2 August 2012
Despite increasing efforts to tackle the problem and growing
public outrage, UN whistleblowers continue to claim retaliation
and that their rights are not being protected by UN appropriate
authorities.
Last month the UNDT found that Mr. Robert Benson, the former
Director of the UN Ethics Office, had failed to meet his
obligations with regard to Mr. James Wasserstrom, an American
diplomat and former UN staffer who had been illegally arrested
for reporting possible corruption within the UNMIK (UNDT/2012/092).
Now, in an application under consideration before the UNDT filed
by Dr. Walter Gehr -the esteemed lawyer and former UNODC staffer
whose contract
was not renewed after his complaints of misconduct against UNODC
management, the UN court has been requested for the first time
“to refer [the current Director of the UN Ethics Office] Ms.
Joan Elise Dubinsky to the Secretary-General of the United
Nations for possible action to enforce accountability pursuant
to Article 10.8 of the UNDT’s Statute”, because “she allows this
Office to be dysfunctional”, he argues.
However, legal documents before the internal UN court reveal
that lawyers representing the Secretary-General are attempting
to convince the judge that, similarly like in the case of Mr.
Wasserstom, Dr. Gehr’s complaint of retaliation falls outside
the jurisdiction of the UNDT because “as the Secretary-General
does not have effective control over the Ethics Office, the
actions or omissions of the Ethics Office cannot be attributed
to the Organization” -an interpretation that is contrary to a
prior UNDT ruling which found that when a claim relates to
issues covered by the UN Secretariat’s whistleblower protection
policy “a staff member is entitled to certain administrative
procedures and that if he or she is dissatisfied with the
outcome, he or she may request judicial review of the
administrative decisions taken” (UNDT/2011/063).
According to UN lawyers, the UN Ethics Office was established by
the Secretary-General pursuant to actions by the General
Assembly which called for the Office’s independence, therefore
it is the General Assembly who endorsed the responsibilities for
preserving and strengthen the work of the Ethics Office, “if
there is indeed a lacuna in this respect, then it is for the
General Assembly to address this matter”, they write.
For the records, it took 10 months for the Ethics Office to
dismiss Dr. Gehr’s complaint of retaliation through a decision
which it transmitted two weeks after Dr. Gehr sued the
Secretary-General before the UNDT because of the Ethics Office’s
lack of action (UNDT/2012/069). According to the
UN whistleblowing policy, the Ethics Office should have
completed the preliminary review of a complaint of retaliation
within 45 days of receiving the complaint -the UN lawyers have
told the UNDT that the 45 days rule should be considered only as
“an aspirational requirement.”
They further dismiss the statistics on UN whistleblowing policy
by the GAP
-the US's leading whistleblower protection and advocacy
organization, used by Dr. Gehr to tell the court that the UN
Ethics Office’s record of protecting UN whistleblowers from
retaliation is abysmal by saying that “Gap allegation
that the Ethics Office lacks credible record of protecting
whistleblowers are entirely incorrect and unfounded.”
With a view to clarify this important issue, we have asked for a comment
from Ms. Shelley Walden, International
Program Officer
at the Government Accountability Project. She has kindly
provided us with a detailed response which we are publishing
here below in the hope that no others UN whistleblowers will be
paying the price for an "independent" UN Ethics Office.
From: Shelley Walden, The
Government Accountability Project (GAP)
To: UNJustice
1 August 2012
Dear UNJustice,
Thank you
for contacting the Government Accountability Project (GAP) and
for giving us a chance to reply to the statement made by the
UN’s lawyers regarding the record of the UN Ethics Office (in
paragraphs 20-23 of the Respondent’s Reply in Walter Gehr v.
Secretary-General of the United Nations). We appreciate the
opportunity to double check our numbers and clarify the
discrepancies.
Let me
explain how GAP arrived at these statistics and where the
discrepancies between our numbers and the UN lawyers’ lie. In
our
initial blog on
this issue (which has since been revised) we stated that
“According to Ethics Office reports to the Secretary-General,
from August 1, 2007 to July 31, 2010, a prima facie case
of retaliation was found in 1.5% of the requests for protection
from retaliation received by the Office (2 of 134 cases).” This
was before we located the 2006, 2007 or 2011 Ethics Office
reports, so it only uses statistics from the 2008, 2009 and 2010
reports. Our analysis was limited to those reports because they
were the only ones that we were able to locate at that time
(we’ve since located all of them and have started quoting a
new statistic incorporating every annual
report).
Here is how we arrived at our
initial numbers mentioned in the Respondent’s Reply:
-
· According to paragraphs 48 of the 2008 report, “From 1 August 2007 to 31 July 2008, the Ethics Office received 45 complaints of retaliation” and found 0 prima facie cases. According to paragraph 52 of that report, the two prima facie cases from 2007 were not substantiated by OIOS, so retaliation was ultimately not found. We did not count those two cases, as the prima facie determination was made during a previous reporting cycle (the 2007 report, which we had not yet located) and would have been counted in the 2007 report.
-
According to paragraph 60 of the 2009 report, 64 requests were received. Paragraph 62 says that 0 prima facie cases were found, but paragraph 65 says that one was found from the cases left over from the previous cycle.
-
According to paragraph 33 of the 2010 report, “from 1 August 2009 to 31 July 2010, the Ethics Office received 36 requests related to protection against retaliation.” According to paragraph 35, it found 0 prima facie case in these new cases, but according to paragraph 37 it found one prima facie case from the leftover cases from the previous cycle.”
GAP
unfortunately did make an error, as there were 145 requests for
protection against retaliation during this time, not 134. We
would like to apologize to Mr. Gehr and other whistleblowers for
this mistake. But, the mistake was ironically in the Ethics
Office’s favor. So, the number should be 2 prima facie cases out
of 145 complaints of retaliation, which is an even worse record
for the Ethics Office (1.4%). This number has been corrected on
our website (although for GAP’s 2012 blog entries, we use a new
statistic that incorporates all annual Ethics Office reports).
Now, in
paragraph 22 the UN lawyers distort this statistic because for
some reason they decided to add 2011, even though that was
clearly not included in GAP’s statistic. So they added another
55 cases (see para. 26 of the 2011 Ethics Office report)
and made it seem like those should have been included in GAP’s
statistic, even though ours focused on a different time period
as we had not yet located the relevant report. We believe that
the reason that they included the 2011 report was because in
that year, the Ethics Office found 3 prima facie cases of
retaliation (1 in para. 26 and 2 in para.28), so they can now
claim in paragraph 23 of the reply that they have found 5 prima
facie cases.
Since GAP
now has all of the Ethics Office reports, we have recently added
in the 2006, 2007 and 2011 numbers and have started using this
broader statistic in our correspondence. According to paragraph
54 of the 2007 report, the Ethics Office received 52
complaints of retaliation and found 2 prima facie cases
of retaliation. According to paragraph 45 of the 2006 report,
the Ethics Office received 45 complaints of retaliation
and found 1 prima facie case. If you add in the 2011
numbers and our previous statistic, this brings the total number
of complaints to 297 and the total number of prima facie
cases to 8 or approximately 2.7% of retaliation
complaints.
GAP’s
numbers are based on retaliation complaints received. We did not
subtract those cases that were withdrawn, involved advice or
were outside the mandate of the Office. One reason for this is
because we have been informed by some whistleblowers that the
Ethics Office advised them to drop their cases, so we think that
those numbers should be included in the overall statistic.
Another reason is that there has been some confusion over the
years regarding what the actual mandate of the UN Ethics Office
is. For example, in 2007 the Ethics Office considered some cases
from the funds and programmes, which it no longer does (provided
that those funds have an Ethics Office). Finally, we wanted to
have an overall picture of how many complaints the Ethics Office
receives and how many of those inquiries ultimately result in a
whistleblower receiving relief.
The
really interesting thing to look at is what happened to those 8
prima facie cases. After all, a prima facie decision is
meaningless if retaliation is not ultimately substantiated after
the OIOS investigation and the whistleblower is not protected.
Some of the reports clearly say that certain cases weren’t
substantiated, though some are a little vaguer. Only once
does a report say that retaliation was ultimately substantiated
and that the Office “issued recommendations pertaining to
disciplinary actions and corrective measures to the Executive
Office of the Secretary-General and the Department of
Management, pursuant to ST/SGB/2005/21.” (see paragraph 31 of
the 2011 report). So, it appears that of the 297 requests
related to protection against retaliation received by the Ethics
Office since its launch in 2006, only one resulted in the
Ethics Office ultimately substantiating retaliation and
recommending relief.
But even that one
whistleblower has not yet been completely protected from
retaliation.
Related
information:
Urgent Appeal,
UNODC:
Dr. Walter Gehr
(10 December 2011
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