On September 18, President Trump explicitly demanded that the United Nations adopt and enforce effective whistleblower protections as part of a reform package at the Organization. On September 19, he implicitly reiterated this demand. He specifically asserted that the US will exact from the United Nations a commitment to the outcomes of UN programs, and argued that the United States is not interested in bureaucratic foot-dragging and process.
By contrast, his own State Department argues, in a report required by the US Congress, that the UN already complies with best practices in whistleblower protections. GAP has reviewed both the State Department’s report and President Trump’s speeches in New York. We conclude that the President is correct and the State Department has misrepresented the policy and practice at the UN. Moreover, the inadequacies of UN policy and practice are both obvious and explicit. There is no room for confusion or bureaucratic process.
Best practice, as set out in US law, requires the UN agencies to allow access to an independent adjudicative forum and to external arbitration. Whistleblowers must also have access to a forum that can eliminate the effects of reprisal.
Most significantly, the UN Secretariat does not allow whistleblowers who appeal for relief from retaliation access to an independent adjudicative body. Nor does it allow access to external arbitration. Because of these restrictive practices, whistleblowers have no access to adjudication that eliminates the effects of reprisal.
In the 12 years since the Secretariat first adopted a whistleblower protection policy, GAP has represented more than 20 UN whistleblowers. We represent only those whistleblowers whose disclosures constitute a serious public interest issue.
Among the whistleblowers GAP has represented are disclosures regarding:
1) Evidence tampering in the UN Oversight Office;
2) Sexual abuse of children by peacekeepers operating under UN Security Council mandate;
3) Authorization of shipments of US IT to North Korea;
4) Exposure of human rights defenders to deadly retaliation in their country of origin.
There are many more. These are not petty crimes. The wrongdoers involved were in every case senior UN officials. In no case was the whistleblower protected – nor was the retaliator disciplined.
US law requires Congress to withhold funding from a UN agency that fails to comply with best-practice whistleblower protections. Yet the current Secretary of State joins the company of his predecessors in certifying that agencies in the UN system (with one exception) are compliant, even as the evidence clearly demonstrates that they are not.
The current Secretary General’s whistleblower protection policy, adopted in January 2017 (SGB/2017/2), does not remedy these shortcomings.
It is time for both the Secretary of State and the Congress to enforce US law.
Following the posting of this blog, we received the following comment from the UN Ethics Officer, to which we have replied.
You state that the UN Secretariat does not allow whistleblowers who appeal for relief from retaliation, access to an independent adjudicative body. This is incorrect.
Section 9 of the UN Secretariat’s new and enhanced whistleblower protection policy (ST/SGB/2017/2) provides that a staff member may seek review of a determination made by the UN Ethics Office that a case does not raise a prima facie case of retaliation before the alternate chair of the Ethics Panel of the United Nations (EPUN). EPUN is composed of the heads of Ethics Offices of the separately administered organs and programmes of the United Nations which operate under the principle of independence and impartiality pursuant to the provisions of ST/SGB/207/11.
Moreover, all final determinations by the Ethics Office contain recommendations upon which the Administration must make an administrative decision. These decisions are appealable before the internal justice system of the United Nations which is comprised of an independent dispute tribunal and an independent appeals tribunal. The judges of these tribunals are appointed by the General Assembly and are independent from the Organization.
Additionally, Section 10 of the whistleblower protection policy reminds staff members that they may seek to challenge any administrative decision that they may deem to be detrimental before the UN internal justice system under Chapter XI of the UN Staff Rules.
Based on this information, I would be grateful if you would correct your public statement.
Bea Edwards reply:
First, the EPUN is not an independent adjudicative forum. To be independent, at the very least, the decision-maker in a dispute must not depend for employment on a party to the dispute. Members of EPUN are staff members of the United Nations. All are employed and paid by the Organization. The members know each other; they meet and work together. Yet you assert that a review performed by a member of this panel is independent of a review performed by another panel member.
Second, the document you cite to claim independence (ST/SGB/207/11) does not exist. If you mean ST/SGB/2007/11 and cite it to claim independence, this document is, itself, a United Nations determination. Moreover, we are both familiar with the outrageous retaliation that occurred in the case that produced this bulletin.
Third, and perhaps most significant, you acknowledge that neither the first reviewer in the Ethics Office nor the second (if there is one) on the EPUN is authorized to make an administrative decision in retaliation cases. The Ethics Office can only make a recommendation to the Secretary General. Should a retaliation case go to the Administrative Tribunal, the Secretary General is the named defendant. To put this simply, in retaliation cases, the Secretary General is both the defendant and the judge. Frankly, I know of no legitimate justice system in which this is the situation.
Fourth, it has been the practice of the Ethics Office for many years to make no recommendation to the Secretary General in cases where the Office determines there is no prima facie case of retaliation. Moreover, in Wasserstrom vs. the Secretary General the Appeals Tribunal ruled that should the Ethics Office fail to make a recommendation to the Secretary General, the Tribunal has no jurisdiction to review that lack of action. In other words, there is a right without a remedy.
Fifth, without discussing the specific statutes of the Tribunal, I can only point out that the UN decides whether witnesses shall be protected from retaliation (they are not), and whether documents will be produced. The United Nation has, as you state, an internal justice system. Justice systems, whoever their judges and whatever their rules, if they are internal to the organization that produced the misconduct disclosed – are not independent of the organization that houses them, in the normal sense of this word.
It is quite clear that the UN has elaborated a bureaucratic labyrinth of channels for reporting retaliation and seeking relief. The fact is, however, none of these channels operates independently of the Organization’s senior management – even assuming that all the rules are followed.
And, as we both know, after the exposure of complicity among the former Ethics Officer, the current High Commissioner for Human Rights, the former Under-Secretary General for Oversight, and the Executive Office of the Secretary General in the Anders Kompass case, the rules are not always followed. And no one – not the Ethics Officer, the Under-Secretary, the EOSG Chief of Staff, nor the HC was disciplined in any way for inappropriate consultations among themselves as they sought to get their stories straight in the Kompass case.
I stand by my assertion that the UN does not provide access to an independent adjudicative forum for whistleblowers who seek relief from retaliation.