secured by one of Huas associates. Tae Kun and Song San took Bum to a shallow spot in the Yalu River that made it easy to cross into North Korea. Song San and Tae Kun dragged Bum across the river to North Korea and handed him over to a waiting Director Ji. (Id. at pp. 910). 2. Abduction #2 In early February 1999, Tae Kun conveyed new instructions to Hua and Song San from Director Ji. A woman named Park Poon Ok (Ok), who was thought to be conducting antiNorth Korean activities somewhere near Ahn Do Hyun, China, was to be abducted and returned to North Korea. (Id. at pp. 10-11). Once Oks whereabouts were determined, Tae Kun again dressed as a Chinese security officer and the group set out to track her down. They arrived at her home and determined that she was home alone. Hua, Tae Kun and Song San entered Oks residence by breaking through a glass window and Tae Kun seized and restrained her with handcuffs. The group took Ok by car to the Yalu River crossing and transferred her into the waiting hands of Director Ji. (Id. at pp. 1112). After this abduction, the group gathered at Huas apartment, where they received four antique gifts from Director Ji. The gifts were sold at the Daewoo hotel antique shop in Yun Gil for $1500; Hua kept $500, Song San and Park Kun Chun each took $300, and the other four associates each pocketed $100. (Id. at p. 12). 3. Abduction #3 In early February 1999, Director Ji sent word that the group was to abduct Suk Doo Ok (Suk Doo), who was allegedly conducting anti-North Korean activities. Director Ji had already -22-
arranged for Suk Doo to appear at the Kil Lim Sung Yong Jung Sam Hab Jin storage facility that evening, and Hua was instructed to assemble the group to abduct Suk Doo from that location. Hua followed orders, made some basic plans for the abduction, and the group drove to the location. Tae Kun and Song San waited in ambush for Suk Doo while the remainder of the group stood by in two cars. Once Suk Doo appeared, Song San and Tae Kun struck him, restrained him with handcuffs and put him into one of the vehicles. The group drove Suk Doo to the Yalu River rendezvous point and handed him over to Director Ji. (Id. at pp. 12-13). Suk Doo would subsequently be taken to a North Korean prison where he was ruthlessly tortured. During his torture, he revealed information that would assist North Korean officials perform further abductions. (Id. at pp. 13-14). 4. Failed Abduction #1 Shortly thereafter, Song San advised Hua of new orders from Director Ji regarding the abduction of Paek Sung Kook (Kook), a South Korean security official who was allegedly engaged in anti-North Korean activities in China. The torture by the DPRK of the recently captured Suk Doo had revealed the address at which Kook and his girlfriend resided. The group quickly planned the abduction of Kook and his girlfriend, rented a van and drove to a coffee shop located near Kooks residence. There the group met with two other North Korean Security agents, one of whom ascertained that the entrance to Kooks residence was made of iron and would be difficult to breach. Tae Kun used his cell phone to call Director Ji and inform him of this unforeseen impediment. Director Ji informed the group that he learned from Suk Doo (during the latters torture) that a key to Kooks is available in Suk Doos former residence. Tae Kun retrieved the key as instructed, but when they approached Kooks residence there much pedestrian traffic in the vicinity so the men were forced to wait. (Id. at pp. 13-14). -23-
Later that day, Kook and his girlfriend emerged from the residence and hailed a taxi, which the group followed. Once again, Tae Kun called Director Ji who indicated his belief that, according to information he received from Suk Doo, Kook was on his way to meet a fellow Korean at the Yun Gil airport. Director Ji instructed them to follow Kook to the airport and then when the opportunity arose, to abduct all three individualsKook, his girlfriend, and the individual arriving from South Korea. However, when Kook arrived at the airport, he boarded a plane and left China, and the group was forced to return to Huas apartment empty-handed. (Id. at p. 14). This incident clearly illustrates the direct oversight (and the real-time directives and coordination) provided by senior officials of the DPRK intelligence services to this group of agents operating in China. 5. Failed Abduction #2 In early February 1999, Hua was contacted by Song San, who instructed the group to meet at the Shin Sung Beef Rib Restaurant. Tae Kun arrived dressed in a Chinese security officials uniform along with four other North Korean agents. Song San informed the group that two officers of the North Korean Border Patrol had escaped to China. The DPRKs security agency had failed to capture these officers. The abduction team was told where the officers were likely hiding. When it arrived at the address, members of the team cut the phone lines and then forcibly entered the premises, striking one occupant. The two officers were nowhere to be found. During the episode one of the residents collapsed, so the group decided to retreat to Huas apartment. (Id. at pp. 15-16).
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6. Abduction #4 In mid-February 1999, Hua received a phone call from Song San who was in North Korea and desired to enter into China. Song San instructed Hua to coordinate the formers entry with a Chinese border guard (with whom Hua had developed a friendly relationship) so that Song San could safely cross back over into China at the Yalu River crossing. Hua did as he was instructed and picked up Song San from the crossing. Song San told Hua of an urgent matter which needed immediate attentiona North Korean solider had escaped into China with a pistol and Director Ji had ordered them to abduct the soldier as soon as possible. The group was assembled and a plan for the capture was quickly devised. The group headed out to the location where the soldier was purportedly hiding; they found him immediately. The group subdued the soldier with handcuffs and drove him to the Yalu River crossing. Hua again contacted his friend in the Chinese border patrol and arranged for another undetected river crossing. Song San and another DPRK agent took the soldier across the river and turned him over to Director Ji. (Id. at pp. 16-18). 7. Abduction #5 In late February 1999, at the direction of Song San, the group convened at Huas residence, where Song San conveyed the orders of Director Ji to kidnap a woman named Ryang Cho Ok (Ryang) and four of her family members. These individuals had escaped from North Korea into an area of China where many Chinese-Koreans resided. Ryang was a JapaneseKorean who had married a North Korean and had lived in North Korea. When her husband died in 1998, Ryang took her married daughter, grand-daughter, son and daughter-in-law and fled to China, hoping eventually to return to Japan. According to information that Song San learned from Director Ji, senior DPRK officials feared embarrassment if Ryang were to successfully -25-
enter Japan. The group was thus instructed to abduct these individuals and return them to North Korea. The group proceeded to the address at which it was assumed Ryang and her family were staying. They successfully entered the home and restrained Ryang, her daughter, son and daughter-in-law. They dragged these individuals into waiting cars, drove them to the Yalu River crossing, and transferred them to the authority of Director Ji. (Id. at pp. 18-19). 8. Abduction #6 In early March of 1999, Hua received orders from Director Ji (again through Song San) to kidnap Hwang Yung Chan (Hwang). Hwang was a Chinese official and his capture was stated to be of great importance to the DPRK. The following day, the group arrived at Hwangs residence and waited for him to return home. Once he was spotted, Tae Kun pretended to be drunk and bumped into Hwang, and then quickly fired three shots of an air gun at Hwang to subdue him. Hwang was restrained, loaded into a waiting vehicle, transported to the Yalu River crossing, and turned over to Director Ji. (Id. at pp. 19-20). 9. Abduction #7 In early March of 1999, Director Ji warned Hua that his apartment was no longer safe as a base of operations, so Hua quickly switched apartments. Director Ji then sent instructions for the group to abduct Lim Ihn Sook (Sook) and her family, and provided the group documents listing their names, addresses and photographs. After following several false leads, Hua was able to determine the whereabouts of Sook and her family through a Chinese official whom he had befriended. The group headed out to the address provided, broke into the residence and subdued Sook, her husband, two daughters, oldest son and grandson (who was eight years old). The group forced Sook and her family members into a waiting vehicle and drove them to the Yalu River
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crossing, where all six individuals were delivered into the waiting hands of Director Ji. (Id. at pp. 20-22). 10. Abduction #8 In June of 1999, Director Ji ordered the group to abduct Kim Chang Rok (Rok), who allegedly had stolen food from North Korean facilities. The group had an acquaintance of Rok arrange a meeting with him. At the arranged meeting time, the group drove to the meeting point and pulled up to Rok where one agent grabbed Rok by the hair and struck him in the face several times. The group forced Rok into the car and transported him to the Yalu River crossing, where he was transferred to the custody of Director Ji. (Id. at pp. 23-24). 11. Abduction #9 (The Abduction of Reverend Kim) In August of 1999, Hua was instructed through intermediary agents by Director Ji that the efforts of Reverend Kim, who was providing support to North Korean defectors through a church at Yun Gil called the House of Love, needed to be thwarted. Director Ji incentivized the group by stating that it would receive a handsome monetary reward if the operation to abduct Reverend Kim was successful. Hua gathered the group together, and a plan to carry out the abduction was devised. (Id. at p. 25). The abduction of Reverend Kim was organized in a more thoughtful manner than prior abductions by the group, which were had been handled in a relatively haphazard and ad hoc manner. The group met no less than five times over a span of five monthsAugust 1999 through January 2000to discuss various plans (and back-up contingencies) for the abduction of Reverend Kim. (Id. at pp. 25-28). The group learned, through an informant planted at the House of Love, that Reverend Kim was scheduled to arrive in Kil Lim Sung Yun Gil Shi in China on January 15, 2000 and that -27-
on the following day he was to deliver a sermon at the Yun Kil Shi Christian Church. The group devised a plan whereby Reverend Kim would be seized as he exited the church after giving his sermon by three of the agents, while other agents blocked the road back towards the church. Reverend Kim then would be ferried into a waiting hired taxi to be driven by a Chinese woman who did not speak Korean, so that the agents could not be easily traced. (Id. at pp. 25-27). On January 16, 2000, the group assembled as planned outside of the church. However, after the sermon roughly 200 church members surrounded Reverend Kim as he and several church members left by car for lunch a local restaurant. The group followed Reverend Kim to the restaurant and waited outside. The hired female taxi driver and agents in another car waited outside of the restaurant, and Hau and a few of his associates stood poised near the entrance and at other points around the building. At roughly 2:00 PM Reverend Kim exited the restaurant and parted ways from the people with whom he had been dining. He entered the front passenger seat of the taxi hired by the agents, which has positioned itself right in front of the restaurant. Before the car accelerated, Song San and another group member entered the taxi through the left and right rear doors, respectively. The taxi driver then took off. Hua and other agents waited with the second car at a designated gas station. Hua saw Reverend Kims taxi pull up to the gas station and be transferred by Song San and another agent to the second car. The taxi was then sent off. (Id. at pp. 28-29). In the second vehicle, Hua sat in the front passenger seat. In the back, Reverend Kim was placed in the middle, with Song San was on his left side and another North Korean agent on his right. The agents were informed that the Yalu River crossing was not open at that time, so they took Reverend Kim back to Huas home to wait while calls were made to friendly Chinese Border Patrol agents. When they were told to proceed, the DPRK agents ushered Reverend Kim -28-
back into the car and traveled to the Yalu River crossing. On the way, Reverend Kim asked, Who are you men? Im a patient. Just where is it that you are taking me? In order to calm him down, Song San responded, If you just be still nothing will happen to you. (Id. at pp. 29). En route to the crossing, the agents telephoned Director Ji who instructed them to place Reverend Kim in handcuffs so that he would look proper, and the agents followed this instruction. When the vehicle arrived at the Yalu River crossing, Song San and another DRPK agent each held one of the arms of Reverend Kim and crossed with him over to North Korea, where they transferred Reverend Kim into the custody of Director Ji. (Id. at pp. 29-30). This was the last time Reverend Kim was every seen by anyone outside of North Korea. D. Declaration of Professor David Hawk Plaintiffs presented affidavit testimony of Professor David Hawk, a former Executive Director of the United States section of Amnesty International and Officer-In-Charge of the Cambodia Office of the UN High Commissioner for Human Rights. Professor Hawk currently is a consultant to the U.S. Committee for Human Rights in North Korea; his activities focus on researching and documenting ongoing human rights violations of the Pyongyang regime. He is also a visiting scholar at the Columbia University Institute for the Study of Human Rights. (Dkt. #29, 1). Previously, Professor Hawk was a Reagan-Fascell Fellow at the International Forum for Democratic Studies at the National Endowment for Democracy in Washington, D.C., where he worked on issues pertaining to North Koreas nuclear weapons program. Prior to that, Professor Hawk was a consultant to Freedom House in New York, where he investigated human rights abuses of the DPRK regime and analyzed its gulag system of work camps for political prisoners. (Id. at 2). -29-
Professor Hawk has also been a consultant to the U.S. Commission of International Religious Freedom in Washington, D.C. and a consultant to the U.S. Committee for Human Rights in North Korea where he researched and authored a landmark 120 page report, The Hidden Gulag: Exposing North Koreas Prison CampsPrisoners Testimonies and Satellite Photographs, based on extensive in-depth interviews with North Korean refugees who had recently obtained asylum in South Korea. He also worked at the Landmine Survivors Network for several as a consultant. (Id. at 3, 4). Professor Hawks prior experience also includes positions as (i) the Head of Office for the U.N. High Commissioner for Human Rights Cambodia Office in Phnom Penh; (ii) the Executive Director of the Cambodia Documentation Commission; (iii) a Fellow at the Columbia University Center for the Study of Human Rights for six years; (iv) an Adjunct Lecturer on human rights at Hunter College in New York; and (v) the Executive Director of Amnesty International USA in New York during its formative years of 1974-1978. (Id. at 5). Professor Hawk has published extensively in the areas of human rights in North Korea. His published works in this area include: (i) Appendix: Human Rights Issues During Phase Three of the Six Party Talks on the Denuclearizaiton of the Korean Peninsula in Failure To Protect: The Ongoing Challenge of North Korea, Havel, Bondevik and Wiesel, DLA Piper, the Committee for Human Rights in North Korea, and The Oslo Center for Peace and Human Rights, September, 2008; (ii) Introduction, A Prison Without Bars: Refugee and Defector Testimony of Severe Violations of Freedom of Religion or Belief in North Korea, US Commission on International Religious Freedom, Washington DC, March 2008; (iii) The Realities and Policies of Third-World Nations Regarding North Korean Defectors, with an Emphasis on Mongolia and Thailand, International Trends Concerning Human Rights for North -30-
Korean Defectors, National Human Rights Commission of Korea, Seoul, November 2007; (iv) Concentrations of Inhumanity: An Analysis of the Phenomena of Repression Associated with North Koreas Kwan-li-so Political Penal Labor Camps According to the Terms and Provisions of Article 7 of the Rome Statute of the International Criminal Court and the Parallel Provisions of Customary International Law on Crimes Against Humanity, 65 pages, Freedom House, Washington, May 2007, Korean translation, Seoul, July 2007; (v) Factoring Human Rights Into the Dismantlement of Cold War Conflict on the Korean Peninsula in Human Rights in North Korea, Eds.. Kie-Duck Park and Sang-Jin Han, The Sejong Institute, Seoul, 2007; (vi) Human Rights and the Crisis in North Korea in North Korea: 2005 and Beyond, Eds. Philip Yun and Gi-Wook Shin, Asia-Pacific Research Center (APARC), Stanford University/Brookings Press, March 2006; (vii) Thank You Father Kim Il Sung: Eyewitness Accounts of Severe Violations of Freedom of Thought, Conscience and Religion in North Korea, United States Commission on International Religious Freedom, Washington DC, November 2005, 106 pages; and (viii) Hidden Gulag: Exposing North Koreas Prison Camps Prisoners Testimonies and Satellite Photographs, US Committee for Human Rights in North Korea, Washington DC, November 2003, 120 pages. Korean language edition, Seoul, January 2004. Japanese language edition, Tokyo, August 2004. (Id. at 6). In his affidavit testimony, Professor Hawk focused on his extensive research over the past decade on widespread and systematic repression by the DPRK of its citizens and foreign nationals, specifically by means of forced abductions and displacement to the kwan-li-so, political penal-labor colonies. Professor Hawks work has focused on interviewing scores of former prisoners and former security guards who defected from North Korea, in over two dozen trips to South Korea, in order to gain firsthand information about the various inner-workings of -31-
the dreaded kwan-li-so. In the kwan-li-so, a large proportion of political prisoners and others deemed to be opponents of the DPRKalong with their family membershave been abducted and imprisoned without any judicial process, in many instances for lifetime sentences. (Id. at 9). Professor Hawk explained that one of the most corrupt characteristics of the kwan-li-so system is that prisoners are not formally arrested, charged (or even told of their offense), or tried in any sort of judicial procedure, where they would have a chance to confront their accusers or offer a defense. (Id. at 11). Presumed offenders of the North Korean regime are simply abducted by DPRK forces and taken to an interrogation facility, where they are frequently tortured to confess to whatever crime has been fabricated by DPRK authorities. Following their compelled confessions, they are deported to one of the kwan-li-so. (Id.) Another distinctive feature of the kwan-li-so political prisoner labor camp system is collective responsibilityknown in Korean as yeon-jwa-jewhereby up to three generations of family members of an accused offender are incarcerated due only to their blood relationship with the accused. (Id. at 12). In many cases these family members of presumed offendersmothers, fathers, sisters and brothers, grandparents, children and sometimes even grandchildrenare similarly detained without warning and transferred to one of the kwan-li-so, without ever being told of the whereabouts or wrongdoings of the presumed offender or of why specifically they themselves have been incarcerated. In fact, there are certain sections of certain kwan-li-so which are specifically designed for the families of presumed offenders (so that those family members cannot speak out to others against the wrongful imprisonment of their relatives). (Id.) It is not uncommon for these family members to be imprisoned in the kwan-li-so, without any judicial process or legal recourse whatsoever, for lifetime sentences of extremely hard labor. Former -32-
prisoners and guards trace the systematic employment of yeon-jwa-je to a statement by Great Leader Kim Il Sung made in 1972: Factionalists or enemies of class, whoever they are, their seed must be eliminated through three generations. (Id.) According to the testimony of a former guard at kwan-li-so No. 11 at Kyungsung, North Hamgyong Province, this slogan was carved in wood in the prison guards headquarters building. According to the testimony of a former DPRK police official, the number of family members abducted and sent to the lifetime labor camps depends on how severe the political offense (whether real or imagined) is deemed to be by DPRK officials. (Id.) Prisoners of the kwan-li-so face horrendous conditions and are treated without regard to the most fundamental human rights. One of the most salient features of day-to-day prison-labor camp life is the combination of below-subsistence food rations and tedious and back breaking forced physical labor. This back-breaking labor is often performed for twelve or more hours per day, seven days per week. Prisoners are provided only enough food to be kept on the verge of starvation. And prisoners are compelled by their hunger to eat, if they can get away with it, whatever extra food source they can find, including commonly plants, grasses, bark, rats, and snakes. It should be noted that below-subsistence-level food rations have been the norm even when North Korea was not experiencing one of its periodic severe nationwide food shortages. The combination of below-subsistence-level food rations and slave-labor working conditions leads to a large number of prisoner deaths during incarceration. (Id. at 14). Professor Hawk stated in his affidavit testimony that many inmates cannot withstand the harsh conditions of their imprisonment and a significant number die within a year of their arrival to the kwan-li-so. A large number of those who survive develop permanent disabilitiessigns of premature aging, hunchbacks, and other physical deformities due to the brutal work conditions -33-
and cell sizes. Many prisoners become disabled from work accidents or require amputations due to hypothermia resulting from exposure to harsh weather conditions. (Id. at 16). There have been especially horrific reports of forced abortions and baby killings at the kwan-li-so. Women who are brought to the kwan-li-so pregnant are required to have injectioninduced or surgical abortions once their pregnancies are discovered. One prisoner witnessed a group of ten pregnant women taken away for mandatory abortions, and the women were returned to hard labor the very next day. If a pregnancy is too advanced, women are permitted to deliver their babies naturally only to have them killed immediately after birth by prison authorities. One female prisoner who was responsible for caring for pregnant inmates helped deliver seven babies, and all of the surviving babies were killed. Another prisoner witnessed how two pregnant women (one six months pregnant and the other eight months pregnant) were treated by prison authoritiesboth women had their babies born alive, only to be suffocated in a vinyl cloth. (Id. at 17-18). Another female prisoner who helped to deliver babies reported that she was forced to deliver various full-term and premature babies. On one occasion a guard forced her to place two full-term baby boys she had delivered in a box and then immediately leave the area. Two days later, she was able to check the box and to her shock she found that the baby boys were still alivethey still blinked their eyes even though their skin had turned yellow and their mouths were blue. A guard who had been watching her came over and saw that the babies were still living and proceeded to stab both babies with forceps in the soft spot in their skulls, killing them instantly. (Id. at 19). Another former prisoner reported seeing pregnant women being kicked in the stomach by prison guards to induce bleeding. She also saw four babies who had recently been born placed in a wicker basket that was covered by a vinyl cloth. The box was placed on the -34-
ground and left there for the babies to die of asphyxiation and/or starvation. (Id.) Another prisoner was recruited by prison guards to help deliver the babies of fellow prisoners who were repatriated from China. When these babies were born, they were placed face down on the ground. Some babies died right away; others lay there breathing longer. If any babies were still alive after two days, the guards would smother them in wet vinyl. The babies lying on the ground could be seen by the women standing at the front of the other cells. The guards would say that the mothers had to see and hear the babies die because these babies were Chinese. (Id.) Professor Hawk stated in his affidavit testimony that while he does not have any firsthand knowledge about Reverend Kims case specifically, given his extensive knowledge of the DPRK and the manner in which abductees repatriated from China are usually treated, it is likely that Reverend Kim would have initially been held in a ku-ryu-jang, a DPRK police detention and interrogation facility, before being transferred to a kwan-li-so. Professor Hawk stated that Reverend Kim, at a minimum, would have been subjected to the harsh treatment afforded to all of its prisoners. But because Reverend Kim was such a valuable target of the DPRK and so much planning, effort, and other resources had gone into his abduction, Professor Hawk opined that it is likely that Reverend Kim was subjected to additional brutality. Professor Hawk further opined that the various reports of the torture and starvation of Reverend Kim, from the accounts of other prisoners, are likely to be a reliable and accurate description of Reverend Kims treatment by his captors from the time he was abducted and incarcerated. (Id. at 20). E. Declaration and Supplemental Declaration of Ernest C. (Chuck) Downs Plaintiffs presented the affidavit testimony of Chuck Downs, a former senior official of the U.S. Department of Defense, whose career in defense and national security issues spans more than three decades. Downs is the author of Over the Line: North Koreas Negotiating Strategy -35-
(AEI Press, 1999), which explains how North Korea deals with other countries and continues to function as a state despite its rogue status. A Korean (Hangul) version of Over the Line was published within months of the books English publication and a Japanese version was published in 2002. This book established Downs reputation as a scholar with expertise regarding North Korea, and he has continued to conduct in-depth studies of the North Korean regimes behavior and practices since its publication. (Dkt. #30, 1). Downs spent the majority of his career in the Pentagon, as Deputy Director for Regional Affairs and Congressional Relations in the Pentagons East Asia office. In this capacity he was responsible for drafting the East Asia strategy documents of the Department of Defense and was awarded the Meritorious Service Medal (1996) and the Defense Civilian Service Medal (1993). As Assistant Director of the Office of Foreign Military Rights Affairs, Downs was responsible for a number of international negotiations with various countries, including the negotiation with the United Kingdom regarding military use of Diego Garcia and access arrangements in Singapore and Australia. He was selected to attend what was then considered the highest level training program for Federal employees, the Department of States Senior Seminar training program at the Foreign Service Institute from 1989-1990. (Id. at 2-3). Earlier, from 1980-1984, he served as Chief of Policy Analysis in the Department of the Interiors Territorial and International Affairs office, where Downs duties included representing Interior in the Micronesian status negotiations and the negotiations for arrangements governing U.S. military use of Kwajalein Missile Range in the mid-Pacific. Downs was also the Associate Director of the Asian Studies Program at the American Enterprise Institute in Washington, D.C. (Id. at 4-5).
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Downs retired in June 2000 from the position of Senior Defense and Foreign Policy Advisor to the House Policy Committee of the U. S. House of Representatives and since that time has continued to work as an independent consultant on foreign policy matters. As a Senior Fellow at the National Institute for Public Policy, Downs chaired the North Korea Working Group, developing policy recommendations on North Korea for the Office of the Secretary of Defense. Downs has testified before Congress and has frequently appeared on PBSs Lehrer NewsHour. For two years he appeared frequently on MSNBC and NBC, with whom he was a consultant on international security policy. (Id. at 6). From 2001-2008, Downs served on the board of the United States Committee for Human Rights in North Korea. In 2008, the Board asked him to take over the duties of Executive Director, managing the organizations publications on North Koreas human rights abuses. Downs has published numerous articles on foreign policy and defense issues, in the New York Times, the Washington Post, and the Wall Street Journal. In addition to authoring Over the Line, Downs was the co-editor (with Ambassador James R. Lilley) of Crisis in the Taiwan Strait (NDU Press, 1997). He graduated with honors in political science from Williams College in 1972. (Id. at 8). Downs explained in his affidavit testimony that since its inception in the mid-twentieth century, the DPRK has systematically engaged in a carefully conceived policy of using force and deception to lure intellectuals and other educated professionals to North Korea. Over the following sixty years, the regime has carried out a number of violent and duplicitous acts to steal foreign citizens from their homes, lure unsuspecting innocents, and trap misguided individuals into captivity in North Korea, with no regard for the wishes of the victims themselves. (Id. at 12). -37-
In spite of all of the brazen activities carried out over the years by the DPRK, Downs opines that if it were not for the momentous Japan-DPRK Summit in 2002 between Prime Minister Junichiro Koizumi and Supreme Leader Kim Jong-Il, most of the abductions would still have been hidden from public view. On September 17, 2002, Chairman Kim Jong-Il admitted to Prime Minister Koizumi that North Korea had in fact engaged in the abduction of several Japanese citizens. This marked the first time that any official acknowledgmentmuch less one from the Supreme Leader himselfhad been made regarding the DPRKs use of abductions to further its goals. Prime Minister Koizumi called the abduction issue a vital matter directly linked to the lives and safety of the Japanese people, and issued the following statement after their meeting: Chairman Kim Jong-Il honestly acknowledged that these were the work of persons affiliated with North Korea in the past and offered his apologies, expressing his regret. He stated that he would ensure that no such incidents occur again in the future. I intend to arrange for meetings with family members of those surviving and to do my utmost to realize their return to Japan based on their will. (Id. at 20). As part of ongoing negotiations for the release of the victims still presumed to be held in North Korea, Koizumi requested that the DPRK restart investigations into the fate of the eight abductees who were reported to have died and the two Japanese citizens whom the DPRK claimed never entered the country. Downs reports that the DPRK never conducted a credible investigation into the cases of those whom it claimed had died. The DPRK also denied that other abductees had entered North Korea, notwithstanding evidence to the contrary. It is believed that the DPRK deliberately fabricated circumstances of the deaths of certain abductees in order to undermine the testimony of several escaped victims and DPRK operatives who had defected. (Id. at 22). -38-
Downs referred to the case of Reverend Kim as one of the more visible instances of a forced abduction by the DPRK in recent memory. That Reverend Kims abduction from China in 2000 by DPRK intelligence agents and his subsequent torture received a significant amount of attention was likely due to Reverend Kims sympathetic personaa beloved community pastor leaving the comfort of his home in the United States to immerse himself in providing humanitarian assistance to North Korean refugees. (Id. at 24) While Reverend Kims abduction raised an outcry back in the United States and elsewhere, that outcry would have been even more fiercely amplified had he not simply suddenly vanished into thin air. Downs stated that he believes that credible information of Reverend Kims treatment in North Korea has been obtained from defectors and that in the future, his fate will be revealed by officials who were in a position to know how he was treated by agents and operatives of the North Korean regime, as this is the pattern of how people on the outside of the DPRK learn of what transpires inside North Korea. (Id. 34). Members of the United States Congress have undertaken to investigate the DPRK policy of conducting foreign abductions and have issued various resolutions regarding this issue. For example, on June 12, 2002, the House of Representatives issued a resolution urging the governments of the United States, South Korea and China to seek a full accounting from the DPRK regarding the whereabouts of Reverend Kim. (Dkt. #30, Exhibit A). And on May 26, 2005 and again on July 12, 2005, the Committee on International Relations of the 109th Congress issued a resolution condemning the DPRKs use of abductions and demanding the return of individuals being held in North Korea. (Id., Exhibits B and C). An April 27, 2006 hearing by the Subcommittee on Asia and the Pacific of the House of Representatives also shed valuable light on the DPRKs systematic use of abductions. (Dkt. #30, Exhibit D). Of special -39-
note to Reverend Kim is a rather unusual letter dated January 8, 2005 and signed by the Illinois Congressional Delegation, including then-United States Senator Barack Obama, to North Korean U.S. ambassador Pak Gil Yon, which specifically requested that North Korea forthwith investigate the circumstances of Reverend Kims abduction and fate, and which stated that its signatories would not support the removal of the DPRK from the State Departments list of State Sponsors of Terrorism until the whereabouts of Reverend Kim had been made known. (Dkt. #30, Exhibit E). This letter was followed by a subsequent correspondence from Senator Henry Hyde in his capacity of the Chairman of the Illinois Congressional Delegation, dated November 4, 2005, after the Delegation had returned from a trip to Japan. ( Dkt. #30, Exhibit F). A recently declassified internal State Department cable dated February 3, 2000, from representatives stationed in Seoul communicating with headquarters in Washington, D.C., states that a local Chinese paper reported that Chinese investigators had strong evidence that Reverend Kim was kidnapped from China by DPRK agents who had crossed over into China in late December to plan the abduction. The cableauthored a mere two weeks after Reverend Kims abductionfurther reported that ten people were involved in Reverend Kim's kidnapping, including a couple posing as North Korean defectors, and that Reverend Kim was held hostage in China before being transported into North Korea by his captors. (Dkt. 30, Exhibit G). On August 17, 2012, this Court issued an Order requesting further evidentiary support from the Plaintiffs. In response, the plaintiffs submitted Mr. Downs supplemental declaration. (Dkt. No. 50). That declaration directly addresses the likely status and treatment of Reverend Kim. Downs explicitly opined that Reverend Kim was killed in prison by his North Korean captors. (Id. at 7). He noted further that [p]risoners in North Koreas political prisons do not often survive. That is particularly so with regard to foreign prisoners who are alleged to have -40-
committed crimes against the North Korean regime, such as by assisting North Korean defectors. Indeed, the Government of North Korea has threatened to punish Americans worldwide with grave consequences for assisting North Korean defectors. (Id.) Downs opined that prisoners in North Koreas prisons perform hard labor, often for up to sixteen consecutive hours per day, in terrible conditions with inadequate food, medicine, and clothing. (Id. at 7, 11). He added that it would have been astonishing had Reverend Kim managed to survive for so many years under such conditions. (Id. at 7). Downs described the treatment that Reverend Kim likely received in prison prior to his killing as exceptionally painful, brutal, and outrageous. Downs declared that Reverend Kim undoubtedly suffered brutal punishment. North Korean prison guards punish inmates severely for even minor infractions of camp rules. Reverend Kim was a dedicated Christian minister who, no doubt, says Downs, attempted to proselytize the Christian faith. That would have been a clear violation of prison rules that would result in severe punishment. (Id. at 8). Downs further expressed his certainty that Reverend Kim was subject to torture on a regular basis (aside from whatever punishment he was forced to endure). Downs noted in particular that he is familiar with approximately the testimony of 1000 former North Korean inmates and declared under oath that he is not aware of a single case in which a prisoner escaped torture. (Id. at 10). He said that Reverend Kim was most probably subjected to severe beatings while in stress positions (such as while suspended from the ceiling), near-starvation, and forced physical exertion to the point of absolute physical exhaustion. (Id. at 9). He supplemented his declaration with an Exhibit that describes the treatment given to some of the inmates of North Koreas prisons. (Dkt. #50-1). The exhibit reports that
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One prisoner was deliberately burned and punctured, had his finger cut off for an
accidental error, and was forced to sit in the front row to observe the execution of his mother and brother. Another prisoner reported the existence of separate punishment cells in one of
the kwan-li-so, from which few prisoners returned alive. Another prisoner reported being beaten with rifle butts in the face and shins. The
beatings caused permanent damage in one hear, double vision in one eye, and permanent discoloration in the shins. Another prisoner was beaten so severely with wooden staves and rifle cleaning
rods that he has permanent scars on his head, ears, and knees. Another prisoner was beaten so badly, she could hardly walk. She was transferred
to another facility. After the guards at that second facility demanded to perform a third vaginal examination on her, she protested. For her protests, she was beaten further. Another prisoner was beaten while being hung upside down. Another prisoner reported that the punishment cells were so small, one could
neither sit nor stand. She further reported that beatings and kicking of female prisoners was a daily occurrence. Another prisoner reported being subject to beating, strapping, and water torture so
severe that they caused loss of consciousness. She further reported being held outside in freezing weather. Another prisoner reported being beaten so severely that she was unconscious for
ten days and required hospitalization.
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Another prisoner reported being required to sit motionless and that a slight
movement resulted in a hit on the fingers or knees. Another prisoner reported that prisoners who did not labor quickly enough were
beaten with shovels. Another prisoner reported that prisoners who broke camp rules were often
confined to small cells in which they could neither stand nor sit for fifteen consecutive days. Another prisoner reported that prisoners that broke minor camp rules were beaten
by their cell-mates on the order of the prison guards. They were then placed in a punishment cell for a week or more. Another prisoner reported watching a very ill woman be compelled to repeatedly
stand up and then quickly sit down until she passed out and died. death. Another prisoner lost a tooth from the facial beatings he suffered. He reported, Another prisoner reported watching one of his fellow inmates being beaten to
however, that the common punishment of requiring prisoners to sit motionless was significantly more painful than the beatings. One former guard at one of the kwan-li-so reported that there were so many
deaths caused by severe beatings that the guards were instructed to be less violent. (Id. at 5-8). The book The Hidden Gulag by David Hawk (2d ed. 2012), reproduced in part in the Downs Exhibit, describes torture in North Korean prisons thusly: [T]he practice of torture permeates the North Korean prison and detention system. Because it is so widespread and systematic, it clearly is not the work alone of sadistic elements, but reflects state policy intended
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to punish, degrade, intimidate and humiliate the prisoners in an effort to root out political disloyalty, connections to South Korea or belief in banned religions. (Id. at 4). Downs expressly opined that Reverend Kim is dead andhis death resulted from torture and malnutrition deliberately caused by his North Korean captors. (Dkt. #50, 13). This Court is not prepared to find, without evidence, that Reverend Kim was the one prisoner of a thousand (or more) to escape torture. Rather, the Court finds, in accord with the uncontroverted evidence produced by the plaintiffs, that Reverend Kim was tortured in the manner described by Downs and the plaintiffs other declarants and documentary evidence (more of which is described below). F. Declaration of Yoshikuni Yamamoto Plaintiffs presented affidavit testimony of Yoshikuni Yamamoto, currently the Senior Researcher for the Committee for Human Rights in North Korea (HRNK) in Washington, DC. He has held this position since July 2009. (Dkt. #19, 1). Yamamoto has been studying security issues in the Asian Pacific Rim for over 15 years, with a special focus on analyzing the methodology of the DPRK. He holds a Master of Arts in Security Studies from Georgetown Universitys School of Foreign Service and a Master of Public Administration from Syracuse Universitys Maxwell School of Citizenship and Public Affairs. His Bachelor of Arts in Political Science is from Waseda University in Tokyo, Japan. (Id. at 2). Yamamoto is the co-founder and Steering Committee Member of the Washington, D.C.based North Korea Freedom Coalition, a grass-roots advocacy group promoting human rights and related freedoms in the DPRK. Among other appointments, Yamamoto has been nominated as Cabinet Advisor for Abduction and Korean Peninsula issues from the Hatoyama Government -44-
of Japan. Yamamoto is currently finalizing the forthcoming publication tentatively entitled Hostage-Taking: The Policy of Abduction by North Korea, which he co-authored with several attorneys at the international law firm DLA Piper, LLP. This publication is scheduled to be published by HRNK in Spring 2011. (Id. at 3). Between 2007-2009 Yamamoto worked for the Washington, DC-based Public Affairs Company VOX Global Mandate (now-VOX Global) and for VOX Global Asia, during which time he advised various governmental and private sector clients about Asian security policy matters and other issues. Prior to this appointment, Yamamoto worked for the House Republican Policy Committee (108th Congress) in Washington, DC, primarily as a consultant preparing materials and drafting Policy Statements regarding issues concerning East Asia and U.S. relations. (Id. at 4). Yamamotos own research has revealed that there are seven categorical explanations for the DPRKs abduction of foreign civilians: (1) the theft of passports and other official
identification documents; (2) forced marriages to other victims abducted from abroad; (3) localization and the recruitment and education of spies; (4) supplemental advanced technology, unique skills, and labor force; (5) containing witnesses and destroying evidence; (6) an extension of war efforts and historical animosity; and (7) hostage taking, propaganda and deterrence. (Id. at 10). Each of these motivations is addressed more specifically by Yamamoto in his affidavit testimony, as summarized below. Theft of Passports and Other Identification Documents: One of the ancillary yet valuable benefits to the DPRK of abducing foreign nationals is the ability of its agents to easily misappropriate the identities of abductees. DPRK operatives regularly used such South Korean, Japanese and other countrys passports and other identification documents when travelling -45-
abroad in order to disguise themselves as foreign nationals to facilitate the assumption of an alter ego and thus effectively infiltrate a target county. (Id. at 11) With respect to South Korea especially, which since the 1960s had become increasingly difficult for DPRK agents to penetrate due to heightened security, the use of South Korean identity documents aided DPRK intelligence personnel. The core objective of dispatching operatives in South Korean territory was to conduct espionage, local recruitment of cooperators, disseminate pro-North Korean propaganda, and perpetuate terrorist acts such as abductions and assassinations. (Id.) Forced Marriage to Other Abducted Victims: The DPRK believed that the internalmarriage between foreign victims made it easier to sequester such persons from the general population and thus limit the spread of harmful outside information into North Korea. The effort to stem the flow of any such information was further evidenced by foreign victims who were forced to marry each other and who were relegated to living in housing complexes that were set apart from the general public and were commonly called Guest Houses, thereby (i) limiting any interaction between such individuals and North Korean civilians, and (ii) making such individuals dependent on Instructors, who are DPRK intelligence personnel and who are charged with surveillance and re-education functions, as well as active agents working with those persons chosen to be involved in covert operations. (Id. at 12). Localization and the Recruitment and Education of Spies: One of the key rationales behind the DPRKs policy of abductions was Localization, a term that Supreme Leader of the DPRK Kim Jong-Il used himself in a speech made in 1976. (Id. at 13). Localization refers to the abduction of foreign nationals to either (1) act as instructors of language, culture and other subjects of their home nations for DPRK intelligence operatives, or (2) become DPRK spies working in furtherance of the regimes national interests. The primary objective of Localization -46-
was to extend the reach of DPRK operatives who had mastered the ability to blend in a foreign country so that they could set-up and operate local spy cells to conduct espionage and terrorist activities. (Id.) Supplement Advanced Technology, Unique Skills, and Labor Force: The critical shortage of academic and industrial talent and know-how inside of North Korealargely due to the DPRKs strict isolationist policies from the international communityhas encouraged DPRK operatives to target and capture foreigners who have unique skills, which facilitate the promotion of North Korean national interests. (Id. at 14). Containing Witnesses and Destroying Evidence: DPRK spies have entered into Japanese and South Korean soil on a regular basis, not only to carry out abduction and other espionage, but to secretly transport in and out senior DPRK agents as well as for military routine training and other reasons. Abductions have also been carried out to silence eyewitness among the South Korean population from later identifying such DPRK personnel or from otherwise compromising the secrecy of a pending operation. Cases of South Korean and Japanese fishermen being captured are also claimed to be instances where DPRK spy ships had concerns of being spotted by local fishermen and would attack and kidnap the crew members to protect their secret missions from being leaked. (Id. at 15). An Extension of War Efforts and Historical Animosity: The DPRK considers both the U.S. and South Korea as war time enemies; the armistice agreement signed in July 27, 1953 has never been followed by a peace treaty. Former KPA Reconnaissance Division Lieutenant, Kim Guk-Seouk, testified in his memoir that there is no doubt that the (ruling) Korean Workers Party elites, from Supreme Leader Kim Jong-Il himself down to local cooperators, consider the use of abductions as a type of revenge for the brutality to which North Korean citizens were -47-
subjected by U.S. and South Korean forces during the Korean War (as well by Japanese Imperialists during occupation era). (Id. at 16). Hostage Taking, Propaganda and Deterrence: The DPRK has been involved in a series of abductions (of over 200 Chinese citizens) since the early 1990s. As the Chosun Ilbo reports, North Korean refugees who were lucky enough to escape to China would stay under custody of secret safe-houses that NGOs and religious humanitarian groups had established or that Chinese locals in the area with ethnic Korean descent would support. (Id. at 17) DPRK agents infiltrated these communities and targeted ethnic-Korean Chinese locals as well as corrupt border guards as part of a campaign to stop people from fleeing North Korea. (Id.) By abducting Chinese locals within the border area, the DPRK sends a message of deterrence to other individuals who might be enlisted to support North Korean defectors. This use of force by the DPRK in this manner is the very backdrop against which the abduction of Reverend Kim occurred. (Id.) Finally, Yamamoto explained in his affidavit testimony how Hua and the other local DPRK agents were crucial to the success of carrying out the abduction of Reverend Kim. Former North Korean Army Lieutenant Kim Guk-Seok testified in his memoir that the DPRKs policy of carrying out abductions would be significantly hampered without the coordination by local agents in the host country in which civilians are being targeted by DPRK intelligence operatives. (Id. at 18). Many of these local agents have not undergone the rigors of formal training normally undertaken by full-time DPRK agents, and therefore they are loyal to and follow directives issued by these career agents who receive direct orders from the DPRK leadership. These local agents support the DPRK intelligence services by conducting preliminary research of targets, planning and advising precisely how targets can be abducted, participating in the
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abduction itself, and assisting with the handling of fallout from an abduction once local police as well as a victims community starts its search for the missing. (Id.) G. Affidavits of Do Hee-Youn, Cho Bong II and Bae Jae Hyun 1. Do Hee-Youn. Plaintiffs presented affidavit testimony of Do Hee-Youn (Hee-
Youn) of Seoul, South Korea, a member of the Citizens Coalition for Human Rights of Abductees and North Korean Refugees and a Co-Representative of the Antihuman Crime Investigation Committee based in Seoul. (Dkt. #22, 1). Hee-Youn stated that as a result of his activities in these organizations, he has various network of confidential contacts who provide him with information about North Korea and China. (Id. at 2). Three members of the South Korean intelligence community, who were among the government investigators of Reverend Kims disappearance, also shared with Hee-Youn their belief that Reverend Kim had been abducted by the DPRK. (Id. at 12). Hee-Youn learned through his contacts that Reverend Kim ultimately died in North Korea in February 2001 as a result of torture and malnutrition. (Id. at 13). The Court finds that second-hand information obtained through North Korean informants is the closest that it can get to first-person eye-witness testimony. In the absence of any rebuttal by North Korea or any contrary evidencethe Court is aware of noneinformation gathered via such informants, particularly where corroborated by volumes of expert testimony, is highly credible. The Court thus finds that Reverend Kim died in February 2001 while in his North Korean prison as a direct result of his brutal torture and malnutrition through the intentional acts of his DPRK captors. 2. Cho Bong Il. Plaintiffs presented affidavit testimony of Cho Bong Il (Bong Il)
of Seoul, South Korea, a former North Korean defector. (Dkt. #23). Bong Il is a former soldier in -49-
the North Korean army, holding the position of a mid-level officer in a supply unit. (Id. at 2). Bong Il fled North Korea fearing an imminent investigation by the internal DPRK police, as he believed the result of such an investigation would result in his death. (Id. at 3). Bong Il escaped to China in May 1999 and met another North Korean defector who told him of Reverend Kim. Bong Il stated that he had the opportunity to speak with Reverend Kim, who expressed strong anti-North Korean sentiments with one example being that he wondered aloud whether there was a way to bring down the Man Soo Dae statue of North Koreas founder Kim Il Sung. (Id. at 9). Bong Il stated that he worried that these statements might reach the ears of DPRK officials, given (i) the short proximity to the North Korean border, (ii) reports of North Korean defectors being abducted from China back to North Korea, and (iii) the presence of several suspicious people. Bong Il found one person in particular to be suspicious, due to the way he behaved and because his ten year old son stated that a North Korean security official used to visit their house in North Korea. (Id. at 10-11). (The Court pauses to express its suspicion that the unnamed security official might have been Director Ji or one of his associates.) 3. Bae Jae Hyn. Plaintiffs presented affidavit testimony of Bae Jae Hyun (Bae
Jae) of Burke Virginia, a colleague of Reverend Kim from August 1998 until November 1999. (Dkt. #24 1). Bae Jae and Reverend Kim were involved in medical mission work in Northeastern China and ran shelters there to provide North Korean defectors with necessary aid and assistance to transport them to South Korea. (Id. at 2-3). Bae Jae learned of Reverend Kims disappearance from his son on January 17, 2000. The following day, Reverend Kims son reported Reverend Kim missing to the Kong Ahn, Chinas public security agency, and the day thereafter to South Koreas Ministry of Foreign Affairs. (Id. at 7-8). Bae Jae strongly suspected that the DPRK was involved in abducting Reverend Kim, and undertook efforts to -50-
determine his whereabouts with the DPRK, the United States Congress, the South Korean Red Cross and the Chinese and South Korean governments. (Id. at 9). H. Documentary Evidence In addition to providing detailed and thorough affidavit testimony about the activities of defendant, the plaintiffs submitted additional documentary evidence to provide further background and context concerning the abduction and torture of Reverend Kim, as Docket Numbers 32 through 42 to their Proposed Findings of Fact and Conclusions of Law: Dkt. #32, One South Koreans Story of Abduction and Repatriation, N.Y. TIMES, Sept. 4, 2007. Dkt. #33, CRS Report for Congress, North Koreas Abduction of Japanese Citizens and the Six Party Talk, Mar. 19, 2008. Dkt. #34, Riding the Seoul Train, NEWSWEEK, Mar. 5, 2001. Dkt. # 35, HUMAN RIGHTS WATCH, NORTH KOREA: BORDER-CROSSERS (Mar. 2007). HARSHER POLICIES AGAINST
Dkt. # 36, NK Escapees Committed to Saving Refugees in China, KOREA TIMES, May 22, 2000. Dkt. # 37, U.S. DEPARTMENT (Mar. 31, 2003). Dkt. # 38, U.S. DEPARTMENT (Mar. 11, 2010).
OF
STATE, COUNTRY REPORT
ON
HUMAN RIGHTS 2002
OF
ON
HUMAN RIGHTS 2009
Dkt. # 39, Photograph of Plaintiff Yong Seok Kim (on left) along with Reverend Kim (middle), his mother and other sibling. Dkt. #40, Photograph of Plaintiff Han Kim along with his sister Dani Butler, his father, Reverend Kim and his mother. Dkt. # 41, Photograph of Plaintiff Han Kim with his father, Reverend Kim at his high school graduation. Dkt. # 42, Photograph of Plaintiff Han Kim along with his father, Reverend Kim. -51-
The Court briefly summarizes here the some of the evidence contained in Docket Numbers 35, 37, and 38, which it finds particularly helpful. HUMAN RIGHTS WATCH, NORTH KOREA: HARSHER POLICIES AGAINST BORDERCROSSERS (Mar. 2007). Human Rights Watch conducted a number of interviews of former inmates of North Koreas prisons, humanitarian workers operating in China, and others with knowledge of North Koreas policies directed at preventing defection. It found their testimony to be consistent. (Dkt. #35, page 4-5). Human Rights Watch confirms that those who, while in China after defecting from North Korea, make contact with Christian missionaries will be subject to harsher penalties. (Id. at 9). Since the foundation of the North Korean state, the government has persistently persecuted religiously active people, who were typically categorized as hostile elements. Christians, in particular, were seen as tools of anti-North Korea counter-revolutionary imperialist aggression. One of the most important reasons for North Koreas repression of religious practice is its clash with the cult-like reverence of founder and former President Kim Il Sung, former leader Kim Jong Il, and present leader Kim Jong-Un, under the juche (roughly translated as self-reliance) ideology. (Id.) Regardless of the particular prison to which one is sent, prisoners are subjected to strip searches, verbal abuse and threats, beatings, forced labor, and lack of food and medicine, among other abuses. Torture and other cruel and inhuman treatment appears widespread and can occur throughout the process of incarceration in North Koreaduring arrest and interrogation through to when serving a sentence of imprisonment. (Id. at 10). One woman who served a few months in 2006 in jipkyolso (a temporary detention center where people await sentencing) recounted her experience: -52-
Except for the time when we ate, washed ourselves or slept, we were ordered to sit up straight without moving. If we moved, we were punished. They would make us sit down and stand up repeatedly until we collapsed, or forced us to hang onto cell bars or bang our heads onto the cell bars. Sometimes they punished everyone if one of us couldnt keep up. Guards beat people all the timethey used sticks or belts. They also slapped or kicked inmates for disobedience. Another former prisoner confided that she saw a woman forced to stand up and sit down about 100 times. She fell, with white foam in her mouth. (Id. at 10-11). North Koreas prisons chronically lack food and medicine. Accordingly, the difference between a few months and a few years incarceration could mean the difference between life and death. Several North Koreans who have been in detention facilities described a typical meal as a fistful of powdered corn stalk. The elderly woman they interviewed told Human Rights Watch, It doesnt matter if its a police detention center, forced labor camp, or regular prison. They all give you very little food. I received a fistful of corn powder for each meal when I was at a police detention center in February 2005. There was never enough food. (Id. at 11). It seems that many prisoners would have been better off without that corn powder (their only source of nutrition). It often causes stomach ache and diarrhea often for about a week. As a result, many prisoners die after eating the corn stalk powder. (Id.) Death in North Koreas prisons is common. One former inmate stated that her prison housed about 5,000 to 10,000 people. She saw a dead body being carried out almost every day. (Id.) U.S. DEPARTMENT OF STATE, COUNTRY REPORT ON HUMAN RIGHTS 2002 (Mar. 31, 2003). The State Department found that in 2002, extrajudicial killings and disappearances were common in North Korea. Citizens were detained arbitrarily, and many were held as political prisoners. Prison conditions were harsh, and torture was reportedly common. Female -53-
prisoners underwent forced abortions, and in other cases babies reportedly were killed upon birth in prisons. (Dkt. #37, page 2). And the State Department described North Koreas penal code as Draconian, citing that it prescribes capital punishment for offenses such as crimes against the revolution, including defection, attempted defection, slander of the policies of the Party or State, listening to foreign broadcasts, writing reactionary letters, and possessing reactionary printed matter as well as for ideological divergence, and opposing socialism. The death penalty was mandatory in North Korea for collusion with imperialists and suppressing the national liberation struggle. Executions were often carried out in public, such as at government-run meetingswith children in attendance. (Id. at 3). Defection was treated particularly seriously. Boarder guards were instructed to shoot to kill potential defectors. Similarly, prison guards were instructed to shoot to kill potential escapees from North Koreas political prisons. (Id.) The State Department further noted that the North Korean government was responsible for cases of disappearance. Individuals suspected of political crimes often were taken from their homes by state security officials late at night and sent directly, without trial, to camps for political prisoners. There were no restrictions on the ability of the North Korean Government to detain and imprison persons at will and to hold them incommunicado, without notifying their relatives. The State Department highlighted Amnesty Internationals report, corroborating the statements of other experts, that a number of citizens who maintained friendships with foreigners had disappeared. And it commented in particular about Reverend Kim: There were
unconfirmed reports that in January 2000 North Korean agents kidnaped [sic] a South Korean citizen, Reverend Kim Dong Shik, in China and took him to North Korea. (Id.)
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The State Department additionally noted that North Koreas prisoners are routinely subject to torture that is so intense it is often fatal: Methods of torture reportedly routinely used on political prisoners included severe beatings, electric shock, prolonged periods of exposure, humiliations such as public nakedness, and confinement to small punishment cells, in which prisoners were unable to stand upright or lie down, where they could be held for several weeks. According to defector reports, many prisoners died from torture, disease, starvation, exposure, or a combination of these causes. The U.S. Committee for Human Rights in North Korea claimed that approximately 400,000 persons died in prison since 1972. Prison conditions were harsh. Many prisoners were starved to death and executions were common. Moreover, entire families, including children, were imprisoned when one member of the family was accused of a crime. Reeducation through labor was a common punishment. In many cases, prisoners were given little or no food and, when they contracted illnesses, they were denied medical care. In one prison, clothing reportedly was issued only once in three years. (Id. at 4). The State Department offered an eye witness account of the brutality of North Koreas prisons: In June Lee Soon-ok, a woman who spent several years in a prison camps before fleeing first to China in 1994 and then to South Korea, testified before the U.S. Senate that the approximately 1,800 inmates in this particular camp in those years typically worked 16 to 17 hours a day. Lee Soon-ok witnessed severe beatings and torture involving water forced into a victims stomach with a rubber hose and pumped out by guards jumping on a board placed across the victims abdomen, and reported that chemical and biological warfare experiments were conducted on inmates by the army. Other defectors reported similar experiences. In at least one prison, approximately 50,000 prisoners worked under conditions that reportedly resulted in the death of 20 to 25 percent of the prison population annually in the 1990s. (Id.)
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During the year 2002, an estimated 200,000 persons were in detention for political reasons in camps in remote areas of North Korea. The North Korean Government denied the existence of prison camps for political prisoners, which are marked as military areas to prevent access by the local population. North Korea, noted the State Department, did not permit human rights monitors to inspect North Koreas prisons, particularly including its political prisons. (Id.) The State Department cited the testimony of a North Korean defector who had previously been a ranking official in the Ministry of Public Security. He described conditions in the camps for political prisoners as extremely harsh and noted that no political prisoners ever emerged. (Id.) U.S. DEPARTMENT
OF
ON
HUMAN RIGHTS 2009 (Mar. 11,
2010). The State Department confirmed that there were numerous reports in 2009 of arbitrary and unlawful killings by the North Korean government. (Dkt. #38, page 2). It noted that the death penalty is prescribed for offences such as suppressing the peoples movement for national liberation (i.e. the Communist movement) and for maintaining contacts with organizations outside of North Korea. (Id. at 2-3). It further reported that the North Korean government was responsible for disappearances and confirmed that there are no restrictions on the ability of the government to detain and imprison persons at will and to hold them incommunicado. (Id. at 3). The State Department further noted the many reports that the North Koran government was engaged in torture: Methods of torture and other abuse reportedly included severe beatings, electric shock, prolonged periods of exposure to the elements, humiliations such as public nakedness, confinement for up to several weeks in small punishment cells in which prisoners were unable to stand upright or lie down, being forced to kneel or sit immobilized for long periods, being hung by the wrists or forced to stand up and sit down to the point of collapse, and -56-
forcing mothers recently repatriated from China to watch the infanticide of their newborn infants. And the defectors that the State Department interviewed confirmed that many died as a result of the torture inflicted upon them by the North Korean government as well as from starvation, disease and exposure to the elements. It noted, in particular, the case of Shin Dong-hyuk, a defector from one of North Koreas political prison camps. He stated that beatings and torture were common within the camp and that he was tortured with hot coals while being hung from the ceiling after members of his family tried to escape from the camp. (Id. at 3-4). Despite that the North Korean government denies the existence of special political prisons, the State Department reported that those considered hostile to North Korea or who were accused of committing political crimes were sent to political prisons indefinitely. Many of those sent to the political prisons were not expected to survive. (Id. at 4). The State Department additionally noted that conditions in the political prisons were reported to be harsh and that systematic and severe human rights abuses occurred throughout the prison and detention system. Detainees and prisoners consistently reported violence and torture. Prisoners were often given little or no food and were generally denied medical care. In at least once instance, when the family of a prisoner brought food to the prisoner, prison guards stole that food and kept it for themselves. Moreover, sanitation was poor and bathing rare. And prisoners were not provided with adequate clothing, which they were rarely able to wash. Moreover, the prisoners were terribly overcrowded: An NGO reported that one reeducation center was so crowded that prisoners were forced to sleep on top of each other or sitting up. (Id. at 4). The State Department additionally reported that the government did not permit inspection of prisons or detention camps by human rights monitors. (Id.) -57-
CONCLUSIONS OF LAW
A.
The Foreign Sovereign Immunities Act, In General The FSIA was enacted in 1976 and is the sole basis of jurisdiction over foreign states in
the federal courts. See Argentine Republic v. Amerada Hess Shipping, 488 U.S. 428, 434 (1989). The FSIA codifies the restrictive theory of sovereign immunity under which foreign states are generally immune from the jurisdiction of courts of the United States subject to specific exceptions. See Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 488-89 (1983). As originally enacted, the exceptions to immunity under the FSIA included cases in which a foreign state had waived its immunity and those involving commercial activities of a foreign state with a nexus to United States. See Verlinden, 461 U.S. at 488 (discussing main exceptions to immunity under the FSIA). In April 1996, Congress enacted a terrorism exception to immunity under the FSIA as part of the Antiterrorism and Effective Death Penalty Act of 1996. Pub.L. No. 104-132, 221(a)(1)(C), 110 Stat. 1214, 1241. That exception, which was codified at 28 U.S.C. 1605(a)(7), lifted the sovereign immunity of designated foreign state sponsors of terrorism in civil actions brought by American citizens for terrorist attacks carried out by such foreign states or for which the foreign state had provided material support and resources. Later in 1996 Congress amended the FSIA (via the Flatow Amendment) to create a cause of action for terrorism against officials, employees and agents of such foreign states. See Pub.L. 104-208, 589, 110 (1996), 110 Stat. 3009-1, 3009-172 (codified at 28 U.S.C. 1605 note). Federal courts initially construed 1605(a)(7) and the Flatow Amendment, read in tandem, as creating a federal cause of action against the foreign state itself. See, e.g., Flatow v. -58-
Islamic Republic of Iran, 999 F. Supp. 1 (D.D.C. 1998). However, the Court of Appeals for the District of Columbia Circuit ultimately held that neither 1605(a)(7) nor the Flatow Amendment created a cause of action against the foreign state itself. See Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004). Following Cicippio-Puleo, the federal courts began to apply non-federal tort remedies (usually under the law of the state in which the plaintiff or decedent was domiciled) to determine the liability of foreign states sued under 1605(a)(7). This methodology resulted in judgments in which plaintiffs injured by the same terrorist attack received vastly different awardsincluding cases where some victims were denied recovery entirely while others were awarded significant damages. See, e.g., Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25 (D.D.C. 2007) (ordering that damage awards to family members of U.S. servicemen killed in 1983 attack on U.S. Marine Corps barracks in Beirut be granted or denied on the basis of the widely disparate rules of recovery obtaining in each plaintiffs respective state of domicile). In order to remedy this problem (and other difficulties faced by 1605(a)(7) plaintiffs), Congress enacted in 2008 1083 of the National Defense Authorization Act for Fiscal Year 2008, H.R. 4986. P.L. 110-181, January 28, 2008 (NDAA). Section 1083 of the NDAA replaces the then-existent 1605(a)(7) of the FSIA with a new provision, 1605A. Section 1605A(c) creates a federal cause of action for American citizens injured in terrorist attacks sponsored by designated foreign state sponsors of terrorism. 28 U.S.C. 1605A(c). Thus, 1605A(c) abrogates Cicippio-Puleo by creating a federal right of action against foreign states, for which punitive damages may be awarded. Simon v. Iraq, 529 F.3d 1187, 1190 (D.C. Cir. 2008), revd on other grounds, 129 S.Ct. 2183 (2009).
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Section 1605A eliminates foreign sovereign immunity 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] of extrajudicial killingor the provision of material support or resources for such an act if such act or provision of material support or resources 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. 1605A(a)(1). Here, plaintiffs have met the conditions set forth in 1605A: First, this case is an action for money damages. Second, as elaborated upon further below, this action arises from an act of torture and extrajudicial killing within the meaning of 1605A. Third, plaintiffs have clearly demonstrated that Reverend Kim was abducted by officials, employees and agents of defendant DPRK who were acting pursuant to defendants official policies and therefore within the scope of their office, employment, and agency. Fourth, North Korea is a state sponsor of terrorism for the purposes of this litigation. Section 1605A(a)(2)(A)(i)(I) provides, in relevant part, that a claim under 1605A shall be heard when the foreign state was designated as a state sponsor of terrorism at the time the act described in paragraph (1) occurred, or was so designated as a result of such act, andeither remains so designated when the claim is filed under this section or was so designated within the 6-month period before the claim is filed under this section. North Korea was designated as a state sponsor of terrorism in 1988. See Notice, Determination Pursuant to Section 6(j) of the Export Administration Act of 1979; North Korea, 53 Fed. Reg. 3477 (Feb. 5, 1988). North Koreas designation was rescinded on October 11, 2008. See Notice, Rescission of Determination Regarding North Korea, 73 Fed. Reg. 63540 (Oct. 24, 2008). This action was -60-
filed on April 8, 2009. Thus, North Korea remained designated within the 6-month period before the instant action was filed. Finally, as explained further below, the claimants were nationals of the United States, for the purposes of this litigation, at the time this action was filed. B. Extrajudicial Killing Under the Foreign Sovereign Immunities Act Section 1605A(a) applies in any case in which money damages are sought against a foreign state for personal injury or death that was caused by an act of extrajudicial killing. Extrajudicial killing is defined by 28 U.S.C. 1605A(h)(7), which adopts the definition provided by section 3 of the Torture Victim Protection Act, codified at 28 U.S.C. 1350 note. Section 3 of the Torture Victim Protection Act defined extrajudicial killing as follows: [A] deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation. North Korea routinely detains and executes political prisoners without trial, without offering the accused the opportunity to defend themselves, and without even informing the accuseds family of the alleged crime, the detention, or the execution. Indeed, North Korean official policy appears to be to facilitate the disappearance of its political enemies, which necessitates that information about abduction, imprisonment, and health status (or execution) be kept secret. This Court has found that Reverend Kim was subjected to torture and starvation in such a heinous manner as to bring about his death. The term extrajudicial killing does not imply only formal execution, such as by firing squad or the electric chair. A person is a victim of extrajudicial killing even if the death happens as a result of an indiscriminate terrorist attack. Leibovitch v. Islamic Republic of Iran, 697 F.3d 561, 562, 572 (7th Cir. 2012). Indeed, Chief -61-
Judge Lamberth recently held that all that is required for a death to be an extrajudicial killing for the purposes of the FSIA is a finding that (1) the state sponsor of terrorism (including any official, employee, or agent, 1610A(c), of the foreign state) deliberately killed the victim(s), (2) it did so without convening and relying upon the decision of a regularly constituted court, and (3) it lacked the authority to otherwise authorize the killings. Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52, 74 (D.D.C. 2010). This Court expressly adopts the Valore test and finds that the death of Reverend Kim was an extrajudicial killing. C. Presumption of Killing Pursuant District of Columbia Law The Court found that Reverend Kim died in prison and that North Korea was directly responsible for his death. Even if the Court were unable to make such factual findings, it would be able to reach the same result as a matter of law. District of Columbia statute, codifying the common law, provides that a person who disappears without contact, in a manner that does not suggest he is simply relocating to a new domicile, is presumed dead after seven years. D.C. CODE 19-505, 14-701;3 Jones v. Metropolitan Life Ins. Co., 116 F.2d 555, 555 (D.C. Cir. 1940) (abrogated by D.C. CODE 19-505(5) with regard to presumed date of death); see also Hamilton v. Rathbone, 9 App. D.C. 48, 1896 WL 14763, *4 (D.C. Cir. 1896) (applying the presumption and noting that after seven years, the burden of proof falls on a party seeking to establish that the disappeared is still alive).
D.C. CODE 19-505 provides (in pertinent part, with emphasis added): (4) In the absence of prima facie evidence of death under paragraph (2) or (3) of this subsection, the fact of death may be established by clear and convincing evidence, including circumstantial evidence. (5) If an individual is presumed to be dead under section 14-701, the individuals death is presumed to have occurred at the end of the period unless there is sufficient evidence for determining that death occurred earlier. D.C. CODE 14-701 provides (in full, with emphasis added): If a person leaves his domicile without a known intention of changing it, and does not return or is not heard from for seven years from the time of his so leaving, he shall be presumed to be dead in any case where his death is in question, unless proof is made that he was alive within that time.
3
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Fuller ex rel. Estate of Cornwell v. AFL-CIO, 328 F.3d 672 (D.C. Cir. 2003) indicates that the presumption of death relates only to the fact of death itself. According to Fuller, time of death is a question of fact for which evidence must be produced. This Court finds Fuller distinguished and has questions as to its viability under District of Columbia law. The Court finds Fuller distinguished on the grounds that the failure to provide adequate evidence as to the date of Reverend Kims death (assuming that, as the court argues here in the alternative, there is not adequate evidence to support a finding that Reverend Kim was killed in February 2001) is attributable to the defendants failure to appear and participate in this litigation. Fuller was a fully contested litigation, not a proceeding for default judgment. Where the failure to produce sufficient evidence is attributable to the default of the defendant, and where the law creates an open-ended presumption that is undefined, the plaintiffs are entitled to all reasonable conclusions that flow from that presumption. Given that the law creates a presumption of death, the plaintiffs are entitled (absent evidence to the contrary) to rely on that presumption for the conclusion that Reverend Kim died at the conclusion of the seven-year statutory period. The Court further questions the viability of Fuller under District of Columbia law as it appears that the parties in Fuller and the Court of Appeals did not consider the application of D.C. CODE 19-505(5), which expressly provides that individuals death is presumed to have occurred at the end of the [statutory] period unless there is sufficient evidence for determining that death occurred earlier. In light of that statute, this Court is constrained to find that Reverend Kim is presumed to have died at the end of the seven year period that began on the date of his disappearance. Specifically, Reverend Kim is presumed by law to have died on January 16, 2007.
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Just as plaintiffs are entitled to rely on all reasonable conclusions that flow from the presumption of death as it relates to the time of death, so too are they entitled to rely on all reasonable presumptions as to the manner of death. Reverend Kim was a relatively healthy man who was taken, against his will, to a prison network in which torture and extrajudicial killing are common and under circumstances that lead experts to conclude that Reverend Kim was tortured and killed. Given that the law creates a presumption of death, it also creates under the present circumstances a presumption of death by extrajudicial killing. D. Torture Under the Foreign Sovereign Immunities Act Section 1605A(a) applies in any case in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture. Torture is defined by 28 U.S.C. 1605A(h)(7), which adopts the definition provided by section 3 of the Torture Victim Protection Act, codified at 28 U.S.C. 1350 note. Section 3 of the Torture Victim Protection Act defined torture as follows: (1) the term torture means any act, directed against an individual in the offenders custody or physical control, by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual for such purposes as obtaining from that individual or a third person information or a confession, punishing that individual for an act that individual or a third person has committed or is suspected of having committed, intimidating or coercing that individual or a third person, or for any reason based on discrimination of any kind; and (2) mental pain or suffering refers to prolonged mental harm caused by or resulting from (A) the intentional infliction or threatened infliction of severe physical pain or suffering; (B) the administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality; (C) the threat of imminent death; or (D) the threat that another individual will imminently be subjected to death, severe physical pain or suffering, or the administration or -64-
application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality. The six-year imprisonment of, beating of, and deprivation of food, light, toilet facilities, and medical care to an American professor at a Lebanese university constituted torture for the purposes of the FSIA. Sutherland v. Islamic Republic of Iran, 151 F.Supp.2d 27 (D.D.C.2001). Similarly, depriving a hostage of adequate food, light, toilet facilities, and medical care for 564 days amounts to torture. Jenco v. Islamic Republic of Iran, 154 F.Supp.2d 27 (D.D.C.2001). The Court finds that Reverend Kim was tortured. While the specific acts that the North Koreans inflicted against Reverend Kim are not known to this court, it is known that they resulted in Reverend Kims death. Moreover, the Court has accepted expert testimony that Reverend Kim was highly likely subject to severe beatings in stress positions, near-starvation, and forced physical exertion to the point of absolute physical exhaustion. (Dkt. #50, 9). The Court finds that he was likely subject to other forms of rather cruel torture as well. It is well known that political prisoners are routinely subject to grotesque and horrific treatment, as described in the Findings of Fact. The treatment to which Reverend Kim was undoubtedly subject totreatment that was severe enough to cause his deathis torture by any definition. It is certainly torture for the purposes of the FSIA. See Sutherland, 151 F.Supp.2d 27; Jenco, 154 F.Supp.2d 27. Price v. Socialist Peoples Libyan Arab Jamahiriya, 294 F.3d 82 (D.C. Cir. 2002) is not to the contrary. Price held that mere kicking, clubbing, and beatings, without evidence as to the severity of those beatings, cannot amount to torture for the purposes of the FSIA. Being starved, hung from the ceiling by ones wrists, beaten so badly as to cause permanent damage or death, subject to medical experimentation, exposed to extreme cold, denied medical treatment, held in quarters so small that it is impossible to stand or lie down, forced to stand and sit -65-
repeatedly to the point of complete physical exhaustionall without the prospect of ever being released or being permitted to stand trialis not mere undefined kicking, clubbing, and beatings. It is extreme cruelty and more than exceeds the threshold necessary for torture. Reverend Kim is presumed to have been tortured from the date he was taken from China into North Korea on January 16, 2000 until the date of his death. As noted above, the Court finds that Reverend Kim died as a result of torture and malnutrition in February 2001. Alternatively, Reverend Kims death is presumed to have occurred by operation of law seven years from the date of his disappearance, which was on January 16, 2007. E. The Claimants are Nationals of the United States for the Purposes of this Litigation Plaintiff Yong Seok Kim has provided evidence that he was a U.S. citizen at the time of Reverend Kims abduction. ( Dkt. 28 ). At the time of his fathers abduction, Plaintiff Han Kim was a Permanent Resident having lived in the U.S. since 1992. In 1999, prior to his fathers abduction, he began the application process to become a naturalized American citizen. As he states in his Supplemental Declaration: While I was attending Millikin University in Decatur, Illinois I began the application process to become a naturalized American citizen. Although I do not recall the exact date, I began the application process for United States citizenship sometime in 1999 before my father was abducted. At that time I also became engaged to the American women who would become my wife. It was my intention to become an American citizen, be married here and build our lives together, raising our family and working, in the United States, and that is what I have done. Since my arrival in 1992 I have owed a permanent allegiance to the United States. I became a United States citizen on March 6th 2003. ( Dkt. 31). By becoming a Permanent Resident in the U.S. in 1992, with the intention of remaining in this country and having applied for American citizenship, Han demonstrated that he owed a permanent allegiance to the U.S. An individual deemed to owe a permanent allegiance to the -66-
United States and who actively pursues U.S. citizenship is a national of the United States in satisfaction of 1605A(a)(2)(A)(ii)(I). Saludes v. Republica de Cuba, 577 F.Supp.2d 1243, 1252 (S.D.Fla. 2008). Saludes reasoned as follows: Because Plaintiff Olivia Saludes has resided in the United States since 2000, applied for United States citizenship in June of 2007, and sworn that she has owed allegiance to the United States since 2000, I conclude that Plaintiff Olivia Saludes has demonstrated that she owes permanent allegiance to the United States. As such, Plaintiff Olivia Saludes is currently a national of the United States as defined in section 101(a)(22) of the Immigration and Nationality Act. In addition, based on the length of time that she had resided in the United States, the statements in her affidavit, and her subsequent application for United States citizenship as soon as the seven-year statutory period had been fulfilled, I further conclude that Plaintiff Olivia Saludes was a national of the United States in 2003 at the time of her sons arrest and initial detention. As such, Han satisfies the requirement of being a U.S. national at the time of his fathers abduction. Additionally, Han became a U.S. citizen on March 6, 2003. (Dkt. #27). All events complained of on or after that date plainly fall within the requirements of
1605A(a)(2)(A)(ii)(I). While this Court found that Reverend Kim died prior to that date, would have been compelled to rely on the statutory presumption of deathfinding that Reverend Kims death is presumed to have occurred on January 16, 2007then Han could rely on his citizenship for his claim relating to torture during the intervening period as well as for the killing of Reverend Kim. Nevertheless, as noted, the Court finds Saludes persuasive and relies on it. Both plaintiffs were nationals of the United States, for the purposes of 1605A, when Reverend Kim was abducted. The Kim family has never received any word of Reverend Kims whereabouts and the evidence shows that he was subject to the brutal and inhuman conditions in North Korean prison camps. Thus, plaintiffs loss of consortium and solatium and emotional distress over Reverend -67-
Kims situation, which began in 2000, continues until today. As such, the plaintiffs are entitled to bring this action now for the losses they continue to endure everyday that the DPRK deny them access to information about Reverend Kim or his body. Their ability to bring an action for loss of consortium and solatium would be available to them even if Han would have been barred from bringing actions for torture and extrajudicial killing. As Han has made clear, the loss consortium, solatium and emotional distress he continues to experience today is no less painful than that which was inflicted upon him before 2003. If anything the passage of many years and lack of closure (he has not seen his fathers body nor received official acknowledgement from North Korea that his father was killed) has intensified the pain he endures. F. North Korea is not Immune from this Action Accordingly, the conditions of 1605A have been met, and the Court concludes that defendant is not immune from this action. Because defendant is not immune from this action and service of process has been effected, this Court possesses both subject-matter and personal jurisdiction. See 28 U.S.C. 1330(a) (providing that the district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state...with respect to which the foreign state is not entitled to immunity...under sections 1605-1607 of this title); Texas Trading & Milling Corp. v. Federal Republic of Nigeria, 647 F.2d 300, 308 (2d Cir. 1981) (holding that under the FSIA subject matter jurisdiction plus service of process equals personal jurisdiction).
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FINDINGS REGARDING LIABILITY Section 1605A(c) of the FSIA expressly creates a federal statutory cause of action for plaintiffs in an action brought under 1605A. Because the elements of a claim under 1605A(c) must also be established in order to waive the foreign states immunity and vest the court with subject-matter jurisdiction under 1605A, liability under 1605A(c) will exist whenever the jurisdictional requirements of 1605A are met. See Kilburn v. Islamic Republic of Iran, ___ F. Supp. 2d ___, 2010 WL 1198561 at *19 (D.D.C. 2010) ([T]he 1605A(c) cause of action is fulfilled by demonstrating that the foreign sovereign performed acts described in subsection (a)(1) of 1605A, which addresses immunity and subject matter jurisdiction. Although an analysis of a foreign sovereigns potential immunity and liability should be conducted separately, the elements of immunity and liability under 1605A(c) are essentially the same in that 1605A(a)(1) must be fulfilled to demonstrate that a plaintiff has a cause of action.). See also Gates v. Syrian Arab Republic, 580 F. Supp. 2d 53 (D.D.C. 2008) (same). The individuals who abducted Reverend Kim were officials and agents of the DPRK acting pursuant to its policy and directives. The South Korean Court Decision details how Director Ji, a senior official of the Foreign Affairs Department of the DPRK Security Agency, ordered Liu-Yong Hua to actively assist Song San and Park Kun Chun, other employees of the DPRK security apparatus, to abduct perceived enemies of North Korean and defectors hiding in China and forcefully bring them back to North Korea. The operation targeting Reverend Kim was conducted by these DPRK agents pursuant to Director Jis instruction. It is well established that an employer is subject to liability for torts committed by employees while acting within the scope of their employment. RESTATEMENT (THIRD) OF AGENCY 2.04 (2006). The defendant, -69-
the DPRK, had a clear and actively pursued policy of abducting foreigners it considered to be political threats from across its borders and subjecting them to brutal torture and indefinite imprisonment. Without exception, the families of the abducted were never notified of their kidnapping nor ever received any word of their fate. The testimony of experts Professor Hawk, Mr. Downs, and Mr. Yamamoto makes reference to numerous cases of such abductions being officially ordered by the DPRK and carried out by its agents over many decades. Moreover, the South Korean Court Decision details numerous abductions and attempted abductions carried out by the same DPRK kidnap team operating in China that seized Reverend Kim. It is tragically clear that Reverend Kims kidnapping was but one in a long chain of politically-motivated abductions being carried out by agents of the DPRK to further the regimes barbaric political policy. As such, the DefendantDPRKwas responsible under the doctrine of respondeat superior for the tortuous conduct of its officials and agents when they kidnapped and tortured Reverend Kim pursuant to the DPRKs directives and policy. As courts in similar cases reasoned, These acts, which were intentionally committed by Mr. Levins captors, are attributable to Defendants because Defendants substantially funded and controlled Hizbollah. As such, Defendants are liable under the tort doctrines of respondeat superior . Levin v. Islamic Republic of Iran, 529 F.Supp.2d. 1, 17 (D.D.C. 2007) (citing Jenco, 154 F.Supp.2d at 34). Similarly, Sutherland himself testified as to his repeated rough treatment, of which the most egregious instance seemed to be his beating with a rubber hose. These acts, which were intentionally committed by Sutherlands captors, are attributable to the defendants because the defendants substantially funded and controlled Hizbollah. As such, the defendants are liable
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under the tort doctrines of respondeat superior . Sutherland v. Islamic Republic of Iran, 151 F.Supp. 27, 48 (2001) (internal citations omitted).
COMPENSATORY DAMAGES In actions brought under 1605A, plaintiffs are entitled to economic damages, solatium, pain, and suffering, and punitive damages. 1605A(c). On the question of damages, the Court received affidavit4 testimony from both of the plaintiffs as well as from family member Dani Butler. Quantifying the multiple layers of harm which the plaintiffs suffer is difficult. Indeed, no amount of money can properly compensate the plaintiffs for their tremendous loss, nor can any amount of money restore them to their prior position. As guidance for determining the quantum of damages, the Court is aided by other civil actions under the FSIA involving abduction, torture, and extrajudicial killing. In determining the appropriate amount of compensatory damages, the Court may look to prior decisions awarding damages for pain and suffering, and to those awarding damages for solatium. In addition to providing awards to individuals who have been victims of kidnapping and torture the courts have also made significant awards to plaintiffs who endured the trauma and emotional impact of having a relatives abducted and held under conditions amounting to torture for extended periods of time. The courts have looked at the nature of the relationship between the victim and the family member plaintiff as well as the amount of time that the victim was held in captivity.
4
A plaintiff may establish his or her proof in FSIA default judgment proceedings via affidavit, and live testimony is not required. See e.g. Weinstein v. Islamic Republic of Iran, 175 F. Supp. 2d 13, 17 (D.D.C. 2001); Campuzano v. Islamic Republic of Iran, 281 F. Supp. 2d 258, 268 (D.D.C. 2003); Oveissi v. Islamic Republic of Iran, 498 F .Supp. 2d 268, 272 (D.D.C. 2007); Bennett v. Islamic Republic of Iran, 507 F. Supp. 2d 117, 125 (D.D.C. 2007; Weinstein v. Islamic Republic of Iran, 184 F. Supp. 2d 13, 19 (D.D.C. 2002); Hutira v. Islamic Republic of Iran, 211 F. Supp. 2d 115 (D.D.C. 2002); Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97, 100 (D.D.C. 2000); Intl Road Fedn v. Democratic Republic of the Congo, 131 F. Supp. 2d 248, 252 (D.D.C. 2001); Commercial Bank of Kuwait v. Rafidain Bank, 15 F.3d 238, 242 (2d Cir. 1994).
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In one of the earliest cases brought under the FSIA, Cicippio v. Islamic Republic of Iran, 18 F.Supp.2d 62 (D.D.C. 1998), the court awarded $10,000,000 each to two spouses of victims held hostage and tortured for 63 and 44 months, respectively: Mrs. Cicippio and Mrs. Reed were denied their husbands society and companionship for 63 and 44 months, respectively. They endured those months in great distress, never knowing if their husbands were being tortured or were even still alive. Even today they continue to suffer from the changes that prolonged captivity and abuse produced in their husbands. In short, they have already endured many years of mental anguish that may have exceeded the grief normally experienced as a result of the death of a loved one, and will in all likelihood continue to do so into an uncertain future. Accordingly, Elham Cicippio and Fifi Delati-Reed are awarded damages and shall each have judgment for $10 million. Id. at 69. In Higgins v. Islamic Republic of Iran, 2000 WL 33674311 (D.D.C. 2000) the wife and daughter of an American army officer who was kidnapped and tortured by Hezbullah in Lebanon brought suit against the government of Iran for their damages. The court found that the defendant liable for the solatium and emotional distress the family members had suffered as a result of the kidnapping and torture and subsequent death of their loved one: The court has briefly described her grueling ordeal and its emotional toll on her and the family relationships. Although a strong woman who has moved forward with her life, Robin Higginss grief at the loss of her husband and the knowledge she has concerning his treatment and killing by his captors will always be with her. In support of Christine Higginss claim for solatium, Christine Higgins described her caring relationship with her father, and his pivotal role in her life as parent and advisor. His permanent absence from her life has disrupted her family relationships, and her educational plans. She has been bereft of the guidance he would have provided throughout her life. The emotional damage to her, and the last memories of her father as a captive will have a lasting impact. Therefore, the record at trial supports an award of damages for their pain, mental anguish, and suffering. Id. at 7. The court awarded the wife and daughter $12,000,000 each in compensatory damages. It also gave the plaintiffs an award of $300,000,000 in punitive damages. Id. -72-
In Wyatt v. Syrian Arab Republic, ___ F.Supp.2d ___, 2012 WL 6561469 (D.D.C. 2012), the court awarded a total of $38,000,000 to two kidnapping victims, their wives, and their eight children. The victims were held captive and away from their families for a total of twenty-one days. Id. at *4. With regard to the victims family members, the court wrote the following: The immediate family members of Wyatt and Wilson suffered an unbearable ordeal in which they could only imagine what would be the fate of their loved ones. Indeed, they too are direct victims of terrorism, as the terror they experienced serves also as a means and end of the actions of terrorists carrying out their criminal acts. Id. at *14. In Polhill v. Islamic Republic of Iran, 2001 WL 34157508 (D.D.C. 2001), involving the kidnapping and torture of an American professor by Hezbullah in Lebanon, the court held the government of Iran liable for the damages inflicted upon the victim and his family over his 39 months in captivity. The court awarded the victims wife and children $10,000,000 and $3,250,000 respectively: Ferial, Stephen, and Brian Polhill each testified about the impact of Roberts kidnapping and captivity upon their own lives and the emotional trauma that they suffered with each release of a photograph or information, true or false, about the hostages. Stephen and Brian were both living in the United States when their father was kidnapped, and each learned of the kidnapping from a special news report that interrupted network television coverage of basketball. All three family members testified about the emotional difficulties of coping with the precarious uncertainty of his future and apprehension as to whether they would ever see him again. Plaintiff Ferial Polhill seeks compensatory damages based on causes of action of intentional infliction of emotional distress, and loss of consortium and solatium. Mrs. Polhill is a naturalized U .S. citizen. Plaintiffs Stephen and Brian Polhill each seek compensatory damages for loss of solatium. Employing essentially the same calculus as in Cicippio and Anderson, the Court will award compensatory damages to Ferial Polhill in the amount of $10,000,000 and to Stephen and Brian Polhill in the amount of $3,250,000 each. Id. at *3, *5.
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Additionally, in Surette v. Islamic Republic of Iran, 231 F.Supp.2d 260 (D.D.C. 2002), the court awarded the common law wife and sister of a kidnap and torture victim the sums of $10,000,000 and $2,500,000 respectively: It is apparent from Ms. Surettes account of the intimacy she shared with William Buckley that she suffered a great loss during and after his abduction, torture and death. Based on the evidence before it, the Court finds that Ms. Surette is entitled to recover damages for solatium in the amount of $10,000,000. While no amount of money could ever truly compensate Ms. Survette for the agony she has suffered, the Court finds this to be a fair award, consistent with the relief awarded in similar cases by other judges of this Court. Id. at 271. In Anderson v. Islamic Republic of Iran, 90 F.Supp.2d 107 (D.D.C. 2001), the court awarded $10,000,000 to the wife of a kidnap victim who was held by Hezbullah for 2,454 days in Lebanon. In addition, the court awarded his daughter who had not even been born at the time of the abduction a total of $6,700,000, roughly $1 million for each year that her father was held in captivity: Plaintiff Sulome Anderson, who is the minor daughter of Terry Anderson and Madeleine Bassil, seeks compensatory damages for loss of solatium. Employing essentially the same calculus as it did in Cicippio, supra, the Court will award compensatory damages to Terry Anderson in the amount of $24,540,000; to Madeleine Bassil in the amount of $10,000,000; and to Sulome Anderson in the amount of $6,700,000. Id. at 113. The court in Sutherland v. Islamic Republic of Iran, 151 F.Supp.2d 27 (D.D.C. 2001) utilized the same formula in determining the appropriate the compensatory damages to a spouse, awarding her $10,000,000 for the extensive loneliness, psychological isolation, and anxiety she was subjected to: Like the calculation of Mr. Sutherlands damages, the Courts calculation of Mrs. Sutherlands damages is guided by previous cases dealing with -74-
substantially the same events. In Anderson v. The Islamic Republic of Iran, Terry Andersons wife received $10,000,000, as did the wives of hostages Joseph Cicippio and Frank Reed in Cicippio v. The Islamic Republic of Iran. See Anderson, 90 F.Supp.2d at 113; Cicippio, 18 F.Supp.2d at 70. Further, the Court relies on its analysis of solatium damages in Flatow v. The Islamic Republic of Iran, 999 F.Supp. at 29-32. All of these factors, taken together with Congress tacit approval of previous damage calculations, suggest that Jean Sutherlands demand of $10,000,000 is merited. Id. At 51. Moreover, the court followed the calculation employed by Anderson and when it awarded each of the victims three daughters the sum of $1,000,000, or $6,500,000 individually, for each year their father was held captive: Thomas Sutherlands three daughters seek solatium damages for their six-anda-half years of suffering. Their suffering, which consisted of extensive anxiety, frustration, and loneliness is summarized in the Courts Findings of Facts listed above. Based on this suffering, the Court finds that each daughter is entitled to the amount requested, $6,500,000. Besides being supported by the evidence presented in court, the Courts calculation of damages is consistent with previous awards in substantially similar cases. For instance, in Flatow, the Court awarded $2,500,000 to each of sibling of a bombing victim for the suffering they had undergone. See Flatow, 999 F.Supp. at 32. Similarly, in Anderson, the court awarded Terry Andersons daughter $1 million for each year Anderson was held hostage. Thus, Sulome Anderson was awarded $6,700,000. See Anderson, 90 F.Supp.2d at 114. Like the above damage calculations, these calculations can be considered tacitly approved by Congress in its October 28, 2000 enactment of the Victims of Trafficking and Violence Protection Act of 2000. Id. at 52. In Steen v. Islamic Republic of Iran, 2003 WL 21672820 (D.D.C. 2003), the court awarded $15,000,000 to the spouse of an American professor abducted in Lebanon. The wife was denied the company of her husband for a period of five years. The court enhanced the award from $10,000,000 to $15,000,000 to reflect additional burden that been placed upon her as a result of her husbands physical deterioration:
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For nearly five years, her only news of her husband came through photographs and videotapes released by his captors. She experienced great pain as a result of her separation from her best friend and suffered extreme anguish upon watching the dramatic deterioration of his condition over time. With respect to Virginia Steens claims for solatium, I will again recommend that the court follow the precedent set by other judges of this court who have awarded family members damages based on a showing that the extreme and outrageous conduct inflicted against a loved one also causes severe emotional distress to those close to the victim. See Stethem v. Islamic Republic of Iran, 201 F.Supp.2d at 89; Wagner v. Islamic Republic of Iran, 172 F.Supp.2d 128, 136, n. 11 (D.D.C.2001); Jenco v. Islamic Republic of Iran, 154 F.Supp.2d at 35-36. In this case, the defendants conduct was patently outrageous and the emotional distress caused to Virginia Steen is undeniable. I recommend, therefore, that the court find that Virginia Steen is entitled to damages for solatium. $10 million was awarded to spouses in the Polhill and Turner claims. I recommend that the court enhance that figure to $15 million to compensate Mrs. Steen for the additional burden she bears as a caregiver for her husband in light of his worsening medical condition and in light of the fact that he was held longer than the other hostages. Id. at 5. In Oveissi v. Islamic Republic of Iran, 768 F.Supp.2d 16 (D.D.C. 2011), Chief Judge Lamberth noted that a review of relevant law finds that there are several general principles concerning damages in such cases: First, [f]amilies of victims who have died are typically awarded greater damages than families of victims who remain alive. Second, a critical component in determining the appropriate award is the nature of the relationship between the claimant and the victim. And third, another key factor in calculating damages is the severity and duration of the pain suffered by the family member. Id. at 25-26 (internal citations omitted). Since the abduction of Reverend Kim in January 2000, Kims son Han and brother Yong have suffered greatly from the loss of their loving father and brother. For more than 13 years, Han and Yong and their families have experienced substantial pain and suffering caused by the abduction and torture of Reverend Kim and for many long years not having any information about his precise whereabouts or wellbeing. -76-
A.
Yong Seok Kim Yong is today, and was at the time of his brothers abduction, a citizen of the United
States. He resides in Newark, California. (Dkt. #18, 2). Reverend Kim was Yongs older brother by seven years. As the eldest child, Reverend Kim was like a father figure to Yong. He served as a mentor and role model, not only to the kids in Yongs immediate family but also to their cousins and relatives. Reverend Kim, in turn, felt a tremendous obligation to set a good example and help his relatives find solutions to their problems. (Id. at 9-11). After Reverend Kim married his first wife, Yong maintained his close relationship with his brother. (Id. at 14 ) In fact, in many ways Reverend Kim and his wife played a larger role in Yongs life. His sister-in-law introduced Yong to his spouse. (Id. at 11). Yong stated that Reverend Kim was drawn to the plight of helping North Korean refugees in China as soon as he learned about their needs. The North Korean defectors had managed to escape the DPRK at great risk and little ability to gain any sort of assistance from the Chinese government. Many of them were suffering from malnutrition and carried the baggage of having been tortured by the DPRK regime. (Id. at 15). Yong was devastated when he learned of his brothers abduction. He waited endlessly for news about his brothers welfare, and experienced that having no closure turned him into a nervous person. Yong stated: I could not stop thinking about what had happened. It affected my ability to work at my business. My mind was occupied with my brother and I was unable to focus on my customers. I hardly functioned at all. My family life also suffered. I was very tense and could not find any way to relax. I felt anxious and fearful, had difficulty concentrating, and was very impatient with everyone around me. My life became a nightmare I could not wake up from. There are no words to describe the bottomless feelings of hurt and suffering that envelope one over and over again when a loved one has been kidnapped and one is deprived of any information concerning his fate. -77-
(Id. 19 ).Yongs initial shock eventually turned to despair and depression. (Id. 18). Yong stated: The unrelenting worry and fear over my brothers abduction has caused me to experience a long term sadness and depression. I find that I do not have the energy and zeal for life I once had. Although I can now go for longer periods without thinking about my brother, I find that the heavy thoughts always catch up to me and leave me in pain. The tragic thoughts and consequences of the kidnapping seem to continue along with me over the years and have a gravitational pull that makes it very hard for me to rise above them. I very much long to be carefree and unburdened by all these dark feelings and heavy thoughts. It has been more than ten years that he has been gone and the emotional suffering I experience does not decrease . I lost part of myself when my brother was abducted and taken from me. I lost my brother, my friend, my mentor, my advisor and my role model. Now, I am trying to learn to live all over again. Yet, none of our lives will ever be the same. I know that I will never return to the person I was before the kidnapping. (Id. 28-29). In her affidavit testimony, Dani spoke about her Uncle Yong as being a very important part of what had been a very close family. Yong experienced feelings of helplessness and terror upon learning of his beloved brothers abduction. Dani described her uncle Yongs reaction to his brothers abduction and torture in the following manner: My uncle was very close to my father, who was his older brother. He admired him and looked up to him for support and counsel. Growing up they had been very involved in each others lives. In our many conversations and meetings together, my uncle continuously spoke about my father and his suffering over his loss. He was obsessed with trying to determine what we could do but was unable to find any effective path. My uncle is truly tortured and grief stricken over the abduction of his brother and is unable to come to terms with the horrifying situation that someone he loves so dearly has had inflicted upon him . He is unable to move past this horrifying situation and there can be no closure in this matter. (Dkt. No. 16, 29). As an American citizen, Yong has a direct cause of action under 28 U.S.C. 1605A. Yong unfortunately has suffered in multiple ways from the abduction and torture of his brother. -78-
Yongs family life has been permanently disrupted and his childhood and past relationship with his family has been marred. Yong is therefore entitled to the following award for each of the following claims set forth in plaintiffs Amended Complaint: (1) First claim for relief (for damages under 28 U.S.C 1605A(c)); namely, that the DPRK, through its officials, employees, and agents (a) intentionally ordered, directed and caused the abduction, torture, and extrajudicial killing of Reverend Kim, (b) at all times relevant hereto were officials, employees and agents of DPRK who, within the scope of their office, employment and agency, abducted and tortured Reverend Kim and/or ordered, directed, and caused the abduction and torture of Reverend Kim up to and including the point of his death, (c) defendants treatment of Reverend Kim constituted torture within the meaning of 28 U.S.C. 1605A, (d) defendants purposeful and intentional treatment of Reverent Kim lead directly to his death and thus constitutes extrajudicial killing within the meaning of 28 U.S.C. 1605A, (e) the abduction, torture, and killing of Reverend Kim by defendant caused his brother, plaintiff Yong, severe harm, including the loss of his brothers society, companionship, comfort, advice and counsel and severe mental anguish, extreme emotional distress and solatium damages, (f) the defendant caused Reverend Kim to disappear and refuses to provide to the plaintiffs information about Reverend Kims death or status, thus purposefully inflicting prolonged emotional distress on the plaintiffs and denying them any sort of closure, (g) the defendant is therefore liable under 28 U.S.C. 1605A(c) for the full amount of plaintiffs damages, and (h) defendants conduct was criminal in nature, outrageous, extreme, wanton, willful, malicious, and constitutes a threat to the public warranting an award of punitive damages under 28 U.S.C. 1605A(c).
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(2) Second claim for relief; namely, that (a) defendants behavior was willful, outrageous, egregious, and dangerous to human life, and violates applicable criminal law, all international standards of civilized human conduct and common decency, (b) defendant illegally abducted, tortured, and killed Reverend Kim and in doing so intentionally or negligently terrorized the plaintiffs and caused them severe emotional distress, (c) defendant caused Reverend Kim to disappear and refuses to provide to the plaintiffs information about Reverend Kims death or status, thus purposefully inflicting prolonged emotional distress on the plaintiffs and denying them any sort of closure, (d) the emotional distress imposed on the plaintiffs has significantly impacted their personal and professional lives and will likely continue to do so into the future, and (e) defendants conduct was outrageous in the extreme, wanton, willful, and malicious, and constituted a threat to the public at large warranting an award of punitive damages. (3) Third claim for relief; namely, that (a) at all relevant times, plaintiff Yong was the brother of Reverend Kim, (b) as a result of the abduction, torture, and killing of Reverend Kim by the defendant, Yong was deprived of the services, society and solatium of his brother and suffered severe mental anguish, bereavement, and grief, and injury to their feelings, and (c) defendants conduct was outrageous in the extreme, wanton, willful and malicious, and constitutes a threat to the public at large. Plaintiffs are therefore entitled to an award of punitive damages against defendant in an amount to be determined at trial. The analysis detailed above regarding awards to direct torture and extrajudicial killing victims and relatives of victims applies to Yong. Like the rest of his family, Yong has been harmed on multiple levels by the abduction, torture, and killing of his dear brother. Yong lost a loving and devoted brother, witnessed his step-sister-in-law become permanently depressed and disabled, suffers the trauma of the DPRKs abduction, torture, and killing of his brother, and -80-
endures the daily disruption to his family life and his relationship with his family. In light of the exceptionally close bond that Yong had with Reverend Kim, the fact that Reverend Kim served as a father to Yong for so many years, and that Yongs suffering has been and continues to be exacerbated by the fact that the DPRK refuses to inform Yong of Reverend Kims status, thus denying to him any closure, Yong is awarded $10,000,000. Defendant is liable for the full amount of Yongs damages. B. Han Kim Han is today a citizen of the United States and resides in St. Charles, Missouri. (Dkt. No. 17, 3,4 ) Han has fond memories of his father and of his childhood growing up in Seoul. He recalls his family as being very close-knit and his parents as deeply religious. Much of the familys time revolved around church events and Reverend Kims congregations, though Han states that his father was also very much a family man and that both of his parents worked tirelessly to ensure that he and his sister were well cared for. (Id. at 6). When Han was in fourth grade, his mother was tragically killed in a car accident. Han, his sister and his father were devastated by this loss, but Reverend Kim worked very hard to keep the family strong and teach Han and his sister that their lives should continue on as normal. Han felt that his family grew even stronger out of this tragedy and that he and his sister were reassured by their fathers strength and determination. (Id. at 11). During this time Reverend Kim adopted five children who needed a family. Han describes his father as a compassionate and selfless man. (Id.) In 1989 Reverend Kim remarried, and Han considered his stepmother to be a close member of his family who helped to care for and raise him. When Han was 16, Hans stepmother took him to the United States to live while she took a course in missionary work. (Id. at 14 ). Reverend Kim was away in China -81-
doing missionary work at this time. Reverend Kim once commented to Han that he felt that assisting North Korean refugees was his true calling in life. Han could hear in his voice that he truly loved helping unfortunate people and that this was his purpose on Earth. This belief made a very deep impression on Han. (Id. at 22). Han stated in his affidavit that his father was transformed from a community preacher to a human rights activist after working in China as a volunteer at the 1988 Special Olympics. Seeing firsthand how pitiful conditions were in China, Reverend Kim arranged for donations of medical supplies for disabled Chinese citizens. (Id. at 19). Through his work in China, Reverend Kim learned of the horrifying plight of North Korean refugees fleeing the starvation, oppression, and inhumanity of the totalitarian DPRK regime. A few days after Reverend Kims abduction on January 16, 2000, Han learned of his fathers fate from his sister Dani who had been contacted by one of their adopted brothers, Tae Ha Kim, who had been working in China alongside their father. Dani told Han that the Chinese police were investigating but that there was nothing they could do as non-Chinese citizens to assist the investigation. (Id. at 24 ). The time following his fathers abduction was particularly painful and frustrating for Han. He could not sleep and could not stop thinking about what had happened to his father. Han and his family felt helpless; they did not know whom to contact, what could be done or what role they could play in helping to relocate Reverend Kim. (Id. at 27). Waiting each day with no news was especially agonizing and debilitating. (Id.) Han prayed frequently for his fathers safety and quick return, but the days turned into months and then years, with no verifiable news about the welfare or whereabouts of his father. (Id. at 29). Han was seized by anguished thoughts that his father was being tortured by brutal agents of a ruthless regime. And his suffering and grief was compounded by not having any closure, and -82-
thus not being able to come to terms with his fathers death and experiencing strong feelings of guilt that perhaps he could have helped his father avoid this fate in some way. (Id. at 30). Han expressed in his affidavit testimony that he feels cheatedrobbed of his father at a time in his life when he needed his guidance desperately. Han never had the chance to discuss weighty life-changing issuesfrom selecting a career, choosing a spouse and building a familywith his father. (Id. at 40 ) Hans stepmother, Young Hwa Kim (Young Hwa), was dramatically affected by her husbands abduction. For many months and even years after his disappearance, she could talk of nothing else. Han said that it was almost impossible to speak with her because she became solely focused on this issue and could converse about nothing else. (Id. at 34). Eventually, Young Hwa suffered a devastating mental breakdown, and today she cannot discuss the topic of her husband without suffering severe emotional trauma. (Id.) The abduction of Reverend Kim truly broke Young Hwa and deprived her of the opportunity to live a normal, healthy life. Her life, in a sense, ceased the day that Reverend Kim was abducted. (Id. ) Han stated that the loss of his stepmothers companionship was yet another difficult loss he suffered because of the DPRK. (Id.) And not only Han and his step-mother suffered, but the entire family lost their leader the person everyone would come to for advice or a kind word. The family has become shattered as its foundation has been ripped away. (Id. at 36). To this day, Han cannot discuss his fathers fate without great difficulty. And one can see in his words a profound confusion: I feel like individuals or a government that I never had any contact with, and never wronged in any way, have waged a war against my family and grievously harmed us. I cannot comprehend the motivation or hatred that triggered his
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disappearance. I am unable to fathom the cruelty of depriving us of the most basic human consideration for so many years. (Id. at 38). Holidays seasons, when the Kim family always used to be together, are especially hard for Han and his family. Even on the birthdays of Hans children (whom Reverend Kim never had the opportunity to meet), Hans thoughts linger on the void left by his fathers absence. (Id. at 39). Han is now married and has two daughters, neither of whom have ever met their grandfather nor shared his warmth and love. That they likely never will pains Han greatly. Han is also saddened that his wife was never able to meet his father. Family is such an important value in his culture, and Han is deeply saddened that those closest to him never will have the benefit of experiencing his fathers love. (Id. at 45). Han stated that he feels his fathers absence every day of his life and that losing him caused Han to feel as if a vital part of his body had been cut off. Han expressed that losing his father, with whom he was so close, and not knowing his fate is not something that time can heal; rather, it is an open would that continues to bleed and cause pain without rest. (Id. at 44). As Han states: I miss my father and feel his absence every day of my life. Losing him causes me to feel as if a vital part of my body has been cut off. I experience his absence and his memory every day, in everything I do. Losing a loved one and not knowing his fate is not something that time can ever heal; it is an open wound that bleeds and continues to hurt without rest. (Id.) Hans sister, Dani Butler (Dani) is not a plaintiff in the action, but she nonetheless provided affidavit testimony regarding the effects that the abduction, torture, and killing of her father had on her brother. Dani stated: -84-
My fathers abduction has impacted upon my brother very powerfully. I know that he and my father were very close and this was an extremely tragic blow. My brother could not understand how someone whom he loved and relied upon so much could have been taken from him in this manner. He feels extremely frustrated over his inability to somehow act on my fathers behalf and it creates in him a feeling of helplessness. Throughout the long years following my fathers abduction my brother has had difficulty believe [sic] that this was happening to our family and could not come to terms with the terrifying situation. He is in enormous pain and feels like there is a hole in his life. His life has not returned to normal despite the passage of time. Whenever I speak with him or when we get together I can feel the anguish he is in over the loss of my father. This is a terrible grief that he will carry with him forever. (Dkt. #16, 28). Both as an American national at the time of abduction and since 2003 as an American citizen, Han has a direct cause of action under 18 U.S.C. 1605A. He has unfortunately suffered in many ways as a result of the abduction, torture, and killing of his father. Hans family life has been permanently disrupted and her childhood and past relationship with his family has been marred. Han is therefore entitled to the following award for each of the following claims set forth in plaintiffs Complaint: (1) First claim for relief (for damages under 28 U.S.C 1605A(c)); namely, that the DPRK, through its officials, employees, and agents (a) intentionally ordered, directed, and caused the abduction, torture, and extrajudicial killing of Reverend Kim, (b) at all times relevant hereto were officials, employees and agents of DPRK who, within the scope of their office, employment, and agency, abducted and tortured Reverend Kim and/or ordered, directed, and caused the abduction and torture of Reverend Kim up to and including the point of his death, (c) defendants treatment of Reverend Kim constituted torture within the meaning of 28 U.S.C. 1605A, (d) defendants purposeful and intentional treatment of Reverent Kim lead directly to his death and thus constitutes extrajudicial killing within the meaning of 28 U.S.C. 1605A, -85-
(e) the abduction, torture, and killing of Reverend Kim by defendant caused his son, plaintiff Han, severe harm, including the loss of his fathers society, companionship, comfort, advice and counsel and severe mental anguish, extreme emotional distress and solatium damages, (f) the defendant caused Reverend Kim to disappear and refuses to provide to the plaintiffs information about Reverend Kims death or status, thus purposefully inflicting prolonged emotional distress on the plaintiffs and denying them any sort of closure, (g) the defendant is therefore liable under 28 U.S.C. 1605A(c) for the full amount of plaintiffs damages, and (h) defendants conduct was criminal in nature, outrageous, extreme, wanton, willful, malicious, and constitutes a threat to the public warranting an award of punitive damages under 28 U.S.C. 1605A(c). (2) Second claim for relief; namely, that (a) defendants behavior was willful, outrageous, egregious, and dangerous to human life, and violates applicable criminal law, all international standards of civilized human conduct and common decency, (b) defendant illegally abducted, tortured, and killed Reverend Kim and in doing so intentionally or negligently terrorized the plaintiffs and caused them severe emotional distress, (c) defendant caused Reverend Kim to disappear and refuses to provide to the plaintiffs information about Reverend Kims death or status, thus purposefully inflicting prolonged emotional distress on the plaintiffs and denying them any sort of closure, (d) the emotional distress imposed on the plaintiffs has significantly impacted their personal and professional lives and will likely continue to do so into the future, and (e) defendants conduct was outrageous in the extreme, wanton, willful, and malicious, and constituted a threat to the public at large warranting an award of punitive damages. (3) Third claim for relief; namely, that (a) at all relevant times, plaintiffs Han was the son of Reverend Kim, (b) as a result of the abduction, torture, and killing of Reverend Kim by the -86-
defendant, Han was deprived of the services, society and solatium of his father and suffered severe mental anguish, bereavement, and grief, and injury to their feelings, and (c) defendants conduct was outrageous in the extreme, wanton, willful and malicious, and constitutes a threat to the public at large. Plaintiffs are therefore entitled to an award of punitive damages against defendant in an amount to be determined at trial. The analysis detailed above regarding awards to direct terror and extrajudicial killing victims and relatives of victims applies to Han. Like the rest of his family, Han has been harmed on multiple levels by the abduction, torture, and killing of his dear father. Han lost his only living parent, his loving and devoted father, witnessed his step-motherthe only surrogate parent that he has leftbecome permanently depressed and disabled and unable to serve as his mother, lost the confidant and advisor that he so desperately needed during the formative years of his life, suffers the trauma of the DPRKs abduction, torture, and killing of his father, and endures the daily disruption to his family life and his relationship with his family. In light of the exceptionally close bond that Han had with his father and the tremendous personal loss and disruption that Han suffered when the DPRK took his only parent and effectively deprived him of the services of his step-mother, and that Hans suffering has been and continues to be exacerbated by the fact that the DPRK refuses to inform Han of Reverend Kims status, thus denying to him any closure, Han is awarded $15,000,000. Defendant is liable for the full amount of Hans damages.
PUNITIVE DAMAGES In numerous previous civil cases tried under FSIA, federal courts have awarded punitive damages in order to punish a defendant, and as a means of deterring future abduction and torture -87-
acts. In many of the proceedings the courts have imposed punitive damage of three times of a state sponsors annual budget for the financial assistance it provides to the organization or instrumentality that carried out the barbaric act. Acosta v. The Islamic Republic of Iran, 574 F. Supp. 2d 15, 31 (D.D.C. 2008), Bodoff v. Islamic Republic of Iran, 424 F. Supp. 2d 74, 89 (D.D.C. 2006); Stern v. Islamic Republic of Iran, 271 F. Supp. 2d 286, 301 (D.D.C. 2003); Cronin v. Islamic Republic of Iran, 238 F. Supp. 2d 222, 235-36 (D.D.C. 2002), abrogated on other grounds by Cicippio-Puleo v. Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004); Eisenfeld v. Islamic Republic of Iran, 172 F. Supp. 2d 1, 9 (D.D.C. 2000). The DPRKs demonstrated and well-known policy to encourage, support and direct a campaign of abductions and torture against civilians amply justifies the imposition of punitive damages against it. Neither North Koreas budget for its intelligence services nor for its program to abduct foreigners and defectors and imprison them in the kwan-li-so penal camps is known. However, this Court will adopt the same punitive damages award of $300 million given against the DPRK in the recent case of Calderon-Cardona v. Democratic People's Republic of Korea, 723 F.Supp.2d 441 (D.P.R. 2010). Accordingly, the Court will award punitive damages against the defendant in the amount of $300 million to plaintiffs collectively.
CONCLUSION This Court possesses subject matter jurisdiction over this action and personal jurisdiction over defendant. Plaintiffs have established to this Courts satisfaction, pursuant to 28 U.S.C. 1608(e), and by clear and convincing evidence, that defendant is liable for all damages awarded by this Court for its abduction of Reverend Kim on January 16, 2000 and the brutal -88-
torture and killing that it inflicted upon him as well as for the emotional damages that DPRK continues to inflict upon the plaintiffs until today. Accordingly, plaintiffs motion for default judgment shall be granted and judgment shall be entered in the amounts described above.
SO ORDERED
___________________________________ U.S.D.J. date 333 Constitution Ave NW # 6822 Washington D.C., DC 20001-2858 (202) 354-3000 Attorneys for the Plaintiffs NITSANA DARSHAN-LEITNER & CO. Nitsana Darshan-Leitner International co-counsel 10 Hataas Street Ramat Gan, 52512 Israel THE BERKMAN LAW OFFICE, LLC Counsel for Plaintiffs 111 Livingston Street, Suite 1928 Brooklyn, New York 11201 (718) 855-3627 Fax: (718) 504-4943 By: Robert J. Tolchin (D.C. Bar #NY0088) Meir Katz Pro hac vice (pending) (D.C. Bar # 995431)
-89-

Kim v. North Korea - Findings of Fact Submitted

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Case 1:09-cv-00648-RWR Document 52 Filed 02/01/13 Page 1 of 92

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

(REVISED) PROPOSED FINDINGS OF FACTS AND CONCLUSIONS OF LAW

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The Seoul Joong Ang Ji Bang Court, Criminal Part 23.

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ten days and required hospitalization.

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STATE, COUNTRY REPORT

HUMAN RIGHTS 2002

STATE, COUNTRY REPORT

HUMAN RIGHTS 2009

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