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Features

World Bank: Anatomy of a criminal tribunal

Taye Abayre

2013-02-14, Issue 616

http://pambazuka.org/en/category/features/86211

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The World Bank and its Tribunal need to be held accountable for the systemic and prolonged violation of human rights of its employees of African descent – a crime condemned by a multitude of international human rights instruments. The Bank’s immunity towards these employees should be waived and they should be given another avenue to access justice.

As an international organization, the World Bank enjoys sovereign immunity. This means staff members with claims against the Bank cannot take their case to court. The purpose in granting this immunity in the first place was to protect the international organization from being unduly influenced by a member nation when it conducts its activities. Also, staff wanting to settle disputes were to benefit from receiving uniform and predictable outcomes from one judicial body rather than different staff resorting to their different national courts for different outcomes. Still, legal scholars say that the grant of immunity to international organizations like the World Bank is subject to ‘conditionalities.’ If the Bank infringes employees’ right of access to justice or if the Bank’s Tribunal does not effectively protect their right to fair and impartial justice, immunity is waived.

World Bank employees are confined to an internal justice system the pinnacle of which is an Administrative Tribunal. Over the years, several studies have found the Bank’s justice system lacks credibility, including studies by the US government (1999), the World Bank (1999 and 2003), the World Bank Staff Association (2005), and Government Accountability Project (2009).

More recently, this forum has carried several articles alleging systemic racial discrimination against the World Bank and the denial of due process by the Bank’s Administrative Tribunal. Racial discrimination and the denial of due process to victims of discrimination constitute human rights violations. The articles that appeared in this forum have been reproduced or tagged in over 100 print and online outlets in Africa, Asia, Europe, and North America. This interest testifies to the seriousness of human rights violation against Blacks in an institution that is purportedly leading the global effort to end poverty in Africa. Through it all, the Bank has retreated deep into its shell with deafening silence.

The most interesting explanation I have heard is that the Bank is not responding because it has outsourced the responsibility of justifying the unjustifiable to the Administrative Tribunal. It has an ‘unimpeachable’ alibi of convenience in a Tribunal that the Bank itself ‘hires’ and entrusts with an unimpeachable final say on staff charges against it. ‘It is Kafkaesque in its construct and Mugabean in its delivery,’ as one former senior World Bank staff put it.

The majority of the World Bank’s Tribunal judges are practicing lawyers and law professors. Traditionally, lawyers take an oath of office to perform their duties professionally in conformity with high standards of impartiality and independence. On the face of it the way the Tribunal is administered raises serious concerns about a potential conflict of interest. First, the judges are selected, hired and paid for by the Bank. Second, the judges serve a five-year term that is renewable for another term at the discretion of the Bank. Third, Justice for Blacks, a group consisting of current and former World Bankers, notes that ‘several of the Tribunal judges, including the immediate past and the current President of the Tribunal are also appointed by the World Bank President to serve as highly remunerated reviewers of the Bank’s International Centre for the Settlement of Investment Disputes arbitral awards.’

ARE TRIBUNAL JUDGES NEGLIGENT OR CULPABLE OF HUMAN RIGHTS VIOLATION?

This articles draws heavily on recent articles published on this forum and extensive evidence compiled by Justice for Blacks amounting to hundreds of pages. After extensively reviewing the evidence, it is hard to avoid drawing the conclusion that the Tribunal’s transgressions go profoundly beyond simple negligence and constitute human rights violations, namely denying victims of discrimination the security of justice.

IN VIOLATION OF ITS CARDINAL OATH: STRIKE ONE

One of the cardinal oaths lawyers and judges take is ‘to never seek to mislead by any artifice or false statement of fact or law.’ This is an oath the Tribunal and the Bank’s high-powered lawyers systematically and routinely violate with intent to deny due process to victims of racial discrimination.

In 2007, an African filed a complaint with the Bank’s Appeals Committee, a lower court of sorts, presided over by peers of the accuser and the accused. According to Justice for Blacks, the Appeal Committee that was chaired by the current vice president for the Middle East and North Africa (MENA) region reached two verdicts: official and informal. The official verdict was to reject the case, but in the meantime it ‘strongly’ recommended that the Bank ‘immediately resolve the totality of the complaint through mediation.’

A report by Justice for Blacks alleges, the informal verdict, which was sent to the Human Resources Vice President (HRSVP) confidentially, suggested that the Committee decided not to rule in favor of the aggrieved staff to avoid creating a precedent in a racial discrimination case. The Committee urged the HRSVP to take administrative actions to give the aggrieved staff appropriate relief. The HRSVP rejected both the official and informal recommendations in a signed memo and told the aggrieved staff he could take his case to the Tribunal should he wish to challenge the Bank’s summary dismissal of his case.

The actions of these two vice presidents provide a glimpse of what has sustained racial discrimination for decades. The MENA VP’s first priority was to protect the image and reputation of the Bank whilst only as a secondary matter trying to secure justice for the aggrieved staff through the ‘back door.’ The HRSVP has it within his power to confer ‘de minimus’ justice. He chose to deny him even watered-down justice. When the staff took his case to the Tribunal the Bank terminated him on trumped up charges.

During the Tribunal’s proceedings, the Bank’s high-powered lawyers falsely claimed that the HRSVP tried to implement the Appeals Committee’s recommendations by giving the staff an option for reassignment, but the aggrieved staff rejected it. The lawyers went a step further and accused the aggrieved staff of rejecting the VP’s gesture of wanting to offer relief.

The false claim was rebutted by the VP’s own signed memo to the staff member. More importantly, the Bank's Ombudsman (on record) rejected the claim as being false, as did one of the Bank's HR managers (under oath before the Tribunal). It was they who it was alleged had conveyed the VP's gesture of reassignment to the aggrieved staff member. Ignoring the Ombudsman’s written statement and the HR Manager’s sworn testimony the Tribunal accepted the Bank’s false assertion as a valid statement. In breathtaking disregard of the weight of the evidence and for due process the Tribunal stated in its judgment the staff ‘scorned the attempt to reassign him when it was broached to him.’

IN VIOLATION OF ITS CARDINAL OATH: STRIKE TWO

The Bank’s lawyers’ brazen disregard for the truth shown above is not an exception but epitomizes what has become routine and systematic perversion of justice. In protecting the Bank against allegations the Bank’s lawyers go as far as submitting falsified personnel records. One example on record in the public domain is the case of a former senior World Bank lawyer, Karen Hudes. Ms. Hudes, an American citizen and a graduate of Yale law school, withdrew her complaints after the Tribunal accepted a forged HR document submitted by the Bank’s lawyers as admissible. She states the forgery was badly done, ‘with whiteout marks clearly visible to the naked eyes.’

In another case, the Bank allegedly falsified a staff member’s HR record to justify its decision to get rid of him through redundancy. In this case the Bank admitted discrepancies in the HR record of the staff but claimed it was an honest error. The staff contended the Bank conveniently made ‘a large number of ‘errors’ everywhere in [his] HR files.’ In Decision No. 227 (2000), the Tribunal found the Bank’s decision an abuse of discretion and ordered the Bank to reinstate him. In the event the Bank did not like the reinstatement decision, the Tribunal gave the Bank an option to pay the aggrieved staff 18 month salary in lieu of reinstatement. The Bank that was found guilty of abusing its discretion was given an option. The Bank chose to get rid of him.

The third case involves AI v. World Bank (2010). The Bank told Dr. AI that he could not be appointed global manager of an international program because ‘Europeans are not used to seeing a black man in a position of power.’ After Dr. AI filed discrimination claims before the Tribunal, the Bank erased his managerial track record from his employment history and claimed he was an excellent technical staff, but had no managerial experience to be appointed global manager. What makes this brazen act outrageous is that during the Appeal Committee’s hearing the Bank is on record acknowledging that he was an outstanding deputy global manager of a major international program. The Tribunal had the transcript of the Appeals Committee hearing before it. In addition, over a dozen officials, including heads and chief economists of international organizations, wrote testimonials and references rejecting and correcting the Bank’s false assertions, but the Bank stood firm armed with forged documents. The Tribunal ignored the evidence and allowed the Bank's perjury to stand.

The Government Accountability Project reviewed the Tribunal’s judgment and concluded:

‘The Tribunal violated Appellant’s due process rights and failed to hold the Bank accountable for systematic and significant misrepresentations of fact. The Tribunal not only allowed instances of false testimony and written submissions to stand, but rendered them material by basing its judgment on them as if they constituted valid evidence. ‘

Having reviewed the case, the Staff Association stated ‘several aspects of the Bank’s internal justice system are broken.’ The egregious nature of the Tribunal’s judgment compelled the US Treasury and the US Executive Director to the World Bank to take unprecedented steps and got involved, but to no avail.

IN VIOLATION OF ITS CARDINAL OATH: STRIKE THREE

As noted above, the Bank deleted Dr. AI’s management experience from the record and presented him as a technical staff without management experience. Dr. AI presented a copy of his official HR record showing his stellar global management experience. Conspicuously, in its judgment the Tribunal surgically removed all references to his management experience from the evidence that he submitted. Its judgment read ‘The Tribunal observes that in the Applicant’s 2005 OPE [Overall Performance Evaluation], the Director, DECDG, praised the Applicant’s performance in the following manner:’

‘[The Applicant] continues to be a very strong performer .... I have no doubt that he will continue to be a high performer and use his excellent technical and inter-personal and client skills.’

Here is the full text from the original record:

‘[The Applicant] continues to be a very strong performer managing one of the most critical statistical programs that the Bank has ever managed. I have no doubt he will continue to be a high performer… and use his excellent technical and inter-personal and client skills.’

The Tribunal continued:

‘In the Applicant’s 2006 OPE, the Director commented that: ‘[The Applicant] brings much value to our work and I have the highest regards for his expertise and for his dedication and hard work.’

Here is the full text from the original record:

‘The Applicant has multiple roles in terms of the Bank’s global management of the ICP and handles critical and important functions dealing with difficult project coordination, management, and technical issues. He is praised for his many skills in handling difficult regional ICP implementation cases. He brings much value to our work and I have the highest regard for his expertise and for his dedication and hard work.”’

It should be noted that the central point of contention that the Tribunal was reviewing was whether the staff member had experience to be global manager or if his experience was limited to technical tasks as the Bank contended after falsifying his employment history. The Tribunal deducted material statements from the evidence to bring it in line with the Bank’s perjured submissions.

IN VIOLATION OF ITS CARDINAL OATH: STRIKE FOUR

During a departmental reorganization led by the same director that the above mentioned staff accused of racial discrimination, 60 percent of blacks were terminated in 1995. In contrast, none of their white counterparts were affected by the reorganization. None of the seven black staff members who worked under the same director between 1996 and 2009 were ever promoted. The aggrieved staff was assigned progressively increasing management responsibilities without promotion in grade. In contrast, 50 percent of the white staff was promoted by at least one grade, several by two grades. Table 1 shown below was submitted to the Tribunal and the World Bank did not refute the data.

Table 1: Redundancy and promotion by race and
Place of origin in DECDG department



The evidence also showed that a 2003 World Bank study found that being black is associated with a 36.3 percent reduction in the odds of being a manager compared to that of their white counterparts. In comparison, other groups such as South Asians face 13.1 percent reduction. The same study shows that the salary scale for blacks is lower than that of South Asians, who are in turn making less than their white colleagues. The darker the skin color of the staff, the further he/she is down the Bank’s professional ladder. According to GAP’s report, “Having reviewed the above, as well as evidence specific to the aggrieved staff’s case, the Tribunal concluded: ‘Considering the record, the Tribunal does not see any pattern of prejudice.’

In addition to the above table, the same Appellant submitted in a second discrimination/retaliation case two signed testimonies from his former non-black colleagues supporting his claim of discrimination by the same director. One wrote: ‘African colleagues represent a group that is treated unfairly or openly discriminated against. Africans were virtually excluded from promotion. This cannot be explained by any objective factor.’ Another wrote, had it not been for his intervention the Director’s plan in 1995 was to fire 80 percent of the Black staff. He, too, confirmed, the decision could not be justified by any objective criteria. The Tribunal summarily rejected the racial discrimination charges falsely asserting in its judgment that ‘No new facts regarding racial discrimination, beyond his bare assertions, have been provided by the Applicant.’

IN VIOLATION OF ITS CARDINAL OATH: STRIKE FIVE

In another case, a staff member was subjected to sustained and vicious retaliation after he charged racial discrimination. He sought to substantiate his emotional, psychological and physical sufferings before the Tribunal with hard evidence including: (i) an extensive report from one of the world’s premier workplace psychological abuse experts warning the Bank that the staff member was at a serious risk of suffering a heart attack or even suicide, (ii) evidence of two emergency room visits, (iii) a report from a prominent psychiatrist confirming that the staff was suffering from clinical depression, (iv) evidence of prescriptions for depression medications, and (v) a 2007 World Bank study stating that ‘Systematic and prolonged bullying at work is highly injurious to the victim’s health resulting in stress, blood pressure, depression and heart attack. Many of the harassment behaviors in the Bank fall squarely into the category of office bullying that is more devastating than all other work-related stress added together.’ Nonetheless, the Tribunal’s judgment claimed:

‘The Applicant’s heated rhetoric about the injury he perceives simply cannot substitute for material evidence of his serious charges. … Naturally the Tribunal cannot accept the Applicant’s allegations of bullying and intense psychological abuse, unsupported as they are by any evidence save his own assertions.’

The apparent lack of willingness to consider evidence of physical and mental suffering of a defenseless staff is perhaps more disturbing than the Tribunal's denial of having such evidence before it. As a recent article by Justice for Blacks noted, victims of discrimination spend upwards of $100,000 in legal fees hoping for justice, but end up seeing their evidence ignored and their pursuit of justice robbed by the very people who are under moral and legal obligation ‘to never reject the cause of the defenseless or oppressed.’

IN CONCLUSION

In 2009, after extensively examining the Tribunal’s judgment on racial discrimination cases, the Government Accountability Project documented that the Tribunal failed to find discrimination in any of the racial discrimination cases that it reviewed over 12 years. The report went on to note, ‘Given that a series of studies have found systemic discrimination within the institution, and that the Bank’s data show racial differentials, this record at the Tribunal is disturbing.’ According to Justice for Blacks, since 2009 the Tribunal has rejected all seven racial discrimination claims it has reviewed, maintaining its 100 percent rejection rate.

The evidence Justice for Blacks has compiled against the Tribunal is overwhelming. The evidence is both qualitatively and quantitatively beyond anecdotes and simple patterns. As they say, one is an incident, two is a coincidence and three establishes a pattern. When there are dozens of such verdicts the ‘pattern’ becomes a certain signature ‘modus operandi’ that simply cannot be ignored. The question is: what happens when Tribunal judges systematically violate the human rights of people with no other access to justice?

In its petition on change.org, Justice for Blacks asks two rhetorical questions: ‘Are people of African origin protected against racial discrimination by the Universal Declaration of Human Rights (UDHR), international human rights conventions, and by the US Constitution? Are people of African origin entitled without any discrimination to equal protection of the law, as stated in the UDHR?’ If the answers to both questions are ‘Yes’ the World Bank and its Tribunal need to be held accountable for the systemic and prolonged violation of human rights – a crime condemned by a multitude of international human rights instruments. Meanwhile, the Bank’s immunity towards these employees should be waived and they should be given another avenue to access justice.


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* Taye Abayre is a former Ethiopian Diplomat, resides in the US. He may be reached at tabayre@yahoo.com


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