What now for Israel, Palestine football after FIFA decision?

(Full disclosure: This issue was the topic of my legal seminar on International Conflict Resolution at Marquette Law School and this post is an updated look at the issue since FIFA’s October 27 ruling).

In a situation that looked like a goal-scoring opportunity, soccer’s governing body opted to kick the ball out of play.

That’s essentially the result of a two-year investigation by the Fédération Internationale de Football Association (FIFA) into the issue of Israeli soccer teams playing in Palestinian settlements along the West Bank.

The FIFA Council decided on October 27 not to intervene and “refrained” from placing any sanctions on the Israeli Football Association or the Palestinian Football Association over six Israeli football clubs playing Israeli league matches in the West Bank.

FIFA’s statement about the decision rests on the idea that “in line with the general principle established in its Statutes, (FIFA) must remain neutral with regard to political matters.” [1]

FIFA President Gianni Infantino spoke of “issues which are there since 10,000 years and have not been solved yet and football is not going to solve them either I am afraid.” [2]

Background

The problem concerns six Israeli teams that play in Jewish settlements within in the physical borders of the West Bank—Kiryat Arba, Givat Ze’ev (Beitar Givat Ze’ev Shabi), Ma’aleh Adumim (Beitar Ma’alel Adomim), Ariel, Oranit (Hapo’el Oranit) and Tomer (Hapo’el Jordan Valley). [3]

All six of these teams play in the lowest three leagues within Israeli football (A, B and C) and are considered semi-professional. Clubs within Leagues A and B give adult players a small part-time salary while League C teams pay coaches but most players are not paid. Although small, these settlement clubs can act as feeder teams for larger Israeli clubs that compete in Europe, such as Hapoel Be’er Sheva or Maccabi Tel Aviv—both of whom are recent participants in the UEFA Champions League.

These small clubs operate without economic benefit to Palestine and only play matches against Israeli league teams.

What are the issue at hand?

I think there are four points worth looking at in this decision:

  1. Viewing the situation depends on a simple question with a complex answer–is Israel one state? Two states? Multi-state?
  2. FIFA has not proven itself to stay neutral in all political situations.
  3. The issues in play are not 10,000 years old–take a couple of zeros off and one gets closer to the heart of the issue.
  4. Keeping the status quo only kicks the can down the road.
Viewpoints change and frame the answers

This is a bit tricky, but I’ll try to distill the arguments I made in my seminar paper as best I can. How one looks at and defines the situation largely depends on how you view the state of Israel. Is is one state, two states, or something more?

At a simplistic level, the one-state versus two-state construct focuses on whether the territories of the West Bank and Gaza are an independent Palestinian nation or part of a larger and unified Israeli state. A larger issue within the same prism focuses on the questions of self-determination and nationalism.

This matters because FIFA itself (whether formally or tacitly) recognizes two states. The heart of the current controversy is FIFA’s own rulebook under Article 72.2 that states football clubs which are FIFA member affiliates, such as the Israel Football Association (IFA), may not play on the territory of other football associations without the other association’s permission. [4]

Further, FIFA was one of the first international organizations to recognize the state of Palestine in any context, having done so since 1998. [5]

If one views this issue from a one-state solution and suggests that Israel is not violating international law nor the bylaws of FIFA, there are some strong arguments available.

Israel argues that the settlements are built in Area C of the West Bank where Israel has full security and administrative control under the Oslo Accords. The clubs within the West Bank also claim they are not discriminatory or racist. [6] [7]

Additionally, the Israeli Football Association has attempted to distance itself from any political stance regarding the Israeli teams in Jewish settlements, noting it wants to use football as a “bridge connecting people and not as a wall that divides them.” [8] Overall, around 250,000 Israeli Jewish settlers live in 150 settlements within the West Bank. [9]

This viewpoint falls in line with Israeli one-state political thinking regarding the West Bank. Israel disputes the land in the West Bank defined as “occupied Palestinian territory.” [10] Israel’s government contends that it entered the West Bank only after Jordanian artillery fire and movements across the previous armistice line into the territory. [11] The crux of this international legal argument centers on “[if] the prior holder of territory had seized the territory unlawfully, the state which subsequently takes that territory in the lawful exercise of self-defense has, against that prior holder, better title.” [12]

Conversely, if one looks at the situation through a two-state solution lens, Palestine not only has a sporting right, but a political right to exist without external interference, which I’ll touch on in a bit.

This private matter, which was under dispute within FIFA, became public when the United Nations Security Council approved Resolution 2334 without opposition just before Christmas in 2016. [13] This Resolution stated that Israel’s settlements in Palestinian territory have no legal validity and are a flagrant violation of international law. Although Palestine has not been recognized as a state by the United Nations (it is a recognized by 70.5 percent of the 193 UN Nations), it maintains non-member observer status within the U.N. [14]

Does FIFA remain ‘neutral’ in all political situations?

The broader and more accurate question is whether politics and football can co-exist without infringing upon one another.

The answer is no.

The Union des Associations Européennes de Football (UEFA) chose to keep Crimea as a “special zone for football purposes” until the conflict is resolved. [15] Further, UEFA made a special rule for European championships stating Ukrainian and Russian teams will not play against one another. FIFA also refused to recognize Northern Cyprus, which declared itself independent in 1974. [16]

In this case, the Palestinian Football Association counters the IFA’s argument by noting there is no difference between football’s role in the settlements and the settlement’s political and legal meaning. Further bolstering that statement, PFA Chairman Jibril Rajoub noted that any negotiated or mediated settlement must start with an acknowledgment that the settlement clubs violate FIFA statutes, human rights and international law and that “there will be no compromise on this issue.” [17] This position is consistent with the PFA’s initial position that Israel’s Football Association acts as a political tool to maintain power within the West Bank, noting:

The IFA has been acting as a tool of the Israeli occupation. While it is true that they haven’t ordered the killing, injuries and/or arrests of PFA members, or the storming of PFA stadiums and football association, they have never condemned such actions. In fact, they have justified the military actions in Palestine. [18]

At the same time, the PFA called upon Israel to recognize the PFA as the sovereign governing body within Palestine based on the FIFA statute, ban football teams from illegal Israeli settlements from participating in the IFA and the right to free movement between the West Bank, East Jerusalem and Israel. [19] Finally, the PFA wanted the violations to be known and to bring recognition to the incidents of racism that were happening within the Israeli league against Palestinians, Arabs and Muslims. [20]

Issues at play are not 10,000 years old

Infantino’s suggestion that the issues facing Israel and Palestine are long-standing and likely unresolvable obscures the problems and potential solution.

Based on my research, my conclusion is that the British Mandate may have more to do with the “problem” than anything occurring 10,000 years ago.

Through the latter stages of the Ottoman Empire, the area known as Palestine was undefined administratively or politically and its inhabitants rarely defined themselves as Palestinians. [21]

With the British Conquest and the Palestine Mandate after World War I and the fall of the Ottoman Empire, Great Britain displayed a sovereignty over the area which did not allow for indigenous self-determination. [22] Meanwhile, the lack of statehood by Palestine during the British occupation is due to the commitment Great Britain had to the Balfour Declaration and the creation of a Jewish homeland.

This led to a political road block: either fulfill the mandate for a Palestinian state and not follow the Balfour Declaration or deny the declaration and execute the Palestine Mandate. [23]

In my mind, this is what intertwines politics and football–a promise to both sides. The issue of Jewish settlements in the West Bank  and the settlement teams speaks to the very issue of national identity. This is a relatively new phenomenon (100 years) and not something inexorably linked to the ancient past (10,000 years).

Kicking the can down the road does no one good

Maintaining the status quo does nothing for either side and only perpetuates the underlying issues at hand.

Tokyo Sexwale, who headed the FIFA investigation, noted that the lack of a decision left Palestine football “in limbo” and without answers. Further, I suggested in my paper that doing nothing may leave the Palestinian state:

disillusioned over what they fear is an “illusion of accountability . . . under the premise of an endless ‘dialogue.’”

Palestine is likely to take the case to the Court of Arbitration for Sport and attempt to get a judgment in its favor. FIFA said it would honor the decision made by the arbitrators. However, the three-panel tribunal has the same basic issue confronting it–is this one state, or two states?

Conclusion

It is important to recognize that any ultimate decision made in the West Bank is not made within a bottle, nor does it only affect only Israel and Palestine. Any decision made by the Court of Arbitration for Sport makes will affect as many as five current situations and one FIFA may be forced to revisit in Ukraine-Crimea and Russia.

The plight of soccer teams in Nagorno-Karabakh Autonomous Republic, the view of the people in the Nakhichivan enclave and Azerbaijan’s relationship with them both demonstrate how sport, political and ethnic polarity is not the sole province of Middle Eastern states.

Historical narratives and the viewpoint from which we perceive them can greatly aid or limit our understanding in resolving conflicts through mediation or negotiation as FIFA demonstrated throughout this process.

Ultimately FIFA officials, CAS arbitrators, Israelis and Palestinians on both sides of the wall or fence and within Jewish settlements are finding out that “many of the truths we cling to depend greatly on our own point of view.” [24]

Endnotes

[1] Nigel Wilson, FIFA delay on Israeli settlement decision fuels concern, Al Jazeera, Mar. 19, 2017, http://www.aljazeera.com/indepth/features/2017/03/fifa-delay-israeli-settlement-decision-fuels-concern-170317080253187.html.

[2] Israel/Palestine: FIFA Sponsoring Games on Seized Land, Human Rights Watch (Sept. 25, 2016), https://www.hrw.org/news/2016/09/25/israel/palestine-fifa-sponsoring-games-seized-land.

[3] Israel ‘Lobbying FIFA’ to Prevent Settlement Teams’ Ban, Al Jazeera, Apr. 20, 2017, http://www.aljazeera.com/news/2017/04/israel-lobbying-fifa-prevent-ban-settlement-teams-170420105045514.html.

See Ligat Ha’al, Soccerway, http://us.soccerway.com/national/israel/ligat-haal/20162017/championship-round/r36478/ (last visited Nov. 16, 2017) (Current standings and what teams are in European competitions).

[4] FIFA Statutes art. 72(2), May 2008.

[5] Peter Beaumont, FIFA Urged to Kick Out Israeli Football Clubs Located in West Bank, Guardian, Sept. 25, 2016, https://www.theguardian.com/world/2016/sep/25/fifa-kick-israeli-clubs-west-bank-palestinian-football-human-rights.

[6] Rory McCarthy, Area C Strikes Fear into the Heart of Palestinians as Homes Are Destroyed, Guardian, Apr. 15, 2008, https://www.theguardian.com/world/2008/apr/15/israelandthepalestinians (noting that 60 percent of the West Bank falls within Area C).

[7] See generally Human Rights Watch, supra note 2.

[8] FIFA Delays Decision on Israel’s Settlement Soccer Clubs, Times of Israel, Oct. 14, 2016, http://www.timesofisrael.com/fifa-delays-decision-on-israels-settlement-soccer-clubs/.

[9] David Morris Phillips, Jewish Settlements in a Palestinian State, 25 Penn St. Int’l L. Rev. 75, 77–78.

[10] Occupied Territories or Disputed Territories, Jerusalem Center for Public Affairs (Sept. 2, 2001).

[11] Id.

[12] Id. quoting former State Department Legal Advisor Stephen Schwebel’s legal analysis on Israel’s case.

[13] S.C. Res. 2334 (Dec. 23, 2016).

[14] Louis Charbonneau and Michelle Nichols, Palestinians Win De Facto U.N. Recognition of Sovereign State, Reuters, Nov. 30, 2012, http://www.reuters.com/article/us-palestinians-statehood-idUSBRE8AR0EG20121201. See Ali Al-Airan and Mohsin Ali, Palestine: Growing Recognition, Al Jazeera, Jan. 15, 2017, http://www.aljazeera.com/indepth/interactive/2017/01/palestine-growing-recognition-170115201330185.html.

[15] James M. Dorsey, Israeli-Palestinian Struggle Returns to the Soccer Pitch, International Policy Digest, Sept. 26, 2016, https://intpolicydigest.org/2016/09/26/israeli-palestinian-struggle-returns-soccer-pitch/.

[16] Id.

[17] Adam Rasgon, Jibril Rajoub: No Compromise on Settlement Clubs in FIFA, Jerusalem Post, Jan. 15, 2017, http://www.jpost.com/Arab-Israeli-Conflict/Jibril-Rajoub-No-compromise-on-settlement-soccer-clubs-in-FIFA-478435.

[18] Questions & Answers Palestine Football Association’s Initiative 65th FIFA Congress, Palestine Football Association, (Zurich 28-29, 2015), https://palaestina.org/uploads/media/Q_A_PFO_s_Initiative.pdf.

[19] Id.

[20] Id.

[21] Id. at 31–32.

[22] Winston P. Nagan and Aitza M. Haddad, Recognition of Palestinian Statehood: A Clarification of the Interests of the Concerned Parties, 40 Ga. J. Int’l & Com. L 341, 349 (2012). The authors note the differences between Palestine and neighboring countries such as Syria and Iraq where statehood was more likely to occur in.

[23] Id.

[24] Return of the Jedi (Lucasfilm 1983).