What the United Nations and President Trump have in Common When it Comes to Whistleblowers:
Hostile Responses to Whistleblowers Plague the United Nations
By Gabrielle Simeck and Samantha Feinstein
Since a confidential intelligence community (IC) whistleblower’s complaint regarding a phone call between U.S. President Donald Trump and Ukraine President Volodymyr Zelensky became public, whistleblowers have been driving the news. But American IC whistleblowers are not the only ones facing hostility in response to their disclosures. The United Nations’s hostility toward whistleblowers is much like President Trump’s, and it has been going on for years.
Government Accountability Project has represented many whistleblowers who have taken their retaliation cases to the UN Dispute Tribunal and/or the UN Appeals Tribunal (the U.S. equivalent of an appellate court) including Dr. Aicha Elbasri, Dr. Miranda Brown, Anders Kompass, and James Wasserstrom.
The UN’s response to whistleblower Emma Reilly highlights the lengths that the subjects of whistleblowers’ complaints will go to in order to crush the whistleblower who reported them.
This past May, the judge presiding over Reilly’s case before the UN was removed at the request of a retaliator named in her complaint in an affront to Reilly’s right to due process.
But Reilly’s story began over 6 years ago when she was working as a human rights officer at the Human Rights Council in March 2013. After discovering that a senior staff member, Eric Tistounet, gave the Chinese government the names of Chinese human rights defenders planning to attend a session of the Council in Geneva, Reilly reported the practice to senior staff. Reilly believed that the provision of this information would endanger Chinese human rights defenders by giving the government the information needed to stop the dissidents from appearing. No other government was given the identities of their dissident nationals prior to the sessions.
Her disclosures fell on deaf ears, though Reilly again raised concerns in 2014, 2015, and 2016.
Reilly believed the practice ended after she took her concerns to an external institution, the Irish government, and the Irish ambassador intervened in 2016. However, her superiors at the UN Human Rights Office recently told her that no investigation was ever conducted, and no measures were taken to stop the practice.
After making her disclosures, Reilly experienced retaliation in the form of harassment, exclusion, and abuse of authority. She sought protection from the Ethics Office in New York; however, the office determined that Reilly’s report of the UN practice was not a protected whistleblower disclosure and her subsequent treatment was not retaliation.
Reilly continues to seek protection from reprisal from the UN to this day. However, a recent UN action suggests that Reilly is not likely to get any justice. On the heels of a May 24, 2019 favorable decision in relation to Reilly’s first case, and while two other matters pertaining to Reilly’s disclosures were adjourned and awaiting Judge Downing’s imminent judgment, Secretary General António Guterres influenced a decision to immediately remove Judge Downing. This removal is troubling not only because the Secretary General himself is a party to Reilly’s case, but also because it fails to conform to UN standard practice regarding seized judges (once a judge begins hearing evidence and makes a ruling on it, the judge becomes “seized” with the matter and no other judge can take over). It is common practice for the UN General Assembly and Security Counsel to allow judges to complete the cases they are seized of – consistent with the UN’s original intention in utilizing ad litem judges to hear and complete the particular cases assigned to them.
Judge Downing’s removal before rendering decisions in Ms. Reilly’s pending cases is concerning to Government Accountability Project because it violates the U.S. Consolidated Appropriations Act (CAA). Section 7048 (B) of that act — introduced by Government Accountability Project — requires the UN to not only adopt best practices to protect whistleblowers from retaliation but implement and enforce its whistleblower policy in an effective and timely manner.
Judge Downing’s removal violates the CAA in that it 1) needlessly causes undue delays and duplication of effort, and 2) evidences the UN’s failure to prevent, or even address after-the-fact, the interference of a party in Ms. Reilly’s case, namely Secretary General António Guterres. The Secretary General’s ability to hasten the Judge’s removal prior to decision and alter best practices for removing seized judges renders the due process available to this whistleblower unfree of political influence and lacking independence. The UN’s actions reveal a stunning absence of internal checks on conflicts of interest and political interference and the persistent violation of Reilly’s due process rights — a significant departure from the best practices Congress intended to require in Section 7048 (B) of the CAA.
Reilly herself identified the injustice of her current situation at the UN in a September 25 tweet, writing, “Imagine the UN response if a head of State, accused of retaliation against a [whistleblower], removed the judge before he could issue a verdict. I reported the UN handing names of human rights activists to China. The UN Secretary-General removed the judge.”
Unfortunately for whistleblowers everywhere, any respite from retaliation is unlikely to arrive soon. Until then, Government Accountability Project will continue to advocate for whistleblowers like Emma Reilly and US IC whistleblowers to ensure compliance with U.S. law.