Namibia’s prohibited arms deal with N. Korea triggers mandatory sanctions under U.S. law.

Namibia is a beautiful desert country with a turbulent history. Some years ago, when I worked in South Africa, I flew from Johannesburg to Cape Town, took a bus across the border to Keetnamshoop, and hitch-hiked to the isolated town of Lüderitz, which sits where the barren dunes of the Namib Desert spill into the cold waters of the Atlantic Ocean. Lüderitz was established by German colonists in the 19th Century; today, many of their descendants still live in the German-style homes their ancestors built. (Thanks to a friendly local I met on the bus, I was an overnight guest in one of those houses.) Hitch-hiking out proved more difficult than hitch-hiking in, but the hours spent waiting on the roadside, amid the dunes, eventually paid off. I hitched a ride out just before a thermonuclear sunset lit the faces of the dunes with a Martian-red glow that should have had a soundtrack by Igor Stravinsky.

My visit to Namibia came just months after the country became independent, and after the end of a bloody bush war that pitted Cuban-backed SWAPO guerrillas against the South African Army. SWAPO has won every election since then by an overwhelming margin. Evidently, SWAPO’s old ties to fellow alumni of the old Soviet bloc endure. The most recent U.N. Panel of Experts report finds that as early as 2002, the Namibian Ministry of Defence hired Korea Mining Development Trading Corporation, or KOMID, a North Korean entity designated by the U.N. and the U.S. Treasury Department, to build it a weapons factory:

101. KOMID reportedly conducted business activities in Namibia until at least early 2015, including through the construction of a munitions factory at Leopard Valley, in the Windhoek area, in cooperation with, or using the alias of, Mansudae Overseas Project Group companies.56

102. Namibia informed the Panel that it had contracts with the Democratic People’s Republic of Korea concerning arms and related materiel before 2005. One covered the construction of the Windhoek munitions factory from 2002 to 2005, involving a subsidiary of Mansudae. Namibia also confirmed that it had received training and technical assistance relating to arms, but stated that, given United Nations sanctions, the relevant experts had returned to the Democratic People’s Republic of Korea.

103. Namibia confirmed that Mansudae was involved in several military construction projects, including the military academy and the ongoing construction of the headquarters of the Ministry of Defence. It denied knowledge of links between Mansudae and KOMID (see annex 70).

104. However, satellite imagery shows that construction at the military base at Leopard Valley was continuing in September 2014 (see annex 71). The Mansudae company brochure also advertised the 2010 contract with the Ministry of Defence for the construction of facilities at Leopard Valley (see annex 70).

105. The Panel confirmed that, as at August 2015, workers from the Democratic People’s Republic of Korea were undertaking construction activities at another military base in Suider Hof (see fig. 23). At the time of writing, Namibia had not replied regarding the purpose of the facility under construction.

106. The construction of any munitions factory or related military facilities is considered to be services or assistance relating to the provision, manufacture or maintenance of arms and related materiel and therefore prohibited under the resolutions. [Panel of Experts, 2016]

The Panel published this photograph of the factory:

It also noted that two KOMID representatives have been regular visitors to Namibia.

Both Kil and Kim were designated by the U.S. Treasury Department under Executive Order 13687 on January 2, 2015.

Since the publication of the Panel’s report, the Namibian government has admitted to the relationship, but denied violating the resolutions, offering a spurious interpretation of them:

DEPUTY prime minister and international relations’ minister Netumbo Nandi-Ndaitwah has confirmed the existence of a North Korean-built munitions factory in the country, but said the factory was not in contravention of any United Nations’ sanctions against the Democratic People’s Republic of Korea.

Nandi-Ndaitwah said the Namibian government was not involved in anything untoward, and that government has cooperated with the United Nations and openly answered and forwarded information requested by the UN. [The Namibian]

The Namibians point out that the ventures date back to as early as 2002, and that “relations between the two countries date back to Namibia’s liberation struggle.” But what is at issue here is conduct occurring after October 2006, when UNSCR 1718 banned the trade in major weapons systems with North Korea, and 2009, when UNSCR 1874 extended the ban to all arms and related material. Over the following years, those sanctions were further clarified to eliminate loopholes. The U.N.’s designation of KOMID in April 2009 removed all doubt that any dealings with it since then have been clear violations of the resolutions.

Today, with the passage of UNSCR 2270, there is no doubt that any arms-related transactions with a North Korean entity are prohibited. Namibia is obligated to terminate its relationships with KOMID, freeze all of its assets and property, and send its representatives home.

Namibia also confirmed that it had received training and technical assistance relating to arms, but stated that given United Nations’ sanctions, the relevant experts had returned to the Democratic People’s Republic of Korea. […]

She added that the sanctions against North Korea covered mainly nuclear weaponry, and Namibia is not prohibited from having diplomatic ties with that country.

This is a blue answer to a green question. Of course Namibia is permitted to have diplomatic relations with North Korea; that is not the issue. Of course the U.N.’s North Korea sanctions don’t just cover nuclear weapons; they also ban North Korea’s arms trade, which almost certainly finances its nuclear and missile programs. The Namibian government needs to read the resolutions and comply with them.

She confirmed that a munitions factory was built, but that it was a Namibian project, adding that the North Koreans worked on projects such as the construction of State House, Heroes’ Acre, the military museum, the Independence Museum and other military construction projects.

If KOMID or another U.N.-designated entity is involved in these deals, they’re also prohibited. As with Kaesong, the arrangements are also arguably violations of UNSC provisions requiring member states to freeze any assets that could be used to further North Korea’s nuclear and other prohibited programs.

The UN report stated that the munitions factory was built at at Leopard’s Valley in the Windhoek area, while government confirmed to the UN that Mansudae was involved in several military construction projects, including the military academy and the ongoing construction of the headquarters of the Ministry of Defence.

The Namibians are having trouble getting their story straight.

The deputy prime minister also came to the aid of her colleague, defence minister Penda ya Ndakolo, who flatly denied the existence of a project between Namibia and North Korea to build an armaments factory.

She said Ya Ndakolo was referring to a project which is underway since the munitions factory’s construction project has long been completed. “We are not hiding it,” she stated.

Perhaps the Namibians doubt that the U.N. will enforce its writ and that this will all blow over. A year ago, that might have been a reasonable assumption. Perhaps they’re simply unfamiliar with what the resolutions require, although I suspect the Panel of Experts has since rectified that through bilateral communications. But even if the U.N. can’t enforce its writ, the U.S. Treasury Department can — and must — because of the new North Korea Sanctions and Policy Enhancement Act. Among the conduct that triggers mandatory sanctions is this:

(a) Mandatory Designations.—Except as provided in section 208, the President shall designate under this subsection any person that the President determines—

[….]

(2) knowingly, directly or indirectly, provides training, advice, or other services or assistance, or engages in significant financial transactions, relating to the manufacture, maintenance, or use of any such weapon, device, or system to be imported, exported, or reexported to, into, or from North Korea;

[Update: Rereading this, a closer fit may be section 104(a)(9), which applies to any person the President determines “knowingly, directly or indirectly, imports, exports, or reexports to, into, or from North Korea any arms or related materiel.” Under the sanctions regulations in 31 C.F.R., the term “arms or related material” typically includes (by inference) technical assistance other than for peace-keeping purposes. In the specific context of North Korea, the U.N. also includes technical assistance within the meaning of the term “arms and related materiel.”]

The Namibian MoD’s violations of “applicable U.N. Security Council Resolutions” could also trigger discretionary sanctions under section 104(b)(1)(A), which authorizes the designation of any person who “knowingly engages in, contributes to, assists, sponsors, or provides financial, material or technological support for, or goods and services in support of, any person designated pursuant to an applicable United Nations Security Council resolution.”

A section 104 designation triggers a series of consequences, starting with the blocking of any assets that enter the U.S. financial system, potential prohibitions on transactions in foreign exchange or credit between financial institutions, and a travel ban on Namibian MoD officials.

Namibia’s open defiance of the U.N. Security Council will be an important test of the Obama Administration’s determination to enforce the new law. I can’t speak for Congress, but Congress would probably allow the administration a reasonable opportunity to use diplomacy to get the Namibians to terminate these relationships with North Korea. Failing this, the law requires that the Namibian MoD officials responsible for the dealings with KOMID, and other designated entities, be designated under section 104.

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Update: Well! Good morning, Namibia!