This paper explores the legal structure in which NGOs operate and are funded in the European framework. NGOs have clearly defined missions based upon traditional humanitarian principles, values and objectives. The evidence demonstrates, however, that many humanitarian/human rights NGOs do not remain faithful to these principles and values. Instead of promoting universal human rights, these NGOs are primarily engaged in partisan political and ideological advocacy, specifically with respect to anti-Israel campaigning. This paper argues that the existing European principles regarding NGOs need to be reassessed and implemented, in order to ensure that their activities are consistent with these requirements.
This analysis focuses on three main concerns and developments within the world of NGOs active in Europe: (1) the definition of an NGO according to the combined criteria established by the UN Economic and Social Council (ECOSOC), the Union of International Associations (UIA), and the Council of Europe; (2) the legal sources and the fundamental principles of an NGO in its mission statement; and (3) applications and deviations as seen in the case of the EMHRN and the anti-Israel campaign.
There is no generally accepted definition of an NGO under European law. Nevertheless, there are some common features which are, among others, described in a discussion paper of the European Commission. An organization qualifies for NGO status if it has a non-profit-making aim of international utility, has an organizational structure, is independent of state involvement, self-governing, oriented toward the rule of law, and voluntary.
2. Sources of International and EU Law
2.1 Norms of International Human Rights Law and Humanitarian Law
International human rights law contains several minimum norms of protection which are defined as inalienable and universal. Such norms are described in the following texts: (1) the four documents of the Bill of Human Rights, recognized as international customary law; (2) the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), the application of which is examined by the European Court of Human Rights; and (3) the additional conventions that deal with human rights issues.
International humanitarian law provides rules about the conduct of war, and seeks to protect specific categories of persons, particularly civilians. Those norms are defined in documents such as (1) the Hague Conventions; (2) the “Geneva Conventions” which refers to four conventions and three protocols, usually considered to be part of customary international law; and (3) the Charter of the United Nations as well as subsequent treaties, case law, and customary international law.
2.2 Legal status of NGOs in the EU
Very few documents address the legal status of NGOs in the EU. The Council of Europe adopted the European Convention on the Recognition of the Legal Personality of International Non-Governmental Organization in 1986. This text recognizes the legal capacity and personality of an NGO and calls for reciprocal recognition of NGOs "in order to facilitate their activities at European level". The Convention, however, is only in force in nine States, which may reflect the lack of readiness of the member states to participate in the development of the NGO community, or a lack of interest in this issue. Two additional documents of the Council of Europe address the legal status of NGOs and the harmonization of the European legal systems in this area: (1) the Fundamental Principles on the Status of NGOs in Europe provides guidance regarding best practices in many areas; (2) and the Legal Status of NGOs and their Role in a Pluralistic Democracy consists of guidelines to promote the development and strengthening of NGOs in Europe.
2.3 The Global Accountability Charter
On June 6, 2006, eleven prominent NGOs adopted the first Global Accountability Charter for the non-profit sector. This Charter aims to establish international standards of accountability and a code of conduct for NGOs. It should be noted that, although it does not clash with international and EU legal norms, this Charter opens the door for political bias through the emphasis on advocacy. The signatories pursue their objectives through "research, advocacy and programmes", declaring"We will have clear processes for adopting public policy positions, (including for partners where appropriate,) explicit ethical policies that guide our choices of advocacy strategy, and ways of identifying and managing potential conflicts of interest among various stakeholders.” Furthermore, the Charter claims "to be both politically and financially independent. Our governance, programmes and policies will be non-partisan, independent of specific governments, political parties and the business sector.”
3. In practice: European NGOs and the Political Campaign Against Israel
a. EMHRN – mission statement and deviation
As described above, NGOs have carefully defined missions and those that are given funding or have significant official access are expected to act within the limits of their proclaimed official statements. The integrity and conduct of a human rights organization strongly depends on the adherence to these principles and their stated objectives.
We note numerous examples of failure to respect this process in the case of criticism of the State of Israel. As an example, this paper analyzes recent declarations of the Executive Committee of the Euro-Mediterranean Human Rights Network (EMHRN). The EMHRN is a "network of 82 human rights organizations, individuals and institutions based in 30 countries of the Euro-Mediterranean region." As such, the EMHRN shares common features with many “humanitarian” NGOs with apolitical mission statements, particularly concerning the respect for the rule of law in accordance with international standards. On its website, the mission statement of the EMHRN is "to develop and strengthen partnerships between NGOs in the EuroMed region and facilitate development of human rights mechanisms, disseminate the values of human rights and generating capacity in this regard."
The EMHRN is an umbrella organization for NGOs in the Euro-Mediterranean region claiming to “support and publicize the universal principles of human rights as expressed in the Barcelona Declaration.” The 1995 Barcelona Declaration calls for "a strengthening of democracy and respect for human rights (…)" and aims to establish "a comprehensive partnership among the participants the Euro-Mediterranean partnership through strengthened political dialogue on a regular basis, the development of economic and financial cooperation and greater emphasis on the social, cultural and human dimension, these being the three aspects of the Euro-Mediterranean partnership". The EMHRN seeks to achieve this goal through its partnership with groups working in the region which “monitor the Partner States’ compliance with the human rights principles in the Barcelona Declaration.”
The EMHRN’s Palestinian partners include politicized NGOs such as the Palestinian Centre for Human Rights, Al Mezan and Al Haq which repeatedly condemn Israeli army (IDF) operations while failing to criticize (or sometimes even mention) Palestinian terrorism which necessitate Israel’s security measures.
In its activities, the EMHRN provides a visible platform for political activities, including frequent one-sided condemnations of Israeli responses to terrorism, and is active in publicizing calls for political action to be taken against Israel. The EMHRN has been very active in commenting on developments in the Arab-Israeli conflict zone, and in advocating EU policies related to this conflict. In many cases, the evidence indicates that the EMHRN activities have been very partisan, using legalistic rhetoric and claims that reflect a pro-Palestinian and anti-Israel position, that goes far beyond the mandate of this EU-funded network of NGOs, as specified above.
The most recent example of this partisanship and violation of EU guidelines can be seen in the EMHRN activities related to the fighting between Hezbollah and Israel following the cross-border attack of July 12, in which 8 Israelis were killed and two were kidnapped.
For example, the EMHRN issued a press release on July 24, 2006, stating that "On July 12, 2006 Hizbollah forces engaged Israeli forces capturing two Israeli soldiers(…)While Israeli forces have attacked Hizbollah they have also deliberately targeted Lebanese infrastructure objects (…) These attacks constitute collective punishment and are a serious violation of international law (…) Hizbollah also launched hundreds of missiles in numerous deliberate attacks against Israeli civilians (…) These attacks constitute a serious violation of international humanitarian law." The EMHRN further calls: "For an end to the Israeli occupation (…) upon all parties to respect the sovereignty of the State of Lebanon."
On August 7, 2006, the EMHRN issued a major declaration on this fighting, alleging that:
"the Israeli government is submitting Lebanon, from the north to the south, to an aggression aimed at systematically destroying its infrastructure. The immense losses inflicted on the civilian population are not collateral effects of the conflict with Hezbollah, but show a deliberate wish to collectively punish a whole people, including arbitrary killing. This has led to mass internal displacement, prevented humanitarian aid, and jeopardized the survival of thousands. The indiscriminate targeting and the scale and ferocity of the violence, deliberately planned by the Israeli government, constitute an exceptional grave violation of the Geneva Conventions.”
Then, the EMHRN repeats:
"its condemnation of all attacks perpetrated against the civilian populations in Lebanon, Gaza and Israel which constitute war crimes."
Finally, the EMHRN concludes and calls for
"the release of all prisoners held arbitrarily; an international investigation under UN auspices of the human rights abuses that have taken and are taking place in Lebanon and Gaza (…) all efforts to be employed in urgently obtaining a cease fire and stopping the Israeli occupation of Lebanon."
These statements reflect a clear example of how a human rights organization has gone far beyond its mission statement and the boundaries of universal human rights by promoting biased political attacks. The EMHRN selectively presents some points, but omits crucial facts of context. The document dismisses the kidnapping of Israeli soldiers, and does not recognize the importance of Hezbollah’s extensive use of human shields in the conflict ("the immense losses inflicted on the civilian population are not collateral effects of the conflict with Hezbollah").
The EMHRN uses legal terminology in many statements, including allegations that the actions of Israel constitute an “exceptional grave violation of the Geneva Conventions.” The EMHRN does not cite specific legal norms, nor does it examine (1) the impact of Hezbollah’s missile attacks on Israel’s civilian population; (2) the legality of Hezbollah’s actions; (3) Israel’s right of self-defense; or (4) Hezbollah’s status as a group of terror. On all four counts, Hezbollah should be described as in violation of specific and clear aspects of international law, but the authors of the EMHRN statement have chosen to ignore these aspects.
Furthermore, the language used by the EMRHN reflects its political and ideological bias, particularly in the use of accusatory terminology to describe Israel’s actions ("systematically," "deliberately," "ferocity of the violence," "wish to collectively punish a group of people"…). This choice of vocabulary is entirely subjective and constitutes a tendentious (or gratuitous) attack against Israel, going far outside the EMHRN’s mandate as an EU-funded human rights network. Thus, the EMHRN is clearly in violation of the requirement of universality principles of human rights, and demonstrates double standards in its use of legal rhetoric.
Resorting to international norms of humanitarian law and human rights should be done only with the utmost transparency and good faith. In this light, this accusatory report against Israel does not measure up to these standards.
b. Returning to EMHRN’s mandate and the universality of human rights
As noted above, the EMHRN defines itself as "(…) as a regional forum for human rights NGOs and a pool of expertise on promotion and protection of human rights in the region." According to those terms, the EMRHN should not be involved in the political debate, but should rather be focused on human rights issues, as defined in its mission statement. Its activities should be straightforward, based on facts and independent of legal analysis.
Based on the Barcelona declaration, the EMHRN should "conduct a strengthened political dialogue at regular intervals, based on observance of essential principles of international law, and reaffirm a number of common objectives in matters of internal and external stability (…) in particular develop the rule of law and democracy in their political systems, while recognizing in this framework the right of each of them to choose and freely develop its own political, socio-cultural, economic and judicial system ; respect human rights and fundamental freedoms (…)."
As set out under section 2 of the Universal Declaration of Human Rights, "everyone is entitled to all rights without distinction of any kind such as his race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty." Furthermore, article 11 of the Treaty on European Union (TEU) provides that the EU’s Common Foreign and Security Policy aims to "develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms."
In contrast with those norms, it is clear that the EMHRN by systematically condemning Israeli acts of self-defense, acts as if questions of human rights related to Israel civilians have no place in its mission of "promoting human rights". The EMHRN is a network of many NGOs, where the full complexity of a conflict should be taken into account, certainly above the political debate. Yet this breach of its aforementioned obligations under international law effectively change EMHRN’s nature from a "human rights organization" into a one-sided political "advocacy institution".
Human rights organizations should respect the existing standards of conduct in order to bring their mission in conformity with the rules of international law. For example, they should present the facts without a-priori discrimination against one side of the conflict, and insist on promoting the universal principles of humanitarian law as they apply to any person. However, EMHRN’s claims (documented above) not only ignore the violations of human rights in Israel, but clearly demonstrate a considerable ignorance or misunderstanding of the legal and institutional situation of human rights organizations in Europe. In expressing purely political opinions against Israel, the EMRHN have transgressed traditional legal principles governing human rights institutions. Indeed, in their set out obligations, the European legal norms have recognized the "independence" of such organizations in the accomplishment of their mission. Naturally, the fair presentation of facts in a conflict is a pre-condition to the independence process.
The EMHRN should take its responsibility as a human rights organization and accomplish its mission according to (1) the right of all people to equality as set out in the Universal Declaration of Human Rights, (2) the Israeli people’s right to be free of terrorist attacks and the inherent right to self-defense described in Article 51 of the Charter of the United Nations in the context of the struggle against terrorism, (3) the international humanitarian law and human rights instruments, all of which are applicable to the Israeli population.
Against that background, the biased declarations of an official and highly influential EU organization that highlights the values embodied in human rights norms, such as the EMHRN, are counterproductive, and serve to aggravate the conflict.
The EMHRN’s condemnations as noted above contain three fundamental weaknesses: (1) the assertion of inappropriate legal allegations; (2) the inability to verify the claims and to show that they accurately reflect the situation in the conflict; and (3) the use of such terms as “exceptional grave violation of the Geneva Convention” in an arbitrary manner.
Based on this analysis, NGO Monitor calls for a transparent, credible, and participatory process of reviewing and applying the traditional principles governing humanitarian organizations. This process may include: (1) affirmation that the legal principles and European instruments regarding human rights are universal, and not dependent on political or ideological preferences, and (2) promoting recognition of the constructive role that human rights organizations can play in conjunction with national institutions to promote these universal principles.
4. Article 1 of the above-mentioned Convention provides that an NGO must: (1) have an non-profit aim of international public interest; (2) have been established by an instrument governed by the internal law of a Party; (3) carry on substantive activities in at least two Parties; and (4) have its statutory office in the territory of a Party and central management and control in that State or in another Party.
5. Commission discussion paper, “The Commission and Non-Governmental Organizations building a stronger partnership”, presented by President Prodi and Vice-President Kinnock on January 18, 2000, p. 3f. See the document on http://www.ec.europa.eu . The text is also available at http://www.europeanhouse.hu/e/integration/discussion_paper.shtml, Official Journal, serie C, n. 268, 19.9.2000.
7. NGOs must have a minimum organizational structure, including an executive board, officers, and regular meetings and activities. The mission, objectives, governance structure, membership rights and obligations, if any, and rules of procedure should be clearly explained.
11. (1) The Universal Declaration of Human Rights dated 1948, (2 & 3) the International Covenant on Civil and Political Rights dated 1966 and its Protocol and (4) the International Covenant on Economic, Social and Cultural Rights dated 1966.
13. See the website: http://www.echr.coe.int/echr/ Established in accordance with the European Convention on Human Rights, it is the last judicial instance, ensuring the implementation of responsibilities of the Council of Europe members as regards the European Convention on Human Rights.
14. For example: the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Rights of the Child; the Convention on the Elimination of All Forms of Racial Discrimination; the Convention against Torture, http://www.hrweb.org/legal/undocs.html
15. The Conventions are dated Geneva 12, 1949: (1) For the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (2) For the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces (3) Relative to the Treatment of Prisoners of War; (4) Relative to the Protection of Civilian Persons in Time of War.
16. (1) First additional Protocol relating to the Protection of Victims of International Armed Conflicts, 8 June 1977, (2) Second Protocol relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, (3) Third Protocol relating to the Adoption of an Additional Distinctive Emblem, December 8, 2005.
18. Dated April 24, 1986, CETS 124, See the text on the website of the Council of Europe: http://www.coe.int/t/e/ngo/public/Convention%5F124/. (Link has expired)
21. Text dated May 2003. See the text on the website of the Council of Europe: http://www.coe.int/T/E/NGO/
22. It provides for example (1) the independence of control of the executive; (2) the separation from groups eligible for taxes or other benefits; and (3) that NGOs with legal personality should have the same capacities as are generally enjoyed by other legal persons and be subject to the same administrative, civil and criminal law obligations and sanctions generally applicable to them.
24. Action Aid International, Amnesty International, CIVICUS, World Alliance for Citizen Participation, Consumers International, Greenpeace International, Oxfam, International Save the Children Alliance, Survival International, International Federation Terre des Hommes, Transparency International, World YWCA.
26. For further information and analysis on EMHRN, see http://www.ngo-monitor.org/archives/infofile.htm#euro
29. "Stating violations against civilians," see http://www.euromedrights.net/pages/275/news/focus/9445
31. See their own definition on their website: http://www.emhrn.net/27