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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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The
failure of the various UN oversight mechanisms to deal firmly with
Secretariat mismanagement, abuse, and corruption and other performance
problems, and to establish the management accountability system that the
General Assembly called for in 1993 (as discussed in other sections of
this website) leave only one process to ensure management accountability,
performance, and transparency -- the rule of law, which in this case is
represented by the UN's "administration of justice" system. Unfortunately, this closed system
is by far the weakest UN managerial accountability process of all. In
his report on UN accountability and responsibility in August 2000,
Secretary-General Annan emphasized that a comprehensive and clear system
of accountability was required at all levels, including an internal
justice system for staff to seek redress for administrative actions. He
stated the fundamental fact that: "The
jurisdictional immunity of the 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", A/55/270 of 3 August 2000, Summary, para.
39.
[emphasis added] In
a second August 2000 report, on progress made in reforming UN human
resources management, he began a section on "Administration of justice" by
observing that: "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," UN document A/55/253 of 1
August 2000, para. 51. [emphasis
added] Yet
the Secretary-General finished his August accountability and
responsibility report with a claim of "victory," namely
that:
"In conclusion,
the Secretary-General is confident that the
comprehensive system of
accountability now in place ensures that accountability mechanisms are
effectively used, are seen to be used, and ensure that staff at all levels
are held accountable for their actions and inaction." The General
Assembly may wish to take note of the mechanisms in place since 1994,
including those discussed in the present report, which together constitute
the comprehensive system of accountability for the
Organization." "Accountability and responsibility:
Report of the Secretary-General", A/55/270 of 3 August 2000,
Summary, paras. 47-48.
These three quotes,
all presented concurrently to the General Assembly, illustrate the jarring
discordance of the UN's homemade 'administration of justice" system.
First, the Secretary-General specifically acknowledges that the UN is
legally obligated to have just and effective internal
processes, which are indispensable to maintain morale and to
enforce accountability. Second, however, he admits that
the existing internal justice "mechanism" is not working well, and
exempts managers, which the staff knows all too well. Third, and
nevertheless, the Secretary-General leaps to the assertion
that UN accountability mechanisms are now effectively used and
perceived to be used, and that everyone in the UN is now held
accountable for their action or inaction. In fact, the UN
administration of justice system is a mess. It has stumbled along seemingly
forever with minor cosmetic changes to meet General Assembly pressures,
but very little transparency and much continuing dissatisfaction. The criticisms reach back almost a
half century, and (as in other areas discussed under this topic of the
rule of law at the UN) they are just as valid today as when they were
first written. A
brief preface on the system's origins and structure is necessary.
Formally, the UN's obligation for some type of justice system springs from
a diplomatic convention: "Article 29 (a) of the Convention
on the Privileges and Immunities of the United Nations states: 'The United
Nations shall make provision for appropriate modes of settlement of
disputes arising out of contracts or other disputes of a private law
character to which the United Nations is a party.'
Accordingly, the United Nations has established appropriate
administrative machinery, with staff participation, such as the Joint
Appeals Boards (JAB)
to consider and advise the
Secretary-General upon appeals by present or former staff members against
administrative decisions alleging non-observance of their contracts of
employment, terms of appointment or conditions of service, including all
pertinent regulations, rules, precepts and administrative instructions, or
against disciplinary action." Mark A. Roy, "Administration of justice in the United Nations Secretariat", Secretariat News (New York), 19 June 1984, pp. 4-7, [4]. [Note: Mr. Roy was the Chairman of the Legal Committee of the New York Staff Council] The
resulting UN internal justice system has three basic layers, an advisory
appeals process, a disciplinary process, and a formal appeals process.
Each of these layers is more mysterious and less transparent than the
last. "United Nations Staff Rules",
Secretary-General's Bulletin ST/SGB/1999/5 of 3 June 1999, Staff
Rule 110.4, Article XI and
Chapter XI, and Jay Axelbank, " Administrative
injustice at the UN", UN Special, December 1993,
p.15. Yves Beigbeder, , The internal
management of United Nations organizations: The long quest for
reform, St. Martins
Press, New York, 1997, Chapter 12, "The staff unions' dilemma:
Confrontation or partnership?", pp. 187-198. [Note: The Secretariat also
had, for many years, an informal system for
resolving lesser staff grievances, which was once considered relatively
active and useful, but then greatly declined in importance, in
considerable part due to managers' unwillingness to cooperate with
it. It has now apparently
been discontinued.]
First, Joint Appeals Boards (JAB's)
operate at major duty stations and are composed of staff volunteers (many
or most of whom are chosen by the Administration.) These people, who
already have full-time duties and UN careers, and often very little legal
background, "advise" the Secretary-General on staff appeals against
administrative decisions (as violations of their contractual rights),
which he is free to disregard.
If the staff filing appeals are dissatisfied with the JAB's and/or
the Secretary-General's subsequent decisions, they may apply to a UN Administrative Tribunal (UNAT) of
judges appointed by the General Assembly. Second,
Joint Disciplinary Committees (JDC's), composed of selected staff
volunteers, are formed to advise the Secretary-General in cases of staff
charged with misconduct, in what is clearly "management's" process. Little is ever reported, or even
known, about actual JDC functioning, processes, and results. Third,
an Administrative Tribunal (the UNAT), is composed of seven full-time
judges who are appointed by the General Assembly. They presently hear some 30 cases a year, and
provide the only formal hearing (since the JAB and the JDC are admittedly
amateur and informal processes which merely advise the Secretary-General)
for those staff who are determined enough to invest several more years
pursuing the elusive goal of UN internal justice. No subsequent appeal can
be made to UNAT judgments. "United Nations Administrative Tribunal: Statute and Rules,
Provisions in force with effect from 1 January 1998," United Nations, New
York, 1998.
Most
UN staff (and certainly almost all Member State representatives and the
public) know little about this UN internal justice system, and do not much
care. The system, however, has been sharply criticized for decades for its
fundamental inadequacies.
In
the 1970s a distinguished expert 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 remain 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.
[Note: The first, "troublemaker," assertion is
by far the favored Secretariat tactic for undermining a staff case, by
immediately launching ad hominem attacks to attempt to discredit the case,
whatever it may be.]
The
General Assembly tried in the mid-1980s to reform the internal justice
system, but encountered only foot-dragging and disputes. An opening staff
salvo observed that: "
just over six years ago [i.e., in 1978].
a former justice
of the [International Court of Justice reviewed a staff dispute with
management]
the material
which he collected has never [appeared]. I would like to quote [several
passages therefrom]
. 'The problems
have accumulated
over a long period owing to the failure and inability of the existing
machinery to find and implement solutions to staff
grievances.' '
complaints pile up, and staff
members become increasingly bitter and resentful.
. a formal grievance
procedure
should be speedy,
encourage settlement .. at the working level, [have clear and publicized
procedures]
be a process of negotiation
[with] Any bargain
or
agreement
. equally binding
.
. dealing on a basis of equality
with staff representatives will [be difficult for ] a number of
[management] officials
.
Nevertheless, thousands of
managements and unions have gone this road before us, many of them in the
public service sector. We
have their experience
. to draw on.
' How long are we going to pretend
that the United Nations is so different from the rest of the world that we
cannot learn and profit from others'
experience?" "Bill
Bailey", [a "senior official at Headquarters], referring to a 1978
expert opinion of the appeals system, in "Appeals or redress of
grievances?", Secretariat News [New York], November 1984, pp.
8-9.
Another critical
report by an outside expert followed three years later: "
the UN Administrative
Management Service [hired a consultant to review continuing crises in
Secretariat administration of justice and remedies therefore], who stated
in a detailed report in November 1981 that]: 'The delays in the Joint
Appeals Board at Headquarters are now so serious that they cast doubt on
the willingness and ability of the United Nations to provide effective
means for settling disputes with the staff. The situation has already had a bad effect on
staff morale
The United
Nations enjoys immunity from the jurisdiction of States
[but has
undertaken] to provide effective means of settling disputes to which it is
a party
a failure to do so could have grave effects. It is therefore vitally important
and urgent to remedy the present situation. It is evident that at present the
JAB is quite unable to cope with the large backlog and the unprecedented
influx of new cases ... It is
further evident that a proceeding before the JAB is very costly to the
Organization
All told, it would not be
surprising to find that the man-hours consumed by even a simple case cost
the Organization over $50,000.'" Mark A. Roy, on a 1981 study by an outside consultant, in "Administration of justice in the United Nations Secretariat", Secretariat News (New York), 19 June 1984, pp. 4-7, [5-6]. [emphasis added] [Note:
Mr. Roy was the Chairman of the Legal Committee of the Staff Council, and
the consultant referred to was Mr. Gordon Wattles, former Principal
Officer in the UN Office of Legal Affairs.]
Another staff member
added two very important insights on the gross flaws and very questionable
tactics of the UN internal justice system, which are still in effect. First: "A complaining staff member is
immediately classified as a 'personnel case', presumably because he or she
has had the temerity to intervene.
If the complaint has to do with management direction, all
hands in OPS [Personnel]
and its affiliates close ranks to gather material to fashion
as strong a personnel case as possible, and no recognition whatsoever is
made of the key management issue.
.OPS has scant choice but to
bypass the administrative implications of the case and propel it rapidly
to the quasi-legal restraints of the Joint Appeals Board where it can be
confined. The
upshot is that a staff member must sue to force a management director to
do his administrative duty. The guilty persons can get away
with this kind of irresponsible performance more readily in the
bureaucratic system of the UN than in any foreign office, however
small. There is no really
effective vertical responsibility upwards within the UN table of
organization, nor effective direction downward
" Donald
Dunham, "Management by personnel action", Secretariat News (New
York), November 30, 1984, p. 11.
[emphasis added]
Second, the same
author added a fascinating insight on the decisive way in which an obscure
Administration official had cleverly shortchanged the appeals process, in
a minor decision that negatively affected the very core of the internal
justice process forever after: "An agonizing reappraisal [of
manipulations by the Personnel office to help managers evade their responsibilities] might go back to
the beginning of the UN operation before the default of management
responsibility began in earnest.
Whenever staff members complained against a director the latter
would have to appear with them (or send a representative) before the Joint
Appeals Board. Then along
the line an ingenious administrative officer manoevred the procedure so
that all managers [in all] units would be represented by OPS [Personnel]
itself. OPS then became both
prosecutor -- it assumes
an adversary position automatically and no longer seeks an even-handed
solution -- as well as judge.
It holds the power of veto over JAB decisions. The restitution of the original
procedure would help but not solve the problem
entirely." Tools of its trade should be
revamped for OPS and it should return to its legitimate function of
dealing solely with personnel problems on a forthright even-handed
basis." Donald Dunham, "Management by personnel action", Secretariat News (New York), November 30, 1984, pp. 11-12. [emphasis added] [Note: In 1998 the
Administration finally and formally acknowledged this its
"obligation" to defend all
managers. In 2000 , though,
Secretary-General Annan cited this issue of shielding of managers from
accountability, or even from any
involvement in defending their decisions. as a "perception" (see
the first 1 August 2000 entry below.]
In the mid-1980s the
UN staff began to pressure the Administration to be more forthcoming about
its handling of disciplinary and fraud matters. One such effort observed
that: "The Administration
has recently dealt with a
number of cases of alleged
fraud relating to taxes and education grants within the Secretariat. In the process, different
administrative actions have been undertaken
[including] summary
dismissal, referral of cases to the Joint Disciplinary Committee,
resignation and recovery of overpayment. ?
What are
the criteria according to which summary dismissal -- the hardest penalty
-- has been meted out to some, but not to others?
?
Under
what circumstances it is decided that a case should be submitted to the
[JDC]? ?
What are
the circumstances under which the Administration accepts the resignation
of staff involved? ?
By what
criteria is it decided that only the recovery of the overpayment should be
made? We are concerned that
the established judicial procedures which are intended to guarantee staff
a minimum of due process should not be undermined.
There is a need to
explain to the staff the circumstances governing the choice of measures
being invoked. In cases that
are similar, justice will require that staff are not only equitably
treated but that they are seen to be equitably
treated." From a "Group of concerned
staff", "Fraud and due process," Secretariat News (NY), 16 July
1986, p. 2.
A
JIU report in 1986 presented detailed reform proposals to speed up and
rationalize the system, and to vest conciliation procedures in an
Ombudsman office, with judicial procedures produced by a two-step Claims
Court and the UNAT. The
report (which was earnestly received but never really implemented) also
stated inter alia that: "Long delays
have been identified
the number of cases pending
before the JAB in New York as of 31 March 1986 was 94
Each case filed
costs the Organization an average of $24,000, excluding the costs involved
in the UNAT.
Generally speaking,
the Administration loses more than 50 per cent of cases before the UNAT,
many of which are of a similar nature.
The Administration should
make
the officials in charge of the application of the Staff Regulations and
Rules
aware of the responsibility of the Administration and of the
consequences of an ill-founded decision. These measures may include some
penalties or disciplinary action." Joint Inspection Unit, "Αdministration of justice in the United Nations", UN document A/51/640 of 23 September 1986 and A/C.5/41/14, paras. 5, 99. [Note: nothing on record to this day indicates that sanctions of any kind have ever been imposed on UN managers whose decisions resulted in a judgement against them in the internal justice system.] 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]
Mr. Ahtisaari had
himself moved quickly to accept JAB recommendations in 44 of 47 cases sent
to him in 1987, including reopening and settling a number of earlier
cases. He also established a Working Group to Review the Functioning of
the Appellate and Disciplinary Processes, which: "
in its report found the
'shortcomings so profound that nothing short of fundamental change' could
remedy the problem.
Finding the appellate system was geared neither to resolving
disputes at the earliest stage, nor to dealing efficiently and promptly
with cases, the Group called for a major overhaul to reduce the case
length from its current average of 2.5 years to within four months of
filing." "Staff-management meeting to discuss justice administration reform and performance reports", Secretariat News [New York], 31 August 1987, p. 5. [emphasis added]
In the late 1980s and
early 1990s, the Secretariat produced still more reports on administration
of justice reform, but they did not result in any significant action. The very widely-recognized flaws
of the existing system continued on. "Administration of justice in the Secretariat: Report of the Secretary-General, UN document A/C.5/43/25 of 28 October 1988, "Administration of justice in the Secretariat: Report of the Secretary-General, UN document A/C.5/44/9 of 20 October 1989, and "Administration of justice in the Secretariat: Report of the Secretary-General, UN document A/C.5/46/7 of 10 September 1991.
In 1992 another UN top
manager tried to give impetus to the appeals process, stating his intent
to use appeals decisions as a learning process for managers, so that they
would avoid making similar mistakes. Apparently nothing ever came of this
idea (although Secretary-General Annan's 2000 reports indicated that in
future managers -- but not
staff, or the public -- may
be kept more informed of appeals outcomes): "At the annual Joint Appeals Board
meeting, Under-Secretary-General [for management] Dick Thornburgh gave a
new dimension to the administrative justice system and clarified once and
for all its raison d'etre.' [He said that the staff appeals
process is important] not only because it maintains staff morale and
offers an acceptable channel for venting discontent, but also because it is valuable for
management, providing it with an opportunity to enhance the quality of
administration. He said he was particularly
concerned that managers learn from the process [and that] "I intend to
make sure that we look at what kind of cases are filed and how they are
resolved [so managers have insight into good management practice and] to
provide better management training programmes for managers
. to enable us
to avoid similar appeals in the future.' During the ensuing debate, the
issue of conciliation (which is almost never used) was raised, and
. the
accountability of supervisors under staff rule 112.3 (financial
responsibility.) JAB members
pointed out that in some instances, large amounts [must] be paid due to
errors of management."
L.S.,
"Commentary: Administrative justice: Thornburgh: Managers must learn from
mistakes", U.N. Staff Report (New York), July/August 1992,
p. 3.
In 1993 UN staff
representatives raised their hopes again that a strong General Assembly
resolution on administration of justice might finally lead to significant
improvements: "
a historic first encounter
between employers and staff [gave] hope that the Fifth Committee would
[call for] a comprehensive report on Administrative Justice in the
Secretariat [for presentation to the General
Assembly]. Such report had been mandated by
the General Assembly in 1990 for submission in 1992. An interim report, depicting a
rosy picture of Administrative Justice, and avoiding the issue of an
independent Ombudsman, was submitted in 1991, but did not generate any
action by the Committee. Now,
in view of renewed criticism of the system by both staff union and member
states
the thorny issue may be resolved. At present only 20% of complaints
by staff
are resolved by mediation and conciliation procedures. The rest end up in the 'courts' of the
Joint Appeals Board and the Administrative Tribunal, at an average cost
for each case of at least $50,000." "Fifth comes first:
Breakthrough in staff relations between Committee and Staff Union
", UN Staff Report (New York), January 1993, p. 1. And the General Assembly did indeed bluntly and
firmly instruct the Secretary-General to develop a "just, transparent,
simple, impartial and efficient" system. He agreed in 1994 that the
existing system was woefully outdated, overloaded, slow, confused, and
expensive. He in turn proposed major reforms to professionalize and
accelerate the appeals process. After much discussion and debate, however,
this effort also foundered, and it eventually died in the General
Assembly's legal committee. Once
again the parties could not agree, and the old system limps along. "Personnel questions",
General Assembly resolution 47/226 of 30 April 1993, Part II,
"Administration of justice in the Secretariat","
"Reform of the
internal system of justice in the United Nations Secretariat: Report of
the Secretary-General", UN document A/C.5/49/13 of 8 November 1994, "Reform of the
internal system of justice in the UN Secretariat", UN document A/C.5/50/2
of 27 September 1995, and
"The internal
system of justice: Reform -- To be or not to be", UN Staff Report (New York), March 1997, pp. 10-11.
Erskine Childers and Brian Urquhart added one more
very authoritative expert view to the critique of flawed internal justice
in 1994. They called for drastic, substantive administrative justice
reform for the good of the UN, in sharp and refreshing contrast to all the
endless talking and tinkering of the Secretariat over the past
decades: "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.
[There should
be] a 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 behavior by poorly-chosen
superiors.
The
[50th UN] anniversary sould be a fitting occasion for a solemn
reaffirmation of Article 100.2 by all governments in all prime organs of
the system.
1995 should begin a new era of respect by member-states for the
integrity and independence of a civil service upon which the future
effectiveness of the organization in large part depends." Erskine Childers,
with Brian Urquhart, "Renewing the United Nations System", Development Dialogue, 1994:1, Dag Hammarskjold
Foundation, Uppsala, Sweden, Meanwhile, two other important components of staff
redress within the UN Secretariat were deteriorating. In earlier
years the UN staff Panels on Discrimination and Other Grievances,
established in 1977, had carried out important conciliation
functions.
A 1985 report stated with pride that they managed to resolve
disputes informally and at an early stage in some 80 percent of the cases.
They also -- quite unusually for the internal justice system -- attempted
to provide regular, published annual reports at various duty stations on
their activities, patterns of cases, and solutions achieved. Another
Secretary-General's report in 1995 emphasized their importance to move
swiftly to provide early reconciliation and resolution of disputes and
thereby preserve staff morale. "Establishment of
panels on discrimination and other grievances," UN document ST/AI/308/
Rev. 1 of 25 November 1983, [Reports, for
example] "Report on the work of the Panels on Discrimination and Other
Grievances (Geneva)," UN document ST/IC/88/64 of 7
December 1988, and "Reform of the
internal system of justice in the UN Secretariat: Report of the
Secretary-General", A/C.5/50/2 of 27 September
1995.
But the panels clearly fell apart during the late
1990s.
The Secretary-General's 2000 report bluntly stated that they had
become under-utilized, because of their volunteer members' inexperience,
and "their findings are often not substantiated by evidence and managers thus resist
cooperating with them." "Human resources
management reform: Report of the Secretary-General", A/55/253, 1 August 2000, Annex V, para. 3.
[emphasis added] [As in other areas,
UN managers, who have no more legal expertise than the panels, were thus
given an option to simply reject the cases out of hand, and no one, the
Secretary-General included, seemed to object to such cavalier treatment.]
Second and similarly, "rebuttal panels" had
traditionally provided staff with a rare chance to contest performance
ratings that they disagreed with, and to actually reverse negative
decisions.
Managers complained that the rebuttal process tied up much of their
time, but in fact a detailed JIU report analysis in 1994 showed that it
was not abused and often worked in favor of the staff. Joint Inspection
Unit, "Toward a new system of performance appraisal in the United Nations
Secretariat: Requirements for successful implementation", UN document
A/49/219, 1994.
Yet this important rebuttals process seems now also
to have lapsed de facto, as discussed in this
archive's subsection on Staff performance
ratings under OHR
(Mis-)management . The new
performance appraisal system installed in the late 1990s theoretically
allows staff to contest ratings, but indications are that the
Administration works hard to discourage staff from contesting them, which
is of course another major victory for UN managers but another critical
loss for the staff, who with no recourse are left at the mercy of their
managers in the critically-important area of their personal performance
ratings. In 1999 a tiny peek behind the curtains that cover
the internal justice process was provided in Geneva by M. L. Fayache. UN staff
appeals made to the Joint Appeals Board in the mid-1990s in New York were
reported to be about 66 to 72 percent successful, not bad for action in
"the staff's" process, the JAB, as compared to the grim Joint
Disciplinary Committee, which is considered to be UN management's
"playground."
Fayache found, however, that 97 percent of the JAB
Geneva cases were decided against the staff, i.e., they lost 30 of 31
cases for which information was available over a two-plus year
period.
This is a terrible record. The Geneva senior manager who was
serving as presiding officer of the Geneva JAB Panel made an indignant
rebuttal and defense of the Geneva JAB secretariat, but did not provide
any information to counter the analysis. M. L.
Fayache, "Dιfense des droits du personnel," UN
Special (Geneva), fιvrier 1999, pp.
23-25.
In 1999 the General Assembly dutifully called on the
Secretary-General to make another review to ensure the "timely, fair and
objective" administration of justice. This process too bogged down, but it
is of some value to explore the many current problems which the
Secretary-General at least affirmed in that report. "Human resources
management", General Assembly resolution 53/221 of 23 April 1999, Part IV. paras. 8, 10-11
.
Mr. Annan's August 2000 report on accountability and
responsibility stated firmly, and centrally, as previously noted, that
"The jurisdictional
immunity of the Organization legally obligates it to have just and
effective internal processes to deal with grievances and appeals by staff,
and with disciplinary cases. A just and effective system is also an
indispensable aid to maintaining staff morale, as well as enforcing
accountability." "Accountability and
responsibility: Report of the Secretary-General, UN document A/55/270 of
3 August 2000, para. 39.
However, in a second report on human resources
management reform, he undermined this firm statement of responsibility
by
admitting the internal justice system's many grave operational
flaws and that, as so
often before, improvements were needed. Most specifically, the
Secretary-General acknowledged that the system's performance was in the
"interest of neither justice nor the staff or management," that the
system is too slow, takes too long, and is carried out by staff volunteers
with little if any legal background. Above all, he cited the perception that
the internal justice system "shields managers from being held
accountable."
But he did not bother to rebut this perception, nor did he promise
to correct it. "Human resources
management reform: Report of the Secretary-General," UN document A/55/253
of 1 August 2000, para. 51, and
Annex
V.
The Secretary-General's 2000 reform report also noted
problems with a major initial phase of appeals, "administrative reviews"
by personnel officials to attempt to resolve disputes quickly at an early
stage. A several-month period is taken at the very beginning of the
appeals process for this function, and in the past it had proven useful to
help weed out cases which could be easily resolved. But the
Secretary-General acknowledged that the Administration increasingly made
no comments on many or most of the cases submitted to it, and it had
become merely an empty delaying step. However, he did not suggest any
actions to restore the value of this function, and it continues to delay
almost all staff appeals from the very beginning. "Human resources
management reform: Report of the Secretary-General," UN document A/55/253
of 1 August 2000, Annex V, para.
4.
Further, the Secretary-General called for
establishing an ombudsman. In fact,
Secretary-Generals Pιrιz de Cuellar (in 1985 and 1986) and Butros-Ghali
(in 1995) had already made detailed reporting and this same promise, but
no action had ever been agreed upon and taken. "Feasibility of
establishing an office of Ombudsman at the UN: Report of the
Secretary-General", UN document A/C.5/40/38 of 5
November 1985, "Establishment of
an office of ombudsman in the Secretariat and streamlining of the appeals
procedures: Report of the Secretary-General" , UN document A/C.5/41/14 of
3 November 1986, and "Reform of the internal
system of justice in the UN Secretariat: Report of the Secretary-General",
UN document A/C.5/50/2 of 27 September 1995. In addition, the Secretary-General's 2000 reform
report cited vague plans to finally give staff volunteers some training to
help them fulfil their JAB duties more competently, and a process for
finally informing managers (but not the staff at large or Member States,
or anyone else) more systematically of the subject matter and patterns of
judgements reached by the Administrative Tribunal as "lessons
learned".
"Human resources
management reform: Report of the Secretary-General," UN document A/55/253
of 1 August 2000, Annex V, para.
5.
Finally, in his 2000 reform report the
Secretary-General provided a brief narrative summary of at least one
year's activities in the administration of justice system. The report
noted cheerfully that: "
a comprehensive
system is in fact in place. A small number of administrative reviews are
being requested by staff (221 such requests were made in 1999.) As far as
disciplinary cases are concerned, only 32 such cases were initiated by the
Administration during 1999. Also, in 1999, only 101 new appeals
were made to the
[JAB.] The
[UNAT] receives approximately 30
cases a year from [UN] Secretariat staff. Yet even with this small volume,
improvements can be made in the system of administration of justice." "Human resources
management reform: Report of the Secretary-General," UN document A/55/253
of 1 August 2000, Annex V, para. 2. IO Watch believes that the modest number of UN staff
making appeals through "their" administration of justice system is not a
measure of staff contentment, as implied. It is much more a feeling of
hopelessness -- that it is not worth spending several years of effort in
the slight chance of obtaining some modest monetary damages (no other
remedy is possible.) This "death march" aspect is demonstrated by the
sharp drop in the number of cases at each stage: 221 staff requests for
administrative review, 101 new appeals, and about 30 cases to the
UNAT.
The people grow weary and drop out, rather than waste up to five
years of their lives, and incur continuing administrative hostility as a
"troublemaker", all to attempt to obtain modest recompense for a wrongful
decision (a result that the Secretariat is quite happy to live with.) In the year 2000, a great opportunity arose to
closely examine the workings of the internal justice system, as a basis
for fundamental and urgently-needed change. The JIU made a review of the topic, and
one could have hoped that it would have used its full access to all
records to do an incisive analysis of the detailed operations of the
system.
Unfortunately, as in many other areas, the JIU did
not examine JAB processes, caseloads and flows and backlogs, judgments,
subsequent appeals, UNAT judgments and awards, and above all the costs and
juridical results (such as patterns of judgments, or key issues raised) of
the internal justice process. It did not even assess the lack of reform
progress versus the excellent report it had made on the
same topic in 1986. Instead, the JIU merely compiled observers' opinions
about the system's problems, and various patch-up ideas to "fix it." This report
did at least reawaken General Assembly interest, but it also played right
into the hands of the Administration in continuing to encourage token
changes to a broken system. Joint Inspection
Unit, "Administration of justice in the United Nations," UN document
A/55/57, 2000. [The excellent
predecessor report was Joint Inspection
Unit, "Administration of justice in the United Nations," UN document
A/41/460, 1986.] [Note: The General
Assembly, in its resolution 55/159 of 31 January 2001, "Review of the
Statute of the [UNAT]," did amend parts of that statute, most noticeably
to allow members to be appointed for a four-year period, and then to be
reappointed once.]
The General Assembly's next resolution on human
resources management, in 2001, had a specific and important section on the
administration of justice. The Assembly noted with concern the slow and
cumbersome internal system, welcomed the plan to establish an ombudsman,
welcomed the intention to train new JAB and JDC participants, and
requested the Secretary-General to report annually on the work of the JAB.
In particular it requested the Secretary General to: "
establish a clear linkage
between the administration of justice and the system of
accountability when the decisions of the Administrative Tribunal
result in losses to the Organization due to management irregularities; [and]
take urgent
measures in accordance with financial rule 114.1 and staff rule 112.3 to
recover financial losses caused to the Organization by wrongful actions or gross negligence of senior
officials of the United Nations, particularly as a result of
the judgments of the Administrative Tribunal
" "Human resources
management," General Assembly resolution 55/258 of 27 June 2001, section XI.
[emphasis added.]
This resolution was quite significant. At last,
someone, and especially the General Assembly, was finally tying action
against "management irregularities" [i. e., waste, fraud, and abuse,
although these specific but ugly words are rarely mentioned in the pious
UN even today] and the "system" of accountability to the internal justice
system. The Assembly then requested urgent measures by the
Secretary-General to deal with financial losses caused specifically by
misbehaving "senior officials." Sadly, the entire internal justice system, including
the UNAT, almost always excludes "the managers" from their deliberations,
assessing only whether the staff member who is appealing was sufficiently
injured by "the decision" to receive some monetary compensation (and not
very much at that for careers often destroyed, see the ACABQ report below
of 13 February 2002 on UNAT judgments and damages awarded.) But the
Assembly's action was at least a sign of hope. In early 2002 attention was indeed shifting to the
distant and mysterious UNAT, and a second "spotlight" was shown on this
final level of internal justice. An article in a Geneva staff journal
examined ILO Administrative Tribunal judgments from 1995 to mid-2001 and
found a "bleak and disconcerting picture for international civil servants
facing ever-increasing attacks upon their rights and job security." The statistics revealed that staff won an average of
only 29 percent of the cases at the ILOAT over this period (ranging
annually from 18 to 41 percent.) A "win" was very liberally defined to
include some damages awarded, usually for inexplicable delay, even though
the appellants had all their claims rejected by the ILOAT. Although the
ILOAT has long been viewed as a fair and impartial body, the article
concluded that it now seems more a rubber stamp than an unbiased
forum. A
similar study could not be done for the UNAT, which had not made its
decisions publicly available, purportedly due to lack of funding, a rather
grave violation of due process. "The legal corner:
That losing feeling," UN Special (Geneva), January 2002, pp. 15-17.
In February 2002, the Secretary-General responded to
"certain aspects" of all this in a report which the Assembly had
requested. He prevented four technical options: to make the JAB
advisory-plus; to maintain the status quo; to make it semi-judicial with
authority to take decisions, or to make other changes resulting from staff
consultations. He also provided a first annual report on JAB work
(but only "appeals filed" and "appeals disposed of.") He asserted
his "quite high" acceptance of JAB unanimous decisions (without saying who
those judgments favoured), but urged that those judgments "be more
reliably supported by the evidence" and "in accordance with the applicable
law." However, he reserved his right to reject unanimous JAB
recommendations "in the interest of the Organization". Finally, he
stated that some legal training courses were finally being provided for
new JAB and JDC members in New York, with training at other duty stations
to follow at an unspecified date. "Administration of
justice in the Secretariat: Report of the Secretary-General," UN document
A/56/800 of 13 February 2002, sections I, II,
and IV.
The report included two more items of interest. Finally,
after all the years of discussion, an ombudsman was established. To
"preserve
independence and ensure the effectiveness of the function" the
ombudsman, although servicing all duty stations, including field missions,
is located in the office of the Secretary-General and assisted by one
legal officer. The new ombudsperson is thus independent of all officials
[except the Secretary-General himself] and considers "conflicts" in the
Secretariat in which s/he can advise staff but has no decision-making
powers.
The power of two people working right next to the
Secretary-General to advise on conflicts among 15,000-35,000 staff
worldwide is clearly a "mission impossible", and quite probably just a
gesture rather than a useful force. IO Watch will follow the adventures of
this "lone ranger" in the future. "Administration of
justice in the Secretariat: Report of the Secretary-General," UN document
A/56/800 of 13 February 2002, section III and
Annex II. [Note: the first
Ombudsman, Ms. Patricia Durrant, was appointed, for a non-renewable
five-year term, in October 2002.]
Finally, the Secretary-General's 2002 report ventured
into the powers of the UNAT and ILOAT. He noted that the UNAT statute does
permit it to rescind a contested administrative decision or specific
performance of the obligation invoked, and noted that, since 1987, the
Secretary-General has acted to implement the order of UNAT to reinstate
staff members or comply with related orders "where possible" (but as usual
with no statistics provided.) He stated also that he might reconsider his position
on specific performance IF the ILOAT and UNAT tribunals were "fully
harmonized," and that the "damages" awarded to successful UNAT
appellants could be raised. "Administration of
justice in the Secretariat: Report of the Secretary-General," UN document
A/56/800 of 13 February 2002, section V. [emphasis
added.]
The Secretary-General then noted an interesting
contrast between ILOAT judges and UNAT "members," in another inadvertent
testimony to UN support of "amateurism" and "good old boys" in the
selection of staff for key posts: " Although no
specific qualifications are stated for either [group]
except
different
nationalities, in practice UNAT members include persons of a wide variety
of backgrounds [including many with "some years" as diplomats at the UN]
, while ILOAT is staffed by professional judges from the highest levels
of national court systems.
ILO judges are
appointed by the International Labour Conference, after nomination by
Director-General of ILO and following consultations with the ILO Staff
Union
by contrast, UNAT members are nominated by governments, and their
election in the Fifth Committee is confirmed by the General Assembly." "Administration of
justice in the Secretariat: Report of the Secretary-General," UN document
A/56/800 of 13 February 2002, section V, paras.
39-40.
Another important UNAT "piece of [future] business"
was added in late 2002 by a JIU follow-up report on possibilities for
appealing UNAT judgments. The Inspectors did not address substantive law
but noted that they had "identified large substantive and procedural
lacunae in law which may allow organizations to evade the worst
consequences of improper decisions by their officials." They then made
recommendations [for quite drastic changes] to ensure staff members
recourse options equivalent to those of civil servants in domestic
jurisdictions: -- more independence of internal justice bodies;
-- more informal conciliation; -- considering eventually harmonizing and merging the
UNAT and ILOAT; -- generally accepting appeals bodies' unanimous
decisions, reporting regularly on their work, and having them hold oral
hearings; -- arranging for comprehensive legal insurance for
staff in these procedures, and -- lastly, the JIU report stated that the General
Assembly might wish to study: "
the
desirability of establishing an ad hoc panel
to review [the judgments
of] the existing two tribunals or a single future tribunal
[with]
Applications
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.
A little of the mystery about the operations of the
UNAT had already been dispelled by an ACABQ report in 2000. It included
information on the number of JAB cases from 1995-2000 and UNAT case
judgments rendered from 1994-1999. Of most interest, however, was some
information pulled together on payments made as a result of UNAT
judgments.
It stated that the UNAT had only "very rarely" awarded compensation
as recommended by JAB, but more importantly that payments made to
implement UNAT judgments from 1996-1998 were paltry indeed: about
one-quarter were for $5,000 or less, the majority about $20,000 to
$50,000, and the highest two were for $85,000 and $112,000. "Administration of
justice in the United Nations: Report of the [ACABQ]," UN document
A/55/514 of 23 October 2000 . [Note: many of the
sums are not small, but where they concern destruction of professional
careers and a five-year appeals effort, they seem small indeed (especially
since the managers who created the whole mess remain
untouched.)]
In February 2003 the ACABQ also recommended that the
UNAT be strengthened by requiring at least that candidates "possess
judicial experience in the field of administrative law or its equivalent
in the candidate's national jurisdiction." In October 2003, however, the Sixth
Committee (legal) of the General Assembly adopted an oral revision of a
draft resolution, without a vote, which "
replaced the words 'judicial experience' with the
words 'judicial or other relevant experience.'" "Administration of
justice in the United Nations: Report of the [ACABQ]," UN document
A/57/736 of 18 February 2003 ,
and
"Administration of
justice at the United Nations: Report of the Sixth Committee," UN document
A/58/521 of 17 October 2003. [Note: The
resulting General Assembly resolution 58/87 of 8 January 2004,
"Administration of justice at the United Nations", dutifully
included the Sixth Committee's widened scope, but followed it with the
ACABQ's language above, minus its first three words.]
Even more importantly, the Secretary-General had
mentioned in his February 2002 report that the delays in the appeals
process were of concern to everyone. He therefore requested the OIOS to make
a management review of the entire appeals process to that effect. One can hope
that the OIOS study will carefully analyze the performance of the entire
appeals system as the JIU report in 2000 did not. The ACABQ
stated, for instance, that "
the [OIOS} study should also attempt to quantify
the cost of
selected cases from the beginning until the [completion at
the UNAT]
and whether a strategic increase of the resources available
could
lead to a speedier handling of the cases concerned." "Administration of
justice in the United Nations: Report of the [ACABQ]," UN document
A/57/736 of 18 February 2003 , paras.
6-7.
The General Assembly resolution in May 2003 on all
these matters was most encouraging. It stated inter
alia that it: "4.
regrets the
serious delays in the appeals process, and requests the Secretary-General
to ensure full cooperation
and accountability in the internal system of justice of the manager whose
decision has been challenged, at all stages of the process; 5. Requests
steps to ensure the
independence of the [UNAT and its separation from the OLA]
and
to study [and report on] its financial independence
;
8. Welcomes the
initiative of the Secretary-General in requesting the [OIOS]
to conduct
a management review of the appeals process
9. Requests the
Secretary-General [taking account of the findings of the OIOS report]
to
submit
alternatives on strengthening the administration of justice by
means of ensuring transparency
and fairness in the provision of justice to staff
; 10. Also requests
OIOS to include
measures to shorten the period required for the
disposal of cases
including imposing deadlines at all stages of
the process;
16.
[consider issues] of comprehensive legal insurance schemes to
cover legal advice and representation for staff, with a view to ensuring equality
in adversary procedures
;
20. Requests the
Secretary-General
with the Ombudsman and staff representatives, to submit detailed
proposals on the role and work of the Panel on Discrimination and Other
Grievances
; 21. Also requests
the Secretary-General to
include statistics on the disposition of cases and information on
the work of the Panel of Counsel in his annual report on the administration of justice in
the Secretariat;
24.
Reiterates
its
request to
establish a clear linkage between the administration of
justice and responsibility and accountability [in the UN
Secretariat when decisions of the UNAT result in losses
due to
management irregularities]
; 25. Reiterates its
request to the Secretary-General to develop
an effective system of
personal responsibility and accountability to recover financial losses
caused by management irregularities
[that result in UNAT judgments], and
to report thereon
; 26.
Requests the Secretary-General to expeditiously finalize and issue an administrative
instruction on the implemention of resolution
55/258, Section XI , para. 9 [i.e., to recover financial losses caused to the
Organization by wrongful actions or gross
negligence of senior officials
particularly as a result of the
judgments of the [UNAT]]; "Administration of
justice in the Secretariat," General Assembly resolution 57/307 of 22 May 2003.
[emphasis added.]
In January 2004 the UNAT presented an
equally-promising report on its activities, as requested by the General
Assembly.
Most of the text laboriously reviewed the UNAT's organization,
jurisdiction, and general functioning, with two vague paragraphs on its
judicial work and finances (no dollar figures were given). However, it
did make four important points, and especially the last: -- the average time for a case to
reach the Tribunal ranges from two to three years, with an additional two years to
conclude it; -- the Tribunal's independence, and
confidence in it, is curtailed because the UNAT is dependent on the Office
of Legal Affairs [which represents the Administration in most UNAT cases]
for its administration, budget implementation, staffing, and physical
facilities.
Separating the UNAT from the OLA and giving it its own staff, like
the ILOAT, would "indelibly imprint
the appearance of independence and
impartiality" and also preserve the Tribunal's reputation and thus sustain
confidence in the UN judicial process; -- The restriction on the UNAT's ability
to impose specific performance seriously limits the rights of UN staff to
redress, and the time has come to "close the gap"; -- The Tribunal would very much like to
present an annual report to the General Assembly to keep it informed of
emerging jurisprudence and some of the main conflicts that erupt between
the Administration and staff members. For example, "the Tribunal has
on several occasions suggested that the Secretary-General consider invoking Staff
Rule 112.3, thereby deciding that the officials who violate staff
regulations and administrative instructions should be held personally
accountable for the monetary damages occasioned by such
violations.
The Tribunal has held
that invoking staff rule 112.3 would deter staff from
deliberately flouting the rules and prevent the Organization from having
to pay for the intentional violation of the rules by its
officials." "Comprehensive
report on the activities of the [UNAT]: Report of the [UNAT]", UN document
58/680 of 14 January 2004, esp. paras. 24-29
and 33.
[emphasis
added.]
These developments were encouraging, and provided
potential for major breakthroughs after decades of frustration about
the weak UN administration of justice system: -- the General Assembly resolution of
May 2003, with its many firm proposals for improvement and action; -- the important points and proposals
made by the UNAT in its report of 14 January 2004; -- and the report of the OIOS on the many delays in the internal justice appeals process.
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