See No Evil, Hear No Evil, Speak No Evil

Administrative Tribunals

The notion that justice is supposed to be blind is deeply ingrained in the history of most modern societies, but several cases recently decided by the ILO and UN Administrative Tribunals suggest that Madame Justice is today intentionally shutting her eyes to any and all irregularities on the part of administrations of international organisations no matter how outrageous or indefensible.

The three case which give rise to this disturbing revelation are In re von Keitz v. WHO (ILOAT Judgment 2108: http://www.ilo.org/public/english/tribunal/fulltext/2108.htm

In re Donoghoe v. WHO (ILOAT Judgment 2107: http://www.ilo.org/public/english/ tribunal/fulltext/2107.htm

And In re Auderset v. UNHCR (UNAT Judgment 1024),

all three of which judgments were recently announced by the respective Tribunals. None of the UNAT Judgements are available on-line; anyone interested in reading the case in its entirety will need to trek to the UN libraries in NY or Geneva.

The first two cases against the WHO involved allegations by WHO staff members of psychological harassment/mobbing on the part of their supervisors which ultimately resulted in the wrongful separation of the staff members from the organisation. In both cases, the alleged harassment happened more than three (3) years ago. Despite the fact that the ILOAT’s own jurisprudence in several other recent harassment cases against WHO stated that “Any organisation that is serious about deterring sexual harassment and consequential abuse of authority by a superior officer must be seen to take proper action. In particular victims of such behaviour must feel confident that it will take their allegations seriously and not let them be victimised on that account….” (in re Mussnig, ILOAT Judgment 1376), and that “When a staff member makes charges as serious as sexual harassment an organisation must do its utmost to afford protection. But it must at the same time carry out a full and proper inquiry that respects the rights of the accused….” (in re Eben Moussa, Judgment 1619), the ILOAT in these two most recent cases threw its own jurisprudence to the wind, completely ignoring the foregoing admonitions, and instead went out its way to protect the WHO Administration which has still not completed its own internal investigation into the allegations of harassment, more than three years after they were first raised.

In addressing the complainants’ claims that the WHO’s decision to terminate their appointments was irrevocably tainted by the fact that the officials most responsible for such decisions were also the officials whom the staff members had charged with harassment (long before the decision to terminate the staff members was taken), the ILOAT blithely dismissed these arguments saying that the staff members claims of harassment were premature, as the WHO had not yet completed their own internal investigations — some three (3) years after the harassment was first reported!

Yet more unbelievably, the ILOAT did not even bother to impose a deadline on the WHO’s alleged on-going, interminable internal investigations. As it said in Donoghoe, “when the working group on harassment has completed its work, the Director-General will be in a position to give a final decision which would be appealable to the Tribunal.” Small consolation to the complainant Donoghoe who had his long- term/short-term appointment abruptly terminated by his harasser/supervisor in July 1999 for reasons which the WHO internal appeal board found unjustifiable and irregular! One supposes that if the WHO completes its investigation prior to the ten year anniversary of Donoghoe’s wrongful termination and indeed confirms his allegations of harassment, the Tribunal will no doubt expect him to be grateful.

The reasoning of the Tribunal in von Keitz was still more untenable; although it expressly acknowledged in its decision that the WHO internal appeal board had found that von Keitz had documented a situation that would constitute harassment if proven, and called on the DG to carry out such an investigation, to which the DG agreed in July 2000, the Tribunal once again cavalierly ignored this overwhelming evidence of irregularity and confirmed the complainant’s poor performance evaluation completed by her harasser, ignoring the allegation of bias “since pending the outcome of the investigation, no final decision has been taken.” Adding insult to injury, the complainant learned that the WHO Harassment Panel had finally begun to investigate her claims of harassment a mere week before her scheduled date of forced separation from WHO, three years after she first reported the harassment to senior WHO officials, and some eighteen months after the WHO DG accepted the internal board’s recommendation that an internal investigation should be carried out.

Justice delayed is truly justice denied.

Even more discouraging for the complainants in these two cases was the complete lack of reliance on prior case law by the Tribunal in justifying the judgments — the complainants’ pleadings in both cases cited numerous previous decisions of the Tribunal in supporting their arguments. However, in both judgments, the Tribunal relied on not one of its prior decisions to explain its reasoning; the complainants were apparently expected to accept these immaculate proclamations as the edicts of an infallible body, having no need to base its decisions in any recognized law. The complainants are left to speculate how even those cases raised in their pleadings which stood in direct contradiction to the Tribunal’s ultimate result did not figure in their decision-making, or were deemed inapplicable. They will never know in reading the published decisions. Impunity is the word that comes to mind.

In the final case, Auderset, the UNAT was at least able to acknowledge that the UNHCR administration had violated its own internal guidelines when it failed to submit the decision of the complainant’s manager not to renew her fixed term contract to the appointments and promotions committee. Unfortunately, the UNAT then went on in its decision to substitute its own judgment for that of such committee to determine that even if the decision had been properly submitted to the committee, it probably would not have altered the contested decision not to renew the complainant’s contract. Of course, such logic makes one wonder why international organisations even bother to have such joint bodies as an appointment and promotions board or committee, when the Tribunal, some number of years after the fact, is particularly willing to take over the duties and obligations of such board or committee?

The UNAT in Auderset however must have had some pangs of conscience in taking such a decision, for it decided to award her, some six (6) years after the fact, USD 3000 for the breach of procedure. Once again, small consolation for the staff member who found herself terminated and out of a job without resort to proper procedure, which procedure allegedly exists to protect staff in just a situation.

So what is an international civil servant to do when faced with harassment or irregular actions on the part of administration officials? First, read “Interview with an Appellant” in the February 2002 issue of UN Special, and then write your story down and mail it to George Orwell — perhaps it will give rise to the next Animal Farm or 1984. Some consolation.

Contributed by WHO Staff Association counsel.