FIFTH COMMITTEE APPROVES DECISION SETTING NEW

C O N F I D E N T I A L USUN NEW YORK 000294

SIPDIS

SIPDIS

E.O. 12958: DECL: 04/02/2013
TAGS: AORC UUNR UNGA
SUBJECT: FIFTH COMMITTEE APPROVES DECISION SETTING NEW
SALARY FOR ICJ, ICTY AND ICTR JUDGES

REF: A. IO-USUN 03/27/08 E-MAIL


B. USUN 232

C. SECSTATE 30035


1. (U) Members of the Fifth Committee (Administrative and
budgetary),including USUN as instructed (ref a),formally
approved a decision March 28 (full text - see para 10) to set
the annual net base salary of members of the International
Court of Justice (ICJ) and judges and ad litem judges of the
International Tribunal for the Former Yugoslavia (ICTY) and
International Criminal Court for Rwanda (ICTR) at 158,000
United States dollars plus corresponding post adjustment.
The General Assembly is expected to adopt this decision
sometime during the week of March 31. The Fifth Committee
also approved the recommendations of the Advisory Committee
on Administrative and Budgetary Questions (ACABQ) to retain
the existing standards of travel for ICJ judges and to
maintain the current level of assignment grants afforded ICJ
judges. However, Fifth Committee members did not take action
on possible changes to the retirement benefits provided to
ICJ members, pending the Committee's review, expected in May,
of a Secretary-General's report on pensions.


2. (U) The Fifth Committee approved the draft decision on
judges' salaries March 28, following several lengthy and, at
times, contentious discussions concerning remuneration for
ICJ, ICTY and ICTR judges. The respective registrars of the
three courts appeared several times before the Fifth
Committee to answer Member States' questions regarding
conditions of service for judges and to advocate paying the
judges 170,500 USD per year as previously approved in 2005 by
the General Assembly. Select members of the EU, in
particular Germany, countered that the GA had revised the
salary level for judges in resolution 61/262, bringing such
payments in line with the common system by setting annual
remuneration per judge at 133,500 USD plus post adjustment.
However, taking into account the concerns expressed by the
ICJ that proceeding with the salary changes approved in
resolution 61/262 would create inequities among the judges,
in purported contravention of the ICJ Statute as claimed by
ICJ members, the German representative, along with discussion
coordinator Tomas Micanek (Czech Republic) and
representatives of Japan and some G-77 members, met
informally with ICJ Registrar Philippe Couvreur March 14
outside of the Fifth Committee to consider a possible
compromise plan based on the following elements:

-- in the future, a salary system for ICJ, ICTY and ICTR
judges will consist of a baseline plus post adjustment as
authorized by the General Assembly in resolution 61/262;

-- the judges' salary of 133,500 U.S. dollars called for in
resolution 61/262 will be revised to a total figure
approximating 165,000 Euros (base salary plus post
adjustment),but the formula of baseline salary plus post
adjustment previously approved by the GA in 61/262 will be
maintained;

-- judges already serving on the courts would receive a
one-time compensation payment (lump sum) to balance their
reduced salaries. No specific figure was cited as to the
amount of the one-time payment.


3. (SBU) In subsequent Fifth Committee discussions,
Argentina, on behalf of the G-77, said G-77 members supported
the notion of equality of salaries for all judges, new and
old alike. Second, as per the ICJ Statute, Argentina said
that G-77 members felt there could be no decrease in the
salaries of currently serving judges. Third, given the GA's
recent experience with Resolution 61/262, the General
Assembly should not act if the ICJ judges oppose the Fifth
Committee's views. Singapore asserted that the G-77 would
not support any arrangement other than full equality among
all the judges.


4. (SBU) USUN/MR said the U.S. endorsed bringing the judges'
salaries in general conformity with the common system
approach as decided by the GA in Resolution 61/262 - namely,
a base salary plus post adjustment. USUN/MR indicated that
the U.S. agreed with those who felt we should not get into
the legal issues concerning equality of salaries for judges.
The principal matter before the Fifth Committee was a policy
one of how much the judges should be paid. USUN/MR also
noted that the proposal discussed with the ICJ Registrar,
however tentative it might be, to pay the judges a "one-time
lump sum" raised concerns that merited further discussion
among Fifth Committee members. The proposed salary amount of
155,000-158,000 U.S. dollars per judge also was a matter for
further Committee consideration, both in view of the 133,000
USD level adopted in 61/262 and in view of the salaries paid
to under secretaries-general.



5. (SBU) With time in the Fifth Committee's first resumed
session running out, G-77 members modified their negotiating
position and accepted the proposed compromise salary figure
of 158,000 USD for the judges plus post adjustment, but NO
lump-sum payment. EU members as well as Japan and members of
the CANZ (Canada, Australia, New Zealand) also committed to
proceed with this approach as the only viable way forward,
since ICJ Registrar Couvreur subsequently advised the Fifth
Committee that the ICJ judges would be willing to accept this
proposal. Consistent with guidance to keep salary levels in
the general range of that set in 61/262 and with a view that
the salary of the next highest paid official in the
Organization is set at 164,000 USD (i.e., the administrator
for UNDP, just behind the D/SYG and SYG),the U.S. joined
consensus and agreed to support the compromise language
contained in the draft decision that was formally approved by
the Fifth Committee on March 28.


RETENTION INCENTIVES
--------------


6. (U) The respective Chiefs of Administration of ICTY and
ICTR were present for the Fifth Committee's informal
consultations on the proposals as outlined in the SYG's
Report (A/62/681) to offer incentives to retain the services
of ICTY and ICTR personnel as each tribunal moves closer to
completing its mandated tasks. Member States were in
agreement on the importance of encouraging both tribunals to
offer their respective staffs non-monetary incentives to
remain with the Courts as long as possible. ICTY's Chief of
Administration noted that both of the tribunals already were
implementing measures, such as in-house training workshops,
permission to seek short-term assignments with other UN
bodies, and assistance in securing onward assignments, that
were designed to ease the concerns of tribunal personnel
regarding their employment opportunities once the tribunals
complete their work.


7. (U) Views among Member States regarding the offer of
financial incentives to retain tribunal staff varied. G-77
members, as articulated by Argentina, expressed support for
the proposal contained in the Secretary-General's report to
offer tribunal employees one month's additional salary for
every full year worked. Although the SYG report capped such
additional payments at 5 months' salary, even for those who
had worked for the tribunals more than five years, Argentina
said the G-77 supported the notion of offering long-serving
employees up to 10 months' salary as a retention incentive.
Germany, on behalf of the European Union, sought information
concerning the cost of extending contracts for current
personnel to the end of each tribunal's mandate, rather than
pay one month's salary for each year worked. By contrast,
both Japan and Russia opposed payment of any financial
incentives, since, as Russia pointed out, such incentives
were not a part of the common system. Japan reiterated its
support for non-monetary incentives, but ruled out bonus
payments as proposed in the SYG's report. In light of
continued disagreement among delegations, the Fifth Committee
took no action on the SYG's proposal to offer tribunal
personnel retention incentives.

JUDGES' PENSIONS
--------------


8. (U) Concerning possible modification of existing
retirement benefits for ICJ, ICTY and ICTR judges, Sandra
Haji-Ahmed, Officer-in-Charge of Human Resources Management,
advised the Fifth Committee that the Secretariat was poised
to hire a consulting firm (Mercer) to study possible options
pension schemes, which will be reported to the Committee
during its second resumed session in May. Fifth Committee
members therefore decided to defer consideration of this
matter until May.

COMMENT
--------------


9. (C) The decision brings the approach to determining the
salaries of ICJ judges generally into line with the common
system (i.e., salary plus post adjustment),to be adjusted on
a regular and objective basis as with other participants in
the common system. This approach avoids the sui generis
approach to these matters previously followed. It also
should obviate the practice of the Chief Judge and other
judges on the ICJ from lobbying Member States on these
issues. This practice has been criticized by Member States
because of the apparent conflict of interest of judges
lobbying Member States that are or may be appearing in cases
or matters before the Court, although Member States were
reluctant to raise this issue publicly. It was felt that the
matter of salaries of the judges should be left to the SYG,
the Controller and the Secretariat to address with the GA in
a regular manner, with the Chief Judge participating only in
a formal manner in presentations to the Committee. Having
resolved the issue of salaries, this conflict of interest
concern should not again arise in that context. However,
there is a risk that this issue of apparent conflict may
arise in connection with the outstanding issue of pensions.
USUN urges the Department to consider how to deal with the
issue if it does arise in that or other contexts. End
comment.


10. (U) TEXT OF DRAFT DECISION APPROVED MARCH 28 BY THE FIFTH
COMMITTEE:

Begin text:

Draft Decision Submitted by the Vice-Chairman following
Informal Consultations

The General Assembly, having considered the report of the
Secretary-General (A/62/538 and Add. I) and the related

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report of the Advisory Committee on Administrative and
Budgetary Questions (A/62/7/Add.36):

a) endorses the conclusions and recommendations of the
Advisory Committee on Administrative and Budgetary Questions
as contained in paragraphs 8 and 9 of its report;

b) Decides to set, effective 1 April 2008, the annual net
base salary of the members of the International Court of
Justice and judges and ad litem judges of the International
Tribunal for the Former Yugoslavia and the International
Criminal Tribunal for Rwanda at 158,000 United States
dollars, with a corresponding post adjustment multiplier
equal to 1 per cent of the net base salary, to which would be
applied the post adjustment multiplier for the Netherlands or
the United Republic of Tanzania, as appropriate, taking into
account the adjustment mechanism as proposed by the
Secretary-General in paragraph 77 of his report;

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c) recalls paragraph 11 of its resolution 61/262 of 4 April
2007, and decides to revert to the issue of the pension
scheme during the second part of its resumed sixty-second
session.

End text.

KHALILZAD