This page is also available in: עברית (Hebrew)
December 24, 2014 – Shurat Hadin – Israel Law Center late on Tuesday convinced a US federal appeals court to grant it a default judgment against North Korea in a civil damages trial for wrongful death, torture and kidnapping.
The ruling by the US Appeals Court for the District of Columbia, written by Judge David S. Tatel, reversed a district court ruling that had dismissed the case, despite North Korea failing to defend itself, on the grounds that the plaintiffs had failed to present any direct evidence of what happened to Reverend Dong Shik Kim, presumed dead.
The district court expressed regret to the family, represented by Shurat Hadin, Robert Tolchin and Asher Perlin, about the dismissal and noted that North Korea is notorious for exactly the kind of kidnapping, torture and killing of prisoners like Kim, which Kim’s family has accused it of.
The district court, however, had said that the North has successfully prevented any hard details from leaking out regarding Kim’s plight and that all of the evidence presented was hearsay and second hand, including a South Korean court ruling on the issue.
In contrast, the appeals court said that in such extreme circumstances where it is proven that Pyongyang kidnapped Kim, where there is a wealth of information about it torturing and killing prisoners, where it systematically prevents direct evidence from emerging and where the North has not at all countered the plaintiffs’ claims, failing to rule against it would be like sticking one’s head in the sand.
It would also “defeat the purpose of the terrorism exception,” namely holding “state sponsors of terrorism accountable,” said the court.
The ruling is also significant because it allows a case to go forward based on the “terrorism exception” to the US Foreign Sovereign Immunities Act, which thereby broadens the paths and precedents open to suing foreign nations for terrorist acts.
Absent such an exceptional, the general rule in the US goes against suing foreign nations.
Kim, a South Korean who was a permanent resident of the US and had spent seven years providing aid and proselytizing to North Korean defectors who tried to escape to China, was abducted in 2000.
In 2005, a South Korean court convicted an ethnic Korean of Kim’s abduction in concert with North Korean intelligence.
Shurat Hadin Director Nitzana Darshan-Leitner said, “The district court was holding us to a standard that no family who had a loved one kidnapped and murdered by an outlaw regime like North Korea could ever satisfy.
“Virtually no one has ever returned from the camps and been able to testify about the fate of individual Korean prisoners. This is an important human rights decision that will be utilized in all political abduction cases going forward.
We are proud that an Israeli NGO was able to assist this family of a Koran priest living in the US… during this holiday season,” Darshan-Leitner said.
The NGO also said that the US should add North Korea to the State Department’s watch list, from which it was removed in 2008 during a period of warming of relations.
Perlin said the court “sent a message that repressive regimes cannot exploit their repression to gain advantage in US courts.”
He added that “the fact that all witnesses were either murdered, imprisoned or are in grave fear of retaliation by the DPRK regime should not immunize North Korea from liability.”