Original article (in Bosnian) was published on 17/04/2023
After the announcement made by Milorad Dodik, the president of the Republic of Srpska, that this BiH entity will adopt a law based on American regulations that non-governmental organizations with foreign funding are foreign agents, several media outlets published articles with similar, incorrect statements.
On March 8, 2023, Milorad Dodik, president of the Republic of Srpska, announced that a law on the activities of non-governmental organizations would be proposed in this BiH entity, which, according to him, “will be identical to the American one”, to the extent that it will be “literally copied” from America.
“The United States of America, in its law, calls those foreign non-governmental organizations, or those financed by foreigners, foreign agents on the territory of the United States of America. We will take over all that terminology and offer that law. So, instead of ‘United States’, it will be written the Republic of Srpska. Where it says ‘Ministry of Justice of the USA’, it will say ‘Ministry of Justice of the Republic of Srpska’, so let me hear what the Americans will say about that”, said Dodik at the time.
The US Embassy in Bosnia and Herzegovina responded to Dodik’s statements with a statement published on March 10, 2023, in which it criticized the announcement of this and the law on the criminalization of insult and defamation as “two repressive, undemocratic laws that, if implemented, would drastically violate the rights and freedoms” of citizens in the RS. The EU Delegation in BiH was also critical of the announcement of the law. Dodik called the criticism hypocritical and stated that the announced law in the RS will actually be “less rigorous” than the American one: “We will not be as rigorous as the Americans, we will not introduce a legal penalty”, said Dodik.
Ten days later, on March 23, 2023, after the 13th session, the Government of the RS announced that it had adopted the Draft Law on the Special Register and Publicity of the Work of Non-Profit Organizations and that it was terminating diplomatic relations with “American and British diplomats in Bosnia and Herzegovina due to anti-Dayton activities”. The text was soon published on the government’s official website.
Media support for the “American law” story
Announcements about the adoption of the “American law on non-governmental organizations in RS” have been present for almost a whole decade and it has long been known that they are based on incorrect claims.
In short, the “American law on NGOs” mentioned by Milorad Dodik does not exist. It is a law known as FARA (Foreign Agents Registration Act), which is not a “law on non-governmental organizations” nor is it “identical” to the Draft Law on a Special Register and Publicity of the Work of Non-Profit Organizations adopted by the Government of the RS. The repressive legal regulation of the work of non-profit organizations, which are described in the Draft Law as “agents of foreign influence”, is actually much more similar to the “Russian law”, as explained in the analysis of Radio Free Europe.
The parties from the ruling coalition in the RS also created a similar document in 2015, which contained provisions on non-profit organizations as “officials of foreign entities” and was presented as “the defence of the Republic of Srpska against dangerous foreign influences”, that is, against alleged conspiracies aimed at RS or Dodik, for which non-governmental organizations were accused. An analysis of the text of the law and the political discourse in which it was created was published by our partner web portal Istinomjer (1, 2).
Although it has been known to the public since 2015 that the claims about the “American NGO Act” are false, numerous media and political commentators have presented them as facts in their reports and analyses.
The day after Dodik’s announcement of the new law, on March 9, 2023, the article titled “Perisic: USAID’s activities – who finances ‘foreign agents in Bosnia and Herzegovina” was published on the website of Radio-television of Republic of Srpska (RTRS). The text conveys the views and conclusions of Srdjan Perisic, a former adviser to Milorad Dodik, who teaches at the Department of Journalism at the Faculty of Philosophy, University of East Sarajevo. The same text was published on the web portal Patriote srpske.
In the text, Perisic repeats the well-known narrative about “colored revolutions” allegedly initiated by non-governmental organizations on the directives of foreign governments (1, 2). In this case, speaking specifically about USAID (United States Agency for International Development), Perisic states that this agency uses non-governmental organizations to “influence political processes and election results” (the text ignores the Agency’s long-standing cooperation with institutions in the RS (1, 2). In this context, Perisic questions whether non-governmental organizations are “really non-governmental if they are financed by Western governments”, presenting their work in BiH as a risk to stability.
In the same context, it is further stated that the activities of non-governmental organizations in the USA are “resolved” by the FARA regulation, and the law announced a day earlier by Milorad Dodik is presented as a “law on foreign agents” which, it is implied, would end “grants and subsidies” from abroad and thereby reduce the “possibility of destabilization”.
As for the activities of NGOs, he says, it is interesting how the USA solved it.
– The USA began to legally regulate such activities as early as 1938. Then the law called “Foreign Agents Registration Act” (FARA) was adopted. This law has undergone several amendments, and the last one was in 1995. The law requires agencies, as well as physical and legal persons, to disclose their sources of funding. According to this law, a person (physical or legal) who acts under the management or supervision of foreign organizations and engages in political activity in the interests of foreign organizations is considered a foreign agent. Political activity means activity aimed at influencing the US federal authorities in order to change their domestic or foreign policy. In addition, there are eight other laws in the US in various fields that deal with the activities of foreign agents. Therefore, the USA, under the watchful eye of its various services, monitors every foreign funding of the NGO sector – but, on the other hand, they participate in the overthrow of other governments precisely through the “foreign agents” they finance – Perisic pointed out.
(…)
The social, economic and political situation in Bosnia and Herzegovina is very complex, it has many elements that can serve various “non-governmental organizations” to act in the way that USAID directs. After all, they were paid by that American agency. That is why the authorities of Srpska have to pay attention to financing from abroad. Termination of such grants and subsidies would very quickly and radically reduce the possibility of destabilization of BiH and Srpska. However, are the authorities of Srpska ready to pass a law on foreign agents? President Milorad Dodik’s statement that it is necessary to enact such a law, following the example of one in the USA, hints at this possibility. The majority of the citizens of Srpska would support this. Pressures from Washington and Brussels could be nullified by clearly stating that Western countries also have such laws – concludes Perisic.
Sputnik Srbija also addressed the announced bill in an article published on March 9, 2023, under the title “Foreign agents like in the USA: the Republic of Srpska sends a clear message to the West – the answer will not fail”. The text conveys the comment of Obrad Kesic, head of the Representation of the Republic of Srpska in Washington, who is presented as a political analyst from Washington. The article, which was also published by Srna, Otvoreno and Iskra on the same day, states:
The announcement by the President of the RS Milorad Dodik that he will propose a law that will treat NGOs financed from abroad as foreign agents is a kind of message to the West. This announcement points to Western hypocrisy, whose politicians condemn such laws in Israel or Georgia, and introduce them in their own countries and protect Serbia from foreign interference.
(…)
Our interlocutor’s assessment is that the West will react to Dodik’s proposal in the same way as it reacts to similar attempts in Israel and Georgia – they will ask for the law to be either repealed or not voted on at all.
Kesic explains that the law that Dodik advocates has existed in America since the 1930s.
What are the facts?
Claims that the USA began to “solve” or “regulate” the activities of NGOs in 1938 by adopting the FARA law, published by RTRS, and that “the law that Dodik advocates has existed in America since the 1930s”, published on Sputnik, are not correct.
The adoption of the FARA Act in 1938 had nothing to do with the regulation of the work of non-governmental organizations, nor does this act play an essential role in it. FARA is not an “NGO law”, and the act itself does not mention this term at all.
Non-profit/non-governmental organizations are not equated with “foreign agents” in any legislation that regulates their work, nor are they treated as a “problem to be solved”, as these articles represent. According to data from the US State Department from 2021, about 1,500,000 non-governmental organizations were active in the US at that time in various fields: from foreign policy, through elections, ecology, and health care, to the protection of human rights of various social groups.
There are very few restrictions on freedom of expression, association and the work of non-governmental organizations in US legislation. Organizations are registered in federal states in accordance with their local regulations, while at the federal level, there is no specific “American NGO Act”.
What is regulated at the federal level is the tax “status” of non-profit organizations. Thus, for example, organizations engaged in education, humanitarian work, religion, science, professional and sports associations and other types of non-profit organizations that are listed in Article 501(c) of Regulation 26 of the United States Code of Law (the regulation governing taxation) are exempt from income tax payments, but two basic conditions must be met for this benefit. The first is that they do not make a profit, and the second is that they are not directly involved in political activities, such as election campaigns or attempts to influence legislation, except in specially defined exceptions prescribed in Article 501(h).
There are no legal restrictions that would prohibit non-governmental organizations from political activity, but in that case, they cannot claim the relief available to “non-political” organizations. Organizations registered under Section 501(c)3 can receive unlimited donations, which, in most cases, are tax deductible for their donors. If, on the other hand, it violates the regulation on non-participation in political activities, the organization can no longer regain the status it had, which may threaten its continued existence, either due to the payment of standard income taxes or because it could lose donations.
However, none of this is related to the origin of the financing source, but only to the criteria from the aforementioned regulations.
In contrast, the proposal of the Government of the RS deals specifically with non-profit organizations “who are fully or partially financed by other states, their bodies or their authorized representatives, international and foreign organizations, foreign citizens or registered non-governmental organizations that are financed from abroad” which prohibit the political activity, including participation “in the campaign of political parties and candidates, fundraising for political parties and candidates, financing of candidates and political parties”. There is no such provision in US law.
In addition to such concrete political activities – which, by the way, are already “prohibited” by associations and foundations in Article 3 of the Law on Associations and Foundations of the Republic of Srpska – the Draft Law also contains a very broad provision that prohibits “the implementation of political activity with the aim of forming public opinion in order to achieve political goals”. As political goals can mean very different things, the provision can be interpreted in different ways and be used for repressive action against civil society organizations if they, for example, criticize political parties or persons in power.
Such provisions, again, do not exist in US law. Even the FARA law does not prohibit the political activity of non-governmental and/or non-profit or any other organizations because they are financed from abroad. Moreover, according to the State Department’s guide to non-governmental organizations, foreign NGOs can register and operate in the US in the same way as domestic organizations:
In order for foreign organizations to be able to carry out activities in any US state, they must apply for a license to do business in that state. This process is similar to the described incorporation process for American NGOs. Like domestic NGOs, foreign organizations can apply to the Internal Revenue Service for the status of a charity or social welfare organization under the Internal Revenue Code. Although such organizations are exempt from income tax, donations to foreign organizations are not tax-deductible (unless there is a special agreement with the NGO’s country of origin).
In this guide, the State Department also addresses claims like those that are the subject of this analysis, stating that FARA does not limit political freedoms or freedom of expression in the US:
Some governments have wrongly argued that FARA restricts political freedoms in the United States. On the contrary, FARA does not inhibit freedom of expression, does not regulate the content of information disseminated, does not place any restrictions on lobbying or the publication of informative or advocacy materials, and is neutral in its treatment of all countries. With respect to foreign funding, FARA does not impose limits or restrictions on the receipt of foreign funds by non-governmental organizations operating in the United States, nor does it tax them. Registration under FARA is not tied to funding from foreign governments; registration is actually mandatory for those who perform certain activities at the request, under the instructions or under the control of a foreign patron, solely for the purpose of achieving full transparency.
Is the proposed law of the RS government a “rewritten FARA law”?
The FARA law was adopted in 1938 with the intention of limiting the political and propaganda influence of Nazi Germany before the Second World War. As already stated, this law does not deal specifically with non-profit organizations, nor does it introduce any prohibitions on their activities in any field.
In the FARA law, the term “agent of a foreign principal” is used, which can be translated as an agent, representative or employee of a foreign sponsor and is defined in the text of the law as any legal or natural person who:
…acts as an agent, representative, employee or official or any person acting in any other capacity at the behest, request or under the management or control of a foreign patron or a person whose activities he directly or indirectly supervises, directs, controls, finances or in whole or mostly subsidized by a foreign patron who directly or through another person:
(i) engages in political activities within the United States in the interest of such foreign patron;
(ii) acts within the United States as a public relations consultant, public relations agent, information employee, or political consultant for or in the interest of such foreign sponsor;
(iii) solicits, collects, pays or issues contributions, loans, money or other things of value in the United States for or in the interest of such foreign sponsor; or
(iv) represents in the United States the interests of such foreign sponsor before any agency or official of the United States Government; and
(2) any person who agrees, consents, assumes to act or intends to act, or who is or holds himself out to be an agent of a foreign sponsor, as defined in clause (1) of this subsection, regardless of whether such relationship is regulated contract.
This law exempts from registration a person whose activities are registered in accordance with other regulations, for example, persons accredited to international organizations who have informed the State Department about it in accordance with the provisions of the Law on Immunity of International Organizations, and persons whose activities are “maintenance of bona fide religious, scholastic, academic or scientific activities or the fine arts”, activities such as certain requests for funds for medical aid, for “food and clothing and for the relief of human suffering”.
FARA, therefore, applies to natural and legal persons who act within the country on behalf of or represent the interests of “foreign patrons”, and not to every non-profit organization that receives financial resources from abroad. This key fact about the FARA Act was omitted from the analyzed announcements, and one gets the wrong impression that every civil society organization that receives financial resources from abroad is treated as a “foreign agent” or, as it is formulated in the Draft Law adopted by the Government of the RS, “agent of foreign influence”.
A comparison of these two texts clearly shows that it is not about a “rewritten law” nor about acts that can be equated as it was done in the analyzed articles. Provisions that clearly define what is considered a basis for registration do not exist in the Draft Law adopted by the Government of the RS, while, on the other hand, the FARA Law does not contain the mechanisms provided for in the Draft Law on a Special Register and Publicity of the Work of Non-Profit Organizations, such as regular annual inspections for organizations that have foreign donors.
Does the “American law” apply in other countries?
In addition to supporting the aforementioned inaccurate claims made public by Milorad Dodik, certain media outlets tried to further support them by spreading the story to other countries where the “American law” is allegedly applied.
After the reaction of the US Embassy to the statements of Milorad Dodik, on March 10, 2023, Tanjug published an article stating that in 2020, Russia passed a law on NGOs “based on the American one”. The article was reported by numerous media, such as Politika, Informer, Radio-televizija Vojvodine, Dunav, Srbija realno and Evrobook.
(…) Despite the announcement that the law will be modelled after the American one, the American embassy claims that the Serbian law is modelled after the Russian one, which, as stated, is restrictive and undemocratic.
Russia, however, passed the Law on Non-Governmental Organizations in 2020, based on the American one.(…)
In addition, Perisic’s claims served as material for a report, and then an article featured on the website of Alternative Television, on the same day they were published on RTRS. In the article titled “Three world powers, one attitude towards NGOs: Why not Srpska?” it is additionally claimed that the authorities of the USA, China, Israel and Russia have “the same attitude towards NGOs”.
“That is why the authorities of Srpska must pay attention to financing from abroad. The termination of such grants and donations would very quickly and radically reduce the possibility of destabilization of BiH and Srpska. However, are the authorities of Srpska ready to pass a law on foreign agents? A statement by president Milorad Dodik that it is necessary to enact such a law, precisely on the basis of such a law in the USA, hints at that possibility. The majority of the citizens of Srpska would support it. The pressure from Washington and Brussels could be nullified by clearly stating that Western countries also have such laws. In addition to the USA, where the law is still in force, Russia, China and Israel have the same attitude towards NGOs.
Attempts to use FARA as a “cover” for the adoption of various repressive laws have been noted in a number of other states. The adoption of the “Law on Non-Profit Organizations” in Russia in 2012 was “advertised” to the public precisely as the introduction of the so-called American law, in a similar way as Milorad Dodik is currently doing. The law was part of the government’s reaction to the protests that broke out in Russia in 2012, that is, the effort to present them as “directed” by the USA (a thesis that can be found in several analyzed articles) and to repress people or organizations critical of the government. This approach was then adopted by political actors in other countries in attempts to establish legal mechanisms for controlling, prohibiting or hindering the work of the media and organizations critical of the government.
The 2020 Russian law mentioned in Tanjug’s article is one of a number of changes to a law adopted in 2012 that has been widely criticized as repressive and undemocratic. On December 30, 2020, Deutsche Welle (DW) wrote about it, stating that it enables authorities to “designate individuals as ‘foreign agents’ and sentence them to five years in prison if they do not report their activities properly”.
On December 30, 2020, on the official website of the Kremlin, it was announced that Vladimir Putin signed the amendments introducing additional measures to “suppress threats to national security”, by:
(…) introducing the concept of an unregistered public association acting as a foreign agent and creating a mechanism for monitoring the activities of such associations;
clarifying the definition of a non-profit organization that acts as a foreign agent and, in connection with this, to introduce the concept of an intermediary in receiving funds and (or) other assets;
adapting the requirements regarding checks and inspections of non-profit organizations;
introducing the concept of an individual acting as a foreign agent and creating a mechanism to monitor the activities of such persons;
introducing requirements for mandatory labeling of foreign agents’ material, as well as to prohibit the distribution of such material through the media without appropriate labeling;
introducing a ban on access to state secrets for persons acting as foreign agents and their appointment to positions in state bodies and local self-government bodies. (…)
It is unclear why in Tanjug’s article this version (2020) of the Russian Law on non-profit organizations as “foreign agents” was emphasised with the claim that it was adopted on the model of the “American law”. It is about changes to existing legislation that compels NGOs that receive donations from abroad to register as foreign agents, with a series of repeatedly applied repressive measures that make it difficult for them to operate, which do not exist in the FARA law.
In 2021, the Venice Commission published an opinion on Russian law, recommending its fundamental changes so as not to jeopardize the right to association and democratic processes, pointing out in the same document the differences between “Russian and American law”.
With each new change, the law significantly expanded arbitrary powers, as can be seen from the judgment of the European Court of Human Rights in 2022. The court then ruled in favour of the organizations that sued Russia for being forced to register as foreign agents and the repressive treatment that followed, which would not have been possible under the provisions of the FARA law:
9. The application of the Law on Foreign Agents led to the imposition of administrative fines, financial expenses, restrictions on the activities of the applicant’s organizations and initiation of criminal proceedings against the director of one organization. Many organizations were shut down due to violations of the conditions applicable to “foreign agents” or had to shut down themselves because they could not pay fines, or avoid new sanctions.
10. On December 28, respectively 29, 2021, the Supreme Court of the Russian Federation, or the City Court in Moscow, approved the prosecutor’s requests for the liquidation of the organizations International Memorial and Memorial Center for Human Rights and their field offices. The courts found that the organizations – which the Ministry of Justice has put on the register of “foreign agents” – committed “gross and repeated” violations of the law on “foreign agents” by not putting labels on their Facebook, Twitter, YouTube, Instagram and other online publications that they originate from an organization that is a “foreign agent”. Courts held that, by “concealing [their] status as a foreign agent”, the organizations failed to ensure “transparency of [their] activities”, prevented “adequate public scrutiny of [their] activities”, and violated “citizens’ right to obtain reliable information about [their] activities”, in flagrant violation of Russian law.
In addition to Russia, the articles also mention other countries that have introduced or attempted to introduce laws presented as versions of the “American law”. Among them is the draft law on “transparency of foreign funding” in Georgia, according to which a register of all organizations financed from foreign sources with more than 20% would be created, which was withdrawn after mass protests in that country. A similar law was proposed in Bulgaria in 2022. According to this law, any media that receives over 1,000 BGN (1,000 KM) per year from a foreign source would have to register as a “foreign agent” in the Ministry of Justice of that country, so “foreign agents” would be considered founders, managers, employees, owners, partners and shareholders of private media.
In 2017, the repressive Law on the Transparency of Foreign Funded Organizations was also adopted in Hungary, but the European Commission assessed that it was not in accordance with EU legislation, which was confirmed by the Court of Justice of the European Union in 2020. After that, the Law was withdrawn.
As for China and Israel, those countries have laws similar to the one proposed by the Government of the RS, but it is incorrect that these laws were modelled after the American one.
Since 2017, a law has been in force in China according to which non-governmental organizations that are financed from foreign sources must be registered with the competent Ministry of Security and their work is limited to those areas that do not threaten “national unity, security or ethnic unity”. The law stipulates that the work of such non-governmental organizations must not harm “China’s national interests, as well as social public interests”.
In 2016, Israel adopted a law according to which all non-governmental organizations that receive more than 50% of their funding from foreign sources must register these funds in a single register. This law also covers non-governmental organizations that are active in the field of human rights, which, according to critics, has opened the way for many activists to be falsely labelled as foreign agents. In the official statement concerning the adoption of this law, the European Commission pointed out that “the new legislation risks undermining the values of democracy, freedom of expression and the diversity of the civil sector”.
Laws that attempt to suppress freedom of organization, association and expression in this way are not, therefore, “laws that Western countries have” nor have they been supported as such by legal and political institutions in the EU. On the contrary, the reaction of the European institutions led precisely to the withdrawal of such a law in Hungary.
IMPORTANT
Let’s note that in an article published on March 13, 2023, Politico announced that the EU is preparing legislation according to which non-governmental organizations, consulting firms and academic institutions would have to disclose all sources of funding that come from outside the EU. This measure is allegedly being introduced as part of the suppression of foreign influence in the bloc. The article is based on three anonymous sources, and until the time of writing this analysis, there was no formal confirmation or denial of the allegations from the EU.
According to the stated facts, the claims that the American FARA law regulates the work of all non-governmental organizations that are financed from the funds of foreign governments, that it marks them as “foreign agents”, that it does so in the manner described in the Draft Law on the Special Register and Publicity of the Work of Non-Profit Organizations, and that the authorities of China, Israel and Russia have the “same attitude towards NGOs” based on regulations from the USA, we assess as disinformation. We also assess these articles, which omitted known facts that say the opposite, as biased reporting.
