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BK Blog Post
Posted by Tom Devine.
Tom Devine is legal director of the Government Accountability Project, where he has worked to assist thousands of whistleblowers to come forward and has been involved in the all of the campaigns to pass or defend major whistleblower laws over the last two decades.
On June 30th, the United Nations Appeals Tribunal (UNAT) declared the attempt to reform the UN on the basis of non-invasive management surgery officially over. In the case of two whistleblowers, the UNAT announced it had no jurisdiction, throwing the issue of UN whistleblowing backwards at least a decade, into the General Assembly.
On October 29, 2009, Florin Postica and Ai Loan Nguyen-Kropp reported Michael Dudley, then Acting Director of Investigations, to the Under-Secretary General (USG) of the Office of Internal Oversight Services (OIOS), for tampering with evidence in a sensitive case. They had no choice: they had irrefutable proof of what Dudley had done. Dudley retaliated by arranging for the UN to investigate them, and in the process, tarnished their reputations in the small world of investigators in international organizations.
Finally, on 10 November 2011, the new USG formally notified the whistleblowers of the outcome of the investigation and cleared them of misconduct. The official clearance took over six months for reasons that have never been explained. At the time, the USG told them that she considered the investigation a waste of time and money. Nonetheless, she refused to act on their behalf. Postica and Nguyen-Kropp then embarked on a six-year odyssey to seek redress from the career-wrecking investigation. During that time, Nguyen-Kropp was obliged to leave the organization as a result of continuing harassment by Dudley and a few others reporting to him.
After filing two cases and wending their way through the Ethics Office and the justice system, the real ax fell in a separate case: Wasserstrom vs. the Secretary General. In the 2014 Wasserstrom ruling, the UNAT established a technical precedent that excluded whistleblower cases from review by the UN justice system. The ruling meant there is no judicial appeal of decisions made by the Ethics Office, where whistleblowers first report retaliation. The ruling was devastating because the Ethics Office rarely supports whistleblower claims. In the period between 2006 and 2012, their office ruled favorably for whistleblowers in less than 3 percent of the cases it receives. More recently, in 2015, the Ethics Office received 19 requests for relief from retaliation. Of these, they did not complete the entire review and relief process in a single case. One case brought forward from the previous year, however, was resolved (pp. 11-12).
So these are the odds a whistleblower faces. In the UNAT ruling refusing to consider the Nguyen-Kropp/Postica appeal, the Tribunal acknowledges that the Ethics Office did not do its job, but the consequences for that fall, not on the Ethics Office, but on the two whistleblowers – who have no access to redress. As the judge in the case when it came before the Dispute Tribunal wrote:
The current state of the jurisprudence establishes the total lack of accountability of the Ethics Office and this, in and of itself, seriously undermines the purpose underpinning ST/SGB/2005/21, [The Whistleblower Protection Policy] which is to expose misconduct at all levels within the Organization and to protect those reporting misconduct in good faith (para. 123).
Over the past 20 years or so, the Government Accountability Project (GAP) has worked to advance whistleblower protection at the UN. The Secretary-General issued a protection policy in 2005, and the Ethics Office, established in 2006, was to implement it. In 2009, the Organization adopted reforms of the justice system that included a new appeals court, and reformers looked forward to a new day at the UN.
This Secretary-General has gutted all of these initiatives. When a UNDP whistleblower first sought protection under the new anti-retaliation policy in 2007, and the Executive Head of the agency claimed the new policy did not apply to the funds, programs and specialized agencies of the UN, Ban Ki-Moon supported his position. That single decision dramatically diminished the scope of protection for staff in the UN common system. When the first level court (the Dispute Tribunal) finds in favor of a whistleblower, the Secretary-General has repeatedly appealed, claiming that the justice system cannot review determinations of the Ethics Office. Now the Appeals Tribunal has agreed with him. Repeatedly.
The Postica/Nguyen-Kropp ruling shows two things: 1) the Investigations Office where they first blew the whistle lacks credibility and integrity, and 2) UN whistleblowers have no protection from retaliation, even when they expose misconduct in the oversight office.
So here we are. For UN whistleblowers, the Ethics Office is dysfunctional, the Investigations Division of OIOS is in shambles, and the justice system is inaccessible. Ban Ki-Moon has now dismantled the entire effort to reform the UN from within through the application of reasonable and effective protections for staff members who report misconduct, corruption, fraud, illegality or a danger to the public. Senior managers of the Organization and their counterparts in influential delegations at the UN were handed the tools they needed to reform the Organization, but they have refused to use them.