(CN) - No first-hand evidence is necessary to satisfy the D.C. Circuit that North Korea abducted, tortured and killed a man who assisted North Korean defectors.
In 2000, North Korean operatives abducted the Reverend Dong Shik Kim, a U.S. permanent resident who spent nearly a decade providing humanitarian and religious services to North Korean defectors who escaped to China.
It is unclear what happened to Kim, who was abducted on a visit to northeastern China, but his family claims that he was sent to a penal labor colony, tortured, and ultimately killed.
His family sued North Korea in federal court, arguing that the "terrorism exception" should strip the pariah state of sovereign immunity over its treatment of Kim.
When North Korea failed to appear, the family sought a default judgment, but a federal judge denied the motion, because there is no "first-hand evidence" of what happened to Kim.
But the D.C. Circuit reversed the ruling, and said that North Korea's known history of torture and executing its political enemies constituted enough proof that it likely did the same to Kim.
"Admissible record evidence demonstrates that North Korea abducted Reverend Kim, that it invariably tortures and kills political prisoners, and that through terror and intimidation it prevents any information about those crimes from escaping to the outside world," Judge David Tatel said, writing for the three-judge panel. "Requiring a plaintiff to produce direct, first- hand evidence of the victim's torture and murder would thus thwart the purpose of the terrorism exception: holding state sponsors of terrorism accountable for torture and extrajudicial killing."
The court noted that North Korea was one of the nations that motivated Congress to adopt the terrorism exception in the Foreign Sovereign Immunities Act in the first place.
"Were we to demand more of plaintiffs like the Kims, few suits like this could ever proceed, and state sponsors of terrorism could effectively immunize themselves by killing their victims, intimidating witnesses, and refusing to appear in court," Tatel said.
Ernest Downs, a former Defense Department official and member of the board of the U.S. Committee for Human Rights in North Korea, testified on the family's behalf, and told the court that he does not know of any case in which a former prisoner of North Korea was not tortured.
Downs testified that common torture methods include forcing the prisoner to kneel motionless for hours on end, water torture, and "pigeon torture," with entails pinning a prisoner's arms behind the back and attached to cell bars so that he cannot either stand up or sit down.
"Downs is 'virtually certain' that Reverend Kim, 'a foreigner abducted by the DPRK for political purposes,' would have been singled out for 'exceptionally painful, brutal, and outrageous treatment' and is probably dead 'as a result of his torture and malnutrition,'" according to the 13-page opinion.
Professor David Hawk, an expert on human rights in North Korea, also testified that prisoners such as Kim regularly endure torture and extremely harsh labor conditions. As a "valuable target" of North Korea, Hawk said Kim would have suffered "additional brutality," even beyond what average prisoners face.
"Our conclusion would no doubt differ if we lacked confirmed evidence that the DPRK was involved in Reverend Kim's disappearance. In that case, finding that the regime tortured and killed him would arguably require too many logical leaps. But that is not this case," Tatel said. "Here, the Kims' evidence that the regime abducted the Reverend, that it invariably tortures and kills prisoners like him, and that it uses terror and intimidation to prevent witnesses from testifying allows us to reach the logical conclusion that the regime tortured and killed the Reverend. In other words, the Kims' evidence is 'satisfactory to the court.'"