BK Blog Post
Posted by Tom Devine.
Tom Devine is legal director of the Government Accountability Project, where he has worked to assist thousands of whistleblowers to come forward and has been involved in the all of the campaigns to pass or defend major whistleblower laws over the last two decades.
In recent years, the Secretary of State has been obliged to report to the Appropriations Committees of the Congress on the implementation of best-practice whistleblower protections at the United Nations, its Funds, Programs, and Specialized Agencies. A favorable report on each UN agency is required, if the Congress is to release the total US annual contribution to each organization in the UN common system.
If the Secretary of State does not report that whistleblowers are protected at a UN agency, the Congress must withhold 15 percent of the contribution. In addition to 15 UN agencies, the requirement pertains to the UN Secretariat, including the Department of Peacekeeping Operations (DPKO) and the Office of Internal Oversight (OIOS), where 2015 saw dramatic reversals in whistleblower protection. Moreover, for the Secretariat, 15 percent of the US’ annual funding equals tens of millions of dollars that the institution sorely needs.
Given the terrible year for UN whistleblowers recorded in 2015, we at the Government Accountability Project (GAP) anticipated an unfavorable report from the Secretary of State, expressing the disappointment of the US government as it promotes accountability at the UN. Such a finding would create an urgent obligation to amend the whistleblower protection policy and effectively apply it at the Secretariat. If that were done, it could go a long way toward establishing an ethical international meritocracy that functions in compliance with the aspirations of the UN’s founding principles.
This was not to be. The Secretary of State reported that the UN Secretariat’s policy reflects “best practices among international organizations.” “However,” the report continues, “more can and should be done to promote effective implementation and enforcement of the policy.” The State Department then elaborates its discussion of the Secretariat’s Ethics Office outreach and training operations during the reporting period to support the argument that – though more could and should be done – the UN is striving to promote effective anti-retaliation measures.
The legislation that required this report is simple and explicit, however (Section 7048). The Secretary of State must report that each UN agency to which the US contributes funding has adopted and is enforcing best practice protections for whistleblowers regarding:
(i) legal burdens of proof;
(ii) statutes of limitation for reporting retaliation;
(iii) access to independent adjudicative bodies, including external arbitration; and
(iv) results that eliminate the effects of proven retaliation.
There is not much room for equivocation in responding to the reporting mandate. In his report to the Congress, the Secretary of State nonetheless dodges the requirement and describes – for roughly three-and-a-half single-spaced pages – ethics training provided to UN Secretariat staff and something called “Leadership Dialogues.”
Quite simply, the report is not germane to the legal requirement imposed by the Congress. Congress did not ask for an account of the activities of the UN Ethics Office in New York. It asked whether the whistleblower protection policy met specific standards and whether the policy was enforced. The answer to both questions is an unqualified “No.” In coming blogs, we will elaborate on the failure of the Secretariat (and UN Peacekeeping Operations) to comply with the four standards set out in law.
All of us who watch the UN Secretariat’s Ethics Office recognize that it has two functions. First is the responsibility to address specific complaints of retaliation by assessing them fairly and providing relief where required. This is the hard edge of ethics and compliance work. Secondly the Ethics Office has a softer, more flexible dimension: providing guidance and training to the staff on ethical dilemmas.
The US legislation requires information responsive to the first dimension of work, but the State Department provides data about the second. The reason the Congress prioritizes the first aspect of work over the second is obvious: if the policy is inadequate or not enforced, then it doesn’t matter what sort of advice or training the UN Ethics Office provides for staff.
The State Department report tries to finesse an obvious problem in UN operations that should prohibit the disbursement of the full US contribution to the Secretariat.
To be clear, neither GAP, nor the UN whistleblowers we represent, want to weaken or impoverish the United Nations, and certainly not the DPKO or OIOS. Both departments have vital functions, and the international community depends on the effectiveness of their operations. But whistleblower protections impose an honor code on an institution: if an official betrays the principles of the UN Charter and behaves unethically, his or her conduct will be reported by a whistleblower and (presumably) corrected. This single measure constitutes a cost-free, non-invasive means to rapidly correct a plethora of operational problems, small and large.
The Congress is demanding that whistleblower protections at the UN Secretariat be meaningful and enforced. The Secretary of State has reported that they are both, when in fact they are neither. The question is now whether the Congress will accept the con.