Who is responsible for the obstruction of justice in the United Nations?

Note: This post is to be read in conjunction with the previous one.

The UNDT has recently proposed amendments to its rule of procedures Annex I of the Report of the Secretary-General on Administration of Justice A/77/156. In its introductory paragraph, page 30, the UNDT recalled that the “current rules of procedure were adopted before the Tribunal became fully operational and were based more on projection than on feedback from practice”. It makes perfect sense since it’s been twelve years since the new justice system was adopted.

One entity did not like it: the legal offices representing the Secretary-General.

In brief, the UNDT’s proposed amendments to its Rules of Procedure restore a more balanced approach to justice, benefitting staff, and helping curtail the SG’s maneuvering in court proceedings, which are many. One consistent tactic of the legal offices is to, for example, refrain from calling witnesses during the oral hearing to avoid their cross-examination by the Judges and the opposing parties and thus to limit the evidence to written testimonies or to OIOS reports.

Read and decide which entity aims to enhance a culture of accountability and justice and which one continuously aims to obstruct it.

Article 16 on Oral Hearing: the UNDT is moving towards making the Oral Hearing compulsory whenever there is an appeal contesting the imposition of a disciplinary measure. All statements, allegations, and witnesses must stand the test of scrutiny before the Tribunal.

The Secretary-General objects and recommends that the corresponding paragraph be entirely deleted. (ref. p. 55 – A/77/156)

Article 17 on Evidence: the UNDT reinforces the principle of evaluating evidence to ensure it meets the requisite standard of proof by applying logic and common sense. The UNDT will further draw adverse inferences from a refusal of a party to disclose a document in their possession and may thus consider the facts alleged by the opposing party as proven. As we all know, most of these documents are in the control of management, not staff. 

The Secretary-General objects and considers that the UNDT is attempting to rewrite the staff regulations and rules. According to the SG, such changes must be considered under the UNDT Statute and not its rules of procedure and are thus subject to GA approval. (Ref. p.55 p.56 -A/77/156).

Article 26 on Protection of personal data in publication of decisions: The UNDT seeks to use the initials of staff members instead of their names appearing in all judgments similar to the ILOAT practice and in justified circumstances to anonymize it. OSLA has supported this proposal and noted that the publication of the names causes long-term irreparable harm and prejudice to an applicant, even when the applicant is successful. (Ref. p.57 p. 58 – A/77/156).

The Secretary-General objects to this proposal citing issues of transparency. A review of all names published in UNDT and UNAT will show that not a single senior manager’s name was published in UNDT/UNAT judgments, but it was always the names of the staff members accused of misconduct. 

With this pattern, the GA resolution A/RES/65/253* that had envisaged more than a decade ago : 

“….to establish a new, independent, transparent, professionalized, adequately resourced and decentralized system of administration of justice consistent with the relevant rules of international law and the principles of the rule of law and due process to ensure respect for the rights and obligations of staff members and the accountability of managers and staff members alike”

will soon become obsolete, and justice will be denied to all staff members.