North Korea can be ordered to pay damages to the family of a Christian missionary who was abducted almost 15 years ago, then presumably tortured and killed, a federal appeals court has determined.
The U.S. Court of Appeals for the District of Columbia this week ordered the case of the Rev. Kim Dong-shik back to a trial court so his family can seek damages in the suspected death of the missionary, who was kidnapped in China in 2000. He was never seen again after being taken to North Korea. The trial court ruled against the family because they had no proof of his fate, though experts testified that he almost certainly was tortured to death.
“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,” the three-judge panel said in a decision written by Appeals Court Judge David S. Tatel.
The Kim case revolves around a section of the Foreign Sovereign Immunities Act that usually protects foreign governments from being sued in U.S. courts. One exception is for countries designated as state sponsors of terrorism.
Although North Korea was on the U.S. list for many years, it was removed by the Bush administration in 2008 as U.S. officials sought to rescue a nuclear deal that was about to collapse.
Just days beforehand, Kim’s son and brother, who live in the Chicago area, filed a civil suit in federal court seeking damages related to his kidnapping.
Kim, a South Korean who was a permanent resident of the United States, had spent seven years providing aid and proselytizing to North Korean defectors who sought refuge in northeastern China. He drew the attention of Pyongyang by helping its citizens flee the Stalinist regime and by trying to convert its athletes at the 1996 Olympic Games in Atlanta.
In 2005, five years after Kim disappeared, a court in South Korea convicted an ethnic Korean from China of helping North Korean intelligent agents kidnap North Korean citizens in China, including Kim. According to testimony at the trial, an abduction team plotted Kim’s kidnapping for almost a year, snatching him as he hailed a cab and then taking him across the border.
Outside of the secretive North Korea, however, no evidence of what happened to him exists.
“The chances of eyewitnesses saying what happens to prisoners is very slim,” said Nitsana Darshan-Leitner, director of Shurat HaDin, an Israeli civil rights group that was enlisted to help the Kim family because the group specializes in suing nations connected to terrorist acts, usually those committed against Israel.
“But it’s not possible that he’s alive. We brought in experts on North Korean prison camps who said the prisoners do not survive. If North Korea wants to rebut this, they have a way.”
North Korea has completely ignored the Kim case. It never responded to the complaint, and the Kim family asked for a default judgment. In denying their request, U.S. District Judge Richard W. Roberts wrote that without any firsthand accounts the Kims failed to “establish the severity of the treatment of Reverend Kim in particular, or that his treatment amounts to torture.”
The appeals panel said that standard would effectively prevent any victims from seeking redress, and it directed the trial judge to hear the family’s case for damages. It is not clear how, if ever, the family could collect anything.
Asher Perlin, a lawyer who represented the Kims in court, said they might be able to put a hold on North Korean assets in the United States that were never unfrozen after the country was dropped from the list of state sponsors of terrorism.
“Even if there’s nothing there now,” he said in a phone call from Israel, “at some point they’re going to want to come out of the cold. To do that, they will have to deal with judgments.”
It’s unclear whether North Korea will remain excluded from the terrorism list. Some lawmakers have called on the State Department to put the country back on the list because of its suspected involvement in the hacking of Sony.