A few days ago, on 11 October 2023, the Fourth Committee of the United Nations (Special Political and Decolonization) approved nineteen draft resolutions as it wrapped up its general debate on decolonization.
Unsurprisingly, the three countries that consistently voted against several of these resolutions were Israel, the United Kingdom, and the United States.
The resolution requiring the administering Powers to terminate military activities and eliminate military bases in the Non-Self-Governing Territories under their administration. Approved by a vote of 102 in favor to 3 against: Israel, United Kingdom, United States
The resolution titled “Information from Non-Self-Governing Territories requires the administering Powers to regularly transmit to the Secretary-General statistical and other technical information relating to the economic, social, and educational conditions in their Territories. Approved by a vote of 135 in favour to 2 against (United States, Israel), with 2 abstentions (France, United Kingdom).
The resolution titled “Economic and other activities which affect the interests of the peoples of the Non-Self-Governing Territories” expresses concern about activities aimed at exploiting the natural and human resources of the Non-Self-Governing Territories to the detriment of their inhabitants. Approved by a vote of 135 in favour to 2 against (United States, Israel), with 2 abstentions (France, United Kingdom).
The resolution titled “Dissemination of information on decolonization” highlights the importance of continuing and expanding efforts to ensure the widest possible dissemination of information on decolonization. Approved by a vote of 136 in favor to 3 against (Israel, United Kingdom, United States) and 1 abstention (France).
So, if there is any doubt about who advocates for a post-colonial world, Doubt No More.
The message is clear: the governments of the United States, Israel, and the United Kingdom consider themselves superior colonies and would like to see that status quo extended indefinitely.
The worst is that this is happening inside the United Nations, the multilateral international organization that embodies the universal conception of progress and human rights.
It would only seem logical then that the United States will resort to its vetoing powers to torpedo any peace efforts, particularly regarding the Israeli-Palestinian conflict.
Only yesterday, those same countries butchered yet another Security Council resolution that proposed a humanitarian ceasefire in Gaza.
It should, therefore, come as no surprise that in the Israeli-Palestinian conflict, the United States has provided a diplomatic shield to its main ally by casting a record veto 53 times in the UN Security Council in favor of Israel and against anti-Israel resolutions or condemnations of Israel.
Of these 53 vetoes, 21 were under former President Obama’s administration. Before he departed from the White House, Obama instructed the US representative to the UN to abstain on a resolution condemning the settlements.
The United States has been sending a clear message to all. We will never allow any resolution against Israel inside the United Nations, and the United Nations isn’t the appropriate forum to agree on peace and security in the world.
In the right of reply, we have a Secretary-General who, by his statements, fails to call for a ceasefire out of fear of upsetting the United States and Israel.
A Secretary-General who fails to act on his predecessor’s (Kofi Annan) action plan to take timely and preventive actions to avert another bloody genocide in the world.
A Secretary-General who fails to use the word “condemn” when it comes to the large-scale atrocities committed against the Palestinian people, especially the Palestinian children, or to the total illegal blockade of Gaza or the forced internal displacement of 1 million Palestinian persons.
A United Nations High Commissioner for Human Rights, Mr. Volker Turk slapped by Israel’s permanent representative to the UN because he dared to condemn the siege of Gaza as “prohibited by international law”.
A Spokesperson for the Secretary-General, who, when asked by journalists about the UN staff who were killed in the Israeli airstrikes, dehumanizes them only because they’re Palestinians as if Palestinian victims do not have names, as if Palestinians are destined every day to die by an Israeli airstrike.
“Question: And final question. Do you have names or at least the nationalities of UNRWA’s employees who were killed?
Spokesman: My understanding is that they’re all Palestinians. Yeah.
Question: Names? No names?
Spokesman: I will give you the… I think UNRWA has released the names. I will make sure we circulate them, if we have all of them.
A Spokesperson for the Secretary-General who attempts to diminish the role and persona of the UN Special Rapporteur for the Occupied Palestinian Territory, Francesca Albanese, because she courageously addressed the Secretary-General asking him to call for an immediate ceasefire, which he still has not done.
“Question: I want to take you back to this issue of ceasefire. Francesca Albanese, the Special Rapporteur for the Occupied Palestinian Territory, tweeted and directly asked the Secretary-General. She said, I’m quoting, “Secretary-General, please call for a ceasefire now. If not now, when? If not you, who?” What’s your comment?
Spokesman: I mean, Ms. Albanese is Ms. Albanese. The Secretary-General is the Secretary-General. She’s an independent rapporteur with the right to say, of course, what she feels she needs to say. The Secretary-General’s position, I think, as I’ve been explaining it with some challenge here for the last days, is what it is”
If there is anything that the #Gaza war has shown, it certainly is the death of multilateralism and the death of the United Nations.
Palestine smells of death.
The Security Council smells of death.
The United Nations smells of death.
The international system that embodies the principles of peace, security, and human rights has failed.
It’s time to change the way the world is organized.
While conflicts worldwide might still require global collaboration, they must not be entertained within a dormant body that cannot reform its anachronic veto system of World War II.
There is no reason why the Arab world should continue paying their assessed contributions to an international body paralyzed and controlled by the Western powers.
The Arab countries must realize that only a new world order reshaped around new blocs and coalitions can solve the Israeli-Palestinian conflict and push the Middle East toward further integration and sustainable development.
There is no reason why the Secretary-General of an international organization must not pay tribute to the Palestinian United Nations staff who died from Israeli air strikes in their own homes.
To Mr. Guterres, we are reminded of the words of the former United Nations Secretary-General Dag Hammarskjöld in his speech in May 1954.
“The UN was not created to take mankind to heaven, but to save humanity from hell.”
Mr. Secretary-General, it is time to save #Gaza from hell.
The fact that Israel’s Prime Minister Netanyahu was allowed in late September 2023 to publicly hold a map of the “New Middle East” inside the General Assembly of the United Nations without #Palestine showing on this map speaks volumes about the United Nations’ lack of impartiality in this conflict and its outright support to Israel committing war crimes against the Palestinian people, children, and women.
An Organization that advocates for the respect of human rights and international humanitarian law yet fails systematically to hold its member states, namely Israel, accountable for violating every article of its Charter.
An Organization that threatens its staff, namely the UN local staff in the Middle East and within #UNRWA to refrain from publishing any comment condemning the killing and ethnic cleansing of its own community under the pretext of neutrality when all the principles of neutrality have been decimated in its own General Assembly when it allowed the PM Netanyahu to wipe out the name of the state of Palestine from the Middle East Map.
An Organization that stayed silent when the prosecutor of the International Criminal Court’s only statement when prompted by journalists to issue a statement was:
“If there is evidence that Palestinians,…..has committed crimes. Yes, we have jurisdiction …”
in total disregard of the large-scale genocide of the Palestinian people being broadcast live 24/7 on Al Jazeera news channel.
An Organization that allows Israel to dictate its war plans by swiftly evacuating its international staff out of #Gaza in response to Israel’s request to wipe out Gaza and the Palestinians from the map of the Middle East.
Israel is moving to erase Gaza and the West Bank from the Middle East, and the United Nations is its first accomplice.
On 07 April 2004, the former Secretary-General Kofi Annan addressing the Commission on Human Rights on the United Nations’ failure to avert the Genocide in Rwanda, said
“We must never forget our collective failure to protect at least 800,000 defenceless men, women and children who perished in Rwanda 10 years ago.
Such crimes cannot be reversed.
Such failures cannot be repaired.
The dead cannot be brought back to life.
So what can we do?
First, we must all acknowledge our responsibility for not having done more to prevent or stop the genocide.
When we recall such events and ask “why did no one intervene?
No one can claim ignorance.
All who were playing any part in world affairs at that time should ask, “what more could I have done? How would I react next time –- and what am I doing now to make it less likely there will be a next time?”
Mr. Annan’s words resonate clearly and loudly more than ever today.
An Organization that fails repeatedly to prevent genocide and to act decisively to stop it, is a failed Organisation.
Thirty years after the Rwanda #genocide of 800,000 people, will the United Nations allow another genocide of Gaza’s two million people while it sits idle, making useless statements?
A committed long-term serving United Nations senior staff, Mr. Anthony O’Mullane, Director at the D-2 level in the Office of Information and Communications Technology (OICT), is facing a malicious scheme to marginalize and ostracize him under the pretext of the illustrious “restructuring exercise” in retaliation for having denounced financial irregularities in the UN Secretariat.
Once a senior staff member dares to denounce another one, in this case, the Controller (whose position in the United Nations is untouchable), the United Nations war machines will be unleashed upon him. In Mr. O’Mullane’s case, his crime was that he dared to question financial irregularities, a duty entrusted to him as a senior staff of the Organization.
He also dared to file appeals against OIOS and the Controller.
And so the Secretary-General’s war machine was launched.
First, a restructuring exercise must be hastily prepared and documented through various piles of memoranda and Excel sheets to preempt any possible subsequent allegation of retaliation and to liken the shady exercise to a legitimate one before the UN Dispute Tribunal.
Second, instructions are promptly communicated to OIOS not to initiate any fact-finding or investigations into Mr. O’Mullane’s complaints despite the seriousness of his allegations of “possible noncompliance of the United Nations Controller with United Nations financial rules and regulations” and the second one relating to “harassment and abuse of power.”
Judgments on the two appeals are unlikely to see the light before the end of 2024/2025.
In the meantime, the Secretary-General’s management team and legal counsels aim to tighten the leash on Mr. O’Mullane.
He will be reassigned, marginalized, hammered, pressured, and finally shown the door under yet another Non-Disclosure Agreement.
A staff member must satisfy three cumulative requirements for interim measures to be granted. As it happens, the staff member cannot even succeed in proving the first requirement, which is to demonstrate the particular urgency of the case.
Reviewing all the jurisprudence since 2010, the Tribunal has rarely granted a motion for interim measures simply because its requirements are unattainable for any staff member, and the threshold is too complex to reach.
The legal counsels know this and use it to the Secretary-General’s advantage.
In Mr. O’Mullane’s case, the Secretary-General’s legal counsels had only to draft one sentence to convince the duty judge to reject the motion for interim measures:
They referred to an email trail to show that internal restructuring discussions had already been taking place since at least late 2022 while the appeals of Mr. O’Mullane were filed in July 2023. In other words, the Judge said that
“the restructuring plan was initiated before the filing of the applications. The fact that the restructuring exercise, including the reassignment of the Applicant, has been under discussion for many months tends to show that this is a matter of self-inflicted urgency. The Tribunal therefore concludes that the Applicant has failed to show that this is a case of particular urgency.”
And so it goes.
The case is disposed of in less than one argument. The urgency is self-inflicted!
As if all staff members do not know by now the maneuvering of senior management and their restructuring exercise. There is no case of an appeal filed before a restructuring exercise simply because the staff member does not have the deceitful, secretive restructuring plans that aim to eliminate them in the first place.
By the time Mr. O’Mullane proves the unlawfulness of this restructuring exercise and the retaliation and harassment against him, he will have been ousted or, at best, completely isolated.
Enough of disposing of dedicated senior staff like you would dispose of expired merchandise on shelves.
Mr. Secretary-General, your People are at the Core of the United Nations. Without them, the United Nations will disintegrate.
The principles of adversarial fairness and transparency require that staff members demand that the Secretary-General immediately order an independent investigation to look into Mr. O’Mullane’s allegations of financial irregularities and the claims of harassment and retaliation against him.
The Secretary-General relentlessly pursues his attempts to circumvent the proper Administration of Justice by forcing his proposals to amend the Statute of the Dispute Tribunal.
Besides the numerous pages of redundant data on the number of cases submitted and adjudicated, data useless to member states, the Secretary-General, and his counsels launched their relentless attacks against the United Nations Dispute Tribunal.
They accused the UNDT of failing to respect the role of the Secretary-General and his authority to impose disciplinary measures on staff members who engage in misconduct.
The Secretary-General further accused the Tribunal of failing to respect the operational independent role of the Office of Internal Oversight Services (OIOS).
According to the Secretary-General, his proposed amendment is intended solely to ensure that the legal framework established by the General Assembly is respected and that the Dispute Tribunal conducts a judicial review of the disciplinary measure and gives evidentiary weight to evidence collected by the Office of Internal Oversight Services.
Reading through the Secretary-General’s report, member states must remember the number of staff representing them who fell prey to the Secretary-General’s injustices throughout the years.
Wrongdoing, retaliation, oppression, discrimination, malicious allegations, unlawful terminations, and dismissals that neither the system of Administration of Justice could remedy, nor the successive Secretary-Generals had an interest in correcting.
You can’t make them “Whole” again, Mr. Secretary-General, can you?
Image courtesy of Saatchi.
Not only you are unable to do so, but you are reluctant to do so.
Not only are you reluctant to do so, but you’re determined to eviscerate any notion left remotely associated with the Administration of Justice for staff.
In your latest report, you claim that your sole intent is to ensure that the legal framework established by the General Assembly is respected.
As a reminder, Mr. Secretary-General GA Resolution A/RES/63/253* adopted by member states on 24 December 2008 has called explicitly for a transparent new system of Administration of justice consistent with 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.”
So, we would like to ask you, Mr. Secretary-General, why is it then when a staff member has been wrongly separated, through no fault of their own but rather as a result of managerial abuse and retaliation, your decision was systematically taken to pay them compensation instead of considering their reintegration?
We ask you, Mr. Secretary-General, why is it so, even when the Tribunal found them profoundly wronged, retaliated against, and never afforded due process?
We ask you, Mr. Secretary-General, why is it so, even when the Tribunal ruled that your representatives and counsels have cast untruthful allegations against them and that OIOS had consistently lied throughout their reports without adducing evidence?
We want to ask you, Mr. Secretary-General, why is it that your representatives and managers can easily have their mistakes and misdeeds buried with the careers of those staff members who have been ruined thereby?
We ask you, Mr. Secretary-General, why do you not allow the Tribunal to redress the injustices suffered by the staff?
We ask you, Mr. Secretary-General, why is it that there has yet to be a record of any action that you have ever taken after a referral for accountability made by the Tribunal?
Your proposal to amend article 9 (4) of the Statute of the Dispute Tribunal is subversive and aimed at annihilating any due process left to staff members during legal proceedings.
The UNDT has rejected your proposal explicitly and repeatedly, but you choose conveniently to keep relegating such criticism to buried annexes at the deep end of your reports to deter member states’ attention from them.
Here they are, harsh words, reproduced below:
“The amendment proposed by the Secretary-General (the proposal) is unacceptable in its broad claim to administrative discretion.
It subverts the established basic premises of fairness while radically limiting the role of the Dispute Tribunal in the examination of the impugned sanctioning decision.
Accepting this amendment would go beyond the practice that had been in place before the new line of jurisprudence and would reduce the Dispute Tribunal to a façade of an independent court.
The proposal states that the Dispute Tribunal only reviews the factual foundation of the disciplinary decision on the basis of evidence before the Secretary- General at the time when the decision was taken.
This impermissibly limits the Tribunal’s role as an independent fact-finder, as it does not allow for the evidence to be presented before it directly, even where necessary and available, and as such, does not make any provision for the eventuality of an incomplete or poorly documented investigation.
It, moreover, removes from the Tribunal’s purview any newly discovered or newly produced evidence.
Relying on incomplete material by the Dispute Tribunal would go against the principle of substantive rationality and procedural fairness, especially given that, according to the jurisprudence, investigative organs are not obliged to actively collect evidence in favour of the staff member.
As it is with any independent court or Tribunal, the determination must be made upon the facts put before it, and not retrospectively;
The proposal shifts the burden of proof on the applicant, contrary to the long-established jurisprudence, which embraces the universal principle that the Administration bears the burden of establishing that the alleged misconduct occurred, sometimes outright called a presumption of innocence
For all the aforesaid reasons, the proposal should not be adopted. “
You claim that your proposed amendment is intended solely to ensure that the legal framework established by the General Assembly is respected.
Deceitful claims to make before the General Assembly.
Between 2009 and 2022, under your delegated authority, seventy-five staff, chiefs, and directors were wrongfully terminated and retaliated against by the Secretary-General.
The UNDT and UNAT ruled in their favor, finding that the termination decisions were unlawful, ill-motivated, and lacking due process.
In the seventy-five cases, the UNDT and UNAT ordered their reinstatement.
In every case, you and your legal counsels opted for compensation instead of reinstatement.
Every single case.
The list is attached.
Seventy-five staff.
For twelve consecutive years.
What respect for the Organization’s legal framework are you talking about?
Instead of releasing your recent report to member states, one UNDT judgment (Nakhlawi) is sufficient to show them the subversion of the system of justice under your leadership and serves to remind them of their legislative authority, which has been consistently circumvented by you and your legal counsels:
“The failure of management to give individual consideration to each case in which rescission of a termination decision is ordered, contradicts the spirit and legislative intent of the General Assembly of art. 10.5 of its Statute.
By that article, the General Assembly created an expectation for staff members that in cases where the Tribunal orders rescission of a termination decision, the Administration will give due consideration to the possibility of reintegration before it considers the payment of the amount of compensation set in lieu of rescission, as determined by the Tribunal.
The Tribunal is of the view that this matter goes to the core of the creation of the “new” internal justice system and the very nature of the accountability of management and the duty of management, and the Organization, towards each and every member of staff, if he or she has done no wrong.
It finds that the policy behind the Tribunal’s Statute and the whole system of justice is put at risk by the attitude of management to systematically opt for the payment in lieu of rescission under art. 10.5(a).
The Tribunal finds the fact that the Administration was unable to present a single case where individual consideration was given to rescission and subsequent reintegration under art. 10.5(a) of the Statute, shows that it fails to exercise the discretion accorded to it under that article.
Failure to exercise discretion is in itself illegal and improper.
It is for the General Assembly to consider whether the underlying policy objective is being frustrated by what appears to be an unwritten policy operated by senior managers.”
Mr. Secretary-General, if you’re still intent on amending the Statute of the UNDT out of respect for the Organization’s legal framework, consider amending one item of art. 10.5:
Make reinstatement mandatory and eradicate the option of compensation in lieu of reinstatement.
Anything short of that is an abuse of justice.
For without an Order of Reinstatement, the United Nations Tribunal cannot make an Applicant “Whole” again.
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.
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.
You have served the United Nations with excellence, dedication, and passion for twenty years.
You just returned from maternity leave while still nursing your daughter.
You are assigned a new supervisor at the Assistant Secretary-General level.
You are harassed, bullied, and abused by your supervisor, the Assistant Secretary-General.
image courtesy of NPR and The InCap
Drained, you go on sick leave. Sleepless nights, nightmares, burnout zone…
You are immediately reassigned to a useless post.
You become marginalized, isolated, and ostracized.
Not content with the marginalization, the Assistant Secretary-General, aided by the Under-Secretary-General, decide to abolish your post.
So they make you an offer destined to guarantee your termination: an immediate reassignment, but this time, to a different continent.
Newborn, family, home. You try hard but know you can’t, so you refuse.
You relapse, and your mental health suffers, so you take another sick leave. But no one cares.
You ask for protection against retaliation, but the Ethics Officer reports to your harasser, the Assistant Secretary-General.
The Secretary-General and his Senior Management Team are so busy advocating for their duty of care, mental health, and well-being strategies that they decide to fire you while on sick leave with a three-day notice.
So you fight back.
You file four appeals to the ILO Appeals Tribunal.
The Assistant-Secretary-General was under investigation.
You are informed that the Assistant-Secretary-General was nominated for promotion to the Under-Secretary-General level. You ask the Tribunal to request a vetting of the ASG for this position since she was under investigation.
The ILOAT says it’s none of their business.
Journalists ask the Secretary-General’s Spokesman about the promotion under investigation. Still, the Spokesman proudly confirms that the Assistant-Secretary-General “has the full backing of the Secretary-General, who very much appreciates her work, especially her leadership of the UN system-wide task force on combating sexual harassment.”
The process for appointments of USGs is still very much governed by the same lack of transparency, lack of merit, and shady deals between member states and the Secretary-General, who continues to violate Article 101 of the UN Charter, which requires him to ensure the highest standards of efficiency, competence, and integrity in the employment of the staff.
And so it goes.
The Assistant-Secretary-General was promoted to the Under-Secretary -General for Management role.
The former USG of UNAIDS, under investigation, issued an official press statement congratulating the ASG for her promotion to the new Under-Secretary-General for Management role and describing her as “a leader who gets results for people” adding that he will miss her “good humor and sound advice.”
In the meantime, you have been terminated.
You are fighting alone, suffering alone.
Your four appeals are still pending before the ILO Administrative Appeals.
Resorting to the system of administration of justice takes years.
First, the Report on the work of the Independent Expert Panel on the prevention of and response to harassment, including sexual harassment, bullying, and abuse of power at the UNAIDS Secretariat finds that
The leaders, policies, and processes at UNAIDS have failed to prevent or properly respond to allegations of harassment including sexual harassment, bullying and abuse of power in UNAIDS. The evidence before the Independent Expert Panel of a broken organisational culture is overwhelming.
UNAIDS is governed in a way that has produced a vacuum of accountability. The leadership of the UNAIDS Secretariat fails to accept responsibility for a culture of impunity becoming prevalent in the organisation, a culture that does not ensure a safe and dignified workplace for its staff, and one that fails to respect huma rights in line with law and United Nations values.”
The report further found that the Head of UNAIDS was responsible for fostering a cult of personality and patriarchal management and that he had “enabled a culture of harassment, including sexual harassment, bullying and abuse of power.”
With respect to the improper reassignment decision, the Tribunal found that the reassignment caused the complainant “stress, distress, physical exhaustion, humiliation and adversely affected her career.”
Concerning the harassment, gaslighting, mobbing, and bullying allegations that the ASG subjected the complainant to and which, she had consistently denied in public statements, the ILOAT found that
“the actions taken by or on the orders of the former ASG were liable to offend and humiliate the complainant. Moreover, in the Tribunal’s view, a reasonable person would have found the actions offensive and humiliating.”
The former ASG ought reasonably to have known that those actions would have offended and humiliated the complainant, interfered with the complainant’s ability to carry out her work, and created a hostile work environment for her, thus constituting harassment in the terms set out in the Policy.”
The Tribunal also found a lack of fairness, objectivity, and impartiality during the investigation process because the IOS did not interview the witnesses whom the complainant suggested, and all the witnesses initially interviewed were staff under the supervision of her alleged harasser.
The Tribunal noted that the IOS’ report and recommendation to close the harassment case were flawed.
The ILOAT noted that the evidence presented was sufficient to permit the Tribunal to determine that the complainant’s harassment complaint was well founded and that the former ASG’s actions “created a hostile work environment” for the complainant.
What did the Secretary-General and his spokesman have to say about this?
The ILOAT found that the reassignment and termination processes were flawed and unlawful.
The Tribunal compensated the complainant for the adverse effects that the unlawful reassignment and termination decisions had on her career, including but not limited to stress, distress, physical exhaustion and humiliation.
The ILOAT examined the complainant’s claim to consider her illness as service incurred since it was directly caused by the harassment that the ASG subjected to her.
“The Tribunal found that the organization failed to ensure a healthy work environment and to protect the complainant’s health.
In the circumstances of this case, the organization breached its duty of care to the complainant when it rejected her claim for compensation for her service-incurred illness in the face of the overwhelming evidence, including four favourable medical reports, and its failure to ensure a healthy work environment to protect her health.”
First, you are reassigned, then you are ostracized, then you are demoted, then your post is abolished, then you are redeployed and ultimately, you are terminated.
Where are the Secretary-General and his Spokesman?
Nowhere to be seen.
The Secretary-General is the Chief Admin Officer of the United Nations.
His prerogative is to ensure that senior staff meet the highest standards of merit and accountability and that those who contravene the applicable governance norms must be held accountable.
And yet, he never does so.
The practice of the Secretary-General turning a blind eye to the misconduct of his senior staff is a grim reminder that the culture of impunity in the United Nations will continue to prevail in the name of higher political interests.
In between, she is busy discussing with the Pope her shared commitment to advancing #justice #ruleoflaw #genderquality and supporting the most vulnerable.
Meanwhile, ahead of the 78th session of the United Nations General Assembly debate, the Secretary-General briefed the reporters and delivered another outstanding quote:
“This is not a time for posturing or positioning… Action is what the world needs now… People are looking to their leaders for a way out of this mess… If we want a future of peace and prosperity based on equity and solidarity, leaders have a special responsibility to achieve compromise in designing our common future for our common good”
To recall the background, the General Assembly, in its resolution 77/257, invited the Secretary-General to complete the work on the outstanding legal and practical aspects of the review of the jurisdictional set-up of the United Nations Common System, including finalizing past proposals and assessing the viability of other options.
The Secretary General’s new report A/78/154 includes a finalized proposal for a joint chamber of the Administrative Tribunal of the International Labour Organization (ILOAT) and the United Nations Appeals Tribunal (UNAT).
It also includes an evaluation of other options that could help, according to the Secretary-General, to preserve the unity of the United Nations Common System in the context of two independent tribunal systems.
This proposal stems from conflicting tribunal judgments that the ILOAT and the UNAT previously issued following decisions taken by the International Civil Service Commission (ICSC) in 2017 concerning the classification of duty stations and their respective post adjustments.
In summary, the Secretary-General considers that establishing a joint chamber could be a suitable measure to help minimize the risk of divergence in the jurisprudence of the two tribunal systems, particularly on ICSC matters.
According to the Secretary-General, maintaining the status quo carries significant risks for the cohesion and consistency of the United Nations Common System on ICSC-related challenges, which in turn carries harmful repercussions for organizations and staff. The Secretary-General further cautions against the possibility of future similar scenarios concerning the Commission’s forthcoming assessment and review of the compensation system.
It is worth recalling that the UN Secretariat has a two-tiered judicial system (UNDT and UNAT), and the General Assembly elects its judges. In contrast, the ILOAT has one Tribunal, is not part of the United Nations administration of justice system, and the General Assembly does not elect its judges.
To understand the far-reaching encroachment attempts of the Secretary-General on the independence of the United Nations Appeals Tribunal and the ILO Appeals Tribunals, one needs only to read Annexes III and IV, which contain the comments of both Tribunals on the Secretary-General’s proposal and report in addition to the subtly hidden and buried WIPO comments.
With respect to ILOAT, the Tribunal referred to its 25 July 2022 and 12 April 2023 letters. It noted that it continues to consider that the Secretary-General’s proposal was “fundamentally unsound and should not be pursued”.
Furthermore, the ILOA Tribunal noted that the new proposals formulated in the report “would limit, in a most problematic way, its existing competence in reviewing matters arising from the United Nations common system.”
The ILOAT further noted that many fundamental concerns regarding the proposed creation of a joint chamber, as expressed in these previous letters, have not been adequately understood and addressed.
For transparency reasons, we request the Secretary-General to make these letters available to member states during the presentation of the report to the 78th GA session to guarantee that the views of the ILOAT are objectively and thoroughly conveyed to member states instead of being tailored by the Secretary-General and his legal counsels as they see fit in their report.
With regards to encouraging informal exchanges between the United Nations Appeals Tribunal and the International Labour Organization (ILO) Administrative Tribunal, the Tribunal noted with some concern that the Secretary-General’s report
“seems to suggest that the exchanges between the Tribunals would have to be “transparently communicated” and/or should be “facilitated and administered” by the United Nations and ILO.
Such administrative arrangements do not appear to us to be a means of allowing informal exchanges of the type contemplated by the General Assembly but rather an entirely inappropriate attempt to control or regulate these exchanges.
If so, they would plainly Not respect the two Tribunals’ full independence and, moreover, could undermine the conditions required for really productive contacts between them.
This Tribunal does not see any need for the involvement of anyone, beyond the Tribunals’ respective Registries, in the organization of such exchanges, apart from the provision of funding.”
That is a powerful statement indeed from the ILOAT. Not sure if the representatives of member states have the time to read these annexes buried at the deep end of the Secretary-General’s report.
With respect to the comments of the United Nations Appeals Tribunal, they were also relegated to the bottom end of this report and included under Annex III.
The UNAT referred to its earlier submissions of 12 April and 5 June 2023 in which it had noted that the fundamental structure under which each of the United Nations and International Labour Organization judicial bodies operated was considerably different.
On the scope of jurisdiction, the UNAT reiterated its earlier observations to the Secretary-General that Assembly resolutions bind the Appeals Tribunal, and as such, the Assembly resolutions, together with the statute of the Appeals Tribunal, limit the Appeals Tribunal’s scope of judicial review of certain cases related to human resources management and administrative and budgetary matters. Furthermore, the Appeals Tribunal is an appellate body, while UNDT is a tribunal of first instance. These significant structural and jurisdictional characteristics do not constrain ILOAT.
“The Appeals Tribunal has stated its concern that the proposed approaches, including the joint chamber, do not address these fundamental differences. The proposed amendments do not appear to acknowledge or address the principled arguments made against this proposal by UNAT, UNDT and ILOAT. “
On the scope of Independence of the Appeals Tribunal, the provision that preliminary rulings of the joint chamber will be binding on the United Nations Tribunals and ILOAT directly and pointedly impacts the independence of each of the tribunals.
“This is further underscored by the prohibition against judges meeting in person to discuss and decide such cases to economize resources.
This is contrary to the internationally accepted process for judicial decision-making and directly impacts the independence of judges to deliberate and exercise their jurisdiction. It ignores or at least underestimates the collegial judicial method, especially where judges are from different nations with different legal systems.
A joint chamber must be adequately resourced, including provision for judges to hold hearings in person and to deliberate in person.
These operational decisions must be made by the judges themselves, who are best placed to decide how cases are handled. Indeed, even more fundamentally, it is a matter of judicial independence that the judges be able to do so and not be directed by the Organization as to how they hear and decide cases.”
Now, we turn to a carefully placed hyperlink in the Secretary-General’s report on page 32, Annex VI, which no one will click or read because the Secretary-General does not want to highlight the degree of objection to his proposal.
This hyperlink leads us to the positions and views of individual stakeholders such as UNISERV and CCISUA, but one organization’s strong views stood out and we saw it fit to include an excerpt from their comments below.
The review was requested by the UN General Assembly in response to five judgments issued by the International Labour Organization Administrative Tribunal (ILOAT) with which it was clearly dissatisfied. This request was made at a time when the General Assembly did not yet know which way the United Nations Dispute Tribunal (UNDT), and ultimately the United Nations Appeals Tribunal (UNAT), would rule on the same matter that had been reviewed by the ILOAT in the above-mentioned judgments.
“In addition, in criticizing the ILOAT’s judgments in such a formal and public manner, and by going as far as to request a review of the entire jurisdictional set up of the UN common system, strong signals were being sent to the judges on the UN Tribunals, when the matter before them was still sub judice, not to follow the ILOAT’s reasoning, which some may consider to be an interference with the judicial independence of the UN judiciary.
WIPO strongly objects to the proposal to establish a joint chamber, which, in short, undermines the authority and independence of the tribunals, as well as the legitimacy of their decisions – bedrock principles of the rule of law.
In addition, the reconfiguration of the jurisdictional set up constitutes a disproportionate and ill-conceived response to the perceived challenge that the review is seeking to address.
The real issue, of course, is the dissatisfaction with the fact that an independent tribunal had indirectly contested the ICSC’s alleged decision-making authority on post adjustment matters, which, according to its Statute, lies with the UN General Assembly.
WIPO requests that its comments be reflected in the report to the UN General Assembly”
And so it goes. WIPO’s comments were not reflected in the Secretary-General’s report and were nowhere to be seen except through a vanishing hyperlink at the end of the report.
How many resources, both financial and human, were spent in the past two years on the Secretary-General’s proposal despite the early warning signs cautioning them against it from all stakeholders? Why do the Secretary-General and his ever-expanding legal team insist on meddling with the system of administration of justice?
Instinctively, all women will relate to the recent story of Luis Rubiales forcing his now-infamous Kiss on Jenni Hermoso and the kind of behavior that a high-ranking official like Rubiales should not display.
Strangely enough, this question was asked by the United Nations Secretary-General’s Official Spokesman during the daily noon briefings:
“Question: Thanks. Given that gender equality is such an important issue for the Secretary-General, I just wondered if he has any comments on this row that’s engulfing the Spanish football chief, Luis Rubiales, and over his allegedly non-consensual Kiss of the Spanish footballer Jenni Hermoso. Does he have any comments?
Spokesman: I mean, how difficult is it not to kiss somebody on the lips? Right? There is a critical issue of sexism that remain in sports and we hope that the Spanish authorities and the Spanish Government deal with this in a manner that respects the rights of all female athletes.
Question: Sorry to clarify, so he does see this as a sexual assault?
Spokesman: That is a criminal term. Right? From what we see here, I don’t see any indication that anything was consensual.”
Spoken like a steadfast defender of women’s rights and advocate of accountability to end impunity against sexual predators, harassers, and rapists in the United Nations.
We have the answer since you’ve asked Mr. Spokesperson and Mr. Secretary-General.
“I mean, how difficult is it not to kiss somebody on the lips?”
Particularly for United Nations Senior Officials.
It seems extremely difficult.
You can start by asking Martina Brostrom, who the United Nations fired in retaliation for having reported the former deputy executive director of UNAIDS who forcibly kissed her in a hotel elevator, groped her, and tried to drag her to his room during a conference in 2015.
So. Mr. Spokesman, it is very difficult for United Nations Senior Officials NOT to kiss their subordinates on the lips.
And when they do so without consent, the United Nations fabricates allegations against their subordinates and fires them to protect those same United Nations Senior Officials.
For instance, in the case of Martina, the United Nations fabricated a case of sexual and financial misconduct against her because she was having a relationship with her now husband and father of her child!
And yet protecting those sexual predators is always first on the Secretary-General’s agenda.
Martina sent four separate emails directly to the Secretary-General, asking him to intervene in the case. She never received a reply other than a confirmation of receipt.
Immediately after, she was offered a promotion if she withdrew her claim against the senior UN official, but Martina refused. So, she was fired.
The very fact that the former Deputy Executive Director of UNAIDS was so difficult to remove from his role is a reflection of something much bigger, of what all these zero tolerance policies for sexual harassment, abuse, and protection against retaliation policies that the Secertary-General continues to advocate for in the political arena represent nothing but a pleasing façade in a bid to secure the yearly assessed financial contributions of member states.
You can also ask Malayah Harper, who used to run UNAIDS programs in Uganda and Kenya, and who previously told CNN that the former Deputy Executive Director of UNAIDs assaulted her in an almost identical way, a year earlier than Martina, also at a hotel. Those were her words:
“He got into the lift with me, and then kind of lunged forward to – you could call it – kiss me, but I thought a kiss had to be consensual.”
You can also ask a third woman, who, according to CNN, still works in the UN system and wished to remain anonymous, described a very similar incident with the former Deputy Executive Director of UNAIDS.
“He forced himself on me; he stuck his tongue in my mouth, tried to touch me all over, into my blouse.”
Mr. Spokesman and Mr. Secretary-General, it is beyond impossible for senior United Nations officials NOT to kiss staff on their lips, and it is beyond impossible for the Secretary-General to hold those Senior United Nations officials accountable.
So, to answer your question, Mr. Spokesman:
What is undoubtedly easy is the retaliation against those women who dare to report the Kiss.
As a follow-up to two recent Certioraris blog posts about a UNDT judge adopting a sexist and victim-blaming approach to recent cases of sexual harassment and sexual exploitation in the United Nations, my jurisprudence research led me to an appalling dissenting opinion by the same Judge in yet another judgment in which he obscenely blamed the Victim for a case of sexual assault and rape.
To recap, in his “Boys will be Boys” Judgment, the Judge who holds an Italian nationality considered comments from a male staff member to a female staff member, such as “Your breasts look like mountains….” and “The water jets in the pool could be pleasurable between a woman’s legs….” as “euphoric jokes and quips, “boutades” by an elated person (like a boy on a school trip) with no intention to harm or harass or humiliate.”
In a second Judgment, Makeen, UNDT/2023/071, the Judge considered it normal for a 53-year-old UN married man to have sex with an 18-year-old girl who cleans his house and cooks for him and ordered his reinstatement or in lieu compensation for his termination.
In both Judgments, referring to a 2007 Duke Law Research Paper, I argued that the cultural beliefs and values of the same UNDT Judge were once again crucial factors impacting his final decision and judgment and that the cultural affiliations of different judges and jurors will influence their perceptions of whether sexual harassment occurred.
Most recently, an Italian judge provoked outrage after clearing a school caretaker of sexually assaulting a teenage girl because the grope lasted only “a handful of seconds.”
Italians expressed their outrage on social media by posting videos of themselves touching intimate body parts alongside the hashtags “palpata breve” (brief grope) and “10 secondi” (10 seconds).
Italian judges have been criticized in the past for similar rulings. In 2017, a judge in Ancona cleared two men of the rape of a 22-year-old Peruvian woman because they said (and the judges agreed) that she was “ugly.” In a famous case from 1999, a man was cleared of rape because the Victim was wearing tight jeans believed to be impossible to remove without her assistance.
The UNDT judge has an array of judgments that all point to sexist cultural beliefs, and in which he seems to consistently want to blame the women for the sexual harassment and violence they endure.
Such victim smearing is commonplace in rape trials in Italy, and the UNDT Judge did not depart from this sexist legal approach in yet another UNDT judgment in which he expressed his dissenting opinion against the majority of the Judges.
The case itself is pretty straightforward, albeit revolting.
A long-term serving UNFPA staff member at the D-1 level sexually assaulted, forced himself, and raped a UN colleague he had met earlier at dinner.
The majority of the Judges upheld the disciplinary sanction of termination, having considered the totality of the evidence before them; chief among them was that irrespective of the fact that the female colleague had kissed the Director, she had not given him explicit consent to have intercourse with him, and she explicitly told him that she had made a mistake and wanted to leave the room, but he would not let her.
The D-1 Director and the female staff had met over dinner during a UN mission. The conversation was friendly. The Director invited his female colleague to continue the conversation. On her way to pick him up, he left his room door open as he stood on his balcony waiting for her. They had a discussion on the balcony, and he kissed her.
She then realized she made a mistake and wanted to leave.
Her judgment, Her Call, Her Right.
But the Director wouldn’t let her go. She explicitly told him she didn’t want to have sex with him, but he wouldn’t let her leave. The Director attempted to pin her against the wall but was unsuccessful, so instead, he held her in a firearms lift, put her on the bed, and raped her.
The majority of the Judges ruled against the Director, and the termination decision clearly referred to the lack of consent as a decisive factor for sexual assault and rape which had zero tolerance in the United Nations.
The UNDT judgment UNDT/2022/030 featured a 17-page dissenting opinion by the UNDT Judge same author of the “Boys will be Boys” judgment.
The UNDT judge argued why he would have cleared the D-1 Director of any misconduct. He even managed to quote the Applicant’s words in his application to defend him.
In a disturbing quote, the UNDT Judge invoked the Director’s own words in his application by stating that
“the Complainant’s “friendly disposition towards the Applicant … was exculpatory of him having assaulted her.”
In other words, the Judge plainly said, if you’re friendly to me, I have the right to rape you!
But, Your Honor:
Image courtesy of boldomatic.com
The Judge then quotes the OIOS investigator to insinuate that a long time had elapsed during which the Director was on top of the Complainant, therefore, questioning how it is possible that the female staff member did not give consent given the lengthy period.
In other words, the Judge was saying that it if was rape, it would have all happened in seconds.
The Judge goes on to state.
“It is really difficult to recognize that an alleged victim of assault and rape, in a situation showing no sign of threat or violence at all will accept the sexual intercourse because she was “afraid to upset” the perpetrator, or because she had in front of her a person perceived as a “powerful person”.
With all due respect, your Honour, it must be difficult indeed, first because you’re looking at it from a Man’s perspective and not a Woman’s.
Second, Your Honor, it seems you are also looking at it from a deep-seated sexist perspective embedded in your cultural beliefs, namely that if a woman flirts with a man, he is entitled to have sex with her.
The Judge’s dissenting opinion goes on:
“When the borders of a situation of mutual respect are crossed, indeed, no gentle relationship could be kept, and a reaction by the victim is expected according to “id quod plerumque accidit,” that is what usually happens to ordinary people; indeed, the embarrassment invoked by the Complainant cannot justify the acceptance of sexual advances without any reaction.
The lack of any reaction by the person who is the object of sexual advances, whatever could be its motivation, cannot be interpreted as a clear dissent to the sexual intercourse. In other terms, the test required by this case is not only to assess if the Complainant wanted the sexual intercourse or not, but also the perception of her behaviour by a reasonable person within a multicultural environment.”
With all due respect, your Honour: ordinary people??? Lack of any reaction? Perception in a multicultural environment??
Are you, in fact, your Honour, insinuating that the Victim is not ordinary and hence is not normal because she froze and did not shout for help??
In what culture, your Honour, may we ask, a Man has a right to rape a Woman who clearly said No to Sex?
Are you really working for the Administration of Justice in the United Nations with the overall aim of advancing a zero-tolerance policy for sexual harassment, sexual exploitation, sexual abuse, violence; and assault against Women?
The Judge goes on to argue in his dissenting opinion, that the Complainant told the Director she had made a mistake going into his room. She did not want to have sex with him; however, this happened in the very first moments of the meeting and the fact that she did not repeat her dissent statement later on equates to weak resistance or consent!
Even when the Complainant testified about the physical strength of the Director and his firemen’s lift to fly her on the bed, which the Director conceded to, the dissenting Judge considered this an act that in itself could be subjected to different interpretations…
No comment.
In his closing arguments, the dissenting Judge goes on to intimate a disgraceful analysis of events that undeniably point out his own cultural beliefs and values and the sexist approach towards female victims of sexual harassment and assault.
“Certainly the expectations that a young staff member – with work-related problems and frustrations – may have placed in a powerful and sly colleague with a high position in the United Nations hierarchy and well connected (running for presidency in his country, friend of the Regional Director and of the former President of the United States of America, Barrack Obama) remained frustrated after she realized – at the end of the intercourse and not before and probably only when the Applicant told her he was married and with his own life – he had purely sexual objectives, she had made a mistake and she had been used as an object. However, this is not sufficient to substantiate an accusation of rape.”
Wow.
Just Wow.
So, the D-1 Director knows Barrack Obama and is running for the presidency in his country. It goes without saying, we will believe the D-1 Director. And she is just a frustrated young female staff member in the United Nations who did not realize she has been used as an object!! Goes without saying, she is just a frustrated female staff member and she is lying!
Yes, dear audience, these are the owns words of a UNDT judge!
Let’s recall here that this was a 17 pages dissenting opinion by the UNDT Judge and that the UNDT judgment ruled in favor of the Complainant. The Director appealed the judgment to UNAT.
The importance of the case called for a full bench of UNAT Judges.
Thankfully, in Judgment No. 2023-UNAT-1332, UNAT unanimously ruled in favor of the Victim and against the Director finding
“that the evidence established with a high degree of probability that the Appellant engaged in non-consensual sex with the Complainant, amounting to sexual assault”
UNAT further held against the dissenting opinion that it was
“insufficient for the Appellant to rely on “tacit” consent or the absence of repeated expressions of non-consent in these circumstances.
Also, rape and sexual assault do not always include threats of violence or physical restraint nor victims physically fighting back but can occur, as here, where a person in a position of power, trust or authority compels the Complainant to engage in unwanted activity.
However, the Complainant did testify to being physically restrained and overwhelmed after having expressed her lack of consent. This would be a plausible rationale for the Complainant to not struggle and suffer further physical assault in the interaction.
She described that her failure to scream or yell was because she was “in shock”, “ashamed”, and “embarrassed”, as well as cognizant that she was in a “very precarious situation with the Regional Director” that could compromise her job.”
Surprisingly, there was a new division among the UNAT Judges as to whether the name of the Director should remain anonymous. There was once again a dissenting opinion by 3 Judges who refused to protect the perpetrator even though the final judgment remained anonymous.
The dissenting Judges held
“while we acknowledge the desirability of protection of personal privacy, so too must we bring to account in a balancing exercise, the need to deter others, no less senior officials of the United Nations, from insidious and harmful sexual abuse and exploitation.
For these reasons we would not have found good cause to depart in this case from the UNAT’s practice of naming parties in judgments”
The name of the UNFPA D-1 Director remains Anonymous to date.
“The most concerning findings are those related to misconduct. The overall sense from staff is that senior management does not take appropriate action and simply “shuffles” or “outrides” problems, especially in cases of abuse of authority and sexual harassment.
The number of open investigation cases related to harassment, including sexual harassment, retaliation and misconduct, has been growing year after year, and, the overall sense is that senior management does not take appropriate or timely disciplinary action against perpetrators of misconduct (sometimes the individual is just transferred to another duty station) or action against perpetrators is delayed to the point that the Victim, or the perpetrator, leaves the organization before any formal disciplinary action is taken.
Staff also felt that this behaviour by management was particularly acute when it was related to sexual harassment, abuse or exploitation. “
The dissenting Italian Judge judged a woman because she did not express her dissent twice to the Man who raped her.
In other words, his dissenting opinion boils down to his sexist and discriminatory obiter dictum: if you kissed him, it means you gave him consent.
The UNDT code of conduct of Judges requires “fairness in the conduct of proceedings and that Judges must not conduct themselves in a manner that is racist, sexist or otherwise discriminatory. They must uphold and respect the principles set out in the Charter of the United Nations, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.”
Further, the Judges of the UNDT are appointed by the General Assembly following recommendations of the Internal Justice Council and consultation with the Office of Human Resources on the search for suitable candidates for the positions of judges.
May we ask the General Assembly, the Internal Justice Council, and OHR who can hold this UNDT judge in contempt of the UNDT code of conduct for his consistent sexist legal approach against female staff members in the United Nations?
May we further ask these bodies how do they ensure that that they are recruiting the Judges who uphold and respect the principles set out in the Charter of the United Nations, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights and whom we assume, in turn, advance the Secretary-general’s policy on zero tolerance towards sexual harassment, sexual abuse, sexual exploitation and sexual vioence against women?
May we further ask UNAT judges on what grounds they decide that a perpetrator at a D-1 level convicted of a sexual assault that is considered a crime is granted anonymity despite the UNDT and UNAT establishing the misconduct against him?
What happens when you’re a female staff member, sexually harassed by supervisors who abuse their authority for three years, and Administration does nothing to protect you?
NOTHING.
The Story started in February 2020.
Female staff member.
Sexually harassed by her supervisor.
Submits official complaints of sexual harassment and abuse of authority to OIOS and Conduct and Discipline Unit.
Is immediately placed on a Performance Improvement Plan (PIP) by her supervisors.
Is threatened on the same day by the Chief Mission Support Center during a dinner that her PIP would be “dropped” if she withdrew her complaint against her two supervisors.
Unbearable work environment and too much to bear and stay sane.
Goes on Certified Sick Leave.
Submits a request for protection against retaliation to the United Nations Ethics Office.
Is denied protection by the Ethics Office. We are in December 2021.
Extends her sick leave. Work environment is not safe to return to.
Submits a request to review the Ethics Office’s decision before the Alternate Chair of the Ethics Panel of the United Nations.
Is suddenly reassigned from her duties as Chief of the Unit by her supervisors and replaced by another staff member.
Requests management evaluation of the reassignment decision and reiterates her request for protection from retaliation from her supervisors.
Her first and second supervisors continue to supervise her.
The Alternate Chair of the Ethics Office ruled in her favor with a prima facie case of retaliation and recommended her protection from her supervisors. We are in April 2022.
Despite the Ethics Office prima facie finding, the Under-Secretary-General for Management Strategy, Policy, and Compliance accepted the MEU’s recommendation that her reassignment was lawful and did nothing to reverse the decision or to protect her.
Left to her own protection, she applies to and is selected for a temporary position as Logistics Officer at the P-4 level at the United Nations Regional Service Centre in Entebbe.
Her supervisor (the perpetrator) refuses to release her, stating that her role was crucial.
Together with the First Reporting Officer, they finalize her performance evaluation report. We are in May 2022.
She is still on Certified Sick Leave and too afraid to return to work.
Her contract is suddenly extended for one month only.
She writes back to the Ethics Office, alerting them of the contractual issue.
Two years and a half after she first complained about sexual harassment and abuse of authority against her supervisors, the Chief of HR finally suggested in July 2022 to offer her a placement in a different section with different reporting lines.
“… with concern that the Administration, notwithstanding such a serious accusation (in particular, that one of sexual harassment by Mr. John) and the zero-tolerance policy it follows in the matter, did nothing to protect the Applicant after her complaint, leaving her instead subjected to the same reporting line, which had at the top the Applicant’s SRO, that is the alleged sexual harasser of the Applicant.
Indeed, both the FRO and SRO, although accused by the Applicant, remained in their positions, and continue to manage the Applicant’s working relationship, assessing her ePAS, deciding to put her on a PIP, and finally deciding her reassignment.”
Let us read a second excerpt.
“The Tribunal stresses the abnormality of a situation where an officer accused of serious misconduct (like indubitably sexual harassment is) can continue exerting powers towards the complainant. While it can be admitted that the accused officer remains in office till the investigation confirm the accusation, from the moment he is aware of the accusations he is in a situation of conflict of interest which imposed on him the obligation of abstention, refraining from any administrative act which involves or can impact, even indirectly, the complainant.
Let us read a third excerpt.
“The Administration, who receives the complaint of sexual harassment, must immediately not only investigate the facts (or close the case, communicating the closure to the complainant), but in any case, pending the case, intervene to prevent the accused from exerting his managerial powers towards the complainant; this obligation is larger than that one of the accused person and starts from an earlier moment, operating even during the period the accused person is not aware of the complaint.
It is clear in the rules that the existence of a conflict of interest undermines the powers of a manager to take decisions.
In the case at hand, the Administration –which had the obligation to ensure that any known conflict of interest could have no room in the management of the work relationship- should have put a remedy to the situation and intervened since the moment the complaint for sexual harassment was filed by the complainant.”
What happened to the perpetrators who committed the sexual harassment and abuse?
Nothing.
What happened to the Administration that failed to protect the staff member and failed to provide the minimum duty of care?
Nothing.
What happened to the USG, who blindly followed MEU’s classic upholding decision?
Nothing.
What happened to the female staff member?
She went on sick leave, humiliated and threatened by a hostile work environment that affected her mental health and well-being. She was scared and vulnerable, had constant fatigue, had chronic headaches, insomnia, self-doubt with a pessimistic approach to her work and life, and was probably scarred for life …
Oh, and by the way, UNDT awarded her 3 months’ net salary at the P-3 level for all this anguish…and suffering...
