The United Nations Dispute Tribunal at the Mercy of the Secretary-General

How the Secretary-General keeps circumventing the authorities of the Tribunal to gain total control of the judiciary power.

Another damning report that will eventually go unnoticed during the seventy-eight session of the General Assembly is the Internal Justice Council A/78/121 report, which the General Assembly will consider under item 144 of the preliminary list (Administration of Justice at the United Nations).

The General Assembly established the Internal Justice Council in its resolution 62/228 to ensure independence, professionalism, and accountability in the system of Administration of justice.

In its most recent report, the Internal Justice Council voiced its scathing objection and criticism of the Secretary-General’s attempts to unilaterally amend the rules of procedure of the UN Dispute Tribunal to gain total control over the judicial authority of the UNDT and particularly circumventing the power of the Tribunals and the role of Internal Justice Council.

In essence, the Secretary-General aims to deprive the UNDT of its primary function: the function of the judicial review of an administrative or disciplinary decision.

The Rules of procedure of the UNDT are essential to ensure the efficiency and independence of the Tribunals. Further, establishing rules of procedure is the statutory prerogative of the Tribunals, subject to the approval of the General Assembly. 

The statute of the Dispute Tribunal, as adopted by the Assembly in its resolution 63/253, provides in particular under Article 7: 

“Subject to the provisions of the present statute, the Dispute Tribunal shall establish its own rules of procedure, which shall be subject to approval by the General Assembly.”

It is evident in plain words that, should there be instances in which there are attempts to modify the UNDT’s rules of procedure, the Tribunals should be allowed to articulate their stances before the Fifth Committee and the Sixth Committee of the General Assembly. 

In addition, the Internal Justice Council noted that the Administration must consult the Tribunals before proposing any legislative amendments affecting the functioning of the Tribunals. 

So what did the Secretary-General propose, and how did he provoke the wrath of the stakeholders, starting with the UNDT/UNAT, ILOAT, and most recently, the Internal Justice Council? 

Article 2.1 (b) of the Dispute Tribunal’s current statute confers the power to conduct a judicial review of an administrative decision, which is a judicial power in all major judicial systems globally. This includes the ability to determine the basis for the challenged decision, including the accuracy of the factual basis.

The Secretary-General proposed to the General Assembly to amend the statute of the Dispute Tribunal by introducing a new article 9.4.:

The proposed article 9.4 seeks to change the jurisprudence of the Appeals Tribunal on the interpretation of article 2.1 (b) of the statute of the Dispute Tribunal to prevent it from making any judicial enquiry on the factual basis on which an administrative decision imposing a disciplinary measure is based. Too complicated?

In previous judgments, the UNDT had likened the Office of Internal Oversight Services (OIOS) reports to a police inquiry and thus found that such reports are subject to a judicial review and determination of whether misconduct occurred or not.

In plain reader-friendly words, what does this mean to you, the staff member? 

It simply means that should you be accused of misconduct, and the Administration provides the Tribunal with what, in their opinion, is an untouchable report by OIOS, the Tribunal retains the right to consider that the OIOS report was flawed, biased, and/or possibly totally lacking evidence.

Thus, we understand that the Tribunal has a right to test the evidence, to require further proof, or to rule that the OIOS evidence was of no value and consequently to rescind the administrative or disciplinary measure taken against you.

Here comes the Secretary-General.

He proposes that the Tribunal has no right to question the OIOS report and should accept it as it is.

He further suggests that the Tribunals should automatically abide by OIOS’ sacred reports. 

In other words, OIOS investigations can never be wrong, nor can they ever contain mistakes, be they factual or analytic.

In other words, OIOS is above the law.

In other words, OIOS reports are always accurate and factual. They are a sound basis for any disciplinary decision the Secretary-General takes that cannot be challenged before the Tribunal.

To test OIOS’ high-quality reports, we only need to have a quick look at ten identical judgments issued by the UNDT last week UNDT/2023/096 UNDT/2023/097 UNDT/2023/098 UNDT/2023/099 UNDT/2023/100 UNDT/2023/101 UNDT/2023/102 UNDT/2023/103 UNDT/2023/104 and UNDT/2023/105.

Reading only one will prove how efficient, diligent, and meticulous OIOS investigation reports are. 

In brief, Cigna, the Organization’s medical insurance provider, reported

“allegations of possible medical insurance provider fraud” to the Investigations Division of OIOS. As a result, OIOS began investigations into these allegations, accusing the national staff of possible medical insurance fraud. Thus, OIOS recommended withholding the final separation entitlements of the ten staff members and putting on hold the processing of pension paperwork for national staff whose appointments were not renewed due to the closure of the Kalemie office of MONUSCO in 2022.”

Let us now have a look at a few excerpts from the Tribunal’s judgments:

“It appears that the OIOS investigation was riddled with problems. Indeed, the record in this case is devoid of details about the investigation at all.

Even today, we do not know what was investigated, whether the investigation was ever completed, and if so, what it found about the “possible fraud.” 

“This absence of evidence is astounding given over four years of systematic monitoring, the passage of two and a half years since OIOS was first notified of the allegations of possible fraud and began to investigate, and more than a year after the disputed decision to withhold the Applicant’s separation entitlements and pension paperwork “until the investigation has been concluded and the findings support the imposition of financial recovery …  

Despite the OIOS promise giving rise to the decision that “[a]s per normal practice, OIOS will issue reports for each staff member at the completion of its investigations, with an indication of the quantified MIP fraud should this be established,” no report has been presented to the Tribunal”

Perhaps the closest thing to an OIOS report in the record is an email from the Acting Deputy Director of the Africa Regional Office, Investigations Division of OIOS, which does not describe any of the “evidence that OIOS has”, and it also describes confusion as to who was on the list to be investigated.

OIOS interviewed the Applicant about the possible fraud allegations the day before his separation, but the record contains no evidence about that interview- what he was told about the allegations, the status of the investigation to that point, and his response. 

The record in this case lacks any evidence whatsoever of the nature of the alleged fraud, how the OrganizationOrganization suffered any financial loss, and how any alleged financial loss was calculated. The case consists of a series of black boxes. 

The third black box is the OIOS investigation. Again, the Tribunal was not told what evidence OIOS uncovered over the course of its year-and-a-half investigation. Indeed, the few crumbs of “evidence” that were produced in this case were contradictory and unreliable. 

In conclusion, in the absence of any evidence to support the Administration’s decision, the Tribunal must find that the decision was arbitrary, capricious, and unlawful.”

So, after we noted OIOS’ immaculate and meticulous investigation reports, we return to the Secretary General’s proposal to amend the UNDT statute to prevent the Tribunals from putting in doubt the veracity, authenticity, or evidentiary value of OIOS reports.

The recent UNDT Judgments referred to above demonstrate the importance of the Tribunal’s authority to conduct a judicial review of the administrative decision and to assess the OIOS evidence presented to it under Article 2.1 (b) of the Dispute Tribunal’s current statute.

The above Judgments inherently show how your rights as a staff member are upheld during the proceedings of the Tribunals and how you are protected from the flawed, biased, and frequently purposely ill-founded OIOS reports.

This is, in essence, what the Secretary-General proposes to abolish through the amendment of the UNDT statute and the introduction of his proposed article 9.4

We should note that this proposal is a grave prejudice to the rights of staff members to due process as the staff member has a right to be presented with concrete evidence and to be given a fair opportunity to rebut it before the Tribunal. However, the Secretary-General believes this should not be allowed.

Appalled by the Secretary-General’s proposals, the Internal Justice Council noted in its report the following scathing remarks:

“The Council wishes to emphasize the difference between investigative and adjudicative powers. The Council respectfully considers that the submissions and the proposed statutory amendment are flawed and disagrees with the submissions.

The proposal that the General Assembly should adopt a resolution for the purpose of overturning the judicial decisions of which the Administration, being a party to the judicial proceeding, disapproves is contrary to the universally accepted principle of judicial independence. 

The adoption of such a resolution would signal that the General Assembly will compel the Tribunals to adopt submissions of management in disputes to which they are parties, thereby depriving or at least appearing to deprive staff of the right to an independent and impartial hearing of their appeal against an administrative decision imposing a disciplinary measure. 

The proposal offends the most basic principle of justice, the audi alteram partem rule, in this case the right of a person who complains against an administrative decision imposing a disciplinary measure to be heard in their defence. 

The role of OIOS in the disciplinary process is to investigate and transmit the results of investigations together with recommendations. 

It has no power to exercise any adjudicative function and no duty to hear and consider the position of the complainant, nor to provide the complainant with a copy of its report. 

At the time at which the Secretary-General takes a decision based on the said report, it has not undergone any evaluation and may contain the types of errors that are universally consistent with the investigative process. 

An administrative decision that is based on a report that contains errors of fact will inevitably reflect those errors.

The only opportunity that a complainant has to contribute to or appeal against the findings on which the decision is based is that provided by article 2.1 (b) of the statute of the Dispute Tribunal.

It is respectfully submitted that the jurisprudence of the Appeals Tribunal is consistent with universally accepted principles of judicial review, which must include an opportunity for a judicial interrogation of the factual basis on which the decision is made. 

28. The Council expresses its concern that the passage of the proposed article 9.4 will undermine the independence of the internal judicial system of the United Nations, and respectfully recommends that it not be adopted by the General Assembly. “

To reflect more on what the Secretary-General considers as untouchable sacred OIOS reports, we draw his attention to a recent report by the Joint Inspection Unit JIU/REP/2020/1 on the review of the state of the investigation function: progress made in the United Nations system organizations in strengthening the investigation function which has pointed out the severe deficiencies in OIOS investigations:

“Despite progress made in enhancing the independence of the investigation function, addressing function fragmentation and establishing professional investigation capabilities, the investigation function continues to face significant problems, including: 

A continuing widespread and unacceptable degree of fragmentation of the responsibility for investigations in many organizations, where investigations and investigation-related work (i.e. intake and preliminary assessment) are carried out by various other offices and functions.

The resulting risks from this fragmentation are, among others: that the independence, impartiality and objectivity of the investigation function and the activities carried out by it are not assured; the inherent risk of conflict of interest situations; and the negative consequences in terms of quality, accountability and trust.

Another shortcoming is the lack of common investigation procedures and standards in some organizations and, although the professional competence of investigators is a decisive factor for investigations, the absence of professional investigators in some, but not all, organizations. With regard to the latter, no progress has been made in six organizations since 2011. 

A still insufficient degree of structural autonomy and operational independence of the investigation function, hence inadequate safeguards against interference by management.

Independence is a decisive prerequisite for the effective delivery of the investigation mandate and for the unbiased, objective and effective discharge of the investigation responsibilities.

Despite this damning negative evidence against OIOS, the Secretary-General is marching forward with his proposal.

The General Assembly will consider the Internal Justice Council report and other reports relating to the Administration of Justice on the 1st, 2nd, and 28th of November 2023. 

We hope that the Member States and ACABQ play a more active role in maintaining the judiciary balance of the Organization instead of just taking note of the present report.