EXCLUSIVE: The
controversial shipments of U.S.-made computer equipment to North Korea
and Iran by the United Nations’ World Intellectual Property
Organization was not only “unjustified” but something “we simply cannot
fathom,” according to an independent investigative report, commissioned
by WIPO itself.
The report puts new pressure on the Obama Administration to decide
what to do next. The same report makes it clear that WIPO, a U.N.
agency that considers itself beyond the reach of any nation’s laws,
clearly violated U.S. export control legislation in the process—and
that the transgressions were worse than previously known.
North Korea and Iran are also under U.N. sanctions for their illegal
nuclear weapons programs, and neither could have legally obtained such
goods anywhere on their own, the report says, pointing the finger
directly at WIPO for making possible the sensitive shipments, otherwise
clearly forbidden under U.S. rules.
The high-tech shipments to two of the world’s most dangerous
governments were initially made public last April by Fox News, which
reported that WIPO’s method for carrying out the transaction in North
Korea seemed designed to bypass safeguards set up in 2008 after a
similar scandal involving another U.N. agency, the United Nations
Development Program.
In the newest case involving North Korea, the WIPO goods, ostensibly
part of a routine technology upgrade for that country’s patent
retrieval system, included along with ordinary laptop computers and
other goods a “very capable” hardware firewall and network security
system that is subject to “a very high level of U.S. licensing
requirements” for so-called “dual-use” items, which have a number of
non-civilian applications.
“The equipment is subject to national security, anti-terrorism and encryption controls under U.S. law,” the report declared.
For its part, WIPO not only considers itself above the laws of nation
states, but also seems to consider itself as an entity apart from any
coordinated such U.N. efforts as sanctions, even though numerous U.N.
Security Council resolutions call on U.N. bodies to cooperate in the
sanctions efforts.
A 1974 agreement between the U.N. and WIPO, in Article 2, expressly
says that WIPO “agrees to co-operate in whatever measures may be
necessary to make co-ordination of the policies and activities of the
United Nations and those of the organs and agencies within the United
Nations system fully effective. The Organization agrees further to
participate in the work of any United Nations bodies which have been
established or may be established for the purpose of facilitating such
co-operation and co-ordination.”
The same agreement, in Article 8, says that WIPO will “cooperate”
with the U.N. “by rendering such assistance to it, as the United Nations
may request.”
Click here to view the agreement.
Even so, how WIPO could deliver such equipment “to countries whose behavior was so egregious it
Even so, how WIPO could deliver such equipment “to countries whose
behavior was so egregious it forced the international community to
impose embargoes,” was beyond the investigators’ .
The WIPO report throws the issue of what to do next about the
high-tech transgression back to the Obama Administration. The report
declares that “only the U.S. can make the determination of whether the
U.N. privileges and immunities ultimately would exempt WIPO from the
enforcement of U.S . export control laws”—a legal possibility not often
expressed at U.N. organizations.
The report says it is also a U.S. decision whether those same
privileges and immunities extend to the non-U.N. contractors that
actually carried out the procurement and shipping of the sensitive
U.N.’s bidding—something that the report noted has in the past not
always been automatic.
Click here to view the full report.
Whether the U.S. will actually come up with such a tough response is another question.
A State Department official, in response to questions from Fox News,
declared that “we agree with the inquiry team that regardless of
whether WIPO violated U.N. sanctions, this issue raises serious
questions about management and transparency at WIPO, as well as
coordination with member states and the United Nations Security Council
sanctions committees. We will continue our ongoing efforts with member
states and WIPO to pursue measures to improve its oversight,
transparency and accountability mechanisms.”
Meantime, the report does not rule out the possibility that U.N.
sanctions committees themselves might still declare the WIPO actions to
be illegal, although it judges that possibility to be faint.
The report
lays out a “broad” case that the WIPO transactions are illegal in U.N.
terms, a view held by a number of well-credentialed international legal
experts as well as a “narrow” case that they are not, before deferring
to U.N. sanctions committees, which have not yet made a judgment.
But while clarifying the gravity of the offense against international
peace and stability—not to mention the sovereign rule of law-- the
77-page report, written by a two-person panel commissioned by WIPO
itself in August, only added to the mystery of why the obscure agency,
headed by Director General Francis Gurry, decided to take such an
explosive action in the first place.
One reason for the continuing lack of clarity was the short time
frame and limited budget granted to the inquiry by Gurry himself. The
issue of the shipments came up among WIPO member states only in March,
after a whistle-blowing staff member brought them to the attention of
the Geneva diplomatic corps.
A number of countries, including the U.S., began demanding
explanations from Gurry behind closed doors , asking among other things
why United Nations sanctions committees which monitor restrictions
against North Korea and Iran were not informed in advance of the
transactions.
After a couple of months Gurry hastily announced that WIPO would make
no more technology shipments to any country in the future, and
assembled his investigative panel in August, giving it only three weeks
to come to its conclusions.
The investigators were given relatively narrow terms of reference,
which included whether the controversial shipments conformed to the
programs initially passed by WIPO’s 185 member states, and whether the
actions were in compliance with U.N. sanctions.
The report, a joint effort by a Swedish police official named Stig
Edqvist and U.S. attorney John Barker, a former senior State Department
official and export controls expert, goes considerably beyond that,
however—especially when they focus on the demands of U.S. law.
Their report underlines that although many of the goods involved in
the WIPO shipments were ordinary laptops and other conventional computer
gear, some of them definitely weren’t.
In some cases, which included the network security device, the
technology was sensitive enough to require higher-level U.S. export
controls even for countries far less dangerous than the belligerent
rogue states, which are under U.N. sanctions for their illegal nuclear
weapons programs.
The only way the two countries could get their hands on such things,
the report declared, was by using an international organization that
claimed diplomatic privileges and immunities putting it above national
laws—an organization, in other words, like WIPO.
The report addresses an allegation that surfaced immediately after
the discovery of the sensitive shipments—that Gurry had arranged the
transfer of the goods, especially in the case of North Korea, as a quid
pro quo for the country’s support for his election as Director General.
The investigators asked Gurry himself and he “unequivocally denied
there was any link, express or implied,” between his election and the
shipment, the report states.
On the other hand, the document says, “we asked to speak with DPRK
[Democratic People’s Republic of Korea] and Iranian mission
representatives to obtain their views, but not surprisingly, they would
not speak with us.”
The investigators then note that Gurry personally signed a diplomatic
communication to the North Korean mission in June, 2011, to confirm
plans for the equipment, which was only delivered in early 2012.
Beyond the narrow issues of who did what, and when, the report also
takes a look at how WIPO actually communicated the details of the
transfers to its 185 member states in the program and budget documents
they approve, and declared that there was nothing there that would have
tipped the exact nature of the transfers.
Those documents, typical for U.N. organizations, are enormously lengthy but short on important detail.
“In the broadest sense,” the report observes, “member states approved
the overall technical assistance programs because these programs were
included in the program and budget docs. Unless a member state asked in
advance of a shipment, however, the member state could not tell from
the program and budget documents which countries would receive computers
and equipment.”
In other words, member states usually do not know what they are approving.
Moreover, WIPO staffers themselves were not always helpful. While
noting that WIPO has “no procedure requiring a separate review of
programs for countries subject to UN sanctions,” the investigators also
observe that “WIPO staff did not provide us with a basis for why they
sought review of some shipments, but not others.”
In general, however, “WIPO’s provision of technical assistance for
DPRK was handled in the same manner as it would have been for countries
not subject to U.N sanctions,” a function of their general view that
WIPO stood apart from national law, and even apart from what other parts
of the U.N. were saying and doing about their client countries.
The WIPO report offered a sharp rebuttal of that attitude, arguing
that WIPO staff, “shares the obligation to support the work of other
U.N. bodies, including the sanctions committees.”
It also suggests the common-sense idea that WIPO could get out of the
business of facilitating otherwise illegal acts if it made“a deliberate
policy decision, as other international organizations have done, not to
deliver technology and equipment to a country if that [country] could
not legally obtain such technology and equipment on its own.”
An additional way to do that, it suggests, would be to make the
contractors who actually procure and ship such equipment at the U.N.’s
behest to obtain export licenses from the manufacturer nations—such as
the U.S.—in advance of shipment.
For its part, WIPO told Fox News that “At the moment, WIPO is reviewing the report and considering its recommendations.”
Most of the solutions it was proposing, the
WIPO report said,
had already been suggested four years earlier—in the wake of the
previous scandal involving the transfer of hard currency and dual-use
technology to North Korea by the United Nations Development Program.
That scandal ended with a 353-page report, compiled after an
eight-month investigation, which found similar and even more extensive
abuses on the part of UNDP, and which suggested a number of changes to
UNDP procedures for dealing with such sensitive items in Pyongyang.
“We have drawn heavily from this report on the UNDP recommendations
(in some cases verbatim),” the WIPO report notes drily, as well as those
from other U.N. agencies that actually had developed better practices
and procedures for dealing with sanctioned countries.
If those older UNDP-related recommendations had been in place in
WIPO’s case, the latest report noted, “It is unlikely that WIPO would
have proceeded as it has in this case.”
Or maybe not. The WIPO report notes that despite UNDP’s previous
extended brush with the consequences of shipping touchy materials to
suspect places, it was also involved in the latest scandal, because
“WIPO sought the assistance of the UNDP to handle the actual delivery of
the shipment” from China to North Korea., under a 1978 agreement
between the two agencies.
Says the report, in carefully muffled prose: “WIPO staff members
informed us that they were not aware of, and we could not confirm that,
WIPO staff sought confirmation from UNDP regarding whether the UNDP had
checked to determine whether the deliveries were consistent with the
U.N. sanctions requirements or were consistent with the license
requirements under U.S. law for the equipment with U.S. origin content.”
In other words, WIPO staffers couldn’t say whether UNDP itself had checked on the propriety of the shipments.
The report does not follow up with UNDP. Fox News, however, did, citing the report’s own wording.
UNDP's reply: “UNDP is currently analyzing the report and we will get back after this review is concluded.”
