The Olympic flag (R) and the Russian flag flutter during the closing ceremony at the Sochi 2014 Olympic Games, Russia, February 23, 2014.

    The Olympic flag and the Russian flag. (dpa picture radio / Kay Nietfeld)

    If IOC President Thomas Bach has his way, the athletes from Russia and Belarus who are still suspended will soon be able to take part in international sporting events again under a neutral flag. The current sanctions are not legally tenable, says Bach, referring to the human rights requirements of the United Nations and the Olympic Charter.

    Commercial lawyer and sanctions expert Viktor Winkler agrees with Bach on Deutschlandfunk: “First of all, one should make it as clear as possible that these are not sanctions at all. Sanctions are a very severe legal instrument. And only states have the right to use this instrument to use,” he says.

    With regard to the exclusion of Russian and Belarusian athletes from international sporting events, he speaks of discrimination. “This brings us to the heart of the problem, that by 2023 we have to declare that discrimination is always illegal, whether we discriminate against the good guys or the bad guys. The exclusions based on nationality are all and exclusively clear and serious breaches of the law .”

    “Exclusion violates Olympic Charter”

    Discrimination against athletes because of their ethnicity or nationality “of course violates the Olympic Charter, but above all against all human rights conventions of the UN. That Mr. Bach, who after all did his doctorate on the Federal Constitutional Court, committed such a shameless breach of the law at all has promoted is worrying for me and should give food for thought.”

    As a private association, the IOC is not directly subject to the bans on discrimination, but Winkler misses intervention by the states: “The states involved actually have a duty to shout about the bans on discrimination and to take action.”

    In particular, however, Winkler missed an outcry from his colleagues: “The lawyers in this country, but also in other western countries, are the ones who have to explain why even well-intentioned discrimination is still discrimination and why the principle applies: ‘Today her, tomorrow you.’ If we discriminate against the ‘right’ ones today and we allow that, maybe the ‘wrong’ ones will be discriminated against tomorrow when the balance of power changes.”

    “Human rights organizations worryingly silent”

    According to Winkler, the legal bases for preventing such discrimination are “apparently” insufficient. “Apparently we have to include elements in the respective legal foundations, in particular the charter, that better prevent actions like the ones we have now experienced. Perhaps we also need a right to bring collective actions. Perhaps we also need an extension of the possibilities for those affected or associations to sue who then sue on behalf of those affected, although I have to say that human rights organizations have so far remained worryingly silent on this point.”

    It is now easy for the IOC to make a 180-degree turn, since the exclusion of Russian and Belarusian athletes was only a recommendation from the IOC. “That’s why it has to be seen in two legal ways,” says Winkler. “One side is to make this recommendation. And the other side is, of course, to follow this recommendation in such a way that you carry out the discriminatory act. In view of the fact that the IOC only made the first, i.e. only the recommendation it is of course easier for the IOC to make a 180-degree turnaround, because now all you have to do is withdraw the recommendation.”

    Legally, however, the withdrawal of the recommendation is not enough, according to Winkler: “The message from the IOC should actually be: From now on, any appearance of discrimination based on origin, nationality, ethnicity must be avoided and all remaining residues that lead to discrimination must be lifted and returned.”

    Winkler is critical of the neutrality of sport

    For Winkler, “as a lawyer, it is always a bit questionable that sport can generally contribute to enemy parties getting closer. Personally, I see the idea of ​​a neutral sport as quite critical. If you take the last two centuries, with the major sporting events, you will notice the opposite is true. The supposed political neutrality of sport is actually a myth.”

    A re-integration into sport will not lead to a rethink in Russia, says Winkler. “It doesn’t have to be. I don’t think you can stifle this discussion by saying: ‘Well, you won’t achieve anything with it.’ Sometimes it’s also important to send political signals.” The discussion should therefore be continued. “And it should end where the ban on discrimination is concerned. But if you are in front of it, i.e. not yet discriminated against, I consider this discussion to be legitimate and also open in its results.”