On January 1, Antonio Guterres, the former Prime Minister of Portugal and High Commissioner for Refugees, will become the new Secretary General of the United Nations. Before then, Ban Ki-moon, the outgoing Secretary General who has presided over cases of retaliation against UN whistleblowers at the Office of the High Commissioner for Human Rights, the World Intellectual Property Organization, in numerous field offices and in peacekeeping missions, has an opportunity to improve protection for whistleblowers, as he has been urged to do by the General Assembly.
At GAP, however, we’ve been told that Ban Ki-moon is pushing a draft policy through the Organization’s staff-management committee this week that makes it easier to fire whistleblowers.
The current policy, in place since 2005, provides protection against retaliation to staff members who report:
…the failure of one or more staff members to comply with his or her obligations under the Charter of the United Nations, the Staff Regulations and Staff Rules or other relevant administrative issuances, the Financial Regulations and Rules, or the Standards of Conduct of the International Civil Service, including any request or instruction from any staff member to violate the above-mentioned regulations, rules or standards.
The draft policy that Ban is currently promoting restricts protection from retaliation to:
Reported wrongdoing that, if established, would be substantially harmful to the interest, operations, or governance of the Organization.
Under the proposed policy, reporting someone who breaks the rules is no longer enough. The act being reported must be substantially harmful to the Organization in order to warrant disclosure.
The problem with this formulation is twofold:
The new phrase weakens the policy, and
Threatens the full contribution of the US to the UN under the provision of Sec. 7048 of the Consolidate Appropriations Act
First, Ban’s proposal creates a new semantic loophole in a policy purported to protect whistleblowers. The draft policy does not clearly state how the phrase “substantial harm” is to be construed. In the world of putative UN justice, an undefined term like this is an invitation to retaliate with impunity by claiming that whatever the whistleblower reported is not sufficiently harmful to the Organization to qualify the staff member disclosing it for protection from retaliation.
At the UN Secretariat, staff members are already facing an Ethics Office that rejected 97 percent of the inquiries it received on retaliation between 2006 and 2014. Providing the Ethics Office with yet another broadly applicable evasive tactic – in the form of a new “substantial harm” loophole – is not constructive.
The new policy would therefore be open to a restrictive interpretation by an office that has, for many years, shown itself to be hostile to UN whistleblowers.
Whistleblowers at the United Nations are fundamental to effectiveness and accountability: they have revealed bribery, procurement fraud, human rights abuse and dangers to the public health. If senior management at the UN now proposes to arm itself with a policy that facilitates denial of protection, it is probable that ethical staff members will either shut down or resign. Why risk reporting misconduct if there is every chance that the Ethics Office, which determines whether protection should be afforded, may judge the abuses reported to have not been harmful enough? By introducing this level of ambiguity, the new rules will make staff less, rather than more, likely to speak up.
Secondly, the US, which is the largest single contributor to the United Nations, operates under a mandate to use financial pressure to advance whistleblower protection at the UN. The Consolidated Appropriations Act obliges Congress to withhold 15 percent of US contributions to international organizations the Secretary of State cannot certify as implementing “best practices for (i) protection against retaliation for internal and lawful public disclosures…”
Ban’s proposed policy will place full US funding to the UN in jeopardy and leave his successor, Antonio Guterres, in a very difficult position.
More generally and most importantly, the new policy would contravene a General Assembly resolution passed on Friday, December 23 (attached here; para. 44) that calls on the Secretary-General:
…to promote an organizational culture in which staff are not reluctant to speak up and that those who retaliate are held accountable.
At GAP, we call on Ban Ki-moon to return to the negotiating table and put the wider interests of the United Nations and those it helps ahead of the interests of managers who want to fire whistleblowers who reveal inconvenient truths.