As the Moscow Times reports, ‘only 16 Russians and 17 Belarusians have accepted invitations to compete under a neutral banner at the Paris Olympics’. While this may sound like a deliberate decision, the reality is that the ‘Individual Neutral Athlete Eligibility Review Panel’ (INAERP), appointed by the International Olympic Committee’s (IOC) Executive Board in March 2024 to carry out the neutrality control of athletes qualified for the Olympics, had invited the very small number of 36 Russian and 23 Belarussian athletes to participate in Paris (for the current state of invitations and acceptance see here). Only these athletes had met the IOC’s ‘strict eligibility conditions’ test that excludes those athletes who actively support the war or are contracted to the Russian or Belarusian military or national security agencies. In the case of Russian athletes, this is only around 10% of the athletes who took part in the Tokyo Olympics 2020. Last year, I argued that protecting the human rights of Ukrainian athletes as well as preventing international sporting events from being abused for the purpose of Russian war propaganda form legitimate aims that justify excluding the collective of Russian athletes from international competitions and the Olympic Games – as initially recommended by the IOC. At first glance, the necessity to pursue these goals through collective exclusion no longer seems to exist: The number of 140 Ukrainian athletes participating in the Olympic Games is at a historic low, but it significantly exceeds the number of athletes who belong to the aggressor state Russia. In addition, the IOC Executive Board took an important step in October 2023 by suspending the Russian Olympic Committee (ROC) thereby disrupting the link between Russian athletes and Russian war propaganda. According to the IOC, the reason for this reaction was the ROC’s breach of the Olympic Charter, namely the violation of the territorial integrity of the National Olympic Committee (NOC) of Ukraine, caused by the ROC when including the regional sports organisations that are under the authority of the NOC of Ukraine as its members (Donetsk, Kherson, Luhansk and Zaporizhzhia).
Is suspending a National Olympic Committee which violates the Olympic Charter and belongs to a state that breaks international law, while at the same time allowing politically neutral athletes to participate in international sporting events, the way sport should respond to war? I would say, in theory: yes, it is. However, the current practice of the IOC and international sports federations (IFs) in this regard illustrates fundamental uncertainties: There is an urgent need to define the circumstances under which the IOC exercises the sanction options against NOCs (and indirectly against states that violate international law) opened up by the Olympic Charter. The fact that the IOC has not imposed any sanctions in the conflict between Israel and Hamas, due to the difference between the situations, illustrates the importance of explaining this difference and defining standards. Individual neutrality control, on the other hand, has to oscillate between two objectives: If compared to a collective exclusion, neutrality control is only equally effective to protect the rights of athletes belonging to the victim state if strict compliance with the IOC’s neutrality conditions is monitored. With regard to the Russians invited to the Olympic Games in Paris, it is reported that an investigation published by the media agency Babel was able to uncover control deficiencies. In order to establish effective systems of control, these findings must be taken very seriously and existing loopholes must be closed. In pursuing the goal of sorting out the supporters of war as completely as possible, the IFs and the IOC must nevertheless establish procedures and use instruments of control that meet the standards of the rule of law and respect the human rights of athletes who are nationals of the aggressor state. Current practice casts doubt on this too.
Finding coherent and transparent approaches to both problems is, in my view, the litmus test for the future role of international sport in war times.
In search of a yardstick: When should international sport react to war?
When challenging the IOC’s suspension decision before the Court of Arbitration for Sport (CAS), the ROC made similar considerations and alleged, among others, a violation of the sports law principle of equality. According to the ROC, an ‘historical analysis shows that the IOC has never reacted in these cases as it did with respect to the ROC in the instant case’ (CAS 2023/A/10093 ROC v. IOC, para. 96). The ROC too referred to the ‘long-lasting Israeli-Palestinian conflict’ (para. 100) in order to claim that ‘the IOC may not lawfully apply double standards’ in relation to Rules 28.5 and 30.1 of the Olympic Charter (para. 103). Rule 28.5 stipulates that ‘(t)he area of jurisdiction of an NOC must coincide with the limits of the country in which it is established and has its headquarters.’ Rule 30.1 lays down that ‘(i)n the Olympic Charter, the expression “country” means an independent State recognised by the international community.’ However, the IOC – and the CAS Panel – saw fundamental differences between Israel and Russia with regards to Rules 28.5 and 30.1, due to the lack of ‘evidence that the NOC of Israel has been recognising Palestinian sporting organisations as its members’ (para. 108 et seq.).
In searching for a yardstick, we can make important preliminary observations: The first is that measures and sanctions the IOC is able to impose, like the suspension of a NOC (Rule 59 of the Charter), are not subject to the complete arbitrariness of the IOC but have to be linked to the IOC finding a violation of the lex olympica (Olympic Charter, the Olympic Movement Code …). Any reaction of the IOC to state internal or inter-state conflicts must thus materialise in a corresponding violation of the lex olympica. When the IOC withdrew South Africa’s invitation to the 1964 Summer Olympics in Tokyo, for example, it reacted to the severe discrimination caused by apartheid and racial laws in South Africa by calling on the South African National Olympic Committee to publicly denounce racial discrimination in sport, both in theory and in practice. Thus, the link legitimising the IOC’s reaction was the violation of the Olympic Charter, namely of the NOC’s duty to maintain autonomy and counteract political instrumentalization (Rule 27 para. 6 of the Olympic Charter).
This lex olympica contains some general normative goals that are of fundamental relevance in conflicts, above all a peace postulate (second principle of Olympism). After the end of the Second World War and in direct reaction to the racist ideology of National Socialism, the principle of non-discrimination was included in the Olympic Charter in 1949 (on this see here). In October 2023, an amendment to the Olympic Charter was adopted at the 141st IOC Congress in Mumbai, incorporating the obligation to respect human rights as one of the basic principles of Olympism. If a state’s violent activities that violate human rights – against its own population or against the population of a foreign state – are related to sports matters, such a link can easily be established in the future. The Olympic Charter does not (yet) define a red line that would force the IOC to react. Adding a rule to the Charter that provides for excluding teams and athletes from countries that don’t abide by decisions of the International Court of Justice is one possible improvement in this regard. Adding a rule that forces the IOC to react to the General Assembly’s finding of ius cogens violations (as in the case of Russia’s aggression against Ukraine in GA, A/RES/ES-11/1) is another I propose.
As long as this written yardstick does not yet exist, very similar to the freedom states have in reacting to conflicts, the sanctions IFs or the IOC decide to impose seem to be part of the political leverage of the sports world – and of the IOC’s free discretion. Yet, as the CAS award cited before proves, they are not. The principle of equality applies to the sanctioning regime of the Olympic Charter, forcing the IOC to uphold the rule that ‘similar cases must be treated similarly, but dissimilar cases could be treated differently’ (see for example CAS 2020/A/6745 Vujovik v Andijon Futbol Sport PFK & FIFA, §90, CAS 2023/A/10093 ROC v. IOC, para. 46, para. 95). What follows is that once the IOC has reacted, as in the case of Russia, this can lead to demands for coherence, which for their part are not only political in nature, but justiciable sports law.
A human rights-informed approach to individual neutrality control
When it comes to the small number of Russian athletes who will participate in the Summer Games, truth includes that the majority of those athletes who were invited as AINs declined the IOC’s invitation. The Russian Wrestling Federation explained this with the ‘unsportsmanlike selection principle’ the IOC had adopted. I agree with the view expressed by the CAS Panel in the cited ROC case that the conditions introduced by the IOC are not unsportsmanlike, but in principle, ‘fair and carefully calibrated to ensure that individual athletes are in fact politically neutral’ (para 126). To protect the rights of Ukrainians and to avoid providing a stage for war propaganda, supporters of Russia’s war and members of the Russian military must be kept out. What I do find problematic is the intransparency and vagueness of control procedures and instruments. At present, we can hardly assess whether fair trial principles, as well as personality and data protection rights of Russian and Belarussian athletes, were respected by the IFs as well as by the AINERP. As the IOC informs, the strict eligibility conditions for AIN at Paris 2024, as applied by the AINERP, are the very same strict eligibility conditions under which they qualified and which were controlled by the responsible IF. While the contractual affiliation of athletes to the Russian or Belarusian military or national security agencies is an objective fact that concerns their professional life, checking whether an athlete actively supports the war delves much deeper into the athlete’s private life.
At the level of the IFs, there seems to be a plethora of different ways in which this control was practised. Some federations, such as the International Fencing Federation, do not disclose procedural details. Other federations, such as United World Wrestling, based their review on reports of social media activity by Russian and Belarusian athletes made available by an independent and private intelligence provider. A third group, such as the International Weightlifting Federation, based the neutrality check largely on a self-report and a declaration of commitment from the athletes, and informs that an initial check of the truth of this declaration and related investigations was entrusted to an independent investigation agency. The International Gymnastics Federation (FIG) was one of the few federations to offer a definition of acts of support for the military conflict in Ukraine. For the FIG, war support includes any ‘form of verbal, non-verbal or written expression, explicit or implicit, at any time since the beginning of the military conflict in Ukraine, in particular public statements, including those made in social media, participation in pro-military conflict demonstrations or events, and the wearing of any symbol in support of the military conflict in Ukraine, for example, the “Z”’. While the composition of the AINERP was made public by the IOC, the details of its control procedures are kept secret. The IOC discloses that the AINERP bases the second neutrality screening on ‘all relevant circumstances’ and gives a list of war supporting behaviour that is identical to that of the FIG. As sources for this control, the IOC refers to ‘the information obtained from the IFs’ and to ‘background checks’. In explaining why the number of AIN was lower than that of the athletes assigned by the IFs, the IOC stated that ‘the Panel was in a position to benefit from new information from various sources’ – without specifying what this means.
It is obvious that the outlined procedures seem to be largely non-transparent and incompatible with the rule of law requirements of legal certainty, predictability and fair trial, which must be upheld as a human rights desideratum in the case of sanctions. The screening of social media posts of Russian and Belarusian athletes by private intelligence providers is not only highly susceptible to abuse in times of so-called ‘deep fakes’ but also problematic in terms of personality and data protection rights. If the IFs and the IOC maintain individual neutrality checks in future cases of conflict, a human rights-informed approach inevitably goes hand in hand with certain procedural requirements. The German Constitutional Court can serve as a source of inspiration. The Court found that before imposing a stadium ban on a spectator of sporting events, those affected must be heard, they can demand a justification for the stadium ban and must have access to legal remedies. Given the great importance that participation in the Olympic Games has for athletes, such minimum requirements must apply even more to athletes.
Olympics 2024: The litmus test for the future role of international sport in times of war
Written by Patricia WiaterAs the Moscow Times reports, ‘only 16 Russians and 17 Belarusians have accepted invitations to compete under a neutral banner at the Paris Olympics’. While this may sound like a deliberate decision, the reality is that the ‘Individual Neutral Athlete Eligibility Review Panel’ (INAERP), appointed by the International Olympic Committee’s (IOC) Executive Board in March 2024 to carry out the neutrality control of athletes qualified for the Olympics, had invited the very small number of 36 Russian and 23 Belarussian athletes to participate in Paris (for the current state of invitations and acceptance see here). Only these athletes had met the IOC’s ‘strict eligibility conditions’ test that excludes those athletes who actively support the war or are contracted to the Russian or Belarusian military or national security agencies. In the case of Russian athletes, this is only around 10% of the athletes who took part in the Tokyo Olympics 2020. Last year, I argued that protecting the human rights of Ukrainian athletes as well as preventing international sporting events from being abused for the purpose of Russian war propaganda form legitimate aims that justify excluding the collective of Russian athletes from international competitions and the Olympic Games – as initially recommended by the IOC. At first glance, the necessity to pursue these goals through collective exclusion no longer seems to exist: The number of 140 Ukrainian athletes participating in the Olympic Games is at a historic low, but it significantly exceeds the number of athletes who belong to the aggressor state Russia. In addition, the IOC Executive Board took an important step in October 2023 by suspending the Russian Olympic Committee (ROC) thereby disrupting the link between Russian athletes and Russian war propaganda. According to the IOC, the reason for this reaction was the ROC’s breach of the Olympic Charter, namely the violation of the territorial integrity of the National Olympic Committee (NOC) of Ukraine, caused by the ROC when including the regional sports organisations that are under the authority of the NOC of Ukraine as its members (Donetsk, Kherson, Luhansk and Zaporizhzhia).
Is suspending a National Olympic Committee which violates the Olympic Charter and belongs to a state that breaks international law, while at the same time allowing politically neutral athletes to participate in international sporting events, the way sport should respond to war? I would say, in theory: yes, it is. However, the current practice of the IOC and international sports federations (IFs) in this regard illustrates fundamental uncertainties: There is an urgent need to define the circumstances under which the IOC exercises the sanction options against NOCs (and indirectly against states that violate international law) opened up by the Olympic Charter. The fact that the IOC has not imposed any sanctions in the conflict between Israel and Hamas, due to the difference between the situations, illustrates the importance of explaining this difference and defining standards. Individual neutrality control, on the other hand, has to oscillate between two objectives: If compared to a collective exclusion, neutrality control is only equally effective to protect the rights of athletes belonging to the victim state if strict compliance with the IOC’s neutrality conditions is monitored. With regard to the Russians invited to the Olympic Games in Paris, it is reported that an investigation published by the media agency Babel was able to uncover control deficiencies. In order to establish effective systems of control, these findings must be taken very seriously and existing loopholes must be closed. In pursuing the goal of sorting out the supporters of war as completely as possible, the IFs and the IOC must nevertheless establish procedures and use instruments of control that meet the standards of the rule of law and respect the human rights of athletes who are nationals of the aggressor state. Current practice casts doubt on this too.
Finding coherent and transparent approaches to both problems is, in my view, the litmus test for the future role of international sport in war times.
In search of a yardstick: When should international sport react to war?
In commenting on the neutrality approach as well as on the IOC Executive Board’s decision from October 2023 to suspend the ROC with immediate effect, Russia’s President Putin is quoted as saying that the IOC is practising racist, ethnic discrimination. While Putin’s view on this matter is hardly surprising, elements of his concern are shared by outside observers of the sporting world. The ‘widely divergent responses to Russia’s actions in Ukraine and Israel’s actions in Gaza’ raises the question of whether the IOC has aligned itself with ‘the political positions of the countries of the global north’. The global web movement Avaaz initiated a petition to ban Israel from the Olympics (allowing Israeli athletes to compete, just not under Israel’s flag), in order to show that ‘mass killing of civilians will not be tolerated by the global community’ (for a similar initiative, supported by ‘300 sports teams in Palestine’, see here). In June, the President of the Palestinian Olympic Committee, Jibril Rajoub, has urged Israel to be excluded from the 2024 Olympic Games in Paris, due to what he considered as Israel’s violation of the Olympic Charter (Sports stadiums used for ‘arrest and humiliation’). The call for the IOC to take action is linked to the accusation that international sport applies double standards, allowing Israel to continue participating in events ‘despite being quick to suspend Russia for its war on Ukraine’.
When challenging the IOC’s suspension decision before the Court of Arbitration for Sport (CAS), the ROC made similar considerations and alleged, among others, a violation of the sports law principle of equality. According to the ROC, an ‘historical analysis shows that the IOC has never reacted in these cases as it did with respect to the ROC in the instant case’ (CAS 2023/A/10093 ROC v. IOC, para. 96). The ROC too referred to the ‘long-lasting Israeli-Palestinian conflict’ (para. 100) in order to claim that ‘the IOC may not lawfully apply double standards’ in relation to Rules 28.5 and 30.1 of the Olympic Charter (para. 103). Rule 28.5 stipulates that ‘(t)he area of jurisdiction of an NOC must coincide with the limits of the country in which it is established and has its headquarters.’ Rule 30.1 lays down that ‘(i)n the Olympic Charter, the expression “country” means an independent State recognised by the international community.’ However, the IOC – and the CAS Panel – saw fundamental differences between Israel and Russia with regards to Rules 28.5 and 30.1, due to the lack of ‘evidence that the NOC of Israel has been recognising Palestinian sporting organisations as its members’ (para. 108 et seq.).
In searching for a yardstick, we can make important preliminary observations: The first is that measures and sanctions the IOC is able to impose, like the suspension of a NOC (Rule 59 of the Charter), are not subject to the complete arbitrariness of the IOC but have to be linked to the IOC finding a violation of the lex olympica (Olympic Charter, the Olympic Movement Code …). Any reaction of the IOC to state internal or inter-state conflicts must thus materialise in a corresponding violation of the lex olympica. When the IOC withdrew South Africa’s invitation to the 1964 Summer Olympics in Tokyo, for example, it reacted to the severe discrimination caused by apartheid and racial laws in South Africa by calling on the South African National Olympic Committee to publicly denounce racial discrimination in sport, both in theory and in practice. Thus, the link legitimising the IOC’s reaction was the violation of the Olympic Charter, namely of the NOC’s duty to maintain autonomy and counteract political instrumentalization (Rule 27 para. 6 of the Olympic Charter).
This lex olympica contains some general normative goals that are of fundamental relevance in conflicts, above all a peace postulate (second principle of Olympism). After the end of the Second World War and in direct reaction to the racist ideology of National Socialism, the principle of non-discrimination was included in the Olympic Charter in 1949 (on this see here). In October 2023, an amendment to the Olympic Charter was adopted at the 141st IOC Congress in Mumbai, incorporating the obligation to respect human rights as one of the basic principles of Olympism. If a state’s violent activities that violate human rights – against its own population or against the population of a foreign state – are related to sports matters, such a link can easily be established in the future. The Olympic Charter does not (yet) define a red line that would force the IOC to react. Adding a rule to the Charter that provides for excluding teams and athletes from countries that don’t abide by decisions of the International Court of Justice is one possible improvement in this regard. Adding a rule that forces the IOC to react to the General Assembly’s finding of ius cogens violations (as in the case of Russia’s aggression against Ukraine in GA, A/RES/ES-11/1) is another I propose.
As long as this written yardstick does not yet exist, very similar to the freedom states have in reacting to conflicts, the sanctions IFs or the IOC decide to impose seem to be part of the political leverage of the sports world – and of the IOC’s free discretion. Yet, as the CAS award cited before proves, they are not. The principle of equality applies to the sanctioning regime of the Olympic Charter, forcing the IOC to uphold the rule that ‘similar cases must be treated similarly, but dissimilar cases could be treated differently’ (see for example CAS 2020/A/6745 Vujovik v Andijon Futbol Sport PFK & FIFA, §90, CAS 2023/A/10093 ROC v. IOC, para. 46, para. 95). What follows is that once the IOC has reacted, as in the case of Russia, this can lead to demands for coherence, which for their part are not only political in nature, but justiciable sports law.
A human rights-informed approach to individual neutrality control
When it comes to the small number of Russian athletes who will participate in the Summer Games, truth includes that the majority of those athletes who were invited as AINs declined the IOC’s invitation. The Russian Wrestling Federation explained this with the ‘unsportsmanlike selection principle’ the IOC had adopted. I agree with the view expressed by the CAS Panel in the cited ROC case that the conditions introduced by the IOC are not unsportsmanlike, but in principle, ‘fair and carefully calibrated to ensure that individual athletes are in fact politically neutral’ (para 126). To protect the rights of Ukrainians and to avoid providing a stage for war propaganda, supporters of Russia’s war and members of the Russian military must be kept out. What I do find problematic is the intransparency and vagueness of control procedures and instruments. At present, we can hardly assess whether fair trial principles, as well as personality and data protection rights of Russian and Belarussian athletes, were respected by the IFs as well as by the AINERP. As the IOC informs, the strict eligibility conditions for AIN at Paris 2024, as applied by the AINERP, are the very same strict eligibility conditions under which they qualified and which were controlled by the responsible IF. While the contractual affiliation of athletes to the Russian or Belarusian military or national security agencies is an objective fact that concerns their professional life, checking whether an athlete actively supports the war delves much deeper into the athlete’s private life.
At the level of the IFs, there seems to be a plethora of different ways in which this control was practised. Some federations, such as the International Fencing Federation, do not disclose procedural details. Other federations, such as United World Wrestling, based their review on reports of social media activity by Russian and Belarusian athletes made available by an independent and private intelligence provider. A third group, such as the International Weightlifting Federation, based the neutrality check largely on a self-report and a declaration of commitment from the athletes, and informs that an initial check of the truth of this declaration and related investigations was entrusted to an independent investigation agency. The International Gymnastics Federation (FIG) was one of the few federations to offer a definition of acts of support for the military conflict in Ukraine. For the FIG, war support includes any ‘form of verbal, non-verbal or written expression, explicit or implicit, at any time since the beginning of the military conflict in Ukraine, in particular public statements, including those made in social media, participation in pro-military conflict demonstrations or events, and the wearing of any symbol in support of the military conflict in Ukraine, for example, the “Z”’. While the composition of the AINERP was made public by the IOC, the details of its control procedures are kept secret. The IOC discloses that the AINERP bases the second neutrality screening on ‘all relevant circumstances’ and gives a list of war supporting behaviour that is identical to that of the FIG. As sources for this control, the IOC refers to ‘the information obtained from the IFs’ and to ‘background checks’. In explaining why the number of AIN was lower than that of the athletes assigned by the IFs, the IOC stated that ‘the Panel was in a position to benefit from new information from various sources’ – without specifying what this means.
It is obvious that the outlined procedures seem to be largely non-transparent and incompatible with the rule of law requirements of legal certainty, predictability and fair trial, which must be upheld as a human rights desideratum in the case of sanctions. The screening of social media posts of Russian and Belarusian athletes by private intelligence providers is not only highly susceptible to abuse in times of so-called ‘deep fakes’ but also problematic in terms of personality and data protection rights. If the IFs and the IOC maintain individual neutrality checks in future cases of conflict, a human rights-informed approach inevitably goes hand in hand with certain procedural requirements. The German Constitutional Court can serve as a source of inspiration. The Court found that before imposing a stadium ban on a spectator of sporting events, those affected must be heard, they can demand a justification for the stadium ban and must have access to legal remedies. Given the great importance that participation in the Olympic Games has for athletes, such minimum requirements must apply even more to athletes.
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