The prohibition on torture has attained status as a peremptory norm of general international law. This gives rise to the obligation erga omnes to take action against those who torture. Despite this, most world states routinely conduct torture. Is there really a worldwide prohibition of torture? Argument is framed to demonstrate that the concept of a jus cogens peremptory norm, flowing erga omnes to all nations, is in practice unattainable, preventing any absolute and universal international law prohibition against torture. States cannot declare someone an enemy of all mankind, or bind all other states to that view. Jus cogens is a text writers’ municipal communis opinio, but held administratively to be based in customary international law. Any prohibition against torture appears to remain in municipal customary law form, breaches of which are proved as arguments based on fact, eliminating operation of any absolute peremptory governing norm.

This note assesses the implications of the D.C. Circuit Court case of Han Kim v. Democratic People’s Republic of Korea, in which the court found the North Korean state responsible for the torture and unlawful killing of Kim Dong Shik, a South Korean missionary who was abducted by the North Korean government while in China. In particular, this note shows how the judgment breaks new ground by holding a state responsible for torture and unlawful killing based solely on general evidence of that country’s human rights practices, without additional information about the fate of the victim himself. This note also discusses this case’s implications for the plaintiffs themselves, and for other victims of North Korean human rights abuses.