Anti-corruption officer James Wasserstrom was posted to Kosovo to fight corruption but in 2007 he witnessed misconduct involving UN officials and a local utility company. He later reportedly uncovered evidence that two senior UN officials had received bribes for awarding a contract for the building of a coal fired power plant and mine. After complaining to the UN’s oversight office his job was effectively abolished and he was investigated for misconduct. Wasserstrom then went to the UN’s Ethics Office where it was eventually ruled that he was maltreated but that this did not count as retaliation against a whistleblower.
After a lengthy legal battle, documents backing his version of events were uncovered and the UN’s Dispute Tribunal overturned the original decision. Whilst a judgement was not made on the alleged corruption in the UN’s Kosovo mission, it was decided that the UN’s original evidence was conflicted and that the mechanisms for dealing with whistleblowers within the UN were fundamentally flawed. United Nations Secretary General, Ban Ki-moon had refused to hand over confidential documents relating to the case to the UN personnel tribunal, despite repeated orders by the tribunal to do so.
Wasserstrom has been critical of the pace of reform in the UN and also of Secretary General, Ban Ki-moon for allegedly undermining support for whistleblowers by trying to limit the jurisdiction of the UN dispute tribunal.
- A UN employee who observes likely wrongdoing is obligated to report such wrongdoing to the UN’s Office of Internal Oversight Services (OIOS) [or, in certain cases, to other designated officials].
- Individuals who believe they are the victims of retaliatory action due to their reporting of wrongdoing to OIOS are supposed to file a complaint with the UN’s Ethics Office.
- The Ethics Office completes a preliminary review; if the Ethics Office finds there is credible evidence of retaliation, it must refer the matter in writing to OIOS for further investigation. While the OIOS investigation is ongoing, the Ethics Office may recommend (to the Secretary General) interim measures to safeguard the interests of the alleged whistleblower.
- Once the Ethics Office receives the investigation report from OIOS, the Ethics Office issues recommendations to the relevant department head, or to the Under-Secretary General for Management, to take appropriate action. If the Ethics Office is not satisfied with the response, it can make a recommendation directly to the Secretary General.
- In addition to these specific procedures regarding retaliation complaints, the UN has a quasi-judicial dispute resolution system, consisting of two tiers. The UN Dispute Tribunal (UNDT) is empowered “to hear and pass judgment on an application filed by an individual … against the Secretary-General… [t]o appeal an administrative decision that is alleged to be in non-compliance with the terms of appointment or the contract of employment.” Decisions of the UNDT can be appealed to the UN Appeals Tribunal (UNAT).
Now, here’s what happened in the Wasserstrom case:
- James Wasserstrom was a senior diplomat who served with the UN Mission in Kosovo (UNMIK) from 2002-2008.
- Between February and May 2007, Mr. Wasserstrom reported to OIOS a number of allegations of serious corruption involving senior UNMIK officials.
- Mr. Wasserstrom alleges that he was then subject to a range of retaliatory actions. There is still some factual dispute about the nature and extent of the alleged retaliatory actions, but the accusations are quite serious. Mr. Wasserstrom asserts that UN officials–using the pretext of of a relatively minor conflict-of-interest allegation–subjected him to repeated harassment: he was (he claims) improperly detained by UNMIK police officers, his home was illegally searched, his passport was confiscated, and he was barred from entering UNMIK facilities. (He also alleges that his contract was not renewed, and his office was terminated, in retaliation for his whistleblowing, though on this point it seems that the key decisions may have been taken before Mr. Wasserstrom filed his complaints.)
- On June 3, 2007, Mr. Wasserstrom filed a retaliation complaint with the Ethics Office, which found that the allegations of unlawful retaliation were prima facie credible and forwarded the information to OIOS for further investigation.
- In April 2008, OIOS forwarded an investigative report, together with several annexes, to the Ethics Office. The report concluded that there was no evidence that the actions taken against Mr. Wasserstrom were retaliatory (even if some of them may have been “excessive”). On the basis of this report, the Ethics Office concluded that there was no basis for a finding of retaliation in this case, and declined to recommend any compensation or other action on Mr. Wasserstrom’s behalf.
- In May 2008, Mr. Wasserstrom wrote to the Ethics Board requesting reconsideration of the decision in light of alleged errors and misstatements in both the OIOS report and the Ethics Office determination. The Ethics Office denied the request.
- In 2009 (after some complicated and mostly-irrelevant procedural steps), Mr. Wasserstrom filed a complaint with UNDT, alleging that the Ethics Office’s determination was an “administrative decision … in non-compliance with [his] terms of appointment” (in particular, the anti-retaliation guarantees incorporated into every UN employment contract).
- The Ethics Office had failed to apply the correct legal standard, and the responsible officials had failed to actually read the annexes to the OIOS report; as a result, the Ethics Office “appears to have abrogated its responsibility to address the correct legal test.”
- The OIOS report and accompanying annexes not only contained significant material discrepancies and conflicts (as Mr. Wasserstrom had asserted), but the report in fact contained ample evidence of retaliatory conduct. This is flatly inconsistent with the conclusory assertion (in both the OIOS and Ethics Office report) that there was “no evidence” of retaliation.
- The treatment of Mr. Wasserstrom was “humiliating and degrading,” and a “wholly unacceptable … breach of his right to due process.” In light of this, the Ethics Office’s “fundamental failure” to inquire further as to the reasons for this treatment — something that “any reasonable reviewer” would have done — was “fundamentally flawed.”
- In a separate judgment on relief, the UNDT further concluded that the treatment of Mr. Wasserstrom was “appalling,” and indeed that it is “difficult to envisage a worse case of insensitive, high-handed and arbitrary treatment in breach of the fundamental principles of the Universal Declaration of Human Rights… The failures of the Ethics Office to recognize such gross violations calls seriously into question its suitability and effectiveness[.]”
Unfortunately for Mr. Wasserstrom–and for the credibility and integrity of the UN whistleblower protection system more generally–the UNAT (in a 2-1 decision) vacated UNDT’s decision. UNAT did so not on the merits, but rather on the basis of the specious legal claim that UNDT had no authority to hear a challenge to a decision of the Ethics Office. Why not? The decision is not exactly a model of lucid reasoning, but the main argument is as follows: Because the Ethics Office can only issue “recommendations” (to the department head, Under-Secretary, or Secretary General), its decisions are not “administrative decisions” subject to review by UNDT.
There are two ways one could criticize this decision–internal and external. The internal criticisms are nicely summarized by UNAT Judge Faherty’s dissenting opinion. As she correctly points out, notwithstanding the Ethics Office’s “operational independence,” it is part of the Secretariat, and under UNAT precedent any decision by such an entity “capable of affecting an employee’s terms of employment and conditions of service ‘may be impugned’.” Moreover, although the Ethics Office’s actions may be styled formally as “recommendations,” in practice these decisions are clearly–and intentionally–extremely consequential for any subsequent action taken by the UN Secretariat. In Judge Faherty’s words, in light of the overall structure of the review scheme:
[I]t is inconceivable that a finding of the Ethics Office pursuant to its statutory mandate can be otherwise than an “administrative decision” capable of review by the Dispute Tribunal. To hold otherwise would render nugatory the substantive protection and remedies afforded to staff members under ST/SGB/2001/21.
I’m not an expert in internal UN procedural law, but my sense from the opinions is that Judge Flaherty clearly has the better legal argument. Though nominally “recommendations,” Ethics Office decisions are clearly intended to have at least a presumptive effect on a UN employee’s terms and conditions of employment. But suppose for the sake of argument that this is not the case. That leads to the external critique of the outcome in this case: If the UNAT majority has the law right–if Ethics Office determinations are not reviewable–then in practice, as Judge Faherty says, the alleged whistleblower protections that the UN provides are largely illusory.
To see this, let’s assume for the moment that Mr. Wasserstrom (and UNDT) are correct in their assessment of the facts and the law. On that assumption, the UNAT conclusion (urged by the Secretary General), would imply:
- A UN employee who observes corruption or other wrongdoing must report this to OIOS.
- If the employee suffers obvious and appalling retaliation as a result, that employee may file a complaint with the Ethics Office–which, it might be worth noting, is directly accountable to the Secretary General, who appoints the Office’s head (despite the Office’s nominal “operational independence”).
- If the Ethics Office ignores the applicable law, distorts (or even lies) about the facts, and refuses to “recommend” any protection for the whistleblower, the whistleblower has no recourse whatsoever (at least within the UN system) to challenge that determination. In future cases, thanks to the UNAT decision in Mr. Wasserstrom’s case, a future whistleblower wouldn’t even be able to get a UNDT hearing on the matter. The Ethics Office’s recommendations would stand unchallenged.
- The clear consequence is that even if the Ethics Office (as UNDT found) does not understand its mandate and refuses to extend appropriate protection to whistleblowers–even if it endorses or rubberstamps obvious whitewashes designed to protect powerful senior UN officials–there is no procedure for internal review, and the Ethics Office’s recommendation for inaction is, for all intents and purposes, final.
Does this sound like a system that provides (to quote UNCAC Article 33) “appropriate measures to provide protection against any unjustified treatment for any person who reports in good faith and on reasonable grounds to the competent authorities any facts concerning [corruption] offences”? Not to me it doesn’t.