Plaintiff Cannot Prove ‘Torture’ Under the Terrorism Exception to the Foreign Sovereign Immunities Act Without Direct Evidence

In Han Kim v. Democratic People's Republic of Korea, 950 F.Supp.2d 29 (2013), the D.C. district court clarified a plaintiff’s evidentiary burden to establish ‘torture’ under the terrorism exception of the Foreign Sovereign Immunities Act. 28 U.S.C. § 1604.The FSIA grants immunity to foreign states from proceedings in U.S. courts. One exception to a foreign state’s immunity is known as the ‘terrorism exception,’ and applies to a case, “...in which money damages are sought against a foreign state for personal injury or death that was caused by … an act of torture.” 28 U.S.C. § 1605A(a)(1). If the foreign state has been designated as a state sponsor of terrorism, the injured party was a U.S. national at the time of the incident and the foreign state has had an opportunity to arbitrate the claim, then § 1605A(c) provides a private right of action for U.S. citizens against a foreign state for such acts committed by foreign state agents acting within the scope of their employment.Plaintiffs Han Kim and Yong Seok Kim brought this default judgment under the terrorism exception to the FSIA against the People’s Democratic Republic of Korea. Plaintiffs allege that in 2000 the DPRK abducted their family member, Reverend Kim Dong Shik, who was working as a missionary in China at the time, and further allege that agents of the DPRK have continuously tortured Reverend Kim during his confinement.To confer FSIA jurisdiction through the terrorism exception the plaintiff’s allegations of ‘torture’ must meet a threshold level of ‘severity’. In particular, the ‘severity’ standard entails subjecting a victim to outrageous physical or mental suffering that goes beyond direct, physical assaults. The crucial issue is the degree of pain and suffering that the victim actually experiences. To succeed on a default judgment under § 1605A(c), the plaintiff must establish a right to a claim based on evidence that satisfies the court. 28 U.S.C. § 1608(e). Although the D.C. Circuit has never defined what quantum of evidence is ‘satisfactory’ to a court, lower courts have analogized the FSIA default standard to the standard for judgment as a matter of law. In other words, the plaintiff must allege a legally sufficient prima facie case so that a reasonable jury could find for the plaintiff.Thus, the issue before the court was whether or not FSIA subject matter jurisdiction applied based on the plaintiffs’ evidence of Reverend Kim’s torture.Plaintiffs submitted a plethora of material that included book excerpts, congressional resolutions, press materials, expert opinions and reports from the United Nations, Human Rights Watch and the U.S. State Department as well as first hand accounts from former DPRK prisoners, all conclusively identifying systematic torture practices routinely inflicted upon DPRK inmates. Such practices included beatings, stress positions, starvation and even rape.While the overwhelming weight of the evidence indicated that DPRK prisoners are subjected to torture on a routine basis, none of the evidence established a first hand account of

the severity, frequency or the specific type of torture actually imposed on Reverend Kim. For this reason the D.C. circuit court held that the plaintiffs failed to satisfy their ‘exacting’ burden of proving ‘torture’ under the FSIA, and therefore the court did not have FSIA jurisdiction. Despite the decision, the district court certified the case for interlocutory appeal under 28 U.S.C. § 1292(a), noting that there was a substantial ground for differing opinions on the issue of whether or not plaintiffs had met their evidentiary burden under the circumstances.