Transparency International Macedonia
17th August 2021
OPEN LETTER to United Nations Secretary-General Mr António Guterres,
We, the undersigned, are writing to express our deep concern at the latest action taken by the United Nations to dismiss Office of the High Commissioner of Human Rights (OHCHR) whistleblower, Emma Reilly.
We call on you, the Secretary General of the United Nations, to intervene and immediately suspend any further action being taken against Ms. Reilly.
It is essential that the United Nations – as the international upholder of human rights globally - take full responsibility for any failure to protect human rights defenders, and we call for a full, credible and independent investigation of Ms. Reilly’s original concerns about the potentially harmful consequences of OHCHR staff sharing names of vulnerable human rights activists with the Chinese authorities (See amended Dutch parliamentary record of questions from members Sjoerdsma (D66), Omtzigt (CDA) and Voordewind (ChristenUnie) to the Minister of Foreign Affairs (21st January 2019)).
It is also imperative that you respond to repeated calls to improve the UN internal justice system and commit publicly to critical reforms to improve UN whistleblower protections to ensure they meet international best practice consensus.
Improper Removal of Whistleblower Status
Late on Friday 30th July 2021, the UN Ethics Panel sent Ms. Reilly a communication that effectively and retrospectively removed her protected whistleblower status. Minutes later, she received the judgment from the UN Dispute Tribunal (UNDT) which only partially upheld her claims of detrimental treatment, providing her with inconsequential moral damages that do nothing to protect her employment position (Ms. Reilly was awarded moral damages of USD3,000 for four years’ worth of stress and anxiety due to her hostile work environment, lack of due process and inaccuracies of statements made about her case in a press release; see UNDT Judgement NDT/2021/093 (30th July 2021)). In a matter of hours, Ms. Reilly received a formal disciplinary notice setting out allegations of misconduct against her for having engaged in external communications without authorisation, for historic statements she is alleged to have made about her case dating back to June 2020.
The effective removal of Ms. Reilly’s whistleblower status and the UNDT decision to reject the majority of her claims leave her vulnerable to her imminently anticipated dismissal. It is unlikely these allegations of misconduct could have been pursued against her without the UNDT ruling that the veracity of the press release regarding OHCHR’s policy, and her claims of retaliation, could not be examined by the Tribunal and rejecting her claims of conflicts of interest in the handling of her case on the basis that she had not been able to prove them. The perceived orchestration of these latest developments would be the latest in a series of escalating detrimental acts in a case plagued by serious delays and procedural irregularities since its beginning, calling into question their probity and validity; they also run counter to your instruction of April 2018 to mediate her case.
You will recall that the original UNDT judge hearing Ms. Reilly’s cases was abruptly removed from post in July 2019. The judge already heard the evidence in all three of Ms. Reilly’s claims and issued a first ruling in her favour before being suddenly terminated. He was replaced prior to issuing the judgements he already prepared in the remaining cases. The argument of your Administration that there is no requirement in the UN rules to provide judges with notice of the end of their mandate was particularly concerning. It is also exceptionable that no allowance was made to permit the judge to issue rulings in the cases of which he was seized and had heard all the evidence, as has been allowed in similar circumstances.
As it stands, it is nearly impossible for any UN whistleblower to survive the UN internal justice system, and Ms. Reilly is no exception.
Nearly a full year after the Alternate Chair of the Ethics panel found that Ms. Reilly had blown the whistle on potentially serious violations of human rights, and had suffered retaliation for doing so, on the 4th June 2021 she was informed that this decision was ‘defective’ and that a new Alternate Chair would review her complaint de novo. UN policy requires a full investigation once retaliation has been determined. That did not happen. Instead, the original decision in Ms. Reilly’s favour was improperly replaced with a new one that retrospectively removed her status as a protected whistleblower.
In July 2020, the Alternate Chair of the Ethics Panel found that Ms. Reilly
“…was interested in human rights and protection of human rights activists. OHCHR was, by virtue of the Complainant’s whistleblowing, placed in a very awkward diplomatic position by a human rights issue that it struggled to handle well. A whistleblower’s reporting of such a practice, which was contrary to fundamental UN principles and values, is exactly the sort of activity that must be protected; it is far more important than minor infractions of bureaucratic rules, which the system finds it much more easy to classify as protected.”
He went on to say that Ms. Reilly’s
“…principal disclosure of 2013 was a protected activity and remains so today. This has led to a process (not yet completed, clearly likely) whereby the complainant risks to be declared redundant by abolition of post (perhaps on financial grounds justified by funding shortages following the Covid-19 pandemic)… Retaliation has been constant since 2013, and continues now, and will continue into the future if something is not done.”
Now Ms. Reilly’s protected status has been removed and she is being threatened with dismissal for misconduct.
Human Rights Violations
Since reporting her concern about OHCHR’s practice in February 2013 there has been no credible investigation into Ms. Reilly’s disclosures. The fact that some of the names handed over were of people speaking up about the treatment of the Uyghur population should have raised serious alarm bells at the time, but recent international condemnation of China’s treatment of the Uyghurs should remove any remaining doubt that Ms. Reilly’s concerns warranted proper investigation. We note that by reconstructing events there is strong evidence of documented reprisals against the families of those named human rights activists.
The very basis for whistleblower protection is to ensure the free flow of information to promote institutional accountability. It is vital that whistleblowers’ disclosures are investigated early enough to prevent harm or stop its continuation. An independent investigation into OHCHR policies, and whether any risk of harmful practice continues, should have been given high priority at the time, and should still be a high priority. It is essential that the UN engages in a critical examination of its own practices to maintain its credibility, and to assure the trust and future engagement of human rights defenders with the UN.
We are aware that the Board of Trustees of the Whistleblowing International Network (WIN) wrote to you on the 26th of October 2020 and again on the 12th March 2021 setting out detailed concerns about how Ms. Reilly’s case was unfolding and highlighting that the key flaws in the UN justice system - as it applies to whistleblowers - continues to hinder rather than to protect.
The fairness in the application of rules and systems cannot be examined in a vacuum. In the case of workplace whistleblowing, it is absolutely essential that any steps to change a person’s employment status or failures to protect someone’s career progression once they have blown the whistle be examined in their proper context. This means that the burden of proof must fall to the employer to prove that any such actions are wholly unrelated to the whistleblowing and independently fair.
It is also a well-established principle that individuals who witness suspected wrongdoing be afforded the freedom to choose the most appropriate reporting channel. Indeed, disclosing concerns publicly, particularly when there has been no satisfactory outcome to the original concerns raised internally, is a protected activity (See Article 15, Directive (EU) 2019/1937 on the protection of reporting of persons who report breaches of Union law.). Ms. Reilly assiduously followed the internal processes available to her since first raising her concerns in 2013 about an unofficial OHCHR policy of handing over the names of human rights defenders planning to speak out against violations of human rights in China to the Chinese delegation. She has also worked hard to defend herself within the UN system - Despite repeated requests from Ms. Reilly, UN lawyers have yet to provide any clarity as to whether or not this policy remains in place. It should be obvious that there is nothing to be gained by investigating or dismissing Ms. Reilly for commenting publicly on publicly available information. However, there is clearly an urgent need for an investigation to ensure there is no further endangerment of human rights defenders and to ensure equal treatment of all member states.
It is clear that Ms. Reilly reasonably believed that a secretive unwritten policy, applied discriminatively to a single member state, was a cause for concern and that should be reported. In July 2020, an Alternate Chair of the Ethics Panel agreed with her. It is well established worldwide that having a reasonable suspicion or grounds to believe wrongdoing occurred is the accepted legal basis for protected whistleblower speech, including in the new EU Directive to protect reporting persons. In our view, there is no legal or moral basis for removing Ms. Reilly’s protected status as a whistleblower.
Ms. Reilly’s case has continued for more than 8 years. To restore credibility and due process, any further employment action against Ms. Reilly should be immediately suspended to allow for independent review of her case, and for full and fair mediation to be offered to ensure your instructions of April 2018 are finally followed.
Lack of effective UN whistleblower protection
As repeatedly highlighted to you by whistleblowing, anti-corruption and human rights experts, the whistleblower protection policies of the UN and its agencies have been a long-standing cause for international concern. The evidential burden on UN staff to prove the causal link between blowing the whistle and the retaliation they suffer runs counter to international best practice consensus that holds a reversed burden of proof as the cornerstone for securing credible whistleblower rights.
In 2015, the UN Special Rapporteur on freedom of opinion and expression specifically recommended the UN and its agencies adopt effective policies to enable greater public access to information and protect whistleblowers, which follow similar criteria as those recommended to States, including a reversed burden of proof once a prima facie case is established, and access to an independent forum.
Importantly, his report also highlighted the importance of protection from retaliation when making a public disclosure to the media, civil society or Governments:
To be sure, disclosures should respect the rights and reputations of others, but in the absence of effective internal systems, external disclosure provides a necessary safety valve to promote accountability and ensure that the public has information about serious wrongdoing (See paras. 57 & 69 A/70/361 Thematic Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression 8th September 2015).
We acknowledge your public commitments to protect UN whistleblowers who respect their obligations under UN rules to report suspected wrongdoing but submit that the internal justice system can become a trap for UN staff, causing them to suffer needlessly for doing the right thing and ending their careers.
There exists a wealth of expertise on implementing best practice whistleblower protection policies across the Whistleblowing International Network; last year, Government Accountability Project wrote to the UN Internal Justice Council with 48 points for consideration on how to improve the UN’s internal justice systems. Leading global expert practitioners on whistleblowing law and practice are available and willing to offer independent support to any UN initiative to improve trust and confidence in the UN internal justice systems to ensure all UN staff feel safe reporting public interest information, both internally and externally.
Whistleblower protection must be demonstrated with examples of workers who blow the whistle on dangerous misconduct in the UN and who are able to continue and progress in their UN careers. We are not aware of a single example of this happening to date. The chilling effect of this carries a huge risk for the UN as it stops others from speaking up when they should. This must change.
Centre for Free Expression (Canada)
Government Accountability Project (USA)
Transparency International Ireland
Whistleblowing International Network
Blueprint for Free Speech
Centre for Peace and Development Initiatives (CPDI) (Pakistan)
Protect (United Kingdom)
SpeakOut SpeakUp Ltd (United Kingdom)
Transparency International Italia (Italy)
Transparency International Cambodia
African Centre for Media & Information Literacy (Nigeria)
European Organisation of Military Associations and Trade Unions - EUROMIL (Europe)
European Federation of Journalists (EFJ) (Belgium)
The Daphne Caruana Galizia Foundation (Malta)
Centre for Research in Employment and Work, University of Greenwich (United Kingdom)
Osservatorio Balcani Caucaso Transeuropa (Italy)
The Signals Network (US/France)
Transparency International Bulgaria (Bulgaria)
Whistleblowing Canada Research Society (Canada)
AWTAD Anti-Corruption Organization (Yemen)
WBN - Whistleblower-Netzwerk (Germany)
Transparency International - Macedonia
The Coalition for Accountability and Integrity- AMAN (Transparency palestine)
The Ethicos Group (Australia)