Torture Burden Dooms Case Against North Korea
(CN) - The family of a missionary whom North Korea had abducted and likely killed cannot sustain a lawsuit without proof of torture, a federal judge in Washington ruled.
North Korean agents kidnapped the Rev. Kim Dong Shik from China in 2000 and took him to a prison camp in the totalitarian state where Kim was allegedly starved and tortured him to death within a year.
Kim had moved to China to help refugees from North Korea. He also ran a program called The School of Love for North Korean children and disabled people in the Chinese town of Yanji. This presumably attracted the attention of North Korean agents who were on the lookout for defectors and those who assisted them.
Kim's son, Han Kim, and his brother, Yong Seok Kim, sued the Democratic People's Republic of Korea under the terrorism exception of the Foreign Sovereign Immunities Act in 2009.
As evidence, they pointed to the 2005 conviction of a North Korean agent who was convicted of various crimes in South Korea, including the kidnapping of Rev. Kim.
Torture is an exception to the sovereign immunity that a foreign state usually enjoys, and the Kims moved for default judgment when North Korea failed to answer or otherwise respond to the complaint.
U.S. District Judge Richard Roberts concluded Friday, however, that the Foreign Sovereign Immunities Act "precludes jurisdiction over this action against a foreign sovereign for conduct not shown by satisfactory evidence to meet the high standard set for proof of torture."
Roberts nevertheless certified the case for an interim appeal.
Citing a 2002 case involving Libya, Roberts said the standard for torture is a high one, including "unusually cruel practices, for example, sustained systematic beating, application of electric currents to sensitive parts of the body, and tying up or hanging in positions that cause extreme pain."
Even "police brutality" is not severe enough to qualify as torture, according to the Libya case, Price v. Socialist People's Libyan Arab Jamahiraya.
Despite a State Department report that North Korea used several forms of torture, including pumping water into the prisoner's body with a rubber hose, the Kims' case lacks details that make it clear that he had been tortured.
"The State Department cable and reports do not provide any first-hand accounts of Rev. Kim's treatment, or address the nature and severity of any torture Rev. Kim suffered, or specify the frequency or duration of the acts of torture or the parts of the body at which they were aimed or the weapons used to carry them out," Roberts wrote.