UN-JUSTICE: Failure of leadership in protecting whistleblowers at the United Nations has led to a request for disciplinary action against the head of the UN Ethics Office

2 August 2012

The persistent requests for an effective implementation of the UN whistleblowing policy could face more protests unless appropriate attention is paid in high places to the needs of those who “risk their jobs, professional lives and livelihood by courageously seeking to expose wrong-doings within the Organization” -to use the words of the recent UNDT ruling in the case of Ms. Vesna Dzuverovic (UNDT/2012/105).

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

GAP: World Bank Put Whistleblower Under Surveillance Years Ago

by Bea Edwards on July 17, 2012 ( The Whistleblogger / 2012 )

Over the past weekend, the New York Times broke the story about electronic surveillance of Food and Drug Administration (FDA) whistleblowers by the agency itself. The Washington Post followed up today with the news that FDA lawyers approved the surveillance, which included:

…confidential letters to at least a half-dozen Congressional offices and oversight committees, drafts of legal filings and grievances, and personal e-mails…

At GAP, we’ve been defending John Kim, a World Bank whistleblower who exposed the details of debates internal to the Bank about weakening anti-corruption measures to be put in place. As part of their pursuit of Kim, World Bank investigators hacked his personal email account and read hundreds of non-Bank messages, including those  between Kim and his family’s attorney that were written five years before the incident  purportedly under investigation. In any credible legal environment, these communications are protected by attorney client privilege … but that did not stop the World Bank’s “Vice Presidency for Institutional Integrity” (INT).

Kim’s attorney repeatedly requested the internal authorizations INT claimed to have secured from senior management to launch such invasive surveillance, but investigators never produced them. GAP could not determine whether the authorizations even existed, never mind whether they were at all limited in time and scope. The depth of the privacy invasion strongly suggested they were not.
The process was simple. INT deployed an off-the-shelf program – Encase – that costs a couple of hundred dollars and overrides passwords.

So, while “investigating” a 2008 leak, INT found that Kim had also leaked the information about the Bank’s anti-corruption measures during the period when the press focused on Paul Wolfowitz’s delinquent behavior as World Bank president. At the time, hundreds of Bank employees were leaking information about the Bank’s internal debates to blogs, press, and GAP. Because the investigation didn’t establish that Kim was the source of the 2008 leak, the Bank fired him in 2009 for whistleblowing about Wolfowitz years before.

Two points. One, electronic surveillance is now widespread. It’s cheap, user-friendly and effective. Two, employers feel free to use it without constraint. At the World Bank, investigators were reading personal messages, emails protected by attorney-client privilege, and communications that were written years before the suspect incident used to justify a privacy invasion took place.

So both free speech and privacy are under attack by the very institutions that claim frequently to protect good governance and human rights: the World Bank and the United States government.

Bea Edwards is International and Executive Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy orgaznation.

GAP: IDB Whistleblower case leads to shady dealings going public (UNDP's Grynspan involvement detailed)

by Bea Edwards on March 06, 2012 ( The Whistleblogger / 2012 )

Click here for this on GAP page

So ethics guru Bernardo Kliksberg is back in the news. On March 1, FOX News' George Russell published a detailed piece about Kliksberg’s peculiar departure from the Inter-American Development Bank (IDB) in January 2007, just before the Social Capital and Ethics Initiative “coordinated” by him ran completely out of steam. The Norwegian and Canadian Governments funded this effort, and a whistleblower at the IDB disclosed repeated and costly ethical violations by Kliksberg, using the funds of the initiative.

It seems that Kliksberg, the author of More Ethics, More Development, among other treatises, is himself guilty of diverting funds from the IDB’s ethics initiative.

This takes, in the immortal words of Sarah Palin, cojones.

Russell’s piece reports that the IDB then repaid the Norwegian and Canadian Trust Fund for the amount Kliksberg demonstrably diverted: $109,000, equivalent to half of the funds available for the initiative in 2006. After that, the cone of silence descended around the Kliksberg affair, and it remains concealed beneath highly improbable and contradictory official statements. It only came to light because the whistleblower brought suit in the IDB’s internal tribunal. She protested the loss of her job, which the IDB tried to represent as the inevitable consequence of the demise of the Ethics Initiative.

The failure of the IDB to protect the whistleblower in this case sent a terrible message to Bank staff: if your whistleblowing causes an interruption of your project, your job will be the first casualty of your disclosure. That should pretty much shut down everyone with any survival instinct at the IDB, no?

For his part, Kliksberg simply caught the Acela to New York and assumed control of another international trust fund. That would be the fund contributed so generously to the United Nations Development Program (UNDP) by Spanish taxpayers through the Government of Spain. Established in April 2007, the Spain-UNDP Trust Fund held $62 million by 2009. (Just a heads up, UNDP people: you need to keep a close eye on those deposits. In our experience dealing with corruption, the diversion of funds tends to be a lifestyle, not an incident).

Despite the rhetorical commitments to transparency and accountability with which the IDB decorates its website, this episode is shrouded in secrecy and stinks of institutional cover-up. Kliksberg contends that Bank management never told him he was under investigation and never informed him he was found guilty as charged. Nor did the IDB inform UNDP, claims UNDP. But not informing Kliksberg that he was under investigation and later censured violates the procedures of the IDB’s internal justice system in ways that even the Bank – which is notoriously cavalier about adhering to its own anti-corruption regulations – would hesitate to try.

Now, I'm not saying this couldn’t have happened. After all, stealing from an ethics trust fund is also a violation of something, and rather than making Kliksberg repay Norway and Canada, the IDB coughed up the money out of its own public coffers. This decision had the effect – whether intentional or not – of removing the fraud from the public record by depriving the governments of a cause of action.

But Kliksberg told Russell that the IDB conducted an extensive investigation, and the only result was a note in his file advising anyone considering a contract for him to first consult with the Human Resources Department. So…

• Question One: How did the IDB conduct a thorough investigation of the Trust Fund deficits without asking Kliksberg himself about his financial practices (and without freezing his access to funds and his e-mail account)?
• Question Two: Did Kliksberg’s stature as an Ethics Expert allow him to escape sanction for ethics violations involving the Trust Fund?
• Question Three: Why would the IDB not inform the Spanish Government about the risk Kliksberg represented to the integrity of its Trust Fund at UNDP if he were hired to manage it?

Nothing about the official steps taken by the IDB makes sense, from an accountability perspective. After Kliksberg took down the Social Capital and Ethics Initiative at the IDB, the Bank took steps to ensure that there was no record of what had happened – no letter outlining Kliksberg’s ethical violations and misconduct in the HR files, and no judicial action against him either in Washington, Norway or Canada. The only record of what happened is the letter to the Norwegian and Canadian Governments committing the IDB to repaying the trust fund.

The Ethics Committee concluded that there was sufficient evidence to establish that the former Technical advisor for the Fund violated certain provision of the Bank’s Code of Ethics. The former Technical Advisor [Kliksberg], a Fund consultant, was found to have used employees hired with Fund resources to perform work in furtherance of his personal endeavors. Based on these conclusions, the Bank did not renew his contract and his employment at the Bank has, therefore, ended.

This letter, of course, was not intended to see the light of day. And if not for a whistleblower claim and an intensive investigation by a journalist, it wouldn’t have. Nevertheless, with reference to accountability at the IDB, the Bank website has this to say:

The Inter-American Development Bank has developed a major overhaul of its anti-corruption framework to ensure that allegations of corruption in Bank financed activities are investigated and sanctioned more quickly, and whistleblowers enjoy stronger protections than before. The IDB is also strengthening the support it provides to countries to battle corruption.

But hey! In this particular case, the whistleblower lost her job and got paid something for her trouble only after more than two years without work. In contrast, the guilty party enjoyed the privilege of confidentiality provided by the Bank to protect his reputation in spite of his own thievery. The simple fact here: the IDB ensured that an unscrupulous consultant enjoyed strong protections, while the whistleblower was abandoned, and a trust fund at the IDB as well as another fund at UNDP were left for him to use at his discretion.

Outstanding. But here’s some consolation: at least someone got protection. Too bad it wasn’t the whistleblower.

Bea Edwards is Executive Director and International Director for the Government Accountability Project, the nation's leading whistleblower protection and advocacy organization.

'The Whistleblower' Film Debuts, But Has Anything Changed for United Nations Whistleblowers?

CLICK HERE TO VIEW THIS ON G.A.P

The Whistleblower, which details the true story of the United Nations’ complicity in the sex-trafficking industry in Bosnia, debuts Friday in select theaters, with widespread distribution to follow. The movie, starring Oscar-winner Rachel Weisz as real-life truth-teller Kathryn Bolkovac,chronicles Bolkovac’s attempts to blow the whistle in the late 1990s and early 2000s while working with the UN International Police Force.

As GAP’s International Program Officer, one of my job duties is to monitor whistleblower rights and cases at the United Nations. I'm obviously eager to see the film, and GAP will put out a review of it in the coming weeks. If the movie sticks to the known facts about the actual events, it may raise much-needed awareness of whistleblower problems at the United Nations. As a Human Rights Watch official stated about Bolkovac's tale:

“Women and girls trafficked into Bosnia and Herzegovina's brothels endured debt bondage, rape, and beatings. International police and peacekeeping forces should have protected these victims. Instead, some committed trafficking crimes. Kathy Bolkovac bravely blew the whistle on them. She paid a high price in her career, but had the integrity to take a stand against grave human rights abuses.”

Focusing on Bolkovac's case, it seems the perfect time to ask: What has changed? If a UN whistleblower were to come forward today – a decade later – with similar allegations to those made by Bolkovac, would s/he also “pay a high price” for making disclosures?

Unfortunately, the answer appears to be yes.

To the credit of the United Nations, the organization has taken several actions in the past decade to better protect whistleblowers. Advances include:

• The passage of an improved whistleblower policy: In 2005, in the wake of the Oil-for-Food scandal and disclosures by several former UN employees about sexual abuse by UN forces, then Secretary-General Kofi Annan issued a whistleblower protection policy that was developed after months of consultation with GAP and other experts in whistleblower law. The policy established an independent Ethics Office, with staff responsible for receiving appeals for protection from whistleblowers.

• The reform of the United Nations justice system: In 2006, a panel of independent international jurists found that the UN internal justice system failed to meet “many basic standards of due process established in international human rights instruments” and could not adequately resolve conflict within the Organization. This panel observed that although two-thirds of UN staff members served in field operations, the system of justice in the field was particularly weak. Because the UN enjoys sovereign immunity, staff and troops therefore had no access to any impartial judicial mechanism to contest violations of their own rights.

In July 2009, the United Nations launched a new, decentralized internal justice system based in part on the panel’s proposal. The new system consists of the United Nations Dispute Tribunal (UNDT), the first instance of the two-tier justice system, and the UN Appeals Tribunal (UNAT), which any current or former staff member can appeal a UNDT decision to. Although the system’s initial decisions appear to be favorable to whistleblowers, the system remains severely underfunded, to the point that UNAT judges routinely preface the release of their judgments with pleas to the Secretary-General for additional funding. Also, on several occasions, Secretary-General Ban Ki-moon has failed to respect the authority of the new Tribunals.

In its first year of operation, nearly 20 percent of the cases that were filed with UNDT originated in peacekeeping missions. UNDT will soon release a decision involving one of the heroes portrayed in The Whistleblower, Madeline Rees (who is played by Vanessa Redgrave). Rees maintains that she was fired for the actions depicted in the movie and for helping to blow the whistle on the UN’s “collusion in the rendition of six Algerian nationals to Guantanamo Bay.”

These two reforms were a step in the right direction, but were significantly weakened by subsequent actions taken by Secretary-General Ban Ki-moon. Moreover, despite these reforms, significant obstacles remain for UN whistleblowers, including:

• Fragmented whistleblower policies and processes: Because of a bulletin issued by Secretary-General Ban Ki-moon in 2007, at least seven UN funds, programmes and specialized agencies now have their own, piecemeal whistleblower policies, many of which are weaker than the UN Secretariat policy. This bulletin authorized the replacement of one overarching Ethics Office (charged with reviewing retaliation complaints and safeguarding the interests of whistleblowers) with a proliferation of ad hoc ethics offices that lack the autonomy needed to be effective and impartial. Some of these Offices have no dedicated funding and others are severely understaffed. The Secretary-General’s bulletin ultimately complicated and confused the whistleblower protection system in the UN, creating an entirely new level of bureaucratic dispute, delay, cost and inefficiency for those who report corruption in UN operations and suffer retaliation as a result.

• The record of the UN Secretariat Ethics Office: According to annual Ethics Office reports to the Secretary-General, from August 1, 2007 to July 31, 2010, a prima facie case of retaliation was found by the UN Secretariat Ethics Office in only 1.5% of the whistleblower cases that it received (2 out of 134). In other words, there appeared to be, on first examination, evidence that whistleblowing was a contributing factor in causing the alleged retaliation or threat of retaliation in only two cases. These two cases were referred for investigation, but the whistleblower was not necessarily vindicated. Thus, the Office has failed to protect at least 98.5% of UN whistleblowers who have approached it for help.

• The record of the Office of Internal Oversight Services Investigations Division (OIOS/ID): This office is charged with investigating whistleblower retaliation cases after the Ethics Office has ruled that a prima facie case of retaliation exists. However, OIOS/ID has refused to investigate some whistleblower retaliation cases.

Incidentally, OIOS/ID also investigates allegations of sexual exploitation & abuse and fraud. Although GAP has been critical of OIOS/ID’s handling of these two issues in the past, there are silver linings to this cloud. First, a new director has finally been named to head OIOS/ID, after the position sat vacant for more than three years. Second, the latest report on Peacekeeping Operations from OIOS (A/65/271/part II) suggests that it has improved its record of investigating sexual exploitation and abuse cases.

According to the report, OIOS/ID investigated more than 30 cases of sexual exploitation and abuse in Peacekeeping Operations in 2010 and substantiated many of these allegations. For example, at the UN Mission in the Democratic Republic of the Congo (DRC), OIOS/ID:

Investigated reports of sexual abuse of minors, substantiating that at least five peacekeepers had sexually abused young girls and, in at least three cases, had taken photographs of themselves posing with the victims, which included one set of photographs that were sexually explicit. The Department of Field Support provided the investigation results to the concerned troop-contributing country on 2 June 2010. Three of the subjected peacekeepers were reported to have been jailed (for two months and seven days), incurred demotions in rank and were prohibited from future deployment to peacekeeping missions; and one was cleared. The relevant troop-contributing country’s response in respect of the fifth peacekeeper is still pending.

OIOS also investigated the sexual exploitation of a local DRC woman by a United Nations Police Officer and a United Nations Security Officer. OIOS concluded “that the officers had engaged in sexual acts with the woman while driving a United Nations vehicle.” But it is unclear whether or not the responsible parties were ever disciplined, as OIOS’ account only says that:

“the Department of Field Support provided the investigation report concerning the Police Officer to the concerned police-contributing country on 27 April 2010, while the investigation report concerning the Security Officer was referred to the United Nations Office for Project Services for its consideration and appropriate action.”

The UN has an obligation to ensure that it fully investigates sexual exploitation and abuse reports and protects whistleblowers that raise these issues. While it appears from the reports above that some progress has been made on the former issue, much remains to be done on the latter.

Rumor has it that top UN officials are concerned that The Whistleblower could harm the UN’s reputation, and they have reason to be concerned -- not only because of the events depicted in the movie, but also because the Organization has failed to take sufficient corrective measures to ensure that such abuses will be detected and addressed in peacekeeping operations today. Until the UN can show that it has a credible record of protecting whistleblowers, employees who are aware of sexual exploitation, or other human rights abuses, in peacekeeping operations are likely to remain silent. As a result, opportunities to curb atrocities similar to those depicted in The Whistleblower will continue to be lost.

Shelley Walden is the International Officer at the Government Accountability Project, the nation's leadingwhistleblower protection and advocacy organization.