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 the whistleblower world, we were discouraged to read the ruling the UN Appeals Tribunal (UNAT) released on August 24th in the case of Nguyen-Kropp & Postica vs. the Secretary General. The final decision in the case was, of course, communicated months ago, but the UNAT’s argument to support its ruling was new to us.
The state of play for UN whistleblowers has never been good, but it has now reached a nadir. In three successive UNAT decisions (Wasserstrom 2014, Nguyen-Kropp/Postica 2015, and Nguyen-Kropp 2016) the Appeals Tribunal has excluded whistleblowers’ appeals for relief from judicial review. Among the three judgments, the UNAT ruled that recommendations of the Ethics Office are beyond the scope of the Tribunal’s jurisdiction, which includes only disputes involving ‘administrative decisions.’
This ruling would not be so devastating if the Ethics Office did its job properly and issued its recommendations – both favorable and unfavorable – but it doesn’t. The UNAT recognized that problem also:
We acknowledge that in the case of Mr. Wasserstrom, as in the case of the Appellants [Nguyen-Kropp and Postica], the Ethics Office failed in its duty to make a recommendation pursuant to Section 5.7 of ST/SGB/2005/21 (para. 43).
Nonetheless, the UNAT continues:
Under the law as it presently stands, the Tribunals do not have the power to order the Ethics Office to comply with Section 5.7, nor to order the Secretary-General to take action when the Ethics Office fails to do so. The remedy for such a situation rests with the General Assembly (para. 43).
Section 5.7 of the applicable UN policy requires the Ethics Office to make a recommendation to the Secretary-General regarding a whistleblower’s appeal for relief from retaliation. Based on that advice, the Secretary-General is to make an administrative decision regarding the validity of the whistleblower’s claim, and that action can be contested at the Tribunal.
If the Ethics Office simply closes a case because it is a problem – as it frequently does and as it did in the cases of James Wasserstrom, Ai Loan Nguyen-Kropp and Florin Postica – then there’s no recommendation to the Secretary-General, who therefore makes no decision, and the whistleblower has no official action to contest at the Tribunal.
Clearly, there’s a psycho-social problem with this formulation. Normally, if you don’t do your job, then the consequences affect YOU. You’re therefore motivated to do your job because otherwise you’ll be disciplined or dismissed. If, however, when you don’t do your job, the consequences affect SOMEONE ELSE, that’s different. At the UN Ethics Office, if the Director doesn’t do her job, then the whistleblower who appealed to her for help can continue to be harassed, intimidated, investigated, marginalized, excluded or otherwise ruined professionally. So long as there is no formal “administrative decision” in play, the whistleblower has no judicial remedy.
For the three whistleblowers whose cases were appealed to the Tribunal, the Ethics Office did not do its job, but that omission cannot be contested. This is a dead end, and we must go back to the General Assembly.
Which is where we were 10 years ago.
About a year ago, the Assistant Secretary of State for International Organizations (including the United Nations), Bathsheba Crocker, spoke about the management culture at the UN and asserted that it was moving in the right direction:
There is more budget transparency and accountability in many organizations today. There are more robust investigation tools. There is momentum toward addressing the lack of uniform whistleblower protections.
While Crocker may have been speaking more about her own aspirations than of reality at the UN, the past two years have seen the UN turn away from whistleblower protection and back toward impunity. Citing a lack of clarity in the Secretariat’s policy, the Appeals Tribunal has thrown the issue of retaliation back to the General Assembly, which is where we all were in 2004, just after the Oil-for-Food scandal broke, devastating the reputation and the legitimacy of the United Nations. It was then that the Organization adopted a whistleblower protection policy and expressed its commitment to accountability.
The policy adopted was to protect those brave souls who dared come forward and report corruption, illegality or abuse. They would be an early warning system so that a scandal on the scale of Oil for Food could never prosper again. In 2016, however, the zeal for reform has faded, the spotlight of public attention has turned away, and the semantic implications of the phrase ‘administrative decision’ mean the difference between professional survival and ruin for a UN whistleblower.
It’s important to note that neither Wasserstrom, nor Nguyen-Kropp nor Postica were reporting trivialities when they blew the whistle. Wasserstrom exposed an enormous kick-back scheme in Kosovo, and Nguyen-Kropp and Postica revealed serious misconduct in the Investigations Division of OIOS. For their trouble, the UN subjected all three to career-wrecking reprisal. Other staff members, seeing this, are unlikely to volunteer to be whistleblowers now.
This case has a long and tortured history, but in brief, two investigators (Nguyen-Kropp and Postica) found that a senior officer in the Investigations Division of the Office of Internal Oversight Services (ID/OIOS) had tampered with evidence in a case. When they reported this, they found themselves under investigation on grounds that the Under-Secretary-General for OIOS later acknowledged were bogus. They reported the retaliatory investigation to the Ethics Office and sought relief. The Ethics Office found that the investigation – which ultimately cleared them of trumped up charges – was not retaliatory and closed the matter. While the outcome of the investigation favored them, both Nguyen-Kropp and Postica argued that the process of being investigated was very damaging. OIOS had publicized its investigation of the two, and they were treated with suspicion in professional circles after that. They appealed to the Dispute Tribunal, which ruled that though the episode was contemptible and ruinous for them, the internal justice system at the UN could not review determinations made by the Ethics office.
The two whistleblowers appealed and the UNAT, citing itself in the 2014 Wasserstrom decision, just upheld the UNDT’s ruling.
So there you have it. The whole process has become a cul-de-sac for whistleblowers, from which there is no way out. The Ethics Office did not do its job – but the Internal Justice System (IJS) cannot oversee its actions. Nor can the IJS review the Secretary-General’s actions (or lack of them) with regard to the Ethics Office.
The General Assembly is meeting next month. Perhaps it will take up the issue of whistleblower protections. At GAP, we hope so.