The proposed Transparency Law is creating unwelcome transparency for Minister Ayelet Shaked and the Israeli government that approved it. The so-called transparency, which the proposers sought, was to “expose” NGOs that receive a majority of their support from “foreign political entities” by requiring them to detail their foreign “political” funding every time they put out a report and to wear a tag when they speak with a public official. Failure to do so would result in a NIS 29,000 fine.
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The unwelcome transparency is the condemnation by international media and the U.S. administration of the undemocratic nature of Israel’s government initiatives. The proposed law was condemned by the Washington Post as “the kind of tactic that Russia and China have employed to squelch dissent, and not in keeping with Israel’s core values as a democratic state”.
Minister Shaked, in response, asserted that the requirements her bill stipulates are "much less stringent than those imposed by the United States upon similar types of activity." However, her comparison was rejected out of hand by U.S. State Department spokesman John Kirby. U.S. Ambassador to Israel Dan Shapiro also made an unusually high-profile rejection of the comparison noting U.S. law does not “create the chilling effect on NGO activities that we are concerned about in reviewing the draft Israeli NGO law.”
Where does the truth lie?
The U.S. Foreign Agents Registration Act (FARA) requires any person or organization that is an “agent of a foreign principal” to register with the Justice Department, disclose the foreign principal and under certain circumstances to make periodic public disclosure of their relationship with the foreign principal. With a little knowledge, it becomes clear that the U.S. legislation does not in practice impact NGOs at all. FARA’s registration requirement is not triggered by mere receipt of foreign funds, rather it is triggered by an organization being controlled and directed by a foreign entity. According to the U.S. Department of Justice, “not a single one of these [civil society organization (“CSOs”)] has been required to register under FARA, despite receiving millions of dollars in foreign funding.”
Unlike the Shaked version, FARA is actually directed against those recipients of foreign funding who, as agents of a foreign principal, seek economic or electoral gains. The foreign principals can include governments, political parties, a person or organization outside the United States, and any entity having its principal place of business in a foreign country. In the opinion posted by the Concord Center for Integration of international law in Israel, it was emphasized that if the aim of the proposed legislation is truly transparency, it must cover funding by business or financial supporters of all public and political activities and not only foreign government funding which is, in effect, exclusively, for NGO human rights activities.
No: the Israeli proposal is not a pale imitation of any U.S. law. Rather it fits well into the developing restraints imposed on NGO activities by a series of non-democratic or non-OECD countries, whom Minister Shaked did not cite. Middle East and North African countries have been introducing requirements for prior approval of foreign contributions. Russia and the Ukraine have opted for stigmatization of international funding for NGOs by labelling them foreign agents and in Russia donations will not be tax exempt unless the NGO is on a list approved by the government. Other countries impose burdensome registration or reporting requirements. There are no new ideas in the plethora of restrictive measures which the current Israeli government has considered or is considering. But they do not come from North America or Western Europe which is where the government claims Israel should be counted as a fully democratic modern state.
As we detailed in our opinion, international human right norms protect cross-border funding for NGOs. The United Nations Declaration on Human Rights Defenders clearly states that access to resources is a self-standing right, based on freedom of association and freedom of expression: “Everyone has the right, individually and in association with others, to solicit, receive and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means.”. According to the Office of the United Nations High Commissioner for Human Rights, this right specifically encompasses the receipt of funds from abroad and states must ensure that they do not discriminatorily impose restrictions on potential sources of funding.
Shaked’s proposed law discriminates against NGOs as compared with other public or political protagonists who seek economic or electoral gain and who have free access to foreign funding. And it discriminates against foreign government funding compared with funding by foreign businesses or financial interests. This discrimination is transparent. It reveals that the real purpose of the government is not transparency, which exists already under the existing registration and reporting requirements for NGOs, but is an intention to restrict and reduce human rights activism in Israel.
Frances Raday is the president of the Concord Research Center for Integration of International Law in Israel, The Haim Striks School of Law, College of Management; Professor of Law, Emerita, Hebrew University; Honorary Professor, University College, London; and Special Rapporteur, UN Human Rights Council, Expert Group on Discrimination against Women.