UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

______________________________

)

HAN KIM, et al., )

)

Plaintiffs, )

)

v. ) Civil Action No. 09-648 (RWR)

)

DEMOCRATIC PEOPLE’S REPUBLIC )

of KOREA, et al., )

)

Defendants. )

______________________________)

MEMORANDUM ORDER

Plaintiffs Han Kim and Yong Seok Kim bring this civil action

under the terrorism exception of the Foreign Sovereign Immunities

Act (“FSIA”), 28 U.S.C. § 1605A, seeking damages against

officials, employees and agents of defendant Democratic People’s

Republic of Korea (“DPRK”) in connection with the January 16,

2000 abduction of Reverend Kim Dong Shik (“Reverend Kim”), who is

Han’s father and Yong’s brother. The plaintiffs allege that

following his abduction, Reverend Kim was forcibly transferred to

North Korea where he was repeatedly tortured by officials,

employees and agents of DPRK. 

As a jurisdictional statute, the FSIA permits courts to

enter judgments of liability against foreign states only where a

plaintiff produces satisfactory evidence that a foreign state’s

conduct falls within one of the enumerated exceptions to

sovereign immunity. 28 U.S.C. § 1605A(a)(1). Plaintiffs rely on

the exception for torture, arguing that “[t]he evidence submitted
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demonstrates that it is far more likely than not that Reverend

Kim suffered and continues to suffer the torture and brutal

conditions meted out to all ‘enemies’ of the DPRK unfortunate

enough to fall into the hands of the DPRK’s security services.” 

(Pls.’ Proposed Findings of Fact and Conclusions of Law at 42.) 

Although plaintiffs proffer no direct evidence of torture, their

expert testimony and circumstantial evidence purport to establish

plaintiffs’ entitlement to relief.

In Price v. Socialist People’s Libyan Arab Jamahiriya, 294

F.3d 82 (D.C. Cir. 2002), the D.C. Circuit, considering the

sufficiency of allegations of torture on a motion to dismiss,

emphasized the high standard that the statutory definition of

torture imposes.1

 The court reasoned that under the statutory

definition, “torture does not automatically result whenever

individuals in official custody are subjected even to direct

physical assault.” Id. at 93. Rather, “[t]he critical issue is

the degree of pain and suffering that the alleged torturer

1 The FSIA adopts the definition of torture contained in

section 3 of the Torture Victim Protection Act, namely “any act,

directed against an individual in the offender’s 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.” 

28 U.S.C. § 1605A(h)(7) (citing 28 U.S.C. § 1350 note).
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intended to, and actually did, inflict upon the victim. The more

intense, lasting, or heinous the agony, the more likely it is to

be torture.” Id. In light of this understanding, the court

found insufficient allegations that plaintiffs were held for

approximately three months in a political prison where they

allegedly “endured deplorable conditions while incarcerated,

including urine-soaked mattresses, a cramped cell with

substandard plumbing that they were forced to share with seven

other inmates, a lack of medical care, and inadequate food,” and

further “were kicked, clubbed and beaten by prison guards, and

interrogated and subjected to physical, mental and verbal abuse.” 

Id. at 86 (internal quotations omitted). The court found that

the “plaintiffs’ complaint offer[ed] no useful details about the

nature of the kicking, clubbing, and beatings that plaintiffs

allegedly suffered,” and “[a]s a result, there [was] no way to

determine from the present complaint the severity of plaintiffs’

alleged beatings -- including their frequency, duration, the

parts of the body at which they were aimed, and the weapons used

to carry them out -- in order to ensure that they satisfy the

TVPA’s rigorous definition of torture.” Id. at 93; see also

Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326 F.3d

230 (D.C. Cir. 2003) (finding allegations of forcibly removing

passenger from ship, holding her incommunicado, and threatening

her with death did not constitute torture under FSIA).
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The expert affidavits and accompanying material upon which

the plaintiffs here rely refer to a wide variety of abuses to

which people held in North Korean prison camps are subjected. 

For plaintiffs to establish their claim for a default judgment

against a foreign state “by evidence [that is] satisfactory to

the court[,]” 28 U.S.C. § 1608(e), the showing must satisfy the

strict standards articulated in Price regarding useful details

about the torture that Reverend Kim allegedly suffered and the

severity of it. In order to facilitate the jurisdictional

inquiry into whether the plaintiffs’ evidence “satisf[ies] the

TVPA’s rigorous definition of torture,” Price, 294 F.3d at 93,

the plaintiffs will be directed to supplement their proposed

findings of fact and conclusions of law. Accordingly, it is

hereby

ORDERED that the plaintiffs file by October 1, 2012 a

supplement providing further evidentiary support for their

allegation of torture.

SIGNED this 17th day of August, 2012.

 /s/ 

RICHARD W. ROBERTS

United States District Judge