Published November 11, 2011
Little more than two years after United Nations Secretary Ban Ki-moon inaugurated a new justice system to safeguard employee rights, the judges he appointed to the main tribunal have unanimously charged that the U.N. chief is trying to “undermine the integrity and independence” of their court in a bid to crimp their powers.
The judges, members of the United Nations Dispute Tribunal, also charge him in an open letter to the U.N. General Assembly with offering a “misleading and one-sided” account of their judgments to the Assembly as part of the attempt to get his way. (Ironically enough, the letter was sent to the Assembly as required by protocol by Ban himself, as a document from the Secretary General.)
Ban’s intended changes in how the court operates, they say, “raise serious concerns regarding the respect for the rule of law within the Organization,” give “power without accountability” to a variety of U.N. institutions, remove important avenues of legal recourse for U.N. staffers and could make the exercise of the court’s recently enshrined authority “meaningless.”
A U.N. spokesman told Fox News that the Secretary General has “full respect for the independence of the judges,” and said Ban is simply trying to clarify some unforeseen complications of the U.N. legal appeals process and bolster the independence of other institutions that are supposed to protect employees, especially whistleblowers.
The dispute, couched in dense and arcane legal language, is still wending through the convoluted U.N. legislative process. The General Assembly’s legal committee has already declared that Ban’s changes “should not be taken up at this time” before bouncing the matter over to the powerful 5th, or financial, committee.
“The judges were quite right to object to several of the Secretary General’s proposals, which were ill considered and would have had the result of greatly delaying justice and depriving staff of certain rights to which they are entitled,” says Geoffrey Robertson, a distinguished British jurist and member of the U.N.’s own Internal Justice Council, which, among other things, picks judges for the U.N. Dispute Tribunal.
Robertson added his soothing judgment that “these are minor teething problems in a totally new system, and the lesson is simply that the Secretary General should consult more closely with judges and certainly with the Internal Justice Council before trying to tinker with it.” Overall, he says, the justice system “is working surprisingly well.”
Nonetheless, the muffled judicial push-and-shove is important for several reasons—not least the strong reaction of the independent judges. There are three full-time and two half-time judges attached to the Dispute Tribunal, along with three “ad litem,” or ad hoc judges helping to deal with case overloads. They are deliberately chosen from outside the U.N. system to help break what has been described as the U.N.’s incestuous “culture of impunity” which protected corrupt officials and other abusers of authority while punishing whistleblowers and others who bucked the system.
Moreover, their charges echo similar accusations of interference over the past two years from U.N. oversight bodies that are independent from Ban’s Secretariat, but depend on the Secretary General’s bureaucracy for institutional support. In both cases, Ban’s rationale was embedded in technical issues.
In July, 2010, Inga-Britt Ahlenius, the outgoing head of the U.N.’s watchdog Office of Internal Oversight Services (OIOS), which audits the Secretariat and investigates fraud and malfeasance, charged Ban with “undermining” her organization, while blocking for nearly 20 months her choose as head of OIOS’s sensitive Investigations Division. She also said Ban’s Secretariat was “drifting into irrelevance.”
Ban’s reason for rejecting Ahlenius’ choice was linked to his desire to put more women in the U.N. hierarchy.
A little more than a year earlier, another watchdog institution, known as the Joint Inspection Unit (JIU), charged Ban in its annual report with an “illegal action” in demanding a bigger say in selecting candidates to become the JIU’s powerful executive secretary.
Ban got his way—once again, he said he wanted to promote more women-- and JIU’s independence, at least in terms of its reports, does not appear to have been affected: the unit has since issued a number of documents highly critical of U.N. operations
(Among other things, for example, the JIU last July charged that Ban’s choices for top appointments are shrouded in excessive secrecy, and that U.N. member states are kept in the dark about senior vacancies.)
The Dispute Tribunal judges, however, are mostly upset at changes that Ban wants to make in their rules of procedure. Among other things, Ban wants to suspend the Tribunal’s ability to enforce temporary judgments, known as “interlocutory orders” while they are being appealed to the U.N.’s highest judicial body, the seven-member United Nations Appeals Tribunal.
Click here to see the Judge's letter.
This change, the judges argue, would render the court toothless, especially when the temporary order granted what the judges call “interim relief,” for example when ordering the Secretariat to cease and desist from an action that judged illegal, invalid or retaliatory.
In other cases, where the judges had ordered Ban’s Secretariat or an accuser to produce a document or witness in response to charges of unjust treatment, for example, inability to enforce the order “would allow either party to paralyze the process” and make the court ineffective, the jurists said in their open letter.
For his part, Ban’s office told Fox News in response to a query that when the statutes governing the courts were written, they did not say what should happen when the court issues such an order, and argued that this was because, “it was not envisaged that the Dispute Tribunal would issue interlocutory orders.” Now the judges do so “frequently,” Ban’s office noted, while saying that the U.N. appeals court has struck down some as “unlawful.”
The jurists were also seriously aggrieved that Ban objects to their hearing appeals from some of the U.N.’s independent oversight institutions, including OIOS and the U.N. Ethics Office, which judges, among other things, whether the U.N. has retaliated against whistleblowers. The judges call the actions taken by these institutions against U.N. employees “administrative decisions,” meaning actions that fall under their jurisdiction.
Ban argues that since the institutions are supposedly independent from him, their decisions are not administrative and just not reviewable by the courts. “The exercise of judicial review over the actions of independent entities would have very real trade-offs for the manner in which these entities are able to conduct their functions,” Ban’s office told Fox News in a response about the issue.
Ban’s office argued that knowing they might have to testify in a U.N. court could even have a “chilling effect” on future whistleblowers who wanted to expose wrongdoing at the world body, and it should be up to the U.N. General Assembly to decide whether the courts had jurisdiction.
Ban’s ostensible concern for whistleblower inhibitions was not perceived the same way by the Government Accountability Project (GAP), a Washington –based organization that protects such organizational dissidents, and was heavily involved in the original design of the U.N.’s whistleblower protection rules.
“We are really concerned about the Secretary General’s proposal,” said Shelley Walden, a GAP specialist who has monitored the U.N. judicial battle. “If it passes, then whistleblowers will have no day in court, and little protection.”
“The Secretary General has recently claimed that he aims to promote whistleblowing,” she added, “but his actions don’t meet his words.”
Where both sides in the judicial battle apparently agree, however, is that the Dispute Tribunal and its appeals counterpart are already overburdened. In his report on the issue, Ban pitches for a $1 million increase in the budget for the new system, to about $8.66 million, and add 26 additional support staff.
Whether that is likely to happen in the midst of a global economic crisis and heightened international skepticism about U.N. spending is an issue neither Ban nor the judges can decide.