[Eugene Kontorovich] The Palestinians unsporting and illegal ‘football war’ against Israel

(John Thys/Agence France-Presse via Getty Images)

Human Rights Watch published a long, graphics-rich report on Sunday denouncing Israeli semi-pro soccer (football) clubs in towns in the West Bank. A few weeks ago, a group of European Parliament members sent a letter along similar lines to FIFA, the international soccer governing body. The parliament members argue the clubs violate international law, and for good measure, the FIFA constitution, and call for the expulsion of the teams, or Israel itself, from world soccer.

These efforts are all part of a broad Palestinian push to pressure Israeli in international forums. The legal arguments raised in these documents are entirely contrived. They contradict longstanding FIFA practice and create a double standard for Israel. And that’s just not sporting.

The human rights claims in the Human Rights Watch (HRW) report are tendentious — they assert that the local soccer leagues (all quite small-time) are “making the settlements more sustainable, thus propping up” the system. Most of the communities in question are just a few kilometers from the 1949 Jordanian-Israeli armistice line and would remain in Israel in all the major two-state proposals; their residents typically commute to work in bigger nearby cities. It is laughable to think anyone would leave them if the football league moved a few kilometers down the road. In any case, contrary to the HRW’s claims, there is simply no support in international law for prohibiting business in occupied territories, as British and French courts have recently affirmed.

Indeed, Morocco maintains a team, part of its national football federation, in occupied Western Sahara. Yet the HRW completely fails to mention this fact in its report. The human rights abuses in Western Sahara — where the majority of the population are Moroccan settlers and the indigenous population has been heavily displaced — are too vast to recount. No one — including the HRW and the Parliament members — has suggested expelling Morocco on account of its team, based deep in land taken from the Sahrawi.

The football-as-human rights-violation arguments against Israel are tendentious and prove too much. So those campaigning against Israel rely principally on a lawyerly claim about FIFA’s rules: the clubs “clearly violate FIFA’s statutes, according to which clubs from one member association cannot play on the territory of another member association without its and FIFA’s consent <ahref=”https://d3n8a8pro7vhmx.cloudfront.net/alynsmith/pages/2131/attachments/original/1473407339/Alyn_Smith_MEP_European_Parliament_letter_to_FIFA_Israeli_settlements_in_Palestine_Football_09092016.pdf?1473407339″ target=”_blank”> the members claim.

Curiously, the Parliament members and the think tanks that support them do not cite any statutes saying this. And that is because the statutes specifically do not say that — and numerous precedents show it is not how they are understood. For example, a relevant provision, Art. 3.3 provides:

The terms used to define a match are those that give an appropriate political and geographical description of the countries or territories of the Members whose teams are involved in the match and over which countries or territories the Members have sole control and jurisdiction. (emphasis added)

The rules make clear that they do not involve or concern claims of territorial sovereignty. Rather, they deal with de facto control. This is hardly surprising as FIFA is not a political body and would hardly be expected to, or want to, be forced to decide contentious territorial questions between members.

It is quite clear that the teams in question play not just in areas of de facto Israeli control, but of de jure jurisdiction. One need not believe that Israel has a territorial claim to the territories — indeed, one can think they are “Palestinian” land — and yet clearly Israel is authorized under the express terms of the Oslo agreements to exercise civil jurisdiction over them.

Indeed, FIFA clearly separates any question of sovereign statehood and territory from FIFA membership by not requiring that member federations be recognized states (i.e. Hong Kong, American Samo