Divergent Standards of Proof Currently Applied by International Administrative Tribunals in Serious Misconduct Cases: An Evolving Snapshot

Disputes involving “serious misconduct” by international civil servants can pose difficult review challenges for international administrative tribunals (sometimes referred to hereinafter as “IATs”), particularly where the impugned sanction is the most severe that can be applied, i.e., summary dismissal or termination from employment. Misconduct cases can have devastating impacts on careers, and thus tend to be vigorously contested by petitioners who frequently contend that the evidence failed to prove the misconduct alleged and that the sanction imposed was disproportionate. Claims of “misconduct” naturally elicit judicial curiosity that results in: (1) close scrutiny of the administrative evidence adduced to ascertain if the applicable standard of proof has been met; and, if so, (2) determining whether the sanction imposed is proportionate to the misconduct alleged. The tribunal may also need to determine if the petitioner’s due process rights were incidentally violated. This paper seeks to offer an illustrative, though non-exhaustive, sampling of contemporary practice at eleven selected IATs from different geographic regions with respect to the standards of proof they respectively apply in reviewing serious misconduct cases. This survey revealed an unexpectedly marked divergence in tribunal practice, but also signs of evolution in practice. Hence, this seemed to be an opportune moment to take a “snapshot” of those evolving divergences and to contemplate their future course.