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Protecting Whistleblowers since 1977

Supreme Court Petition Challenges United Nations Immunities

, June 07, 2010

Last week, two UN High Commissioner for Refugees (UNHCR) employees filed a petition for writ of certiorari with the U.S. Supreme Court challenging the immunity and impunity of UN officials.

The petition was filed after the 2nd U.S. Circuit Court of Appeals ruled that the United Nations is immune from this lawsuit, which claims that former UN High Commissioner for Refugees Ruud Lubbers sexually harassed and retaliated against a UNHCR employee.

Unfortunately, the chances of the U.S. Supreme Court hearing the case are reportedly “pretty low.” From Radio Free Europe:

But what are the chances for success in the legal challenge to UN diplomatic immunity presented by Brzak and Ishak through their petition to the U.S. Supreme Court?

Not good.

David Marks, the vice president of the PR firm Outreach Strategies, which is handling publicity for the plaintiffs, tells RFE/RL that the chances the U.S. Supreme Court will hear the case are "pretty low.”

The two lower courts unequivocally dismissed the case based on diplomatic immunity granted to UN officials in 1946. It doesn’t leave much room for legal ambiguity.

Besides, the U.S. Supreme Court is overflowing with petitions well beyond its capability. It receives thousands each year but only a handful of those are considered for review.

GAP believes that the Supreme Court should take up this case, and in doing so reexamine the immunities granted to Intergovernmental Organizations (IGOs). Many whistleblowers have maintained (and GAP concurs) that when an IGO lacks a functional, independent justice system, its employees must have access to national tribunals to defend their rights. In this current case, the 2nd U.S. Circuit Court of Appeals judge ruled against this argument. The court also ruled that Lubbers was immune.

According to Edward Flaherty, the plaintiffs’ attorney:

“My client, an American citizen, experienced criminal behavior that would land any other employer in jail. But at the UN, it’s just another day at the office. Cynthia Brzak was first the victim of sexual harassment by a powerful ex-prime minister and head of an entire UN agency. When she blew the whistle, she and Ishak then became the targets of repeated retaliation that continues to this day.

“Yet because of where she happens to work, her assailant is beyond the law. The question being placed before the Supreme Court is whether this system should be allowed to stand in the United States, where no one is supposed to be above the law.”

Numerous UN whistleblowers have undergone similar experiences to Brzak. It is not unusual for retaliation to continue for years and for those responsible for misconduct to remain undisciplined. Although the UN’s new justice system appears to be a substantial improvement over the one that existed when Brzak came forward, the Secretary-General is already refusing to enforce some of its orders regarding whistleblowers, thereby challenging its authority.

The bottom line is that power tends to corrupt, and absolute power corrupts absolutely. If IGOs are allowed to police themselves without any additional oversight, then corruption will inevitably continue to flourish at them.

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Shelley Walden is International Officer at the Government Accountability Project, the nation's leading whistleblower advocacy organization.