IOC Fails to Follow own Rules for Peng Shuai Complaint: Matter Escalated to Ethics Chair Ban Ki Moon

Human Rights NGO Safeguard Defenders, through barrister Michael Polak has today formally written to Mr Ban Ki Moon in his role as Chair of the International Olympic Committee’s Ethics Commission. In this letter, they have raised their grievance in relation to the failure of the Ethics Office to follow the Rules of Procedure Governing Cases of Possible Breach of Ethical Principles, and they have called on Mr Ban Ki Moon to either examine the Complaint himself or to appoint a new Ethics and Compliance Officer to do so properly.

The complaint was related Peng Shuai, the tennis player that went missing after leveling clear and unmistakable allegations of severe sexual misconduct by a former Vice-premier of the Chinese government, a highly placed Chinese Communist Party member, and committee chair for the preparation of the 2022 Winter Olympics. Since then, in one unconvincing episode after another, Peng has appeared in a variety of obviously stage-managed appearances to silence criticism, and withdraw her allegations against Zhang Gaoli. In the latest attempt, on 7 February, to squash attention to the issue - one which risks starting a #metoo movement in China, and one that could harm the CCP - Peng appeared in a scripted interview supervised by a member of China’s IOC committee, responding to pre-provided questions via a translator.

On 7 December 2021, London-based international human rights barrister, Michael Polak, was instructed by the Safeguard Defenders to file a formal written complaint to the International Olympic Committee’s Ethics Commission through its Ethics and Compliance Office as provided by the Rules of Procedure. 

In the complaint, which was backed by evidence, it was alleged that:

• the actions of the Chinese regime and their use of Residential Surveillance at a Designated Location, Residential Surveillance, and forced confessions are breaches of international law;
• that by their participation in these unlawful measures, Mr Bach, Ms Terho and Ms Lin Lingwei are in breach of their duty under the IOC Code of Ethics to “use due care and diligence in fulfilling their mission”, to respect “universal fundamental ethical principles” and to respect “international conventions on protecting human rights”;
• that by completely failing to call for a proper investigation to be carried out into the alleged sexual offence in media interviews, Mr Bach has further breached the provisions above as well as the duty to reject “all forms of harassment and abuse, be it physical, professional or sexual, and any physical or mental injuries”;
• Further, that both Mr Bach and Ms Lin Lingwei further failed to “act with impartiality, objectivity, independence and professionalism” as Mr Bach did not divulge his previous close relationship with ex-Vice Premier Zhang Gaoli, and as Ms Lin Lingwei was a representative of the Ninth National People's Congress, a member of the Standing Committee of the Twelfth National People's Congress, and a member of the Tenth and Eleventh National People's Political Consultative Conference and therefore anything but independent from the PRC Government; and
• Concluded that the continued actions of Mr Bach, Ms Terho and Ms Lin Lingwei are “likely to tarnish the reputation of the Olympic Movement”.

Despite there being strict Rules of Procedure setting out how such a complaint must be dealt with, on 16 December 2021, the IOC Ethics team responded as follows:

The submission to Mr Ban Ki Moon, the IOC’s Ethics Chief, made today, explains that there are clear rules of procedure in regard to the treatment of ethical complaints which have been flouted in this case. All cases of possible breach of ethical principles must, according to the very specific "Rules of Procedure Governing Cases of Possible Breach of Ethical Principles" first be 'analysed by the IOC Chief Ethics and Compliance Officer, with a view to a possible submission of the situation to the IOC Ethics Commission’. After this analysis takes place, the Ethics and Compliance Officer should have then either submitted 'the complaint to the Chair of the IOC Ethics Commission’ for an adjudication. Alternatively, if the Chief Ethics and Compliance Officer believed there had not been a breach of the IOC’s Code of Ethics, they should have ‘informed the plaintiff,‘ ie, the person who has made the complaint, who would then have had the opportunity to ask the Chair of the IOC Ethics Commission to re-examine the complaint.

In the grievance submitted to Mr Ban Ki Moon, it has been explained that as well as there being

Clear breaches of the 'Rules of Procedure Governing Cases of Possible Breach of Ethical Principles' by the IOC Ethics and Compliance Officer, Ms Pâquerette Girard-Zappelli, but also there has also been a clear breach of the principles of natural justice in that the subjected of the complaint has been allowed to determine the complaint, thus seriously jeopardising the purported independence of the ethics complaints process by making the IOC Executive a judge in its own cause.

The grievance requests that, given the seriousness of the complaint and the international interest in this matter, Mr Ban Ki Moon should either examine the Complaint himself or appoint a new Ethics and Compliance Officer to do so properly.

Michael Polak stated ‘the complaint we made is of the utmost seriousness as it concerns the involvement of those at the very top of the IOC in acts intended to shield the Chinese State from criticism for committing the international crime of enforced disappearance. The Ethics and Compliance Officer’s treatment of this serious complaint by simply referring to an interview with one of the main subjects of it, shows that the IOC’s ethics process is unfit for purpose. States who want to see the IOC as an ethical international organisation, not as a supporter of international crimes, must call for a properly independent ethical complaints process rather than the current farcical system whereby the Commission fails to even follow its own rules let alone basic rules of natural justice.’

*Michael Polak is an international barrister based in London. He practises in international, criminal, and human rights law from Church Court Chambers.  Michael is also a Director at Justice Abroad which helps people who need assistance dealing with legal proceedings overseas as well as working on human rights advocacy. He is chair of the group Lawyers for Uyghur Rights and was awarded the International Bar Association’s Outstanding Young Lawyer Award for 2021.