Last week I blogged on UN Secretary-General Ban Ki-moon's proposal that whistleblowers be denied the ability to challenge Ethics Office decisions before the UN internal justice system – the mechanism through which UN employees contest violations of their rights. Because the Ethics Office, which is charged with reviewing retaliation complaints and safeguarding the interests of whistleblowers, has ultimately substantiated retaliation in less than 1% of cases it has reviewed since August 2007, the Secretary-General's proposal would result in UN whistleblowers having little recourse when they are subjected to retaliation and would effectively render whistleblower protections at the United Nations meaningless.

GAP has learned that the judges of the United Nations Dispute Tribunal (UNDT), the court of first instance of the UN's two-tier justice system, are also opposed to the Secretary-General's proposal.

In October, UNDT President Judge Memooda Ebrahim-Carstens sent a letter to the General Assembly opposing Ban's proposal to amend UNDT's statutes to remove authority to review the decisions of the Ethics Office and the Office of Internal Oversight Services, which investigates misconduct. The judges observed that the proposal is "tantamount to allowing these entities to exercise power without accountability" and would "raise serious concerns regarding the respect for the rule of law within the Organization, especially taking into account the far-reaching consequences for staff members of decisions taken by such independent entities." [emphasis added]

At a film screening of The Whistleblower at UN headquarters in New York last month, UN Secretary-General Ban Ki-moon claimed to be committed to protecting whistleblowers. He said that the film, which details the true story of the United Nations' complicity in the sex-trafficking industry in Bosnia, "underscores how important it is to speak out against abuse or injustice ... Those who do so, in good faith, must not be punished ... We need to promote a culture in which people feel free and obliged to raise their voices in the face of wrongdoing and abuse."

The sad truth, however, is that the Secretary-General is not promoting that culture. In fact, he's doing the opposite.

In 2007, he sanctioned the fragmentation of the UN's whistleblower protection policy and allowed weaker standards to apply to funds and programmes. Now, he's taking this a step further, essentially proposing that whistleblowers be denied access to the UN internal justice system – the mechanism through which UN employees contest violations of their rights.

If passed, this horrendous proposal would effectively render whistleblower protections at the United Nations meaningless.

According to paragraph 276 of the Secretary-General's report to the General Assembly: (A/66/275) "a determination by the Ethics Office regarding retaliation should not be subject to challenge before the Dispute Tribunal." In paragraph 280, the Secretary-General recommends that the Tribunal's statutes be revised so that decisions made by the UN Ethics Office, which is charged with reviewing retaliation complaints and safeguarding the interests of whistleblowers, could no longer be appealed to the UN justice system.

As mentioned in a previous blog entry, GAP has been anxiously awaiting the release of "The Whistleblower," a movie that details the true story of the United Nations' complicity in the sex-trafficking industry in Bosnia. I recently had the opportunity to see this film and was blown away by the importance of whistleblower Kathryn Bolkovac's disclosures. As a critic for The New York Times wrote: "This earnest film may not be as dramatically coherent or as gripping as Serpico, All the President's Men, Erin Brockovich and Silkwood, ... But its revelations are, if anything, more devastating and far more immediate than the dirty deeds uncovered in those predecessors."

When Bolkovac stumbles upon a Bosnian club in which kidnapped girls are forced to work as sex slaves, she discovers photographs of customers –including UN peacekeepers – abusing the girls. As she attempts to gather enough evidence to free the women and prosecute the wrongdoers, personnel from the United Nations and contractor DynCorp International (changed to the pseudonym "Democra Security" in the movie) continually block her and turn a blind eye to the wrongdoing.

The United Nations Appeals Tribunal (UNAT) has just released a written decision in its most significant whistleblower case to date: Shkurtaj v. Secretary-General of the United Nations. 

GAP was hopeful that this widely anticipated ruling would demonstrate the commitment of the UNAT judges to protect whistleblowers. Instead, it does the opposite.

Artjon Shkurtaj, the United Nations Development Programme (UNDP) whistleblower who made publicized disclosures regarding UNDP wrongdoing at its Democratic People’s Republic of Korea (DPRK) office, hoped that the judge would find that the United Nations Dispute Tribunal’s (UNDT) conclusion that no retaliation occurred in his case was based on a flawed investigatory process and an error of law. He had also requested that UNAT increase the compensation awarded to him by UNDT for actions that were found by the UN Ethics Office Director to have violated his due process rights.

UNAT denied both requests and, to add insult to injury, reduced the amount of compensation ordered by both UNDT and the UN Ethics Office Director from fourteen months' net base salary to six. 

On the bright side, the decision did vindicate Shkurtaj, as the judges upheld UNDT and Ethics Office findings that UNDP inappropriately damaged Shkurtaj’s professional reputation and career prospects by publicly releasing a report that contained disparaging comments about him, without notifying him or letting him comment. GAP believes that this attempt to damage Shkurtaj’s reputation, which the Tribunal characterized as a due process error, was a retaliatory action taken to penalize Shkurtaj for his whistleblowing.

The Whistleblower, which details the true story of the United Nations’ complicity in the sex-trafficking industry in Bosnia, debuts Friday in select theaters, with widespread distribution to follow. The movie, starring Oscar-winner Rachel Weisz as real-life truth-teller Kathryn Bolkovac, chronicles Bolkovac’s attempts to blow the whistle in the late 1990s and early 2000s while working with the UN International Police Force.

As GAP’s International Program Officer, one of my job duties is to monitor whistleblower rights and cases at the United Nations. I'm obviously eager to see the film, and GAP will put out a review of it in the coming weeks. If the movie sticks to the known facts about the actual events, it may raise much-needed awareness of whistleblower problems at the United Nations. As a Human Rights Watch official stated about Bolkovac's tale:

“Women and girls trafficked into Bosnia and Herzegovina's brothels endured debt bondage, rape, and beatings. International police and peacekeeping forces should have protected these victims. Instead, some committed trafficking crimes. Kathy Bolkovac bravely blew the whistle on them. She paid a high price in her career, but had the integrity to take a stand against grave human rights abuses.”

Focusing on Bolkovac's case, it seems the perfect time to ask: What has changed? If a UN whistleblower were to come forward today – a decade later – with similar allegations to those made by Bolkovac, would s/he also “pay a high price” for making disclosures?

In a major breakthrough for United Nations whistleblowers, the UN Dispute Tribunal (UNDT) has ruled that Ethics Office decisions can be appealed through the UN justice system.

In Judgment No. UNDT/2011/063 (Hunt-Matthes v. Secretary-General of the United Nations) UNDT Judge Vinod Boolell ruled that “when a claim relates to issues covered by ST/SGB/2005/21 [the UN Secretariat’s whistleblower protection policy], a staff member is entitled to certain administrative procedures and that if he or she is dissatisfied with the outcome, he or she may request judicial review of the administrative decisions taken.” (paragraph 40) The judge therefore found that the Ethics Office’s determination that there was no prima facie case of retaliation in the Applicant’s case can be reviewed by UNDT.

As a contributor to the UN whistleblower protection policy, GAP notes that the policy was indeed designed with the intent that Ethics Office decisions could be appealed through the organization’s internal justice system. Such judicial review may be the only way that UN whistleblowers will receive a fair evaluation of their case, as the Ethics Office’s record of protecting whistleblowers from retaliation is abysmal.

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 1.4%* of the requests for protection from retaliation received by the Office (2 of 145 cases)* **. Thanks to this important precedent, the 98.6%* of UN whistleblowers who were previously denied protection from retaliation will now have the chance to appeal Ethics Office denials through the justice system and may finally receive relief.

Earlier this week, the U.S. House Committee on Foreign Affairs held a briefing on “The United Nations: Urgent Problems that Need Congressional Action.”  Some of the most urgent problems discussed during the briefing (which attracted so many audience members that it filled both the hearing and spillover rooms) were the UN’s treatment of whistleblowers and system for investigating corruption, two issues of longstanding concern to GAP.  These topics were mentioned several times in the opening remarks of Chairman Ileana Ros-Lehtinen (as delivered by the chairwoman pro tempore), who commented on how the UN Development Program (UNDP) fired a whistleblower who exposed wrongdoing in UNDP’s North Korean office and then “undermined whistleblower protections by limiting access to its audits and refusing to submit to the U.N. Ethic’s Office’s jurisdiction…”

One of the questions that the Committee considered during the briefing was how best to use the power of U.S. purse strings to improve the accountability of the UN. Witness Robert Appleton, former chairman of the United Nations Procurement Task Force, provided a particularly insightful response to this question.  According to Appleton:

• UN investigators need to be protected from retaliation.
• Investigative bodies at all Intergovernmental Organizations, including the UN, need to be independent from management and have independent budgets and appointment powers.
• The UN needs strong judicial mechanisms that function properly. (Mr. Appleton is currently testing these mechanisms through his own case against the UN).
• The UN must have a strong and effective Ethics Office.

GAP believes that these are all excellent suggestions. We also suggest that the U.S. Congress require the following as a condition of its funding to the UN: