How the UN fails whistleblowers

[NOTE: This is a letter from the UN Whistleblower Coalition to the UN Special Rapporteur on Freedom of Opinion and Expression, David Kaye, who will be presenting a report on protection of sources and whistleblowers to the UN General Assembly in October.]

Over the past decade the United Nations and its specialized agencies have established new whistleblower policies. Unfortunately, implementation is weak in many of the UN agencies and the policies themselves may lag behind best practice standards. In practice, it is our experience that the policies afford little meaningful protection for whistleblowers.

As the case summaries below demonstrate, retaliation against whistleblowers can affect the entire UN system. Some UN whistleblowers have been fired or demoted; others have been subjected to more subtle forms of abuse like non-renewal of contracts or sudden transfer to distant duty stations; many face plain, simple harassment and intimidation. UN whistleblowers may also have their visas revoked or be required to flee the country where they are living and working as a result of the retaliation. Consequently, we can assert that fear of reporting wrongdoing is common.

Because the UN enjoys extensive legal immunities, particularly with respect to personnel conflicts, staff members are not able to access national courts to resolve employment disputes. UN whistleblowers are therefore forced to go through lengthy, and often expensive, internal appeal processes that are compromised by a structural conflict of interest. The organization is a defendant in any case brought before its internal tribunals, at the same time that the tribunal is housed in, and funded by, the institution.

Put simply, the UN system of justice fails whistleblowers, and most of us have been forced to leave the UN to save our livelihoods, our health and our reputations. The UN Ethics Office, which receives appeals for protection from whistleblowers, has substantiated retaliation in less than 4 percent of the cases that it has reviewed since its establishment in 2006 (the Office was contacted by more than 440 potential whistleblowers, reviewed approximately 120 cases and substantiated retaliation in 4 cases and one of those whistleblowers claims he was not adequately protected from retaliation). The two-tier internal justice system through which UN employees formally contest violations of their administrative rights has also failed to protect most whistleblowers. While the lower UN Dispute Tribunal (UNDT) has ruled in favor of some whistleblowers, the UN Appeals Tribunal (UNAT) has established a record of vacating these decisions on technicalities.

UNAT appears to have a clear bias in favor of the Secretary-General. According to Office of Administration of Justice’s seventh activity report (1 January to 31 December 2013), 72% of appeals filed by applicants were rejected by UNAT, whereas only 18% of appeals filed by the Secretary-General were rejected. This pattern was also evident in UNAT’s most recent session, when it dismissed the majority of appeals filed by staff members and granted the majority filed by the Secretary-General. We are particularly concerned about UNAT’s record on whistleblower claims. In case after case, UNAT judges have ruled against the whistleblower. Even when UNAT decides in favor of the whistleblower, the Tribunal often reduces the compensation awarded by UNDT to an amount that fails to cover the full consequences of the retaliation. One particularly clear example is the Wasserstrom judgment described below. The Nguyen-Kropp & Postica, Hunt-Matthes, Rahman, Shkurtaj and Tadonki cases also demonstrate the Appeals Tribunal’s record of hostility toward whistleblowers.

Whistleblower rights are human rights. Whistleblowers should be protected by the principles of the Universal Declaration on Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, especially when they work for organizations charged with upholding those conventions. An organization should not be allowed to retaliate against whistleblowers with impunity simply because it is immune from national laws.

We call on you to urgently review whistleblower protection for UN staff, and for those serving in affiliated specialized agencies and international organisations not protected by national laws. In the case of whistleblowers, this immunity can easily become raw impunity. Without proper whistleblower protection, wrongdoing at the United Nations—be it sexual exploitation, abuse of power, fraud or corruption—will be under-reported and will continue to go unchecked. There will be no accountability. This can only damage the UN's moral standing and, ultimately, its legitimacy.

POLICY LIMITATIONS

The enclosed document by the Government Accountability Project, a U.S. non-profit organization that helps whistleblowers, describes some of the shortcomings in the UN Secretariat’s whistleblower policy. In addition, our coalition would like to highlight the additional policy problems set out below.

In January 2014 the U.S. Congress passed legislation that prohibits the allocation of 15 percent of its contribution to the United Nations Secretariat or any UN agency until the Department of State reports that the organization is implementing best practices for whistleblower protection, including: “(i) protection against retaliation for internal and lawful public disclosures; (ii) legal burdens of proof; (iii) statutes of limitation for reporting retaliation; (iv) access to independent adjudicative bodies, including external arbitration; and (v) results that eliminate the effects of proven retaliation.”[1]

Currently, the UN clearly fails to meet three of these key standards. First, the UN does not offer whistleblowers access to external arbitration. Two UN whistleblowers – Khalilur Rahman from UNCTAD and Miranda Brown (formerly at WIPO and OHCHR) – recently requested access to external arbitration and they were both denied. The Office of the Secretary General wrote to each asserting that the UN internal justice system does not provide for such access. Secondly, the UN fails to comply with best practice statutes of limitation. Although the UN whistleblower policy says that whistleblowers have years to report retaliation, in practice they have only 60 days to challenge a retaliatory act through the organization’s justice system (the best practice statute of limitations is at least six months). The United Nations also has a poor record of protecting whistleblowers and of providing them with comprehensive relief that eliminates the effects of proven retaliation, as demonstrated by the cases below.

CASE EXAMPLES

The following cases show how whistleblowers protections in the UN system are implemented in practice. We would be glad to provide additional information about any of these cases upon request. Not all of these whistleblowers are members of our coalition, but they have authorized us to share their cases publicly.

AICHA ELBASRI: (SECRETARIAT) Elbasri is the former spokesperson for the African Union-UN Mission in Darfur (UNAMID). She claims that UNAMID and the Department of Peacekeeping Operations routinely misled the media and UN Security Council members by covering up atrocious crimes committed by Sudanese government forces, including ethnic targeting; forced displacement and bombing of civilians; systematic, mass rape; as well as attacks on UN peacekeepers. Elbasri resigned on April 2013 in protest and asked UN’s Office of Internal Oversight Services (OIOS) to investigate her disclosures, which failed to do so. On 23 June 2014, the International Criminal Court called on Secretary-General Ban Ki-moon to set up a “thorough, independent and public inquiry” into Elbasri’s public allegations. Ban failed to meet this call, ordering instead an internal Team Review made up of UN staffers, lacking the required investigative expertise and independence. The Team concluded that in five instances UNAMID withheld from DPKO key evidence that establishes the responsibility of the government forces in crimes, including the massacre of up to 100 civilians, but failed to identify the Mission’s misbehavior and “lack of frank reporting” as misconduct. To this day, the UN refuses to make the full report public and to hold any senior UNAMID official to account.

JAMES WASSERSTROM: (UN SECRETARIAT) Wasserstrom, an American citizen, was a senior official at the UN Interim Administration Mission in Kosovo (UNMIK) who disclosed a probable kickback scheme involving local politicians and senior UNMIK officials. After disclosing this, his assignment was not extended, his passport was confiscated, his car and apartment were searched, he was subjected to administrative and criminal investigations, and his photograph was placed at the entrances of his former workplace. The United Nations Dispute Tribunal found that the UN Ethics Office misapplied the burden of proof in his case and reached a “fundamentally flawed” conclusion when it failed to substantiate retaliation. UNDT ruled that the retaliation was so extreme that it violated the Universal Declaration of Human Rights. In 2014 the UN Appeals Tribunal reversed UNDT’s judgment because it found that the case was not receivable because Ethics Office findings cannot be challenged before the formal justice system.

KHALILUR RAHMAN: (UNCTAD/SECRETARIAT) Rahman’s case represents the first instance in which the UN Ethics Office confirmed retaliation. In 2010 the Office found that several high-level officials of the UN Conference on Trade and Development (UNCTAD) retaliated against him for having reported serious misconduct by a senior official. The Office recommended that he be transferred and that disciplinary action be taken against the perpetrators. The Secretary General rejected this recommendation and ordered him to return to UNCTAD, even though UNCTAD said it could not protect him from retaliation. The UN refused to compensate him for his damages and failed to protect him from spillover retaliation. Although the retaliators were assessed minimal fines, one was promoted and both are employed by UNCTAD post-retirement. Rahman requested external arbitration in his case, but the Secretary General refused. He also appealed to UNAT the failure of the institution to restore him to the professional and financial standing he had prior to making protected disclosures. In judgment 2014-UNAT-453, UNAT dismissed this appeal. In response, George Irving, counsel for Rahman, said, “The UN missed the final opportunity to meet even the minimum thresholds of universally accepted best practices in this very first case of proven retaliation within the Secretariat. My client has been left worse off than his retaliators...”

CAROLINE HUNT-MATTHES: (UNHCR/SECRETARIAT) Hunt-Matthes was a senior investigation officer with UNHCR’s Inspector General’s Office who reported, among other things: interference with an investigation of an alleged rape by a UN staff member; the failure to register a sexual harassment complaint against the High Commissioner; and the unlawful detention of refugees by senior UNHCR staff. After making her disclosures, she was fired with one day’s notice. The UN Ethics Office failed to find a prima facie case of retaliation in her case. UNDT issued a first verdict in her favor that was highly critical of the Ethics Office and a second verdict that found that she was retaliated against. In 2014 UNAT overturned the first verdict because the retaliation predated the establishment of the Ethics Office, and sent the second decision back to UNDT on a technicality. UNAT’s ruling ignored the fact that Hunt-Matthes’ request to the Ethics Office was made in 2006, after the new whistleblower policy went into effect. Moreover, she requested protection from ongoing retaliation that was occurring in 2006. Meanwhile, Hunt-Matthes continues to wait for relief after 10 years of legal battles.

MS. X: (SECRETARIAT) Ms. X is an American who worked as a police officer with the UN Stabilization Mission in Haiti (MINUSTAH), through a company under contract with the State Department. Ms. X made several disclosures, including one about potential sexual exploitation and abuse by UN police officers of women living in a camp for earthquake victims. In retaliation, she was given a negative performance evaluation, threatened with an investigation, and abruptly terminated. Ms. X filed a retaliation complaint with the UN Ethics Office, but it concluded that the UN whistleblower protection policy does not apply to police officers and that it could not protect her.

MONCEF KATEB: (WIPO) Kateb was the former president of the World Intellectual Property Organization (WIPO) Staff Council. He was dismissed in September 2014 after making several whistleblower disclosures, including about an illegal shipment of sophisticated IT equipment to North Korea. His dismissal was done in advance of WIPO's annual governing body meeting, where he was expected to criticize the controversial management style and behaviour of Director-General Francis Gurry. Both the special rapporteur and the UN staff union have issued a letter to the governing body of WIPO calling for Kateb's reinstatement, but he has not yet been reinstated.

JAMES POOLEY: (WIPO) Pooley was a Deputy Director General of WIPO. He disclosed unchecked abuses of authority by the Director General (DG), Francis Gurry, to whom he reported directly. Mr. Pooley alleged, first, that DG Gurry violated procurement rules by ordering an internal committee to make changes to a competitive bidding process in order to favor a company run by a friend and fellow Australian. When the committee refused, Gurry cancelled the process and ordered that the contract be awarded directly to his friend’s company. Pooley also alleged that DG Gurry gave Swiss police stolen forensic evidence in order to incriminate staff members he suspected of criticizing him. Pooley was subjected to reprisal in the form of restriction on work travel, marginalization, exclusion from consultations and loss of responsibilities. He filed a complaint of retaliation as required under the WIPO policy, but because his term ended two months later, WIPO refused to consider it, since he was no longer a staff member.

MIRANDA BROWN: (WIPO) Brown was the Strategic Adviser to WIPO Director General Francis Gurry. She disclosed unchecked abuses of authority by DG Gurry, to whom she reported directly. Brown alleged that Gurry engaged in a pattern of degrading treatment, discrimination and abusive behavior towards staff. She also alleged that Gurry gave Swiss police stolen forensic evidence in order to extract staff members’ DNA and incriminate those he suspected of criticizing him. Brown was forced to leave WIPO. She moved to another UN organization, the Office of the High Commissioner for Human Rights (OHCHR), dropping two grade levels. Within days of being called to testify as a witness in the WIPO investigation, Brown’s contract at OHCHR was not renewed and when she appealed, she was advised that she would be transferred to Fiji (among the furthest duty stations from Geneva) with immediate effect.

AI LOAN NGUYEN-KROPP & FLORIN POSTICA: (SECRETARIAT) In 2009 these investigators disclosed that the acting director of OIOS’ Investigations Division withheld and tampered with evidence in a case. The acting director subsequently expelled Nguyen-Kropp from her office and negatively influenced her performance evaluation. The Department of Management escalated the retaliation by initiating an investigation of Nguyen-Kropp & Postica and requesting that several intergovernmental organizations supply a specialist to lead it. Neither whistleblower was given notice or opportunity to respond. The Ethics Office found a prima facie case of retaliation, but failed to substantiate retaliation after an investigation. UNDT ruled in the whistleblowers’ favor, concluding that they were retaliated against and that “it is difficult to find a more direct causal link between a protected activity and an adverse action.” But in 2015, UNAT ruled that the case was not receivable and overturned UNDT’s judgment, leaving the whistleblowers without relief.

GEORGES TADONKI: (SECRETARIAT) Tadonki worked for the Office for the Coordination of Humanitarian Affairs (OCHA) as head of office in Zimbabwe. In 2008 he raised concerns about the humanitarian preparedness of the country and the severe risk of cholera there (an unmitigated cholera epidemic subsequently resulted that could have been addressed if the UN had heeded his warning). Tadonki was subsequently investigated, abruptly removed from the office, and told his contract was not renewed. UNDT found that he was retaliated against and referred several senior officials to the Secretary General for possible action to enforce accountability. Rather than discipline the officials, the Secretary General appealed to UNAT, which upheld the referrals and retaliation finding, but greatly reduced the compensation to an amount that was insufficient to eliminate the effects of retaliation.

VESNA DZUVEROVIC: (UN-HABITAT/SECRETARIAT) After working for 5 years as a UN Volunteer, Dzuverovic was recruited by UN Habitat for a professional post of financial nature. When OIOS circulated a memo inviting staff to report on financial abuses - faced with daily irregularities that she could not stop - she went to OIOS, as advised by the UN ombudsman. A week after that she was transferred against her will, and then transferred again and again to new and different posts each year although her performance evaluations were always very good. Finally, her contract remained unextended only 5 months before she would have qualified for a UN pension. She followed all available internal staff-protection routes but in spite of their support, she has never been re-instated. In 2011 she contested before UNDT OIOS' refusal to investigate both her original disclosure and the retaliation she suffered (she claims that she was 'blacklisted,' as she has never been selected again for any position anywhere in the UN system, although she applied regularly and was fully qualified). UNDT found that her case was inadmissible for procedural reasons, but added a 16-paragraph recommendation asking the Secretary General to review it and “reassure whistleblowers that they are indeed protected.” Two years have passed, but the SG has yet to act on this recommendation.

ARTJON SHKURTAJ: (UNDP) Shkurtaj disclosed financial and administrative irregularities in the UN Development Program’s (UNDP) operations in North Korea, including the apparent transfer of hard currencies to North Korean officials and entities in violation of UNDP regulations. Shkurtaj’s appointment was rescinded and he was barred from entering UN grounds. In 2007 the UN Ethics Office Director asserted that a prima facie case of retaliation existed. In response, the UNDP Administrator claimed UNDP was not subject to the Office’s jurisdiction and appointed an ad hoc panel. The Ethics Office reviewed the panel’s findings and recommended that Shkurtaj be compensated because UNDP released negative findings about him without notifying him or allowing him to respond. UNDT & UNAT upheld the Office’s recommendation, but UNAT reduced the compensation awarded to six months net base salary, which barely covered his costs, let alone the effects of retaliation. The U.S. Senate Permanent Subcommittee on Investigations reviewed the case and concluded that UNDP “undermined its whistleblower protections.”

CYNTHIA BRZAK: (UNHCR) In April 2004 Cynthia Brzak, a long-time UNHCR staff member and elected staff union representative, claimed to OIOS NY that she was indecently assaulted by UN High Commissioner for Refugees Ruud Lubbers, and subsequently harassed twice by Werner Blatter, then-Director of Human Resources. An investigation by OIOS in May-June 2004 found a pattern of sexual harassment and misconduct by Mr. Lubbers, and misconduct by Mr. Blatter. OIOS recommended inter alia action against them, and that investigation findings be shared with UNHCR staff, but then UN Secretary General Kofi Annan decided the “allegations could not be substantiated,” the report was buried and the OIOS Director was hounded out of office. Lubbers eventually resigned in February 2005 when the UN and Dutch government called for him to step down, as he became a high-profile liability when the UN Oil-for-Food scandal broke.

Largely due to her case, the UN General Assembly called for creation of the Ethics Office and whistleblower protection, resulting in issuance of ST/SGB/2005/21 in December 2005. When Ms. Brzak and Nasr Ishak (a senior UNHCR inspector perceived to have advised her) met with the then Ethics Office Director to request protection from ongoing retaliation, he told them they were “wasting his time,” even though it’s the Director’s duty to protect whistleblowers. Brzak and Ishak brought a case in the U.S. 2nd Circuit Court in New York, in which they claimed retaliation and racketeering. It was thrown out there, then on appeal, as the Secretary General refused to lift diplomatic immunity to allow prosecution. Then, in October 2010 the U.S. Supreme Court refused to examine the constitutionality of diplomatic immunity, rejecting their petition. Meanwhile, despite her post being targeted for cutting in May 2005 and retaliation that never abated, Ms. Brzak (and Mr. Ishak) managed to maintain employment. Ms. Brzak was hospitalized twice for service-incurred reasons recognized by the UN, and was forced to navigate new ‘procedural’ labyrinths that resulted in two-year delays handling her medical bills. Two years before mandatory retirement, she took UNHCR’s standard separation package after 30+ years of service.

NASR ISHAK: (UNHCR) Ishak worked at UNHCR for nearly 30 years, holding various positions at Headquarters and in the field. In the 1980s and ‘90s, he became aware of cases of mismanagement and misconduct including rape, sexual harassment and exploitation, and even killing/needless loss of life of staff. Those crimes often involved or were known to the senior-most managers, who routinely escaped accountability in the context of a culture of silence and impunity. In 1992, as chairman of the UNHCR Staff Council, he blew the whistle on serious irregularities by the director of the Personnel Department. Although the said director was immediately removed from his position, Ishak was subjected to threats and retaliatory acts including by the then High Commissioner, who decided to suspend the implementation of Ishak’s duly-recommended promotion until he agreed to leave the Staff Council, a proposition which Ishak rejected. Ishak then established a UNHCR staff newspaper and was sued after the issuance of the first edition by a senior representative because the paper exposed that he was hiring his wife under a UNHCR-funded project and was letting her abuse staff and office resources.

Ishak continued to report misconduct and to be subjected to retaliation, including tampering with his office and computer and the denial of a promotion. But it was the sexual harassment claims filed in 2004 against the then High Commissioner that brought retaliation against Ishak to a much more serious level (see the case of Cynthia Brzak), as he was perceived to have advised Brzak to file a formal complaint against the Commissioner. In 2009, Ishak was placed on medical leave and was hospitalized for a service-incurred health condition (for which an “Appendix D” claim was submitted). When he availed himself of the internal processes, UNHCR officials (namely the Ethics Office director, mediator, and inspector general/Investigation Section) failed to take appropriate actions. Ishak’s legal cases were subsequently reviewed by the UN Dispute Tribunal and were all summarily dismissed in an arbitrary manner by UNDT Judge Cousin (who was hired outside the rules established by the UN General Assembly). According to Ishak, the Judge manifestly violated his fundamental right to have his cases heard on their merits and threatened him. At the request of the representative of the Secretary-General, the Judge even fined Ishak over US$ 2,000 for exercising his right to pursue his case before UNDT. Ishak retired from UNHCR as of October 2013 without the settlement of his Appendix D claim.

RASNA WARAH: (UN-HABITAT) Warah approached the UN Ethics Office, the Executive Director of UN-Habitat and the Under-Secretary-General of the United Nations Office in Nairobi (UNON) for protection against retaliation after she accidentally stumbled upon irregularities within her section at UN-Habitat, which led to retaliatory actions by her supervisors. The outgoing Executive Director of UN-Habitat said she could not take any action to address the misconduct, while the USG of UNON advised her to leave the organization and “take a break.” At the time, Warah had been shortlisted for a position within her section. During the interview, one of the interviewers asked her why she wanted to work for an organization she considered to be corrupt. This and other questions by the interviews were clearly intended to intimidate her. When Warah approached the UN Ethics Office for protection, the Office found that she engaged in a protected activity, but that her reports of misconduct were not a contributing factor to the alleged retaliation. Warah then pursued the case with the current Executive Director of UN-Habitat, whose office responded by saying that they had conducted investigations and found no wrongdoing. They did not say who was investigated and did not even interview Warah, which suggests that no investigation actually took place.

END NOTE

[1] Section 7048 (a) (1) (b) of the 2014 U.S. Consolidated Appropriations Act.