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.

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).

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.

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.

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.

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.

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.

The Inter-American Development Bank (IDB) has released a response to GAP’s recent review of its whistleblower policy. We appreciate the time devoted by IDB officials to evaluating GAP’s analysis. We found some of its feedback to be useful and have, accordingly, released an updated version of our review. However, there were numerous deficiencies in the IDB’s response that we must address.

At the outset, we should mention that this ex post facto debate would have been unnecessary had IDB management invited comments before its policy was passed. The Asian Development Bank, the African Development Bank, and the World Bank sought public feedback on their proposed whistleblower protection policies before adopting them, a step that the IDB failed to take. Much of this debate could have been avoided had public consultation occurred.

GAP’s Response:

• Page 1: On this page, the IDB states that GAP’s assessment “seems to imply that the IDB’s administration is set on interpreting its rules and regulations in a way that is detrimental to whistleblowers. On the contrary, the IDB has a strong track record of protecting employees who expose wrongdoings.” While GAP cannot draw conclusions on how the IDB administration will act in the future, we do have information about how it has acted in the past. According to a recent report by the U.S. Department of the Treasury, from 2009-2011 the IDB’s Ethics Office received four requests for protection from retaliation and concluded that no retaliation existed in three of these cases. Of these cases, the Bank was obliged to resolve one to the constructive satisfaction of the complainant outside the judicial process. The second case is still pending at the IDB’s Administrative Tribunal, which is a problem in itself. The whistleblower reported retaliation in April 2010, and will not have a Tribunal hearing until 2013, if then. In the meantime, her career and her reputation have been severely damaged. In the third case, the whistleblower won very substantial compensation before the Tribunal but was not reinstated, although career-wrecking retaliation was established. One judge noted that “management did nothing to protect the whistleblower” in this case. There is also a retaliation case before the Tribunal that the report fails to mention. This record, while sparse, indicates that meritorious claims are not fairly evaluated by the Ethics Office.
• Page 2: The IDB “…disagrees with any assertion that the Whistleblower Policy falls short of standards essential to receiving the full support of its member countries, including the U.S.” As detailed in GAP’s review, the policy does not fully meet any of the standards for a whistleblower protection policy detailed in the U.S. 2012 Consolidated Appropriations Act. It also fails to meet certain standards established in the 2006 Foreign Operations, Export Financing and Related Programs Appropriations Act.
• Page 2: The IDB claims that “the GAP assessment is incorrect in stating that the IDB Whistleblower Policy was amended for the purpose of complying with standards set forth in U.S. legislation…” While GAP believes that U.S. legislation played a role in the IDB’s decision to update its policy, we have revised the language in our blog entry to reflect the IDB’s concerns, as we must assume that the IDB has accurately reflected its motivations and did not seek to comply with U.S. law.

Mahmoud Mohieldin, Image Courtesy of the World Economic ForumAccording to an internal document sent from World Bank President Jim Yong Kim on December 18, Mahmoud Mohieldin – Egypt’s former Minister of Investment during the deposed Hosni Mubarak regime – has apparently been demoted from his post as Managing Director. Mohieldin is now the Special Envoy on Millennium Development Goals (MDGs) and Financial Development. While it is not yet clear what the Special Envoy will do about the MDGs and the United Nations, two things are certain: 1) Mohieldin has exchanged a central post at the Bank for a peripheral one, and 2) this is a pattern.

Over the last year-and-a-half, we have been investigating Mohieldin for his role in at least three suspicious (and potentially criminal) privatization transactions in Egypt. During this investigation, we have repeatedly pressed the World Bank to release Mohieldin’s financial disclosure records, arguing through various appeals that this information is a matter of public interest. The World Bank refuses to release the records, but instead has been actively shuffling Mohieldin around. We can’t help but notice that each time he moves, Mohieldin has lost a good chunk of his authority.

For example, near the beginning of this year, we acquired two World Bank organizational charts: one issued in January 2011 and a second in November 2011. When compared, the charts show that General Services, which include procurement at the Bank, were transferred from Mohieldin to Vincenzo La Via during the year. Apparently, former Bank President Zoellick (responsible for Mohieldin’s appointment in September 2010) thought Mohieldin should no longer be responsible for that any longer.

The decision to remove procurement responsibilities from Mohieldin is hardly surprising, given the avalanche of corruption allegations that we have tracked that hit him and his cronies after the fall of the Mubarak regime. While his appointment as Managing Director under Zoellick and the protection from investigation that the Bank afforded him was troubling enough, his new role as Bank President Kim’s Special Envoy on Millennium Development Goals and Financial Development is also disturbing.

It is not yet clear that Kim is aware of the shadow over Mohieldin as a consequence of his past dealings in the Mubarak government. What is clear is that Mohieldin has no experience protecting anyone from poverty other than himself. How he qualifies as an advocate for the MDGs is a mystery, but it probably indicates the low priority now assigned both the MDGs and Mohieldin at the World Bank in 2013.

Michael Termini is International Officer for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.

In November, the U.S. Department of the Treasury issued two reports that contain information about the whistleblower protection records of the Multilateral Development Banks (MDBs).

In part, these reports are responsive to a spring 2012 GAP petition that urged the Department to include these data in its future reports.

The reports contain useful information about the implementation record at four MDBs. Key findings include:

The World Bank

According to one report, from January 2009 – July 2012 “233 staff and consultants made protected disclosures to INT [the Office of Institutional Integrity] of alleged misconduct.” During this time period, the Bank’s Office of Ethics and Business Conduct (EBC) received 26 whistleblower retaliation allegations. It appears that the EBC did not substantiate any of these allegations. The report also says that the final level of the Bank’s internal grievance system, the Administrative Tribunal, received 13 cases of alleged whistleblower retaliation during this time period and found in favor of six of the applicants.

GAP has several observations about these statistics. First, on the positive side:

• Many staff members have made protected disclosures to INT without reprisal. This is, of course, the objective of the whistleblower protection policy.
• Nearly half of the retaliation cases brought to the Tribunal were vindicated.

However, the figures also show that:

• The EBC is not effectively protecting whistleblowers when retaliation does occur. Not one out of 26 retaliation complaints to the EBC was substantiated over a period of three years. While such a record is possible, it is highly improbable, especially in light of the fact that several whistleblowers who did not receive relief from EBC were apparently vindicated by the Tribunal.

Moreover, the report could be strengthened by showing whether the Tribunal substantiated the whistleblowers’ retaliation claims. Often, such cases involve not only allegations of retaliation, but also allegations of due process violations, and in GAP’s experience, the Tribunal has been hesitant to substantiate retaliation, even in cases (i.e.: decision no. 448 and 437) in which it sided with the applicant on other claims. The statistic would also be more meaningful if it indicated whether the relief received by whistleblowers who prevail is comprehensive and covered the consequences of reprisal. Finally, the Treasury Department’s report implies that the Bank’s whistleblower policy is “consistent with international best practices.” GAP disagrees.