By Jiha Ham and Christy Lee
“What the heck did you do to my kid?”
Cynthia Warmbier’s anguish erupted at a hearing in December 2018 as she testified about her reaction to seeing her comatose son, Otto Warmbier, a University of Virginia student, when he returned to the U.S. from North Korea in June 2017.
He died days later — the victim of beatings and torture, according to his family — during 17 months of detention. Otto Warmbier was sentenced to 15 years of hard labor for stealing a propaganda poster from a staff-only area of his hotel.
“ ‘What the heck did you do to my kid?’ ” echoed Judge Beryl Howell of the U.S. District Court in Washington in the first line of her December 2018 ruling against North Korea that awarded more than $500 million to Warmbier’s parents in a wrongful-death suit.
With their lawsuit, the Warmbiers took on a government that had a history of disregarding international norms of justice and refusing to accept accountability for its actions even before Washington redesignated it as a state-sponsor of terrorism in 2017.
Four cases are known to have been filed against North Korea since 2018, and more than $2.8 billion in judgments is outstanding. Two cases remain open.
North Korea’s only response to these legal activities was to release a statement criticizing VOA’s report published in October 2018 that covered court documents describing the conclusions of U.S. doctors that Warmbier endured harsh treatment in North Korea, including brutal beatings.
“Allegations coming out recently within the U.S.,” said North Korea in October 2018, “distort the truth as to the cause of [Warmbier’s] death” and are “trying to make a different story” regarding his death.
Isolated from the world
North Korea lacks formal diplomatic ties or consular services with the U.S. and is isolated from the international community because of its nuclear programs in violation of U.N. sanctions.
Filing a lawsuit against North Korea presents plaintiffs with extraordinary challenges, as the Warmbiers and others have learned.
In February 2018, the surviving crew members of the USS Pueblo and their families sued North Korea for detaining and torturing the crew for 11 months after it seized the U.S. spy ship operating in international waters in January 1968. In February, the U.S. District Court in Washington ordered North Korea to pay $2.3 billion to more than 100 plaintiffs.
North Korean authorities arrested Kenneth Bae, a U.S. citizen, for “a crime against the state” in November 2012. Sentenced in 2013 to 15 years of hard labor, he was released after 735 days.
Bae sued North Korea in August 2020.
Kim Dong Shik, a South Korean pastor with permanent resident status in the U.S., was kidnapped from China in 2000, where he preached to North Koreans who had fled their country. According to his family, Kim died while imprisoned in North Korea. North Korea has never admitted to Kim’s abduction or his death.
Kim’s daughter, Dani Butler, and wife, Young Hwa Chung Kim, sued North Korea in September 2020.
All of the plaintiffs filed their lawsuits under the 1976 Foreign Service Immunities Act (FSIA), which sets aside the legal immunity of foreign governments to U.S. courts by allowing lawsuits against governments named state sponsors of terrorism.
Washington first placed North Korea on the list in 1988, after Pyongyang agents planted a bomb on a South Korean passenger jet, killing all 115 people aboard.
Former President George W. Bush removed North Korea from the list in 2008, during delicate nuclear talks, and former President Donald Trump returned the country to the list in 2017, clearing the way for victims to seek justice.
For any lawsuit filed in the U.S. to proceed, North Korea must be served with a notice of suit, a summons and the complaint. A summons is a legal document notifying the defendant of the suit, and a complaint is a document that describes what the plaintiff is looking to obtain from a suit.
After a plaintiff file a case and has a summons issued by a court clerk, the party must deliver a copy of the summons and complaint to the defendant within 90 days, according to Henry Jung, a New York City attorney with a Korean practice.
Otherwise, the court must dismiss a case “without prejudice against that defendant” or “if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.”
The crew members of the Pueblo and their families were able to serve a summons, complaint and translated copies to North Korea’s foreign ministry via DHL. On March 13, 2018, the court clerk mailed all copies by DHL, a German shipping company with an office in Pyongyang; the package was delivered on April 4, 2018, at 15:51 p.m., and was signed for by “Kim.”
The Warmbiers were able to serve the summons, complaint and translated copies to North Korea by sending them to Ri Yong Ho, the foreign minister of North Korea at the time, at the Ministry of Foreign Affairs in Pyongyang, also via DHL.
The documents were shipped on May 18, 2018, and arrived in Pyongyang, signed for at the foreign ministry by “Kim” on June 19, 2018.
But Bae faces the challenge of sending documents to North Korea after DHL suspended its civilian delivery service to Pyongyang, an issue complicated by the country’s strict lockdown during the pandemic.
A DHL representative told Sonya Dobbs, Bae’s lawyer, in September that the company had suspended any non-U.N. or non-diplomatic shipments to North Korea, according to court documents.
Bae asked the court clerk to send the package via FedEx, an American courier service, directed to Foreign Minister Ri Son Gwon at the Ministry of Foreign Affairs in Pyongyang, according to the filings.
But in October, the clerk’s office notified Bae that the FedEx delivery returned “unexecuted,” according to case documents.
FedEx’s tracking system showed the shipment arrived in Incheon, South Korea, in September 2020 and was then returned to Washington, according to the filings.
Having learned that FedEx does not provide service to North Korea, Dobbs, Bae’s lawyer, asked the clerk’s office if the documents could be mailed using the U.S. Postal Service (USPS), which does serve North Korea, according to court documents.
But the court told Dobbs she must use FedEx because of COVID-19-related restrictions, according to court documents.
Dobbs has since sought help from the U.S. State Department, hoping service could be made via North Korean embassies overseas or an informal backchannel the department keeps with Pyongyang such as North Korea’s U.N. mission in New York. In the past, North Korea has accepted U.S. court judgments delivered at its embassies in London and Beijing.
The State Department’s Office of Legal Affairs told Dobbs in October that it was unable to facilitate the delivery because the U.S. and North Korea “do not have any treaty relations that provide for judicial assistance,” according to emails filed with court documents.
North Korea does not belong to the Hague Service Convention that established ways for litigants of the contracting states to the convention to serve court documents abroad.
This means Washington and Pyongyang do not have a “special arrangement for service” or “an applicable international convention on service of judicial documents,” or formal diplomatic channels, routes through which the court requires plaintiffs to seek in sending the documents to a foreign government.
The Office of Legal Affairs advised Dobbs to mail the delivery to Pyongyang via USPS or other couriers, according to court documents.
Joshua Stanton, a Washington attorney who helped draft the North Korean Sanctions Enforcement Act of 2016, said, “Consular facilities like embassies are immune from services, and most of the usual methods rely on either international treaties or bilateral agreements in which diplomats agree to facilitate service.”
He continued, “None of those methods work with North Korea, so most plaintiffs have served the North Korean Foreign Ministry by mail.”
Bae filed a motion in December for permission to use USPS to send the documents to North Korea, and the court granted the motion in January.
The package was sent to Pyongyang using USPS in February, but it is unclear whether the delivery was made to the North Korean Foreign Ministry because there is no tracking history once it left the U.S.
Similarly, Kim’s daughter and wife sent the documents to North Korea via First Class USPS Mail in December. They have yet to learn the status of the delivery sent to North Korea.
After the court ruled in the Warmbiers’ case against North Korea, the regime refused to accept a summons from the U.S.
So the Warmbiers filed a motion for a default judgment, which the court granted. When a defendant does not respond to a summons or does not appear for a trial, a court enters a default judgment in favor of plaintiffs, based on their arguments, testimony and evidence.
A default judgment was also handed down in the Pueblo case. In February, the U.S. District Court in Washington awarded the plaintiffs of the suit $2.3 billion for the “barbarity” they suffered. The decision followed a default judgment the court issued in 2019 that held North Korea liable.
The question remains as to whether the court will consider the documents Bae and the Kim family sent via USPS as being satisfactory service to North Korea in their civil suits against the country.
If approved, they can file a motion for a default judgment and have justice served for the hours the victims had to spend in North Korea.
“We have to watch closely [to see] if the court would approve Bae and Butler’s efforts of sending their complaints via USPS,” said Jung, the New York lawyer. The plaintiffs “most likely won’t get any signed receipts.”