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Earlier today, GAP released a new report that details the existing whistleblower protections found throughout Europe. This paper, authored by GAP Adjunct Attorney Thad Guyer and Seattle-based attorney Nikolas Peterson, is being released ahead of next week's midyear meeting of the American Bar Association's International Labor & Employment Law Committee, being held in Rome. Guyer will speak on a panel discussion about whistleblowing on Wednesday, May 8.
The report, The Current State of Whistleblowing Law in Europe, details how very few European countries have enacted laws that directly protect whistleblowers. This is in "stark contrast" to the United States, which offers a multitude of different protections for employees across corporate industries and government agencies. The paper argues that most European Union (EU) nations have nothing more than a "patchwork" of whistleblower protections found buried in other legislation. From the report:
Currently, only six countries in Europe have any type of dedicated whistleblower legislation – United Kingdom (UK), Norway, Netherlands, Hungary, Romania, and Switzerland. Of these six countries, only two, UK and Norway, have dedicated whistleblower protection laws that extend to all workers, in both the public and private sectors, including contractors and consultants.
This paper explains current protections in the EU, United Kingdom, France, Germany, and Italy. It also provides a summary of current European whistleblower issues, and looks at the current state of protections at international organizations that are, or have departments based, in Europe. This includes the United Nations and the International Monetary Fund. This section specifically focuses on International Administrative Tribunals at these institutions.
Dylan Blaylock is Communications Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.
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UN Secretary General Ban Ki-moon
Earlier this week, UN Secretary General Ban Ki-moon announced that there will be a review of whistleblower protections at the United Nations. At a press conference, the Secretary-General stated that “we are receiving certain complaints about implementing all of these whistleblower-protection policies. Therefore, we have asked outside consultants to look into this process, whether there is any area for improvement. This report will come to me and we will do our best...”
This announcement comes in the wake of a media briefing earlier this month with GAP client James Wasserstrom. During the conference (which can be watched here), GAP critiqued the United Nations’ whistleblower protection record and asked the organization to take concrete steps to protect whistleblowers, including conducting an independent external review of all the protection against retaliation cases that the Ethics Office (which is charged with reviewing such complaints) has failed to substantiate. Media outlets across the globe subsequently reported on the Wasserstrom case, including The New York Times, Associated Press, Al Jazeera and Reuters, among others. The Secretary General’s announcement also comes after a statement from the UN Fifth Committee – the administrative and budgetary committee of the General Assembly – earlier this month in which it noted “the intention of the Secretary-General to conduct a comprehensive review of the existing policy for protection against retaliation in the Organization” and requested “the Secretary-General to expedite the development of modalities in this regard and to report thereon to the General Assembly at its sixty-ninth session.” (para. 75, see also para. 77)
GAP is encouraged by the Secretary General’s announcement, but notes that significant obstacles to its effective implementation remain. In selecting the appropriate consultants, the United Nations must choose qualified people with expertise in whistleblower protection. Otherwise, this review will lack credibility. We also hope that when the Secretary General said “we will do our best,” he meant that the organization will take concrete steps to address this problem, rather than continuing to sweep it under the rug. In other words, if the review determines that any retaliation claims were improperly declined by the Ethics Office, they should be re-adjudicated.
We must also point out that although a review is an important first step, it is not enough to fix the whistleblower protection issues at the United Nations. The Secretary General should take additional steps to demonstrate his commitment to implementing best practice whistleblower protections, among them:
- Revise the UN’s whistleblower protection policy to meet best practices. For example, the policy should provide protection against retaliation to all relevant applicants who challenge betrayals of the organization’s mission. Currently, some of the people who are most likely to be aware of misconduct in UN peacekeeping operations, including UN police officers, peacekeepers, and victims, have no protections if they report misconduct.
- Discipline the retaliators in validated whistleblower cases, such as Wasserstrom’s.
- Adhere to orders and judgments issued by the Tribunals in whistleblowing cases (i.e. orders to release reports investigating a whistleblower’s retaliation claims).
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As virtually all observers of the Global Fund (GF) operations know by now, the Board of the organization fired John Parsons, the Inspector General, in November 2012. At the time, Simon Bland, Chairman of the Board of GF, issued a press release that attempted to justify the termination by criticizing Parsons’ performance. In January 2013, Parsons filed two lawsuits at the Administrative Tribunal of the International Labor Organization (ILO) in Geneva. He’s suing GF for wrongful termination and defamation.
As a longtime observer of intergovernmental organizations and as an organization that defends whistleblowers, GAP recognizes a troubling pattern of events here that smacks of retaliation.
The facts are these. Parsons is a longtime auditor and investigator with forty years’ experience at increasingly responsible positions in both national and international settings. In 2011 his reports, as issued by the Office of Inspector General (OIG) at GF, began to reveal a problem of what appeared to be corruption and fraud in certain grants. His findings were consistent with the concerns of Zubair Hassan, former CFO at GF, who reported to the Board that the organization’s internal controls were extremely weak and ad hoc. Hassan detailed these issues in a 12-page letter to the Board, just before he resigned, apparently under a great deal of pressure.
The Board convened a High-Level Panel (HLP) to explore the issues raised by both Hassan and Parsons in 2011. The HLP concluded that, of all oversight mechanisms at GF, only the OIG was functioning effectively.
The Board then fired the IG and issued a career-wrecking press release about Parsons to explain its actions.
In the meantime, the Board also removed responsibility for investigating Hassan’s allegations from the OIG, and the Chair of the Board contracted an ad hoc investigation. In removing the OIG from the process, the Board Chair also relieved the organization of its obligation to be transparent and release the report. Nonetheless, when asked, the Chair of the Board promised to release the report. A spokesman for the Global Fund, however, responded to GAP's request for the report two weeks ago to say that the Board received the report last May and decided not to release it. Hassan himself is unable to speak publicly. Presumably, he was forced to sign a non-disclosure (gag order) when he left the Global Fund.
So here’s the problem for the Global Fund. The United States, the organization’s largest single donor, can only authorize its contribution after the State Department certifies to the Congress that the OIG is functioning independently. It’s difficult to certify that the OIG is functioning independently when the Board fired the IG subsequent to his reports of corruption and fraud in the organization’s grants (actually, firing an auditor, investigator or IG under any circumstances raises red flags, but with this background, the flapping flags are large and bright).
At the same time, here’s the problem for Parsons, Hassan and the public. Parsons is muzzled while his case makes its way through the judicial process. In a normal court of law – from which GF and other intergovernmental organizations are shielded by legal immunities – filings such as Parsons’ would be public information. The taxpaying public – whose involuntary levies finance the GF – would hear Parsons’ side of this story. In the Administrative Tribunal at the ILO, where Parsons must file, however, all documents are confidential until the judges issue a ruling. On average, about two years elapse between a case submission and a decision. By 2014 or 2015, when we can expect a ruling in Parsons’ case, his reports will be utterly forgotten, operations will continue as before, and those who profit from the fraud will be fatter, happier and richer. While the sick and the poor in the developing world, whom GF claims to help, will be sicker and poorer. Many, of course, will be dead.
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On March 15, the United Nations Dispute Tribunal (UNDT) issued a judgment on relief in whistleblower James Wasserstrom’s case. The Tribunal – the court of first instance of the two-tier internal justice system through which UN employees contest violations of their rights – issued a scathing critique of the UN Ethics Office, which is charged with reviewing retaliation complaints from whistleblowers.
Wasserstrom disclosed a possible kickback scheme involving local politicians and senior UN Interim Administration Mission in Kosovo (UNMIK) officials related to a controversial proposed power plant. After blowing the whistle, his contract was not renewed, his passport was confiscated, his car and his apartment were searched, he was subjected to administrative and criminal investigations, his UN ground pass was taken away, his office was "cordoned off with crime scene tape," and his photograph was placed at the entrances of his former workplace. In 2007, he approached the Ethics Office to request protection from retaliation. The Office, however, failed to protect him.
Judge Meeran found that the Ethics Office "clearly violated the Applicant’s right to a fair and competent consideration of the facts." According to the judgment:
The Tribunal finds it difficult to envisage a worse case of insensitive, highhanded and arbitrary treatment in breach of the fundamental principles of the Universal Declaration of Human Rights, including arts. 1, 3, 6, 7, 8 and 9. The failures of the Ethics Office to recognize such gross violations calls seriously into question its suitability and effectiveness as a body charged with the duty … to assist the Secretary-General in ensuring that all staff members observe and perform their functions consistent with the highest standards of integrity required by the Charter of the United Nations …
Judge Meeran also found "that as an institution charged with the responsibility of uncovering acts of retaliation the effectiveness of the Ethics Office leaves much to be desired." GAP agrees with this assessment. According to a GAP review of the Ethics Office’ s annual Activities Reports (for 2006, 2007, 2008, 2009, 2010 and 2011), approximately 297 protection-against-retaliation-inquiries were received from 2006 to July 31, 2011. During that time period, the Office substantiated retaliation and recommended relief in only one case. And even the one whistleblower who was vindicated claims that he was not completely protected from retaliation.
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Tomorrow, the Executive Directors of the World Bank are scheduled to discuss "A Common Vision for the World Bank Group," which sets out the development strategy for the institution through 2030.
The goals are ambitious, and the challenges are formidable. Despite impressive economic growth at the country level in the developing world, 1.3 billion people continue to live in extreme poverty. Moreover (although the strategy does not mention this) the level used to classify extreme poverty (less than $1.25 per day) has been a constant figure since 2005, despite the dramatic increases in the price of food and energy since then. So in effect, extreme poverty is more desperate than ever.
The Bank also presents, in this analysis, an astonishing figure: "the share of the world's population that is not poor but that is vulnerable to fall into poverty has increased to around 50 percent." In other words, even those who have escaped the most dire conditions are only able to meet basic needs precariously, and if any economic shock should occur, they may slip back into destitution.
There are deepening contradictions, too, in the way the World Bank continues to contemplate a solution to the persistent poverty problem. The reduction of poverty rates is still to be achieved through economic growth, but as the strategy points out, "there continues to be huge stress on the global commons – most notably in the realm of climate change." So the task is to promote economic growth in ways that do not aggravate already serious problems of environmental degradation.
Although much of this sounds familiar, there is still something new here: "Countries will have to implement policies that prevent large increases in inequality as well as prevent or manage shocks." While most of the analysis focuses on poverty and the poor, there are recurring references to the need for "shared prosperity." If inequality persists and increases, economic growth will have to be correspondingly higher to bring relief to the poor. Such a prospect will aggravate strains on the global commons rather than diminishing them, and the poverty reductions achieved will be only ephemeral. More and more, even the Bank is forced to reckon with a closed system.
To cope with reduced latitude in development strategies, the new plan envisions continuing modernization and reform at the Bank itself, and while there is a certain self-congratulatory tone, the authors seem to realize that the Bank is not sufficiently focused. "Dynamic selectivity" is a new catch phrase, meaning that Bank instruments and projects will become more flexible and responsive to needs and demands.
In an annex to the strategy, the Bank lays out the methods to be used to attack development challenges. The approach appears to be more decentralized and privatized, with greater deference to "clients" through instruments such as the Program for Results. "P4R," gave World Bank watchers fits because it moved Bank-funded activities out from under institutional safeguards. Ironically, the strategy lays out the new Program, reports on the funding provided, identifies participating countries and describes objectives to be achieved, but actual results are not featured. Many feared, as P4R was deployed, that the World Bank was moving backward not forward by formulating loans that evaded environmental safeguards particularly.
In a sense, it seems that the new strategy seeks to promote an image of change, flexibility and reform at an institution now over 60 years old. At heart, though, the core beliefs are much the same – despite the changing forms. While there are new phrases about knowledge and dynamism, the possibilities of putting an optimistic face on "development" are fading away.
Bea Edwards is Executive & International Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.
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LaEx-World Bank Managing Director Mahmoud Mohieldinst weekend, Egypt’s upper house of Parliament formally sanctioned a “reconcilement law” which, according to the head of the justice ministry’s legislative committee, Sherif Omar, is designed to “encourage businessmen to settle their financial disputes,” even if they previously fled the country to escape conviction for corruption. The new law will provide retrials for individuals convicted of financial crimes, and it has many supporters. One of them is Omar, who believes that this quasi-amnesty will “lead dozens of businessmen to return to Egypt.” A second justice ministry official asserts that the law will inject much-needed capital back into the economy.
Nonetheless, multiple civil society groups publicly oppose the measure – with good reason. While the law requires a committee headed by the justice minister to oversee the new process, this set up, as raised last week by the Egyptian Initiative for Personal Rights (EIPR), may actually prevent legitimate judicial supervision by allowing the executive branch sole oversight. EIPR has a point and the organization captured the problem perfectly:
"The committee could easily be politicized and pave the way for the return of Mubarak-era officials."
That is exactly what we must watch for now.
The Ahram Online article cited above names several former Mubarak-era ministers tried for profiteering and financial corruption who may return home. For us, the most notable fugitive mentioned is former Minister of Trade Rachid Mohamed Rachid. As detailed in our year-and-a-half long investigation into the role former Minister of Investment Mahmoud Mohieldin played in at least three suspicious (and potentially criminal) privatization transactions (two of which connect Mohieldin to Rachid), Rachid fled Egypt in early 2011. He was tried in absentia, convicted and sentenced to five years in prison for embezzling public funds and profiteering. Subsequently, he was charged in absentia yet again and sentenced to an additional fifteen years for squandering public funds.
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A provision in the U.S. National Defense Authorization Act of 2013 (NDAA 2013) – which was signed into law by President Obama on January 2, 2013 – will strengthen whistleblower rights for U.S. police officers who work in United Nations (UN) peacekeeping missions. Specifically, all police officers stationed in peacekeeping missions who work for a State Department contractor, such as DynCorp and PAE Group, will now have best practice protections against retaliation and more robust mechanisms through which to enforce these rights. This law temporarily fixes a gaping accountability loophole in which U.S. police officers who reported sexual exploitation and abuse, human trafficking, and other appalling misconduct in the peacekeeping missions lacked credible channels through which to challenge subsequent retaliation by their employer.
Although the United Nations encourages officers to report misconduct, it doesn’t protect them if they are retaliated against for having done so: that job is left to the police officer’s country of origin. But the U.S. supplies its officers through private government contractors, many of which have created systems that allow them to evade legal accountability. Some of these companies: are incorporated outside the U.S. (i.e. in the United Arab Emirates and Singapore); coerce employees into signing contracts governed under the laws of the foreign jurisdiction; and require the whistleblower to waive his or her right to sue in U.S. courts. This architecture of impunity has made it difficult for U.S. whistleblowers who expose misconduct in UN peacekeeping missions to challenge retaliation.