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Retaliation Is Found In UN Development Program, For Ban Ki-moon, an Inconvenient Test

Byline: Matthew Russell Lee of Inner City Press at the UN

UNITED NATIONS, August 20 -- Retaliation against whistleblower Tony Shkurtaj occurred within the UN Development Program, the UN's Ethics Office has found, but UNDP refuses to accept the jurisdiction of the Ethics Office. In an August 17 memorandum, which Inner City Press is placing online here, Ethics Office director Robert Benson urges UNDP to reconsider its technical legal defense "for the good of the UN," and implicitly calls on Secretary-General Ban Ki-moon to enforce UN whistleblower protections -- also "for the good of the UN." What Mr. Ban will do should be known in coming days. Inner City Press asked Ban's spokesperson on August 17 and was told an answer will be forthcoming.

            Shkurtaj exposed UNDP's use in North Korea of staffers selected by the Kim Jong-il government, and the payment of their salaries in hard currency, Euros, directly to the government. Then Shkurtaj's contract was not renewed, and UNDP went so far as to cause his inclusion in a photo array of those barred from UN premises as, among other things, unstable or armed and dangerous.

            In a follow-up interview with Inner City Press -- for Shkurtaj's extended July 20 interview, click here -- Tony Shkurtaj praised Benson for considering the evidence he presented, and upholding a prima facie case of retaliation by UNDP. There just too much evidence, he said. But now what will Ban Ki-moon do? This presents, Shkurtaj said, "an important test of a key UN reform."

            The UN's whistleblower protection rules were adopted with much fanfare, but have yet to be fully enforced. On June 5, Shkurtaj filed a formal complaint with the Ethics Office, seeking protection against retaliation. While the complaint was to have been ruled on in 45 days, when that period expired, Benson extended the time. Ban's spokesperson's office, despite repeated questions about the basis of the extension, said only that Mr. Benson was traveling. Finally, at the August 17 noon briefing, Inner City Press asked:

Inner City Press: And also, at today's event, I think that -- this is unrelated, but it's connected in this way -- that the head of the Ethics Office, Mr. [Robert] Benson, was there and is back in town.  There have been various questions.  Jonathan of Fox, and I, had asked you, for example, on the whistle-blower.  It was supposed to be done in 45 days, now it's like 80 days.  There were a couple questions that weren't answered, maybe because he was traveling.

Spokesperson:  He was traveling, so we'll try to get him now for you.

Inner City Press: And also it's on Ban Ki-moon's schedule that he met with Kemal Dervis of UNDP at 11.  Is there a readout?  Do you know what the topic of that meeting was?

Spokesperson:  I don't have the readout, but, you know, there are so many issues to discuss about UNDP's work.

Inner City Press: I guess there are two things I would like to know, you could either find out if they were on it or not.  One would be the whistle-blower and that whole situation of the UNDP whistle-blower.  And the second would be North Korea and UNDP not being in the country, given the UN's new commitment to provide all this aid.

Spokesperson:  I will try to get a readout for you, but, essentially there are so many issues concerning UNDP programs across the world.  I don't think that specific issue will take center stage, but I will ask for you.

            The UN Staff Union has raised the whistleblower's case directly to Ban Ki-moon, in an in-person meeting on the 38th floor of the UN. Since then, Ban has issued statements and held meetings concerning both the meeting between Kim Jong-il and the South Korean leadership (of which Mr. Ban was a part) scheduled for later this month, and about the UN's response to floods in North Korea, a response which is impacted by UNDP have left the country in the wake of the scandal.

Ban Ki-moon and Kemal Dervis, UN Ethics not shown

            While there may be, as Ban's spokesperson put it, "so many issues concerning UNDP programs around the world" -- these issues include alleged diamond smuggling in Zimbabwe, involvement in violent disarmament in Uganda, admitted corruption in Myanmar, among others -- it would be extraordinary if Ban did not speak to Kemal Dervis after receiving, as he did on August 17, a copy of a memo, below, from the UN Ethics Office stating that there is an "absence of an applicable protection from retaliation policy within UNDP" and that

"the Ethics Office received independent and corroborative information in relation to whether a prima facie case of retaliation has been established... You have indicated that after discussing this matter further, and in light of ongoing inquiry being undertaken by the Board of Auditors, UNDP wishes to conduct its own external review.... I must advise that had the jurisdiction of the protection from retaliation bulletin applied, the information received by the Ethics Office would have supported a determination that a prima facie case had been established in this case. Should UNDP wish to reconsider this matter within ST/SGB/2005/21, I believe it would be in best interests of the United Nations and UNDP to do so."

            From the memo, the full text of which is below, it is important to note the "absence of an applicable protection from retaliation policy within UNDP." Under Kemal Dervis and particularly Associate Administrator Ad Melkert, UNDP has promised a number of reforms, including making internal audits available to Member States, but has delivered on few or none of them. Shkurtaj explains that the UN's Office of Legal Affairs has not endorsed UNDP's purported whistleblower protections, and expresses a total lack of faith in UNDP's "own external review."

            UNDP has refused to answer questions. Approached inside UN headquarters by Inner City Press while it was covering -- as the only media present -- the UNDP Executive Board meeting, Dervis said, "I will not answer any of your questions." Melkert, due to his previous claims to be a reformer and that "you ain't seen nothing yet," has been provided with additional opportunities to response this month. A series of ten questions posed to UN's chief spokesman David Morrison as well as Dervis, Melkert and others have not been responded to.

            Shkurtaj states that it was Ad Melkert himself who ordered that his contract not be renewed, and that efforts be made to determine his post-UN-employment immigration status and to eject Shkurtaj from the United States. As Shkurtaj puts it, "UNDP continues to act like a rogue UN agency. UNDP first rejected the findings of the UNís Board of Auditors. UNDP now refuses to cooperate with the UN Ethics Office. It is time -- long overdue -- for there to be consequences and accountability in the most senior ranks of UNDP Management."

            Again, while there may well be "so many issues concerning UNDP programs around the world," this is one on which Ban Ki-moon's UN administration will be judged. Watch this site.

The August 17 memo --

To: Mr. Kemal Dervis, Administrator, UNDP

Date: 17 August 2007

From Robert Benson, Director, Ethics Office

Re: Our File 2007/129

I wish to thank UNDP for submitting such s detailed and thorough submission regarding the protection from retaliation case for which I have been conducting a review.

While from a purely legal perspective, the Ethics Office does not have jurisdiction to address a request for protection from retaliation in relation to cases arising from UNDP, as Director of the Ethics Office, I undertook the review of this case based upon the following:

(i) I received what I considered to be sincere and deeply concerned representations from the President of the UNDP's Staff Council, who are clearly interested in ensuring that this matter be dealt with in the best interests of UNDP;

(ii) an absence of an applicable protection from retaliation policy within UNDP;

(iii) the direct and public intervention of one of the Executive Board members of the UNDP; and

(iv) accountability in this matter is ultimately to the General Assembly.

  On this latter point, that is accountability to the General Assembly, I note that UNDP has itself acknowledged its accountability to the General Assembly through its Executive Board and ECOSOC.

  One has to appreciate that in addressing a protection from retaliation case, three significant steps are involved. The first involves a preliminary determination whether a prima facie case of retaliation has been made out; if so, then, during the second phase, the burden shifts to the Organization to establish that the 'prima facie' retaliation was not as a consequence of the individual's participation in a protected activity. During this second phase, a thorough and detailed investigation of the facts of the case is undertaken. The information UNDP has raised in its submission would be considered in this phase, and it would be considered in the context of the UN's Charter and accountability to the General Assembly. During the final phase, if in fact it is found that there was a retaliatory act, appropriate measures would be recommended in order to address the issues that have arisen as a consequence of the original complaint.

  In the present case, we discussed the possibility of UNDP, without ceding jurisdiction in future cases, allowing this case to proceed within the parameters of ST/SGB/2005/21. However you have indicated that after discussing this matter further, and in light of ongoing inquiry being undertaken by the Board of Auditors, UNDP wishes to conduct its own external review.

  When I undertook my review of this case, it was done so within the parameters of ST/SGB/2005/21. Indeed, the Ethics Office received independent and corroborative information in relation to whether a prima facie case of retaliation has been established.

  While it is now understood that the case will not proceed any further within the parameters of ST/SGB/2005/21, I must advise that had the jurisdiction of the protection from retaliation bulletin applied, the information received by the Ethics Office would have supported a determination that a prima facie case had been established in this case.

  Should UNDP wish to reconsider this matter within ST/SGB/2005/21, I believe it would be in best interests of the United Nations and UNDP to do so.

  Developing -- watch this site.

* * *

Clck here for a Reuters AlertNet piece by this correspondent about Uganda's Lord's Resistance Army.  Click here for an earlier Reuters AlertNet piece by this correspondent 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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