POST WRITTEN BY: Tamara Shockley, Administrative Law Specialist with UNICEF
To meet the challenges of the twenty-first century, the United Nations has created new management oversight reforms to enhance UN operations. The UN has responded to the demands by the Member States to use resources more effectively and efficiently. A number of reforms have been instituted to enhance accountability of the UN operations. With the UN at the forefront as a forum for establishing conflict resolution in the Middle East, as first responders for combating the Ebola virus, to sending peacekeepers to internecine conflicts in Democratic Republic of Congo or Central African Republic, it has become even more crucial for the accountability of the use of Member States’ resources.
The UN has responded to one of the demands of the Member States for internal accountability by strengthening the oversight of its audit and investigations’ body. The UN realizes that to proceed with its actions on the global front it has to ensure the Member States that there are internal operations to monitor financial accountability.
One of the areas which the Member States demanded reform is the area of internal investigations for procurement irregularities, fraud, and misconduct by internal staff members. The UN has a legal obligation to ensure compliance with internal regulations, rules and policies, including breach of employment obligations. Investigations in the United Nations are unique. The United Nations has partners in all parts of the globe: the investigators may be located in New York, the incident may have occurred in Africa, and the witnesses may have been transferred to Asia. In addition to geographic separation, United Nations’ investigations may have to contend with a range of different languages, including local dialects, cultures, customs and ethnic issues. These are all factors that affect the ability to investigate allegations of staff misconduct or irregular procurement procedures in the United Nations.
Why does the UN need oversight in internal investigations? The UN, governed by the General Assembly and composed of 193 Member States, is important as a multilateral forum for the discussion of global issues. The world is always watching the UN. The Member States also fund the UN and expect transparency and accountability in the expenditure of public funds. In turn, the UN has to demonstrate not only to the Member States but to the general public that it accords its staff with the same principles as guided by the UN Charter. Good governance in the UN requires internal oversight of staff members and UN operations to strengthen the integrity and respect for the UN.
What is the role of OIOS investigations in the United Nations? It is fundamental that internal investigations must have as its core mandate the purpose to determine whether any improprieties or wrongdoing has occurred in the Organization. The most significant benefit of a good internal investigation is that it enables management to determine whether there are any problems with corrupt staff, organizational structure, or administrative policies and procedures. An internal investigation provides UN management with an essential tool of oversight to identify any necessary changes to ensure on-going business operations and to disclose potential misconduct which may affect staff moral and bad publicity among the Member States.
The Article “The Investigation Procedures of the United Nations Office of Internal Oversight Services and the Rights of the United Nations Staff Member: an Analysis of the United Nations Judicial Tribunals’ Judgments on Disciplinary Cases in the United Nations” discusses the UN Judicial Tribunals which provide an impartial and independent forum for the resolution of disputes between the staff member and the Organization. The Article analyzes UN Dispute Tribunals and UN Appeals Tribunal decisions on due process rights and the responsibility of OIOS to conduct fair and timely investigations. This is a new area of law for the UN establishing a global commitment of fairness to international civil servants. If you would like to Ms. Tamara Shockley’s article in its entirety please pick up a copy of Pace International Law Review(27 PACE INT’L L. REV. 1 2015) this coming year.
This is a topic that appears simple at first glance. However, I can see some difficulty arising out of the “range of different . . . cultures, customs, and ethnic issues” to which Ms. Shockley alludes. I can see two problems.
Firstly, cultural and ethnic differences may result in different interpretations by UN Staff Members as to what behavior is permissible. Rules interpreted literally or strictly by certain cultural and ethnic groups are interpreted figuratively or contextually by others. The result is that certain behavior viewed as “corrupt” by one individual may be viewed as adherence to the “spirit” of the rule by another. Does the UN take this into account in the investigation process? If not, does it account for it in the adjudication process?
Secondly, custom, and through it, legal procedure, varies from state to state. The most glaring example, of course, is the difference between the Continental “Civil” System, which is inquisitorial in nature and holds case law to be secondary and subordinate to statutory law, and the Anglo-American “Common Law” System, which is adversarial in nature and utilizes stare decisis to reinterpret statutory law. Any employee attempting to navigate a UN system that investigates him or her will be stymied in interpreting such a system without proper representation. Does the UN system provide an employee under investigation with counsel, or must the employee acquire counsel independently to represent him or her?
Jake,
The United Nations has its own internal administrative Staff Regulations and Rules. Due to jurisdictional immunities enjoyed by international organizations a staff member does not have recourse to legal systems of its Member States. International administrative tribunals, the United Nations Dispute Tribunals and the United Nations Appeals Tribunals, have been established to bear the responsibility to decide upon internal disputes between an international organization and the staff member. The Judges are from both Common and Civil law systems. Staff members have access to pro-bono legal representation in the Office of Staff Legal Assistance.