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December 1, 2011 10:45 am

Dissecting Israel’s NGO Bills – What to Keep?

avatar by Paul Leslie

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The Knesset. Photo: Chris Yunker.

What to do about two more controversial measures targeted against “lawfare” supporting or enabling Israelis.

Israel is not the only liberal democracy which sees authoritarian measures being promoted within its legislature, especially at time of crisis. In fact, one of the many admirable things about this country is that, despite having been in a state of war since it came into existence and, at present, once more becoming more and more embattled, authoritarian temptations have for the most part not been translated into potentially or actually dangerously illiberal laws.

The current wave of “controversial” laws is influenced by a number of factors, including the internal political dynamics of the ruling coalition.  It cannot be denied that there is a significant degree of popular support for the two bills – the first of which aims to limit the amount of money which can be received from abroad by Israeli associations, the second of which imposes a tax upon groups in receipt of such donations. This support is influenced not only by the still considerable threat of arrest and prosecution for non-existent war crimes in more than a few countries which faces a high proportion of Israelis if they think about visiting them – despite the fact that they have done no more than carry out their military duty to protect their fellow citizens – but also by the disgraceful activities of home-grown NGOS.

Whether anti-Zionist fronts which pretend to be “human rights” organizations or civil rights organizations which formerly deserved to be respected (like ACRI, under Professor Ruth Gavison), they show contempt for the principle of the presumption of innocence and omit to make sure that there is solid evidence before making allegations of serious misconduct or criminal behavior against fellow Israelis. A great number of these NGOs get substantial subsidies from foreign governments, but still describe themselves as non-governmental and independent (see, for example).

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In some cases further red lines are crossed with some Israeli NGO activists (Yesh Din, Gush Shalom, etc.) aiding and abetting “lawfare” against their fellow Israelis or lobbying the representatives of foreign governments to get them to apply heavy potentially harmful pressure upon their government. (See for example, NGO-Monitor researcher and activist Anne Herzberg’s article on this subject. See also Noah Pollak’s blog of the 9th June 2011, referring to two Wikileaks cables from 2010 – “Wikileaks Bombshell: New Israel Fund Official Endorses End of Jewish State”.  In the cables B’tselem C.E.O. Jessica Montell is shown to be lobbying for U.S. pressure to be applied to prevent future large scale operations in Gaza. In fact many other countries, confronted with a situation where more than a million of their citizens are within missile range and a significant proportion of them are regularly bombarded, would act with less restraint than Israel did in Operation Cast Lead.)

The bills and laws which have generated all the negative reactions, both outside and within Israel and not a little misinformation have in general not been incompatible with the values of a liberal democracy. The pledge of allegiance which is an integral part of the new law applied to would-be citizens was made completely non-discriminatory, the Nakba law does no more than permit the authorities to ensure that no public money goes to fund the activities of individuals or groups who delegitimize Israel by promoting false versions of history about the War of Independence and its creation and the law championed by NGO-Monitor cannot seriously be opposed by supporters of public accountability and transparency.

By contrast, there are grounds for criticizing the anti-boycott law. Article 2 of Israel’s anti-boycott law does in theory represent a slight restriction of freedom of  speech and the concept of “cultural harm” included in the definition of boycotts set out in Article 1 is vague and potentially wide-ranging, as can be seen here:

1.  In this law, “boycott of the State of Israel” – deliberate abstention from economic, cultural or academic ties with a person or with another body, only due to their affinity to the State of Israel, its institutions or an area that is under its control, in such a way that may harm him economically, culturally or academically.

2.  (a) He who knowingly publicizes a public call for boycotting the State of Israel, and according to the content of the call and the circumstances in which it has been publicized there is a reasonable possibility that the call will lead to the imposition of a boycott, and the he who published the call was aware of this possibility, does a civil wrong and civil tort law [new version] will be applied to him.

(b) With regard to clause 62 [A] of the civil tort law [new version], he who causes a binding legal agreement to be breached by calling for a boycott against the State of Israel will not be viewed as someone who operated with sufficient justification.

Even in this case, however, the standard imposed for a successful civil action is in practice far more exacting than the British “balance of probabilities” test.  It is necessary to demonstrate that the person or persons sued “know” that their activities – which have to be likely to bring about boycotts – will do so.  (Read all of NGO-Monitor’s translation).

The law which provides for the cancellation of the citizenship of individuals guilty of certain serious crimes goes further than its French equivalent, which does not apply to people born in France and also provides for a limit of ten years (see 31st March 2011 analysis by David Ruzié, one of the two “resident” international law experts who write for desinfos.com).

The legislative process for both the new bills intended to further regulate Israeli NGOs has been “frozen” for further consideration.  In my opinion, the bill restricting the amount of money which can received from abroad by “political” bodies should be jettisoned, as it is unjustifiable according to the principles of true liberal democracies and a gift to those who would like to compare Israel to countries like Putin’s Russia. The other bill should be amended so that it imposes upon all organizations claiming charitable status or fiscal advantages the obligation to be accurate in any material they publish in accordance with the relevant guideline of the British Charity Commission – which could be usefully translated into Hebrew and made one of its clauses. (See “Speaking out: Guidance on Campaigning and Political Activity by Charities (CC9) (Version – March 2008)” The ASA administers the British Code of Advertising, Sales Promotion and Direct Marketing (The CAP Code) to ensure that advertisements are legal, decent, honest and truthful. Since 1993 this Code has applied to charities and pressure groups. As a matter of good practice, charities should take all reasonable steps to comply with the ASA Code.)

Israel should either have its equivalent of the U.S. Foreign Agents Registration Act, or the relevant clauses should be incorporated into the justifiable new bill regulating Israeli NGOs. Those which receive foreign funding above a certain level should be obliged to make an official declaration to this effect. Any NGOs directly or indirectly involved in promoting BDS activities and falling into the category of “foreign agents” should be taxed at 45% (why not 50 %? – this part of the bill should be kept). The tax imposed, however, should be a hypothecated one, going directly to fund health and welfare services – including, for example, trauma facilities like the one in Sderot, frequently threatened with closure in recent years.

If, subsequently, the governments of “friendly” states which at the moment are allocating substantial funds to individuals and organizations operating in Israel who reject this state’s legitimacy, decide not do this any more, because it will mean that a proportion of these funds will help ordinary decent Israelis, then at least these states’ taxpayers will benefit!

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