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The Futility of Collective Punishment: Russia, Doping and WADA

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Collective punishment has a primitive resonance. It lacks focus, is disproportionate, and is, by nature, poor in its judgment. It suggests that responsibility is cultural, total, and institutional, flickering in the moment of vengeance.

At international law, concepts of collective punishment are generally frowned upon. The Geneva Conventions prohibit such measures in, or instance, the implementation of disciplinary measures, or the application of collective penalty “for individual acts” (Geneva POW Convention, Art 46, para 4; Geneva Convention III, Art 87, para 3). The 1977 Additional Protocol I also makes that injunction clear.

Despite such cautionary injunctions, the temptation to exclude in wholesale fashion does crop up from time to time. Those in the business of punishment remain tempted. In the case of the Olympics and the issue of doping, it has found form in voices favouring a ban of Russia for the Rio de Janeiro Games.

Much of this had already been given a spur with the finding of the Court of Arbitration for Sport (CAS) upholding a ban on the country’s 68 track and field athletes. “This is about a Russian system that has failed,” argued Rude Andersen, who headed the International Association for Sport inquiry.

The state has been accused largely for adopting what is termed the Disappearing Positive Methodology. Officials were said to have swapped dope-contaminated urine for non-dope equivalents to guarantee a subsequent clean result.1

According to Richard McLaren’s World Anti-Doping Agency report, the instigation of that program came from the Russian ministry of sport in 2010 in light of the country’s poor showing at the Winter Olympics at Vancouver. Twenty-eight sports were implicated.

Steroid cocktails ingeniously designed to evade detection were also concocted, much of this taking place under the direction of whistleblower Dr. Grigor Rodchenko as head of the Moscow laboratory. The role of the intelligence services (the FSB), of which Rodchenko admitted to being a member, seemed to the final nail in this widening coffin.

Such findings stirred former WADA head, John Fahey, to insist that the only appropriate measure here was a collective one. If the IOC were to exclude Russia “I think they would be applauded.” Doing so would be a “statement in favour of clean athletes. What is the point of having that sort of sanction if you don’t use it.”2

In the case of the doping allegations regarding Russia, athletes who have trained for years risked being deprived a run at the Olympics. It was a point noted by the IOC Executive Board in considering the issue of Russia’s participation, citing “a fundamental rule of the Olympic Charter to protect clean athletes and the integrity of sport.”3

Not that a disruption of proceedings at Rio should not be entertained. Having been conceived and practiced as a monument to racial, cultural and political pursuits at stages of its history, the Olympics has never been nobly inclined. Athletes have tended to be hostages to the fortunes of others.

The idea of excluding a country wholesale brings with it dangers that decision makers may well not see. It eliminates specific, untainted talents who also deserve to be protected in international sport. It also violates that great presumption of innocence by pre-emptively judging the conduct of all athletes.

This is not a point that bothers Fahey, who lazily assumes that allowing athletes not affected by a doping program to participate would put “the IOC in a precarious position in terms of its credibility.” It is hard to believe how the IOC could have gotten away with a decision that did not treat cautiously.

The broader issue of creating further fracture within the institutional framework of sport is also very much at the forefront of arguments. In the words of former International Olympic Committee vice president Kevan Gosper, “I can’t remember anything quite so complicated involving the welfare of athletes, doping, and one of the most important countries – not only political – but in terms of Olympic history.”4

There are also structural impediments. The move on the part of the IAAF in June was to expand its powers regarding moves against members in contravention of the anti-doping rules. Deferral to individual sports bodies, in other words, seems to be the accepted norm. It was a point also accepted by the Executive Board of the IOC.

Despite the executive board noting a degree of “collective responsibility” in the ranks of the 28 Olympic summer sports scrutinised in the WADA report. It was content that the Russian Olympic Federation itself was not impugned by McLaren’s testy findings, and that natural justice had to be applied.

Evidently, the IOC EB felt the effects of collective punishment outweighed that of specific consideration of the athlete in question. While hardly a beacon of propriety itself, the IOC has, at the very least, provided room for admitting Russian athletes who, for example, satisfy international anti-doping regimes as opposed to merely local ones.

Group punishments can actually negate the incentive to alter, eliminating any deterrent effect. The history of the Olympics, far from being one of harmonious interaction, has been characterised by prejudice, politics and power.

Notes

1 https://www.theguardian.com/sport/2016/jul/18/russia-doping-scandal-five-things-wada-report

2 http://www.afr.com/business/sport/whole-russian-team-must-be-banned-from-olympics-says-exwada-boss-john-fahey-20160722-gqbjw9

4 http://www.abc.net.au/news/2016-07-23/russia-expected-at-rio-2016-in-some-form/7654846

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Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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