U.N. Issues Groundbreaking Whistleblower Policy
GAP Consulted on Landmark Policy for International Bodies
(Washington, DC) – The Government Accountability Project (GAP) praised the United Nations for issuing a new standard of whistleblower protection in an anti-retaliation policy released today as a Secretary General’s Bulletin. GAP, which was consulted directly regarding the policy, is hailing the protections as the benchmark for other Intergovernmental Organizations (IGOs). The new protections take effect on January 1, 2006. While these breakthroughs set the bar higher for whistleblower protection for all IGOs, the group cautioned that they must be viewed in the larger context of unfinished structural reform that awaits U.N. General Assembly action next year.
“A genuine spirit of reform is reflected in this policy which goes a long way in applying best practices in use worldwide,” stated GAP International Reform Director Melanie Beth Oliviero. “All staff, regardless of type or duration of appointment, now enjoy freedom of expression both inside and outside the organization. This new policy signals the direction for reform for all Specialized Agencies of the United Nations, specifically the World Bank and, by extension, other multilateral development banks.”
The policy comes in mid-stream of a number of management reforms critical to strengthening the accountability of the United Nations. GAP stressed that General Assembly follow-up action is necessary to provide independent enforcement before the rights on paper can be relied on.
As an interim measure, however, the organization’s praise was clear. “This is the gold standard for freedom of speech at international organizations,” stated GAP Legal Director Tom Devine. The U.N. policy satisfies 15 out of 20 criteria in GAP’s compilation of best practices for whistleblower protection. By contrast, the World Bank’s policy and the U.S. Whistleblower Protection Act only pass 12 of the 20 tests.
Both Oliviero and Devine worked intensively with the United Nations to advocate for the rights included in the policy. Last year GAP acted as co-counsel for Dr. Andrew Thomson, who was fired from the United Nations in late 2004 after co-authoring a book that exposed peacekeeping mission shortcomings and mismanagement. His termination was reversed, and he was promoted after a precedent approved by Secretary General Kofi Annan permitting public whistleblowing.
Thomson, currently on leave, noted, “What a difference a year makes. Now it is illegal to harass whistleblowers the way I was openly retaliated against before last Christmas.”
For many who have suffered reprisal for reporting misconduct, this policy offers vindication and hope that their service to the mission of the United Nations will henceforth be acknowledged and rewarded. Some of the most significant reforms addressed in the new policy include:
- A broad mandate protecting freedom of expression for those who disclose misconduct that threatens the body’s core human rights mission. (Typical IGO rules only protect dissent against threats to institutional self-interest.)
- A definition of whistleblowing consistent with composite best practices in international and national law.
- Multiple internal channels for reporting corruption and abuse – Ethics Office, Office of Internal Oversight Services, and department head — thus providing safeguards against institutionalized conflict of interest.
- Qualified protection for external, public whistleblowing to the media or outside organizations, overriding the institutionalized gag order requiring advance permission for any communications outside organizational walls and thus closing a loophole that frequently cancels real whistleblower protection. The United Nations is the first IGO to endorse public freedom of expression.
- Protection for ‘outside parties’ including contractors, consultants and even citizens affected by United Nations activities when they bear witness to misconduct.
- Protection for refusal to violate the law, allowing whistleblowers to speak out when ordered to betray not only the Charter of the United Nations and any regulations or rules derived from it but any national or international law.
- Modern legal burdens of proof comparable to the state-of-the-art provision of the U.S. Whistleblower Protection Act, guaranteeing fairness on standards of evidence of retaliation an individual must demonstrate to win the case.
- The right to use the policy in the Joint Appeals Board and Administrative Tribunal process that already exists to challenge termination or other adverse action.
- Mandatory discipline for those found guilty of retaliation.
- A commitment to thorough training for staff and management, as well as posting of the new rights, to help insure the reforms are properly understood and take root in the institutional culture.
While applauding the reforms, GAP noted that the United Nations has not yet finalized interpretations that conform to standard legal boundaries for whistleblower rights such as protection against guilt by association, false perceptions of whistleblowing, and preemptive strikes when an individual is exposed as on the verge of whistleblowing by preparing evidence for dissent. Devine cautioned, “It would be premature to conclude that U.N. whistleblowers are safe. Any one of these loopholes could erase the policy’s benefits, or turn it into a trap.”
Under the current structure, the policy also fails to meet international best practice standards for enforcement of rights through independent investigation and adjudication of disputes stemming from whistleblowing. Only the General Assembly can ensure complete protection to whistleblowers by instituting significant structural reforms to provide this verifiable independence.
Among the key structural elements that fall outside the scope of this policy is establishing “operational independence” for the Office of Internal Oversight Services (OIOS), the department in charge of investigating charges of misconduct, including retaliation against whistleblowers. This reform is on the agenda of the U.N. General Assembly’s implementation of the Summit Outcome document.
Additionally in this new policy, whistleblowers still do not have access to hearings free of institutional conflicts of interest – the “judges” are always paid employees of the United Nations. Further, many U.N. whistleblowers will not be able to afford to contest retaliation, because they cannot be reimbursed for attorney fees, even when they win. In November’s United States Foreign Operations appropriations law, Congress required U.S. officials to propose these structural reforms at the World Bank and similar institutions. GAP noted that while these last building blocks could be easily accomplished through standard procedures like external binding arbitration, or other independent alternative dispute resolution, U.N. rules require that changes must be instituted by the General Assembly.
“The establishment of this new policy can provide long-suffering U.N. staff a significant measure of safety in exercising their loyalty to the organization by bringing forth truth on corrupt and abusive practices that undermine the U.N.’s vital peace and security mission,” stated Oliviero.