Protecting Whistleblowers at the UN
November 12, 2012 · By Shelley Walden
The UN needs to do more to promote the rule of law within its own ranks.
The United Nations promotes the rule of law around the world, especially in its peacekeeping missions. But while the UN advocates for frameworks through which people, institutions, and nations are held accountable under laws that meet human rights standards, a new study has found that it needs to do more to uphold the rule of law effectively within the organization itself.
A new report by the Government Accountability Project (GAP), a leading whistleblower protection organization, analyzed the impact of the UN internal justice system on accountability practices in the UN’s peacekeeping missions. The study identified fundamental shortcomings in the UN’s accountability mechanisms, based on a review of two years of judgments from the organization’s internal justice system and interviews with key UN personnel, attorneys, and whistleblowers from eight different peacekeeping missions.
In 2009, the United Nations launched a new internal justice system after a panel of international jurists concluded that the previous system for addressing employee grievances was ineffective, lacked independence, and failed to promote accountability. The new system is composed of two Tribunals: the lower UN Dispute Tribunal (UNDT) and the upper UN Appeals Tribunal (UNAT). The experts who proposed this two-tiered system believed that this structure would strengthen the rule of law within the organization, both by protecting the rights of staff members and by holding employees at all grades accountable for their performance and their conduct. Given that the United Nations enjoys legal immunities in the countries where it operates, employees in principle have no access to domestic courts when their employment rights are violated, leaving these internal tribunals as a staff member’s only legal recourse.
GAP’s study—“Tipping the Scales: Is the United Nations Justice System Promoting Accountability in the Peacekeeping Missions or Undermining It?” — found encouraging data suggesting that the new system appears to better protect the due process rights of staff members and whistleblowers.
For example, UNDT found in favor of whistleblower James Wasserstrom, a former senior official at the UN Interim Administration Mission in Kosovo (UNMIK) who disclosed a possible kickback scheme involving UNMIK officials. The scheme was related to a controversial proposed power plant and mine known as Kosovo C. After blowing the whistle, Wasserstrom’s contract was not extended, his passport was confiscated, he was subjected to administrative and criminal investigations, and his photograph was placed at the entrances of his former workplace to ensure that he would not enter. Although the secretary-general’s representatives repeatedly refused to release documents requested by the judge in this case, UNDT ultimately ruled in Wasserstrom’s favor, demonstrating that the judges would not tolerate failures to properly apply the UN whistleblower protection policy.
But many of the people GAP interviewed expressed concerns about the way whistleblower cases are still dealt with in the field, suggesting that lessons learned from UNDT cases have not yet resulted in actual improvements in the treatment of whistleblowers from the peacekeeping missions.
In fact, virtually everyone from a peacekeeping mission interviewed for this report said they were afraid to speak up about misconduct. As one UN police officer said, “people are afraid to speak up because they will be sent home. They know things are wrong here, but you’re better off not saying anything.” Similarly, a staff association representative said that “if staff members see misconduct in the field, most won’t report it. You’ll get a very brave one who will do it, but most will just close their eyes to it, because they’re afraid of the consequences. They’re unprotected.” Most whistleblowers said that when they did make a disclosure, no disciplinary action was taken against the people their reports implicated. Instead, whistleblowers themselves were often subjected to retaliation, investigated, or disciplined.
Respondents also reported that UN investigative bodies lacked independence, investigated cases inadequately, delayed investigations, and failed to investigate certain cases altogether, including those involving abuse of authority by senior officials. In the words of one interviewee, investigations by the UN’s Office of Internal Oversight Services (OIOS) “have always been poorly done [in the field]. It’s appalling the way OIOS investigates cases or doesn’t investigate. … In my former mission OIOS investigated the person who was exposing misconduct and raising questions, rather than the actual misconduct.”
GAP’s report also analyzes misconduct cases, such as one involving a former transport assistant in the United Nations Operation in Côte d'Ivoire (UNOCI). This applicant contested the Secretary-General’s decision to dismiss him after he was identified by two trafficked women as having engaged in sexual exploitation and abuse. The applicant ultimately won his case before UNAT, which found that a disciplinary decision cannot be founded solely on anonymous statements and that the onus is on the UN to establish the factual basis for disciplining staff members.
When reviewing misconduct cases, the tribunal judges often identified such shortcomings in the UN’s prevailing practices for addressing disciplinary issues and were critical of the non-standardized, haphazard practices used by various UN investigative offices. Often, irregular or unjustifiable investigative procedures or arbitrary disciplinary measures were used when reviewing misconduct cases from peacekeeping missions—obliging the judges to take action on violations of due process rights, regardless of the substance of the case or wrongdoing. Indeed, GAP found that UNDT vindicated 68 percent of current or former staffers who were alleged to have committed misconduct in a peacekeeping mission. This is significantly higher than the comparable rates under the old system and for other types of cases.
GAP also found evidence that the UN administration has become more cautious in pursuing disciplinary cases from the peacekeeping missions as a result of the tribunals’ jurisprudence. This finding was substantiated by a recent report by the UN Secretary-General, which stated that “in many cases” the decision was made not to pursue a disciplinary measure because “the underlying investigation and supporting evidence failed to meet the higher evidential and procedural standards” articulated by the new tribunals. In other words, the organization has apparently decided that it is simpler to retain some employees whose conduct has been called into question than it is to address the underlying procedural issues in the disciplinary process. This finding was supported by the results from interviews conducted for the study: many respondents believed that people who commit misconduct in the peacekeeping missions are not always disciplined. Several respondents noted the disparity in discipline between managers (who were rarely sanctioned) and people at the lower levels (who were subjected to corrective measures).
Ironically, it appears that the reformed justice system, in the absence of corresponding reforms in the UN’s internal “law enforcement” functions, may actually decrease accountability and exacerbate problems of misconduct in the peacekeeping missions. GAP’s report identifies numerous reforms that could make a difference. For example, the report proposes specific revisions to the UN whistleblower protection policy, including broadening its provisions to apply to anyone who reports misconduct that could undermine the organization’s mission. Currently, the policy does not protect victims, peacekeepers, or UN police officers, even though they are most likely to witness sexual exploitation, abuse, and other crimes or misconduct committed in the peacekeeping missions.
In addition, the report recommends a new, legally binding policy that clearly establishes staff members’ due process rights during and following an investigation and describes the steps that must be followed before a disciplinary measure is imposed.
The United Nations should also consolidate all investigative bodies—including those in the funds, programs, and specialized agencies—into one internal oversight entity that handles all investigations, including those in the field. This body should be as external and independent as possible and should adhere to consistent investigative procedures that respect the subject’s due process rights.
Finally, GAP recommends that the UN create an impartial panel to review the procedures of the UNDT and UNAT. This panel should identify ways to address concerns about the new justice system raised by the people GAP interviewed, such as issues related to the independence of the judges and the registrars; limitations on remedies and legal costs; the standing of staff associations to file claims before the tribunals; and the need for increased resources for the system.
As one staff representative observed, “99.9 percent of staff members in the peacekeeping missions aren’t involved in misconduct, but there are always a few bad apples.” GAP’s report, while focusing in part on the “bad apples,” was not meant to detract from the important work of the UN peacekeeping forces, who protect the most victimized people in the world from the effects of war and violence. But until the UN addresses the underlying issues identified in this report—especially shortcomings in its whistleblower protections and investigative processes—the organization’s performance will continue to be flawed by misconduct in the peacekeeping missions.
As one UN whistleblower said, “my chief told me that I was not loyal to him. And I asked him, what am I supposed to be: loyal to you or loyal to the organization?” The UN must create stronger whistleblower protections to ensure that those who are loyal to the organization’s mission are protected when they speak out against misconduct that undermines it.