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 madepublicized 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.
Unfortunately, this decision establishes the precedent that UNAT can alter, with little explanation or justification, awards made by the office charged with protecting UN whistleblowers from retaliation. The only justification that UNAT provided was that the Ethics Office’s award seemed “excessive, especially in view of the finding against Shkurtaj on the underlying merits.” UNAT’s ruling ignores the fact that Shkurtaj incurred $25,000 in legal costs alone, simply for trying to get UNDP to honor an Ethics Office decision that it should have enforced in the first place. This reduced award barely covers Shkurtaj’s costs for pursuing this case, let alone the enormous hardship he faced while trying to make UNDP live up to its rules and procedures.
In August 2007, the UN Ethics Office Director opined that there was a prima facie case that Shkurtaj was retaliated against for blowing the whistle on wrongdoing in the UNDP North Korea office, including the apparent transfer of hard currencies to North Korean officials and entities in violation of UNDP rules and regulations. In response, the UNDP Administrator claimed that UNDP was not subject to either the jurisdiction of the Ethics Office or the UN anti-retaliation policy, and would therefore create its own policy and Ethics Office. This led to Secretary-General Ban Ki-moon issuing a policy that allowed the Funds and Programs to exempt themselves from the rulings of the Ethics Office, leading to a proliferation of ad hoc internal whistleblower policies and ethics offices that lacked the autonomy needed to be impartial.
Then, rather than follow the procedures established in its new whistleblower policy, UNDP created an ad hoc “External Independent Investigative Review Panel” to review Shkurtaj’s case. But “independent” was a misnomer; the panel was selected by then-UNDP Administrator Kemal Dervis and included a member of a UNDP advisory board, lacking the impartiality needed to investigate retaliation disclosures properly. The Panel’s Terms of Reference required that its findings be shared with the director of the Ethics Office, who would provide an opinion and recommendations.
The director ultimately found that the Panel failed to inform Shkurtaj of adverse findings contained in its report, or provide him a chance to respond before releasing it publically. He recommended that Shkurtaj be awarded 14 months net base salary as compensation. The UNDP Administrator failed to comply with this recommendation.
But despite this convoluted process, UNAT inexplicably ruled that “the circumstances of the present case are not exceptional,” (para. 28) when the facts clearly show that Shkurtaj’s case was the exception to every rule that the UN has in place to protect whistleblowers.
According to Shkurtaj’s official statement on the UNAT decision:
In 4 years we all witnessed with dismay UNDP’s and Secretary-General’s refusal to abide by the administrative law provisions promulgated by the same Ban Ki-moon as Chief Administrative Officer of the entire United Nations family, only to confirm the culture of impunity that exist at the higher levels of the organization. In 2008 the Secretary-General Ban Ki-moon said publicly that he supported the position of Mr. Benson [the Ethics Office Director]. Now, three years later, it is time for him to show leadership and direct the Administrator of UNDP to comply fully with the Appeals Tribunal judgment. I hope that he will do so immediately.
The Decision’s Impact on Whistleblowers
Since the Ethics Office has an abysmal record of protecting whistleblowers this ruling may not significantly impact most whistleblowers. But for those rare UN employees who are vindicated by the Ethics Office, this decision could result in them facing years of protracted litigation just to have the Office’s decision enforced. The judgment is likely to have a chilling effect that could result in less whistleblowers coming forward at the UN and in more corruption going undetected.
Shelley Walden is International Officer for the Government Accountability Project, the nation’s leading whistleblower advocacy organization.