EU Political Conditional Funding: Illegality and Implications for Palestinian Civil Society
by BADIL Research Unit
Introduction
In late December 2019, the Palestinian National Campaign to Reject Conditional Funding was launched in response to the increasing political conditions imposed on Palestinian civil society organizations (CSOs) by the international donor community, namely the European Union (EU) and EU member states. Specifically, the campaign materialized when Article 1.5 bis of Annex II of the general conditions related to EU-financed grant contracts was included in contracts with Palestinian CSOs. The article states that:
“grant beneficiaries and contractors must ensure that there is no detection of subcontractors, natural persons, including participants to workshops and/or training and recipients of financial support to third parties, in the list of EU restrictive measures.”
Although neutrally worded, Article 1.5 bis has earmarks of an anti-terrorism clause and carries far-reaching implications for Palestinian signatories. It imposes an obligation on any organization receiving EU funds to endorse the European counter-terrorism framework and take measures accordingly, including screening and vetting their own counterparts, to ensure that none of the funds, whether directly or indirectly, reaches entities or individuals that the EU has deemed ‘terrorist.’
It is essential for Article 1.5 bis to be understood within the underlying context in which it operates, that is: the shrinking space that Palestinian civil society faces in the midst of a fundamentally false Israeli conflation of legitimate resistance with terrorism and criticism of the Israeli colonial-apartheid regime with anti-Semitism. The 2019 inclusion of the article is, in fact, correlated with the increasing pressure that Israel has exerted over the EU in the past several years to prevent the funding of Palestinian CSOs, based on false allegations that the EU is funding Palestinian NGOs that are tied with so-called terrorist entities. More broadly, the clause reflects the counter-terrorism considerations of powerful western states, including those of Israel, and their respective definitions of terrorism. The impending result is the explicit criminalization of the legitimate right of the Palestinian people to resist oppression by any legitimate means.
Accordingly, the following expands on how Article 1.5 bis specifically, and political conditional funding generally, are unlawful because both neglect the Palestinian people’s right to legitimate resistance and violate the principles of humanitarian action. Also emphasized are the impending effects of counter-terrorism clauses, which includes the criminalization of the Palestinian people’s struggle against foreign domination, contributing to the de-politicization and alienation of Palestinian civil society.
Article 1.5 bis’ in Violation of International Law and Humanitarian Work Principles
In shaping counter-terrorism policies, states and/or entities must ensure that these measures do not contradict their obligations derived from international law, including human rights, humanitarian, and refugee law. Contrarily, political conditional funding in the form of Article 1.5 bis is grounded in the European context of counter-terrorism – that is, a general peace paradigm that reflects the state of current international relations in Europe – rather than the context of national liberation in Palestine, and thus contravenes international law. Importantly, the proper framework applicable to the Palestinian people’s struggle for liberation is their right to legitimate resistance against Israeli policies and practices of apartheid and colonization. Under international law, the use of all means of struggle in the context of achieving a people’s right to self-determination is regulated by rules that differ from the rules governing interstate relations (i.e., good faith efforts, mediation, negotiation, litigation, and arbitration) as would be applicable in the EU. For a people fighting a foreign occupation, colonialism, and alien domination, the internationally well-established framework governing their right to self-determination is indivisible from the right to struggle by all means, as recognized by the UN General Assembly Resolution 2105 (XX). As such, while the EU counter-terrorism framework does not single out Palestine per se, imposing the counterterrorism framework on a people struggling for their national liberation is, in and of itself, unlawful.
Additionally, Article 1.5 bis requires Palestinian grant recipients to discriminate against their stakeholders and beneficiaries based on their political affiliation. The conditions attached to EU funding thus interfere with the Palestinian people’s right to freely determine their political course of action and indirectly undermine the Palestinian people’s participation rights from which is derived the right to form political parties, including the right to take part in the conduct of public affairs, as well as the right to freedom of association and assembly.
Furthermore, Article 1.5 bis excludes any natural person or entity that the EU would consider as involved in terrorist acts to benefit from their grant. Such discrimination in the allocation of funding contravenes the most basic tenets of humanitarian action as directly endorsed by the EU in the European Consensus on Humanitarian Aid, founded on the principles of neutrality, humanity, independence, and impartiality. Political conditional funding in the form of Article 1.5 bis is not neutral but obtrusive, as it has the potential to exclude any member of Palestinian civil society and cripple the Palestinian people’s tools for resistance.
By pushing forward the fight against ‘terrorism’ and promoting the European approach to the question of Palestine and its ‘peaceful’ resolution, political conditional funding conceals ultimately political objectives. This violates the principle of independence that necessitates the separation of humanitarian objectives from any other objectives. It also contravenes the principle of impartiality as it entails that EU funding is not supplied to beneficiaries on the grounds of need, but potentially on the basis of political activism that is falsely conflated with terrorism.
Accordingly, by imposing a counter-terrorism clause in its grant contract, the EU inadmissibly interferes with the Palestinian people’s right to self-determination, in a manner that contradicts not only its own commitment to humanitarian principles, but also its commitment to the Palestinian people’s pluralistic civil society, and the pursuance of their right to freedom, independence, and self-determination. Contrary to these commitments, Article 1.5 bis prevents the funding of Palestinian CSOs whose work is decisive in supporting Palestinian communities threatened by Israeli policies of forcible transfer and displacement, colonization, annexation, and apartheid.
Effects on Palestinian CSOs: Criminalization of Legitimate Resistance, De-Politicization, and Alienation
In practical terms and when considering the effects of Article 1.5 bis, it is clear that the EU requires Palestinian grant recipients, as EU contracting partners, to acknowledge, endorse, and comply with the EU restrictive measures, including the sanctions list. To date, the Palestinian entities that are on the list are: Hamas, Islamic Jihad, Al-Aqsa Brigade-Fatah, the Popular Front for the Liberation of Palestine (PFLP), and the Popular Front-General Command, and there are no Palestinian individuals on the list (yet). Their addition to the sanctions list, and categorization as terrorist, is based on the EU’s overly broad definition of terrorist acts which has the effect, intentionally or not, to equate legitimate resistance with terrorism. In fact, the EU definition of terrorism and list of terrorist acts are vague and include a wide range of acts not limited to armed struggle.
The EU definition’s failure to differentiate between terrorist acts and the legitimate struggle of a people to achieve liberation from foreign domination counteracts the right of peoples to resist colonization, apartheid, and oppression – especially bearing in mind the lack of an internationally accepted definition of terrorism. Instead of taking such distinctions into consideration, the EU imposes a definition on the Palestinian people that claims that they are committing terrorist acts, combined with attached liabilities that in no way adhere to their legal and political context. As a result, the terrorism label criminalizes, delegitimizes, and defames forms of legitimate armed resistance, including but not limited to colonized people's right to armed struggle, that are nonetheless legal as per the UN General Assembly resolutions, and recognized as owed to the Palestinian people in the particular context of their resistance for liberation from colonial domination.
Article 1.5 bis forces Palestinian civil society to not only surrender the Palestinian legitimate right to resistance, but to also concede to the EU’s categorization of the above Palestinian political parties as terrorist. In effect, Palestinian CSOs are faced with the dilemma of how to work with Palestinian individuals and/or groups that are affiliated with or sympathetic to the listed political parties. This limits interaction between Palestinian civil society and Palestinian political parties, and hinders the ability of Palestinian CSOs to engage and influence Palestinian decision makers, which is an essential aspect of liberation. Consequently, the margin of action of Palestinian civil society would be shrinking to the point of de-politicization. Palestinian CSOs are additionally dishonored at a national level, which undermines their integrity and credibility amongst the Palestinian community and breaks up solid and essential relationships between partners, which then fosters the fragmentation of Palestinian civil society and entrenches the isolation of Palestinian CSOs.
Suspected After-Math, Confirmed Outcome
In BADIL’s position paper highlighting the illegality and political implications of EU conditional funding, it was warned that “[g]iven that Article 1.5 bis reflects the current EU counter-terrorism policies, largely influenced by the US and Israel, there is solid evidence that support the possible escalation of measures targeting Palestinian civil society and labelling their work under the framework of terrorism to discredit them.” This has undoubtedly manifested, as seen by Israel’s designation of six Palestinian NGOs as terrorist entities by both the Israeli Minister of Defense and the military in October 2021. Although the decision is fallacious and based on unsubstantiated claims, several funders have delayed their contributions to the Palestinian CSOs as they ‘investigate the claims,’ while the EU formally suspended its funding to two of these organizations.
The implicit acquiescence of the EU, evidenced in the inclusion of the counter-terrorism clause discussed above in granting contracts, has not only paved the way to the designation of the six, but has also buttressed Israel’s strategy to criminalize and eventually eliminate Palestinian civil society. Indeed, the general imposition of political conditional funding based on Israeli-led claims contributes to the creation of a coercive and shrinking environment for Palestinian civil society, whose scope of action is gradually restricted to the point of failing to adequately pursue its activities.
The EU and EU member states, therefore, must rescind all counter-terrorism clauses and conditions in their grant contracts with Palestinian CSOs and position themselves to show support for Palestinian civil society in a meaningful way that advances Palestinian national liberation. In the meantime, Palestinian CSOs must uphold a unified position to reject all political conditional funding, even if it means conjoining all their financial and human resources to uphold their mission for a free Palestine. After all, if all the CSOs are fighting for the same cause – Palestinian liberation – then perhaps it should not be too audacious to act upon a belief that furthering liberation is more important than individual organizational survival. Having a dominated and oppressed civil society subjugated to unjust standards will not serve the struggle for freedom and respect of human rights.