Unlike Sony, the D.C. Circuit isn't afraid of North Korea

Kim v. Democratic People's Republic of Korea, No. 13-7147 (D.C. Cir. Dec. 23, 2014).

The family of Reverend Dong Shik Kim sued North Korea, alleging North Korea had put him in a concentration camp and tortured and killed him. North Korea failed to formally appear in court to defend itself, so the family asked the district court to enter a default judgment. The district court refused, saying that the family hadn’t produced enough evidence to show what has actually happened to Reverend Kim. 

On appeal, the D.C. Circuit begins by reviewing the law of suing a foreign country. The Foreign Sovereign Immunities Act says that foreign countries are immune from suit in the United States. Under the Act’s terrorism exception, though, state sponsors of terrorism can be liable for torture and extrajudicial killing. The Act also says that default judgments can’t be entered against foreign countries unless plaintiffs establish their claims with “evidence satisfactory to the court.” There’s little doubt that North Korea falls under the Act’s terrorism exception: it routinely tortures and kills its political prisoners. The real question here is what “evidence satisfactory to the court” means. Has Reverend Kim’s family produced enough evidence that North Korea tortured and killed him?

As with many things involving North Korea, the fate of Reverend Kim is not totally certain—but his family has presented testimony from experts who have been informed at second- or third-hand that the Reverend was tortured and died. The district court said this evidence wasn’t enough. First-hand accounts were necessary. 

The D.C. Circuit disagrees. If first-hand accounts were necessary, it’s hard to see how any litigants could prove anything about North Korea. Except for video of military marches, photos of Kim Jong Un with Dennis Rodman, and attacks on Seth Rogan movies, very little gets out of North Korea. The courts must adjust their evidentiary requirements to reality—particularly since the “terrorism exception” clearly indicates that Congress wants the victims of torture and extrajudicial killing to be able to get compensated. So direct evidence of what has happened to Reverend Kim is unnecessary, and Reverend Kim’s family has (sadly) produced enough evidence of his torture and death. The D.C. Circuit reverses and remands for entry of a default judgment.