Paper submitted to Scottish Parliament
Submission on Draft Charities and Trustee Investment (Scotland) Bill - 24th August 2004
The Scottish Palestine Solidarity Campaign
The Scottish Palestine Solidarity Campaign (SPSC) started over three years ago in Edinburgh, Scotland in response to the second Palestinian Intifada (or struggle). Our main emphasis has been to educate the Scottish Parliament and the wider public of the reality of Palestinian life under Israeli Military occupation in the occupied territories of West Bank and the Gaza Strip. The need for a very concentrated and informative campaign arises because of distortions in the western media of the news of the Intifada and the occupation of Palestine. The SPSC holds frequent seminars and lectures by prominent academics and commentators. We run public information stalls weekly and provide the public with information on the Palestinian struggle.
Summary of Submission
We argue that the Bill as drafted fails to provide sufficient safeguards against the possibility that offensive organizations may enjoy charitable status. We propose that the Bill should include a list of activities and purposes incompatible with charitable status¸ including support for terrorism and other breaches of human rights. Organizations participating in the listed activities should be ineligible for charitable status. This ineligibility should extend to organizations associating themselves with groups that carry out offensive activities. We provide examples, real and hypothetical, to illustrate the necessity for this proposed amendment. We argue that charities registered in England and Wales should also be required to obtain registration as charities in Scotland, on the grounds that the establishment of a distinct regulatory regime in Scotland is meaningless without this requirement. We argue that the OSCR should have greater regulatory powers than in the Bill as published including powers of enforcement.
Submission
1. Protection of the public - Definition of activities incompatible with charitable status
The proposals outlined in the consultation document include extending the range of ‘charitable purposes’ to include the advancement of human rights, conflict resolution or reconciliation. We support the extension of charitable purposes to include these aims. We submit, however that organisations that infringe on the advancement of any of these charitable purposes or that fund and support activities that work against the advancement of these charitable purposes should not be eligible to be registered as charities.
Charitable status provides privately run organizations with substantial privileges¸ particularly with regard to taxation law. Effectively¸ the taxpaying public adds a subsidy to tax-deductible donations to charities. We believe that neither the current law nor the Bill as drafted provide sufficient protection to the public from the possibility of subsidising organizations of which they disapprove.
The proposed requirement that charities must demonstrate overall "public benefit" is insufficient to achieve this purpose. Some activities are so offensive to the Scottish public that organizations participating in them should automatically be barred from charitable status¸ regardless of whether their activities as a whole are considered beneficial. For example an organization that spends 99.9% of its funds on supporting disabled children¸ the remaining 0.1% being transferred to al-Qaeda could make an arguable case for overall "public benefit". We believe that the public would not support charitable status for such an organization.
The Bill should include a list of activities which are incompatible with charitable status. Any organization participating in such activities, even if they form a very small part of their overall programme, should automatically be ineligible. We propose that the list should include the following:
- terrorist activities
- breaches of international law
- breaches of human rights
- activities likely to impede the resolution of international conflicts
- activities contributing to large scale environmental damage
- activities likely to impede the implementation of United Nations resolutions
- activities promoting discrimination against disadvantaged groups on the basis of ability, gender or ethnic or religious identity
The Bill should be drafted to provide clear powers to de-register charities that carry out, or are associated with organizations which carry out¸ offensive activities. This should include charities that use the same or similar name and/or logo as an offensive organization or that enter into transactions with an offensive organization. The association of a charity with an organization whose activities are offensive and repugnant brings the public notion of charity into disrepute and damages the reputation of, and trust in, charities in Scotland.
To illustrate the necessity for the amendments that we propose¸ we will use the example of the JNF Charitable Trust, which is registered as a charity in England and Wales and is currently permitted to operate as a charity in Scotland. A petition opposing the charitable status of this organization has attracted more than 500 signatures on the Parliament’s web site at the time of writing, demonstrating a significant level of public concern. Approaches have been made with regard to this charity over a number of years by several individuals from Scotland to the Charity Commission for England and Wales. The Commission considers that it has fulfilled its regulatory function with respect to this charity, implying that the existing law is insufficient to meet the concerns of hundreds of Scots with regard to this issue.
2. Association with offensive organizations
Organizations associating themselves with bodies whose activities include any of those on the list above should be barred from enjoying charitable status. For example, a Scottish Charity that associated itself with the Ku Klux Klan, called itself "KKK" and entered into business arrangements with the Klu Klux Klan would bring the public perception of Scottish Charities into disrepute. This would be the case even if all of the activities funded by the Scottish organization were to the public benefit and charitable under Scottish law. The idea that a Scottish Charity would associate itself with an offensive organisation like the KKK would be repugnant to most, if not all, residents in Scotland. The understanding that such a charity is exempt from paying tax on the funds it managed to raise in Scotland would be insulting to most Scottish taxpayers.
The JNF Charitable Trust associates itself with the Jewish National Fund (JNF¸ or KKL in Hebrew) through the use of the initials "JNF". Its logo is based on the logo of the JNF in Israel and it enters into business arrangements with the JNF, using funds it has raised in Scotland and for which it is not required to pay tax. The Jewish National Fund is one of the principle components of Israel’s discriminatory system of land administration. The JNF owns around 14% of the land in Israel, and is prohibited by its constitution from selling or leasing this land to Arabs. Through its 50% representation on the council of the Israel Lands Administration (ILA), the JNF has a substantial influence over more than 90% of the land in Israel. The ILA does not sell land but exercises control by granting leases in a discriminatory manner, favouring Jews over Arab Israeli citizens. Much of the land administered by the ILA was originally Arab-owned and has been appropriated by the state of Israel through draconian absentee property laws, following the mass killings and expulsions of Palestinians by Jewish Israeli militias during the 1948 war.
The US State Department noted concern regarding the activities of the ILA in its annual Human Rights report¸ published in February. Recently the ILA has been involved in extensive legal challenges to a decision of the Israeli High Court in 2000. This prohibited the organization from discriminating against Israeli Arabs on the basis of their ethnic identity in deciding on leasing arrangements for state land. Despite the failure of these legal challenges, the ILA continues to pursue discriminatory policies. A recent article in the Israeli Ma’ariv newspaper attributes this ILA position to the influence of the JNF.
The ILA has pursued a policy of destroying crops belonging to Bedouin Arabs in the Negev desert by arial spraying with pesticides. Such spraying has been carried out without warning, and against the safety instructions provided by the manufacturer of the pesticide concerned. This policy has resulted in severe health problems for a number of civilians and the extensive death of livestock¸ and is considered to be part of a government policy aimed at evicting Bedouin farmers from the land.
Since 1967, the JNF has been active through its subsidiary Hemnutah Ltd. in purchasing land in the occupied Palestinian territories for Jewish settlement. Such settlement violates numerous United Nations resolutions and the provisions of the Fourth Geneva Convention relating to the protection of civilian societies under occupation. Settlement construction in the occupied territories represents a major obstacle to the peaceful resolution of the Israeli-Palestinian conflict.
3. Benefiting from prohibited activities
Organizations that benefit, or have benefited, extensively from activities on the prohibited list should also be ineligible for charitable status. Similarly, charities should not be permitted to associate themselves with organizations that benefit, or have benefited, extensively from prohibited activities. A hypothetical example would occur if an organization linked to the Sudanese government were to raise funds in Scotland for the development of land belonging to destroyed African villages as recreational parks. Such activities could well be regarded as charitable under the draft Bill as published, leading as they would to the provision of public amenities and environmental improvements. However we do not believe that the Scottish public would accept charitable status for such an organization.
The JNF Charitable Trust funds and supports the development of "British Park", a forested recreational area in central Israel. This park is built on and around the remains of Palestinian villages, including Ajjur and Zakariya. According to the historian Walid Khalidi, the Palestinians who used to occupy this land were forcibly removed in 1948 and became refugees or internally-displaced persons. The removal of the Palestinians from their land constitutes a breach of human rights under International Law. The demolition of civilian homes; the denial of the right of the civilian inhabitants to the ownership of their properties and to return to the area where their homes once stood, and the arbitrary alteration of the usage of the properties represent gross violations of United Nations resolutions relevant to the question of Palestine and constitute war crimes under international law, notably:
The Geneva Convention relative to the Protection of Civilian Persons in Time of War (Adopted on 12 August 1949 by the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, held in Geneva from 21 April to 12 August, 1949 and entered into force 21 October 1950)
The Convention (No. 169) Concerning Indigenous and Tribal Peoples in Independent Countries (Adopted on 27 June 1989 by the General Conference of the International Labour Organisation at its seventy-sixth session and entered into force 5 September 1991), specifically Article No 4.
The British Park has been planted by the JNF Charitable Trust since the mid-1950s. The JNF Charitable Trust project to develop the "British Park" has benefited from the removal of those people from their land. The Israeli Jewish National Fund, with which the JNF Charitable Trust has a close association, has benefited extensively from the illegal confiscation of property belonging to Arab refugees and internally displaced persons by the state of Israel. The JNF obtained most of the land it currently owns in Israel in the early 1950s by the purchase of "abandoned" lands from the state’s development authority.
4. Breaches of human rights
The Bill should provide that any organization whose activities contribute in any way to breaches of human rights, defined by the Universal Declaration of Human Rights, should be ineligible for charitable status.
A core principle of international refugee law is that refuges have the right of return to their original places of residence. Repatriation is the favoured solution for refuges exiled in the course of military conflict. The 1949 Geneva Convention (article 49) prohibits "individual or mass forcible transfers… regardless of motive." The Universal Declaration of Human Rights and other international legal instruments on human rights affirm the right of every individual to leave and return to his or her land. The United Nations passed resolution 194 affirming the right of each Palestinian refugee to return to his or her home (this includes the restitution of properties). This resolution has been reaffirmed 135 times. The rights of Palestinian refugees are considered inalienable in international law, which means they are not invalidated by political negotiations.
The development of British park by the JNF Charitable Trust on the lands of the villages of Ajjur and Zakariya represents one way that the people who are refugees form this area are prevented from returning to their lands. In addition, the development of the park conceals the fact that this land used to house Palestinian villages. This concealment may influence public debate, helping to keep the issue of refugee rights off the political agenda.
5. Obstruction of Conflict Resolution and Reconciliation
Organizations whose activities serve to obstruct the resolution of conflicts, or reconciliation of peoples in post-conflict situations, should be ineligible for charitable status. For example, an organisation who funded and supported activities in Bosnia which contributed to a delay in the peaceful resolution of the conflict should not be able to call itself a Scottish Charity.
The JNF Charitable Trust supports the establishment of the new Jewish settlement of Be’er Milka in the Halutza dunes area of the Negev desert. The proposals that have come closest to resolving the Israeli-Palestinian conflict (presented by the government of Ehud Barak at the Taba summit in 2001) included the transfer of the Halutza dunes region to a future Palestinian state. The establishment by Ariel Sharon’s administration of settlements in this area has been seen as a means to prevent any future agreement being achieved on similar lines and is likely to complicate negotiations towards a final status agreement.
6. International Charities
Charities registered in Scotland that operate internationally, by using or sending funds raised in the UK for projects and purposes overseas, must not contribute to breaches of international law or the prevention of the implementation of United Nations Resolutions.
7. UK Charities
The Scottish Palestine Solidarity Campaign supports the proposal that charities registered in England and Wales must also obtain registration as charities in Scotland in order to be able to operate in Scotland. If an organisation has not obtained registration as a charity in Scotland but still holds fundraising events in Scotland and receives funds from Scottish donors it should be required to declare those funds for taxation purposes. We ask that you raise this matter with the Parliament at Westminster to ensure that tax could be collected on any funds raised in Scotland by any organisation that is not registered as a Scottish charity. An inability to ensure that this is possible defeats one of the purposes of the Bill. There is little point in implementing a regulatory regime for Scotland if organisations are able to manoeuvre around it by avoiding taxation on funds raised in Scotland.
8. Monitoring and Evaluation
We are concerned that the draft Bill does not provide the Office of the Scottish Charities Regulator with enough powers to carry out the monitoring and enforcement role that the regulatory structure gives it. Not all Scottish Charities will receive funding from a statutory source. Those charities that are funded solely through donations and not from any statutory source will not be answerable for the way in which they spend their money. There is no requirement for a detailed evaluation of the projects they choose to support and fund, the organisations they contract with, or whether the projects they fund achieve their stated aims.
We propose that all Scottish Charities that are not accountable to a statutory body for the way their funding is spent be made accountable to OSCR. The Bill should place a requirement on the OSCR to investigate every substantive complaint made about a Scottish Charity that is not funded through statutory sources. Any such investigation should be significant and take into account the aims and objectives of the Scottish Charity, whether they have any political aims (whether explicitly stated by the Charity or not) and whether the projects they are funding and supporting achieve an overall benefit. The Bill should be amended to place a requirement on OSCR to make the results of all investigations publicly available (i.e. placed on its website).
9. Enforcement powers
The proposed Bill does not appear to provide OSCR with powers of enforcement other than to warn and request.
Scottish Palestine Solidarity Campaign
24th August 2004