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Protecting Whistleblowers since 1977

UN Secretary-General Attacks Rule of Law; Jeopardizes Fair Hearing Rights for UN Employees

Shelley Walden, April 01, 2010

A new order issued by United Nations Dispute Tribunal (UNDT) Judge Michael Adams exposes the continued efforts by UN management to undermine the authority of UNDT, which reviews appeals from UN staff members regarding contested administrative decisions. According to the ruling (Bertucci vs. Secretary-General of the United Nations; order number 59), the Secretary-General has failed to produce requested documents, in violation of the Tribunal’s orders. In the words of Judge Adams:

  • “The requirement that orders made by the Tribunal be obeyed, especially those relating to the evidence to be produced at the trial, is not only essential to the integrity of the administration of justice but also the right of the applicant to a fair hearing.” (para. 3)
  • “It would entirely undermine the authority of the Tribunal if the respondent could continue to invoke its jurisdiction in cases where there were no orders to which he objected, but was indifferent to what occurred in cases where there were orders he decided he would disobey. It would leave the Tribunal and staff members in the position that they would never know whether the Tribunal’s orders would be complied with or not despite the undoubted legal obligation to obey the Tribunal’s orders.” (para.7)
  • “The respondent does not get to decide which orders he will comply with and which he will ignore. I noted that there was no other way the jurisdiction and integrity of the Tribunal can be upheld. In my view, the refusal constituted an attack on the rule of law embodied in the Statute of this Tribunal. I stated that the Secretary-General could either comply with the rule of law, or he could defy it, but it should be understood that, if he defies it, he cannot expect that the Tribunal will be prepared to listen to what might be said by him or on his behalf.” (para. 9, emphasis added)
  • “Accordingly, I ruled that the Secretary-General would not be heard in the second case and he should take fair notice that, if his counsel seeks to be heard in other cases before me, my present inclination was that, until the disobedience of the Secretary-General was purged by producing the documents ordered to be produced, accompanied by an apology to the Tribunal and an undertaking not to disobey an order again, the respondent would not be entitled to appear before me.” (para. 8)

This “attack on the rule of law” by the Secretary-General is troubling, given the role of the UN in promoting the rule of law throughout the world. According to the UN’s “Rule of Law” website:

Promoting the rule of law at the national and international levels is at the heart of the United Nations’ mission. Establishing respect for the rule of law is fundamental to achieving a durable peace in the aftermath of conflict, to the effective protection of human rights, and to sustained economic progress and development. The principle that everyone – from the individual right up to the State itself – is accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, is a fundamental concept which drives much of the United Nations work.

Yet, the UN Secretary-General, while promoting the rule of law internationally, is apparently undermining it within the organization. This jeopardizes the due process rights of UN employees, including whistleblowers.

Here is a suggested message:

Subject: Request for the Secretary-General to promote the rule of law by respecting the orders of the United Nations Dispute Tribunal.

Dear Sir or Madam:

The Rule of Law Unit’s website states that “promoting the rule of law at the national and international levels is at the heart of the United Nations’ mission.” A recent order by the United Nations Dispute Tribunal (UNDT), however, shows that this principle is under attack by the UN Secretary-General. According to this ruling (Bertucci vs. Secretary-General of the United Nations; order number 59), the Secretary-General has failed to produce documents as ordered by the Tribunal. In the words of Judge Michael Adams:

“The respondent does not get to decide which orders he will comply with and which he will ignore. I noted that there was no other way the jurisdiction and integrity of the Tribunal can be upheld. In my view, the refusal constituted an attack on the rule of law embodied in the Statute of this Tribunal. I stated that the Secretary-General could either comply with the rule of law, or he could defy it, but it should be understood that, if he defies it, he cannot expect that the Tribunal will be prepared to listen to what might be said by him or on his behalf.” (para. 9, emphasis added)

We urge your unit to request that the Secretary-General comply with UNDT’s orders. A failure to do so would undermine the rule of law and the Secretary-General’s credibility in advocating for this crucial principle at the “heart” of the United Nation’s mission.

Thank you for your attention to this matter.