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UN Performance Problems UN Management Accountability Struggles Where is the Rule of Law? Inadequate UN Oversight Recent Developments
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In two different
reports in 2000, Secretary-General Annan made two very important and
contradictory statements: "The
jurisdictional immunity of the [UN] Organization legally obligates
it to have just and effective internal processes to deal with
grievances and appeals by staff, and with disciplinary cases … [as]
an indispensable aid to maintaining staff morale, as well as
enforcing accountability. ..." "Accountability and responsibility:
Report of the Secretary-General [Kofi Annan]", A/55/270 of 3 August
2000, Summary, para. 39.
[emphasis added.] "While there is currently a comprehensive system of justice
in place, its highly formalized nature leads to protracted and lengthy
proceedings that are in the interest of neither justice nor of the staff
or management. At
present, the decision makers whose administrative decisions are questioned
are very rarely directly involved in defending the cases. This has resulted in the
perception that the system shields managers from being held accountable
for their decisions." "Human resources management
reform: Report of the Secretary-General [Kofi Annan]," UN document
A/55/253 of 1 August 2000, para. 51
[emphasis added] Subsequently, and
gradually, people at the UN are waking up once again in 2004 to the
entrenched reality of a defective UN internal justice system in an
organization which stands outside the national laws which govern the rest
of mankind. There have been a
few cosmetic changes in the past few years, mostly in providing a little
training for staff volunteers in the appeals and disciplinary processes in
the increasingly-complex matters which they become involved in, but no
substantive change. Meanwhile, however,
the UN coasts along, as it has for decades, without management
accountability, with limited oversight, and with restricted staff
rights. UN staff caught in
disputes with management continue to be intimidated, and suffer, in a
multi-year losing game in a system controlled by the Administration at
every turn, and with no right of appeal anywhere else. In
the 1970s a distinguished professor of international law, M. B. Akehurst
of the Univesity of Paris, had concluded that it was "not tenable" for an
international organization to deal with its staff "outside any known legal
system", and a group of UN system
staff representatives met to launch their first campaign to reform the UN
internal justice system. Their analysis disclosed, inter alia, the
basic facts that: "Social justice [to which international agencies are
committed] stops short for
one segment of mankind -- the international civil servant, a member of a
virtually unprotected minority. The existing system
of due process suffers from an absence of important elements: it leaves
out values. It ignores needs
… It pretends that the
'rule of law' can stand independent of the society in which an
international civil servant lives and functions. All too often, the appeals
procedure, which is conceived of as an instrument to raise a staff
member's hopes, buries it instead. … the machinery of due
process is slow and ponderous, and thus fails to provide a true safeguard
against administrative absolutism and arbitrariness …" "Appeals procedures for
international civil servants," Federation of Civil Servants Associations
(FICSA), FICSA Studies and Policies No. 2, of 1974, as quoted and discussed in Ozorio, Peter,
"Tribunal trouble: Legal rights revisited", UN Special, October
1992, pp. 25. The 1974 FICSA report
also provided a very incisive analysis of key deficiencies in the appeals
system [which remains fully applicable three decades later] inter
alia: "Appellant as Trouble-maker:
Challenging an administrative decision, no matter what, by and large, is
still regarded with suspicion … Weakness of Internal Boards: Probably [their] weakest point is
that an executive head sits as prosecutor and judge … [particularly] in smaller-sized
duty stations … Pernicious doctrine: … after all
evidence is presented and weighed and abuse or misuse of power is proved
-- and thus the administrative decision is not, as frequently claimed, "in
the best interest of the organization" -- then it is indefensible to
deprive an appellant of remedy sought. … Either/Or Judgement: When
administrators have been found guilty … [of misconduct] tribunals, without notable
exception, give an executive head a choice -- the remedy sought …(say
reinstatement) or compensation … appellants … may win their cases, but
still lose their jobs. Just Handouts or Just
Compensation: The tribunal's known practice of mendacity in cash
settlements … makes it easier for an administration to pay. But for most administrations, the
choice is not saving money, but saving face. The choice is made easier because
the 'fine' that is paid comes
out of the pocket of member governments … How are these expenses shown on
an organization's books?" "Appeals procedures for
international civil servants, Federation of Civil Servants Associations
(FICSA), FICSA Studies and Policies NO. 2, of 1974, as quoted and discussed in Ozorio, Peter,
"Tribunal trouble: Legal rights revisited", UN Special, October
1992, pp. 25-26. And in 1987 the UN's
top manager warned of the grave consequences which continuing acceptance
of the poor internal justice system could have for the UN as an
organization: "… Lamenting that 'Something
has gone very wrong with our processes', [UN
Under-Secretary-General for Administration and Management Martti
Ahtisaari] stressed that justice was not only important in itself, but was
also a basic aspect of good staff-management relations. Justice was a 'primary defense
against the buildup of feelings of arbitrariness and discrimination'
which, he warned, could undermine staff morale and 'finally destroy
an international organization however high its ideals and
purposes.'" "Staff-management meeting to discuss justice administration reform and performance reports", Secretariat News [New York], 31 August 1987, p. 5. [emphasis added] Yet in 1993, a blunt
assessment by an expert on the subject showed just how little the internal
justice situation had changed: " … it is practically impossible
for staff members to secure justice in accordance with the fundamental
principles of due process of law, fair play and impartiality in the
administration of justice. … … there is no separation of
executive and judicial powers in the United Nations and consequently OHRM
virtually acts as 'prosecutor, judge, jury and executioner' contrary to
the democratic principles and practices. … The [appeals secretariats] are
directly under the Administrative control of the USG for DAM. Similarly, the Panel of Counsel is
[also under his control] … The Office of Legal Affairs …
renders legal avice to OHRM on all appeals and disciplinary cases … and is
responsible for vigorously defending the arbitrary, discriminatory or
prejudicial administrative decisions, right or wrong, on behalf of the
Secretary-General, before [the UNAT} … Thus, for all purposes, the entire
appeals and disciplinary procedures in the United Nations virtually
constitute a 'mockery of justice.'" Mark A. Roy, Legal Correspondent, "For a separate office for administration of justice in the United Nations, a New York staff journal, July 1993, pp. 2-3. The General Assembly
had long urged that this situation be corrected. In a resolution, also in
1993, on personnel questions, it regretted that a requested report on the
problem had not been provided and stated clearly that
it: "Stresses the importance of
a just, transparent, simple, impartial and efficient system of internal justice in the
Secretariat: Requests the Secretary-General to
undertake a comprehensive review of the system of administration of
justice … [including Member State suggestions and] in consultation with
the staff representatives as appropriate, and to submit a report thereon
including inter alia, information on costs arising to Member States
from the system …" "Personnel questions", General Assembly resolution 47/226 of 30
April 1993, section II, paras. 2-3.
[emphasis added.]
Eleven years later,
however, the "justice reform game" is beginning all over again. The
General Assembly passed another important and related resolution in early
2004, which emphasized that an independent and impartial judiciary
are essential to protect human rights and should therefore be respected
in all circumstances. It then reaffirmed the importance of full
and effective implementation of all UN standards on human rights in
the administration of justice, and that Member States should spare
no effort to ensure full implementation of those standards, using UN
technical assistance to strengthen their capacities and
infrastructure. In this
context, as elsewhere, it is time for the UN to begin to practice
internally what it preaches to others. "Human rights in the
administration of justice," General Assembly resolution 58/183 of 18 March
2004, preambular para. 2, and paras. 1,2, and 5.
There is now, once
again, a growing recognition of the weak UN internal justice system,
buttressed by some expert opinions, first about the severe deficiencies in
the underlying UN rules by C. F. Amerasinghe in 1997, and second,
conclusions on UN system internal justice processes by Geoffrey Robertson
in 2002: "The title 'Code of conduct' is
inappropriate for what is essentially an amended version of the existing
[UN] Staff Regulations and Rules. … The UN has the power of
legislating for its staff … but there are limitations on the right. The most important is that
amendments must not interfere with 'acquired rights' (acquired rights are,
in other words, fundamental conditions of employment.)
… .. In light of the above factors,
there are grounds for questioning the validity of the amendments. These grounds will be considered
in turn: (a) Lack of consultation in good
faith and in an appropriate fashion
--
…; (b) Improper motive -- … (c) Inconsistency of amendments
with fundamental terms of employment (acquired rights) or jus cogens
(fundamental and unchangeable
principles of international administrative law), or a higher law (Charter
or Convention, etc.) …
[for example] (vi) "In the Staff
Regulations and Rules dealing with investigations, etc., the
requirements of due process -- such as the right of defense
-- which are fundamental,
are not clearly indicated." Professor C. F. Amerasinghe,
"The 'Code of Conduct'",
UN Staff Report (New York), December 1997, pp. 12-13
[13]. [Note: Professor Amerasinghe is the author of The law of the international civil service (as applied by International Administrative Tribunals), 2 vols., 2d ed., Clarendon, Oxford (UK), 1994, and Principles of the law of international organizations,
Cambridge, Cambridge (UK), 1996.] "I am asked to advise
the staff union of [the ILO] as to whether the [ILOAT operation] conforms
to the requirements of international human rights law. … It serves as the
final arbiter of employment issues for some 35,000 international civil
servants, deprived by their occupation of recourse to domestic employment
law … In principle, a
tribunal of this potency and importance must operate, and be seen to
operate, to the highest standards of transparency and fair play.
… There are
… fundamental ways in
which ILOAT fails to conform to the requirements for a judicial body
… the deficiencies in
compliance with human rights standards have produced a perception of
injustice, and have denied to unsuccessful complainants a proper
opportunity to press their case
…[which consequences]
require urgent rectification. There are
… many other
deficiencies both practical …and jurisprudential
… that could be
addressed in any overhaul … However, in this short and
necessarily broad-brush opinion I have sought to identify the respects in
which it can be said that the Tribunal is in breach of human rights rules
which have a jus cogens quality, and should therefore be a defining
characteristic of every international judicial
body." "Opinion," Geoffrey
Robertson Q.C., November
20, 2002, paras. 1-2, 5,
16. Mr. Robertson is the author
of Crimes Against
humanity: The struggle for global justice, ( 2d ed., Penguin Books,
London, 2002), which is
placed near the very top of IO Watch's list of most relevant books on UN
management accountability in the Recent Developments section. Several of his highly-informed
insights will be quoted at various places in this archive. ] As the above
quotations (and Secretary-General Annan's own introductory observations of
2000 also cited above) suggest, the UN administration of justice process
has grave fundamental flaws.
The General Assembly is once again becoming concerned with this
sorry situation, and the JIU has done and the OIOS is doing some work on
the problem, all as detailed in this archive's subsection on Inept "Administration of Justice"
System . But there is a high risk
that, as in the past, several years of vigorous discussion will once again
break down and fail to bring real
change. An excellent
opportunity to put an end to UN "administrative injustice" was offered
before the UN 50th anniversary celebration by two of its most
distinguished veterans and astute observers, Erskine Childers and Brian
Urquhart, in their report on renewing the UN system, but was never acted
upon: "ADMINISTRATIVE JUSTICE The debilitating atmosphere and
the rise of cronyism have sapped staff confidence in justice within
secretariats. Even peer
appeal boards lack full trust because no staff member seeking redress can
feel confident any longer that he or she may not be intimidated. This state of affairs has been
well known. … The independent commission … [that
they proposed to deal with strengthening the international civil service]
should propose a proper resort system whereby staff can report malfeasance
without fear, staff seeking redress can have proper counsel, and all staff
can have the requisite measure of protection from imperious behaviour by
poorly-chosen superiors. The
commission should reconsider an ombuds function for staff matters which
exists in many countries and organizations including some in the UN
system. … The independent
commission should recommend an entirely improved system of administrative
justice for staff, providing adequate counsel and protection in due
process." Erskine Childers, with Brian
Urquhart, "Renewing the United Nations System", Development
Dialogue, 1994:1, Dag Hammarskjold Foundation, Uppsala, Sweden,
1994, pp. 169, 211.
IO Watch proposes two
fundamental action steps that are
readily available to the UN to act on the above recommendation.
FIRST, the World Bank, under pressure from its U.S. Congress neighbor in
Washington, D.C., was able to do what the UN seems perpetually unable to
do: it took major action to improve its own internal justice situation in
1996-1997, as shown by the two following
quotes: " … [The World Bank] is facing
allegations from current and former employees that it fails to deal
properly with accusations of mistreatment of whistle-blowers and charges
of sexual discrimination and harassment. A recent internal report
commissioned by [bank President James] Wolfensohn … found that bank employees 'feel
the system is heavily weighted in favor of management' and estimated
that about 95% of those with complaints never lodge them
officially. [US] Senator Patrick Leahy, who
has been investigating how the bank treats women, in blistering in his
criticism. … The problems can be traced to the
bank's little-understood special legal status. As an international diplomatic
body, it is immune to laws on discrimination and harassment … around the
world. … When the bank's
in-house grievance process fails, victims cannot appeal to a higher (and
impartial) authority. Bank
officials enjoy diplomatic immunity from U.S. courts unless the bank
waives it." … The bank has developed a laundry
list of changes for its internal procedures, many of them designed to
install at least some due process. … Says Mr. Wolfensohn: 'I believe
that with these changes we will have in place one of the best grievance
systems in the world.'" Glenn
R. Simpson, "World Bank, under attack, concedes staff problems", The
Wall Street Journal, March 19, 1999. [emphasis added.] " … you failed to mention that 18
months ago Jim Wolfensohn brought in a world-renowned expert, Judge
Shirley Hufstedler, a former U.S. Court of Appeals judge, to review the
grievance system as a whole. …
About 12 months ago, an internal task force was commissioned to
review and recommend changes to the grievance system to make it more
responsive to staff needs. …
Judge Hufstedler and a panel of internationally recognized experts
[including ombudspersons] provided detailed reviews and comments on the
work of the task force. … [other views were also invited and] the
recommended changes to the grievance system, as adjusted to take account
of the views of the learned outsiders, are now being implemented."
Jamil
Sopher, Chairman, World Bank Staff Association, "Here at the World Bank:
Our story", The Wall Street Journal, April 20,
1999. Many factors
underscore the need to very seriously, professionally, and urgently
reexamine the defective UN internal administration of justice system:
-- the recent General
Assembly resolution stressing that "an
independent and impartial judiciary are essential to protect human rights
in the administration of justice" which the UN should
certainly honour itself (resolution 58/183 cited
above); -- the expert opinions
on the UN internal justice system's fundamental problems of 1997 and 2002
also cited above; -- the considerable
new General Assembly and other interest in rectifying the internal
system's weaknesses that have been moldering for decades; and
-- certainly the
doubts expressed by UN staff in the worldwide "integrity survey" released
in June 2004 about UN accountability and the legitimacy of actual UN whistle-blowing and
disciplinary processes. IO Watch believes that
it is essential that the Secretary-General (or, better, the General
Assembly) commission an external expert panel, together with an internal
working group, with full consultation with the staff this
time, to follow the highly relevant effort made by the World Bank
in 1996-1997, and perform a careful and professional assessment of the
UN's inept internal justice system and its problems.
However, even this
process will be a ponderous one and it risks collapse and inaction when it
returns to the Secretariat and the General Assembly, as occurred with past
major Secretariat and General Assembly reform efforts in 1985 and 1995
(and on other occasions as well.) Meanwhile, the injustices in the UN
"internal justice" system will continue on and on. A recommendation on
needed reforms by the JIU in 2002, while commendable in intent,
illustrates this problem of actions that will take the UN years to agree
on (if ever). Drawn-out and
vague improvement actions may well only ensure that the grand UN tradition
of justice delayed and denied continues. The JIU
cited: " … the desirability of
establishing an ad hoc panel … to review [the
judgments of] the existing two tribunals or a single future tribunal … … Applications [would
be] … founded on the
following criteria: … the
tribunal has exceeded its jurisdiction or competence; … has failed to
exercise jurisdiction vested in it; … has erred on a
question of law relating to the United Nations Charter; … has committed a
fundamental error in procedure which occasioned a failure of justice; and
… that the
tribunal has deviated
substantially from its jurisprudence." Joint Inspection Unit, "Report
of the [JIU] on reform of the administration of justice in the United
Nations System: Options for higher recourse instances", UN document
A/57/441 of 27 September 2002, especially Recommendation
5. Instead of a review
process available only at some indeterminate time in the future, and only
after those few stubborn UN staff who spent about
five years working their way through the internal justice system realize
that they have been "had", a much more swift, responsive, and
independent process is needed, now. Happily, it can be
found in the UN's own judicial assistance programmes for the rest of the
world (which in fact would clearly support the need to "spare no effort to
ensure the full and effective implementation of human rights standards" to
strengthen judicial capacities, as cited by the General Assembly 2004
resolution above.)
The UN Global
Programme Against Corruption established a Judicial Group on Strengthening
Judicial Integrity, which met for the first time in Vienna in 2000. It discussed a judicial integrity
programme of Transparency International, and other sources such as the
UN. The group developed the
following initial suggestions: "(3) Monitor: There is a need to establish in
every jurisdiction an [independent] institution to receive, investigate
and determine complaints of corruption allegedly involving judicial officers and court
staff … (5) Codes of Conduct: There is a need for the adoption
of judicial codes of conduct, for … instruction in such codes in the
education of new judicial officers and for information to the public …
about such codes against which the conduct of judicial officers may be
measured. (6) Adherence: There is a need to
enhance requirements for newly appointed judicial officers … to subscribe
to such a judicial code of conduct … and to agree … in the case of proved
[serious breach] … to resign from judicial or related
office. (12) Civil society: … To combat
departures from integrity and to address the systemic causes of
corruption, it is essential to have in place means of monitoring
and auditing judicial performance and of the handling of complaints about
departures from high standards of integrity in the judiciary.
"
"Judicial Group on Strengthening Judicial Integrity: Record of First Meeting", Global Programme Against Corruption Working Paper, UN ODCCP, Centre for International Crime Prevention, Vienna, April 2000, esp. pp. 3-5. [emphasis added] [Note: A second and third meeting have now taken place, and Principles of Judicial Conduct developed. They are available at www.unodc.org/unodc/corruption_judiciary.html ]
This leads to the
SECOND suggestion by IO Watch to improve the UN internal justice system on
a rapid and continuing basis, and independent of (but as an essential part
of) the broader World-Bank
type of external review suggested above.
After decades of
an entrenched and unaccountable and non-transparent internal UN judicial
process, there is an urgent need for the "sunshine" of transparency,
through an independent expert who would monitor the UN internal justice
process, certainly as much as in any country. This expert could finally provide,
on an ongoing basis, a clear independent focus on the UN administration of
justice process, help develop a code of conduct and serious standards,
monitor the processes, propose sanctions where necessary, handle
complaints, and report publicly to the General Assembly each year on that
system's actual performance. Such a person
would dramatically and immediately improve the present careless, and at
times downright arrogant, judicial performance of OHRM, OLA, UNAT, and
other officials. Who could
perform this function? Well,
the OHRM is the present process, so it certainly lacks the
requisite "arms length" status, credibility, and fortitude needed, as does
the rest of the Administration.
But one, or perhaps two, people with strong judicial and human
rights backgrounds could quickly and comparatively cheaply be
appointed. Their work
(including public reporting) could greatly streamline the performance, and
hopefully greatly reduce the considerable sums paid out to wronged staff,
of the present, ponderous UN internal justice machinery.)
There is also an
already-existing, and quite appropriate place to locate this person or
persons -- in the office of the UN ombudsman, which IO Watch believes
should be expanded and made into an independent and strong Human Rights
Ombudsman , as proposed in 1994 by
Childers and Urquhart, and which is even more relevant now than it was
then (see the very next topic which
follows.)
IF the UN would undertake this action, it
would be wonderful to see due process, defendant's rights, the rule of
law, and democratic accountability become a part of the UN's
administrative processes. It
could also: -- help demonstrate that the UN
is serious about the issues of human rights principles, the rule of law,
and judicial integrity that it preaches so piously to the rest of the
world; -- allow the UN to
(finally) begin to act to
protect its staff while the hoped-for World-Bank type internal task force
and external review proceeds; --make clear that
the UN indeed has a proper system of internal justice and is seen to have
it, and -- finally enable the UN meet its
legal obligations, as outlined by Secretary-General Annan in the
introductory quote to this subsection, as a cornerstone element of true
accountability, and as a first but central step to finally answering the
question, Where
is the Rule of Law? in the UN: "The
jurisdictional immunity of the [UN] Organization legally
obligates it to have just and effective internal processes
to deal with grievances and appeals by staff, and with disciplinary cases
…
[as] an indispensable aid to maintaining staff
morale, as well as enforcing accountability. ..."
"Accountability and responsibility: Report of
the Secretary-General [Kofi Annan]", A/55/270 of 3 August 2000,
Summary, para. 39. Decisive UN action
would also erase the glaring impropriety of an organization attempting to
establish accountability without ever having the essential element of the
"rule of law." "One of the fundamental concerns
of the modern state is the manner in which power and authority are wielded
by those who govern in the name of pursuing societal goals and objectives.
… It is obvious that the more
society is administered, the more power is concentrated in the hands of
ministers and public servants Generally, public officials and
their organizations are considered accountable only to the extent that
they are legally required to answer for their actions.
… Within [a global context of public
concern and political responsibility] … public service accountability
involves the methods by which a public agency or a public official
fulfills its duties and the process by which [it or he/she] is required to
account for such actions. Viewed [in this way, public accountability
is] … a [broader] strategy to secure compliance with accepted standards
and as a means to minimize the abuse of power and
authority."
Joseph G.
Jabbra and O. P. Dwivedi,
eds., Public service accountability: A comparative perspective,
Kumarian, West Hartford, CN (USA), 1989, pp. 1,
5. [emphasis added.] |
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