Application for Review (Rejoinder), 19 September 2000

On 10 April 2000, Patrick Reis-Ekelund (henceforth “Complainant” or “Applicant”) submitted an Application for Review to the Administrative Tribunal of the International Labour Organization concerning the Tribunal’s Judgment 1907. Judgment 1907, rendered on 3 February 2000, concerned the Applicant’s complaint of 6 April 1999 against the International Office of Epizootics (OIE)[1] for its decision of 26 February 1999 to dismiss him with the motivation that the his services were no longer satisfactory. The Applicant was dismissed after reporting accounting anomalies in one of the OIE’s offices.

On 5 May 2000, the OIE submitted its Reply to the Application for Review. In this Rejoinder [2], the Applicant will respond to the OIE’s Reply and provide further information and arguments supporting his Application for Review. The Applicant will, among other things, show that people professionally, institutionally, and quite possibly also personally linked to the Tribunal have a material and/or personal interest in the outcome of the case. It will also been shown that the institutional structure of the Tribunal and the choice of judges for the Applicant’s case raise serious misgivings about the impartiality and objectivity of the proceedings.

1.1 The initial complaint against the International Office of Epizootics leading up to Judgment 1907

With his Brief of 6 April 1999 supporting his complaint against the OIE, the Applicant provided evidence that

the [OIE] Director General’s decision to terminate his employment is in irregular form, is tainted with procedural irregularities, abuse and illegality and is based on incorrect facts, and that the decision is an integral and unitary part of the harassment and hidden disciplinary measures, as evidenced by the behaviour and claims of the OIE’s managers, to which the Complainant was subjected to during the four month period preceding the Director General’s decision.

With his Rejoinder of 9 September 1999 (in conjunction with the Brief of 6 April 1999 and all the documents submitted in evidence) the Complainant responded to the OIE’s Reply of 21 June 1999 and proved beyond any reasonable doubt that the OIE’s Reply was a document characterized by untruths, hearsay, lack of evidence, irrelevance, misreading, and incoherence; that the OIE’s Reply in itself was evidence of the OIE’s abusive attitude concerning the treatment of the Complainant and his rights; that the OIE had committed breach of several of its own rules; and that the OIE had committed breach of several of the principles which the Tribunal has stipulated should govern the behavior of international organizations towards their staff members

In 1991, the Director General took Decision 20.203 concerning OIE staff members who are French civil servants, among them the Head of [the Administrative and Financial] Department, on loan to the OIE from the French civil service.

This decision permitted French civil servants on loan to the OIE and the Director General himself to benefit from the OIE Pension Fund and it provided them with an opportunity to circumvent French rules and thereby to illicitly benefit from two pension plans. Furthermore, it placed French civil servants on a privileged basis compared to that of other OIE staff.

Decision 20.203 was taken ultra vires by the Director General as it did not conform to the requirements of several OIE rules. For example, Decision 20.203 modified a statutory text of the OIE and should have been taken by the OIE’s International Committee. Decision 20.203 created new financial charges to the OIE that should have been approved by the International Committee.

The Director General took Decision 20.203 disregarding the Staff Representatives and he subsequently refused that the OIE pay for a legal counter-opinion to the legal opinion obtained (after the taking of the decision...) and paid by the OIE. The Staff Representatives presented several arguments against the proposal (creation of privilege, illegality vis-à-vis OIE rules and French legislation) and presented alternatives (de-linking from the French system, unemployment insurance for other OIE staff), to no avail. This matter clearly shows the OIE management’s complete disregard for rules and fair treatment of staff.

In the Application for Review it was noted that the Tribunal considers its judgments to be final and beyond appeal, but that it has granted itself powers of review. The Applicant described the various reasons that the Tribunal considers relevant or not relevant for an Application for Review. He noted that:

It is clear that the Tribunal has given itself wide-ranging and discretionary powers as regards its freedom to determine legality, reality and truth. The Tribunal is beyond scrutiny and appeal. This is a status which in the best of cases leads to somewhat expedient but efficient justice; in the worst to arbitrariness and injustice.

that the Tribunal has accepted the OIE’s word before the Complainant’s and that it is enough for the OIE to merely claim something, however inconsistent with the tangible evidence, for it to be taken seriously and considered truthful. The OIE has the benefit of the doubt, while the Complainant benefits from no such positive capital.

Although the Tribunal’s rules concerning the admissibility of applications for review are very tough, the Applicant nevertheless found three grounds which fit the Tribunal’s criteria. To these grounds two further reasons were identified and argued. The Applicant stated:

There are five major reasons why, independently and together, the Tribunal shouldreview Judgment 1907: crucial disregard of fact, crucial material error, failure to rule on a claim, reasonable doubt regarding the impartiality, independence and objectivity of one, maybe two, of the judges judging the case [3], and breach of Article VI of the Tribunal’s Statute.

In its Reply of 5 May 2000, the OIE challenges the admissibility of the Application for Review and all of its individual points.

As regards the Applicant’s claim that the Tribunal has disregarded crucial facts, the OIE states that:

…the contents were in fact presented to and appraised by the Tribunal when it evaluated the factual evidence submitted to it by the parties involved.

In reply to this, the Applicant repeats the following statements made by him in his Application for Review:

In Judgment 1907, in particular the considerations section, the impression is given that the Complainant/Applicant responded poorly to the OIE’s criticism of him and his work.

Nowhere does the Tribunal mention the contents of the Complainant’s replies or notes. Had it done so it would have had to admit that the Complainant disproved and refuted the OIE’s claims against him and that he repeatedly asked for clarification what his shortcomings actually were in the area of accounting.

These replies were all sent by registered mail, they are tangible and the Tribunal has quite unjustly (and with no motivation) disregarded them.

As regards the Applicant’s observation that the OIE External Auditor’s and External Accountant’s reports were produced well after he was dismissed and that the Tribunal has committed blatant material error on this point, the OIE simply states:

… whatever the date of the auditors’ reports, the Complainant’s allegations of accounting irregularities were incorrect anyway.

The OIE implicitly acknowledges that at the time it dismissed the Applicant, there was not proof of him having committed any errors in his accounting duties, and that therefore the OIE dismissed the Applicant based on suppositions and unfounded accusations. The Applicant notes that this matter proves the OIE’s low level of interest in truth and justice. This issue was one of three items held against the Applicant in the Annual Professional Appraisal of which the two others have likewise been proven to be erroneous….[4] The Tribunal’s failure to note this blatant lie on the behalf of the OIE further substantiates the Applicant’s claim of the Tribunal’s lacking impartiality.

As regards the Applicant’s claim that the Tribunal has failed to rule on his claim regarding the OIE’s lies regarding his services relating to the OIE-Thai agreement [5], the OIE simply states that:

The case of the ‘OIE-Thai agreement’ was only one of the reproaches made by the OIE to the Complainant, and the others constituted sufficient grounds for dismissal.

…the argument does not fall within the admissible ground for review; indeed, the complaint form completed by the Complainant makes no reference to this agreement under the heading ‘Relief claimed’; it therefore constitutes a plea and not a claim.

The OIE implicitly acknowledges that its allegations concerning the OIE-Thai agreement were false. The Applicant notes that this matter proves the OIE’s low level of interest in truth and justice. This issue was one of three items held against the Applicant in the Annual Professional Appraisal of which the two others have also been proven to be erroneous…[6] The Tribunal’s failure to note this blatant lie on the behalf of the OIE further substantiates the Applicant’s claim of the Tribunal’s lacking impartiality. The hair-splitting argument about the claim supposedly being a plea would be humorous if it were not part of an overall indecency.

As regards the Applicant’s claim that the Tribunal has committed breach of Article VI of its Statute, the OIE states that:

…the question is not one of fraud, neither does it involve new facts or evidence; it relates to the technique of drafting judicial decisions; furthermore, the reasons for rejecting the Complainant’s claim clearly results from the grounds of the judgment.

In his Application for Review of 10 April 2000, the Applicant quoted the following section from the Tribunal’s judgment:

Finally, as to the substance of the decision, the evidence, far from showing that the decision was based on a wrong or improper appreciation of the facts, indicates that the complainant’s actions, in particular with regard to the accounts of the OIE’s office in the Americas, were wholly unjustified.

It is hard to consider this sweeping statement as being sufficiently descriptive for a third party trying to understand what is referred to. What “actions with regard to the accounts” is the Tribunal referring to? There is certainly nothing in Judgment 1907 that permits an objective analysis and assessment that the Complainant’s “actions” “were wholly unjustified”. This failure to abide by the Tribunal’s own Statutes is further reason to consider Judgment 1907 to be procedurally flawed.

As regards the Applicant’s claim that there is reasonable and legitimate concern about the impartiality of the Tribunal and the judgment, the OIE states that:

…the Complainant would have to show that one of the judges had a personal interest in the case, had already discussed the case or had a sufficiently close link with one of the parties for his impartiality to be open to doubt (subjective impartiality), or else show that the organization of the procedure is such that it prevents impartiality (objective impartiality);

the Complainant confines himself to invoking the fact that some of the judges were of the same nationality as certain persons who acted on behalf of the OIE, the fact that one of the judges attended the same (but not even at the same time!) school as one of the persons who acted on behalf of the OIE and the fact that one of the judges had been the Director of an Institute at which the consultant who acts as a legal counsel to the OIE [7], and who incidentally does not deal with individual staff matters, had taught in the past;

the very least one can say is that on no way do these arguments demonstrate either subjective or objective bias.

In section 4 of this document (after reviewing the concept of judicial impartiality in section 3), the Applicant shall deal with the OIE’s statement in more detail. At this point it is sufficient to state that the OIE has misstated the definitions of subjective and objective impartiality and that the links between the Tribunal’s President, Michel Gentot, and the OIE’s French managers and professional consultants is more tangible than the OIE claims and the Applicant described in his initial Application for Review.

A reasonable observer, fully informed of the nature of these links and other relevant factors, can only conclude that Judgment 1907 has been arrived at in a situation that gives rise to serious and reasonable doubt about the impartiality of the Tribunal.

A survey of legal reference works and articles results in the following definitions of what constitutes judicial impartiality, the importance of impartiality, and how to determine the existence of lacking impartiality and bias.

Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case and connotes the absence of bias, actual or perceived. An impartial judge is disinterested in the outcome and is open to persuasion by the evidence and submissions. He takes an objective view to the evidence presented to him. In contrast, lacking impartiality or bias denotes a state of mind that is in some way predisposed to a particular result or that is closed with regard to particular issues. A tribunal lacks impartiality if, inter alia, a judge has some connection with the case which might bias the decision.

Bias may manifest itself in the conduct of a judge, in his personal associations and interests, or in the structure of the decision-making process. A biased judge is predisposed to decide in a party's favor or to a party's detriment, based on considerations that are improper and extraneous to the evidence, law or arguments. Bias may be actual or perceived. Whether a Judge is impartial depends on whether the impugned conduct gives rise to a reasonable apprehension of bias. Actual bias need not be established because it is usually impossible to determine whether the decision-maker approached the matter with a truly biased state of mind.

Impartiality is a condition upon which judges are invested with authority and is necessary for effective legal protection for individuals and it forms an integral part of the rules of natural justice. Impartiality and objectivity are two criteria for a fair trial and these criteria must be fulfilled. If this is not the case the tribunal commits an act of denial of justice.

Bias can arise when a judge is influenced by present or previous interests or association with a party. Judges should not participate in a matter in which they have a direct or indirect pecuniary or personal interest that may give rise to a perception of bias. This generally accepted rule is based on the presumption that any such interest would, if not actually incline the judge in favor of the party with whom his or her interests were aligned, then at least give rise to the appearance of such bias. A pecuniary interest exists where the judge or a person related to him may benefit or suffer financially from the decision. A personal interest exists when a Judge may favor persons to whom he or she has an emotional connection, such as a friend, colleague or business associate. Any pecuniary or personal interest in a case, however slight, raises the possibility of a perception of bias.

The principle of impartiality is one of the hallmarks of the rationale and the legitimacy of the judicial function. The rule of law, interpreted and applied by impartial judges, is the guarantee of the rights and freedoms of individuals. The impartiality of judges is an essential element in safeguarding human rights and is vital to a democratic system of government. This understanding has been incorporated into various municipal and international instruments for the protection of human rights and has repeatedly been confirmed by the European Court of Human Rights.

Achieving justice depends significantly upon what that judge does to assure that every proceeding is fairly heard and decided and to assure that litigants and the public have confidence in the impartiality and independence of the judiciary. The confidence of the public in the judiciary - in its integrity, its impartiality, its independence, and its moral authority - is indispensable to the administration of justice. The authority of a tribunal rests on public acceptance of judicial decisions and that acceptance depends on public confidence in judges.

There is a clear and well-known distinction between actual bias and the appearance of it; the latter entails that justice must not only be done but must also be manifestly and clearly seen to be done. Public confidence in the impartial administration of justice can be maintained only if it is clear that cases are decided according to law without regard to extraneous issues or relationships between a judge and one of the parties involved in the case he is trying.

The distinction between judicial impartiality and the appearance of impartiality has been recognized repeatedly. The public's perception of impartiality is what is critical. For the courts and for judges it is not sufficient that they be impartial; they must also be perceived to be impartial. Perceived bias is as damaging to the decision-making process as is actual bias. It is commonly accepted that a judge shall be disqualified if a reasonable person who knew the circumstances of the case would question the judge's impartiality under an objective standard of reasonableness, even though no actual bias or prejudice can be proven.

The impartiality of a tribunal may be subject to challenge if the public is entitled to question, on the basis of ascertainable facts, that the fairness of the judge or tribunal was capable of appearing open to doubt. Courts have identified common situations that will attract an allegation of bias or reasonable apprehension of bias, such as:

1. the judge or someone linked to him has a material or other interest in the outcome of the case;
2. the judge has an association or prior involvement (professional, personal, other) with one of the parties;
3. the institutional structure of the decision-making environment brings undue influence to bear upon the judge or fetters his objective consideration of the evidence;
4. the institutional structure of the decision-making environment favors one of the parties.

The test is what the informed person, viewing the matter realistically and practically and having thought the matter through, would conclude. The informed person must be presumed to have knowledge of any safeguards in place.

The European Court of Human Rights applies two tests to determine whether a tribunal is impartial. The first is a subjective test that is based on the personal conviction of a particular judge in a given case. The second, is an objective test that ascertains whether the judge offered guarantees sufficient to rule out any legitimate doubt as to his impartiality. In the subjective test, the impartiality of a judge has to be presumed until proven otherwise. The objective test, on the other hand, examines ascertainable facts that may raise doubts about a certain judge.

The objective test contains a two-fold objective element: the person considering the alleged bias must be reasonable and the apprehension of bias itself must also be reasonable in the circumstances of the case. Further, the reasonable person must be an informed person with knowledge of all the relevant circumstances.

4. Comments on the OIE’s Reply on the issue of impartiality and additional information on the impartiality of the Tribunal

In its Reply, the OIE claims that there is exists no problem relating to the impartiality of the Tribunal and the OIE downplays the links between itself and the Tribunal. In the following sections, the Applicant shall respond to each of the relevant parts of the OIE’s statement on this issue. The Applicant will also provide additional information and arguments relevant to the issue of the Tribunal’s impartiality.

4.1 The OIE’s definition of impartiality is at variance with the definition/test applied by the European Court of Human Rights

It would seem that the OIE’s definitions of subjective and objective impartiality are at variance with the European Court of Human Right’s definition, which states that subjective impartiality refers to the judge’s personal convictions and that objective impartiality refers to ascertainable facts, such as entanglements, relationships or other links, which may raise doubts about a judge’s impartiality.

Considering the nature of the links between the OIE and the Tribunal, it is understandable that the OIE should define subjective and objective impartiality is it does.

the Complainant confines himself to invoking the fact that some of the judges were of the same nationality as certain persons who acted on behalf of the OIE, the fact that one of the judges attended the same (but not even at the same time!) school as one of the persons who acted on behalf of the OIE and the fact that one of the judges had been the Director of an Institute at which the consultant who acts as a legal counsel to the OIE [8], and who incidentally does not deal with individual staff matters, had taught in the past;

In response to the OIE’s statement, the Applicant will in the following sections reiterate the information relating to this matter provided in the Application for Review (Section 4.2.1) and provide additional information on the links between the OIE and the Tribunal (Section 4.2.2).

In the Application for Review, the Applicant pointed out the following facts [9]:

1. Mr Michel Gentot, President of the Tribunal, a senior French civil servant who is Head of Department at the French Council of State and President of the French National Commission on Computers and Liberties.
2. The Honourable Justice James Hugessen, Judge of the Federal Court of Canada.
3. Miss Mella Carroll, Judge of the Irish High Court.

The Director General of the OIE and the Head of the OIE’s Administrative and Financial Department at the time of the dismissal of, and complaint by, the Complainant were Dr Jean Blancou and Mr Guy Jannot, respectively, both French civil servants. The OIE’s legal adviser at the time of the dismissal of, and complaint by, the Complainant was Dr Daniel Bardonnet. The External Auditor of the OIE at the time of the dismissal of, and complaint by, the Complainant was Mr Jacques Berthe [who is also a French civil servant].

Mr Gentot was the Secretary General, later Director, of the Paris Political Science Institute from 1978 to 1987. The OIE’s legal advisor, Dr Bardonnet, was a Senior Lecturer at the Paris Political Science Institute from 1975 to 1984. Both Mr Gentot and Mr Berthe are alumni, consecutive years, of the select French national civil service school (l’Ecole nationale d’administration).

The President of the OIE at the time of the dismissal of, and complaint by, the Complainant was Dr Norman Willis, a Canadian senior civil servant. The Deputy Head of the OIE’s Administrative and Financial Department at the time of the dismissal of, and complaint by, the Complainant was Mr Gary Sutherland, a Canadian national.

the Complainant confines himself to invoking the fact that some of the judges were of the same nationality as certain persons who acted on behalf of the OIE, the fact that one of the judges attended the same (but not even at the same time!) school as one of the persons who acted on behalf of the OIE and the fact that one of the judges had been the Director of an Institute at which the consultant who acts as a legal counsel to the OIE [10], and who incidentally does not deal with individual staff matters, had taught in the past;

The European Court of Human Rights stipulates that the objective test of impartiality examines ascertainable facts that may raise doubts about a judge. The person performing the objective test must be reasonable, the apprehension of bias itself must also be reasonable in the circumstances of the case, and the reasonable person must be an informed person, with knowledge of all the relevant circumstances. Following these guidelines, the Applicant draws the Tribunal’s (acting in the role of a reasonable third person) attention to or stresses the following points:

The “school” that the President of the Tribunal, Mr Michel Gentot, and the OIE External Auditor, Mr Jacques Berthe, attended is the prestigious, elite French civil service school l’Ecole nationale d’administration (ENA) at which those intended for top level civil service careers are trained to be a coherent group of state and political cadres. On the official web site [11] of the ENA the “school” describes itself in the following manner:

L’Ecole nationale d’administration was created in 1945 by the Provisional French Government … [and is] directly linked to the Prime Ministers office [12]…. 4 200 of the 5 334 French students that have been trained at ENA are still in active service.… 83% of the students pass their entire career within the civil service or state owned companies.[13]

Entry into the ENA is highly selective. Since it was created in 1945, ENA has enrolled about 100 students per year, and its students are instilled with a strong sense of pride and an esprit de corps with fellow alumni (irrespective of when one attended the “school”), as any informed and reasonable observer would acknowledge.

It is relevant here to note that the evidence, disregarded by the Tribunal, provided by the Complainant/Applicant regarding accounting irregularities involved Mr Berthe’s responsibility and professional reputation. The accounting certificates Mr. Berthe provided to the OIE contained figures that contradicted even those provided by the OIE official, a former OIE President, concerned.

The “Institute” that the President of the Tribunal, Mr Michel Gentot, was the Director and at which the OIE legal consultant worked while Mr. Gentot was Director, is the prestigious Institut d’études politiques de Paris, also simply known as Sciences-Po. In an article in the French publication Le Monde Diplomatique [14] Sciences-Po is described in the following manner:

Sciences-Po holds a rather unique monopoly as regards recruitment: that relating to the Ecole nationale d’administration [the ENA mentioned above], meaning that of the upper civil service, meaning those that lead the State.[15]… the Institute has very few permanent lecturers … the non-permanent lecturers, almost the entire faculty, are chosen by the management. Such a system gives management control over what is being taught. [16] … It is reasonable to believe that the non-permanent lecturers stay out of the institution’s politics as they are not greatly involved in its operations and as they owe their appointment to the management.[17]… This patronage based system in part explains the institution’s power within the State: a large part of the upper civil service recruited by the ENA has been trained at Sciences-Po … The legal framework and relationship with government are handled as could boast a former Director: “We are the most autonomous establishment in France, as we can pride ourselves on having written on our own the decree that governs us”. (Michel Gentot, 1985).[18]

The exclusive nature of Science-Po is clear and an informed and reasonable observer can not fail to consider it likely that Messrs Gentot and Bardonnet are more than fleetingly linked and that bonds are highly likely to have been formed. After all, Mr. Gentot was the Director of the Institute and as such most influential, even crucial, in the decisions determining the presence of lecturers at the institute. It is recalled that the period during which the two gentlemen both worked at the institute covers six years.

The three managers at the OIE who pushed through the illegal and highly self-interested decision 20.203 (described in Section 1.1), Director General Jean Blancou, and the Heads of Department, Guy Jannot and Thierry Chillaud, are all French Civil Servants, as is the President of Tribunal Mr. Michel Gentot. It should be noted that the OIE External Auditor, who in this capacity shares responsible for Pension Fund matters, Mr. Jacques Berthe, is also a French Civil Servant. He is a senior member of the Cour des comptes.

These gentlemen have strong financial, career and personal interests in the Tribunal not finding in the Applicant’s favor. Doing so would legitimize his information on Pension Fund, accounting and other irregularities in the management of the OIE. Also the French State as such, for obvious reasons of prestige, cannot be enthusiastic about the Tribunal finding in the Applicant’s favor and thus validating the Applicant’s information and evidence of shenanigans by French Civil Servants managing the OIE. It is not unreasonable to expect that Mr. Gentot be aware of such concerns, either due to instructions and messages received, or simply due to his membership and high rank within the French civil service.

An informed and reasonable observer can but conclude to the inappropriateness of President Gentot appointing himself (as well as Judge Hugessen, with his institutional links to the Canadian President of the OIE, Mr. Norman Willis) to judge the Applicant’s initial complaint against the OIE, and must conclude that there are well founded reasons to question the Tribunal’s impartiality and objectivity.

There is nothing either in the Statutes or in the Rules of the Tribunal stipulating rules about the need for judges to act with impartiality. Nothing reminds them of the obligation to perform their duties with objectivity. The judges are not required to take any oath of seeking truth or justice.

It is generally accepted that when one is evaluating the impartiality of a Tribunal one should take into account any safeguards built into the structure and procedure that exist to protect the rights of the parties. Considering the absence of such safeguards in the context of the Administrative Tribunal of the International Labour Organization, as well as the information provided by the Applicant, an objective and reasonable observer can only conclude that there is a high risk of unfair treatment and bias against the Applicant.

The Tribunal’s judgments are final and without appeal to a higher or other instance. A Complainant/Applicant may request that the Tribunal that took the decision “review” its own decision as it sees fit. This poses grave problems of accountability and justice.

It is generally accepted that when one is evaluating the fairness of a Tribunal one should take into account any safeguards built into the structure and procedure that exist to protect the rights of the parties. Considering the absence of a right of appeal in the context of the Administrative Tribunal of the International Labour Organization, as well as the information provided by the Applicant, an objective and reasonable observer can only conclude that there is a high risk of denial of justice.

Article XII of the Statute of the Tribunal enables the defendant organization to submit the Tribunal’s judgment to the International Court of Justice for an advisory opinion. The Complainant/Applicant has no such right. This institutional arrangement is biased in the defendant organization’s favor and clearly shows that the Complainant/Applicant is receiving unequal treatment before the Tribunal. This poses grave problems of a natural law and human rights nature.

It is generally accepted that when one is evaluating the fairness of a Tribunal one should take into account any structural bias built into the procedure that exists to protect the rights of the parties. Considering that defendant organizations have a privilege not granted to complainants, as well as the information provided by the Applicant, an objective and reasonable observer can only conclude that there is a high risk of denial of justice and institutional bias to the detriment of the Applicant.

There is nothing in the Tribunal’s Statutes and Rules that forced the Tribunal’s President, Mr Michel Gentot, to appoint either himself or Judge James Hugessen to the Applicant’s complaint against the International Office of Epizootics. The relevant rules are:

Article III (3) of the Statute of the Tribunal: A meeting of the Tribunal shall be composed of three judges or, in exceptional circumstances, five, to be designated by the President, or all seven.

Article 1 (4) of the Rules of the Tribunal: If the President is unable to act, the Vice-President or, if the Vice-President is unable to act, the senior judge shall exercise the functions of President at and between sessions.

Considering these facts and the information provided in the Application for Review and in this Rejoinder, an objective and reasonable observer can only conclude that there is a high risk of bias and denial of justice and valid reasons to question the impartiality of the Tribunal.

Considering the information provided above, it can only be concluded that the impartiality of the Tribunal in the Applicant’s case may legitimately be subject to challenge. The Applicant as well as informed third persons, on the basis of ascertainable facts, is justified to conclude that the fairness and impartiality of the tribunal is most capable of appearing open to doubt.

It has been established that people professionally, institutionally, and quite possibly also personally linked to Judge Gentot, have a material and/or personal interest in the outcome of the case. It has been established that at least Judge Gentot has a professional-institutional association with several of the persons belonging to or acting on behalf of the OIE. It has also been shown that the institutional structure of the Tribunal clearly favors the defendant organization, the OIE, and that Judge Gentot, acting in his influential capacity as President of the Tribunal, appointed himself as well as a second judge with possible institutional ties to the OIE to the Applicant’s case, although this was not required by the Tribunal’s Statute and Rules and alternative judges were at hand.

The fact that three judges sat the case and that the Tribunal takes decisions by majority vote does not alter the fact that the entire procedure is flawed. It is enough that only one of the judges is found to be biased for the entire process to be tainted. The remaining judge(s) should, as an act of judicial propriety and prudence, have insisted that the judge(s) who could be legitimately questioned withdraw from the case in the interest of justice and due process. The failure to do so flaws the entire procedure further.

An informed person, viewing the matter realistically and practically and having thought the matter through, must conclude that the Tribunal has acted improperly and that there is a high likelihood that the Tribunal’s treatment of the Applicant’s complaint has been biased. Such an objective and reasonable person can only with fear for the cause of justice note the total absence of safeguards protecting the Applicant’s rights before the Tribunal. By all reasonable standards, the Tribunal has failed the objective test as defined by the European Court of Human Rights and generally principles of justice as defined by natural law.

In his Application for Review, the Applicant provided, recalling the Tribunal’s own rules for admissibility, three reasons which clearly must affect Judgment 1907: disregard of material fact, material error, and failure to rule on a claim. Furthermore, the Applicant gave two additional reasons that require review of the judgment: intolerable doubt regarding the impartiality of the Tribunal and breach of Article VI of the Tribunal’s Statutes (its duty to meaningfully state the reasons for its decisions).

The admissibility of the impartiality argument is based on the requirements of natural law and international human rights law. The admissibility of the breach of Article VI of the Tribunal’s Statutes argument is based on the fact that this Statute is laid down by the International Labor Conference of the International Labour Organization, meaning that it is absolutely binding upon the Administrative Tribunal, which has no authority to disregard the requirements of Article VI or to render it meaningless.

In this Rejoinder, the Applicant has responded to the OIE’s Reply of 5 May 2000, and he has provided additional information and arguments in support, by applying the European Court of Human Rights’ objective impartiality test, of his argument that the Tribunal’s judgment is flawed due to bias and lack of impartiality.

The Applicant repeats his request that the Tribunal review Judgment 1907 in a spirit and structure guaranteeing fair and due process, that such a review take place with full public hearings and that all the parties mentioned in all the submissions leading to Judgment 1907 and all the parties partaking in the production of Judgment 1907 be called as witnesses to be heard under oath.

[1] An intergovernmental organization based in Paris whose Director General and two of its Heads of Department are French Civil Servants on loan to the organization from the French Ministry of Agriculture.

[2] On 28 July 2000, the Applicant requested that the time limit for submitting this Rejoinder be extended to 21 September 2000. On 1 August 2000 the Tribunal’s Registrar granted this request.

[3] It is recalled that the Tribunal arrives at a Judgment by a majority vote of the three (as in this case), five or seven judges.

[4] For the second item, please see Section 2.3 of this Rejoinder. The third and last item concerned supposed failings on behalf of the Applicant to respect OIE standards of presentation. The OIE never responded to the Applicant’s request to be informed what these “standards” actually were…

[5] The Tribunal makes no mention of the OIE-Thai matter: The OIE accused the Complainant of making unauthorized translations and transmissions of an international agreement to a member state. This event in itself, where there is black on white proof of the OIE’s liberal attitude to truth and fact, proves beyond any doubt that the decision to dismiss the Complainant was illegal. This issue was one of the three main “reasons” for the OIE’s dismissal of the Complainant…

[6] For the first item, please see Section 2.2 of this Rejoinder. The third and last item concerned supposed failings on behalf of the Applicant to respect OIE standards of presentation. The OIE never responded to the Applicant’s request to be informed what these “standards” actually were…

[7] The text in the OIE Reply of 5 May 2000 seems truncated. It omits that the OIE legal consultant worked at this Institute at the same time as the President of the Tribunal was its Director.

[8] The text in the OIE Reply of 5 May 2000 seems truncated. It omits that the OIE legal consultant worked at this Institute at the same time as the President of the Tribunal was its Director.

[9] The relevant supporting documents for this information were provided with the Application for Review of 10 April 2000.

[10] The text in the OIE Reply of 5 May 2000 seems truncated. It omits that the OIE legal advisor worked at this Institute at the same time as the President of the Tribunal was its Director.

[12]http://www.ena.fr/F/pe/historique/pe_historique.h

[13]http://www.ena.fr/F/pe/enarques/pe_enarque.html

[14] http://www.monde-diplomatique.fr/1999/03/GARRIGOU/11775.html

[15] Mais Sciences-Po a conquis un monopole peu ordinaire de recrutement : celui de l'Ecole nationale d'administration (ENA), donc de la haute administration, donc des dirigeants de l'Etat.

[16] …l'Institut ne compte que très peu d'enseignants permanents … les enseignants vacataires, soit la quasi-totalité du corps enseignant, sont choisis par la direction. Un tel système confère à celle-ci un pouvoir sur l'enseignement.

[17] On conçoit que les vacataires demeurent extérieurs à la politique de l'institution puisqu'ils ne sont pas suffisamment engagés dans sa vie et qu'ils doivent leur nomination à la direction.

[18] Ce système clientélaire explique partiellement le pouvoir de l'institution au sein de l'Etat : une bonne partie de la haute fonction publique recrutée par l'ENA est issue de Sciences-Po... Les dispositions légales et les relations contractuelles avec les pouvoirs publics se règlent comme pouvait s'en vanter un ancien directeur : « Nous sommes l'établissement le plus autonome de France, puisque nous pouvons nous vanter d'avoir écrit nous-mêmes le décret qui va nous régir » (Michel Gentot, 1985).

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