Thursday, June 28, 2012

UN tribunal finds ethics office failed to protect whistleblower

The Guardian
Julian Borger

UN accused of culture of impunity after diplomat fired and detained by UN police after raising suspicions of corruption

Ban Ki-moon, the United Nations secretary general, has unsuccessfully
sought to curb the UN’s dispute tribunal’s jurisdiction.
A landmark case brought by a former United Nations employee against the UN secretary general, Ban Ki-moon, has cast light on what activists describe as a pervasive culture of impunity in an organisation where whistleblowers are given minimal protection from reprisals.

James Wasserstrom, a veteran American diplomat, was sacked and then detained by UN police, who ransacked his flat, searched his car and put his picture on a wanted poster after he raised suspicions in 2007 about corruption in the senior ranks of the UN mission in Kosovo (Unmik).

The UN's dispute tribunal has ruled that the organisation's ethics office failed to protect Wasserstrom against such reprisals from his bosses, and that the UN's mechanisms for dealing with whistleblowers were "fundamentally flawed", to the extent the organisation had failed to protect the basic rights of its own employees.

The case was directed against Ban as being directly responsible for the actions of the ethics office.
Of the 297 cases where whistleblowers complained of retaliation for trying to expose wrongdoing inside the UN, the ethics office fully sided with the complainant just once in six years, according to the Government Accountability Project (GAP), a watchdog organisation in Washington.

"Like any internal office in an institution, it is always subjected to huge pressures from above," said Bea Edwards, GAP's executive director. "It is very difficult for an official employed by the institution to be impartial."

The dispute tribunal, which was created in 2009 in an effort to improve the UN's system of internal justice, has challenged the power of the secretariat on several occasions, forcing it to hand over evidence in Wasserstrom's case, and a higher court has rejected the UN's attempt to appeal.
Ban has sought to curb the tribunal's jurisdiction but has so far been unsuccessful.

The tribunal wants another hearing on the Wasserstrom case in October to decide how the UN should compensate him for his treatment. The American diplomat, now an anti-corruption official in the US embassy in Kabul, said he would also be asking for the UN to pay his legal costs, because its reluctance to co-operate with its own ethics office by handing over evidence had stretched the case out over several years.

"In an ideal world this would force the UN to revisit its ethics office and investigate how it interprets its own rules on whistleblowing, but the UN is far from an ideal world. Pressure has to be put on it for it to change," he said.

"I was told at some point in the whole process that the UN didn't want a 'culture of snitches'. What has grown up instead is a culture completely insulated from reality. It's a culture of impunity."

In response to the judgment, Ban's spokesman, Martin Nesirky, commented by email yesterday: "The UN Dispute Tribunal issued a judgment on liability in the case of Mr Wasserstrom, but has not yet ruled on compensation and remedies. In that sense, the matter is still open. The United Nations Secretariat is studying the judgment and, in keeping with its policy on ongoing cases, is not in a position to provide any comment now."

In 2006, Wasserstrom was working for Unmik, advising on the management of its public utilities, when he raised objections to the energy minister's takeover of the electricity corporation in contravention of international community guidelines. His concerns were shrugged off by his superiors. Months later, Wasserstrom came across evidence that two senior officials might have received bribes for awarding a contract to build a coal-fired power plant and mine.

He passed on his suspicions to the UN's Office of Internal Oversight Services (OIOS), the anti-corruption watchdog in New York, which began what was supposed to be a confidential inquiry. However, Wasserstrom believes his participation in the inquiry was leaked to his superiors in Unmik. As a consequence he was sacked and his office, the public utilities watchdog, was abolished.
Wasserstrom was quickly hired as a consultant by the Kosovo government to advise on running the telecommunications ministry and Pristina airport, but says that infuriated the Unmik bosses who had fired him.

On the grounds that the new job represented a conflict of interest, Wasserstrom was detained by UN police on the Kosovo border on his way to his house in Greece in May 2007, driven in custody to the capital, where UN policemen searched his apartment and car without a warrant.

The UN police put up a poster depicting Wasserstrom at the gates of Unmik headquarters and even encircled his office with crime tape, which stayed in place for several months. The conflict of interest case was eventually dropped. "It was a gigantic witch-hunt that went on several months," Wasserstrom said. "I knew there was nothing wrong with anything I had done. But they didn't even do the most basic fact-finding in their rush to find me guilty."

The OIOS investigation of Wassserstrom's suspicions about kickbacks was never published.
The UN has made several attempts at self-policing over the years, none of which proved very effective. In January 2006, after the Iraq oil-for-food scandal, the then secretary general, Kofi Annan, brought in a whistleblower protection policy, giving the ethics office the job of ensuring employees were not victimised for reporting wrongdoing.

However, its jurisdiction was undermined dramatically after Ban became secretary general in 2007. He allowed the management at the various funds and agencies under the UN umbrella to opt out of the ethics office after being subject to challenges by whistleblowers, and several of these bodies formed their own ethics offices under their own control.

The main ethics office in New York, meanwhile, found itself overwhelmed by a mass of petty issues, such as non-reimbursement of travel expenses, and a shortage of personnel, who were thinly dispersed around the world. The shortages dissuaded "walk-in service seekers", the office said in its 2010 report.
The report also pointed out that the internal justice procedures allowed the OIOS to stonewall investigations.

"The lacuna in the policy on protection against retaliation allows the investigation division of OIOS to decline to investigate a prima facie case of retaliation referred to it by the ethics office. As a result, staff may be sceptical about the ability of the ethics office to provide meaningful protection," the report noted drily.

The ethics office found there was a prima facie case of retaliation against Wasserstrom and handed the issue to the OIOS. In a report in July 2008, the investigators said Wasserstrom's treatment "appeared to be excessive" but found no evidence it was deliberately retaliatory. As a result, the ethics office dropped the case.

In its ruling last week, the UN dispute tribunal was scathing about the OIOS and the ethics office's performance. In particular, the judge Goolam Meeran upbraided the UN, "the principal agency promoting the observance of human rights norms and practices and respect for the rule of law", for having "condoned such humiliating and degrading treatment of a member of its own staff".

"I think this ruling could lead to the reopening of the claims of the other more than 200 whistleblowers who had their retaliation cases rejected, because there is a very good chance that these were turned down on the same specious grounds," Wasserstrom said. "They could be swamped by people coming forward."

The UN dispute tribunal has rejected an attempt by Ban last year to limit its jurisdiction, but Edwards predicted the secretary general could well try again.

"There are all sorts of ways the secretary general can cripple the dispute tribunal. It can be starved of budget and staff or overwhelmed with cases," she said. Meanwhile, she said the more than five years it has taken to resolve Wasserstrom's complaint could act as its own deterrent against whistleblowing within the UN.

She said: "In that time people have lost jobs, their reputations. Many lose their families. They have been destroyed."

Speaking up: other UN whistleblowers

Artjon Shkurtaj
An Albanian employee of the UN Development Programme in North Korea who found counterfeit US dollars in the office safe in Pyongyang in 2004, and was fired in 2007, a few months after reporting the find to the US mission at UN headquarters. The UN dispute tribunal ruled that his rights had been violated in 2010.

Cynthia Brzak
An American employee of the UN High Commission for Refugees who accused the high commissioner at the time, the former Dutch minister Ruud Lubbers, of sexual harassment in May 2004. Lubbers denied the charge. UN internal investigators delivered a report to the then secretary general, Kofi Annan, but it was not published. Lubbers resigned in 2005 after the report was leaked, showing the investigation upheld Brzak's complaint. The UN continued to insist the case had not been proven, and Brzak has attempted, so far without success, to seek redress in US courts.

Kathryn Bolkovac
An American working on contract in the UN police in Bosnia who was fired by her contractor, DynCorp, after reporting the involvement of other UN police in sex trafficking. DynCorp claimed Bolkovac had been dismissed for falsifying timesheets. Her case was upheld in a British court in 2002, and dramatised in the film, The Whistleblower, starring Rachel Weisz.

• This article was amended on June 28 to clarify the last paragraph regarding the film starring Rachel Weisz

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