By Rishi Gulati*
[The author has had no involvement in the cases mentioned below; this entry should not be construed as legal advice in any way or form whatsoever]
In a recent article in the Guardian, it was disclosed that French authorities thanked a senior UN official, Mr Anders Kompass for disclosing sexual abuse by French troops. That article says in part:
Sources close to the case say Kompass, director of field operations for the Office of the High Commissioner for Human Rights (OHCHR) in Geneva, disclosed the report to the French because of the UNs failure to act quickly to stop the abuse identified in its own internal report.
Hinting that the allegations represented just a fraction of what had taken place, a UN spokesman said on Friday: It is possible, its horribly possible that more allegations of sexual abuse of children by French and other soldiers in the Central African Republic could come to light.
The same report says that: The official, Anders Kompass, has been suspended by the UN and faces dismissal for what the organisation says is a breach of protocols in releasing a confidential internal UN document. I will return to the Kompass case shortly. But before that, some points on the UN whistleblower protection system, or the lack of it.
Problems facing whistleblower protection at the UN
The internal rules of the UN contain several layers, one of these layers is known as the Secretary-General Bulletins. These possess binding force. Under the Secretary-Generals Bulletin on protection against retaliation (ST/SGB/2005/21) the UN Ethics Office protects staff from being punished for reporting misconduct or for cooperating with an official audit or investigation – commonly known as “whistleblower protection.”
But are whistleblowers rights at the UN actually protected? There are some very disturbing findings.
In December, 2005, reform was in the air at the stolid United Nations. Kofi Annan, then Secretary General, established whistleblower protections for everyone who worked there, together with a new Ethics Office to receive the disclosures of wrongdoing from employees and appeals for relief from reprisal.
The U.N. Ethics Office has devolved into a hodgepodge of fiefdoms, many of them lacking the autonomy needed to be effective and impartial. The policy became an assortment of gerrymandered proclamations.
Since , the Ethics Office has become even more of an embarrassment. At the Government Accountability Project (GAP) in Washington, where we work to protect U.N. whistleblowers, we found that from 2006 to 2011, the Office received 297 appeals from U.N. employees for protection from reprisal and referred eight cases for investigation.
Only one case of retaliation during that period was validated, and to date, that whistleblower has not received adequate protection.
Leaving to one side the manifest failings of the UN Ethics Office, the highest internal judicial body at the UN, the United Nations Appeals Tribunal (UNAT), has not done much to enhance whistleblower protection. On technicalities, the UNAT reversed a decision in favour of American whistleblower James Wasserstrom, who exposed a $500 million kickback scheme in Kosovo between national government officials and UN officers. See here and here for further details on this and other cases. The Wasserstrom Judgment is here.
Anders Kompass case
The Anders Kompass case has again brought into sharp focus issues around whistleblower protection at the UN. The Kompass case is still subject to internal formal recourse mechanisms at the UN, so no substantive comment is made here. While there is much to despair in the practical implementation of the UNs whistleblower protection regime, in a recent judgment, the United Nations Dispute Tribunal (UNDT), reversed the decision of UN management to remove Mr Kompass from his duties for conduct constituting whistleblowing.
On 17 April 2015, Mr Kompass was placed on Administrative Leave from his position as a UN staff member after the UN alleged that he leaked a confidential report containing serious allegations of paedophilia purportedly committed in the Central African Republic by French military. The placement of a staff member on Administrative Leave means that the affected staff member is disallowed from continuing in his or her duties.
Within days of being suspended, on 29 April 2015, Mr Kompass accessed the UNDT requesting relief that the decision to place him on Administrative Leave be suspended, meaning that if Mr Kompass succeeded in his application, then he could return to his duties. To obtain relief, Mr Kompass amongst other things, needed to show that the decision to place him on Administrative Leave was prima facie unlawful, and the decision would cause Mr Kompass irreparable damage. The UNDT agreed with Mr Kompass that his suspension from duties was prima facie unlawful (see para 39 of the UNDT Judgment); and the decision to place Mr Kompass will cause irreparable damage to him because if the decision is not suspended: the harm done to the Applicants reputation will be irreparable and could not be adequately compensated at a later stage (see para 49 of the UNDT Judgment).
In conclusion, while there is much to despair about the effectiveness of whistleblower protection at the UN, Mr Kompasss case is an example where the UNDT has acted quickly. Within a matter of days Mr Kompass was restored to his position. The rights of a staff member who it seems from all accounts was doing the right thing by bringing to light serious criminal activity have been maintained for the time being. As the Kompass case has not yet been finally resolved, there could be more twists. It can only be hoped that the Kompass case will be an opportunity for the UN internal justice system to take a different course and provide some basic protection to whistleblowers.
*Rishi Gulati practices as a barrister in Melbourne – his practice includes litigating international administrative law claims.