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Management and governance failures are among the greatest risks to the “right to a right” in the UN internal justice system

While the ongoing reform process of the UN internal justice system has brought improvements to the disposal of the backlog of cases and the addressing of new cases, it should only be seen as a first step towards granting the right of all persons under the jurisdiction of the United Nations to a fair hearing and an effective judicial remedy, which is enshrined in all major human rights instruments.

Furthermore, the large number of disputes brought before the UN internal tribunals still highlight individual failures to remedy management accountability and a continued collective failure of the implementation of an adequate governance style, for which the United Nations Organization is responsible.

Low degrees of transparency and accountability in management frustrate the UN’s enormous positive potential and are seen as serious issues, as weakness in these areas make checking and challenging the actions and decisions of the UN Administration a very complicated exercise.

A case which epitomises the mismanagement and impunity enjoyed by some senior managers in the UN justice system is the case of Derek Coggon, a UK national and an honourable staff member with 30 years service in the Organization, who wrote to UNJustice sometime ago. In 2005 he was falsely accused of the heinous crimes of sexual exploitation and abuse which, in 2008, the UN Administrative Tribunal ruled to be “wholly unfounded”.

It is in the public records of the Organization that the UN court vindicated the infringement of Mr. Coggon’s rights with one year’s net base salary of nearly US$ 100,000 and with an exceptional award of US$ 5,000 by way of costs, but it is not widely known that the SEA [sexual exploitation and sexual abuse] Team Leader in charge of the flawed investigation, who accused Mr. Coggon’s legitimate girlfriend of being “a prostitute”, was not reprimanded or held accountable. Instead she was promoted to Under Secretary-General for Human Resources Management –the Department of Management and the Office of Legal Affairs have a key responsibility in the administration of justice at the UN as they represent the Secretary-General before the UN courts.

The Member States in the General Assembly have repeatedly tried to assess what should be done to overcome the concerns expressed by victims and public opinion on the justice administration system of the UN not being accompanied by efficient checks and balances.

Some of the most significant recommendations and findings of the General Assembly show that Member States are in favour of an independent and equitable administration of justice at the UN and fostering an Organization’s culture that does not support waste, cronyism, fraud or unethical behaviour.

For instance, this year, at its 66th session, the General Assembly requested the “Secretary-General to make every effort to institutionalize good management practices in order to address the underlying factors that give rise to disputes in the workplace” (A/66/628).

Under the particular organizational asset of the UN, it is now up to the Secretary-General –and to its top advisers in the Department of Management and the Office of Legal Affairs, to really do the utmost to strengthen a professional administration and healthy management style within the internal justice system of the Organization.

However, if bad management practices that damage the Organization and its personnel are rewarded rather than sanctioned, then it is difficult to see how any kind of true justice is possible at the United Nations.

Posted in Accountability, Authority, Disciplinary/Criminal behavior, Discrimination/Ethics, Due Process, General Assembly, Human Rights, Secretary-General, UN Internal Justice Reform, UNJustice frontpages | No Comments »

Guarantee meaningful whistleblowing protection: retaliation and discrimination alleged over the termination of the employment of a Russian female staffer of UNMOVIC – the United Nations Monitoring, Verification and Inspection Commission

UNJustice expresses concern about the alleged unfair dismissal of a female UN staffer. The woman, a long experienced weapons of mass destruction inspector, has reportedly suffered retaliation and discrimination since August 2007, when she cooperated in an investigation following the embarrassing discovery of hazardous material in the New York archives of UNMOVIC – the United Nations Monitoring, Verification and Inspection Commission.

The staff member was informed that her contract would not be renewed on September 2007, a few days after the beginning of the investigations conducted by the United Nations and United States law enforcement officials.

Subsequently the woman was moved to ODA – the United Nations Office for Disarmament Affairs, where her supervisors allegedly abused their authority and discriminated against her on the grounds of her Russian nationality and because of her involvement in reporting the dangerous material.

ODA terminated her contract on 31 December 2009, citing budgetary constraints.

The UN staffer has been fighting injustice ever since.

“I immediately approached the Administration to enquire if there was any chance for me to get any other appointment or consultancy. I explained that I had just been diagnosed with a tumour and that I was in need of my UN Medical Insurance. Additionally, I explained that my daughter was in the middle of the school year and that I had paid her educational grant already. Therefore, I was unable to pay a grant back.

Secondly, I asked what I was to think about the fact that, at that point, I was the only female candidate in the UN Office for Disarmament Affairs who was fully qualified for the conversion of my contract into a permanent one.

Finally, I asked what should I do with my career. I felt I deserved an explanation of why I was being treated differently to my other former UNMOVIC colleagues and why I had been let go, given the fact that the UN Secretary-General had retained me as a part of the Organization’s institutional knowledge on disarmament.

I was told that my expertise was no longer needed and that if I objected to the termination of my employment I would not be given my repatriation grant. Additionally, an official of the ODA clarified that I was not sent for training and business trips because it was useless to invest in Russian nationals. I was told that I should go and work for communists since my parents worked for the communist regime.

I was shocked. I called the administrative officer to ask her whether I could be considered for conversion to a permanent contract. But I was told that I was not qualified and therefore I was not included in the list of such potential candidates. However, I have since found out that three of my UNMOVIC colleagues obtained such a conversion although they were over the 53 years old rule established by the UN Secretary-General. Therefore, I was clearly being discriminated against.

I approached the Office of Staff Legal Assistance, OSLA, for support and their first advice was to go to the Ethics Office. I got an appointment with the Ethics Office, explained my story and I was told to listen to their advice and drop pursuing my case right away or to go back to OSLA since the whole matter was not a concern of the Ethics Office. OSLA, at the last minute, was unable to provide me with legal support; I was in need of a private counsel.

My health situation was deteriorating due to the cancer and therefore I was concentrating on taking care of my health and was unable to petition the UN tribunals. It is only now, after two years of surgery, radiation treatment and hormonal therapy that I feel that I am strong enough to file my case.

During these past two years, the pain of being treated unfairly in the UN was much stronger than the pain I was feeling because of my cancer. I could never forget the words the Senior Human Resources Officer of the UN Secretariat told me: «You can get financial compensation for mistreatment in the UN but you could never count on getting a job with the UN again». I would like to try to obtain justice in my case even if I have a limited life expectancy”, the UN staffer courageously told us.

UNJustice hopes that the UN internal tribunals will be able to resolve the disputes involved in this case efficiently and in accordance with the relevant laws and fair play standards.

UNJustice recalls that meaningful whistleblowing protection and accessible legal representation are fundamental safeguards to protect the most defenceless categories of UN personnel in their dealings with the Administration.

UNJustice is deeply concerned that, more than two years after the inception of reforms to the Organization’s justice system, the situation for UN whistleblowers has shown no signs of improving and they continue to face retaliation and harassment on a regular basis.

Please take action to urge the UN Administration to guarantee meaningful recourse against retaliation to all its staff, and in particular to ensure an impartial and thorough investigation into the allegations by the weapons of mass destruction inspector, including into the possible involvement of supervisors and other UN officials.  

Posted in Accountability, Appointment/Renewal/Vacancies, Discrimination/Ethics, Human Rights, Termination of appointment, UNJustice initiatives, Whistleblowers/Retailiation | No Comments »

UNODC: Dr. Walter Gehr

UNJustice expresses deep concern regarding information received about Dr. Walter Gehr, a highly-esteemed lawyer currently serving as Senior Legal Advisor in the Terrorism Prevention Branch at the UNODC - the United Nations Office on Drugs and Crime in Vienna.

Dr. Gehr has reportedly been the victim of a hostile working environment and consequently marginalized by his supervisors. A lack of transparency in the decision-making process, abuse of power and unfair reclassification of post are at the heart of much of the concern and dissatisfaction expressed to us regarding this case.

Grave concern is also expressed that the Administration did not follow up on Dr. Gehr’s report of misconduct, and the Ethics Office did not reply for ten months to his allegations of retaliation.

According to information on this case, UNODC unjustifiably attempted to stop Dr. Gehr from exercising his right to rebuttal with regard to assessment of his work by his supervisors and delayed the process of rebuttal for more than 18 months.

This is especially troubling since, on 18 October 2011, the UNDT ruled in favour of Dr. Gehr by finding that the classification process and decision regarding his post “are unlawful and the application must succeed”.

A recent report by the United Nations Joint Inspection Unit, Review of Management and Administration in the UNODC, had already highlighted a number of problematic issues with the organizational restructuring of the Office:

“The Inspectors also received comments from staff expressing concerns on a constant restructuring pattern at UNODC. The reasons for organizational restructuring are not always obvious for staff and not clearly communicated to them. Some interviewees strongly questioned the rationale for the administrative changes, stressing their impression of the realization of a personal agenda above the organization’s benefit, in some cases”, JIU/REP/2010/10 - para. 67.

UNJustice regrets that this case was brought to the attention of several bodies of the informal justice system of the Organization, but it has not been possible to find a solution and the dispute is now pending before the UN Tribunals in multiple proceedings.

UNJustice notes that every employer should ensure fair and favourable conditions of work to all its employees, without discrimination.

Therefore, in accordance with human rights standards, UNJustice calls on the UN Administration to properly investigate and adjudicate Dr. Gehr’s complaints as it should as a model employer.

Please take action to demand that the United Nations Organization issues the instructions necessary to guarantee that all complaints of harassment and retaliation by UN personnel are fairly investigated and adjudicated, included that made by Dr. Walter Gehr of UNODC.

Posted in Accountability, Appointment/Renewal/Vacancies, Discrimination/Ethics, Promotion/Posts, UNJustice initiatives, Whistleblowers/Retailiation | No Comments »

Sad fact that death of a UN-WFP pilot triggers ugly dispute over insurance coverage

UNJustice is saddened to know about the quarrel over the tragic loss of Michael Allan Prior, a UN-WFP pilot from South-Africa.

UNJustice hopes that the relevant UN-WFP authorities will give effective attention to the serious concerns of the widow, Mrs. Sheila Prior, and resolve this sensitive matter.

Mr. Prior, 52 years old, was found dead in bed in his hotel room in Surkhet, Nepal, on 23 March 2010. The day after, the autopsy conducted at Kathmandu Autopsy Center, Department of Forensic Medicine, concluded that the cause of death was coronary atherosclerotic heart disease. A disease which has many risk factors, including stress.

Michael Allen Prior has deserved recognition for his work and it has included a thoughtful letter of condolence to Mrs. Prior from UN-WFP Executive-Director:

“Mike joined WFP’s efforts to combat hunger in March 2005 as a Consultant and served WFP in different challenging duty stations including Chad and Sudan. Mike joined WFP Nepal in September 2008 and continued to serve WFP with great dedication and steadfastness.

Colleagues who knew him personally, fondly remember him as a caring and compassionate human being, with a winning, sincere smile. He was always ready to help others, and was an incredible source of comfort and strength to his colleagues. He will be truly missed by the WFP,” Josette Sheeran wrote.

Mrs. Prior, who is 60 and unemployed, has told UNJustice of her devastation at her husband’s death and she feels that she has been let down by the UN-WFP:

“I had a stroke the day UN-WFP informed me over the phone that Mike had passed away. UN-WFP gave me another blow when Mike’s belongings were delivered in ugly bags made of coarse cloth, it looked like a refugee’s belonging being sent back to his country delivered by a courier company.

I was not paid any life cover and I will lose everything Mike and I worked for, even the roof over my head. I tried everything to have an explanation, even their Facebook page, where I approached UN-WFP Executive-Director and received a comment from her that Office of Human Resources is the right place to go. But the Office of Human Resources is not responding to me anymore. They threatened to block me if I sent other messages to their Facebook page, and finally they did.

I was told that my late husband’s contract was from 4 July 2009 to 3 January 2010, and that it was extended. But UN-WFP Legal Department did not give me any proof of an extended contract. I fear that Mike was working for UN-WFP without a signed contract when he died in March 2010. Without a signed contract how can I know if Mike had applied for the voluntary life cover? It is their word against a dead man’s word.

I also have a medical report stating that when Mike started to work with the UN-WFP, in 2005, his heart was healthy. Then he went to Chad, Sudan and Nepal where, in November 2008, he collapsed on duty at the airport next to a UN Helicopter. The Chief Pilot gave Mike cardiopulmonary resuscitation for 1 hour and 15 minutes and saved him. The stress of his work and living in those places have injured his health. Mike’s heart problems showed in the autopsy are similar to those mentioned in the medical report after his collapse on duty in November 2008 –the electrocardiogram strip was classified abnormal, it showed left atrial enlargement and left ventricular hypertrophy. If this would have happened home, we would have done everything to find out what was wrong with Mike. Any employer that had an employee almost dead for over an hour will know that there is a serious health problem with that employee. After the 2008 accident my husband should have already been sent back home”, says Sheila Prior.

UNJustice is embittered to know that, on 11 October 2011, an officer in the UN-WFP Legal Department has responded to the widow’s concerns by saying “Dear Ms. Prior, As you know, WFP has already reviewed these issues and provided extensive responses to you and to your representatives. We have nothing further to add. Thank you.”

UNJustice recalls that any allegedly work-related injury is a serious matter of concern. UNJustice believes that and Mrs. Prior bitter disappointment should not be indifferent to the UN-WFP and calls on the UN-WFP to give an adequate answer to the multiple, excruciating questions raised by Mrs. Prior about the employment with the UN-WFP of her late husband.

Please take action to demand that the UN-WFP issues the instructions necessary to adequately consider the concerns of late UN-WFP pilot Michael Allan Prior’s widow, Mrs. Sheila Prior.

Posted in Death, Health/Social Security, Security of staff, UN Field Missions, UNJustice initiatives | No Comments »

United Nations internal justice system: time for the UN Administration to deliver real reform

More than 24 months after of Secretary-General’s historic launch of a two-tier judicial system which “will enable us to deal with internal disputes more quickly, fairly and transparently”, many UN personnel and international affairs experts still have little confidence in the Organization to deliver justice and an administration they can trust.

As outlined in complaints filed by UN personnel, the Ethics Office, the Mediation Division, the Management Evaluation Unit, the Office of Staff Legal Assistance, the Administrative Law Section, the Dispute and Appeals Tribunals are at risk of becoming the latest in a long line of failed internal mechanisms putatively aimed at securing justice and respect for the rule of law in the United Nations.

While public opinion has been strong asking the Organization to signal that it is serious about meaningful reform, the UN Administration has often used pressure to ensure a fair system of administration of justice never would exist.

Taking a fair system of administration of justice at the United Nations off the UN Secretariat agenda has reinforced a sense among abusers that they can act as they wish with no risk of punishment.

How, one may ask, could so much contradiction entered into this reform process? Were the officials who made the pledge of a new, transparent and accountable administration of justice at the United Nations so double-faced that they cared only for expediency?

The truth is that for decades the internal laws of the Organization have been administered for mostly power ends with few protections of the rights of individuals to a fair trial, and managers have enjoyed impunity as many portray accountability a “luxury” the United Nations cannot afford.

The challenges in remedying the situation are now enormous. Nevertheless, it is difficult to deny that building a UN internal justice system under which all are equal under the law is a legal obligation of the United Nations and a fundamental part of its success and credibility.

At the time of writing this article, UNJustice has received this letter from a US female UN staff member who says:

“In my capacity of gender focal point, I advised a local staff member -as to relevant UN procedures and policy, who alleged she was being sexually harassed by my direct boss. What followed can only be described as a two year witch hunt and mobbing against me.

My ex-boss was subsequently transferred, but not before he had me investigated and had half of the local staff write false statements against me. His close friends -the rest of the senior management group, remained and continued to harass me. A replacement was then brought in and that retaliation continued, not only against me. In fact the replacement harassed and bullied two other staff at the same time and had two separate cases pending against her at the UNDT at the time of her appointment as regional Ombudswoman! This is the new system of justice and this is the kind of people they are appointing in those roles.

I complained, but despite repeated requests, I have never seen the report of the OIOS investigation and was told that I was not entitled to it -although it was I who requested it.

I have now dropped the case and my job as I did not want to return to my post to work with the same group with whom I had so much trouble and I was not offered anything else -despite the UNDT judge’s suggestion that another suitable post be found.

Instead I was offered 10,000 more USD from the UN Administration if I withdrew my Appendix D claim (workers injury compensation). When I orally informed the Appendix D unit in NYHQ of that fact, they told me I should immediately report it to the ethics committee, obviously they must be new to the UN.

Since the Office of Staff Legal Assistance withdrew legal assistance from me and I had no more money for legal defense, and since I am a single mother and felt that in order to preserve my health I could not return to the same abusive work situation in which I was mobbed, I felt I had no other choice but to settle for what has now amounted to about 85,000USD (which includes the relocation grant of 15,000), which by the way I have not even received yet -thus they are now in breach of the separation agreement, which stipulated six weeks for receipt of the funds.

The UN was really like a vocation for me -I wanted to serve the vulnerable and I did not even know what my salary would be when I joined to go an a mission, and nor did I care. I would have gone for free. But the internal workings of the Organization do not, in my opinion, in large part correspond at all to the values it was founded upon or the values it is meant to represent. This was a huge disappointment for me. I felt that I could not remain true to myself and remain a staff member any longer. I had hope at the beginning of this whole legal process that the truth would out and that the system would come through in the end for me -but I was very, sadly mistaken, it simply pandered to those higher up in the hierarchy, irrespective of what was right or fair or good.”

UNJustice believes that for the administrators of an Organization which rightly claims that «Rule of law is a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced, independently adjudicated and consistent with human rights norms and standards*» this and others staff members’ fate should have been a matter of more urgent concern.

*Guidance Note of the Secretary-General: United Nations Approach to Rule of Law Assistance, 14 April 2008

Posted in Accountability, Mediation/Ombudsman, OIOS, Separation from service, UN Field Missions, UNJustice frontpages | No Comments »

For seventeen years “OIOS has constantly declined to release to me, the complainant, the investigative report for my Case No. 0001/94”

UNJustice hopes that the United Nations Administration will release without delay the investigative report by OIOS –the internal oversight body of the United Nations, concerning the complaints by Ms. Farida Burtis, a former female staff member of the UN Department of Public Information.

The case number assigned to it –Case No. 0001/94, suggests this was the first OIOS investigation case after OIOS was established in 1994.

For nearly twenty years Burtis, a US national, has been seeking justice, but in vain.

“I tried to obtain justice through the UN Administrative Tribunal, but it  was not competent, because I was a former UN staff member. My then lawyer later filed a tort claim with the UN Tort Claims Board, but that board itself never rendered a decision: instead the UN Office of Legal Affairs intervened saying the UN Tort Claims Board was not that organized to deal with my case. Since I did not have a competent legal forum I then asked the Secretary General to waive immunity so that US courts could hear my case. Immunity was not waived, and US courts could not proceed without such waiver of immunity. For my efforts to seek justice, I was cast in the role of whistleblower and successful attempts were made to inflict injury to me and seek my disappearance. The then US Ambassador for UN Reform wrote to the OIOS asking to reconsider its decision not to provide me with a copy of their investigative report. OIOS has constantly declined to release the report saying that it is confidential but if the released to me, it could provide substantiation to my allegations. In essence, I have already explored all possible ways to obtain justice. It is a mockery of justice to deny me the investigative report for my own case for which I had requested the investigation,” says Farida Burtis.

UNJustice is alarmed to learn that according to an internal memorandum by Kofi Annan, at the time Assistant-Secretary-General for Human Resources Management, some documents were removed from the UN Official Status File of the staff member.

In the circumstances, UNJustice is worried that it might have existed two different dossiers concerning Farida Burtis: one for her personal examination and one for decision makers within the Organization. Whereas Annan’s memo lists the removal of some documents from the Official Status File of Farida Burtis, it fails to consider the harm that the removed, and allegedly adverse material, might have caused to her over the years.

UNJustice believes that transparency and accountability are the basic tenets of good governance and an independent public oversight body, such as the OIOS, should serve always the public, not a national or international administration.

UNJustice recalls that in accordance with Article 14 of the International Covenant on Civil and Political Rights:

“All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”

UNJustice believes that a failure by the UN Administration to take action on Ms Burtis’ case would demonstrate contempt for good governance principles and for fundamental human rights.

Please take action to urge the UN Administration to reconsider its decision and provide the former UN staff member with a copy of her investigative report without further delay. 

Posted in Accountability, Duties of administration, Human Rights, OIOS, Official status file/personal data, Privileges and immunities, UNJustice initiatives | No Comments »

A fair UN internal justice system must learn from its past failures

Every day we learn more about alleged violations of rights committed by UN agencies around the world.

“Nothing has changed one single bit and it won’t, if the case is not brought to mainstream attention. These people simply do not care. So I stand up for my own case, but also I stand up for others, as I feel it’s my duty as a former staff member and citizen of a donor Member State to take action and help change how justice is handled and how badly workers are treated, so bad they are unwarily sent to breathe particles of asbestos… [sic]” -Staff member of the Organization to UNJustice, November 2010-

“I am writing to you again to inform you, in regard to my kids who are enrolled in schools…hardly I am managing to fulfil their payments fees, mainly, my son who is attending the flight academy has been, stopped today, due to this financial problem, another suffering stories will appear it seems soon, any way, you will be updated with any issue of mine, I am not asking for any thing, and I will not. Just, to express my thought, on, how bad decision could create many harms, it is not fair, I am sure you agree. Hope things will change. [sic]” -Staff member of the Organization to UNJustice, December 2010-

The most significant message to be drawn from the appeals we receive in dealing with the internal justice system of the Organization, is that ultimately only the law can provide sufficient protection where unbridled power would otherwise prevail.

Some victims have the possibility of obtaining redress, but as yet in many cases allegations of violations of rights are not investigated and perpetrators enjoy impunity. When accountability does not exist or is ineffective, it can hardly be said that the rule of law prevails

Adherence to the rule of law and fulfilment of UN purposes are strictly related but, until recently, not everyone believed that proper legal accountability of UN agencies was an extraordinary opportunity.

The possibility for change took a leap forward in July 2009 with the beginning of a new system of administration of justice in the United Nations.

In the context of the reformed internal justice system of the UN, the two pillars are: the Organization’s duty to respect individual rights; and granting access to victims to effective remedy, both judicial and non-judicial.

These obligations are contained in international human rights treaties as well as in customary international law. Furthermore, the procedural right to have access to an independent court can be seen as an integral part of the right to an effective remedy.

However, on a number of levels the Organization has shown itself unwilling to live up to these obligations. Indeed, some of the steps it has taken have served to reinforce the silence around how justice is still administered within the UN system. There are several reasons for this, including a reluctance to accept that this is an area which must be governed by principles of the rule of law, and not by some odd mix of judicial discretion and political concerns.

One of the results of this is that the most vulnerable categories of UN personnel are still often ostracised in the internal justice system of the Organization to such an extent that it is a form of discrimination and effectively deprives them of their right to access to justice and obtain redress. Often, if this occurs, the whole staff member’s family may fall into poverty. Conversely, accountability, legal empowerment and an effective justice system all contribute to the Organization’s prestige.

At the dawn of 21th century, resistance to the idea that international standards should also govern the internal justice system of the Organization is somewhat at odds with historic developments and is also divorced from the Organization’s need for the legal certainty it seeks to uphold in the countries where it works around the world.

There is a vital need for the reaffirmation and development of the important mandates which the UN is entrusted with. Ensuring that every person under the jurisdiction of the Organization is integrated, without discrimination, in broader UN justice reform and have access to a transparent, effective, fair and equitable justice system through which they can enforce and protect their rights will result in a stronger Organization, as well as a better fulfilment of international human rights standards and UN commitments.

Posted in Accountability, Human Rights, Secretary-General, UN Charter, UN Internal Justice Reform, UNJustice frontpages | 2 Comments »

Act of Frustration -Any UNGA member listening?-

Those who have had occasion during the past 12+ months dealing with the UN Internal Justice system and also those observant world media have earlier spoken more than once a number of internal contradictions and flaws in the making and now functioning of the so called reformed system.

Anyone listened to Judge Courtial (current President of the UNAT) + two of his colleagues at the public hearing on 29 Oct 2010 knows something is definitely wrong. These honourable judges are so wonderful and graceful to make any public complaints. And, yet they feel so frustrated that their independence (at least functional independence)has been deliberately curtailed by sheer lack of both men and material resources + judicial under-capacity. Also announced that Judge Boyko would be leaving for “personal reasons”.

It is one thing to talk about reform, but it makes no sense if sufficient resources are NOT provided and/or if there are no professional ethics and integrity within the UN bureaucracy to make the reform real, meaningful, timely and accessible.

For someone who worked in the system for some years, it has always been clear that there are a number of remediable injustices happening at the work place, that can be addressed efficiently, with little or no loss or damage to the integrity of the organisation and the staff members.

The big black hole in the system is the absence of good leadership at the top and at every important divisional heads. Right now, the system knows the price of everything, but “values” of nothing.

So, the independence and impartiality of the justice system will continue to suffer despite the cosmetic make-up. Any UNGA member listening?

This post was submitted by V.Muthuswami.

Posted in UN Internal Justice Reform | No Comments »

UN General Assembly should not forget that justice is a basic need

The United Nations has fundamental universal human rights to respect, promote and fulfil. These human rights include the right for everyone in its jurisdiction to be entitled to a fair and public hearing by an independent and impartial tribunal, without discrimination.
Providing access to justice to all categories of UN personnel and ensuring the adjudication of all questions of non-contractual liability for damages arising out of the Organization’s administrative or executive activities, is not only an Organization’s legal duty, but of paramount importance to enhance and maintain the efficiency, legitimacy and moral leadership of the UN.

Through the years, while the system of internal justice in place at the UN for half-century has proved to be inadequate to these ends, the Organization and its Member States have discussed and adopted measures to strengthen the implementation of a system of internal justice which adheres to the fundamental principles of the rule of law and fairness for all.

However, in spite of broad recognition that progress has been made with the recent establishment of a new two-tier judicial system, much remains to be done.

The work of the United Nations General Assembly at its current sixty-fifth session is an important opportunity for all actors to enhance the values of equality and non-discrimination and to renew the commitment to a fair system of internal justice in the United Nations.

We hope that the General Assembly will put principles into practice and take five actions:

1. Ensure independence and impartiality. This require action to ensure that the offices entrusted with the administration of the internal justice are granted the necessary resources for their task and they are not fettered by influence from the Organization’s executive bodies that may lead to unfair decisions. In particular, the Office of Staff Legal Assistance, the Administrative Law Section and the Management Evaluation Unit should exercise their functions without real or perceived influence by the Office of Human Resources Management.

2. Provide equal access to justice. This requires action, aimed at ending discrimination, that removes any barriers in accessing justice, and that provides effective remedies for all victims of violations of individual rights regardless of their contractual status with the Organization.

3. Improve accountability. This requires to effectively apply the relevant provisions of responsibility against individual decision-makers. Impunity is not only denial of justice to the victims, but also reinforcement of prevailing inequalities that affect the lowest-ranking personnel of the Organization.

4. Avoid conflict of interest. This requires action to develop the necessary safeguards for the exercise of the executive and judicial powers in the Organization. It is particularly important, indeed vital, for the functioning of the internal justice system of the Organization in accordance with the fundamental principles of rule of law and fairness that the UN Administration does not act as a judge in its own cause.

5. Promote informal resolution of disputes. This requires action to strengthen a non-confrontational approach to disputes, and to enable the Organization’s most disadvantaged employees to participate meaningfully in the informal resolution process.

Posted in Discrimination/Ethics, Duties of administration, Equality, Human Rights, Mediation/Ombudsman, Personnel other than staff members, Privileges and immunities, Secretary-General, UN Charter, UN Internal Justice Reform, UN Internal Justice Tribunals, UNJustice frontpages | 1 Comment »

Whither Justice? - Part II

In the open letter of 14 Sept 2010 (under the above subject), the UN Member States attending the UNGA 65th annual session (2010) are called upon to be vigilant, to analyse carefully and honestly to see how the reformed justice system works (or has worked for the past 12+ months), with the fervent hope that the member states in their wisdom will consider such steps as necessary to make it truly independent, transparent and accountable, totally detached from (and truly independent of) the UN bureaucracy.

The big UN Bureaucracy has prepared the usual sets of documents (see blow) to advise the Member countries of achievements of the reformed internal justice system in its first year of existence.

1. UNGA A/65/86 of 15 June 2010 - Code of conduct of UN Internal Judges
2. UNGA A/65/304 of 10 Aug 2010 on the administration of internal justice
3. UNGA A/65/373 of 16 Sept 2010 Sec Gen Report on the internal justice system.

The above three documents written over 110 pages and translated into as many UN languages are available to read and spend one’s valuable (irreplaceable resource called) time. May I invite your bloggers/readers to tell if anything useful and tangible seen in these papers aside from the self-fulfilling rituals repeated ad nausea.

The following is quoted from the Press Release of 6 Oct 2010 on the 4th and 5th meeting of the UN GA Sixth Committee (dealing with legal issues) related to the functioning of the reformed UN Internal Justice System:

“…………..The rules of conduct for judges in the new two-tier system of administration of justice at the United Nations were based on the seven core principles to be followed by all judges in performing their duties, …
The seven core principles were/are independence, impartiality, integrity, propriety, transparency, fairness in conducting judicial proceedings, and competence and diligence. Apart from being aimed at securing the independence of the two Tribunals, for Disputes and for Appeals, the principles were intended to ensure judicial accountability as a facet of judiciary independence.
Speaking for the European Union, Belgium’s delegate hailed the new system as a “significant collective achievement” in that it was independent, transparent, professionalized and decentralized. He said the success of the system would depend on its independence and efficiency so that adequate financial support should be devoted to its various parts, including the Management Evaluation Unit, the Office of Staff Legal Assistance and the two Tribunals.
Echoing that view, Ghana’s representative said “justice is not cheap, it is no charity business”. The quality of justice expected of the new system, he continued, would not only turn on the expertise and experience of professionals, but also on ensuring that adequate resources were made available to sustain the system. Further, to ensure a reasonable balance between effectiveness and efficiency, the new system would call for the introduction of rigorous standards to weed out the frivolous cases that could overwhelm the system if not checked. …”

It is not surprising what these delegates had to say, betraying their ignorance of what these seven core principles would and should really mean. They seem least concerned of whatever happens and go about the usual business while in NY during nicer months of the year! Even the EU delegate seemed forgotten its own valuable international standards for the independence and impartiality of justice. Don’t worry, be happy with incremental improvements of justice package! What has happened is just lavishing tax payers money on such a badly thought and refurbished system. Let’s see how long it can keep its sheen.

So long as the so called reformed UN Internal Justice is allowed to function as another department or division of the big UN Bureaucracy, so long as its HRM is involved in the fishing, screening and selection of the judges, who are then injudiciously compared to the levels of the “upper middle class” D2 bureaucrats, justice is just another product custom-made for the paymasters’ specs.

What is still surprising is that none of the so called intellectuals of the UNGA super-power member states did bother to question why it is not possible to bring the UN Internal Justice under the independent umbrella of say, the UN International Court of Justice at The Hague, with independent admin and budget infra-structures, totally detached – legally, physically, emotionally, intellectually and spiritually - from the negative politicking and the Brahminical superior air of ego-centric arrogance blowing out of the East River in Manhattan.

Take it or leave it – in the 21st century world where most critical and important destiny-changing decisions are often considered outside of the UNGA platform, e.g. G20 conclave, UNGA circus will continue its routine debates without end and its bureaucrats, adept in twisting and tweeting, can continue their lives of fun and frolic. What is justice? After all, it can be easily made to order or bought with discounts during seasonal sale!

Jai Ho!

This post was submitted by V.Muthuswami.

Posted in UN Internal Justice Reform | No Comments »

US courts chip away at the crumbling edifice of legal immunity*

One of the most intriguing fictions about legal immunities exercised by international organizations is the pretence that they benefit anyone. In a very small and select set of cases, legal immunities may have a genuine policy basis. But in the vast majority of instances in which they are asserted, their existence is positively harmful both for the organization itself and for those who work for it or with it.

This point has recently been emphasized in a new decision of the Court of Appeals for the Third Circuit, a Federal Court sitting in Philadelphia, PA. In OSS Nokalva Inc v European State Agency [ESA], judgment handed down on August 16, 2010, an assertion of immunity by the ESA was rejected when it was sued by a commercial supplier of computer software. The ESA, it alleged, had distributed this software to third parties contrary to the terms of the software license.

This is one of just a handful of reported cases worldwide in which the immunity of an international organization has been refused. It is worth discussion, because it resolves a contentious point of US immunity law and may also suggests a range of legal arguments that may make it easier to challenge the immunity of international organizations in the future.

In its ruling the Court recognized the obvious point that if an international organization cannot be sued, that harms the organization itself.

Imagine the position of the proprietor of a window cleaning business. She receives a telephone call one day from the office manager of an international organization, which needs a contract to have its windows cleaned. She knows that no contract she enters into with the organization is worth the paper it is written on, because it cannot be enforced in court. Therefore she will not be prepared to extend the organization credit. Every piece of work will need to be paid for in advance, and she will not give a discount for an advance bulk commitment, because the organization can later resile from the commitment without consequences. Alternatively the business proprietor may add a risk premium to her contract price to take into account the fact that her debt may not be enforceable, just as a bank increases the interest rate for loans to people with poor credit history.

Economics highlights the importance of the ability to make credible commitments as a tool to realize the surpluses created by cooperation. Rule of law experts who work within international organizations emphasize this point around the world when arguing for legal reforms to include development of effective contract law. Yet the principle applies as much to international organizations themselves.

This analysis was acknowledged by the Third Circuit Court when it had to decide upon a provision of the International Organizations Immunities Act 1945. That statute provides that international organizations have the same immunities under US law as do foreign sovereign states. However, at the time the statute was enacted, the law of foreign sovereign immunity was in a state of flux. Under the 1952 “Tate doctrine”, where a foreign state was sued in a US court, the court would defer to the opinion of the State Department as to whether immunity ought to be upheld. This doctrine was unsatisfactory because it infringed upon the doctrine of separation of powers: a decision of the executive branch should not be relevant to how the court construes its jurisdiction. Thus in 1976 Congress enacted the Foreign Sovereign Immunities Act, which set out general rules for when a state would be immune from suit and when it would not. The general rule in that legislation was a sensible one: states would be immune for acts performed in their capacity as sovereigns, but not for acts considered commercial in character.

This distinction is common sense. Some acts can be performed only by states in their capacity as states: for example, passing legislation, or making judicial decisions. It would make a mockery of the Westphalian system if the sovereign acts of one state, such as its legislative procedures, were subject to review in the courts of another. But there are other acts equally within the realm of states and private persons alike. Where a state runs a business, or enters into a commercial contract to have the windows of its government building cleaned, these are not acts unique to a sovereign; they are the sorts of things a private person can do too. Therefore legal immunity ought not to apply.

The question for the Third Circuit was whether the European State Agency benefits only from this qualified immunity – which would not cover the commercial contract under which it was sued – or whether it could profit from absolute immunity. The ESA’s argument was that in 1945, when the International Organizations Immunities Act became law, the doctrine of qualified immunity – embodied in the 1976 Act – did not exist. The 1945 Act referred to immunities of states existing then, which were absolute. That the law on sovereign immunity had developed since 1945 did not mean the law on international organizations’ immunities had done the same. The 1945 set a standard of absolute immunity in stone that could not be eroded by the passage of time or subsequent development of the law.

The Court rightly rejected this abstract analysis. The argument for qualified immunity, it noted, is to the benefit of international organizations themselves as much as it is for states, because it facilitates commercial transactions as much as a law on absolute immunity hinders them. Of course in any individual case, when sued, an international organization will want to assert immunity. But over the course of multiple transactions it will not benefit them, because it will subject them to the proverbial rip-off. In an indefinite repeat-play game, immunity is a convenient assertion in individual cases but a poor rule. Good policy suggests that the 1976 Act should apply to international organizations as much as to sovereigns.

The Court’s decision is potentially subject to further appeal, perhaps as far as the US Supreme Court. But it reveals an exciting range of new legal arguments for people who want to sue international organizations. Most of the people who want to do so are aggrieved employees, subjected to egregious and unfair employment practices unfortunately common to international organizations. Nevertheless, employees feel that the internal justice procedures established by those organizations themselves seldom do justice to their complaints, because they serve as Star Chambers who act principally in the interests of the employers who fund them.

If immunity does not serve the best interests of international organizations in their commercial relationships, it is not clear that it serves the interests of those organizations in their employment relationships either. The lack of access to a genuine independent tribunal for either employer or employee leaves the employment relationship with international civil servants uncomfortably barren of legal regulation. Where employees can be treated arbitrarily, international organizations will acquire reputations as poor places to work, and will cease to attract the best staff. Employees may become unprofessional, knowing that neither they nor their employer are subject to legal accountability for the way they behave. Legal immunity in the employment relationship encourages an insidious lack of professionalism which it is incumbent on all responsible institutions and their employees to fight. The logic of the Court’s position on immunities for commercial contracts applies with even greater force to employment relationships, simply because there are far more employees than commercial contractors and thus the cumulative effect is all the greater.

Finally, the Court made the following point. If states individually do not benefit from absolute immunity, how can it be that collections of states by international treaty can create and act through organizations that do have absolute immunity? To allow that would render it trivially easy for states to evade their domestic and legal obligations, in an era in which we aspire to hold states ever more accountable to legal standards. Asserting the immunity of international organizations runs contrary to the prevailing winds of international law. It is pleasing to see judicial recognition of a logic that scholars have appreciated for some time. The days of absolute immunity for international organizations are surely numbered.

*By Matthew Parish for UNJustice

The author is an international lawyer based in Geneva. He formerly worked in the legal departments of the World Bank and the Office of the High Representative of Bosnia and Herzegovina, and clerked at the European Court of Justice. Matthew’s book on international law and international courts, Mirages of International Justice: The Elusive Pursuit of a Transnational Legal Order, will be published by Edward Elgar in early 2011.

Posted in Accountability, Legal principles, Privileges and immunities, Rights and duties of staff members, UN Internal Justice Tribunals, UNJustice frontpages | 1 Comment »

Quality of Jurisprudence: UNDT vs UNAT;

Now that both the judicial entities have survived the first year of existence, and both the tribunals have rendered so many kinds of judgements and orders, one is tempted to compare their judicial erudition, quality of jurisprudence, consistency and competence in analyzing many different and complex cases/appeals, and finally the professional integrity (based on international standards for independence and impartiality of the judges). The pass-mark may be given to the UNDT panel of judges, based on functioning and its quality of analysis and evaluating the reasonableness of disputes/complaints based on published judgements/orders.

UNAT has completed two sessions - none in 2009; one Geneva in March 2010 and one session June/July 2010 in NY. It seemed that this outfit had to take extra long time to come up with the written judgements, but somehow never forget to leave a taste of “failed justice” and they seem to function under some kind of duress called politico-bureaucratic nexus.

Hope the UN GA (especially those active member counties whose delegates do not succumb to some form of allurements of the all powerful bureaucrats) who are the super-boss of the refurbished internal justice system do not fail to make necessary amends before long. Lest, the whole thing becomes a mockery and another waste of global tax-payers money.

This post was submitted by V.Muthuswami.

Posted in UN Internal Justice Tribunals | No Comments »

Whither Justice?

OPEN LETTER TO UN MEMBER STATE MISSIONS IN NY WHO ARE COMMITTED TO DO SERIOUS HONEST BUSINESS DURING UN CURRENT SESSION – SEPTEMBER/DECEMBER 2010

Respected UN Members:

As an UN retiree and long time social worker and human rights activist, may I invite you to the various articles and write-ups in the Washington Post, NY Times, independent websites like www.unpo.st and www.unjustice.org drawing attention to the flaws in the so called reformed/refurbished UN Internal Justice system milled thru UN general assembly line over several years and finally came into effect 1 July 2009.

What is so obvious can be said in simple terms: the system has been designed to deliver “judgements” to suit the UN’s big fat bureaucracy and its never satisfying ego, and not true and real “justice” as defined by the EU in its famous document titled “Independence & Impartiality of Justice – International Standards” compiled by Judge Cristi Danilet of Romania (cdanilet@just.ro)(available on the Internet).

For example, a number of UN retirees, at the initiative of those living in India, USA and Canada, raised some fundamental issues relating to the equity and fairness in regard to pension payments for those who received a certain portion of the pension as advance payments and accepted reduction in their normal pension.

Though this advance payment gets fully recovered in say 11-13 years time, with sumptuous interest, the UNJSPF has denied restoring normal full pension after the recovery period, quoting all kind of rules none of which seem to have sanctioned this illegal practice. (In this connection, commuted pension is not unlike Life Insurance Policy. In a landmark Ruling against Sun Life Assurance, the Canadian Court ruled that the continued collection of premium even after the amount of the assured sum had been collected, was UNCONSCIONABLE). Since the whole UN system and its bureaucrats are given immunity for their omissions and commissions and enjoy total absence of any legal accountability, they are beyond any judicial scrutiny in any national courts.

Our common cause appeal # UNAT 2009-001 was languishing for months in the UNAT dockets before being heard in 22 June 2010, which turned out to be a mere formality, and pronounced as “dismissed” on 1 July 2010. Again it took weeks to cook up and write incoherent judgement that was sent to us on 18 August 2010. Though we have now appealed for review, it will probably meet with the same fate of months of delay, but no “justice”. (Full details of our appeal # UNAT 2009-001, the socalled judgement # 2010-UNAT-034 and our application for review OF ALL THE INCONSISTENCIES AND ERRORS are all open documentation (as far as we are concerned) and we are pleased to share with your Mission in case you are unable to obtain them from the UN bureaucracy!)

We are now convinced that the whole UN Internal Justice System is driven by the big fat ego-centric UN bureaucrats who expect the system incl judges are to behave and do what they want them to do (one who pays the piper calls the tune!). Thanks to UNGA short-sightedness or lack of vision and leadership, or all together, the same bureaucrats are allowed to get involved as per UN GA Res. 62/288 (Para 37 a) in the liaison, selection, induction, orientation, manipulation and monitoring of the judges!!
It only shows that the bureaucrats are so formidable that they could buy the UNGA guys who, like many of our MPs, come and visit the world “capital” (NY) for fun, frolic and Broadway shows! Whither Justice?

As a responsible nation in the world affairs and one of the important world economic powers with long tradition for justice, I would appeal to your delegates to really look into the unjust UN Internal Justice System and see the whole system functions as per international norms and totally independently, and preferably under the aegis of the International Court of Justice at the Hague, far away from the politicised UN corridors on the East River Manhattan.

Your commitment and honesty in this direction would qualify and augment your valuable principles of the United Nations and its Security Council, which you have eminently served.

Regards, Jai Ho!

V.Muthuswami/Chennai, south India
UN Retiree & Human Rights Activist
On behalf of joint appellants of the Common Cause Appeal # UNAT 2009-001
email: vmuthuswami@yahoo.co.in

This post was submitted by V.Muthuswami.

Posted in UN Internal Justice Reform | No Comments »

Judiciary Notebook (UN Style)

Judiciary Notebook (UN Style)
Code of Conduct for the UNDT/UNAT Judges
(UN GA Document # A/65/86 of 15 June 2010)

Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality,
tied in a single garment of destiny.
Martin Luther King, Jr.

Unsurprisingly, it has taken a year or so to write/publish code of conduct for the judges working for the reformed UN Internal Justice system since it came into being on 1 July 2009. This code is now going to the General Assembly for a “routine” clearance.

The fact that the UN General Assembly that consumed months and years (with the help of UN bureaucracy) to redesign and reform the UN internal justice system and pass the statutes and rules of procedures of the UN Tribunals (both for Disputes and final Appeals), did not bother to lay down earlier than now the code of conduct for the judges in the context of the basic principles on the independence of the judiciary (endorsed by UNGA in 1985), nor did it describe the international standards for judiciary integrity. This should say something about the integrity of the whole reform exercise at the cost of global tax-payers. It should also say as to what extent the UN GA is beholden to the wishes of the executive bureaucracy!

This important task was left to the so called UN Internal Justice Council or Committee (UN IJC), again comprising of the same bureaucrats, staff representatives and other experts and friends. As we do not have the TOR of the UN IJC in this exercise, we cannot be certain of its influence or otherwise in the dispensation of justice.

Anyway, the bottom line is this: we have now finally seen the code of conduct for the UNDT & UNAT judges. Maybe, the judges are going to enjoy total freedom to do whatever necessary as long as nothing goes too far to displease their Masters in the Secretariat.

Let us therefore place on record what should be the minimum standards to ensure the true professionalism, independence, accountability and integrity of the justice system (be it internal or external). In the opinion of the writer there should be no fundamental differences between the so called internal or external justice system, if indeed “justice”, and not “judgement” is the goal of these noble efforts.

Among the various conferences, forums and committees world over who debated on the subject over decades, one can see that the European efforts to bring about international standards on the “independence and impartiality of justice” appear quite comprehensive and naturally consistent with the universal rights enshrined in the Universal Declaration of Human Rights and the Basic Principles on the Independence of the Judiciary endorsed by the UNGA as far back as 1985.

Among the many efforts, the writer finds the IFES Rule of Law White Paper Series (financed by the US Agency for International Development and edited by Keith Henderson), and the document titled “Independence and Impartiality of Justice” – International Standards – brought out 14 March 2008 by Justice Cristi Danilet of Romania (email: cdanilet@just.ro) seem enlighteningly helpful in understanding the nature, principles and practice of justice in the present day world.

GLOBAL BEST PRACTICES
JUDICIAL INTEGRITY STANDARDS AND CONSENSUS PRINCIPLES

International and regional human rights treaties recognize the right to a fair trial by an independent tribunal in the determination of rights and obligations in civil, commercial and administrative matters and in the determination of criminal charges. The right to a fair trial and its core components, including the “reasonable time” requirement and the principle of judicial independence, is now universally accepted. Building upon the declarations of principle of legally binding conventions, international and regional expert guidelines and principles have aimed at fleshing out the specific elements of judicial independence. In addition, international and regional human rights courts and commissions have interpreted the provisions of human rights treaties and shed some light on the minimum standards and components of the right to a fair trial and judicial independence.

The US-Based IFES Rule of Law White Paper Series has synthesized these various efforts into set of core, consensus principles and best practices that can be used to assess systematically the degree of independence of judiciaries worldwide: the Judicial Integrity Principles [JIP]. In designing the JIP, IFES has chosen a broad definition of the notion of “judicial integrity”. This
term covers a wide range of issues related to the independence and accountability of the judiciary, both the institution and the judges as individual decision-makers. IFES has chosen this broad definition of the notion of “judicial integrity” to emphasize the importance of balance the independence and accountability issues and to
identify in a systematic way related reforms that need to be undertaken.

This core code of conduct aims to reinforce the general principles relating to the dispensation of justice, which inter alia is highlighted below.

• Judicial independence encompasses both the personal independence of an individual magistrate in reaching a decision in the courtroom, and the autonomy and collective independence of the judiciary from other branches of government.

• Judicial accountability and efficiency.

• Community trust and confidence.

• Professionalism.

• Impartiality - All persons coming to the court are entitled to fair and equitable treatment, regardless of their personal circumstances or legal situation.

• Personal integrity – Demonstrate the highest standards of personal integrity, honesty and truthfulness in all our professional and personal dealings, avoiding the misuse of court time, equipment, supplies, or facilities for personal use.

• Uphold the dignity of the court and promote respect for the courts duty to administer justice independently impartially according to the law.

• Devoting sufficient time and effort to ascertain the truth.

What took place was that the great talk shop called UNGA delegated the responsibility of drafting the code of conduct of the judges to the so called independent body UN Justice Council. Is this council independent of influence pedalling of the executive bureaucracy? How come it was all possible to draft the statutes and rules of procedures, but not the code of conduct of the judges including how these judges are to identified, selected, screened and cleared by a kind of an objective and impartial Screening Committee of the GA consisting of member states and none of UN bureaucracy? Here below, see what the UNGA official document says without any time-frame for the code of conduct of the judge to emerge.
UN GA Document # A/64/6 (Sect.1) of 29 April 2009 -
E. Office of Administration of Justice
Para 1.109
In addition, the Office of Administration of Justice provides support to the Internal Justice Council, an independent body established by the General Assembly to identify suitable candidates to be recommended to the General Assembly for appointment as judges in the two new tribunals, to draft a code of conduct for the judges, and to provide its views to the General Assembly on the implementation of the new system of justice.

FINAL FOR NOW!

Now that we have the code of conduct of UNDT/UNAT judges (A/65/86 of 15 June 2010), waiting for UN General Assembly’s blessings, let me confine to one meaningful event witnessed by the writer on 22 June 2010 at Conference Room # 10 at the North Lawn Building of the UN HQ during the public hearing of a common cause appeal by UN Retirees. This may be related to the “transparency” and “fairness in the conduct of proceedings” (items 5 # 6 of the Annex in the UN GA Document # A/65/86):

The uncooperative attitude of the Respondent (UN Pension Fund) failing to answer fully and comprehensively to the satisfaction of not only the Appellants but also the fact that the Hon’ble Tribunal did not insist upon the Respondent’s obligation to answer all the questions and challenges posed by the Appellants could not be described as “fairness in the conduct of proceedings” nor could it termed as “the principle of open justice”. Basically, it was just a ritual or a formality of public hearing because the appellants requested for it. The result was the failure to disclose the “whole Truth” by the Respondent.
Furthermore, when the appellants raised their hands to draw the kind attention of the Hon’ble Justices and to obtain a Ruling on this open contempt, the learned Justices ignored to recognize us and closed the hearing, despite the fact that there were still twenty minutes of even the allotted 90 minutes. This may only be explained by sanctioning avoidance of duty by the Respondent, or in the least, a deliberate ignoring of that duty of the Respondent by the Hon. Judges.
Thus the incomplete hearing was accomplished without ascertaining the Whole Truth. It is therefore normal to believe that there is enough justification to question the fairness of the conduct of the proceedings in the context of OECD’s guidelines on judiciary impartiality and independence, and the global best practices for judicial integrity standards.
As the draft code of conduct talks about the “competence and diligence” requirements of the judges, why it is not possible to lay down the standards, norms and parameters by which the performance and suitability of the judges to be evaluated by an independent body consisting of competent member state representatives, not the usual bureaucrats of all shades and forms.
So long as the judiciary (internal, external or whatever) and the administration of justice are NOT totally disconnected from the UN bureaucracy and its remote control, the possibility of seeking real justice for the staff and those affected by the system can only remain as a distant dream.
****
Sources:
1. Global Best Practices – Judicial Integrity Standards and Consensus Principles - April 2004 - Edited by Keith Henderson
2. Judiciary Handbook – The Kenyan Section of the International Commission of Jurists (Model Magistrates’ Code of Conduct)
3. Independence and Impartiality of Justice – International Standards –
14 March 2008 – compiled by Cristi Danilet, Judge, Romania
(email: cdanilet@just.ro)
4. Asia Pacific Judicial Reform – Singapore Conference – January 2009
5. The Bangalore Principles of Judicial Conduct by Param Cumaraswamy (former UN Special Rapporteur on the Independence of Judges and Lawyers)
6. UN General Assembly Document # A/65/86 of 15 June 2010 – Code of Conduct for the Judges of the UNDT and UNAT – Report of the Internal Justice Council.

This post was submitted by V.Muthuswami.

Posted in UN Internal Justice Reform | No Comments »

Ahead of us: The long way forward to establishing a fair administration of justice in the United Nations

While on 1 July 2010 a new system of internal justice to resolve dispute at the United Nations has celebrated its first anniversary, several challenges need to be addressed in order for the Organization to deliver on the equality for all goal envisioned by the General Assembly and prescribed by international human rights standards.

The provision of a functional system of justice designed to resolve disputes fairly is one of the most ancient and important duties of every community. But, despite introducing wide-ranging reforms, the right to be able to access fair justice for all people under the jurisdiction of the United Nations, especially the lowest-ranking personnel, is still inadequate.

Vulnerable groups have regularly brought to our attention their complaints about the degree of discretionality from several of the Organization’s offices entrusted with the administration of internal justice, including the newly established Office of Staff Legal Assistance.

UNJustice welcomes the fact that the UN Legal Counsel, Ms Patricia O’Brien, has recently acknowledged the problems of the UN’s internal mechanisms for resolving employment disputes, announcing that no discussion regarding the rule of law and the UN would be complete without addressing the internal administration of justice system.

However, we believe that without undertaking an extensive overhaul of the governance framework of the internal justice system of the Organization, and ensuring in particular its independence, the Organization will not be able to address the longstanding and deep rooted failures by the UN to fulfil its strict legal obligations in this regard.

In particular, we are alarmed that over the past few months the credibility of the UN Administration in handling complaints against powerful UN officials to find ways to manipulate the situation for their benefit has been severely criticized by the new UN tribunals, press and civil society, who have considered the management’s response wholly inappropriate.

In this regard, UNJustice strongly condemns the decisions by lawyers representing the Secretary-General to refuse to comply with orders from the UN tribunals to hand over documents needed for resolving employment disputes.

In a national court system if a party or their lawyer refused to comply with a direct order of a judge to produce documents or information, the judge could hold the party or lawyer in contempt of court, and fine them. In the US legal system the judge could sentence the party or lawyer up to six months of prison without appeal until the party or lawyer comply with the order.

In addition, in a national court, if a court ordered a party to comply with an order to produce documents and the party refused, the lawyer would have an ethical obligation to withdraw as counsel to the party rather than to continue to assist the party to defy a direct order. If the counsels representing the Secretary-General were admitted to practice before national legal system -which is not a frequent occurrence- then they might also be subject to disciplinary sanctions from their bar associations if they continued to assist a part to defy a direct court order.

In this respect, as part of the overall accountability of the UN Administration for good governance, a predictable policy should protect the public interest and hold individual decision-makers accountable for the services they provide in matters related to the administration of justice inside the Organization.

The current UN’s defiance of the UN tribunals orders infringe the principle of “equality of arms” and therefore constitute a violation of the right to a fair hearing. UNJustice urges UN Administration to adopt a new strategic vision in the exercise of its administrative authority and to avoid repeating such measures which alienate the United Nations from the ideals on which it was founded.

Posted in Accountability, Due Process, Duties of administration, General Assembly, Human Rights, Secretary-General, UN Charter, UN Internal Justice Reform, UNJustice frontpages | 1 Comment »