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EXCLUSIVE: Experts charge UN high-tech shipment to North Korea violates UN sanctions; State Department waffles

FILE - In this Thursday, Feb. 16, 2012 file photo, New North Korean leader Kim Jong Un waves at Kumsusan Memorial Palace in Pyongyang after reviewing a parade of thousands of soldiers and commemorating the 70th birthday of his late father Kim Jong Il. North Korea said Kim has been promoted to Marshal, the military's highest rank. North Korean state media made the announcement Wednesday, July 18, 2012 in a special bulletin. (AP Photo/David Guttenfelder, File)AP2012

EDITOR'S NOTE: See bottom for an update to this story.

The obscure branch of the United Nations that shipped sophisticated computers and other high-tech equipment to North Korea violated the U.N.’s own sanctions against that regime, according to a prominent international legal scholar, who echoed congressional investigators in calling for an “independent, external commission” to probe the incident.

John Yoo, a national security expert during the first Bush administration and now a  University of California, Berkeley, professor who specializes in international and U.S. constitutional law, says that the equipment shipped by the Geneva-based World Intellectual Property Organization, or WIPO, “would allow North Korea to carry out simulations necessary to design highly sophisticated nuclear warheads…without the need for testing.” North Korea set off illegal nuclear blasts in 2006 and 2009, which led to the Security Council sanctions.

Yoo’s charge is at odds with the preliminary conclusion of the U.S. State Department on the same issue. A State Department spokesman said Wednesday that it “doesn’t appear” that WIPO’s actions -- which involved sending the equipment and paying for it via China, to avoid heightened U.N. oversight -- amounted to a violation.

Yoo’s opinion was echoed by other proliferation experts, including former U.S. Ambassador to the U.N. John Bolton and a former top-level expert at the State Department who now heads an important anti-proliferation center in Britain.

Any conclusion that WIPO’s actions did not violate repeated U.N. Security Council sanctions against the insular communist regime, Yoo said, “would assume that the agencies of the United Nations have a mandate to violate the very measures necessary to protect international peace and security -- as determined by the Security Council, the only arm of the United Nations empowered to take steps to prevent such threats.”

For its part, the State Department declared that its own judgment was a “preliminary assessment,” and that it would await a ruling by relevant U.N. sanctions committees looking into the issue. Those committees were not consulted by WIPO’s director general, Francis Gurry, before the controversial equipment was shipped to the North Korean capital, Pyongyang.

The very notion that even fully informed U.N. sanctions committees -- which were unsuccessful in halting the notorious Oil for Food scandal involving former Iraqi dictator Saddam Hussein -- will turn up much is questionable, according to Bolton, who previously headed the Bush administration’s successful effort, known as the Proliferation Security Initiative. (Bolton is also a Fox News contributor).

“Unfortunately, these committees have been where sanctions go to die,” Bolton told Fox News. “It is a complete abdication of responsibility, not to mention a signal of embarrassing weakness, for the United States to defer to the Security Council sanctions committees. The U.S. government should first decide its own position on sanctions violations, including the possibility of violations of U.S. sanctions, and then present that view in the sanctions committees.”

In an Op-Ed piece in The Wall Street Journal, Bolton also warned that, “By evading sanctions within the U.N. temple itself, these nuclear proliferators show how to defeat even broadly supported sanctions regimes through death by a thousand cuts.”

For his part, Yoo was emphatic that the WIPO shipments, which took place in late 2011 or early 2012, and were revealed by Fox News last April, were in violation of  even stiffer U.S. sanctions that ban all computer exports to North Korea due to its role as proliferators of nuclear weapons technology and ballistic missile know-how.

The State Department, however, is also shying away from that conclusion, as spokesman Victoria Nuland said yesterday. State, she declared, is “seeking more information from WIPO so that we can conclude  our own work on whether there was any violation of U.S. law, but we don’t yet have everything that we need in order to make that assessment.”

Whether the U.S. will ever pry all the facts out of  WIPO is questionable. After earlier declaring that it viewed the issue with “utmost seriousness,” and announcing that it would not make such shipments in the future, Gurry blocked the appearance of two senior WIPO staffers before the House Foreign Affairs Committee, leading to cancellation of a briefing session on the shipments.

State Department spokesperson Nuland sidestepped a question at the daily briefing yesterday as to whether the small U.N. agency was providing “enough cooperation.”

Nuland’s reply:  “Well, we are continuing to work with them and that is a conversation that is ongoing.” She cited a number of “positive steps” taken by the agency in the wake of the cash-for-computers revelations -- but only on future projects, not those that have already taken place. One of those steps is a “commission that will have an external and independent auditing ability’’ to vet projects -- but  only in the future.  

The under-the-radar shipments of Hewlett-Packard computers and servers by WIPO shipments took place in late 2011 or early 2012, and were financed through the Beijing offices of the United Nations Development Program (UNDP). They were revealed by Fox News last April. The U.S. was not informed of the shipments even though the goods were of U.S. manufacture.

Hewlett-Packard has declared that the shipments of laptops, printers and servers violated the company’s strict ban on exports of its high-tech equipment to such rogue regimes.

When the State Department began investigating the North Korea incident, it learned that WIPO and UNDP had also made a similar shipment of 20 less-sophisticated computers to Iran.

According to Yoo, the equipment transfer gives the regime of fledgling leader Kim Jong Un a significant boost in hardware and software “that could quite conceivably contribute” to North Korea’s nuclear-related programs

That alone, he argues, is enough to cross the threshold of the first U.N. sanctions resolution against North Korea (known in UN-speak as DPRK, for Democratic People’s Republic of Korea), enacted in 2006. That resolution urges U.N. member states to prevent the “direct or indirect” supply of goods and technology “which could contribute to DPRK’s  nuclear-related, ballistic missile-related or other weapons of mass destruction-related programs.”

Yoo emphasizes the world “could,” which, he says, means that the U.N. sanctions resolutions were intended to “cover a broad, non-exhaustive list of items and circumstances.” He also noted that other Security Council resolutions explicitly called on “relevant United Nations bodies and other interested parties,” as well as nation-states, to cooperate “fully” in the sanctions efforts.

Yoo offered his legal opinion jointly with another Berkeley law professor, Laurent Mayali, at the behest of a WIPO whistle-blower who first brought the issue to public attention by alerting the U.S. mission in Geneva, among others, to the agency’s actions.

Click here to view the legal memorandum. 

Their contentions were backed up by a sanctions expert who is not involved in the whistle-blower imbroglio: Mark Fitzpatrick, head of the Non-proliferation and Disarmament program at Britain’s prestigious International Institute for Strategic Studies, or IISS, and a former long-time top-level proliferation specialist at the U.S. State Department in the Bush and Clinton administrations.

“Dr. Yoo's argument is correct,” Fitzpatrick emailed in response to questions from Fox News based on the Berkeley professors’ arguments. “Regardless of whether or not the computers in question could allow North Korea to conduct simulations that would enable the development of smaller weapons, it seems unquestionable to me that the computers could aid the program.”

The fact that North Korea -- not to mention Iran -- is looking for ways and means to boost its nuclear capability also seems unquestionable. Immediately prior to the initial WIPO revelations, the Kim regime shocked the world -- and embarrassed the Obama administration -- by announcing that it was about to undertake a rocket-powered satellite launch that Washington considered a cover for work on missile-ready weapons programs.

The administration quickly canceled a freshly-minted deal to ship  some 264,000 tons of food aid to the poverty-stricken rogue country. The satellite launch subsequently did not take place.

For its part, Iran earlier this month launched a variety of ballistic missiles, including a longer-range version, as the U.S. and Europe ratcheted up sanctions intended to stop the Islamic Republic’s increasingly overt nuclear programs, which Iran claims are peaceful. So far, the regime does not seem deterred.

UPDATE: A day after this story was published, the United Nations Development Program contacted Fox News to  declare that  the computer shipments to North Korea were not “financed through the Beijing offices of the United Nations Development Program (UNDP),” as the story stated. UNDP noted, correctly,  that “this transaction was blocked by the U.S. Office of Foreign Assets Control due to possible concerns over sanctions”—as also noted in Fox News’ original story on the affair.

In fact, as a document attached to that April 3, 2012, story shows, in addition to attempting to finance the transaction, UNDP was responsible for shipping the controversial computers to Pyongyang from the U.N.’s Beijing offices, a procedure which Fox News noted was “apparently designed to bypass safeguards specifically created by U.N. authorities to prevent a repeat of previous U.N. scandals involving shipments to North Korea.”