Last week I blogged on UN Secretary-General Ban Ki-moon's proposal that whistleblowers be denied the ability to challenge Ethics Office decisions before the UN internal justice system – the mechanism through which UN employees contest violations of their rights. Because the Ethics Office, which is charged with reviewing retaliation complaints and safeguarding the interests of whistleblowers, has ultimately substantiated retaliation in less than 1% of cases it has reviewed since August 2007, the Secretary-General's proposal would result in UN whistleblowers having little recourse when they are subjected to retaliation and would effectively render whistleblower protections at the United Nations meaningless.
GAP has learned that the judges of the United Nations Dispute Tribunal (UNDT), the court of first instance of the UN's two-tier justice system, are also opposed to the Secretary-General's proposal.
In October, UNDT President Judge Memooda Ebrahim-Carstens sent a letter to the General Assembly opposing Ban's proposal to amend UNDT's statutes to remove authority to review the decisions of the Ethics Office and the Office of Internal Oversight Services, which investigates misconduct. The judges observed that the proposal is "tantamount to allowing these entities to exercise power without accountability" and would "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." [emphasis added]
The judges were also concerned about Ban's apparent attempt "to undermine the integrity of the Tribunal and its independence by presenting a misleading and one-sided account of the Dispute and Appeals Tribunals' case law." The judges noted that Ban's report incorrectly stated that the Dispute Tribunal has not yet issued a final judgment regarding whether or not a decision made by the Ethics Office regarding whistleblower retaliation can be reviewed by the Tribunal. In reality, UNDT has ruled in Hunt-Matthes UNDT/2011/063 and Wasserstrom order No. 19 (NY/2010) that an Ethics Office decision is in fact an administrative decision that can be reviewed by the Tribunal.
The judges conclude that Ban's proposal to amend article 2.1(a) of the Dispute Tribunal's statutes "is not in conformity with the philosophy and underlying purpose behind the reform of the system of Administration of justice decided by the General Assembly."
GAP agrees with this assessment, as described in a letter that we recently sent to the UN Administrative and Budgetary Committee. We urge the Secretary-General to withdraw the proposed change to article 2.1(a) of UNDT's statutes. We also encourage him to hold accountable the person who wrote language that mischaracterized the Tribunal's case law, apparently to mislead the General Assembly.
Shelley Walden is International Officer for the Government Accountbility Project, the nation's leading whistleblower protection and advocacy organization.