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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 November 2, 2015, the Interim Independent Assessment Panel’s (IIAP) draft report on the administration of justice at the United Nations set out its collective, expert opinion about UN conflict resolution and tribunal proceedings. The Panel reported that the current internal justice system is an advance over the previous one (reformed in 2009), but that further improvement is necessary.
Among those areas needing improvement, the Panel noted, is protection from retaliation for UN whistleblowers (para. 105). This conclusion is the Panel’s reaction to a decision of the UN Appeals Tribunal in 2014, which, in a single juridical and semantic contortion, voided the protections purportedly afforded UN whistleblowers when they report wrongdoing. The case was Wasserstrom vs. the Secretary General.
James Wasserstrom was an anti-corruption official at the UN working in Kosovo. His job was to address corruption – which he did. Ruinous reprisal ensued, and he sought relief from the UN Ethics Office. Despite the fact that Wasserstrom lost his job, his home was searched, he was placed under investigation and forced to flee Kosovo, the Ethics Office ultimately determined that he had suffered no retaliation. The attacks on Wasserstrom were found to be random acts by rogue actors, and he then sought vindication from the UN justice system. After deliberating the facts, the Dispute Tribunal ruled in his favor: what happened was retaliation, pure and simple.
The judgment, however, was overturned subsequently on a technicality by the UN Appeals Tribunal (UNAT). According to the UNAT, the justice system could not review a determination of the Ethics Office because it was only a recommendation to the Secretary General and not a decision. Therefore, the UNAT ruled, Wasserstrom had no recourse when the EO found that he had not suffered retaliation. After nearly a decade of litigation, he received no recompense for what had occurred.
When the EO finds retaliation, it makes a recommendation for action to the Secretary General, who then makes an administrative decision accepting and acting upon the EO’s recommendation. The UNAT judges ruled that only administrative decisions made by the SG are contestable at the Tribunal and recommendations, such as those made by the Ethics Office, cannot be reviewed by the justice system.
But here’s the problem. If the Ethics Office finds no retaliation, there is no recommendation to the SG, who therefore makes no administrative decision. So there is nothing to contest at the Tribunal. Only when the Ethics Office determines that retaliation did occur does the SG make an administrative decision and act to provide relief to the whistleblower.
You will note, however, that if the Ethics Office recommends that the SG act to protect and compensate a whistleblower, then the whistleblower needs no access to the justice system. Justice has been done. Only when the EO finds no retaliation, as in the Wasserstrom case, and there is no action forthcoming from the SG to protect the whistleblower, does he/she need access to a judicial review.
In brief, whistleblowers have access to judicial review when they don’t need it, and they don’t have it when they do.
This peculiar arrangement is reminiscent of Major Major’s appointments schedule in Catch 22. Remember him? He was the mediocre military officer who feared people and paperwork. To protect him from human contact, his secretary only allowed soldiers to go into his office to see him when he was out. Or, as a sergeant explained: Major Major never sees anyone in his office, when he’s in his office.
The IIAP found the analogous reasoning of the UNAT unacceptable and said so.
When the Ethics Office or OIOS [Office of Internal Oversight Services] who are competent bodies to proceed with an investigation or complaint, do not fulfill their responsibilities in a just or fair manner, the staff member who has been the target of retaliation is left with no recourse…If the courts lack the power to redress this problem, then legislative action on the part of the GA [General Assembly] becomes imperative to ensure justice for all (para. 245).
The IIAP is right. The General Assembly must act, therefore, to provide an escape from the closed loop of logical UNAT nonsense. It is now the responsibility of the GA to ensure that all staff members, especially those who report wrongdoing, are protected by the anti-retaliation policy and the Ethics Office. The only way to do this is to guarantee that the internal justice system can review and reverse mistaken determinations, whoever makes them and whatever they are called.