Independent judges appointed to revamp the way the United Nations reviews decisions on matters like hiring, firing, promotions and raises are accusing Secretary-General Ban Ki-moon of shielding an unhealthy culture of secrecy and trying to undermine the new system.
The U.N. Dispute Tribunal, inaugurated last July to replace a process so deteriorated that employees challenging employment decisions sometimes waited years for answers, has succeeded in shrinking a backlog of about 300 cases.
But some of the decisions issued by the tribunal contend that Mr. Ban and the highest levels of management are determined to preserve a system in which their personnel decisions remain absolute. One judge even characterised their lack of cooperation as “an attack on the rule of law.”
Diplomats, lawyers and others tracking the cases describe the U.N.'s stance on the tribunal as contradictory, if not hypocritical, given the organisation's role in promoting the rule of law globally. “The organisation has to decide from the S.G. on down whether this is an organisation that respects the rule of law or not,” said George Irving, a former president of the staff union and a lawyer who has worked on administrative cases at the U.N. for more than 30 years. “What you are witnessing essentially is a power struggle. It is all about control, who is going to control the system.”
In several instances, the U.N. has ignored a judge's orders to produce documents or have officials testify about how decisions were reached. In one case, the judge ordered the organisation to pay $20,000 in compensation for the mistreatment of a translator who questioning why he was not promoted.
“Sometimes there may be some cases of decisions which are not totally in line with what the Secretariat has been doing,” Mr. Ban said at a news conference last month. “But we will try to respect all the decisions.”
Mr. Ban and his advisers believe they have the prerogative to make decisions in some administrative matters, which has become an issue with the court, he acknowledged. He declined to discuss specific cases.
Critics suggest the Secretary-General is violating at least the spirit and possibly the letter of the rules approved by the General Assembly.
The old system was completely internal. There were no hearings, and the Secretary-General essentially served as his own judge and jury. It was deemed too slow and too haphazard to cover the needs of about 60,000 U.N. employees globally.
The new system, which the internal literature describes as “independent, professionalised, expedient, transparent and decentralised,” is run by independent judges whose decisions are binding. U.N. employees cannot sue the organisation in national courts, so the tribunal is their sole route to address grievances. New York, Geneva and Nairobi, Kenya, each have a judge, with some extras appointed to deal with the case backlog. A three-judge appeal panel will begin hearing appeals in New York on Monday.
Without the power to declare someone in contempt of court, the tribunal judges rely on the Secretariat to engage with them in good faith. But some judges believe accountability goes only so high. Part of the problem stems from the rigid hierarchy of the U.N., lawyers and other experts say. The judges were assigned an administrative rank that puts them below an assistant Secretary-General, so those who rank higher often feel that answering the tribunal is beneath them, they said.
Noting that an employee was fired despite a pending tribunal hearing, a May order from the Nairobi tribunal said that the decision ``is significant for the contempt it shows of these proceedings.'' It said that the U.N. response ``does not bode well'' for a system supposedly based on international law and due process.
“You have to look at the culture here,” Judge Michael F. Adams, an Australian judge, said at the end of his stint on the dispute panel in New York. “Someone in the position of Undersecretary-General is never confronted with the requirement that particular questions be answered.”
Adams has been notably scathing in his written decisions about the lack of due process in the tribunals. “The United Nations legal system may be an island, but it does not inhabit its own planet,” he wrote in one.
The outcomes of three appeals of Adams' rulings are being watched with particular interest to see what power the higher panel grants the tribunal.
In one case of an employee passed over for a promotion, Susan Maddox, the lawyer representing the Secretary-General, refused to produce any of the crucial documents requested or even identify the person who made the decision to refuse to cooperate. The Secretary-General, like a head of state, had to be allowed to make some decisions in private, the U.N. maintained.
Adams dismissed the idea that the Secretary-General is akin to a head of state, calling him the chief administrative officer. The tribunal is not examining whether the decision was right, he said, but whether it was arrived at in the right way.
In another case, James Wasserstrom, who now serves as the anti-corruption officer at the American Embassy in Kabul, Afghanistan, is seeking $1 million in lost wages, compensation for defamation and mental distress, plus legal expenses. He contends that he was fired from his job with the U.N. peacekeeping mission in Kosovo after reporting his suspicions of corruption. He said his mistreatment included being arrested at the border, having his house searched and having posters bearing his picture hung around the headquarters to bar his admittance.
Because he had been identified by internal investigators as a whistle-blower, he should have been protected from losing his job, he contends. But an Ethics Office investigation found no link between his allegations of corruption and his dismissal. Adams ruled that the U.N. turn over that report and the evidence behind it, but Maddox refused.
In a third case, Samer Abboud, a senior translator, said he was passed over for promotion, the victim of discrimination by Egyptian officials who dole out plum jobs to their inner circle.
Shaaban M. Shaaban, an Undersecretary-General and the most senior Egyptian official at the U.N., initially testified to the tribunal, but then refused any further dealings pending the appeal. Adams found that Shaaban's testimony lacked credibility, calling him “an unreliable witness in respect of every important issue of fact.” The judge also found that Abboud was “subjected to insult, patronising comments and retaliatory threats,” and ordered the U.N. to pay him $20,000 in compensation. The decision is under appeal. — New York Times News Service
