In 2005, the General Assembly commissioned an expert Redesign Panel to look into a new justice administration system and make recommendations for its set-up. The Redesign Panel noted that reforming the internal justice system was essential for reforming the Organization. It further cautioned that a large part of the management culture in the Organization existed because it was not underpinned by accountability.
Consequently, the Redesign Panel issued an excellent report with critical and distinct recommendations.
Commenting on the excellent report in 2007, the former Secretary-General Ban Ki-moon said
“The United Nations, as an organisation involved in setting norms and standards and advocating for the rule of law, has a special duty to offer its staff timely, effective and fair justice. It must therefore practice what it preaches with respect to the treatment and management of its own personnel. “
That is a compelling statement indeed.
The new two-tier justice system came to light in 2009 and became fully operational in 2010.
Eighteen years later, we can easily confirm that this system does not comply with any applicable international human rights standards.
One thing is sure: it’s a far cry from Mr. Ban Ki-Moon’s statement in 2007.
To answer this question, we look at the three-fold role of international administrative tribunals. Next, we attempt to ascertain whether this role has been fulfilled since the establishment of the new system.
Catherine M. O’Regan, former President of the IMF Administrative Tribunal, succinctly defined the three-fold role of international administrative tribunals as follows:
The first was to provide a fair system for the resolution of disputes to enhance morale within the international organisation;
The second was to ensure that international organisations are seen to respect the human rights of their staff members, so that staff members are treated fairly and without discrimination; and;
The third was to provide fair procedures for resolving disputes with staff members. International administrative tribunals should focus first on adjudicating disputes fairly.
- Regarding the first role, we know that staff morale is at its lowest, as we’ve seen in a previous post summarizing the moral damages awarded to staff in the past twelve years in the UNDT/UNAT.
- As regards the second one, we can confirm that retaliation is rampant more than ever. There is a widespread view that the formal justice system affords little protection of individual rights. Accountability simply does not exist in the books of the Secretary-General.
Staff feel UNSAFE.
Staff are continuously RETALIATED against.
The Report of the Internal Justice Council on Administration of Justice A/72/210 2017/ offers scathing criticism of the protection from retaliation mechanisms available to staff members who decide to lodge appeals or testify before the Tribunals against the Administration.
Worse, in one of its orders Nyasulu 250 (NBI/2014), the Tribunal held:
“Witnesses appearing before this court will, most always, fear for their livelihood; they will fear intimidation and retaliation in the exercise of their functions, and to the very security of their jobs.
In these cases, it is not the public that these witnesses will fear; rather, it is the Secretary-General or agents acting under his authority.
It is imperative therefore that staff members can be confident that it is safe for them to testify before the Dispute Tribunal. Without such an assurance, it is most unlikely that witnesses will come forward.”
Damning indictment, indeed.
Instead of remedying the measure, the issue was further exacerbated when the Secretary-General revised ST/SGB/2017/2 on protection against retaliation and excluded Tribunal witnesses and applicants from its protection policy against the explicit advice of the ICJ, the Dispute Tribunal and the report of the Interim Independent Assessment Panel on the system of Administration of justice at the United Nations, A/71/62/Rev.1
The Ethics Office further confirmed to the ICJ on 30 May 2017 that providing testimony before the Dispute Tribunal did not qualify as a protected activity under the bulletin. Therefore, instances of retaliation against tribunal witnesses did not fall within the scope of the protection policy and lay outside the protection review by the Ethics Office.
Retaliation became so rampant that many staff who dared to denounce misconduct, in many instances sexual misconduct, were suddenly faced with the Organization fabricating post facto misconduct allegations against them.
3. The third role of the Tribunal was to ensure fair procedures for resolving disputes with staff members. There is no fairness as long as there is no equality before the law.
Or, to put it more eloquently as UNDT Judge Vinod Boolell said
“A staff member who has no alternative but to represent his or her interests before an administrative tribunal against an armada of lawyers representing the interests of the international organisation does not get equal access to justice.”
Thirteen years later, OSLA remains painfully understaffed and needs to keep up with the increasing representation requests they receive from the staff. Access to external counsels proves difficult, particularly for the category of local staff, given the expenses incurred and the fact that even if they prevail, the Tribunals do not reimburse the legal costs.
How, then, to remedy all these flaws and persistent injustice?
The 2005 Redesign Panel had well-defined recommendations to the General Assembly, but the Secretary-General did not endorse the most critical ones:
- The UNDT should have the power to grant final and binding relief by ordering that an appointment be set aside. The Secretary-General did not endorse this recommendation.
- The regulations should be amended to allow a post to be declared vacant by the Secretary-General if the appointment process was flawed. This will ensure respect for the rule of law. The Secretary-General did not endorse this recommendation. The current practice and jurisprudence are that an appointment, once made, cannot be set aside no matter how flawed the appointment process is. Besides the fact that the Appellant is barely compensated in cases of irregularities in appointment and selection, many of those irregularly appointed have maintained their positions even though the entire appointment process was a fraud and many lacked the stipulated qualifications. Unlike the UNDT/UNAT, the ILO Administrative Tribunal can order reinstatement and thus vindicate staff.
- The UNDT should be able to order exemplary or punitive damages in exceptional circumstances. The Secretary-General did not endorse this recommendation. The UNDT/UNAT cannot order punitive damages, but the ILOAT does. Requests for punitive damages are not actually meant for monetary compensation. Rather, they are awarded as a punishment and deterrent. The jurisprudence of the ILOAT clarifies that it is not the unlawful act itself that will result in such an award but rather the intention to harm that accompanies it.
- In order to achieve an effective change in management culture and to properly address the prevailing perception that the present system shields managers from accountability, the Redesign Panel proposes that they personally answer for their acts and decisions and that the formal justice system entertain applications for the enforcement of individual financial accountability. The Secretary-General did not endorse this recommendation.
Instead, the UNDT/UNAT have limited power for referral for accountability, but as we have seen in a previous post, not only were these never implemented, but no one can legally define the meaning of referral for accountability in the United Nations.
With no punitive damages, financial accountability, and a diluted power of referrals, it is no wonder that senior managers can do as they please. Nothing illustrates more the brazenness of senior managers than a former ASG who, when advising her Head of Department at the USG level, said:
“just sack him, Mr. USG, the maximum he can do is file an appeal and get two years’ salary.”
Well, yes of course, as long as this money flows from taxpayers’ and member states’ money and not from their own pockets, keep those appeals coming.
One question remains: why commission all these independent experts and waste resources if such recommendations are never implemented?
To archive them in the UN ODS system.
