Hamas-supporting organisation loses rights claim in Strasbourg
26 October 2023
A German group that raises funds for the terrorist organisation Hamas has lost its claim under Article 11 (right to free association) in the European Court of Human Rights. Joshua Rozenberg’s report on the decision is here. The summary below is based on the Court’s judgment.
The applicant, Internationale Humanitäre Hilfsorganisation e.V., was a non-profit association with its headquarters in Frankfurt am Main. The case concerns its proscription and the seizure of its assets which entailed its dissolution. One of the two “social societies” financially supported by the applicant association was the “Islamic Society” (Arabic اليميه الاسلامية – Al-Yamiya al-Islamiya), an organisation founded in 1979 in the city of Jabaliya in Gaza which carried out, in particular, projects in Gaza benefiting orphaned children of so-called “martyrs” – people who had died or been wounded in combat against Israel.
In 2010 the German Ministry of the Interior considered that the applicant association’s long-term and substantial financial support of “social societies” (in particular, the Islamic Society) which were part of the terrorist organisation Hamas, meant that it was indirectly contributing to the violence brought by Hamas into the relationship between the Palestinian and the Israeli people. The association’s assets were seized, and every appeal to the German courts, up to the Federal Administrative Court, failed.
In particular, it was found to be established that
“on the basis of Hamas’s original charter and its actions, that Hamas denied the right of the State of Israel to exist, called for its destruction in a proactively aggressive manner and engaged in terrorist attacks.
The political, military and social branches of Hamas were equal, intertwined parts of a single organisation; in particular, the social support for families of so-called “martyrs” served the purpose of encouraging the violent fight against Israel.”
With regard to the proportionality of the proscription, the Ministry considered that no less intrusive measures were available, as the applicant association’s very object and purpose was to collect and channel donations for organisations directly and indirectly connected with Hamas. The domestic courts agreed with the Ministry, finding that
“The Palestinian population attributed the social engagement of the “social societies” to Hamas, thus enhancing its overall acceptance and facilitating the recruitment of activists for violent action; the military branch of Hamas also profited from the applicant association’s long-term and substantial financial support of its social branch.”
Arguments before the European Court of Human Rights
In 2019, the former association lodged an application against Germany at Strasbourg, complaining that it had been denied its rights of freedom of association under article 11 of the European convention.
The Court’s decision
Interestingly, the Court rejected the German government’s argument that the application was inadmissible for non-exhaustion of local remedies. It found that the respondent State had been given ample opportunity to address the applicant association’s arguments pertaining to its complaint that the proscription had been a disproportionate measure interfering with its right to freedom of association, and that it had not done so, therefore the Strasbourg considered the application on its merits.
Recalling its previous law on Article 11, the Court reiterated that
“freedom of association laid down in Article 11 incorporates the right to form an association. The ability to establish a legal entity in order to act collectively in a field of mutual interest is one of the most important aspects of freedom of association, without which that right would be deprived of any meaning (see Gorzelik and Others v. Poland [GC], no. 44158/98, § 88, ECHR 2004‑I; see also Sidiropoulos and Others v. Greece, 10 July 1998, § 40, Reports of Judgments and Decisions 1998‑IV).”
The Court took into account the EU Security Council’s Resolution 1373’s designation of Hamas as a terrorist organisation, and the ECJ’s underwriting of the same definition; it also considered the fight against the direct and indirect financing of international terrorism as the declared objective of a number of international and supranational legal instruments, in particular, the United Nations International Convention for the Suppression of the Financing of Terrorism targeting the collection of funds for terrorism “by any means, directly or indirectly”.
The Court therefore accepted that the German Ministry had based the disputed proscription on the finding that the applicant association’s activities were directed against the concept of international understanding between peoples, referring to its support for charitable societies linked to the terrorist organisation Hamas, which in turn meant that the applicant association had indirectly contributed to the violence brought by Hamas into the relationship between the Palestinian and the Israeli people. Most importantly, the Court observed, vis a vis the application of Article 11 and its clawback provisions to the present case,
“Whereas the present case differs from previous cases in so far as it concerns the fight against international terrorism in general, independently of a tangible threat to the Contracting State, the fight against international terrorism may nonetheless serve the cause of preventing disorder, and States must be able to take measures so that their territory is not used to facilitate terrorism and the bringing of violence into conflicts abroad.”
The Court therefore concluded that, given the wide margin of appreciation accorded to member states in these circumstances, the comprehensive balancing exercise conducted by the national courts and the weighty interests at stake, the Court was satisfied that the interference with the applicant association’s freedom of association was proportionate to the legitimate aims pursued and was thus “necessary in a democratic society”.
There had accordingly been no violation of Article 11 of the Convention.
As Joshua Rosenberg states in his post,
“The judgment was approved by a chamber of seven judges last month and published on 10 October, three days after Hamas had massacred more than 1,400 people in Israel and kidnapped at least 220 others.”