Will UN's sudden tweak to whistleblower policy fend off defunding?

Anders Kompass charged in 2015 that he was squeezed out of his position for bringing evidence of child sexual abuse to French authorities without going through his UN chain of command. (UN Photo/Violaine Martin)

United Nations Secretary General Antonio Guterres has sharply changed course on a policy that critics say would clamp down on U.N. employees who blow the whistle on wrongdoing, and the U.N. is touting the result as reaching the “highest possible standards” of protection for those who expose misdeeds.

Whether U.N. staffers, who frequently express fear of retaliation for speaking out against wrongdoing, agree with that judgment remains to be seen.

Independent organizations that support whistleblowers applauded the new policy, but remained skeptical that it went far enough to prevent reprisals in a world organization that is literally a law unto itself.

Still to be convinced is a Trump administration that already looks askance at the  United Nations,  and under a 2015 law can withhold 15 percent of its U.N. contributions if the secretary of state doesn’t attest that the world body is implementing and enforcing “best practices” to protect such whistleblowers—which likely prompted Guterres’ sudden spate of changes.

“Best practices” is the term  that the U.N. is using itself to herald the newly revised policy, which it announced Monday, and which the organization says will help the U.N. “function in a more open, transparent and fair manner.”

A previous draft update of the policy, which was left in Guterres’ inbox by the outgoing administration of former Secretary-General Ban Ki-moon, was sharply criticized both inside and outside the U.N. as doing the opposite.

According to those critics, the  supposedly updated whistleblower protection actually increased the possibility of retaliation against anyone making less than the most serious accusations of wrongdoing, and forced staffers to rely even more on internal institutions they consider to be weak or compromised, especially in lower level cases.

Few would argue that more fairness and transparency are badly needed, especially when it comes to U.N. employees who try to spotlight illegal actions in the secretive and inefficient organization.

For years if not decades, the U.N. has been wracked by scandals ranging from sex crimes among U.N. and non-U.N. peacekeeping forces to corruption in procurement deals, where staffers who drew attention to the wrongdoing claim they were forced out of their jobs, passed over for promotion, shipped off to the ends of the Earth, or other forms of alleged retaliation.

In one of the most dramatic recent cases, a Swedish diplomat working at the U.N.’s Office of the High Commissioner for Human Rights, Anders Kompass, charged in 2015 that he was squeezed out of his position for bringing evidence of child sexual abuse by French and other non-U.N. peacekeepers to French authorities without going through his U.N. chain of command. (The peacekeepers were operating under a U.N. Security Council mandate.)

Kompass was vindicated by an independent panel that investigated the issue for nearly a year, and a number of high-level U.N. officials were accused of “abuse of authority” and cover-up in the panel’s report. Nonetheless, Kompass resigned from the U.N. five months later, charging that “lack of accountability is entrenched in the United Nations.”

Granting whistleblower protections to people in Kompass’ position, who bypass the U.N. chain of command entirely to point out crimes, is one of the major changes that Guterres has made in the new version of U.N. “best practices” that was handed over to Fox News.

Among other things, the new policy says staffers will be protected when they report misconduct “to an entity or individual outside of the established internal mechanisms,” if it involves “a significant threat to public health and safety,” “substantive damage” to U.N. operations, or “violations of national or international law.”

It also says the same outside appeals are justified when the staffer “has grounds to believe” retaliation will follow, or evidence of misconduct “will be concealed or destroyed”—an accusation that has come up time and again in whistleblower cases.

Staffers also have been highly skeptical of the actions of the U.N.’s Ethics Office, created a decade ago, which is supposed to declare whether a “prima facie” case of retaliation has taken place, as a trigger to protective measures. The office hardly ever has done so—which the U.N. has cited as evidence that retaliation against whistleblowing is rare.

In former Secretary General Ban’s revised version of the protection policy, in all but the most serious cases, the Ethics Office would have gotten to decide whether to engage with the whistleblower’s own bosses on “mitigation” efforts “with a view to preventing any retaliatory action.”

To many staffers, that sounded as if the Ethics Office would get to blow the whistle on the whistleblowers who bring allegations to the office in confidence.

In Guterres’ version, there is no formal division between serious and less-serious infractions, and the Ethics Office needs permission from the whistleblower in order to raise the retaliation issue with bosses. At the same time, the office can act when it sees a “risk of retaliation,” rather than waiting until there is an allegation of a specific retaliatory act.

The Guterres version also says that staffers can ask for an “alternative investigating mechanism” beyond the U.N.’s own Office of Internal Oversight Services (OIOS) to look into the complaint.

(In the Kompass case, the ostensibly independent head of OIOS was revealed to be involved in discussions with some of Ban Ki-moon’s senior officials over what to do about the whistleblower, who was himself investigated by OIOS.)

Where whistleblowers are passed over for promotion or otherwise find their careers crimped or cut short, the  Guterres version of the policy states that “the burden of proof” will lie with the bureaucracy to prove with “clear and convincing evidence” that it would have taken the same action  otherwise -- a still nebulous standard at the moment, but better than not having it.

In view of staff skepticism about the Ethics Office itself, the new version of the policy provides that where it decides that no retaliation has taken place, the decision can be referred to the “Alternate Chairperson of the Ethics Panels of the United Nations.”

That refers to the rotating head of an internal U.N. committee of top ethics officials from a variety of U.N. agencies. A senior U.N. official told Fox News that U.N. staffers at U.N. agencies beyond the sprawling, New York-based Secretariat, have always had this right.

When Fox News asked for additional details about the Alternative Chairperson, a U.N. spokesperson said that, “We’ll have further details as this proceeds.”

Among other things, the U.N. has said it is willing to consider that the Ethics Office, which currently reports back to the Secretary General, could report to the U.N. General Assembly instead, which would bolster its formal independence. But that would require a lengthy legislative process.

Beyond that, any decision by the U.N. secretary general about the fate of the whistleblower will be subject to appeal to a U.N. judicial tribunal.

A senior U.N. official also emphasized to Fox News that “there were extensive meetings with staff over many months on this and they were happy with the revised policy.”

His reference was to U.N. staff associations that are the officially recognized contact points for the bureaucracy; they have been occasionally criticized by staffers as failing to stand up strongly enough to the U.N.’s administrators.

A staff association official told Fox News that the new policy was “a huge improvement.” He added, “This hopefully means the end of colleagues being fired or harassed out of office for doing what’s right.”

The catch is that the U.S. law that waves a financial stick at the U.N. if it fails to comply with “best practices” explicitly states that aggrieved staffers should have access to “independent adjudicative bodies including external arbitration” in cases of retaliation, say critics.

“Given this remaining deficit in the new policy, the U.S. Congress, under the law, must withhold a portion of the annual U.S. contribution,” argued the Government Accountability Project (GAP), a Washington-based private organization that supports whistleblowers, in a press release that also “recognizes the significance of the new measure.”

GAP added that the new policy does nothing to help previous whistleblowers who have already run afoul of U.N. retaliation for exposing wrongdoing, and who still suffer as a result.

The U.S. law calls for “best practices” to include “results that eliminate the effects of proven retaliation,” which would cover such cases.

“I welcome the secretary general’s recognition that the current system failed whistleblowers,” said Miranda Brown, a former U.N. official who helped draw attention to efforts by a U.N. agency to ship sensitive computer equipment to the nuclear-ambitious dictatorship of North Korea.

“But it doesn’t go far enough,” adds Brown, who is still unemployed and seeking reinstatement at the U.N.

“The policy is forward-looking, and we had not anticipated revisiting the cases of previous whistleblowers,” a senior U.N. official told Fox News.  “That's not to say that this would be totally off the table, we just had not considered it.”

The Trump administration, however, is looking at a law that says they need to.

George Russell is Editor-at-Large of Fox News. He is reachable via Twitter at @GeorgeRussell and on Facebook at Facebook.com/George.Russell.