Implications of Warmbier lawsuit against North Korea considered amid peace talks

Parents of Otto Warmbier are currently suing North Korea for their son’s death

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Otto Warmbier was sentenced to 15 years of hard labor in North Korea in March 2016. In June 2017, he was released from the country in a comatose state and died shortly after his return to the U.S.  

Courtesy KYODO Kyodo / Reuters | X01481

The lawsuit filed against the government of North Korea by the family of Otto Warmbier — a 22-year old University student who died last June  after he was imprisoned for 17 months in North Korea — could have international repercussions, experts say.

The suit, filed in the U.S. District Court for the District of Columbia, claims North Korea should be liable for the wrongful death of Otto and be punished under U.S. anti-terrorism codes. It claims North Korea “intentionally ordered, directed, and caused the torture, hostage taking, and extrajudicial killing of Otto and the resulting harm” to his family.

This suit is filed during a critical moment in U.S.-North Korea relations, with international tensions over denuclearization having potentially reached a moment of peaceful resolution. In the wake of Otto’s death, U.S. President Donald Trump blamed the "brutal regime" of North Korea for their role in his death.

Despite these tensions, North Korean leader Kim Jong Un and Trump will meet in the coming weeks at a summit to discuss denuclearization and further steps towards peace in the Korean Peninsula. The Korea-U.S. summit comes after Kim and South Korean President Moon Jae-in met last week for the first meeting between the two countries’ leaders in recent history.

Todd Sechser, an associate professor of politics at the University, said in an email to The Cavalier Daily this case is particularly timely in the current international climate. 

“North Korea is in the process of trying to mend its international image,” Sechser said. “When Kim Jong Un met with South Korea’s president this week, he made soaring declarations about promoting peace, and he has made theatrical promises surrounding North Korean denuclearization. But the timing of this lawsuit reminds us exactly who we are dealing with.”

Sechser said the mere act of filing the suit can change the international conversation.

“[The case] is a reminder … North Korea is perhaps the world’s worst abuser of human rights,” Sechser said. “It complicates the happy picture that Kim has been trying to paint, and puts added pressure on President Trump … to make human rights a key issue in next month’s summit.”

University Law Prof. Paul Stephan told The Cavalier Daily lawsuits against foreign states were previously impossible in domestic courts.

“This case is brought under the Foreign Sovereign Immunities Act of the United States, which is legislation that’s been in place since 1976,” Stephan said. “The background norm both in international law and domestic law is that states or foreign sovereigns are immune from civil litigation. They can’t sue them.”

Trump redesignated North Korea as a state sponsor of terrorism last November, after the country was removed from the list in 2008 by U.S. President George W. Bush. Currently, North Korea is still one of the four countries that are recognized as state sponsors of terrorism by the U.S. Department of State, alongside Syria, Iran and Sudan.

Tonya Putnam, an associate professor of political science at Columbia University who studies the intersection of international relations and international law, told the The Cavalier Daily that North Korea being recognized on this list means the country is a potential target for litigation.

“One of the effects of being on that list is that the state becomes open to these kind of suits ...

It’s entirely possible and likely that the suit will be allowed in U.S. courts,” Putnam said. “It’s very unlikely that North Korea will show up to contest it.” 

While there is the potential that North Korea may be found liable in the Warmbier case, the chances for monetary or tangible justice from the accused country is in no way guaranteed, Stephan said.

One notable instance of an unpaid international suit came in April 2016, when victims of Iran-sponsored attacks sued Iran in the U.S. Supreme Court. Iran refused to pay, so the court ruled the payments would come from Iranian assets held in New York.

Although these claims can go unpaid, monetary rewards from the court are still possible through the 2015 “United States Victims of State Sponsored Terrorism Fund,” which may satisfy final judgments from courts in the United States issued against Iran, Sudan, Syria, North Korea, Cuba — which has not been considered a state sponsor of terror since 2015 — and any other state sponsors of terrorism when the nation refuses to pay. The funds were appropriated by the U.S. Congress in 2015.

“Congress … created a fund for paying out judgements when people, when U.S. nationals collect against sponsors of terrorists,” Stephan said. “So, I’m not at all suggesting that’s the motivation to this lawsuit … but I would be not telling you the full story if I didn’t say that there is a mechanism by which it’s possible for a fund, ultimately financed by the U.S. taxpayer, to pay out judgements.”

Regardless of the verdict of the case, Stephan said allowing private parties to pursue international lawsuits can be a source of conflict.

“Whenever you open an exception to state immunity for a highly-charged area of conduct — you know, support of terrorism — what you’re doing is saying this very significant piece of national security [and] foreign policy is being outsourced to the courtroom, which is controlled by private actors, by victims and their lawyers,” Stephan said. “And you can’t grab that back … at least under the statute, they can’t be shut down.”

Stephan said the mere existence of the case could cause tension during attempted peace talks.

“[The] issue is what do you do with that in the context of a broader effort to make peace, and who decides what to do about that,” Stephan said. “The problem with this litigation is that the parts of the government responsible for our foreign policy have no authority to interfere with litigation of this sort.”

Otto Warmbier visited North Korea as part of a tour group and was detained by North Korean officials at the Pyongyang airport in January 2016. He was accused of taking down a political banner from an employee-only area of the hotel his tour group had been staying at and was imprisoned in North Korea for 17 months. He died several days after he was released to the U.S. in a comatose state.

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