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UN Tribunal to Hear Final Appeals in Three Key Whistleblower Cases

June 17, 2014
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(Washington, DC) – Beginning yesterday, June 16, and lasting through June 27, the United Nations Appeals Tribunal (UNAT) is reviewing three important cases that could substantially impact the rights of U.N. whistleblowers. The cases to be heard include those of Caroline Hunt-Matthes, a former senior investigation officer with the Office of the United Nations High Commissioner for Refugees (UNHCR); Khalilur Rahman, a former U.N. Conference on Trade and Development (UNCTAD) employee; and James Wasserstrom, a former U.N. Interim Administration Mission in Kosovo (UNMIK) employee.

The UNAT judges are expected to determine whether the United Nations Dispute Tribunal (UNDT), the U.N.'s court of first instance, has jurisdiction to consider the actions, decisions and determinations of the U.N. Ethics Office ­– the unit established to protect U.N. whistleblowers. All three of these whistleblowers reported retaliation to that office, but it failed to fully protect them from retaliation. The Office failed to protect Hunt-Matthes or Wasserstrom at all, whereas UNDT found them both to be whistleblowers who suffered retaliation and deserved protection. Rahman's case represents the first instance, and one of only two cases, in which the Ethics Office confirmed retaliation based on the findings of an internal investigation. Nonetheless, Secretary-General Ban Ki-moon failed to enforce the Ethics Office's decision, forcing Rahman to appeal to UNDT for its enforcement.

"The U.N. Ethics Office is broken and has found in favor of only one percent of the whistleblowers who have sought its support," said GAP Executive Director Bea Edwards. "If UNDT is denied the right to review the Office's decisions, then U.N. whistleblowers will have virtually no recourse when their rights are violated."

"It was my responsibility and duty to blow the whistle on the systematic failure of every UNHCR measure to protect a refugee who was raped by a staff member," said Hunt-Matthes, a university professor in Geneva. "It cost me my job, but my conscience is clear. In February 2013, Judge Coral Shaw of UNDT requested that the retaliators in UNHCR be held accountable, but no action appears to have been taken. This sends a sign to all U.N. employees that the institution is an unsafe work environment."

Attorney George Irving, who represents Rahman, stated "In Rahman's case, which is the first proven case of retaliation in the U.N. Secretariat, there was a complete failure of the whistleblower protection policy as the organization did not uphold internationally accepted best practices on multiple counts. In over five years, the institution not only failed to make him whole, but also left him exposed to further harm."

The UNAT is the court of last resort in the U.N. internal justice system, and its decisions are final and binding.

Background

Hunt-Matthes, who spearheaded the landmark legal challenge to examine the protocol of Ethics Office decision making in 2006, suffered retaliation after making protected disclosures via internal UNHCR channels, which were ignored by the High Commissioner for Refugees, including interference/obstruction in an investigation of the rape of a U.N. staff member in Sri Lanka by a UNHCR staff member (the rape was subsequently confirmed); her supervisor's decision to investigate a colleague without disclosing to him that he was under investigation; the organization's failure to register a sexual harassment complaint against the High Commissioner (subsequently confirmed); and the unlawful detention of refugees by senior UNHCR staff, leading to the death of a refugee while in detention. After blowing the whistle, she was fired by email with one day's notice while she was on medical leave recovering from a work-related accident.

UNDT's decision in Hunt-Matthes' case (Judgment UNDT/2013/85) was highly critical of the Ethics Office. Judge Coral Shaw found that the Ethics Office "did not assess the Applicant's claim in conformity with the correct obligations, principles and standards…" and that "by failing to properly assess whether there was a link between the reporting of misconduct and the alleged retaliation the Ethics Office denied or radically limited the protections that the Secretary-General clearly intended to afford to United Nations staff members." In a separate decision, Judge Shaw upheld Hunt-Matthes' claim that a negative Performance Appraisal Report and the non-renewal of her fixed-term appointment were acts of retaliation against her for her whistleblowing. The United Nations filed three appeals against Hunt-Matthes' victory in February 2013. All three appeals will be heard in Vienna this month – a pronouncement is expected on June 27.

The administration appealed both judgments to UNAT. Meanwhile Hunt-Matthes continues to wait for relief after 10 years of legal disputes. Hunt-Matthes is represented before UNAT on appeal by Miles Hastie of the U.N. Office of Staff Legal Assistance (OSLA). OSLA was unable to represent Hunt-Matthes previously, before UNDT, despite an order from the court to do so. OSLA cited the complexity of the cases as beyond the capacity and resources of the office as its rationale for refusing representation. A U.N. translator, Nigel Lindup, represented Hunt-Matthes before UNDT, combating two teams of U.N. lawyers from New York and Geneva.

In 2009, Rahman reported misconduct by the then-special advisor to the Secretary-General of UNCTAD, a Geneva-based organization. Following an investigation, the Ethics Office found Rahman to have been the victim of severe retaliatory action by two senior officials of UNCTAD and recommended that disciplinary actions be taken against them and that Rahman be transferred laterally to another U.N. agency with the same grade and level of managerial responsibility. Top management at the United Nations, however, rejected the Ethics Office's recommendation and ordered Rahman to return to UNCTAD despite the fact that the organization refused to guarantee his protection. For nearly two years, the United Nations kept Rahman in limbo while it debated what to do. He was separated from his home and his family, causing further emotional harm and financial drain. His once promising career was put on hold. The perpetrators, on the other hand, were rewarded with promotion or post-retirement re-employment. Rahman challenged this failure to enforce the Ethics Policy and asked to be made whole, but Judge Jean-Francois Cousin dismissed his case without a hearing (Judgment UNDT/2013/097).

Rahman is appealing the failure of the institution to restore him to the professional and financial standing he had prior to making protected disclosures. He is also appealing for relief from the continuing effects of retaliation. The United Nations, for its part, is appealing the limited order to disclose what, if any, penalties were imposed on the perpetrators.

Wasserstrom blew the whistle on what he alleged was a conspiracy to pay a kickback to senior U.N. and Kosovo officials. More information about his case is available here.

These cases will be closely watched as a result of the 2014 U.S. Consolidated Appropriations Act, Section 7048 (a)(1)(b), which requires the institution to provide whistleblowers with "results that eliminate the effects of proven retaliation," as a condition of a full U.S. contribution to the organization. None of these whistleblowers has received comprehensive relief that fully eliminated the effects of proven retaliation.

To arrange an interview with the whistleblowers or for more information on the case background, contact GAP Communications Director Dylan Blaylock at DylanB@whistleblower.org or at 202.457.0034, ext. 137.

 

Contact: Dylan Blaylock, GAP Communications Director
Phone: 202.457.0034, ext. 137
Email: dylanb@whistleblower.org

Government Accountability Project
The Government Accountability Project is the nation's leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, GAP's mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, GAP is a nonprofit, nonpartisan advocacy organization based in Washington, D.C.

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