Is Ban Ki-moon in contempt of court?

By Colum Lynch 
May 12, 2010
Foreign Policy
Original Source: 
http://turtlebay.foreignpolicy.com/posts/2010/05/12/is_ban_ki_moon_in_contempt_of_court http://turtlebay.foreignpolicy.com/posts/2010/05/12/is_ban_ki_moon_in_contempt_of_court

U.N. Secretary General Ban Ki-moon has refused to comply with numerous orders from a new U.N. personnel tribunal to hand over confidential documents and other sensitive information needed to resolve a series of legal claims of unfair treatment by U.N. employees, according to court documents reviewed by Turtle Bay. 
The dispute has set the stage for an acrimonious institutional struggle for power between the secretary-general, who is seeking to fend off court challenges to the privileges and authority of his office, and the judges, who argue that claimants can't prove they have been wronged without access to internal U.N. documents or confidential witnesses. One of the U.N. judges, a combative Australian named Michael Adams, has called Ban's defiance of the new tribunal an attack on the rule of law. 
In the latest clash, Ban's lawyer Susan Maddox on Friday refused another of several orders by Adams (who will be stepping down from his post later this month), to turn over notes from a U.N. ethics probe in a case involving an American whistleblower. The American, James Wasserstrom, was forced from a top U.N. job in Kosovo three years ago after cooperating with an internal corruption investigation. He maintains that the internal probe erred in its conclusion that his dismissal did not constitute an act of retaliation, and that he has suffered more than $1 million in damages, including the loss of future benefits. 
The Wasserstrom claim is one of more than 160 cases that have moved through a U.N. tribunal established last July as part of a major reform of the U.N.'s internal justice system, meant to replace a cumbersome decades-old process with its roots in the U.N's small early days. But challenges from the secretary-general's office have posed a key early test; So far, the dispute tribunal has ruled 35 times against Ban, while his lawyers have filed 25 appeals. Ban has won 33 judgments. 
In a bid to challenge the tribunal's challenge to executive privilege, Ban's lawyers appear to have settled on a strategy of declining to respond to orders by the lower level court they deem unjustified in the hopes of prevailing on the appeals judges to rule in his favor. The U.N. intends to appeal those cases where the organization has genuine questions about the dispute tribunals decisions, said Martin Nesirky, Ban's chief spokesman. 
The fact that the organization has appealed decisions of the dispute tribunal does not in any way diminish or affect the respect held by the organization for the dispute tribunal or its decisions, said Nesirky. The system of the administration is a two-tiered process, in which decisions by the dispute tribunal are subject to review by the appeals tribunal. By filing appeals, the secretary-general is exercising his rights under the administration of justice with full respect for that system. 
The new tribunal consists of dispute tribunals in New York, Nairobi, and Geneva. The rulings by the dispute tribunals -- which are each headed by a single judge -- can be appealed to a higher appeals panel of three judges that operates out of New York and Geneva. Its decisions are binding on the U.N. secretary-general and the more than 55,000 U.N. staff that are governed by it. 
The tribunal replaces a decades-old administrative justice system that was designed in the 1940s to oversee personnel disputes in a relatively small institution. A staff of volunteers with little or no legal experience ran the tribunal. Over the years, the administrative process built a reputation among the U.N.'s top brass as a pro-worker court that ruled in favor of corrupt U.N. staff; in one famous case the organization was forced to pay back dues to a man accused of participating in genocide in Rwanda. 
The new system -- overseen by professional judges drawn from national courts with varied legal traditions -- is far more efficient, producing judgments at far higher rate. But it has delivered a shock to an institution that is unaccustomed to having the decisions of its chief executive reviewed by an independent court. Some officials have privately groused that the judges don't recognize the distinctly political nature of the organization, and that they mistakenly try to apply rules from their national laws to an international organization. 
They fear the new body's intrusive orders will weaken the authority of the secretary-general over his staff and potentially upend U.N. efforts to hold U.N. officials accountable for mismanagement or misconduct. The tribunal has little power to enforce a contempt of court order on the United Nations. But if the appeals tribunal rules in favor of the lower court, Ban may seek support from the U.N. General Assembly to revise the tribunal's statute to restore some of his privileges. Otherwise, he will be forced to submit to the demands of a more powerful new judicial branch in the U.N. 
For employees, the emergence of a more assertive judicial body is improving a system they believe has been rigged against the little guy, denying whistleblowers access to adequate legal defense and confidential documents needed to make their case while shielding their bosses and accusers behind a blue wall of diplomatic immunity. 
The U.N. disables people from defending themselves by not granting access to the information they would need to defend themselves, said Wasserstrom. My impression from everything I have seen is this system is working much better than the previous one; they have rules in place for the first time in 60 years and we seem to have independent judges who seem to be taking this stuff pretty seriously. 
In February 2007, Wasserstrom began feeding information to investigators from the U.N.'s Office for International Oversight about possible corruption by top U.N. officials responsible for Kosovo's energy sector. The alleged scheme involved the possible payment of kickbacks to senior U.N. officials in Kosovo. Two months later, Wasserstrom was informed that the UN was shutting down his department and that his contract would expire by June 30. In May, Wasserstrom signed a consultancy contract to advise executives of Kosovo's main airport. 
The decision triggered a conflict of interest investigation. On June 1, 2007, Wasserstrom was detained by U.N. police after he sought to leave Kosovo on family leave. His home was searched and his office was cordoned off with police tape. A poster with his picture instructed U.N. officials not to permit him into U.N. premises. 
Wasserstrom filed a complaint of retaliation against the mission's leadership. The ethics office ruled the U.N.'s treatment of Wasserstrom appeared to be excessive but that an exhaustive U.N. investigation did not find any evidence that their activities were retaliatory. 
Wasserstrom is seeking to challenge the ethics office finding as flawed. The U.N. has argued that the dispute tribunal has no jurisdiction over the case because the ethics office is an independent entity and does not answer to the secretary-general. 
But Adams, the Australian judge who is handling Wasserstrom's case, has rejected that argument, saying that the ethics office is accountable to Ban. Ban has appealed and refused to comply with any request for documents until the matter is resolved. 
Adams has dismissed Ban's claim and demanded that the U.N. comply with his order to furnish the documents. The combative approach has contributed to Adams's reputation as a champion of the staff, a rare U.N. judge with the nerve to crack the shield of impunity that has protected senior U.N. officials from abuses of power. 
In a separate ruling, Adams excoriated Ban last month for willful disobedience in a case involving a senior U.N. official who claimed he was unfairly denied promotion. Adams has refused to allow Ban's lawyers to speak in court until they comply with an order to produce internal documents related to the U.N. hiring process, and to apologize for defying him. 
In my review the refusal constituted an attack on the rule of law embodied in the statute of the tribunal, Adams wrote in a March 8 ruling. 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. 
The U.N.'s lawyers have argued that Adams has no authority to interfere with Ban's appointment of top officials, comparing his decision-making powers to that of a head of state appointing a cabinet member. These officials -- who are often selected on the basis of nationality or their political connections -- are accountable politically but not judicially, Ban's lawyers contend. 
Earlier this year, Adams also took on the top-ranking Egyptian national in the United Nations, Muhammad Shaaban, undersceretary general for General Assembly Affairs and Conference management,  for alleged abuse of authority. A Lebanese interpreter, Samer Abboud, claimed that an Egyptian aide to Shaaban had manipulated the interview process in the competition for a more senior post to favor an Egyptian candidate. 
Adams criticized Shaaban for failing to conduct a fair investigation into possible abuses in the hiring process. Instead, Adams claimed, Shaaban subjected Abboud to insult, patronizing comments, and retaliatory threats that he be disciplined for questioning his bosses' authority. He ordered the U.N. to pay Abboud $20,000 in compensation. 
I regret that I have concluded that Mr. Shaaban is an unreliable witness, Adams wrote in a January ruling. I am left with the powerful impression that he was not concerned to tell the truth. 
The U.N. had argued that the court lacks jurisdiction to determine whether the secretary general should hold Mr. Shaaban accountable for his actions. U.N. lawyers advised Shaaban not to participate in a hearing where the matter would be addressed.