January 19, 2024
by Tommaso Virgili
In the case of Internationale Humanitäre Hilfsorganisation e. V. v. Germany, the European Court of Human Rights (ECtHR) held that the decision by the German authorities to dissolve and seize the assets of a charity due to its indirect support to the Palestinian terrorist organisation Hamas did not violate Article 11 of the Convention on freedom of assembly and association. In this blog post, I will analyse this judgment in light of the existing case law. Considering the internal, European Union (EU) and international legislation against terrorism, the legal status of Hamas within the EU and the evidence at its disposal, it could hardly reach a different conclusion.
The case concerns the decision of German authorities to dissolve and seize the assets of the charitable society Internationale Humanitäre Hilfsorganisation e. V (IHH) due to its donations to Hamas – an entity blacklisted in the EU as a terrorist organisation.
The applicant was a non-profit association based in Frankfurt am Main. The members of its board of trustees were simultaneously involved in Millî Görüş e.V., which is the largest Islamic association in Germany and the local branch of a Turkish Islamist organisation tied to the Muslim Brotherhood.
The applicant association, until 2010, collected donations for purportedly humanitarian purposes for Palestinians in Gaza and the West Bank. One of the recipients was the ‘Islamic Society’ (IS), founded in 1979 in Jabaliya, Gaza. In 2010, its chairman became the mayor of Jabaliya, elected on the Hamas ticket. In the same year, IHH ceased providing financial support for the Islamic Society and began supporting the Salam Society for Relief and Development, also based in Gaza. De facto, Salam Society was a shadow organisation of IS, in that it was established by one of its board members, employed many of the same individuals and supported the same projects.
On 23 June 2010, the German Federal Ministry of the Interior declared the applicant association to be acting against international understanding and proscribed it, leading to its dissolution. The ministry based its decision on the financial support IHH provided to entities linked to Hamas – an organisation that denies Israel’s right to exist and engages in terrorist attacks. The ministry further considered that IHH could not be unaware of these circumstances, and that its board members identified therefore with Hamas and its goals.
The association lodged an appeal against the proscription order with the Federal Administrative Court, alleging a violation of its freedom of association. Initially, the court attempted a conciliatory procedure, suggesting the association could continue its activities outside Palestinian areas for about three years if it demonstrated it had stopped supporting Palestinian groups. However, the Ministry rejected the proposal and the matter proceeded to a judgement. The court shared the ministry’s arguments, corroborated by one of its own previous verdicts in which it had identified the Islamic Society as part of Hamas’s structure.
The case subsequently came before the Federal Constitutional Court, which also confirmed the previous decisions on multiple grounds. First, it considered the proscription justified under Article 9 (2) of the German Basic Law, which reads as follows:
Second, it assessed the proportionality of the measure and considered proscription appropriate in the case of an association that actively and intentionally supports terrorism.
The Court begins by recalling both the internal, international and EU legislation and case law. As concerns the domestic legislation, besides the aforementioned Article 9 (2) of the Basic Law, Section 3 of the German Law on Associations allows authorities to proscribe entities whose aims and activities ‘contravene the criminal law or are directed against the constitutional order or the concept of international understanding’. As for the international and EU legislation, both forbid direct and *indirect* (emphasis in the text) financing of terrorism. With specific regard to Hamas, the Court recalls that it is listed as a terrorist organisation under EU legislation, sanctioned by a verdict of the European Court of Justice (CJEU)’s Grand Chamber.
Then the ECtHR moves to its usual assessment, namely to verifying whether the infringement of freedom of association was prescribed by law, pursued a legitimate aim, and was necessary and proportionate.
As to the first aspect, the Court determines that, despite the general wording of Article 9 (2) of the Basic Law, its application to the present case could have been foreseen, given that the Federal Administrative Court had previously dissolved another association because it funded the Islamic Society.
Concerning the legitimate aim, the Court subsumes the fight against terrorism under Article 17 ECHR, which prohibits the use of the Convention to destroy the rights guaranteed by it, and Article 11 (2) – specifically, as it safeguards public safety, prevention of disorder and protection of the rights of others, all of which are legitimate grounds for restriction on the freedom of association. Although the judges acknowledge that, in the present case, no threat was posed to Germany specifically, they add that the protection of order and the right of others are not confined to a specific jurisdiction; it follows that the fight against terrorism constituted a legitimate reason to interfere with the plaintiff’s rights.
As for the necessity test, this requires that restrictions respond to a ‘pressing social need’ and be proportionate to the aim. In abstract terms, the Court confirms that attempts to destroy the values of the Convention, incite violence and trample on the rights of others may be met with state reaction due to a pressing social need – an evaluation in which the state enjoys a wide margin of appreciation.
In the instant case, the ECtHR confirms that the national courts found ‘convincing evidence’ that the Islamic Society and Salam ‘did not constitute separate entities but were truly part of Hamas’. It thus recalls its jurisprudence on Hizb Ut-Tahrir and Others v. Germany – in which it upheld the proscription of an association devoted to the annihilation of Israel and the killing of its inhabitants – in order to assert that support of terrorism, direct or indirect, goes against the concept of international understanding and is forbidden under the United Nations International Convention for the Suppression of the Financing of Terrorism. Concerning the proportionality of the interference, the Court once again references the malicious behaviour of IHH, which had ‘tried to obscure its relationship with Hamas by replacing the Islamic Society as beneficiary of its financial support with Salam’. It also recalls that about 50% of the donations from the plaintiff went to either of these associations, representing a considerable contribution of EUR 2.5 million from 2006 to 2010. The Court infers from these behaviours that the funding of Hamas was the main raison d’être of the applicant.
Concerning the proportionality, the ECtHR considers that the proscription of IHH passes the test, insofar as any lighter measure or the granting of a prior hearing could have allowed the applicant to destroy evidence and relocate assets, thus making any sanction ineffective. In conclusion:
Hence, the Court decides, unanimously, that no violation of Article 11 of the Convention occurred.
This case appears to represent a straightforward transposition of the rules and principles surrounding the fight against terrorism at the domestic, supranational and international levels.
The most comparable judgement that comes to mind, cited multiple times in the present verdict, is Hizb u-Tahrir v. Germany, a remarkably similar one concerning the German decision to dissolve an extremist organisation based on its open incitement to kill Israeli civilians and destroy the State of Israel. In this case too, the Court sanctioned the government’s decision on grounds of Article 17 ECHR.
The main difference between the two cases concerns the appreciation of the threat by the ECtHR: directly in Hizb-u-Tahrir, indirectly in IHH. Indeed, in the former case the Court is confronted with explicit statements by the plaintiff that hardly leave any doubt on its ruthless goals. In the latter, conversely, the assessment requires an additional step, for the applicant is not directly engaged in violent activities or propaganda, but indirectly enables them by supporting an entity whose terrorist nature is not assessed by the Court itself, but by the Council of the European Union and the CJEU.
The relationship between the EU and the Council of Europe, and their respective judicial bodies, has always been a vexed question. As is well known, the EU is not part of the ECHR, which means that its acts are not subjected to the jurisdiction of the ECtHR. However, in the 1990 case M & co. vs Federal Republic of Germany, the European Commission on Human Rights made clear that the transfer of powers from the state to a supranational entity does not relieve the state of its responsibilities under the Convention. Hence, such a transfer is compatible with the ECHR only ‘provided that within that organisation fundamental rights will receive an equivalent protection.’ At the same time, the Commission found that the European Community’s legal system secured fundamental rights as well as mechanisms for control of their observance, entrusted to the European Court of Justice. This conclusion, reached at a time when no specific instrument protected individual rights at the Communitarian level, is a fortiori valid nowadays as the Charter of Fundamental Rights of the European Union has full legal effect under the treaties. From this perspective, the judicial review of the Council’s decisions in matters of terrorism, as conducted by the CJEU, is a correct parameter the ECtHR can rely on.
It is also to be considered that, unlike the CJEU, the ECtHR has not been called upon to assess whether the rights of Hamas and its members have been violated or whether there are sufficient grounds to consider it a terrorist organisation. The applicant has not embarked upon the treacherous (and doomed) path of vindicating its support for Hamas as legitimate but has limited itself to a) alleging that the German Law on Associations made the illegality of the contested conduct unforeseeable; b) contesting the lack of proportionality of the measure; and c) denying the causal chain of support for Hamas through its proxy organisations. The first two arguments are easily dismissed: as to the first, the precedent of the dissolution of another association for supporting Hamas, as the Court duly recalls, made it evident that such conduct would be a ground for proscription; as to the second, the argument that the chance to readjust the stream of funding would defy the purpose of the penalty is convincing.
The third is the trickiest one, as it involves an assessment on the merits, namely on the effective connection between the recipients and Hamas. On this, the Court refers to the Vona v. Hungary case, concerning the dissolution of an association due to the racist intimidations perpetrated by a movement connected thereto. One of the appellant’s defences was the claim that no organic links existed with such a movement, while in fact the latter had been created, funded and operated by the association. Thereby, the Court argued that the state authorities – the best placed to investigate the matter – had found ‘convincing evidence’ of the symbiotic relation between the two.
In IHH v. Germany, it follows the same reasoning and reaches the same conclusion concerning the link between the Islamic Society, Salam and Hamas. Certainly, there is a major factual difference between the two cases, in that the evaluation here does not directly concern the plaintiff, which is not claimed per se to be a member of the terrorist Palestinian movement, but three organisations that are extraneous to the judgement. However, from the perspective of the Court, this is irrelevant: once it has established that indirect support for terrorism is a justified reason for proscribing the association, just two elements remain to be considered, namely the support, in the form of substantial funding, and the terrorist nature of the recipient. The first is proven per tabulas and is uncontested. The terrorist character of Hamas is also beyond scrutiny, for the aforementioned reasons. As for the link between the two Palestinian beneficiaries and Hamas, while national authorities remain the best placed to assess it, this emerges quite clearly from the dossier: concerning the Islamic Society, it is hardly deniable that an association whose aim is to support the families of the terrorists who fell in action and which was created by a member and elected representative of a terrorist entity constitutes a gear in the terrorist engine; the fact that IHH halted its support once IS’s chairman was elected as mayor amongst Hamas’s ranks makes for additional proof, insofar as IHH felt the need to blur a problematic link that had become fully visible. As regards Salam, both the personal and material superposition with IS are demonstrated, insofar as it was established ‘by a former board member’ of IS, employed ‘several people who had previously worked’ for IS and ‘supported the same projects’ (para. 11). Given the circumstances, it is not a hard job for the Court to determine that the national tribunals had found ‘convincing evidence that [IS and Salam] did not constitute separate entities but were truly part of Hamas’ (para. 92).
Overall, it seems that the Court had clear elements to uphold the national decision, and it could hardly reach a different conclusion.