It has come to GAP's attention that lawyers from the United Nations have questioned statistics that we compiled regarding the record of the UN Ethics Office, which is charged with reviewing retaliation complaints and safeguarding the interests of UN whistleblowers. Specifically, in the Respondent’s Reply in UN Dispute Tribunal case GVA/2011/090, the UN claimed that GAP’s statistic was “entirely incorrect and unfounded.”

GAP takes such accusations seriously. As soon as we became aware of the UN’s critique, we double-checked our numbers and issued an official response, which first appeared on the UNJustice website and can be read below. We hope that these clarifications will help whistleblowers who currently have cases pending before the UN internal justice system.

Dear UN Justice,

Thank you for contacting the Government Accountability Project (GAP) and for giving us a chance to reply to the statement made by the UN’s lawyers regarding the record of the UN Ethics Office (in paragraphs 20-23 of the Respondent’s Reply in Walter Gehr v. Secretary-General of the United Nations). We appreciate the opportunity to double check our numbers and clarify the discrepancies.

Let me explain how GAP arrived at these statistics and where the discrepancies between our numbers and the UN lawyers’ lie. In our initial blog on this issue (which has since been revised) we stated that “According to Ethics Office reports to the Secretary-General, from August 1, 2007 to July 31, 2010, a prima facie case of retaliation was found in 1.5% of the requests for protection from retaliation received by the Office (2 of 134 cases).” This was before we located the 2006, 2007 or 2011 Ethics Office reports, so it only uses statistics from the 2008, 2009 and 2010 reports. Our analysis was limited to those reports because they were the only ones that we were able to locate at that time (we’ve since located all of them and have started quoting a new statistic incorporating every annual report).

Last week, a United Nations Dispute Tribunal (UNDT) judge issued another extraordinary decision that demonstrates the Tribunal’s respect for whistleblowers. Like last month’s Wasserstrom decision, this judgment shows that UNDT - the court of first instance of the two-tier internal justice system through which UN employees contest violations of their rights – is committed to ensuring that UN whistleblowers are protected.

In Dzuverovic v. Secretary-General of the United Nations, the applicant, a former United Nations Human Settlements Programme (UN-HABITAT) employee, contested the Office of Internal Oversight Services’ (OIOS) refusal to investigate her disclosure of recruitment and procurement irregularities in UN-HABITAT. OIOS failed to inform the applicant of this decision until 2010, fifteen years after she made her initial disclosure. In the meantime, she was subjected to retaliation, including decisions that “proved to be to the detriment of her career,” (para. 72) and ultimately separated from service.

Unfortunately, Judge Nkemdilim Izuako was compelled to find that the case was inadmissible at the Tribunal, as Dzuverovic missed the UN’s ridiculously short 60-day statute of limitations for contesting an administrative decision. But, although the Judge dismissed the case, she took the extraordinary step of “RECOMMEND[ing] it to the Secretary-General for sympathetic review with a view to bringing substantive justice and closure to it” and pleaded for him to take “a compassionate view.” (Paragraphs 74 and 61,original emphasis) This appears to be the first time that a UNDT judge has made such a recommendation in a whistleblower case, and the fact that it is emphasized in the text of the ruling suggests that the judge expects this recommendation to be taken seriously. The judge also wrote that:

This recommendation is made bearing in mind the special measures that have been put in place with regards to the protection of whistleblowers who risk their jobs, professional lives and livelihoods by courageously seeking to expose wrong-doings within the Organization. The United Nations, being the foremost international Organization for setting standards for governments and other organizations, needs to review the case of this Applicant as this will serve not only the ends of justice but also to reassure whistleblowers that they are indeed protected. (paragraphs 75 and 76).

Amen!

*Este blog está en español debajo de la versión ingles.
Nota: El artículo ofrece hipervínculos para visión y descarga de documentos.

On July 12th, the occasion of the swearing into office of the High Commissioner for Marca España (“Brand Spain”), Spain’s President Mariano Rajoy underlined his determination to strengthen Spain’s image abroad. The international reputation of the Spanish government has been damaged by a scandal over the corruption affecting the Spanish Trust Funds at the Inter-American Development Bank (IDB). The continuing scandal, which first broke in October 2011, raises questions about the passive stance of the current Spanish Government (particularly the Ministry of Economy). The ministry has yet to hold those at fault accountable and restore transparency, efficacy and accountability to the $695 million Funds.

In previous postings here, we’ve covered the dubious dealings associated with these funds (first reported by Spanish whistleblowers at IDB in October 2011), particularly the close association between the last ruling party in Spain and IDB management of the funds. It was a convenient arrangement – the Partido Socialista Obrero Espanol  (PSOE) contributed hundreds of millions of Euros to the IDB, where national oversight bodies could hardly reach, and PSOE representatives abroad managed the money, doling it out to themselves and their friends as they saw fit. But then this cozy relationship suffered a setback: the PSOE lost the election in Spain last November.

The allegations of mismanagement of Spanish Trust Funds at IDB are so well founded and documented that the Spanish Tribunal de Cuentas (the equivalent of the US Government Accountability Office) decided last February to investigate and audit Trust Fund activities from 2008 onwards, especially those of the $50-million Spanish General Trust Fund (FGE) at the IDB.

Luis Alberto Moreno, IDB President, courting Jose Luis Rodriguez Zapatero ,Spain’s President, at La Moncloa in October 2009 Nonetheless, on July 6, 2012, the IDB formally transferred its European office from Paris to Madrid. It seemed a counterintuitive maneuver – typically the rat swims away from the sinking ship, and Spain is apparently still sinking in the face of an unprecedented economic and banking crisis. The country has figured prominently in the financial news most days this month, and probably will continue to do so for a while, as the Rajoy government struggles with the legacy of an enormous deficit and national debt. 

However, on closer inspection, the IDB’s office transfer from Paris to Madrid makes sense when you realize that, despite Spain’s deepening economic problems, the government in Madrid has been generously funding the IDB, as well as the United Nations Development Program, since 2008.

Over the past weekend, the New York Times broke the story about electronic surveillance of Food and Drug Administration (FDA) whistleblowers by the agency itself. The Washington Post followed up today with the news that FDA lawyers approved the surveillance, which included:

…confidential letters to at least a half-dozen Congressional offices and oversight committees, drafts of legal filings and grievances, and personal e-mails…

At GAP, we’ve been defending John Kim, a World Bank whistleblower who exposed the details of debates internal to the Bank about weakening anti-corruption measures to be put in place. As part of their pursuit of Kim, World Bank investigators hacked his personal email account and read hundreds of non-Bank messages, including those  between Kim and his family’s attorney that were written five years before the incident  purportedly under investigation. In any credible legal environment, these communications are protected by attorney client privilege … but that did not stop the World Bank’s “Vice Presidency for Institutional Integrity” (INT). 

Kim’s attorney repeatedly requested the internal authorizations INT claimed to have secured from senior management to launch such invasive surveillance, but investigators never produced them. GAP could not determine whether the authorizations even existed, never mind whether they were at all limited in time and scope. The depth of the privacy invasion strongly suggested they were not.

The process was simple. INT deployed an off-the-shelf program – Encase – that costs a couple of hundred dollars and overrides passwords.

So, while “investigating” a 2008 leak, INT found that Kim had also leaked the information about the Bank’s anti-corruption measures during the period when the press focused on Paul Wolfowitz’s delinquent behavior as World Bank president. At the time, hundreds of Bank employees were leaking information about the Bank’s internal debates to blogs, press, and GAP. Because the investigation didn’t establish that Kim was the source of the 2008 leak, the Bank fired him in 2009 for whistleblowing about Wolfowitz years before.

World Bank headquarters in Washington, DCIn response to Richard Behar’s article in Forbes, "The Fate of a World Bank Whistleblower,” the World Bank claimed that GAP client John Kim, the subject of the piece, was not, in fact, a whistleblower. We at the Government Accountability Project (GAP) want to set the record straight.  For 34 years, we’ve represented whistleblowers – thousands of them now – and we know one when we see one. John Kim was a whistleblower, and the World Bank fired him in order to punish him for telling the truth.

The World Bank makes much of the fact that a whistleblower protection policy is in place there.  But it is a weak policy, riddled with loopholes. Kim’s attorney therefore argued that Kim should be reinstated because he was a whistleblower and because, as a consequence of his whistleblowing, Bank management violated his rights as a staff member. The Administrative Tribunal ruled that the Bank violated Kim’s rights, but the whistleblower policy failed to protect him. The ruling the Tribunal issued is thus silent on why Bank management picked John Kim, out of over 10,000 employees, to spy on, hack, marginalize and fire.  The Tribunal simply ruled that this was what happened. At GAP we know that it happened because  Kim made a public interest disclosure to the press about anti-corruption debates at the Bank.  There was no other reason. The Bank did not present an alternative explanation and the Tribunal didn’t ask for one.

To our knowledge – and we keep close track – since 2008, when the whistleblower protection policy was put in place at the World Bank, not a single whistleblower has been able to protect him or herself from retaliation using that policy in arguments before the Tribunal. 

Bea Edwards is Executive Director of the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.

GAP's Shelley Walden spoke with Al-Jazeera about a very positive decision from the UN Dispute Tribunal.In a major victory for employees at the United Nations, the UN Dispute Tribunal (UNDT) has found that the office charged with reviewing retaliation complaints and safeguarding the interests of UN whistleblowers failed to conduct a proper review of a whistleblower case.

In a June 21 judgment by UNDT – the court of first instance of the two-tier internal justice system through which UN employees contest violations of their rights – Judge Goolam Meeran sided with whistleblower James Wasserstrom, a former employee of the UN Interim Administration Mission in Kosovo (UNMIK). Wasserstrom was allegedly retaliated against after reporting to UN investigators a possible kickback scheme involving local politicians and senior UNMIK officials related to a controversial new power plant and mine known as Kosovo C. (Incidentally, this decision is a good read for those who are interested in this multibillion euro project supported by the World Bank, as it details potential kickbacks and corruption, and states that at one point the World Bank “tried to walk away from the project.”)

When it reviewed Wasserstrom’s retaliation complaint, the UN Ethics Office found that there was a prima facie case of retaliation, meaning that the case passed its initial burden of proof hurdle and proceeded to the next stage. In accordance with the UN Secretariat’s whistleblower protection policy, an investigation was then conducted by the Office of Internal Oversight Services (OIOS). The Ethics Office, based solely on the body of the OIOS report (it didn’t bother to read the Annexes), subsequently decided that Wasserstrom was not retaliated against.

في نهاية هذا التقرير تجد ترجمة له باللغة العربية

On June 5, in my last blog, I stressed the need to keep a close watch on the courts and ruling military government in Egypt. Since then, the urgency to do so has escalated. Underscored in that piece was the very real threat that the courts were incapable of enforcing the law, and that the iron fist of former Egyptian President Hosni Mubarak still had a grip, despite the revolution. My worry was that the Mubarak regime simply shifted form into the Supreme Council of the Armed Forces (SCAF), which then allowed many Mubarak holdovers to remain in government, most notably the generals, prosecutors and judges.

At the time of that last writing, the Egyptian courts themselves were already being tried by tens of thousands of distressed Egyptians in Tahrir Square – the symbolic epicenter of the revolution. On June 2, Mubarak was sentenced to life in prison for complicity in the deaths of unarmed protestors during the uprising. The ruling disappointed the families of the murdered demonstrators, since the Interior Ministry officials most directly responsible for their deaths were set free. Moreover, all of the additional charges of corruption levied against not only Mubarak, but his two sons Alla and Gamal, were also dropped. The sons of Mubarak however, as tracked in previous posts (here, here, here and here), remain in custody to apparently answer for charges of money laundering and insider trading. But is it at all realistic in this climate to believe that these charges, or similar ones pending against officials associated with the Mubarak regime, will actually go anywhere?

If SCAF has anything to say about it, the answer appears to be “no.” Mubarak’s own crimes were minimized by SCAF, which, despite its promise to transition the country to a legitimate democracy, is keeping its power intact while shoring up the very institutions and individuals the Egyptian people revolted against last year.