U.N. head Ban Ki-Moon refusing orders from internal personnel court

By Colum Lynch
Washington Post Staff Writer
Thursday, May 13, 2010

UNITED NATIONS -- 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 legal claims by U.N. employees of unfair treatment, according to court documents.

The dispute has set the stage for a power struggle between the secretary general, who is seeking to fend off court challenges to the authority of his office, and the dispute tribunal's judges, who argue that claimants can't prove they have been wronged without access to internal documents or confidential witnesses.

Ban's lawyer, Susan Maddox, on Friday refused another of several orders to turn over notes from a U.N. ethics probe 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.

Wasserstrom's claim is among more than 160 cases that have moved through the tribunal, established last July as part of an overhaul of the United Nations' internal justice system meant to replace a cumbersome, decades-old process. But challenges from the secretary general's office have posed an early test of the new system; so far, the tribunal has ruled 35 times against Ban, and his lawyers have filed 25 appeals. Ban has won 33 judgments.

"By filing appeals, the secretary general is exercising his rights under the administration of justice with full respect for that system," said Martin Nesirky, Ban's chief spokesman.

A shock to U.N.'s system

The new system consists of judges on dispute tribunals in New York, Nairobi and Geneva. Their rulings can be appealed to a higher panel of three judges. Its decisions are binding on the secretary general and the 50,000 U.N. staff members.

The new tribunal has proved more efficient than the previous system, producing judgments at a far higher rate. But it has also been a shock to an institution unaccustomed to having the decisions of its chief executive reviewed by an independent court.

Confronting the tribunal's challenge to executive privilege, Ban's lawyers have declined to respond to orders they deem unjustified, in the hope that the appeals judges will rule in his favor.

Some U.N. officials fear that the new body's orders will weaken the authority of the secretary general over his staff. If the appeals tribunal rules in favor of the lower court, Ban may seek support from the General Assembly to revise the tribunal's statute to restore some of his privileges.

For many employees, a more assertive judicial body is seen as an improvement over a system that they contend denied whistleblowers access to adequate legal defense and confidential documents while shielding their bosses and accusers behind diplomatic immunity.

In a recent ruling, Michael Adams, an Australian judge, excoriated Ban for "willful disobedience" in a case involving a senior U.N. official who claimed that he was unfairly denied a 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 case. "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 U.N. lawyers have argued that Adams has no authority to interfere with Ban's appointment of top officials, comparing Ban's decision-making powers to those of a head of state appointing a cabinet member. U.N. officials -- who are often selected on the basis of nationality or political connections -- are "accountable politically but not judicially," Ban's lawyers contend.

Employees praise rulings

The judges' rulings have been hailed by some claimants, including Wasserstrom. In February 2007, the American diplomat began cooperating with a U.N. investigation of possible kickbacks to top U.N. officials responsible for Kosovo's energy sector.

Two months later, Wasserstrom was informed that the United Nations was shutting down his department, the Office for Coordination of Oversight of Publicly Owned Enterprises, and that his contract would expire by June 30. In May, Wasserstrom signed a consultancy contract to advise executives of Kosovo's main airport, triggering a conflict-of-interest investigation.

On June 1, 2007, Wasserstrom was detained by U.N. police. 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 onto U.N. premises.

Wasserstrom filed a retaliation complaint with the U.N. ethics office. The office ruled that his treatment "appeared to be excessive" but that an investigation "did not find any evidence that their activities were retaliatory."

Wasserstrom is seeking to challenge the ethics office's finding. The United Nations 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.

For Wasserstrom, the new system means he might have recourse. "They have rules in place for the first time in 60 years," he said. "We seem to have independent judges who seem to be taking this stuff pretty seriously."

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