Category: International Humanitarian Law

If the United Nations’ investigators can shape testimony, fail to collect objective evidence, pursue only inculpatory evidence, use leading questions, deny interpretation, expand allegations beyond the complaint, and insert into an investigative record words a witness never actually said, how much confidence can any staff member have in the integrity of a UN investigation?

In an explosive 150-page judgment issued last month, UNDT/2026/099, Cruz Nunez v. Secretary-General of the United Nations, Judge Adina Ghita tore apart an investigation by UNHCR’s Inspector General’s Office (IGO), from its legal and procedural foundations to the way evidence was collected, witnesses were questioned, testimony was recorded, exculpatory evidence was ignored and, ultimately, the findings were allowed to become the basis for disciplinary action.

This powerful  UNDT judgment will show you how far this investigation went off the rails: from leading witnesses and ignoring exculpatory evidence to altering testimony and disregarding basic investigative safeguards, all without the system catching it.

1. The Tribunal found the investigation was structurally one-sided.

The investigators interviewed the complainant and the other witnesses before interviewing the subject. When the Applicant finally gave his version and challenged their accounts, the investigators did not go back and test those challenges with the witnesses. Because the investigators did not yet know the Applicant’s account, they did not even know what exculpatory evidence to look for. The UNDT found that the investigation therefore “focused solely on obtaining inculpatory evidence”, and its sequencing contributed to its “one-sidedness and bias.” 

This raises the question of whether the IGO’s, and in general the UN’s, investigative model is genuinely truth-seeking, or whether an investigation can become an exercise in building the allegation once an allegation has been made.

“ UNHCR’s investigative framework requires investigators to search for the truth of a matter, to seek both inculpatory and exculpatory evidence, to produce a full, fair and clear picture of the facts, and to allow the subject to present evidence and respond to the evidence relied upon … Those safeguards were not substantively satisfied here. The hearing showed that important exculpatory evidence was not adequately developed during the investigation and that the resulting evidentiary picture was neither full, nor fair, nor clear in the sense required by the applicable framework”

2. When witnesses did not corroborate the allegation, UNHCR’s investigator began feeding the allegation to them.

This is probably the most explosive methodological finding of the judgment. The UNDT observed that after open questions failed to produce much incriminating evidence, the investigator moved to closed, leading yes/no questions, describing the alleged events and asking witnesses whether they happened. 

The Judge noted that this method operated more like pressure on witnesses to confirm what an authoritative figure was telling them than an investigation. Judge Ghita concluded that the IGO’s technique can contaminate memory, distort recollection, and even create circumstances in which multiple witnesses appear to corroborate something because they have all been supplied with the same information. Consequently, statements obtained that way “cannot be trusted” and cannot be used against the alleged offender. 

“For the investigation to be truth-seeking and objective, the witnesses need to express their memories of the events, if any, and not just confirm the version of events presented to them by the investigators. Yes/no questions have no value as an investigative tool, since the context is provided by the investigator. Rather, such questions may render an investigation unlawful and abusive if the events presented by the investigators are essentially only to be confirmed by witnesses, since these types of questions can promote investigative biases rather than serve as a truth- searching tool.”

“The investigators must respect the accuracy of the witness statements and not present them to fit their own search for inculpatory evidence.”

“Investigators must not conduct the investigation for the purpose of establishing a predetermined outcome, but only to search for the truth of the events.”

“This situation proves that the way the regular investigator JA behaved in the instant case from the outset of the investigative process was tainted by a strong investigative bias against the Applicant. Her attitude was maintained during the whole investigation, as the further arguments will show.”

3. The UNDT found that words were inserted into the complainant’s written testimony that she never said.

This is staggering.

The Tribunal compared the audio, which UNHCR’s own rules identify as the primary evidence, against the written interview record. It found a paragraph in the written record saying the Applicant had grabbed the complainant under her shirt and deliberately put his hands on her skin. But the UNDT established that the complainant never actually said this in the recorded interview. The Tribunal concluded that the investigator preparing the written record “altered the content of the testimony itself by inserting words that were never spoken.”

Those inserted words then migrated from the interview record into the investigation report and ultimately into the disciplinary decision as evidence supporting misconduct and sanction.

“The Tribunal expresses deep concern over the fact that the regular investigator. JA intervened in the interview of the Complainant to substantiate a finding of misconduct; this concern is even greater given that no formal complaint regarding the respective factual circumstances was ever filed.”

“These two events constitute a severe breach of the investigator’s duty to document accurately and completely the results of investigative activities;” as established by para. 110(b) and (d) from UNHCR/AI/2019/15 and a severe breach of the Complainant’s duty to tell the truth when she is heard as a witness, under oath.”

“Considering that both actions could only have the scope of a sanction imposed on the Applicant being maintained, this may trigger an inference of collusion between the investigator JA and the Complainant.”

4. UNHCR’s IGO failed to pursue objective evidence that actually existed.

The allegations arose from an incident in a bar but the investigators did not timely seek CCTV, restaurant staff testimony, receipts, the physical layout of the venue, other contemporaneous objective evidence.

The UNDT found there was a high probability such evidence could have been obtained, and evidence later confirmed that the bar did in fact have CCTV.  By the time the UNDT was examining the matter, some of that evidence was gone forever.

The UNDT judgment noted that this defect cannot be cured at the judicial stage: a Tribunal cannot go back in time to restore witnesses’ memories or recover CCTV footage and receipts that have since disappeared. A defective investigation cannot necessarily be repaired by litigation. The investigator controls what evidence survives long enough for a staff member ever to defend himself.

5. The investigation lacked some of its most basic procedural architecture.

The Tribunal found no evidence of:

• the mandatory preliminary assessment;
• a documented decision initiating the investigation;
• a decision appointing the investigators;
• documentation concerning changes in the investigative team;
• an approved investigation plan. 

The UNDT judgment explained that without these documents, the investigative scope becomes dangerously elastic. Judge Ghita reminded UNHCR:

“The Tribunal will state, at this point, that the Administration does not have the option to issue administrative normative acts that regulate the investigative and disciplinary process and then choose not to comply with them, despite the fact that all the relevant cited issuances state that they are mandatory to apply. As those issuances form the mandatory legal framework, they are not optional, and their disregard carries consequences for how the lawfulness of the process is evaluated.”

6. UNHCR’s investigation expanded beyond what had actually been complained about.

The Tribunal found that certain matters were investigated despite there being no formal complaint covering them, and that the process expanded into other possible forms of misconduct.

The Tribunal considered the absence of a complaint so fundamental for certain findings that it held that, for those matters, there could be neither a lawful investigation nor sanction and that the process concerning them was void. This raises the danger of investigative mission creep: eventually the staff member finds themselves defending a case materially different from the one that triggered the investigation.

7. Language safeguards failed and the investigator effectively became interpreter and investigator.

Spanish-speaking witnesses were not properly informed of their right to neutral interpretation. The Applicant specifically requested Spanish interpretation and was denied it despite demonstrated language difficulties. 

Even worse, the Tribunal found that an investigator acting in the linguistic process helped guide a witness toward terminology such as “rubbing movement.” The Tribunal concluded that this intervention weakened confidence in both the neutrality and accuracy of the interview record. 

8. The credibility assessment itself was defective.

The IGO investigators essentially reasoned that the complainant was credible because she was sober and had no reason to lie. The Tribunal expressly found that reasoning insufficient. 

Credibility is supposed to involve inconsistencies, corroboration, ability to recollect, inherent probability, bias or motive and objective evidence and not the common investigative shortcut: “I believe the witness”.

9. The safeguards after the investigation failed too.

The decision-maker had authority to seek additional information, return the case for further investigation and correct procedural deficiencies. None of that happened. Instead, according to the Tribunal, the decision-maker rubber-stamped the investigative conclusions, meaning that the defects in the investigation contaminated the disciplinary decision itself. 

And the Tribunal later observes that safeguards existed but “did not function” because the investigator’s record was not thoroughly checked by the supervisor, disciplinary decision-maker or Respondent’s counsel. Had somebody compared the transcripts with the audio, the alterations would have been discovered. 

Given the gravity of what it uncovered, Judge Ghita took the exceptional step of referring the entire investigative team itself for accountability.

“312. In accordance with art. 10.8 of the Statute of the Dispute Tribunal, the Tribunal will refer for accountability to the United Nations High Commissioner for Refugees the persons responsible, amongst them the author/s of the investigation report, which is not clear from the report itself, and the entire investigative team designated in the case for the deficiencies mentioned in the present Judgment. This includes (conducting an investigation without complaint/referral/report for (i) four accounts of misconduct (sexual abuse, sexual exploitation, sexual exploitation of minors, and breach of national order under staff rule 1.2(b)) and for (ii) two sets of factual circumstances concerning sexual harassment (findings number 1 and 4 of the investigation report). Also, they are referred for conducting an investigation: (a) without any preliminary assessment, (b) without the decision to start the investigation, (c) without the decision to appoint investigators, and (d) without the investigative plan for any of the five accounts of misconduct, for all the factual circumstances investigated, and (e)for their lack of search for objective evidence, and for exculpatory evidence in the case.

314. Investigator JA, in specific, is referred for accountability for (a) refusing interpreter services to the Applicant during the investigative interview when he requested to it, (b) not informing all the interviewed persons in the case that, as native Spanish speakers they were entitled to the services of a neutral interpreter during the investigation, as provided by para 81.(iv) UNHCR/AI/2019/15, for (c) presenting her colleague LN as investigator even though he signed as interpreter during Mr. AE’s testimony, and (d) a biased approach when interviewing (i) the Complainant that culminated with her altering the Complainant’s testimony as described, (ii) a biased approach during the Applicant’s interview, as she lied to him about him stating on his personnel form that he is an English native speaker and for (iii) the way the witnesses’ interviews were conducted through leading questions.

317. In the instant case, the referral is mandatory given the egregious nature of the infringement of the Applicant’s rights and the abuse of powers exercised.

318. In many jurisdictions, altering witness statements by an investigator is a criminal offense.

319. However, the Organization as a whole benefits from immunity from prosecution, and a criminal charge may be brought only if that immunity is waived.

320. As such, the only available instrument to sanction the referred facts, including those with a criminal connotation, is a referral for accountability.

321. The Tribunal stresses that the investigative team, the decision-maker in the disciplinary phase, and, later, the Respondent’s counsel are entrusted with extraordinary power over staff members. With great power comes great responsibility; that power therefore needs to be exercised in good faith and not be abused.

322. To purposely alter the declaration of the Complainant and to illegally investigate a person for offenses unrelated to the complaint and for facts not framed as misconduct, together with all the other illegalities mentioned, are extraordinary forms of abusing the respective power that had dire consequences on the Applicant.”

This is an extraordinary referral. 

The Tribunal is not criticizing a few technical errors in an otherwise sound investigation. It speaks of an “egregious” infringement of rights, “abuse of powers”, conduct with “criminal connotation”, and “extraordinary forms” of abuse by officials entrusted with “extraordinary power over staff members.”

I am not making any statement here as to whether the Applicant did or did not engage in the conduct alleged against him. That is not the point of this analysis. The point is that even a person who may have engaged in wrongdoing is entitled to an investigation that searches for the truth rather than one that helps create the evidence needed to establish it.

Now take sexual harassment out of the equation altogether. Transpose the investigative methods exposed in this judgment to a case of fraud, retaliation, abuse of authority, procurement irregularities, conflict of interest or misuse of UN resources.

An investigator fails to look for evidence that could clear the staff member. Witnesses are given the facts they are supposed to remember. Questions lead them towards the desired answer. The subject is heard only after everyone else and his answers are never properly tested. The investigation expands beyond the original allegation. And, most disturbingly here, words that were never spoken find their way into the written evidentiary record.

This is where it becomes extremely dangerous, and what has been happening for years within the United Nations and not only UNHCR.

The same investigative machinery that can legitimately uncover misconduct can, if used this way, also lead to, trap, or frame a staff member. And once that investigative report acquires the authority of an official UN document, the damage travels with it: through the disciplinary process, through administrative decisions and, potentially, through the staff member’s entire career.

For the last two decades, staff members have repeatedly alleged that OIOS and the investigative offices of UN entities can be used in both directions: to build cases against some staff members and to clear others. 

This judgment does not, by itself, prove that broader proposition, but it gives us something much harder to dismiss: a UN judge documenting, step by step, how investigative powers can be abused and how evidence can be distorted. 

And this is precisely where the so-called safeguards become problematic: the officials reviewing and ultimately acting on an investigation may simply rubber-stamp it or, as other cases have shown, may themselves be the officials who set the investigative machinery in motion in the first place, with the objective of getting rid of a staff member.

Undeniably, the UN’s investigative bodies are a system capable of producing the outcome it wants.

A system with that much power over its staff should worry everyone.

And when an investigation can be made to fit an outcome rather than the evidence, every UN staff member has reason to ask: who will investigate the investigators?