Torture Memo: D.C. Court Finds Sufficient Evidence to Support FSIA "Terrorism Exception" in North Korea Case

The Foreign Sovereign Immunities Act (FSIA) provides that

Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in sections 1605 to 1607 of this chapter.

That said, FSIA contains a "terrorism exception," which negates immunity in cases involving acts such as state-sponsored torture and extrajudicial killing. In Han Kim v. Democratic People's Republic of Korea, 2014 WL 7269560 (D.C. Cir. 2014), "the family of Reverend Dong Shik Kim sued the North Korean government alleging that it abducted him, confined him to a kwan-li-so—a political penal-labor colony—tortured him, and, ultimately, killed him." When North Korea failed to appear, the Kims asked for a default judgment because they had presented sufficient evidence that the "terrorism exception" applied. The district court denied the motion "because the Kims had failed to produce 'first-hand evidence' of what happened to the Reverend." What happened on appeal?

The United States Court of Appeals for the District of Columbia reversed, finding that the Kims has presented sufficient evidence to trigger the "terrorism exception." Specifically, the court focused on two rules of evidence. The first Rule was Federal Rule of Evidence 201(b), which states that

The court may judicially notice a fact that is not subject to reasonable dispute because it:

(1) is generally known within the trial court’s territorial jurisdiction; or

(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

Like the district court, the appellate court used Federal Rule of Evidence 201(b) to take judicial notice of the fact that "[a] South Korean court convicted a DPRK intelligence agent for planning and executing th[e] kidnapping" of Reverend Kim. So, why didn't the district court find that this alone was enough to trigger the terrorism exception? Consider this language from Valore v. Islamic Republic of Iran, 700 F.Supp.2d 52 (D.D.C. 2010):

This District has followed a similar approach in FSIA cases: judicial notice of truth of findings and conclusions is not prohibited per se, but is inappropriate absent some particular indicia of indisputability. Here, there are no such indicia. With "defendants having failed to enter an appearance," Peterson was decided without the full benefits of adversarial litigation, and its findings thus lack the absolute certainty with which they might otherwise be afforded....Just as "findings of fact made during this type of one-sided hearing should not be given a preclusive effect,"...they also should not be assumed true beyond reasonable dispute. Moreover, because "default judgments under the FSIA require additional findings than in the case of ordinary default judgments,"...the court should endeavor to make such additional findings in each case.

So, what "additional findings" did the appellate court make in Han Kim? According to the court,

Two experts...—just the kind of experts whose testimony we have credited in FSIA default actions, see Kilburn v. Socialist People's Libyan Arab Jamahiriya, 376 F.3d 1123, 1131–32 (D.C.Cir.2004), and whose testimony is doubtless admissible, see Fed.R.Evid. 702—reported that victims of forced disappearance in North Korea usually suffer torture and that Reverend Kim's political and religious activities made him an especially likely target.

According to the court, this testimony by Professor David Hawk and Ernest Downs, was sufficient to prove (1) torture, i.e., that the defendant was targeted; and (2) an extrajudicial killing without due process. As a result, the court found that the "terrorism exception" applied and thus reversed and remanded to the district court for entry of a default judgment on the Kims' behalf.

-CM