10 November 2017

South Africa: Tokyo Sexwale's Report Frustrates Palestinian Hopes

On Friday 27 October the FIFA council announced its decision to take no action on the issue of Israeli settler football clubs playing in the occupied Palestinian territories. This follows the presentation of the final report of the FIFA Monitoring Committee, chaired by ANC veteran and former SA Cabinet minister Tokyo Sexwale.

Shortly before Sexwale's report was submitted to the FIFA Council, a group of prominent South Africans wrote an open letter to Sexwale criticising his failure to take a firm stance up to that point, and the delay in resolving the issue. The letter urged Sexwale to "remember your struggle against oppression and stand by Fifa's rules."

Sexwale's committee was established following the FIFA Congress in May 2015 to investigate and advise on two matters: the restrictions applied to movement of Palestinian footballers and equipment by Israeli security forces, and football clubs in the occupied West Bank playing in Israeli domestic leagues. These issues have been raised at FIFA since at least 2010, while the committee itself was due to complete its work in a year but dragged on for more than double that.

FIFA's final decision represents a failure to apply its own laws (specifically, article 72.2) which prevent member associations and their clubs from playing on the territory of another member association without the latter's approval. The Palestinian Football Association (PFA) has been a member of FIFA since 1998.

In the wake of criticism, Sexwale has hit back, arguing that he and the Monitoring Committee had delivered on their mandate, which was to investigate and make recommendations. Sexwale says it was the FIFA leadership which was responsible for choosing to take no action.

This isn't completely true though. Sexwale's report did not make a clear recommendation for the course of action to be followed. Rather, it presented three options for FIFA:

Option 1: Maintenance of the current Status Quo

Option 2: FIFA warns IFA [Israeli Football Association] - Yellow Card

Option 3: Discussions should be encouraged between the IFA and the PFA

In effect, FIFA took the first option. So while FIFA has failed to take action, this failure is allowed within the options the report sets out. Remarkably, only the second option of the three actually proposes applying FIFA's own rules - and even then, does so only in the sense of giving a warning. No actual sanction, such as suspension of those football clubs or of the Israeli Football Association itself, is mentioned.

This is inconsistent with world football's willingness to act in other cases. In 2014 UEFA (the European football authority), under current FIFA President Gianni Infantino, suspended clubs in occupied Crimea from playing in the Russian domestic leagues.

More broadly, though, it is bizarre that a two year long process should conclude by making suggestions of this sort; to take no action, apply a warning, or encourage further dialogue could all have been options pursued at the outset of this process. For them to crop up at its conclusion means the Monitoring Committee has failed.

FIFA and Sexwale claim to have made a great deal of progress on the issue of movement of Palestinian players and equipment. Although it's difficult to assess this claim given that there is little substantive detail in the Sexwale Report, other sources suggest that there has indeed been some improvement to the situation. This is to be applauded. Nonetheless, there are still cases of Palestinian players being detained by Israeli security forces for long periods of time or barred from travel altogether.

Where does the confusion come from? In their submission to the Monitoring Committee, the Israeli FA referred to the Oslo Accords, which set out three parts of the West Bank:

Zone A: Under full political and security control of the Palestinian Authority (PA).

Zone B: Civil control of the PA and Israeli security control.

Zone C: Controlled entirely by Israel.

The Israelis argued that the clubs in question are all in Zone C, and that this therefore didn't count as the territory of another FIFA member association.

It is true that the clubs are in Zone C. But the Oslo Accords did not decide the borders of Israel-Palestine. "Zone C" is purely descriptive: it just means this part of the West Bank is occupied by Israel. Until a final-status agreement has been reached between Israel and Palestine, the internationally-recognised border is the Green Line, crossed in 1967 by occupying Israeli forces. This has been affirmed by the UN Security Council, the General Assembly, the International Court of Justice and the International Criminal Court. This means that the whole of the West Bank (as well as East Jerusalem) constitute Palestinian territories. Treating Israeli settlements in the West Bank as part of Israel - or even as disputed territory - hides the fact of occupation.

The Oslo Accords and the three zones of the West Bank have been reproduced in Sexwale's report, without analysis or discussion. This suggests that the report accepts the Israeli version.

If Sexwale was unsure of the legal standing of the settlements, he could have requested an international legal opinion. In fact, he did: he asked the UN. In October 2016 the UN Special Advisor on Sport for Development and Peace, Wilfried Lemke, replied:

"The United Nations security council has determined that Israeli settlements in occupied territory have no legal validity, as they are in breach of international law, and that such practices are an obstruction to achieving a comprehensive, just and lasting peace in the Middle East.

"The UN recognises sport as a fundamental human right and, as such, it advocates and facilitates the realisation of such a right by everyone. Without undermining the right of Israeli and Palestinian people to sport, all teams playing in recognised FIFA competitions should abide by the laws of the game."

In December 2016 the UN Security Council reaffirmed that settlements in occupied Palestinian territories constitute a violation of international law and an obstacle to the peace process.

Sexwale's report cites this resolution of the Security Council. But it fails to draw the link between that and the implications for FIFA's own processes. The closest it gets to this is a statement that FIFA "should not be unmindful of its global obligations in terms of international law and relevant agreed-upon international protocols including its own statutes".

Such a statement is vague enough to be subject to multiple interpretations. It also contains no imperative to act.

A generous interpretation of this saga might be that Sexwale came under substantial political pressure to dial down the report's recommendations. An earlier draft of the report may well have mentioned the possibility of suspending Israel from FIFA, but was harshly criticised by the IFA when presented to the Monitoring Committee. However, Sexwale was solely responsible for its content: because there was no consensus from the Committee, what was submitted was a "Chairman's report". If anything, this makes the weakness of the final report all the more disappointing.

Regardless of how it was arrived at, the report has allowed FIFA to declare the matter closed until the situation changes. Meanwhile, clubs from illegal settlements will continue to play in Israeli domestic leagues, and continue to win legitimacy for the settlements by doing so.

Views expressed are not necessarily GroundUp's.

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