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As UN Judges Complain of Ban on Whistleblowers, UN Hides Behind Chilling Effects

By Matthew Russell Lee

UNITED NATIONS, November 13 -- As the UN preaches the rule of law, and insists for example that its Extraordinary Chambers in the Courts of Cambodia has independent judges, Secretary General Ban Ki-moon now stands accused by the UN Dispute Tribunal judges of undermining their independence and even misrepresenting their work.

  This comes after Ban left his screening of "The Whistleblower" before any questions could be asked, see below.

This week Inner City Press asked the UN and wrote about a letter from the President of the UNDT to the General Assembly [from UN transcript]

Inner City Press: opposing a report by the Secretary-General which says that, going forward, whistleblowers should not be able to appeal adverse decision by the Ethics Office to the UN Dispute Tribunal, saying that decisions of OIOS [Office of Internal Oversight Services] should not be appealable... The judges all together have said this is wrong and that the report gives a misleading presentation of the jurisprudence of the UNDT. So I am wondering, especially on the whistleblower question, where it seems to remove any possibility for a whistleblower to kind of pursue their claims, what’s the Secretary-General’s response to it and what… particularly on the whistleblower question, I guess I’d say, if it is important that people be able to come forward with wrongdoing?

Spokesperson: I have a rather extensive answer, which I am not going to read out to you here. But I am very happy to give it to you after this.

Later, Inner City Press was e-mailed this answer:

This issue relates to whether the actions of certain independent entities established within the United Nations should be subject to judicial review.

The General Assembly has established a number of independent entities — the Office of Internal Oversight Services, the Ethics Office and the Ombudsman — to ensure accountability and to resolve disputes within the Organization. However, in order for these entities to perform their functions effectively, the General Assembly has stressed that these entities are to act independently and, in particular, independently of the Secretary-General. Since the General Assembly limited the Dispute Tribunal’s jurisdiction to “administrative decisions”, that is, decisions taken by the Secretary-General, it is reasonable to ask whether the Secretary-General should be held legally and financial liable for decisions over which he has no control.

Moreover, we note that in the same letter where the Dispute Tribunal expresses concern about challenging the decisions of independent entities, the Dispute Tribunal also states (in paragraph 24 of its letter) that “it is a universal principle inherent to the independence and integrity of the judiciary that judges should enjoy personal immunity in the exercise of their judicial functions”. We absolutely agree with granting this immunity to judges, because an important public policy objective is to be served by such immunity. Judges would not be able to properly exercise their important judicial functions if they are subjected to the constant threat of litigation over the manner in which they manage their courtrooms or conduct their confidential deliberations.

These same considerations apply to the functions of the Ethics Office, OIOS and the Ombudsman, all of which conduct critical investigatory and dispute resolution functions for the Organization. The exercise of judicial review over the actions of independent entities would have very real trade-offs for the manner in which these entities are able to conduct their functions. If the Dispute Tribunal were to suspend the investigations of OIOS, this would deprive the United Nations of a valuable independent mechanism of accountability. Staff members may stop going to the Ethics Office or to the Ombudsman to report information on a confidential basis, if they know that in the future, they will have to testify before the Dispute Tribunal about the information they reported. It is for the General Assembly to consider whether the exercise of judicial review by the Tribunals outweighs the chilling effects that such review would have on the functioning of these independent entities.

That this UN, which threatens retaliation against whistleblowers, now wants to shut out judicial review on the pretext that it might have a "chilling effect" is laughable.

Ban and Kiyo Akasaka on Oct 14, before Ban left before Qs, (c) MRLee

  It had been said that UN Secretary General Ban Ki-moon was surprised and distressed by the film "The Whistleblower," that he would screen and take part in a question and answer about it.

  The day of the screening, October 14, Inner City Press asked Ban's spokesman Martin Nesirky, after he had denied a journalist's complaint that Ban's "handlers" pushed him to avoid questions, if there would be a chance to ask Ban questions after the film.

  Nesirky checked his papers and said, "yes, there is a question-and-answer session."

  And so Inner City Press went. On stage was Ban Ki-moon, delivering remarks about his so-called "zero tolerance" policy on sexual abuse by UN peacekeepers, then listening as the film's director Ms. Kondracki and one of its subjects, Madeleine Rees, critiqued and mocked the policy's (non) implementation.

  But before the time for questions came, it was announced that Ban had to leave for another engagement. His spokesman was there, and then he wasn't. And now this. Watch this site.

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Click here for a Reuters AlertNet piece by this correspondent about Uganda's Lord's Resistance Army. Click here for an earlier Reuters AlertNet piece about the Somali National Reconciliation Congress, and the UN's $200,000 contribution from an undefined trust fund.  Video Analysis here

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