At a film screening of The Whistleblower at UN headquarters in New York last month, UN Secretary-General Ban Ki-moon claimed to be committed to protecting whistleblowers. He said that the film, which details the true story of the United Nations' complicity in the sex-trafficking industry in Bosnia, "underscores how important it is to speak out against abuse or injustice ... Those who do so, in good faith, must not be punished ... We need to promote a culture in which people feel free and obliged to raise their voices in the face of wrongdoing and abuse."
The sad truth, however, is that the Secretary-General is not promoting that culture. In fact, he's doing the opposite.
In 2007, he sanctioned the fragmentation of the UN's whistleblower protection policy and allowed weaker standards to apply to funds and programmes. Now, he's taking this a step further, essentially proposing that whistleblowers be denied access to the UN internal justice system – the mechanism through which UN employees contest violations of their rights.
If passed, this horrendous proposal would effectively render whistleblower protections at the United Nations meaningless.
According to paragraph 276 of the Secretary-General's report to the General Assembly: (A/66/275) "a determination by the Ethics Office regarding retaliation should not be subject to challenge before the Dispute Tribunal." In paragraph 280, the Secretary-General recommends that the Tribunal's statutes be revised so that decisions made by the UN Ethics Office, which is charged with reviewing retaliation complaints and safeguarding the interests of whistleblowers, could no longer be appealed to the UN justice system.
One of the main problems with this proposal is that the UN Ethics Office has a dismal record of protecting whistleblowers. Since August 2007, the Ethics Office has ultimately substantiated retaliation in less than 1% of the cases that it has reviewed. During that time period, nearly 200 UN staff members who claimed to be whistleblowers were not protected from retaliation. If the Secretary-General's proposal is adopted by the General Assembly, then these whistleblowers will have little recourse when the Ethics Office fails to protect them from retaliation.
Last week GAP sent a letter to members of the UN Administrative and Budgetary Committee, which is currently considering this issue, summarizing our concerns about this proposal. United Nations Dispute Tribunal judges are also opposed to the Secretary General's proposal, which they claim is "tantamount to allowing these entities to exercise power without accountability. The recommendation would consequently raise serious concerns regarding the respect for the rule of law within the Organization, especially taking into account the far-reaching consequences for staff members of decisions taken by such independent entities." (para. 18)
The new UN justice system was launched in July 2009 and consists of the United Nations Dispute Tribunal (UNDT), the first instance of the two-tier justice system, and the UN Appeals Tribunal (UNAT). Several of the system's initial decisions appear to be favorable to whistleblowers who contested Ethics Office decisions.
Recently, Judge Vinod Boolell ruled that UNDT can review Ethics Office decisions:
The Tribunal agrees with the Applicant in that the finding of the Ethics Office had direct consequences for her rights because it effectively brought the complaint process to an end for her and prevented her, whether justly or unjustly, from pursuing any redress for the protected activity she had been found to have engaged in. It would be absurd that a decision, such as the one in this case, which impacts a staff member's rights, should be unchallengeable. (Judgment No. UNDT/2011/063, para. 39) [emphasis added]
But now, absurdly, the Secretary-General is trying to limit the ability of whistleblowers to bring these challenges. If he is successful, his actions will likely have a chilling effect that will result in less whistleblowers coming forward with concerns about fraud and corruption. This, in turn, could harm the ability of the United Nations to achieve its mission.
GAP urges the Secretary-General to honor his recent promise to protect whistleblowers. To do this, he must withdraw his proposed change to article 2.1(a) of UNDT's statutes.
Shelley Walden is International Officer for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.
