Fake Clues: ‘Whistleblowing’ EU Judge Abandons Corruption Claims

by Mark Worth
Coalition Co-coordinator

When Malcolm Simmons accused the EU’s Kosovo office of corruption and other mischief last November, he teased that this was “just the tip of the iceberg.” His blaze-of-glory resignation made international news.

Three months later, the world still only has the tip.

As a parting shot, Simmons promised details of political interference, computer hacking and other shenanigans at the EU’s rule of law mission in Prishtina, known as EULEX. But, unlike most whistleblowers, he has not given investigators any evidence to support his accusations.

“To this day, he has not provided additional information and is not cooperating, despite appeals – including public appeals,” an EU official told the Coalition today.

Former EU judge Malcolm Simmons

Simmons first made his allegations in September. Within days, the official said, he was invited to provide “concrete” information to back them up. Twice more he was “formally” asked to cooperate with investigators. He refused.

Even still, the EU opened a preliminary inquiry based on Simmons’ limited information. “The investigation is ongoing without his support,” the official said.

By all appearances, Simmons’ dramatic departure from EULEX was a last-ditch effort to salvage his reputation. Throughout the summer, journalists were delving deeply into his professional background, which many colleagues within EULEX had questioned for years. By the time he made his allegations in September, it was clear that journalists were closing in on the truth.

On November 16 the Coalition was the first to report that Simmons – inexplicably – had worked as an international judge for 16 years in Kosovo and in Bosnia and Herzegovina with no prior experience on the bench. This ran afoul of UN rules, which require international judges to have at least five years’ experience as a judge in their home country. Simmons had never worked as a judge – or even as a barrister – in the UK before being appointed to a Bosnian war crimes tribunal in 2001, the Coalition learned.

Simmons resigned hours before the Coalition’s story was published. He then moved to distract from revelations that could cost him his €187,000-a-year job. He contacted a rookie reporter at Le Monde who unskeptically printed his corruption charges, without attempting to confirm if they were true.

A Fake Whistleblower?

Simmons had worked at EULEX for nine years, rising to the position of President of Judges in 2014. Yet, he didn’t make his concerns known until – quite literally – the last minute. If EULEX was as dysfunctional as he now claims, why did he not alert EU officials earlier?

Simmons was the highest-ranking judicial official at EULEX, responsible for instilling the rule of law in a country struggling to build a democracy from the ground up. How could a person in this position – serving as an example to Kosovo’s judges and prosecutors – remain silent amidst systemic corruption and misconduct?

This question was raised by none other than Kosovo Prime Minister Ramush Haradinaj. In an interview with Politico last November, Haradinaj suggested Simmons’ claims would have been respected more if he’d made them earlier – rather than waiting until the very moment he resigned.

Is Malcolm Simmons a fake whistleblower? If so, this disturbing affair is a setback for the whistleblower protection movement. The main argument deployed by opponents of whistleblower laws is that people will use these legal protections to file malicious or vengeful reports. Innocent people and organizations will be hurt, while their false accusers face no consequences for smearing their reputation.

If Simmons does have evidence of misconduct at EULEX, he should immediately give it to EU officials. On many levels, he has a professional responsibility to do so. If he fears threats or other reprisals, he should say so publicly and seek protection. Otherwise, there can be no plausible reason for failing to cooperate with EU investigators.

Research has shown that most whistleblowers who do not follow up initial reports with evidence actually have no credible evidence at all. Otherwise, they would willingly turn it over. As the weeks and months pass with no word from Simmons, it grows more likely that he could fall into this category.

Mark Twain has been credited as saying, “A lie can travel around the world and back again while the truth is lacing up its boots.” The Associated Press and Fox News are among the many major media outlets that copy-pasted Simmons’ allegations from the initial Le Monde report. If they are false, one hopes that the truth eventually has a chance to catch up.

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